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Oct. 30, 1886.

THE SOLICITORS' JOURNAL.

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by the court, who laid it down that the statute only extended to Abr. 488), and may give to the survivor of the persons appointed "natural relations."

VICE-CHANCELLOR BACON has entered a protest against the growing practice of inflicting on the court lengthy correspondence, often written with a view to publication before the judge. In a case before him on Thursday, counsel, having diligently read through the documents and pleadings in a case, proposed to invite the attention of the court to certain correspondence between the parties, whereupon the learned judge remarked that, after the pleadings, they were now coming to "the parasitical vermin of letters."

THE GUARDIANSHIP OF INFANTS.

I.

Ar the risk of inflicting some rather trite law on our readers, we think it desirable to accompany our observations on the recent "Act to amend the law relating to the guardianship and custody of infants" (49 & 50 Vict. c. 27) with a short notice of the office and functions of a testamentary guardian before the recent Act came into operation. It is impossible to understand the effect of many of the new provisions except in connection with the old law. Omitting the obsolete law relating to guardians in socage, by nature, for nurture, and by election, and also as far as possible the subject of appointment of guardians by the court, we propose to deal with the general subject of guardianship.

Constitution of the mother as guardian. The first material provision of the new Act introduces a new guardian, appointed, not by designation of any person, but by the law. It provides (section 2) that—

"On the death of the father of an infant, and in case the father shall have died prior to the passing of this Act, then from and after the passing of this Act, the mother, if surviving, shall be the guardian of such infant, either alone when no guardian has been appointed by the father, or jointly with any guardian appointed by the father.'

The powers and duties of this new guardian are to be similar to those of testamentary guardians appointed by the father. It is to be observed that no provision is made that the mother is to be guardian during widowhood only, nor is it provided that she must be the wife of the father at the time of his death. The contingency of a divorced mother becoming guardian of her children is, however, provided for by section 7, to be noticed hereafter.

guardians power to nominate another person as guardian (In the Goods of Parnell, 2 P. & D. 379). A guardian may disclaim before he has acted (O'Keeffe v. Casey, 1 Sch. & L. 106).

The Act provides that the father may appoint guardians "of his children under the age of twenty-one years and not married at the time of his death." Though there are no children born at the time of the appointment, it is nevertheless valid (Ex parte Ilchester, 7 Ves. 348), and the subsequent marriage of a child who was unmarried at the death of the father does not, it seems, determine the guardianship, even in the case of a female infant 91). But the father can only appoint guardians of his legitimate (Roach v. Garvan, 1 Ves. set. 160; but see Mendes v. Mendes, Ib. children (Sleeman v. Wilson, 13 Eq. 36).

The appointment may be made to last during such time as the children" shall respectively remain under the age of twenty-one If no time is mentioned in the years or any lesser time." appointment it seems that it will be deemed to continue until the at p. children attain twenty-one (Mendes v. Mendes, 1 Ves. sen., The Act enables the father to "dispose of the custody and 91; but see Bedell v. Constable, Vaughan, 184). tuition" of the child, and enables the guardians to "take into their custody, to the use of such child, the profits of all lands, tenements, and hereditaments of such child, and also the custody, tuition, and management of the goods, chattels, and personal estate of such child," and to "bring such action or actions in relation thereunto as by law a guardian in common socage might do." tary guardian a peculiar kind of trustee :-not merely trustee of the The general effect of these provisions is to constitute the testamenproperty of the ward, but also with duties relating to the person of the ward; not trustee of the whole property of the ward, but only of of guardian (Mathew v. Brise, 14 Beav., at p. 345; Sleeman v. of purpose such of the property as comes into his possession in the character Wilson, 13 Eq., at p. 41); and, lastly, a trustee for the management only, not of sale. Being a trustee for the benefit of the ward he is under the "superintendency" of the court in case of "misbehaviour" (Eyre v. Shaftesbury, 2 P. Wms. 103), and is liable to account in a court of equity, a liability which no time will bar (Mathew v. Brise, 14 Beav. 341).

More specifically, and subject to the principles stated above, the rights and duties of the testamentary guardian, as regards the person of the ward, are these: He is entitled to the custody and control of the ward (see Re Andrews, 8 Q. B. 153), and to determine the mode, and select the place, of education of the ward (Hall v. Hall, 3 Atk. 721). It is his duty to see that the infant is properly maintained out of the income of his property (Mathew v. Brise, 14 Beav., at p. 345), and to prevent an unfitting marriage of the ward (see Barber v. Taylor, 1 C. & P. 101; also the provision, as to consent, of the Marriage Act, 4 Geo. 4, c. 76, s. 16).

