creditor on the ground that his conveyance must be deemed to have priority in point of time over the writ, and, therefore, over the delivery in execution which necessarily follows it. Fi. fa.-Leaseholds are not bound as against a purchaser for value until the time when the writ is delivered to the sheriff (30 SOLICITORS' JOURNAL, 725), or, possibly, if the word "goods" bears the same meaning in the Mercantile Law Amendment Act (19 & 20 Vict. c. 97), s. 1, as it bears in the Statute of Frauds, until seizure, if he had no notice that a writ under which the land could be seized was in the hands of the sheriff. Seizure is not a matter that can be registered. In cases, therefore, where a purchaser from the judgment debtor, without notice of a writ, enters into a contract before seizure, his right will be preferred to that of a purchaser from the sheriff; and if his conveyance, not being founded on a prior contract, is completed before the seizure, he will not lose priority merely because the writ is executed before the con veyance. On the other hand, if a conveyance not founded on a prior contract, and made after seizure, is registered before the writ, it may be held that the conveyance must be taken to have been executed before the writ was registered, and, therefore, that the purchaser from the judgment debtor would have priority over a purchaser from the sheriff, on the ground that the conveyance to the former must be deemed to have priority in point of time to the writ, and, therefore, to the seizure. Appointments of receivers.-Orders appointing a receiver, whether on final process or not, take effect from the moment when they are made, and, therefore, it appears that, as between a conveyance to a purchaser (where there is no prior contract) and an order, the priorities will be settled according to dates of registration. But it must be remembered that, if the order is made in an action which is properly registered as a lis pendens, the purchaser may be postponed owing to the doctrine of lis pendens. Bankruptcies.-Seeing that the Yorkshire Registries Act of 1884 was passed one year only after the Bankruptcy Act of 1883, which repealed the Act of 1869, it is probable that the draftsman of the Yorkshire Registries Act, 1884, had the Bankruptcy Act of 1869, not the Act of 1883, before him. Under the Act of 1869, on adjudication, all the property belonging to the bankrupt at the date of the act of bankruptcy on which the adjudication was founded, vested in the trustee in bankruptcy; but conveyances for value made by the bankrupt before adjudication to a person not having notice of the act of bankruptcy were protected. We see, therefore, the reason for specially mentioning "order of adjudication" in the Yorkshire Registries Act. There can be but little doubt that a conveyance of lands in Yorkshire made after adjudication by a person who is bankrupt under the Act of 1869, but registered before the adjudication is registered, would be pro tected. The questions that arise under the Bankruptcy Act, 1883, are somewhat difficult. On a receiving order being made the official receiver becomes receiver of the property of the debtor, but no cessio bonorum takes place, as it is uncertain whether the debtor will ever become bankrupt. If an adjudication follows, all the property belonging to the bankrupt at the date of the act of bankruptcy on which the adjudication was founded vests in the trustee in bankruptcy, but conveyances for value made by the bankrupt before the date of the receiving order to a person not having notice of the act of bankruptcy on which the adjudication is founded are protected. cation is registered in Yorkshire or not. Possibly it may be necessary to register it for the purpose of obtaining priority over conveyances executed by the bankrupt after adjudication, but this is not at all certain. If an adjudication is made, no question as to priority of effect arises between a conveyance of the protected class and the receiving order. The latter only marks a date after which no conveyance is to be protected; and it seems probable, therefore, that a protected conveyance will not lose its priority by want of registration in Yorkshire, and that, on the other hand, a conveyance executed after the date of the receiving order may be protected if registered in Yorkshire before the registration of the receiving order if it be of such a nature that it would be protected if the land had not been in Yorkshire and if the conveyance had been executed before the date of the receiving order. These points are, however, so doubtful that the wise course is to register conveyances, receiving orders, and adjudications in bankruptcy without delay. Tacking. By the Act of 1884 (s. 15) registration of any instrument was constituted actual notice to all persons. This section was repealed by the amending Act of 1885 (48 & 49 Vict. c. 26) as from the 16th of July, 1885. The Act of 1884 provides (section 16) that no priority or protection shall be given or allowed to any estate or interest in land in the three ridings by reason or on the ground of such estate or interest being protected by or tacked to any legal or other estate in such land, except as against any estate or interest existing before the commencement of the Act, and that though the person claiming protection is a purchaser for value without notice. The intention of the repeal of the 15th section of the Act of 1884 was to allow a mortgagee to make further advances, or a banker to allow fresh drafts upon a mortgage to secure an account current, without searching the register before each advance or draft. But it is extremely doubtful whether this repeal will have the desired effect, owing to the omission to repeal section 16. REVIEWS. EQUITY. A PRACTICAL COMPENDIUM OF EQUITY. By W. W. WATSON, Esq.,” Barrister-at Law. SECOND EDITION. By the AUTHOR and B. P. NEUMAN, Esq., Barrister-at-Law. 2 Vols. H. 3weet & Sons. Mr. Watson's work consists of a digest of the law of equity arranged under a series of about forty different heads. These beads are arranged in alphabetical order; but as many of them contain be requisite to have some little familiarity with it before one could sub-heads, the book is not really an alphabetical digest, and it would know precisely in which part of the two bulky volumes of which it consists to look for the information required on any particular point. Thus "Parent and Child" comes as a sub-heading to "Guardian and Ward;" while the law of partition is included under the heading of joint-tenancy, which also includes tenancy in common and coparcenary; and there is a heading entitled " Vesting and Divesting of Estates and Interests," which seems, so far as we have looked into it, to be very inclusive indeed. In spite, however, of the rather arbitrary method adopted, we are by no means prepared to