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379

Yorkshire Railway Co. v. Mullan.. 379
In the Weekly Reporter.

Bagley v. Searle

Bevan's Trusts, In re

404

400

Burr v. Wimbledon Local Board.. 404
Cookes v Cookes

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Furber v. Cobb

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Pike, Sons, & Co. v. Ongley and

Law v, Philby

Thornton

377

Osborne v. Milman

Sion College, Re. Ex parte The
Corporation of London

378

St. Botolph Without Bishopsgate

Parish Estate, Re..

380

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provided (section 111) that the Lord Chancellor might, with the advice and assistance of the registrars, make, rescind, or add to general rules in respect of (inter alia) "the costs to be charged by solicitors or certificated conveyancers in or incidental to or consequential on the registration of land," but this section is proposed to be repealed by the Bill; and clause 29 enables the Lord Chancellor, by order, to make, rescind, and amend rules in respect of (inter alia) (8) "the costs and fees to be charged in or incidental to or consequential on the registration of land, or any other matter required to be done for the purpose of carrying the 397 principal Act into execution, with power to require those costs and fees to be payable by commission, percentage, or otherwise, and to 408 bear a certain proportion to the land registered, or to be determined on such other principle as may be thought expedient; and (9) the taxation of costs, and the persons by whom costs are to be taxed

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The Solicitors' Journal and Reporter. and paid." It will be remembered that the Remuneration Order

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(clause 1) expressly provides that the scale in Schedule I. "shall not apply to transactions respecting real property, the title to which has been registered under" the Land Transfer Act, 1875; and the result appears to be that, while the Legislature has provided a "tribunal," on which solicitors are represented, to prescribe and regulate their remuneration in respect of business connected with dealings with land, the Bill proposes to place such remuneration ultimately at the absolute discretion of the Lord Chancellor for the time being. What is intended with regard to the remuneration on first registration of land? Is it the intention that the solicitor shall be entitled to his full scale fee in addition to reasonable charges for the extra work of communicating with the registry? This would unquestionably be fair. Or is it intended, when the practice becomes fixed, that a scale shall be added to the Remuneration Order for this class of work? And what is to be the rule in registrations subsequent to the first? As we point out elsewhere, it appears probable that if the Bill passes as it is drafted, deeds will have to be executed on most dealings with land until an absolute title has been acquired; how is the remuneration for these to be dealt with, and how is the investigation of title prior to registration to be

remunerated?

SOME MEASURES are, it is understood, being taken with a view of ascertaining whether the fourth resolution of the Lord Chancellor's Committee on the courts and chambers of the Chancery Division, and the distribution of the clerical staff, can be usefully carried out. That resolution is as follows:-"(4) That the whole administrative staff of the Chancery Division in London shall eventually be brought under the control of the several Chancery judges, by attaching to each judge a sufficient number of clerks to do all the business of Chancery causes and matters, including the drawing of orders and taxing costs; the duties of such clerks and to be made by the judges of the Chancery Division." Already a the distribution of business among them to be determined by rules scheme for amalgamation of the registrars' and chief clerks' departments has been concocted by a gentleman who has some acquaintance with Chancery business; but another of equal or greater exIt is now stated IN ANOTHER COLUMN we commence a series of articles explana-perience has thrown cold water on the scheme. tory of the provisions of the Lord Chancellor's Land Transfer Bill. that the matter is to be investigated on official authority. We have reason to suppose that it is intended to make a vigorous The first point which strikes us on reading the resolution effort to have the Bill passed into law this session, and we refer under the control of the judge to whom he is attached; and we is the question of control. Each of the chief clerks is elɛewhere to some considerations which seem to render such a result possible; but in the present state of matters in the House never heard that either the registrars or the taxing masters failed of Commons he would be a bold man who would confidently pre- of the Chancery Division. It must, then, be presumed that the to acknowledge themselves amenable to the directions of any judge dict that the measure will surmount the obstacles presented by the block of business which must necessarily have precedence of it. intention is that each judge shall have a certain number of officials We are glad to learn that the precedent set with regard to the to do the work of that one judge now done by the registrars and Conveyancing Act has been followed on the present occasion, and by the chief clerks and by the taxing masters. Apart from the that the Bill has been sent to the Bar Committee, many leading it must be admitted that that plan is the best which provides as value of the division of labour which the present system affords, conveyancers, and to the Council of the Incorporated Law Society nearly as may be for uniformity of practice in the work done by for the purpose of criticism and suggestion.