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Power of the father to appoint guardians.-The substance of the provisions of sections 7, 8, and 9 of 12 Car. 2, c. 24, as subsequently varied and interpreted, may be stated as follows:-The Act vests the power of appointing the guardian in the father only an As regards the lands of the ward, the testamentary guardian appointment by the mother was void, although it might influence the choice of the court in appointing guardians (Re Kaye, 1 Ch. 387). The Act (section 8) enabled the father, whether under twenty-may, it has been said, "maintain trespass and ejectment, (R. v. Oakley, 10 East., at p. 494; see Wude one or of full age, to appoint guardians "by deed executed in his avow for damage feasant, make admittance to copyhold, and lease lifetime, or by his last will in writing in the presence of two or in his own name more credible witnesses." The Wills Act (sections 1 and 7) deprived v. Baker, 1 Ld. Raym., at p. 131); such leases, however, are an infant father of his right to appoint guardians by will; but there voidable by the ward on attaining twenty-one (see Bac. Abr. is nothing to prevent an infant father from appointing them by Leases (I., 9)). In Roe v. Hodgson (2 Wils. 129, 135) a lease by deed. It is not clear that the provision of the statute as to two a testamentary guardian for twenty-one years was said to be abcredible witnesses applies to the case of deeds (see Morgan v. solutely void, but this opinion is not consistent with the earlier Hatchell, 19 Beav., at p. 87); if it does, the appointee is not authorities as to guardians in socage, and the authority of the disabled from being a witness to the deed (Ibid., at p. 88). A deed case, and the correctness of the report have been doubted (see 1 appointing guardians is deemed "to be only a testamentary instru- Platt on Leases, 376; 5 Dav. Conv. 258). The testamentary guarment in the form of a deed" (Ex parte Ilchester, 7 Ves., at p. 367), dian of an infant tenant for life is authorized by section 60 of and may be revoked by a subsequent will (Shaftesbury v. Hannam, the Settled Land Act, 1882, to apply for the appointment of a Finch, 323). A will appointing a guardian need not be proved person to exercise on behalf of the infant the powers of a tenant (Gilliat v. Gilliat, 3 Phillimore 222). No formal words are neces- for life, and by section 68 to apply for the appointment by the sary for the appointment of guardians by will; all that is necessary court of trustees of the settlement for the purposes of the Act. is an expression of intention that the management and care of the children should be committed to the person specified (see Miller v. Harris, 14 Sim. 540).

The statute enables the father to appoint "any person or -an exception which, for our persons other than Popish recusants purposes, it is not necessary to discuss. It seems that an infant cannot act as guardian (Co. Lit. 52a). The father may appoint a guardian "in remainder "-e.g., on the death of the person first named, or upon the happening of a future event (Selby v. Selby, 2 Eq. Cas.

As regards the personal property of the ward, there is little direct authority as to the powers of the testamentary guardian, but it is apprehended that his powers and duties correspond in general to those of an ordinary trustee, so far as relates to management of the property which comes into his possession. He must make the property productive by properly investing it, If he retains large and also all surplus income beyond that required for the proper maintenance and education of the ward. balances in his hands he will be charged with interest

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(See Mathew v. Brise, 14 Beav., at p. 346). The provision
in the Irish Act (14 & 15 Car. 2, c. 19, Ir.) conferring
the "
custody, tuition, and management of the ward's per-
sonal estate on the guardian (words precisely similar to those in
the English Act), have been held to make the receipt of a testa-
mentary guardian for a legacy to the infant a good discharge
(McCreight v. McCreight, 13 Ir. Eq. 314). The general impression
in England has been to the contrary; but it is to be observed that
in Re Cresswell (30 W. R. 244), Fry, J., did not dissent from the
Irish decision, and, indeed, expressly disclaimed any intention of
interfering with it.

CONCERNING SEARCHES.
(XII.) JUDGMENTS.

JUDGMENTS BEFORE 1 & 2 VICT. c. 110.