condemn it; for it appears to have been suggested by a certain underlying logical principle, and must be looked upon rather as a compromise than in any other light. We have little doubt that the general index at the end of the book would soon enable the reader to get over any preliminary difficulties of this kind. Our principal fear with regard to the book is that it rather falls between two stools, being too minute and copious for the student, and not full or detailed enough for the lawyer. The author has, however, shewn a has done his best to give the very utmost amount of information in the limited space which he has allowed himself. But when a writer attempts to condense the law of "wills" into less than two hundred pages, and that of "powers" into less than one hundred, he sets himself a task which it is not easy to accomplish successfully. The receiving order is an order of court within the meaning of the Yorkshire Registries Act, 1884, and is, therefore, capable of registration. It appears, therefore, that, so far as regards its immediate effect in appointing a receiver of the property of a bank-very ingenious brevity in his statements of the effect of cases, and rupt, registration is material, and that the receiving order will, if registered in Yorkshire before a conveyance by the bankrupt, have priority over it, and that any such conveyance, even if made after the receiving order, but registered before it, will have priority over the order. In cases where an adjudication is made the questions that arise are more difficult. The effect of adjudication does not depend on its date, but on two things-namely, (1) the date of the act of bankruptcy on which it is founded (a matter not susceptible of registration), and (2) the date of the receiving order. It appears therefore that, at all events as regards all transactions that take place before the adjudication, it is immaterial whether the adjudi There are, however, many to whom a sort of dictionary of the effect of the more important decisions in equity will doubtless be useful, and to such we can confidently recommend the work now before us. enlarged from its predecessor, and appears, so far as we have been The present edition, the second, has been considerably able to judge, to have been carefully brought down to the present condition of the law. One or two slips and oversights, nevertheless, we have come across. Thus, under the heading of "Compromises and Family Arrangements," a quotation is given from the judgment of James, L.J., in Moxon v. Payne (8 Ch. 881), as if it referred to a Family Arrangement," whereas it is clear, on referring to the case, that his lordship's expressions are, properly speaking, applicable only to compromises; and on page 65, under the sub-head of Compromise of Proceedings," no reference is given to the very important case of Harvey v. Croydon Sanitary Authority (26 Ch. D. 229). It also appears to us that not sufficient notice is taken of the effect of the Judicature Acts in doing away with the necessity of shewing an equitable ground for relief in suits brought in equity courts. For instance, on page 103 it is stated: "If the plaintiff fail to establish any contract of which specific performance can be decreed, damages cannot be given," and on page 1,252, in discussing the remedies for "Waste," it is stated: "An action for an account will not lie, except as incident to an injunction.” Neither of these statements are now correct, and, as they stand, they might prove misleading to a student. We would also suggest in a future edition that some space might be gained for more important matter by omitting much of the article headed "Assets," which is now chiefly of historical interest. CORRESPONDENCE. SOLICITORS AND THE IMPERIAL INSTITUTE. [To the Editor of the Solicitors' Journal.] Sir, I have nothing to say against the scheme of the Imperial Institute, about which nobody knows much. I am quite willing to admit that it is in every respect admirable, and may do for this country and the empire all that the most sanguine of its promoters expect, and I need hardly say that I do not wish to appear to be wanting in respect for His Royal Highness the Prince of Wales; but I do object to having the screw applied by the Council of the Incorporated Law Society to extract money from the view the scheme even in so favourable a light as I do, or who may pockets of myself and others of the profession who may not possibly find it very inconvenient to comply with such a demand and equally unpleasant to refuse to do so. Everyone I suppose throughout the country is aware that such a project is on foot, and everyone can contribute as much as he pleases to support it; but if a species of blackmail is to be levied in order to provide funds, it seems to me that instead of a friendly feeling towards the scheme being created, the result will be quite the contrary. This, however, is somewhat beside my present point. I object to the authority of the Incorporated Law Society being used for the purpose of obtaining money for this or any other scheme, however excellent, which is entirely unconnected with the business of the society and over which the society has no control. If a precedent be once established, there are numerous institutions, all equally worthy of support, for which contributions may be demanded with quite as much reason. And what would be the result of non-compliance with the demand of the council to those members of the profession who, in these hard times, might be unable to spare the money? Why, they would feel themselves to be marked men; and, however unjustified they might be in taking that view, it is, I submit, a position in which no one should be placed. A SOLICITOR. This book gives a clear and readable account of the law relating to the ceremony of marriage, and the present edition, besides being an improvement on the first in type and general appearance, contains a good deal of additional matter. The arrangement of the subject is little altered, and, indeed, it would not be easy to present it in a more logical and convenient manner. The hardships which existed under the old law, prior to 1836, are well pointed out, though it is somewhat difficult to realize that till that date only Jews and Quakers were allowed marriage ceremonies of their own, and that all beside, Roman Catholics and Dissenters alike, could be married only in the Established Church. Mr. Hammick, however, is now contented to let well alone. He strongly disapproves of the attempt made last year by the present Attorney-General to turn Dissenting ministers into registrars, and inserts a forcible protest on the subject contained in a letter by the late Registrar-General, Major Graham, to Mr. H. Richards, M.P. But if such grievances are only sentimental, the old law had others of a very real kind. Thus the ROBINSON