IN ONE IMPORTANT RESPECT solicitors are as yet in the dark as to the effect of the Land Transfer Bill. What is proposed as to their remuneration in respect of dealings with land after the system of registration has become compulsory? The Act of 1875

these officers. The facts that the registrars attend in rotation on all the judges of the Chancery Division, and that the taxing masters have all their work allotted to them by a system of rotation, afford something like a guarantee that, when the benefit of the ways and opinions of all the judges is so evenly distributed, the business transacted by those who receive that benefit will be done on a uniform plan. Any scheme which should

make such a radical alteration as that suggested by the resolution would require careful study, and the Council of the Incorporated Law Society and the heads of the profession should see to it that nothing is done hurriedly. It should be clearly understood what are the inconveniences or evils to be met, whether they consist in delay or extra expense, or what other form they take; and when this has been ascertained, the opinion of those experts who are most familiar with the working of the present system, and who may be supposed to be best acquainted with its faults, should be called in to aid in devising such alterations as may be absolutely necessary. We may add, with great respect to the framers of the resolution referred to, that they are not the experts qualified to deal with this matter.

WE REPORTED a fortnight ago (ante, p. 348) a case of In the Goods of Price, in which, on the 22nd of March last, Mr. Justice Burr laid down a new rule as to grant of probate of the will of a married woman; but the decision does not appear to have reached the Times law reporters until Wednesday last, and the case was gravely reported on Thursday without date. According to Mr. Justice BUTT's decision (which is understood to have been given after consultation with the registrars and with the concurrence of Sir JAMES HANNEN) probate is in future to be granted of a will whereby a married woman disposes of her separate property in the ordinary form, and without the words of limitation hitherto used. The learned judge based his decision on the "policy of recent legislation having been to place a married woman, so far as her separate estate is concerned, in the position of a feme sole," but in the judgment in Scammell v. Wilkinson (2 East, at p. 558) there might have been found another ground for the new rule. LAWRENCE, J., there says: "In this case it appears that the Prerogative Court is applied to to grant a probate which will give to a will made by a married woman during her coverture the effect of a will made during widowhood and discoverture. And it is not impossible but that the Ecclesiastical Court may in this case grant such probate, for by the civil law a feme covert might make a will, and so she might by the canon law." Most people will concur in Mr. Justice BUTT's observation that he had never been able to understand the necessity, even before the recent legislation, for the old form of limited grant.

IN THE COURSE of his speech in introducing the Land Transfer Bill, the Lord Chancellor referred to the difficulty by which he had at first been greatly pressed, as to whether it was possible to give a title which should include the boundaries of the registered land, and he said: "On that question my views have been considerably modified by what I have learnt since. I have heard with great surprise that there exists at the present moment a register in which every yard of land in this country has been registered by a tribunal which has worked noiselessly and inexpensively. The Land Tax Commissioners have a register of every yard of land in this country, and it has been formed with a degree of accuracy and precision that to me is absolutely astonishing. The commissioners have, from time to time, without expense to anybody, been called upon constantly to decide questions of adjoining boundaries. That system exists in every county of England. I think there are 380 land tax districts in England in which that system exists." It may probably be presumed that this indicates a contemplated alteration in the "public map to be used for the purposes of registration. The rules under the Land Transfer Act, 1875 (rule 50), prescribe the ordnance map on the 25-inch scale, or, if there is no such map, the map under the Inclosure Act, 1845, or, in default thereof, the tithe map as the public map of the land, but enable the registrar at any time to declare that any map shall be deemed a public map for the purposes of registration.

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THE LAND TRANSFER BILL.
I.