Ar common law a judgment creditor could not take in execution the land itself; he could only sue out a writ of levari facias, under which he received the profits as they accrued, through the sheriff, who thus collected the debt for him (3 Rep. 11; 2 Wms. Saund. 68n; 11 Vin. Abr. Execution, Q.a. 3, Pl. 2). This was consistent with the policy of the early feudal law, which forbade alienation, and the first enactment which allowed a judgment creditor to take possession of the lands of his debtor was the Statute of Westminster 2 (13 Edw. 1, c. 18), made shortly before the power of alienation was conferred by the Statute of Quia Emptores (18 Edw. 1). Under the Statute of Westminster 2 was framed the writ of elegit, by virtue of which the sheriff delivered to the judgment creditor possession of a moiety of the debtor's lands, including under that term freeholds held in severalty, in coparcenary, or in common, rents-charge, impropriate rectories, and tithes, estates tail (but only during the life of tenant in tail), and reversions (2 Wms. Saund. 69n; 3 Prest. Abst. 326). But copyholds, customary freeholds (probably), advowsons in gross, glebe, and rents seck were held not to be within the statute (ibid.). The right of the creditor against the lands of a joint tenant was defeated upon the debtors's death by the jus accrescendi of surviving joint tenants (6 Rep. 78). A term of years might be extended as to a moiety under an elegit, or the whole term might be sold under a fi. fa. (2 Wms. Saund. 68 f, n). A judgment affected, or was a lien upon (see this explained, post), not only lands belonging to the debtor when it was entered up, but also any lands subsequently acquired by him. Freeholds were bound from the time of entering up the judgment, but terms of years, as being chattels, were bound at common law only when execution was sued out-i.e., from the teste, or date, of the writ (Fleetwood's case, 8 Rep. 171a); and by the Statute of Frauds (section 16) they were not bound until the writ was delivered to the sheriff (see Dart V. & P. 475). The process by elegit has been already explained (30 SOLICITORS' JOURNAL, 724), and may be seen clearly exhibited in Underhill v. Devereux (2 Wms. Saund. 68).

exception of equitable terms, was a case, not of a simple trust, but of a great complication of equitable interests (see per Stuart, V.C., Gore v. Bowser, 3 Sm. & Giff. 1); and the decision may be supported on this ground, for it was settled law that the statute did not enable legal execution to be enforced against any equitable interest of which the debtor was not the sole owner (Forth v. Duke of Norfolk, 4 Madd. 504); "there must be a clear and simple trust for the benefit of the debtor" (Doe v. Greenhill, 4 B. & Ald. 684), e.g., it did not operate where he had only an equity of redemption (3 Prest. Abst. 326; 1 Pow. Mort. 257; Lyster v. Dolland, 1 Ves. jun. 431; Plunkett v. Pearson, 2 Atk. 290; Smith v. Hurst, 10 Ha. 51).

A creditor who had sued out a fi. fa. could in equity obtain satisfaction of his debt out of an equitable interest in a term of years (Gore v. Bowser, ubi sup.).

Appointment. Upon the principle that an appointee takes immediately under the donor of the power, and that the exercise of the power divests an estate limited to the donee in default of appointment, it was held that an appointee (even with notice: Skeeles v. Shearley, 8 Sim. 153; 3 My. & Cr. 112) was not bound by judgments entered up against the appointor after the creation of the power (Doe d. Wigan v. Jones, 10 B. & C. 459; 1 Sand. Us. 161; Langton v. Horton, 1 Ha., at p. 563).

Effect of contract for sale.-A judgment entered up against the vendor after a contract for sale, but before conveyance, was immaterial in equity (Averall v. Wade, Ll. & G. t. Sugd. 262); for the equitable interest had ceased to belong to the vendor (Finch v. Winchelsea, 1 P. Wms. 277; Lodge v. Lyseley, 4 Sim. 70; Benham v. Keane, 1 J. & H., at p. 697). Therefore, after contract, the Court of Chancery would, on behalf of the party entitled to the benefit of the contract, restrain a judgment creditor from proceeding against the legal ownership (per Wood, V.C., Benham v. Keane, 9 W. R. 765, 1 J. & H. 697). The purchaser was, therefore, protected in respect of so much of the purchase-money as he had paid before he had notice of the judgment; but, as soon as he became affected with notice, the creditor acquired a lien on the purchase-money remaining unpaid (Forth v. Duke of Norfolk, 4 Madd. 505; 3 Prest. Abst. 329); and this appears to be law at the present day (Sugd. Conc. V. 390; Dart. 472).

Trust for sale.-So, where lands had been conveyed to trustees for sale, they were not bound by judgments subsequently entered up against the settlor; but the purchaser, if he became affected by notice of them, would be bound in respect of unpaid purchasemoney, unless the trustees' receipts were to be sufficient discharges, in which case it would seem that even express notice would not make him liable to the judgment creditor (Lodge v. Lyseley, 4 Sim. 75).