v. DUKE OF BUCCLEUCH AND QUEENSBERRYmarriage of minors by licence, without the consent of parents or guardians, was absolutely void. Hence, where the consent of the mother was obtained, who was supposed to be a widow, and it was afterwards discovered that the father was living, it was held that there had been no marriage. This has now been altered, and, though the consent is still required, yet the want of it does not destroy the validity of the marriage. It is clearly one thing to attempt to prevent foolish or ill-considered marriages by directing certain precautions to be taken, and quite another to declare that the marriage shall be void for want of them after its obligations have been entered into and new rights have been called into existence. But in their present state our marriage laws are by no means free from difficulties, and these are clearly explained by Mr. Hammick. Thus he shews that the name in which banns are published need not be the original name, but should be the known and reputed name. He gives an opinion of the late Sir R. Phillimore on the curious question of residence, from which it appears that the mere hiring of lodgings is not sufficient, though the matter does not seem free from doubt. And with the whole question of the different methods of marriage-by banns, by common licences, or by special licences in the Church of England, and before the registrar-he deals in such a manner as should make it perfectly clear to all who are concerned with the administration of the marriage law. The Appendix contains the statutes on the subject, presented, where necessary, in full, and a statement of the law in the various British colonies and possessions, as well as much other useful matter. The book is brought well up to date, and the author has been able to insert amongst the addenda the recent case of Scott V. Sebright. The various subjects of the marriages of Quakers and Jews, of the marriage laws of the other parts of the United Kingdom, and of marriages abroad, are fully treated of in the text. The Daily News says that :-"By the death of Mr. W. G. Bower, which took place on Saturday last, in his seventy-first year, the frequenters of the Law Courts and the legal profession generally will miss a familiar figure. He was formerly clerk to the late Lord Chelmsford when he practised at the bar, and on the elevation of that learned gentleman to the woolsack he was shortly afterwards appointed chamber clerk to Mr. Justice Mellor in 1861, which post he continued to hold for many years. He also acted as clerk successively to Baron Amphlett (afterwards Lord Justice), Lord Justice Thesiger (son of Lord Chelmsford), and for the last six years to Mr. Justice Cave. The funeral took place at Ealing Cemetery, when a very handsome wreath was sent by the judges' clerks, several of whom were present." CASES OF THE WEEK. 66 John the C. A. No. 1, 10th, 12th, and 14th March. ADMISSIBILITY OF EVIDENCE-CERTIFICATES OF BAPTISM AND BURIAL. This was an appeal from the decision of Stephen, J., in an action for ejectment at the Leicester Assizes. In 1874 the defendant bought some property in Warwickshire from Thomas Robinson. The plaintiff claimed as heir-at-law, and alleged that his grandfather was the elder brother of the grandfather of the vendor. The only question now raised was as to the legitimacy of the plaintiff's father, who was known as Pensioner " to distinguish him from the plaintiff's grandfather who was known as "John the American." The plaintiff's documentary evidence consisted of a certificate of the marriage of John the American and Hannah Holyland, dated November 18, 1782, of a certificate of the baptism of "John, son of John and Susanna (sic) Robinson, dated March 15, 1783, of a certificate of the burial of "John the Pensioner" dated October 8, 1857, in which his age was stated to be seventy-four, and of a military certificate of the service of John the Pensioner in which his age was also stated. The plaintiff also relied on the will of the maternal grand father of John the Pensioner, in which he was mentioned as "my grandson, the son of my daughter Hannah Robinson." There was also evidence of reputation in the family that the Pensioner was regarded as the legitimate son of his parents, but as Stephen, J., appeared to consider that the documents raised a presumption of legitimacy, this was not fully gone into. On the other hand it was proved that John the American left England for New York immediately after his marriage with Hannah Holyland, and that he married again and died there, and by a codicil to his will, dated July 3, 1822, he left a legacy to "John Robinson the son of Hannah Holyland," while he referred to all his other children as my son or "my daughter." Stephen, J., gave judgment for the plaintiff, and the defendant now contended that there was no evidence that John the Pensioner was born after the marriage of his parents in November, 1782. THE COURT (Lord ESHER, M.R., BowEN and FRY, L.JJ.) allowed the appeal, and directed a new trial. They said that they doubted whether the certificate of baptism wis rightly admitted in evidence, but that if it was admitted it was no evidence of the age of the child. As to the certificate of burial that only was evidence of the death of John the Pensioner, but although stating his age was no evidence of it. The certificate of military service was inadmissible altogether. The presumption of law was that a child born after wedlock was legitimate, but here there was no evidence at all of the date of the child's birth. The mere fact that a woman had a child and that at some time or other she was married, raised no presumption of the legitimacy of the child. The evidence of reputation had not been thoroughly threshed out, and they thought that it would be most desirable that there should be a jury at the new trial. COUNSEL, Sir R. E. Webster, A.G., H. J. Hope, and Arthur Denman ; Graham and Toller. SOLICITORS, Nichol & Manisty; Gedge, Kirby, & Co., for Wright, Leicester. FURBER v. COBB-C. A. No. 1, 8th March. BILL OF SALE-VALIDITY-COVENANTS "6 NECESSARY FOR MAINTENANCE OF The question in this case was as to the validity of a bill of sale given as security for money. By the deed the grantor assigned to the grantees, who were auctioneers, the chattels specifically described in a schedule thereto, and which were stated to be then in a certain messuage. The grantor covenanted with the grantees that he would not remove the chattels, or any of them, from the premises where they then were, without the consent in writing of the grantees; that he would not permit the chattels, or any part thereof, to be destroyed or injured, or to deteriorate in a greater degree than they would deteriorate by reasonable use and wear thereof, and would, whenever any of them were destroyed, injured, or deteriorated, forthwith