THE portion of the Chancellor's Bill that will be most immediately interesting to the professional lawyer will no doubt be that relating to land transfer proper. The abolition of primogeniture and estates tail, though involving care and research on the part of the draftsman, are questions of little more than yes or no to the legislator. With respect to them it may fairly be said that the only point ever doubted was whether the public desired the change: as soon as this is found to be the case, there is no serious legislative difficulty in effecting it. The abolition of estates tail may, however, give rise to a not unprofitable discussion (to be entered upon on a future occasion) as to the form which settlements of land may now be expected to take. The abolition of primogeniture will doubtless prevent much hardship to many individuals, but will scarcely raise any legal questions of more than microscopic interest. The clauses relating to the real representative may or may not contain the germs of a number of originating summonses, but there the matter will probably end.

When we turn, however, to the question of improving land transfer by establishing registration of title, we come upon a subject which is in exactly the opposite predicament to the preceding ones. There is a general agreement among the public that it is wanted; the only doubt is whether any given machinery will suffice to effect the desired object. The three Lord Chancellors who spoke in the House of Lords on the first reading of the present Bill were all agreed that the Land Transfer Act of 1875 established a system which only failed because its adoption was voluntary. If this is indeed so, the present Bill, which makes the adoption of that system compulsory, is certain to succeed.

But this does not entirely dispose of the case. For, without going so far as to throw doubt on a proposition so strongly supported by authority, it may be fairly remarked that there are degrees even in success. And therefore, by way of helping to secure the largest amount of success possible, we propose to discuss in this and succeeding numbers a few points in the Bill which appear to present suitable matter for quiet inquiry. We are the more inclined to this course in that the broad antecedent questions of whether or not registration of title is the best system to adopt, and whether or not its compulsory enforcement is either necessary or expedient, are questions which have already been so fully discussed, both in these columns and elsewhere, that we could hardly feel justified in inflicting on our readers a fresh dissertation on so stale a subject.

Without intending to discuss the momentous question as to what chances the present Bill, or any particular portion of it, has, or has not, of becoming law in this or any future session of Parliament, it may nevertheless be as well to observe that, though its compulsory clauses will probably be opposed by an influential portion of the legal profession, it is, at any rate, quite possible that the Bill will pass, and in this session too, substantially unaltered. A Conservative Lord Chancellor, possessed of a strong determination, supported in the main by two Liberal lords who have occupied the woolsack, is not likely to meet with insurmountable obstacles in the House of Lords; and, when the Bill appears in the Commons, we shall probably have reason to admire the wisdom which included the abolition of primogeniture and estates tail in a measure entitled "Land Transfer Bill." It will be welcomed by the Liberals (at least as an instalment), and with no other regret than that it comes from the wrong side. Thus the only opposition to fear will be that of pure obstruction. But the examples of the Conveyancing Acts and the Settled Land Acts are enough to shew that the progress of a purely legal enactment (provided its promoters are in earnest) which is not offensive to the genuine opposition is not much retarded by the prevalence of obstructive tactics generally.

We venture to put these considerations before our readers because we think that, if borne in mind, they may exert a useful influence on the course of the discussions that will soon arise. It is hardly to be expected, for instance, that, in the present temper of the public on the subject, so popular a suggestion as compulsory registration of title will be rejected owing to the protests of the legal profession, however strong; while it may be expected with some confidence that the suggestions of the profession as to the details to be observed in carrying it out, if it be passed, will meet with that

full attention which they undoubtedly deserve. If such suggestions are given temperately and received considerately, we may as well frankly admit, at starting, that we see no reason why the measure should not fulfil all the reasonable expectations of its originator and supporters.

We shall proceed, therefore, on the assumption that the Bill will pass, substantially unaltered, at an early date.

AS TO LAND TRANSFER.

resorted to, as being the cheapest. No examination of title is made by the registrar, but he only gives a guarantee as to subsequent dealings. Therefore it is not of very great value until it is either "confirmed " under the present Bill, or a sufficient time has elapsed to render the anterior title uninteresting to purchasers. (Confirmation will be treated in our next issue.) But should it be found possible (as is not unlikely, now that an insurance fund is to be established) to relax some of the rigidity hitherto observed in the acceptance of title for "absolute" registration, there seems

The Bill makes three substantial additions to the Act of 1875, much probability that applications for absolute title will be tolerand introduces one important administrative change.