These rules as to the effect of contracts and trusts for sale are applications of the principles-first, that a judgment creditor is not a purchaser; second, that he can take only what belongs to his debtor subject to every liability which affected it in the debtor's hands.

(1) Judgment creditor not a purchaser.-A judgment creditor is not to be considered a purchaser, for he does not lend his money upon the security of the land (Brace v. Duchess of Marlborough, 2 P. Wms. 490); his rights in the land, therefore, are subject to all prior estates and interests therein, whether he has notice of them or not, and he cannot claim the protection given in equity to purchasers for value without notice (Whitworth v. Gaugain, 1 Ph., at p. 733; Beavan v. Earl of Oxford, 3 De G. M. & G. 517, foll.; Benham v. Keane, 1 J. & H., at p. 698, 3 De G. F. & J., at p. 332, 9 W. R. 765, 10 W. R. 67). And this applies even where he is in possession under an elegit and has a legal estate (3 Hare, 416), for the court, having established that the equitable ownership may be in one person and the legal ownership in another, must interpose where it is necessary to protect the equitable ownership (Langton v. Horton, 1 Ha. 560).

Equitable interests.-Uses were not extendible at common law, nor were they within the Statute of Westminster 2 (2 Pow. Mort. 601). The statutes 1 Ric. 3, c. 1, and 19 Hen. 7, c. 15, subjected them to execution, but these enactments were rendered obsolete by the Statute of Uses. The revival of uses under the name of trusts eventually led to the enactment of section 10 of the Statute of Frauds, which empowered the sheriff to deliver in execution hereditaments held in trust for the debtor "at the time of execution sued." Under these words equitable estates were not bound until execution, and, therefore, could not be taken in legal execution as against a purchaser to whom the legal estate had been conveyed; but in equity, if the purchaser, before he paid his purchase-money, had notice of judgments affecting the equitable title, he could not safely complete without having such judgments satisfied or the property exonerated from them (3 Prest. Abst. 325, 327; Hunt v. Coles, Com. Rep. 226). It is frequently laid down in text-books that a trust of a term of years was held not to be within the statute, an exception put by some on the ground that section 10 of the Statute of Frauds uses the word "lands," which is said not to be applicable to interests less than freehold (1 Sand. (2) Judgment creditor can take only what belongs to the debtor. Us. 285; 2 Pow. Mort. 603n, citing Shep. Touch. 88, 92); by-A judgment only attaches on that which is, at the time when it others on the use of the word "seised" in the section. But Scott is entered up, or which afterwards becomes, the property of the v. Scholey (8 East, 467), which is cited as the authority for the debtor, both at law and in equity; for if it is charged in equity

But, while a judgment creditor cannot defeat the prior equitable interest of a purchaser, even though he had no notice of it, on the other hand, he is not affected by notice as against other judgment creditors, because they are not purchasers (see per Wood, V.C., in Benham v. Keane, 1 J. & H., at p. 702).

before the entry of the judgment, the judgment will not affect such charge. It can only attach upon the interest which remains in the debtor-viz., the legal estate subject to the charge (Whitworth v. Gaugain, 1 Ph. 728). The creditor stands in the place of his debtor, and only takes the property of his debtor subject to every liability under which the debtor himself held it (Whitworth v. Gaugain, 3 Ha. 325). He cannot take the property of other persons though it may be in the possession of the debtor as trustee (1 Hare, 560). The question is not whether the judgment creditor had or had not notice, but whether there is anything belonging to the debtor which can be attached (see Benham v. Keane, 1 J. & H. 697).

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These principles are equally applicable since 1 & 2 Vict. c. 110 (1 Ph. 734; see Kinderley v. Jervis, 22 Beav. 1, 2 Spence Eq. Jur. 325), and they have recently been applied as against a judgment creditor's garnishee order (Ex parte Whitehouse, 32 Ch. D. 512). Judgments in what sense a lien.-It is frequently said that a judgment under the old law was a "general lien" or a "charge on the debtor's lands, but such expressions are inaccurate, and are misleading unless understood in a restricted sense (5 Jarm. Conv. 41). The lands became bound only in the sense that they were liable to be seized by the creditor whenever he should please to sue out writs of execution for that purpose (1 Pow. Mort. 274n, 6 De G. M. & G. 517, 518); but he had no interest merely by the judgment in the estate itself (3 My. & Cr. 417); he had only "the potentiality of acquiring one" (per Jessel, M.R., 9 Ch. D. 284), a right to seize and hold the lands for the payment of the debt (3 De G. F. & J. 329). "It is not correct to say that, according to the usual acceptation of the term, the creditor obtains a lien by virtue of his judgment. If he had an equitable lien, he would have a right to come here to have the estate sold; but he has no such right" (per Lord Cottenham, C., Neate v. Duke of Marlborough, 3 My. & Cr., at p. 417).