replace, repair, and make good the same. And it was agreed that, in case default should be made by the grantor in payment of the principal or interest, or any part thereof, or in the performance of any of the covenants therein before contained on the part of the grantor, "all of which covenants are hereby declared to be necessary for the maintenance of the security hereby created," or if he should become a bankrupt, or suffer the chattels, or any of them, to be distrained for rent, rates, or taxes, or if the chattels mentioned in the schedule, or any of them, should be fraudulently removed from the premises on which the same were or should be, or if the grantor should not, without reasonable excuse, upon demand in writing by the grantees, produce his last receipts for rent, rates, and taxes, or if execution should have been levied against the chattels of the grantor under any judgment, in any of such cases it should be lawful for the grantees, without notice, immediately, or whenever they might think fit, to seize the chattels, and, after the expiration of five clear days, to sell the same, and to receive the proceeds of sale, and therewith, in the first place, to reimburse themselves the costs of such sale, "including therein the full charges and commission of the grantees as auctioneers, as if they were selling on behalf of the grantor," and, in the next place, to pay other costs and expenses, and to pay the principal and interest remaining due, and to account for the surplus to the grantor; provided always that the chattels thereby assigned should not be liable to seizure or to be taken possession of by the grantees for any cause other than those specified in section 7 of the Bills of Sale Act, 1882. Bowen, L.J., held that the covenant not to permit the chattels to be destroyed or injured, or to deteriorate, &c., was not necessary for the maintenance of the security, and that the bill of sale was void, because power was given to seize and sell the chattels on breach of that covenant. the proceeds of the sale of the chattels the grantees might retain their full charges and commission as auctioneers, as if they were selling on behalf of the grantor. This was a provision for securing to the grantees a larger advantage than they would have had if the statutory form had been followed; it was not a provision for the maintenance of the security, but a provision for obtaining to the grantees, in addition to that security, their trade profit as auctioneers by the sale. And, even if the proviso at the end of the deed could limit the effect of the previous covenants, which had been declared to be necessary for the maintenance of the security, the bill of sale would be calculated to mislead, and would be void on that ground. FRY, L.J., concurred. He was of opinion that the covenant to replace and repair any of the chattels destroyed or injured was "necessary for the maintenance of the security." security was maintained only when the subject-matter of the charge aud the grantees' title to that subject-matter were both preserved in as good plight and condition as at the date of the bill of sale. THE COURT said that, if necessary, they would give leave to appeal to the House of Lords.-COUNSEL, Pollard, R. Vaughan Williams, and E. F. Hodge; Lumley Smith, Q C., and Herbert Reed. SOLICITORS, R. Furber; Burgess & Cosens. Re MARSHFIELD, MARSHFIELD v. HUTCHINGS-Kay, J., 28th February and 11th March. The MORTGAGOR AND MORTGAGEE-ARREARS OF INTEREST-SALE BY MORTGAGee KAY, J., said that this was not a distress, action, or suit by the first mortgagee to recover his interest, but rather a suit by the mortgagor against the mortgagee. The case came exactly within the decision of Kindersley, V.C., in Edmunds v. Waugh (14 W. R. 257, 1 Eq. 418), and he must hold that the first mortgagee had a right to retain more than six years' arrears of interest.-COUNSEL, Phipson Beale; E. Beaumont; R. F. Norton; Church. SOLICITORS, Winckworth, Trollope, & Winckworth; Munns & Longden; Prior, Church, & Adams, for H. Salter Dickenson, Poole, Dorset. COOTE v. INGRAM-Chitty, J., 15th March. R. S. C., 1883, XXXVI., 2-8-MODE OF TRIAL-RIGHT TO A JURY. In this case a motion was made by the plaintiffs to discharge an order obtained in chambers by the defendant for a trial of the action before a jury. It appeared that the action was brought for an injunction and damages for infringement of literary copyright. On motion for an interim injunction, an undertaking had been given by the defendant. The defence alleged acquiescence, and also that publication of the words of songs did not constitute an infringement of registered copyright in words and music of songs. The defendant claimed an absolute right, under ord. 36, r. 6, to a jury, citing Coles v. Civil Service Association (32 W. R. 407) and Fennessy v. Rabbits (ante, p. 316). The plaintiffs contended that the effect of ord. 36, rr. 4 and 7a, was to give the court or judge a discretion, citing The Temple Bar (34 W. R. 68, 11 P. D. 6). THE COURT OF APPEAL (Lord ESHER, M.R., Sir JAMES HANNEN, and FRY, L.J.) dismissed the appeal, holding the bill of sale to be void, but on a different ground. Lord ESHER, M.R., held that the bill of sale either altered the legal effect of the statutory form, or that it was a puzzle and misleading. In either view the bill of sale was void. But he thought that the ground taken by Bowen, L.J., could not be maintained. Sir JAMES HANNEN agreed with Bowen, L.J., that the parties could not by agreement make a covenant "necessary for the maintenance of the security" which was not necessary. The court must, in each case, decide whether a particular covenant was necessary. The covenant must be necessary for the maintenance of the security created by the bill of sale, not for the maintenance of a "sufficient security" less than that agreed to be given. In the present case the security given was a number of articles of furniture liable to destruction or injury, and, if such destruction or injury should occur, the security would be pro tanto diminished. A covenant that the articles destroyed or injured should be replaced or repaired was, therefore, essentially necessary for maintaining the security agreed on. It was contended that a power to seize upon the destruction or deterioration of a single article was unnecessary. This argument was based on the assumption that the Act intended that a right of seizure might only be given for breach of a covenant necessary for maintaining a sufficient security, which, his lordship thought, was not the true construction. The possibility of hardship arising from the legal enforcement of the right to seize was guarded against by the proviso at the end of section 7, under which a judge might restrain the grantee from selling, if the grantor within five days after the seizure replaced the article or tendered