The additions are:

(1) The compulsory clauses and ancillary provisions.

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ably frequent also. A qualified title is only an absolute title. minus a specified link in its chain of proof, which a purchaser may judge of and "chance it" if he likes, but the registrar will

(2) "Confirmation of possessory titles after due notice and the not be responsible. These are usually given where an application

lapse of five years.

(3) The insurance fund.

The administrative change is :

(4) The Land Transfer Board, regulated by Orders in Council. These four points will be considered in their order, and then some observations will be added on the Land Transfer Act of 1875, to which the Bill is supplemental, and to which it gives a greatlyincreased importance.

(1)-THE COMPULSORY CLAUSES.

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has been made for an absolute title, but such a title cannot be granted owing to some specific defect. Possibly a considerable number of these will also be entered on the books.

(c.) Gradual extension of compulsory registration area. In 1878 it was estimated that about 1,000 deeds of the class that require registration in Middlesex and Yorkshire were executed daily in England, and the number is probably greater now. The practical difficulty of providing an adequate staff and system to cope with such an influx of business from the first commencement of the Act, has for long formed one of the chief practical objections to a compulsory scheme. Under the present Bill the difficulty is met by providing that compulsion shall only apply to areas specially named from time to time by Order in Council for the purpose.

Besides its first object, this provision will be useful in a variety of ways-(1) It will enable the experiment to be tried, in the first instance, in the most favourable locality. (2) It will enable the office to furnish itself beforehand with a number of appliances (a complete index map of the district, for instance) the want of which has been felt in the existing registry, but which would have involved too great an outlay to provide for the whole island at once. (3) By beginning with a small area for the first district, and increasing that district until it shews signs of becoming inconveniently large, before detaching branch offices, we shall learn the proper size for each district, and may find (if such be the case) that no division into districts will be necessary at all.

(a) Can they be evaded?-It used to be doubted by high authorities whether it would be possible to frame a compulsory clause that would not be evaded. Lord Cairns says, as late as 1879, "No way that has yet been proposed would have the effect of making it compulsory to put land upon the register" (Evidence to Mr. O. Morgan's Committee, 1879, No. 2871). The clause in Lord Selborne's Bill of 1874 (clause 27) was as follows:-"When there is a sale of land in fee simple, there not being already a registered proprietor, some person shall be registered as proprietor, and any conveyance shall, until registration, operate in equity only, and not be effectual at law to pass the legal estate." Of this, Lord Cairns says, "Lord Selborne's proposal was no doubt the best that the case admitted of, but, unfortunately, the Judicature Act knocked on the head, for all practical purposes, the distinction between the equitable and legal estate; and a man with an equitable estate was practically as well off as a man with (d) Is registration to remain compulsory?-The compulsion a legal estate" (Evidence, 1879, No. 2872). It may be doubted, applied by the Bill does not appear to extend beyond the first however, whether this latter statement was absolutely correct; in registration, it being doubtless considered that the advantage of cases of tacking, for instance, "the law" will still prevail. keeping up a registered title, once begun, will be sufficient of itself In the present Bill the form is much stronger. "Until a pro- to insure registration of future transfers. Should it be desired, prietor has been registered, a conveyance shall very efficient protection can be obtained for private conveyancing operate only as a contract, and not convey to any person with registered estates, and it is even open to argument that the any legal estate in the land, nor render him capable of taking newly-established insurance fund will be liable for losses where any benefit from, or exercising or creating any legal right in, or such protection fails. Suppose Whiteacre (at present unregistered) over, or upon land, nor confer on him any equitable right in respect is sold to A. B. We have already seen that, under section 2 of of the land except the right of enforcing the contract." This is the Bill, A. B., or someone on his behalf, must be registered as the part applicable to conveyances of freeholds, including mort- first proprietor. When a proprietor has been registered, however, gages. There are similar provisions as to leaseholds and as to it seems that section 2 has been exhaustively complied with, and transmissions on death. ceases to have any operation. A. B. then conveys Whiteacre to C. D. by private deed. This deed, under section 49 of the Act of 1875, creates the same estate in C. D. as it would have done if the land were not registered; and, further, C. D. may protect the same from being impaired by any act of A. B. by entering such caution as is mentioned in section 53. Such caution, by section 54, entitles C. D. to notice of all intended registered dealings-a form of protection which has never yet been known to fail, and which apparently may be continued on behalf of C. D.'s successors in title for ever. The possible liability of the insurance fund, should loss occur to C. D., will be discussed when treating of the fund.