When, therefore, statutes speak of lands being "affected" by judgments, it would seem that the meaning is merely that they become liable to such rights as, by the common and statute law for the time being in force, are given to the creditor. Under the old law his right was only to obtain possession of the lands and receipt of the rents and profits until the debt was satisfied, and this remark applies to the equitable execution given by the Court of Chancery in cases where the lands could not be delivered in execution at law (see 9 Ch. D. 284, 289, 291).

RECENT DECISIONS.

SERVICE OUT OF THE JURISDICTION. (Jones v. Scottish Accident Insurance Co., 17 Q. B. D. 421; Thomas v. Duchess of Hamilton, Ib. 592.)

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Recent decisions on points arising under R. S. C., 1883, XI., shew that there is still some uncertainty as to the circumstances in which service out of the jurisdiction will be allowed. Jones v. The Scottish Accident Insurance Co. was a case in which the defendant company had their head office in Edinburgh, whilst their secretary resided there; but they had also branch offices and agencies thoughout England, with a chief office for England in London. It was contended that, inasmuch as the defendants carried on business in England by their various agents, they were domiciled or ordinarily resident within the jurisdiction." But, as Pollock, B., pointed out, to hold that a company is domiciled where it has an agent for local business would be to hold that it is domiciled in every town in England, Scotland, and Ireland where it has an agency. The application was, of course, refused. In Thomas v. The Duchess of Hamilton-an action for the price of goods supplied-an order for service out of the jurisdiction had been made and service had been effected. The defendant then applied to the judge at chambers to rescind the order and to set aside the proceedings which had been taken thereon. The judge, however, refused to do this, but made an order to the effect that the plaintiff's claim should be limited to the recovery of the price of goods in respect of which it might appear at the trial that a writ could have been properly served out of the jurisdiction. The plaintiff appealed against this order, and his appeal was allowed on the ground that it was not convenient to impose a limitation of this kind on the plaintiff. The defendant then, in turn, appealed, and the Court of Appeal were of opinion that the judge in chambers had exercised his discretion rightly, and restored his order. Before the Judicature Act the practice appears to have been to impose this limitation on the plaintiff's claim where there was a conflict as to the facts on which the right to

serve the writ out of the jurisdiction depended. However, the disadvantages of postponing until the trial a preliminary question of procedure are obvious, and it would certainly seem to be the more convenient diction, the leave, if given at all, should not be qualified by any practice that, in applications for leave for service out of the jurislimitation. We may add to the above cases on R. S. C., 1883, XI., that an application for leave to serve an originating summons out of the jurisdiction was unsuccessful (Re Busfield, 30 SOLICITORS' JOURNAL, 303). Service out of the jurisdiction of a petition for payment out of court has been allowed (Colls v. Robbins, 1b., 550); but the court has no jurisdiction to give leave to serve notices of orders and other proceedings in the winding up of a company on persons residing out of the jurisdiction (Re Anglo-African Steamship Co., 34 W. R. 554, 32 Ch. D. 348).

REVIEWS.

EQUITY JURISPRUDENCE. COMMENTARIES ON EQUITY JURISPRUDENCE AS ADMINISTERED IN ENGLAND AND AMERICA. THIRTEENTH By JOSEPH STORY. EDITION. BY MELVILLE M. BIGELOW. 2 Vols. Sampson Low, Marston, Searle, & Rivington.