its value. Again, it was said that it was not necessary for the maintenance of the security that the right to seize should arise if the grantee did not forthwith" replace or repair the articles destroyed or deteriorated. If "forth-question as whether, in cases like the present, the burden of making out a with " meant "within a reasonable time," it added nothing to the force of the words with which it was connected; if it imported some greater degree of expedition, his lordship thought it was necessary for maintaining the security agreed on that a portion of it, if lost, should be made good with as little delay as possible. He was, therefore, of opinion that the bill of sale was not vitiated by this covenant. He was also of opinion that the covenant not, without the consent of the grantees, to remove the chattels from the premises where they then were was necessary for maintaining the security, the fixing a place where the goods were to remain being part of the security agreed on. The grantee had a right to stipulate for this particular safeguard. The insurance against fire would probably be vitiated by the removal of the goods. It would not be a reasonable construction of the covenant to hold that it would be broken by removing the goods to save them from destruction by fire. And, if an innocent removal would be a breach of the covenant, and the grantees should seize for such a breach, the grantor could obtain relief under the proviso at the end of section 7. His lordship was, however, of opinion, on the authority of Ex parte Stanford (30 SOLICITORS' JOURNAL, 418, 17 Q. B. D. 269), that the bill of sale was void, because of the agreement that out of CHITTY, J., said that the question turned principally on the meaning and effect of ord. 36, rr. 4, 6, and 7a. The Court of Appeal appeared to to have held in The Temple Bar that the effect was that the right to a jury was preserved in those cases where such right existed previously to the passing of the Judicature Act, 1873, and a discretion was conferred on the court or judge in cases where the right to a jury did not previously exist. The Appeal Court decided that the words "in any other cause or matter" in rule 6, referred to causes or matters as specified in rule 4, which, previously to the Act of 1873, could, without any consent of the parties, have been tried without a jury. The case before him was one which, previously to the Act of 1873, could have been tried in the Court of Chancery by a judge alone, without any consent of the parties. He therefore held that the defendant had no such right as that which he claimed. He also held, in exercise of the discretion conferred by the rules on the court, that the present case was not one which should be tried before a jury, and he came to that conclusion independently of any such case for trial before a jury lay with the party making the application for that mode of trial. On the old rule (ord. 36, r. 26, of the Rules of 1875) it was held in Hunt v. Chambers (30 W. R. 527, 20 Ch. D. 365) that the burden of proof lay with the party applying for a trial without a jury; but that case was, as observed in The Temple Bar, decided upon rules not now in force, and under a different state of rights of parties. But, as he understood the Lords Justices, rules 4 and 7a, when read together, did confer upon the court or judge discretion to direct a trial, either with or without a jury, in cases where there was no right to a jury before the Act of 1873, and that the new rules cast the burden of proof on the party asking for a jury-or, at all events, that the discretion of the court or judge was unfettered. He therefore discharged the order made in chambers, with costs to be costs in the action.-COUNSEL, Romer, Q.C., and Eyre; Bramwell Davis. SOLICITORS, Wilkinson & Howlett; G. J. T. Barrett. WILLIAMSON v. FARNELL-North, J., 14th March. ORIGINAL POWER-LIMITATION IN DEFAULT OF EXERCISE OF DELEGATED POWER. In this case a question arose as to the validity of an exercise of a special power of appointment. A testator had, under a settlement, power to appoint certain property by deed or will among his children. By his will he made an appointment to his son R. for his life, and after his death in trust for the child or children of R., as he should by deed or will appoint, and in default of such appointment to R. absolutely. It was admitted that the delegation to R. of a power to appoint, and especially to appoint to persons not objects of the original power, was void, and the question was whether the limitation to R. in default of any exercise of the delegated power was also void. R. had not attempted to exercise the delegated power. The assignee in bankruptcy of R. claimed under the ultimate limitation to R. In opposition to his claim reliance was placed on the cases in which it has been held that, where the donee of a power makes an appointment to persons who are not objects of the power, and, subject to that appointment, makes an appointment to a person who is an object of the power, the ultimate appointment is void as well as the appointment to the persons not objects, on the ground that the donee, in making the appointment, intended that the ultimate appointment should take effect only after the appointment to persons not objects was exhausted: Brudenell v. Elwes (1 East, 442, 7 Ves. 382). On behalf of the assignee it was argued, that this rule does not apply when a mere power is limited to a stranger to appoint the fund, and in default of appointment the fund is given to objects of the original power, as in Ingram v. Ingram (2 Atk. 88). In answer to this reliance was placed on a passage in Sugden on Powers (8th ed., p. 515) as shewing that thie exception does not apply when the delegated power is to appoint among strangers, because the intention of the donee is the ground on which limitations over to good objects, after limitations to strangers, are held to be void, and that principle applies as forcibly to a power to appoint among strangers as to a direct gift to them. NORTH, J., held that the ultimate gift to R. was valid, notwithstanding the prior delegation of a power to appoint among strangers. The intention of the testator was that R. should take in default of an exercise of the delegated power, and that power was void and never could be validly exercised, and it had not in fact been exercised. In his lordship's opinion Carr v. Atkinson (14 Eq. 397) and Webb v. Sadler (8 Ch. 419) were authorities in favour of his conclusion. — COUNSEL, Giffard, Q.C., and Follett; Cookson, Q.C., and Kingdon; Humber. SOLICITORS, Gregory, Rowcliffes, & Co.; Futvoye, Field, & Baker; Sewell & Edwards. Upon this matter, which was a motion for judgment in default of pleading in an action for specific performance, coming on for hearing, STIRLING, J., stated that, since De Jongh v. Newman (W. N., 