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We will not pretend to say whether or not, at the instance of some determined settlor perhaps, a mode of circumventing this clause may some day be devised (like the lease and release which defeated the statute 27 Hen. 8, c. 16). But it would certainly appear that the objections of the great body of landowners to registration must be far greater than they are now before they are likely to confide themselves in any large numbers to the sea of troubles which this formidable clause would raise for them. The words we have italicised would prevent the unregistered purchaser from granting an efficient mortgage or lease, or bringing any action for recovery of rent, for ejectment, or for an injunction or damages in respect of injury to the property, and there might even be some trouble in establishing his right to devise it by will. The stringency of this clause brings with it the following consequence-namely, that every person who, under the present system, has a right to call for a conveyance should, under the new system, have power to demand registration. This is nowhere expressly stated in the Bill, however. But perhaps it does not require to be expressed.

(e.) Practical effects upon next sales, &c.-The exact effect of the new system upon the practical details of sale and mortgage and lease and on the procedure for successions on death will depend so much upon the rules which will, presumably, be published under the Act, that they can only be discussed in the barest outline now. Whatever procedure, however, is instituted, the trouble, delay, and expense involved on every next sale must be somewhat increased, for there will be the same investigations of title as usual, and the correspondence with the registry besides. It will be (b.) What sort of registration will be enforced?—The landowner useful to observe what possessory registrations cost under the will be at liberty to choose either of the three sorts of registra- present rules. It was thought, not unnaturally, that they would tion established by the Land Transfer Act-namely, absolute, quali-cost next to nothing; but this has not always turned out to be the fied, or possessory. Probably at first the latter will be chiefly case. To take, first, the minimum costs possible. It appears,

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For an estate worth £300, total costs, £18 12s. 6d. £105, £16 1s. 9d. These charges must be considered in relation to the minimum costs of private conveyancing under the present system. To take the highest authority, Lord Cairns says (Evidence, 1879, No. 2873): "In 1874 a number of solicitors shewed me that there was going on in various populous parts of England a transfer of very minute portions of land in very great quantities at a very small expense. Some had cut up land to build small houses for working people upon. It was known that they had satisfied themselves that there was a good title. Those pieces were bought with no investigation, and they made a charge, including every expense, to the purchasers, in some cases as low as 10s., and in a great many as low as 20s. Now, if to transactions of that kind you superadd a tax for registration, unless it is extremely small, you interpose a very great difficulty in dealings which we should be very sorry to interfere with or hamper in any way." Also Lord Herschell, in the House of Lords, last week, emphasized the same point.

(f.) Will the public share the expense?-Compulsion is introduced on the ground (stated by Lord Herschell in his speech on the Bill) that registration is no great benefit to existing landowners, but is required by the public for the benefit of the next generation. If this is so (and we do not propose now to discuss the point), it is plain that the public ought to pay as much of the expense as they possibly can. All the expense they can hardly arrange to pay, as a large part will be incurred between landowners and their solicitors; but at least they can undertake that no office fees shall be charged for compulsory registration, and can endeavour so to frame the regulations that as little trouble as possible shall be given to the landowner and his solicitor.

(g.) Deeds will not be at once superseded.-Possessory registration gives no guarantee as to the previous title. Therefore, certainly on the first registration, and probably for a considerable time afterwards, it will be necessary to require the conveying party to execute a deed containing such covenants for title as the grantee has a right to demand. This will continue in all cases until the period of time which would be covered by the covenant in the usual form is wholly posterior to the first registration, or until the title is "confirmed" under Part III., or registered as "absolute" under the Act of 1875. Save that, even then, unless and until the boundaries have also been declared "conclusive" (Bill, clauses 13, 14), the like covenants will be required if the grantee wishes for the full protection that he now obtains under the private practice. In framing these deeds of covenant, at any rate in the first instance, it will be well to beware of expressing them in any way that might be deemed to be a conveyance; for, if this were done, questions might arise on taxation under clause 2, sub-section (a.),

of the Bill.