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occasion to observe that the editor of a new edition of a standard In our notice of the first English edition of this work we took law book has two courses open to him, either of which may lead to a satisfactory result. He may reproduce the original book verbatim and bring it up to date by means of additional notes or interpolated sections, distinguishing these by brackets or other devices from the original text; or he may rewrite such parts of his author as new laws and decisions have made obsolete, and thus in effect produce a new treatise. The former plan is that which has been here adopted, but we doubt whether it was wise in this particular case to attempt footnotes. Reverence for the authority of Judge Story has, however, to bring the original text up to date by the addition of occasional induced the present editor to revert to the last edition which received the author's personal supervision in passing through the press, and to reprint that edition, with its footnotes, as an authoritative text uncorrupted by the annotations of his predecessors. He reserves for a second set of footnotes his own editorial observations, which he relies upon as filling up the gap since 1846. But forty years of legislation have wrought such changes in equity jurisments in the text are obsolete and misleading; and so universally is prudence as administered in England" that many of the statethis true that it would be, in our opinion, hopeless to correct the errors of the original text by any annotation, however careful. Although legal and equitable rights are still perfectly distinct, there is in this country no such thing as a court of equity separate from a court of law. The divergence and the occasional antagonism of the two have been abolished by the fusion of the several jurisdictions. Consequently, the very foundation of Mr. Justice Story's bookviz., the distinguishing features of courts of equity and courts of common law-has been altogether swept away. Many persons," we are informed in section 34, and especially foreigners, have often expressed surprise that distinct courts should in England and America be established for the administration of equity, instead of the whole administration of municipal justice being confided to one and the same class of courts, without any discrimination between law and equity." So Judge Story wrote in 1846, and the statement is repeated by his editor in 1886 without note or comment of any kind. We only give this as a specimen of the havoc which time has played with the text; for from beginning to end of the book we have the ever-recurring idea of the separate jurisdictions of the courts. This error is not corrected by the editor, and is even reproduced in his own notes. Thus, in the note at p. 31 of vol. 1, we find the statement "that even in courts of general chancery powers-that is, in the English Chancery-the common practice in matters of concurrent jurisdiction is to remit parties to their remedy at law, if that is plain and adequate." Dr. Melville M. Bigelow cannot have completely grasped the effect of the Judicature Act upon the administration of equity jurisprudence in this country, or he would not have made use of such obsolete expressions. Were it not that we noticed in the chapter on "Bills Quia Timet" a reference to the Judicature Act, 1873, we should have supposed that the existence of that statute had not come to the editor's knowledge.

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66

We ought not, perhaps, to expect from an American writer the same familiarity with English procedure as we do from the English author of a purely English text-book; but these commentaries, as appears from the title-page, profess to be almost as much English as American, for they treat of equity jurisprudence as administered in England and America." We do, therefore, expect from an editor who undertakes the task of bringing them down to date some familiarity with the principal statutory innovations which have been introduced in this country. The notes of the present editor by no

In the next paragraph but one preceding that which I have quoted the article deals with the question from what time the term of years is bound by a fi. fa., and in support of the statements there made the cases of Guest v. Cowbridge Railway Co. (6 Eq. 623) and Ec parte Williams (7 Ch. 314) are, amongst others, quoted. I was so startled by this very plain statement so contrary to all that I have understood to be the fact, that I determined to look up these cases, as well as those which refer to a previous part of your article in which "Actual delivery in execution" under the head of Elegit is dealt with. I cannot find that the case of Guest v. Cowbridge Railway Co. touches the question of third parties. It simply decides the priorities of creditors inter se. The second case was one relating to goods only, and had no reference to the Act of 27 & 28 Vict. c. 112; while those of Ex parte Evans and Re Hobson do not, as far as I can understand them, justify the construction put upon them. What I wish to point out is this:

means satisfy our requirements in this particular. Thus, for ex-years) is bound as regards third parties from the time when the writ ample, in the chapter on partition, there is but one cursory reference is delivered to the sheriff. This may be done immediately before to the Partition Acts; in that on mortgages the statutory powers completion of a purchase, a fact of which the purchaser may be are entirely ignored. "Consolidation" is treated without mention- ignorant, the result being that he may be ousted by a purchaser from ing the important provision on that subject in the Conveyancing the sheriff and lose his money." Act, 1881; and the same observation applies to the power of the court to order a sale. The Rules of the Supreme Court, no unimportant part of the administration of equity, are, so far as we have noticed, never once referred to. But perhaps the most astonishing omission of all is the treatment of "married women" without referring to any of the Acts which have been passed in relation to their property. The citation of cases is equally incomplete. To give but one example:-In the chapter on "Compensation and Damages" in specific performance, no reference is made to Henty v. Schröder (L. R. 12 Ch. D. 666), Tamplin v. James (L. R. 15 Ch. D. 215), or Hipgrave v. Case (L. R. 28 Ch. D. 356), cases which we should certainly expect to find in an English text-book treating the same subject. The cases cited, too, are very frequently not arranged in their chronological order. Thus, at p. 286 of the 2nd volume, we have 9 Ch., 2 Eq., 8 Eq., 1 Eq. as the order of citation, and, again, on p. 289, 1 Atk., 4 Ch. D., 6 Hurl. & N., 1 Ves. sen. This jumbling of cases without any excuse for such arbitrary arrangement is embarrassing to the reader, and tends to the conclusion that they were pitchforked into their places without due regard to the proposition which they were intended to support. This conclusion, we fear, is occasionally but too well founded. We will give an instance from vol. ii., p. 285, where six cases are cited in support of the statement that marriage articles are to be construed "most beneficially for the issue of the marriage.' Of these six cases the first four relate to covenants to settle after-acquired property in ante-nuptial settlements, one is a case of voluntary settlement upon a married woman and her issue, and the sixth, in which alone marriage articles are mentioned, contains no single sentence touching the proposition in the text.