1887, p. 59) had been before him, he had looked into the matter, and had found that the practice in the different courts with regard to requiring the plaintiff to produce an affidavit in proof of his statement of claim was not uniform, and that, under these circumstances, he should not in future require such an affidavit-COUNSEL, Bissill. SOLICITORS, Gardiner & Son. Re RUDDIMAN'S TRUSTS-Stirling, J., 12th March. PAYMENT OUT OF COURT-PETITION-SERVICE ON TRUSTEES DISPENSED WITH. This was a petition for payment out of court and distribution of certain funds paid into court under the Trustee Relief Act. The fund had been paid into court upwards of thirty years ago, and the last survivor of the trustees who had paid it in had died in the year 1855. The legal personal representatives of that trustee could not be found, and the court was asked to dispense with service upon them. The case of Re Bolton's Will (18 W. R. 56) was cited in support of the application. STIRLING, J., dispensed with service upon the representatives of the trustees.-COUNSEL, Stokes; Ingle Joyce; MacSwinney. SOLICITORS, Arnold & Co.; Simpson, Hammond, & Co. SOPER v. ARNOLD-Kekewich, J., 15th March. VENDOR AND PURCHASER-FORFEITURE OF DEPOSIT-PURCHASER'S FAILURE TO COMPLETE-WANT OF TITLE. In this case a question arose whether vendors were entitled to retain a deposit paid to them by the purchaser on a contract for the sale of land, the purchaser having failed to complete, and the vendors having failed to make out a title. The plaintiff agreed to purchase some land from the defendants, and paid a deposit. The contract contained the usual conditions that, if any requisition were made with which the vendors could not comply, they should be at liberty to rescind, and that, if the purchaser failed to complete, the deposit should be forfeited and the vendors should be repaid all expenses to which they had been put. The purchaser took no substantial objections to the title, but he failed to complete the purchase, not having sufficient means to enable him to do so. The vendors accordingly put the property up for sale again, and a new purchaser was found, who took the objection that the power of sale under which the vendors purported to sell did not exist. A summons was thereupon taken out under the Vendor and Purchaser Act between the vendors and the new purchaser to decide the point, and Chitty, J., made an order declaring that a good title had not and could not be shewn. The plaintiff then commenced this action against the vendors to recover the deposit which he had paid upon the original contract; and he contended that, inasmuch as the vendors had no title, they had no right to retain the deposit, that the deposit had been paid upon the assumption that the W. R. 685, 8 Ex. 175) and Cooper v. Phibbs (15 W. R. 1049, 2 H. L. 149). vendors could make a good title. He relied upon Want v. Stallibrass (21 For the defendants it was urged that the purchaser, not having taken the objection and having failed to complete by his own default, the vendors were entitled to forfeit the deposit, as in Howe v. Smith (32 W. R. 802, 27 Ch. D. 89). KEKEWICH, J., held that, inasmuch as the plaintiff's failure to complete arose entirely from his own inability to pay, and not from any objection to the title, he could not recover his deposit, and the action must be dismissed, with costs.-COUNSEL, Warmington, Q.C., and Rigg; Barber, Q.C., and Vernon R. Smith. SOLICITORS, Granville Smith, for Hutchings, Teignmouth; Lovell, Son, & Pitfield. In this case the question for the court was the meaning of a covenant in restraint of trade, couched in the following terms:- "The said James Davies to retire wholly and absolutely from the partnership, and, so far as the law allows, from the trade or business thereof in all its branches, and not to trade, act, or deal in any way so as to either directly or indirectly affect the said E. Davies and me, E. A. Davies." The facts were shortly as follows:-The plaintiff, E. A. Davies, and the defendant were brothers, and formerly carried on business, in partnership with their father, in Wolverhampton and London, as galvanizers and galvanized iron manufacturers. Disputes arose and a dissolution resulted, the plaintiff, E. A. Davies, and his father purchasing the defendant's share in the business by an indenture of the 11th of October, 1884, in which was contained the covenant in question above set out. A company subsequently bought the whole business. In 1885 the defendant commenced business in London as a galvanized iron merchant, and, as the plaintiff alleged, as galvanized iron manufacturer, in partnership with one W. S. Codner, who had travelled for the old firm, and they issued circulars and ctherwise traded, as plaintiffs alleged, in breach of the covenant. This was an action to restrain the breach. The defence raised was that (1) the covenant was too vague to be binding; (2) was in general restraint of trade, and, on the facts, that there had been no breach, and that the plaintiff had acquiesced in the breaches (if any). KEKEWICH, J., said all the authorities concurred that the doctrine as to these covenants was founded on public policy, but the remark of Burrough, J., in Richardson v. Mellish (2 Bing. 252) that "public policy was a very unruly horse, and when once you get astride of it you never know where it will carry you,' was quite true. One thing was clear, and that was, that public policy varied with the habits, capacities, and opportunities of the public; hence the difficulty of deciding what was a reasonable restraint of trade. It had always been held that such a covenant, to be reasonable, must be limited as regards space, but not necessarily as to persons. The limit of time could seldom, if ever, be the basis of judgment. Rousillon v. Rousillon (28 W. R. 623, 14 Ch. D. 351) was a useful case, and clearly adopted the rule that a defendant alleging the invalidity of a contract on the ground that it is in restraint of trade has cast on him the burden of shewing it to be clear that the protection extends beyond what the plaintiffs' interests require. The authorities, in fact, came to this, that in order to be valid, a covenant in restraint of trade must be founded upon of space, and it must be reasonable. There was no question about the adequate, that was to say real, consideration; it must be partial in respect consideration in this case. Then was the covenant too vague? The vagueness, if any, was due to the words, "so far as the law allows." He thought it meant that James Davies should retire from the trade to the full extent that the doctrines of English law as interpreted by the High Court or the Court of Appeal, or, in the last resort, the House of Lords, would allow a man to contract himself out of the privilege of engaging in a particular trade or business. He was not called on to decide what were reasonable limits as regards space of a covenant such as that in question here; all he had to do was to say whether those reasonable limits included the place in which, according to the evidence, the defendant had been and was carrying on a business similar to that of the plaintiffs. An injunction would be granted to restrain the defendant from carrying on business at his present premises at Old-street, or otherwise trading, acting, or dealing so as directly or indirectly to affect the business in which he had formerly been a partner. Having regard to the importance of the case, and the way it had been got up and conducted, costs subsequent to reply would be on the higher scale.