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Mr. Justice Stirling will sit as Vacation Judge on the following days :Thursday, April 7, at 10.30; Wednesday, April 13, at 11; Friday, April 15, at 10.30; Monday, April 18, at 10.30.

On Saturday evening the members of Trinity College, Cambridge, now in practice at the bar entertained Lord Macnaghten at a complimentary dinner upon the occasion of his recent appointment. His lordship, who went up to Trinity in the year 1848, took his degree in 1852, when he was bracketted Senior Classic, and was Chancellor's Medallist and a senior optime in the Mathematical Tripos. The dinner was given at the Hotel Metropole, and the Attorney-General, Sir R. E. Webster, Q. C., M.P., was in the chair.

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"FOR HER SEPARATE USE."

ARE the words which we have taken as the title of this article still to be inserted after a gift, limitation, or bequest to a married woman, or may they be omitted in reliance on the Married Women's Property Act, 1882? The practice of conveyancers has probably not been uniform; but some at least of the most eminent members of the profession have rejected the words as surplusage since the commencement of that Act (Davidson, vol. 1, 5th ed., pp. 302, 356; Key & Elphinstone, vol. 2, 2nd ed., pp. 440, 666). We were certainly of opinion that "separate property" under the Act possessed all the qualities of "separate estate" according to the doctrines of equity, and that nothing was to be gained by retaining the words in question. The recent decision, however, of the Court of Appeal in Re Whitaker, Christian v. Whitaker (35 W. R. 217, 34 Ch. D. 227) throws considerable doubt on the propriety of relying too confidently on the statute; and, for reasons which we shall presently explain, seems to make it desirable, in all cases where property is given to a married woman, to state in express terms that it shall belong to her “for her separate stated in a very few words. By a marriage settlement, dated the The facts of the case to which we have just referred may be 13th of January, 1873, the husband and wife covenanted to settle the then existing and after-acquired property of the wife, with the exception of jewels, savings of her separate income, property not exceeding in each case the amount or value of £1,000," or any property belonging, or which may be given or bequeathed to or settled upon her for her separate use," all of which excepted articles The wife's father, by his will, dated the 4th of March, 1884, and property were to belong to the wife as her separate estate. bequeathed the sum of £50,000 in trust for his wife for life, and after her death for his five daughters in equal shares. But the will, which was made after the commencement of the Married the daughters' shares were given to their separate use—an omisWomen's Property Act, 1882, contained no declaration that sion which, as we shall see, effectually altered the destination of the property. The testator being dead, the matter came before the court on originating summons, and the question to be decided was whether the sum of £10,000, one of the daughter's shares, was bound by the above-mentioned covenant to settle after-acquired property, or whether that sum was excepted from its operation. the wife, it was conceded that it would not have been bound by Had the money been given in express terms to the separate use of the covenant; but as it was separate property owing its "separate" character to the operation of the statute, it was argued, and argued successfully, both before Vice-Chancellor Bacon and the Court of Appeal, that the money was not within the exception, and was bound by the settlement.

The section of the Married Women's Property Act on which the court relied as producing this somewhat extraordinary result was the 19th, which enacts as follows:-"Nothing in this Act contained shall interfere with or affect any settlement or agreement for a settlement made or to be made, whether before or after marriage, respecting the property of any married woman.' section 5 of the Act would have made the legacy in this case separate property, and would consequently have altered the rights of parties under the settlement, the court concluded that section 19 prevented section 5 from operating upon the particular legacy.