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UNIVERSITY EDUCATION OF SOLICITORS.

[To the Editor of the Solicitors' Journal.] Sir,—With reference to the proposal referred to in Mr. Morrell's valuable paper, read at the late provincial meeting of the Incorporated Law Society at York, and to the letter of Dr. Percival, of Trinity College, Oxford, to the president of the Incorporated Law Society, I beg to refer you to the fact that the objects desired are attained at Čavendish College, Cambridge; which has been established for some years to enable students at an early age, and at moderate cost, to take the University degree in arts, law, and medicine.

1. That although the Act of 27 & 28 Vict. c. 112 is limited to assimilating the law affecting freeholds and leaseholds to that affecting purely personal estates, yet the Act uses a particular expression in describing the event upon which the first-named class of property is to be affected, and that, therefore, the whole question is, What is "actual delivery in execution"?

2. The case of Guest v. Cowbridge Railway Co. establishes that a creditor has no lien until the return of the writ. This case has no reference to a debtor and his purchaser on the one hand and creditors on the other. It simply decided the priorities between creditors inter se; but the decision is important.

3. The case of Re Duke of Newcastle, quoted in the case of Champneys v. Burland, lays it down plainly that the mere issuing a writ of fi. fa. cannot satisfy the statute, and that there can be no actual delivery of land in execution" without going on the land and delivery of seisin."

4. That the case of Re Hobson (34 W. R. 786) does not decide that the return of the writ is seizure of the land within the meaning of any Act, but that, the land having been delivered in execution by the sheriff to the creditor, the statute is satisfied, and the return of the writ was not necessary to protect the creditor against a trustee in bankruptcy who had been appointed after delivery but before the return of the writ. See also the recent case of Re Pope.

5. That the case of Ex parte Evans does not decide that the return of the sheriff to the writ constitutes actual delivery. James, LJ., says that the appointment of a receiver is an equitable delivery in execution and equivalent to a return of the sheriff to a writ of elegit.

From a consideration of these cases I deduce the following:(a.) That "actual delivery in execution" in the case of an elegit, as of a fi. fa., can only be satisfied by an actual going on to the land and delivery of seisin.

(b.) That such delivery is perfected in either case without an immediate return to the writ by the sheriff.

(c.) That, on the authority of Re Duke of Newcastle, registration of the writ before actual delivery in execution is not in "disaccordance (see headnote) with the Act, and that, therefore, a purchaser may, by searching, discover that which may stop him ere it be too

late.

(d.) That, in all cases where the writ of elegit or fi. fa. is registered in strict conformity, in point of time, with the words of the Act, searching is absolutely useless for the simple reason that the mischief is done before the writ is on the file.

I have only to observe that it will be seen that my view of the law, as based upon the cases I have referred to, is quite opposed to that laid down in the article alluded to. I shall be glad to be set right if I am wrong, but I certainly hope I am right. G. A. C. London, Oct. 27.

to the main points raised in his letter.

[We fear that our correspondent's hope is delusive. It is impossThe college is well spoken of by all who know it. There is suffi-ible to find space for a reply in detail to his criticisms, but we will refer cient supervision over the students, and such other arrangements are made, that parents can with confidence send their lads to the University at the early age of sixteen to seventeen. F. TRUEFITT. London, Oct. 25.

PURCHASER'S TITLE DEFEATED BY FI. FA.

To the Editor of the Solicitors' Journal.] Sir,-Since my return to town I have been looking up the back numbers of your journal, and have read with special interest and attention the articles "Concerning Searches." In your issue of 4th September there occurs this passage:-" Purchaser defeated by Fi. Fa.-As before pointed out, the debtor's term (that is, a term of

He objects to our statement, at p. 725, that while, as regards the debtor himself, property is bound from the teste of the writ of fi. fa., still, as regards third parties, it is bound from the time of the writ being delivered to the sheriff. He also objects to our citing Guest v. Cowbridge Railway Co. (6 Eq. 619), in support of this statement. He does not say (as he might have said) that this case is not an authority because it related to elegits; we cited it only as throwing light on what was sufficiently proved by the other cases cited. Hutchinson v. Johnson (1 T. R. 729), shews that, as between two creditors issuing writs of fi. fa., "the person whose writ is first delivered to the sheriff is entitled to a priority, and that the goods of the party are bound by the delivery of the writ."