-COUNSEL, Warmington, Q.C., and C. Walker; Barber, Q C., Cock, Q.C., and Russell Roberts. SOLICITORS, Brooks & Jenkins, for Shelton, Walker, & Robinson, Wolverhampton; R. Chapman. FAWCETT v URWIN-Q. B. Div., 11th March. CONVEYANCE OF AFTER-ACQUIRED PROPERTY-FURNITURE IN FUTURE DWELLING-HOUSE-LIMITATION TO SETTLOR TILL BANKRUPTCY WITH GIFT OVER. This was an interpleader issue which had been referred by a judge at chambers to the court. It arose out of an action in which the plaintiff recovered judgment against one Nesbit, who had been made a third party. On the sheriff proceeding to levy execution on the goods of Nesbit, a claim was made by two persons as the trustees of a settlement made by Nesbit prior to and in contemplation of his marriage. By this settlement he had conveyed to the trustees all the household effects in the house where he then resided, and all furniture which he should thereafter acquire and have in that house or in any other house which he and his intended wife might inhabit. There was a proviso giving the trustees power, with the consent of the persons interested, to sell the furniture and buy other furniture, or invest the proceeds; the income to go to the husband for life, but so that, if he became bankrupt, the income should go to the wife and children. The goods seized by the sheriff were furniture acquired since the marriage, and in a house where the married couple had since the marriage come to live. The principal contention on the part of the execution creditor was that the words of the deed were not sufficiently specific to pass the goods seized by the sheriff: Belding v. Read, 13 W. R. 867, 3 H. & C. 955; Clements v. Matthews, 11 Q. B. D. 808, judgments of Brett, M.R., and Cotton, L.J.; Official Receiver v. Tailby, 35 W. R. 91, 18 Q. B. D. 25. It was also contended that the deed was void under 13 Eliz c. 5, by reason of the husband having settled his own property on himself till his bankruptcy with a gift over. THE COURT were divided in opinion on the principal point, but they were agreed that the deed was not void under the statute of Elizabeth. DAY, J., said that it was well-ascertained law that a right to property not in existence might be acquired by contract. Here there was a covenant by the husband that he would settle all after-acquired furniture coming on to the marital residence. The house was sufficiently specified to be ascertained, and so was the furniture. At any moment up to the seizure the trustees might have insisted on the husband executing a conveyance to them of this specific property. The case of The Official Reserver v. Tailby was a case of book-debts; and no doubt there was a vagueness about an assignment of book-debts; but there was no analogy between them and solid furniture. The claimants had acquired an equitable property in the furniture, and they were entitled to succeed. As to the second point, there was no fraud, and therefore the deed was not void under 13 Eliz. c. 5. All that could be said was that the limitation till bankruptcy was inconsistent with the Bankruptcy Acts. WILLS, J., said that, apart from authority, he should have thought the description of the furniture intended to be conveyed was sufficiently specific, and that there could be no difficulty in saying to what property the words of the deed applied. But he could not distinguish this case from the cases which had been cited, and in which words not less specific than these had been held to be insufficient. He thought, therefore, that the property remained in the settlor, and did not pass to the claimants. As to the second point, the deed was not wholly void, but only as against a trustee in bankruptcy, and here there had been no bankruptcy.-COUNSEL, Macaskie; Eustace Smith. SOLICITORS, Williamson, Hill, & Co.; Worthington, Evans, & Blaxland. JOURNAL, 181) was relied on as shewing that the court had jurisdiction to enforce the liability in this way, and at the instance of the plaintiff. In that case, on the application of the receiver by summons in a representative debenture-holders' action, Pearson, J., ordered the solicitor of the plaintiff to make good a loss which had resulted from the non-investment of a sum of money in accordance with an order of the court. THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.) affirmed the decision. COTTON, LJ., was of opinion that the plaintiff's solicitor was the person who had the "carriage" of the order of the 19th of April within the meaning of rule 37. It was the duty of the plaintiff to carry into effect that part of the order which related to the transfer of the £500. It was clearly the duty of the plaintiff's solicitor to leave with the paymaster the original order and a request for the transfer, in order that the transfer might be carried out, and it would be unreasonable to say that, when he had the order for this purpose and left it at the paymaster's office, he should divide the request into two parts and ask only for the transfer, and not for the investment of the money. This disposed of the appeal, and his lordship would not enter into the question how far Batten v. The Wedgwood Coal and Iron Co. ought to be followed, and how far, independently of that decision, the court had jurisdiction to make a solicitor liable in this way. It was to be observed, however, that in that case the solicitor was acting for other persons as well as the plaintiff. His lordship must not be considered as in any way assenting to the view of Pearson, J., or as expressing any opinion on the point. LINDLEY, L.J., said that when the appeal was opened he was somewhat startled. It struck him as extraordinary that a plaintiff should apply to enforce a liability of the defendants' solicitor. But, when rule 37 was looked at, there appeared to be some foundation for the application until the facts were ascertained. When they were ascertained it was clear that the plaintiff's solicitor, not the defendants' solicitors, had the "carriage" of the order, and there was an end of the case. LOPES, L.J., said that the £500 could not be transferred without the plaintiff's solicitor having the order in his possession, and the order was sent to him for that purpose. When he had the order in his possession for that purpose he had the "carriage" of it, and he ought to have requested, not only the transfer of the £500, but also its investment and the accumulation of the dividends.