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Lord Justice Cotton, indeed, seems to have been of opinion that, it would not have been property even if the legacy were separate property " by virtue of the Act, given to her or settled to her separate use" within the meaning of the covenant; but, as his learned brethren entertained some doubt on that point, his judgment was rested on the general point of law upon the statute, and not upon the construction of the particular covenant. The construction of the words of a particular instrument is unimportant in comparison with the decision on the meaning of a general statute; but the expression of the Lord Justice's opinion-though a mere dictum-cannot be disregarded by persons who have to frame instruments that sooner or later may be subjected to his judicial criticism. Cotton, "is whether given to her or settled to her separate use' "The doubt, in my mind," said Lord Justice does not mean given to her by the instrument to her separate use.'"' That is to say, a distinction is to be drawn for purposes of cun

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struction between separate estate expressly created by the instrument, and separate property arising under the statute.

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The fact that an acute and learned judge should have paused for a moment on such a subtlety is sufficient reason for a conveyancer not to rely upon the operation of an Act which seems intentionally to adopt as great a variation of phrase as the resources of the language can supply. Thus we find within the narrow limits of this Act "separate property" used twenty-two times; "her own separate property" once; "a woman's own property once ; separate estate three times; and "separate use "three times; all these expressions, be it observed, denoting the same thing. Surely, when such heedlessness is discoverable on a cursory perusal of the statute, it is waste of logical acumen to apply a precise and minute criticism to the phraseology which has been adopted. The interThe interpreting tribunal should rather, we think, extend to the Legislature the same charitable indulgence as to an illiterate testator, and endeavour, amid the mazes of language, to ascertain its general intention.

Passing, however, to the point of law decided in this case, we must observe that it affects future as well as past settlements, and applies equally to those which are executed after as to those executed in contemplation of marriage. In all these cases the Act is excluded if to the smallest extent its effect would be to alter the provisions of a settlement. Let us test the principle by two or three applications.

First, suppose that the covenant to settle the after-acquired property of the wife was confined to a certain proportion thereof, say one-half, and that property settled to her separate use was excepted from the covenant. A legacy of £10,000 is left to the wife without the words "to her separate use." Had there been no settlement she would have taken this money as her separate property, but as this would affect the provisions of the settlement, one-half must be paid to the trustees of the settlement and the other half to the husband absolutely.

Secondly, suppose that the covenant to settle after-acquired property is expressed to be that of the husband alone. But for the Act he would be bound to settle the after-acquired personalty of his wife, and it would therefore seem that the existence of the husband's covenant would operate to divest the statutory title of the wife, and render her receipt for the money a mere nullity. Thirdly, suppose that the husband, after marriage, is desirous of obtaining for his own purposes the expectant fortune of the wife. What is there to prevent him from executing a post-nuptial settlement, with or without the concurrence of his wife, containing a covenant to settle an illusory share of her after-acquired property upon the trusts of the settlement? The result of the rule of law laid down by the Court of Appeal would be that, as this settlement would be affected by the Act, the operation of the Act must be excluded, and the husband would take for his own benefit the fruits of his ingenious device.

passed as the Married Women's Property Act, 1882, it is quite clear that the fund in court would have been bound by the settlement. But the title of the wife to the fund accrued after the commencement of the Act; and, consequently, primâ facie, section 5 applies; and the petitioner says, and rightly says, that she is entitled, by virtue of that section, to take the fund as her separate property. Then comes section 19, and the language of section 19, I may observe, is not very easy to deal with. But there are some things which are clear on the face of the section. The first observation is that the section is, in substance, a qualification of the Act, and the material part of the Act to which it appears to be a qualification is section 5 itself." After examining some what closely the provisions of section 19, and pointing out the absurdities to which a literal interpretation of its language would lead, the learned judge suggested the following limitation to the scope of this difficult section:-" It appears to me," he said, "that the words 'respecting the property of any married woman' should properly be read as a settlement or agreement which affects legally or equitably the property, and not merely one that concerns or relates to the property, and as being some settlement or agreement which has a binding force on the property."

To give so extensive an interpretation to a saving clause as was given to section 19 by the Court of Appeal seems to us scarcely in accordance with the principle on which such clauses should be construed. Moreover, to make the application of the Act in any particular case depend upon the existence or non-existence of an instrument not dealing specifically with the fund in question introduces a most inconvenient rule. Instead of first determining the construction of the covenant and allowing it to operate upon property of a certain description, the Court of Appeal made the character of the property depend upon its destination under the covenant. The practical effect of the decision is that the words "for her separate use "should be always added by the draftsman after a gift, limitation, or bequest to a married woman.