In the case of Re Hobson (34 W. R. 786) there occurs the confusion

pointed out in our article between the return "to" and the return "of" the writ. But the context shews distinctly what was meant. The judgment distinguishes between delivery in execution and the return "to" the writ, and points out that the time of making the return is immaterial. It is clear that the judgment uses the word "to" instead of "of." The form of the return "to" the writ will be found in Chitty's Practical Forms, p. 427, while the manner of making the return "of" the writ, commonly called returning the writ, will be found at Chitty's Archbold's Practice, p. 815.

The conclusion that our correspondent arrives at, that "actual delivery in execution in the case of an elegit, as of a fi. fa., can only be satisfied by an actual going on to the land and delivery of seisin, and that such delivery is perfected in either case without an immediate return to the writ by the sheriff," appears to us to be inaccurate. We confess that, before we had considered the subject, we were under the impression that delivery in execution meant that something was done on the land itself, but we arrived at the conclusion, not only from perusing the cases, but from inquiries made from practitioners of large experience, that a creditor to whom land is delivered under an elegit, and a purchaser of a term of years sold by the sheriff under a fi. fa., only acquires a right to possession. No doubt in many cases the debtor gives up possession without action, but if he chooses to remain in possession the creditor or purchaser, as the case may be, is put to his action.

We did not, in the article referred to, discuss the question whether a writ of execution can be registered before delivery in execution; we shall consider this point in a forthcoming article.

We are at a loss to understand why, in our correspondent's opinion, to search for registered executions is useless, because "the mischief is done before the writ is on the file." A purchaser wishes to know, before he pays his money, whether the vendor can make a good title to the land sold. If the land has been delivered in execution he cannot do so, and it appears to us that if he finds a registered execution no mischief is done to him, while on the other hand he will be prevented from paying his money to a person who cannot give him a good title.-ED. S. J.]

NEW ORDERS, &c.

THE BANKRUPTCY ACT, 1883.
ORDER AS TO FEES AND PER-CENTAGES.

I, the Right Honourable Hardinge Stanley Baron Halsbury, Lord
High Chancellor of Great Britain, Do, by virtue of the
powers vested
in me by the Bankruptcy Act, 1883, prescribe that the fees and per-
centages in the scale hereto annexed shall, from and after the 24th
day of October, 1886, be the fees and per-centages to be charged for
or in respect of proceedings under the said Act, and shall be taken
in any court having jurisdiction in bankruptcy and in any office con-
nected with any such court, and in the Board of Trade and any office
connected therewith, and by any officer paid wholly or partly out of
public money attached to any such court or to the Board of Trade.
(Signed) HALSBURY, C.
Dated the 25th day of October, 1886.

SCALE OF FEES AND PER-CENTAGES.

TABLE A.

£ s. d.

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Every application by a trustee to an official receiver acting
as committee of inspection under rule 250:-
Where the assets are certified by the official receiver
as not likely to realize more than £500
Where the assets are likely to exceed £500
Every application under section 162 to the Board of
Trade for payment of money out of the bankruptcy
estates account; and every application for the re-issue
of a lapsed cheque or money order in respect of
moneys standing to the credit of the bankruptcy

estates account

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by the official receiver or trustee to the Board of Trade, a fee On one copy of the cash book, showing assets realized, forwarded according to the following scale on the gross amount of the assets realized and brought on credit-viz.: £1 on the first £100 or fraction of £100, and 5s. on each £25 or fraction of £25 above £100 up to £5,000, and 2s. 6d. on each £25 or fraction of £25 above that amount. Provided that, where a fee has been taken on an application under sections 18 or 23, seven-eighths of the amount thereof shall be deducted from this fee.

TABLE B.

On the net assets realized or brought to credit by the official receiver, whether acting as interim receiver, receiver, or trustee, after deducting any sums paid to secured creditors in respect of their securities and not being assets realized by a special manager or moneys received and spent in carrying on the business of the debtor, 0 2 0 and on the net assets realized by an official receiver when acting as 10 trustee to administer a debtor's property under a composition or scheme, after deducting any sums paid to secured creditors in respect of their securities, and not being moneys received and spent in carrying on the business of a debtor, a percentage according to the 0 1 6 following scale :

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£2 per cent.

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