-COUNSEL, Byrne. SOLICITORS, H. H. Myer; Torr & Co. SOLICITOR STRUCK OFF THE ROLLS. 14th March-Alfred Park (East Retford). CASES AFFECTING SOLICITORS. MACDOUGALL v. KNIGHT-C. A. No. 2, 17th March. SOLICITOR-NEGLIGENCE-LIABILITY FOR OMISSION TO PROCURE INVESTMENT OF MONEY-"CARRIAGE OF ORDER"-CHANCERY FUNDS RULES, 1874, R. 37. In this case an important question was raised as to the jurisdiction of the court to enforce the liability of a solicitor for a loss occasioned by the non-investment of a sum of money in pursuance of an order, and as to the construction of rule 37 of the Chancery Funds Rules of 1874. That rule provides that "when an order directs the carrying over of money or securities in court, or the investment of money in court, or of dividends to accrue on securities in court, the Chancery Paymaster may defer giving effect to such direction until a request in writing to give effect thereto has been left at the Chancery Pay Office; but it shall be the duty for the person having the carriage of such order to leave it and such request at the Chancery Pay Office without unnecessary delay." In March, 1883, the plaintiff obtained ex parte an interim order for an injunction on the terms of his lodging £500 at the bank "to the credit of a chancery ex parte account," and this sum was lodged by him accordingly. On the 19th of April, 1883, he moved for an injunction, and the court made no order on the motion, "except that the question of the right to any damages to be paid by the plaintiff to the defendants and the question of the costs of this motion be specially reserved until judgment in this action. And it is ordered that the plaintiff, on or before the 5th of May, 1883, do all necessary acts, pursuant to rule 31 of the Chancery Funds Rules, 1874, for the purpose of having the sum of £500, lodged by him at the bank, transferred by him into court to the credit of this action, and that such sum, when so transferred, be invested in Consols to the credit of the action to an account to be entitled 'Security for damages (if any) to be awarded to be paid to defendants.' And it is ordered that the dividends, as they accrue due on the said amount, be from time to time invested in like annuities." After this order had been drawn up, the defendants' solicitors sent it (i.e., the original of it) to the plaintiff's solicitor to enable him to procure the transfer of the £500 into court in accordance with the order. The transfer was duly made, but the money was not invested, and this omission was not discovered for several years, and, on the discovery, the defendants' solicitors procured the investment to be made. So far as could be ascertained, the plaintiff's solicitor, when he took the original order of the 19th of April, 1883, to the paymaster's office, left with it a request for the transfer, but did not leave any request for the investment. In November, 1886, the plaintiff took out a summons asking a declaration that the defendants' solicitors were liable to make good the loss of interest which had resulted from the non-investment. North, J., refused the application. On the appeal it was contended by the plaintiff that the defendants' solicitors had the "carriage" of the order of the 19th of April, within the meaning of rule 37, and were therefore liable for its non-investment, and the case of Batten v. Wedgwood Coal and Iron Co. (31 Ch. D. 346, 30 SOLICITORS' CRIMINAL LAW CASES. REG. v. GIBSON-5th March. PRACTICE-HEARSAY EVIDENCE OF IDENTITY-OTHER EVIDENCE OF IDENTITY -No OBJECTION BY PRISONER'S COUNSEL TILL AFTER SUMMING UPCONVICTION QUASHED. 66 This case raised the important question whether evidence in a criminal case improperly received, but not objected to by the prisoner's counsel at the time it was given, vitiated the verdict. The case was stated by the deputy-chairman of the General Quarter Sessions of the West Derby Hundred of the county of Lancaster. The prisoner was indicted for unlawfully and maliciously wounding Thomas Simpson. The prisoner and prosecutor had had an altercation outside a public-house, and the offence was committed shortly afterwards, as the prosecutor and others on their way home were passing the prisoner's house, when the prosecutor was struck with a stone coming from the direction of the prisoner's house. The prisoner was seen to enter his house after the prosecutor was struck. The prosecutor stated, but not in answer to any specific question put to him, Immediately after I was struck by the stone a lady going past, pointing to the prisoner's door, said,The person who threw the stone went in there.""" No objection was taken to this evidence at the time. It was further in evidence that, with the aid of a police constable, the prisoner's house was forcibly entered after admission had been refused, and the only persons found inside were the prisoner and his father, who was drunk and asleep on the sofa, and that when the prisoner was brought outside the witness who saw him enter his house said, "That's the man who threw the stone." There was no evidence as to who the lady who made the observation was, and she was not called as a witness, nor was there any direct evidence to shew that the prisoner did or could hear what she said. In summing up, the judge directed the jury's attention, among other matters, to the evidence as to the words uttered by the lady. After he had summed up the case the jury retired to consider their verdict. After the jury had retired the prisoner's counsel contended (1) that the evidence as to the said words uttered by the woman was not admissible inasmuch as the said words were not proved by the prosecution to have been uttered in the presence or hearing of the prisoner. (2) That the evidence as to the said words uttered by the woman should be withdrawn from the consideration of the jury. (3) That the fact that counsel did not ask immediately after the evidence as to the said words uttered by the woman had been given that the said evidence should be struck out, or raise any objection to the same before the jury retired, could not be allowed to prejudice the prisoner in a criminal case. The judge held that the objections were made too late. The case further stated that there was ample evidence of identification against the prisoner other than the evidence as to the statement objected to. The jury found the prisoner guilty. It was argued on behalf of the prosecution that it was too late to object after the evidence was once received; at all events the court ought not to set aside the verdict where there was, as here, ample other evidence on |