It would have been more satisfactory if the Court of Appeal had dealt with the difficulties suggested by Mr. Justice Chitty, and expressly overruled his decision if they disagreed with it, instead of puzzling posterity by suggesting a distinction between the cases, when there is none in reality. This mode of treating inconsistent decisions savours of intellectual cowardice; and, indeed, if we may venture to say so, since the deaths of Lord Justice James and the late Master of the Rolls, the Court of Appeal No. 2 have seemed to us too often to shrink from the courageous enunciation of a principle and to shelter their judgments behind the cloud of "the facts of this particular case."

CASES OF THE WEEK.

PIKE, SONS, & CO. v. ONGLEY AND THORNTON-C. A. No. 1, 30th March.

PRINCIPAL AND AGENT-SALE FOR AND ON ACCOUNT OF OWNER-CUSTOM

The

OF TRADE TO MAKE AGENT LIAPLE-ADMISSIBILITY OF EVIDENCE of. This was an action for non-delivery of certain hops according to sample. The defendants, who were hop factors in London, sold the hops to the plaintiffs "for and on account of owner," the contract being in writing, and signed by the defendants without qualification. plaintiffs, at the trial, gave evidence that there was a custom in the hop market, upon a sale of hops by a broker, that if the name of the principal is not disclosed, either at the time when the contract is made or on the face of the contract, the broker is personally liable. Manisty, J., admitted this evidence, and, the name of the principal not having been disclosed, judgment was given for the plaintiffs. The Divisional Court (Day and Wills, JJ.) held that this evidence of custom was inconsistent with the written contract, and gave judgment for the defendants (see ante, p. 7Q. B. 126), Humfrey v. Dale (5 W. R. 466, 7 E. & B. 266; in Exch. Ch., 365). The plaintiffs appealed, and cited Fleet v. Murton (20 W. R. 97, 6 W. R. 854, E. B. & E. 1004), and Hutchinson v. Tatham (22 W. R. 18, 8 C. P. 482).

The judges of the Court of Appeal generally prefer "substantial justice" to inflexible principles of law; but it remains to be seen whether, when such cases of hardship as we have indicated arise for their consideration, they will be able to shake themselves free from the fetters of the present decision. Possibly the then president of the court may brush it on one side as unceremoniously as Lord Justice Cotton treated Re Queade's Trusts (33 W. R. 816) — a decision of Mr. Justice Chitty absolutely irreconcileable in principle with Re Whitaker. Lord Justice Cotton is reported to have said: "It is unnecessary to consider Re Queade's Trusts, because that particular question does not arise now, and any opinion one might give would be extra judicial." Of course, the "particular question" did not arise, because the court was not hearing an appeal in Re Queade's Trusts, but the questions in the two cases were, in principle, the same, and the two decisions cannot possibly stand together. In Re Queade's Trusts the settlement was postnuptial, and, the wife having been an infant at the date of the settlement, the covenant to settle after-acquired property was, in law, the covenant of the husband alone. Those were the only points in which the facts before Mr. Justice Chitty differed from those before the Court of Appeal; and, so far as section 19 is con- either in the contract itself or at the time when the contract was made, cerned, these differences are non-essential. The learned judge, the person dealing with the broker had the right to treat the broker as too, expressly grounded his decision on the construction of the principal. If the name of the principal were disclosed subsequently, the Act, and not upon any particular circumstances in the case before purchaser would have a right to sue either. The custom was not that the him. The following observations occur in the course of the judg-sistent with the written contract, as it would not relieve a person liable purchaser would look to the broker alone. It was not, therefore, inconment in this case:-"If no such Act of Parliament had been under the contract. The case was therefore governed by the cases cited,

THE COURT allowed the appeal. Lord ESHER, M R., said that the contract did not make the defendants liable. But the custom proved was whole case depended upon the evidence as to what the custom was. The that if, on such a contract as this, the name of the principal were not given,

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