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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."

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). VICE-CHANCELLOR Bacon has entered a protest against the grow. The Act provides that the father may appoint guardians of his ing practice of inflicting on the court lengthy correspondence, often children under the age of twenty-one years and not married at the written with a view to publication before the judge. In a case time of his death.” Though there are no children born at the before him on Thursday, counsel, having diligently read through time of the appointment, it is nevertheless valid (Ex parte the documen's and pleadings in a case, proposed to invite the Ilchester, 7 Ves. 348), and the subsequent marriage of a child attention of the court to certain correspondence between the who was unmarried at the death of the father does not, it seenis, parties, whereupon the learned judge remarked that, after the determine the guardianship, even in the case of a female infant pleadings, they were now coming to "the parasitical vermin of (Roach v. Garvan, 1 Ves. sez. 160 ; but see Mendes v. Mendes, 1b. letters."

91). But the father can only appoint guardians of his legitimate children (Sleeman v. Wilson, 13 Eq. 36).

The appointment may be made to last during such time as the THE GUARDIANSHIP OF INFANTS.

children “shall respectively remain under the age of twenty-one

years or any lesser time." If no time is mentioned in the 1.

appointment it seems that it will be deemed to continue until the At the risk of inflicting some rather trite law on our readers, we children attain twenty-one (Mendes v. Mendes, 1 Ves. sen., at p. think it desirable to accompany our observations on the recent 91 ; but see Bedell v. Constable, Vaughan, 184). " Act to amend the law relating to the guardianship ard custody

The Act enables the father to “dispose of the custody and of infants.” (49 & 50 Virt. c. 27) with a short notice of the office tuition " of the child, and enables the guardians to “take into and functions of a testamentary guardian before the recent Act came their custody, to the use of such child, the profits of all lands, into operation. It is impossible to understand the effect of many of tenements, and hereditaments of such child, and also the custody, the new provisions except in connection with the old law. Omit- tuition, and management of the goods, chattels, and personal ting the obsolete law relating to guardians in socage, by nature, estate of such child," and to “bring such action or actions in relafor nurture, and by election, and also as far as possible the tion thereunto as by law a guardian in common socage might do." subject of appointment of guardians by the court, we propose The general effect of these provisions is to constitute the testamento deal with the general subject of guardianship.

tary guardian a peculiar kind of trustee :not merely trustee of the Constitution of the mother as guardian.— The first material property of the ward, but also with duties relating to the person of provision of the new Act introduces a new guardian, appointed, the ward ; not trustee of the whole property of the ward, but only of not by designation of any person, but by the law. It provides such of the property as comes into his possession in the character (section 2) that,

of guardian (Mathew v. Brise, 14 Beav., at p. 345; Sleeman v. “On the death of the father of an infant, and in case the father shall Wilson, 13 Eq., at p. 41); and, lastly, a trustee for the purpose of have died prior to the passing of this Act, then from and after the passing management only, not of sale. Being a trustee for the beaefit of of this Act, the mother, if surviving, shall be the guardian of such infant, the ward he is under the “superintendency” of the court in case of either alone when no guardian has been appointed by the father, or jointly “misbehaviour" (Eyre v. Shaftesbury, 2 P. Wms. 103), and is with any guardian appointed by the father."

liable to account in a court of equity, a liability which no time The powers and duties of this new guardian are to be similar will bar (Mathew v. Brise, 14 Beay. 341). to those of testamentary guardians appointed by the father. It More specifically, and subject to the principles stated above, is to be observed that no provision is made that the mother is the rights and duties of the testamentary guardian, as regards to be guardian during widowhood only, nor is it provided that she the person of the ward, are these : He is entitled to the custody must be the wife of the father at the time of his death. The con- and control of the ward (see Re Andrews, 8 Q. B. 153), and to tingency of a divorced mother becoming guardian of her children determine the mode, and select the place, of education of the ward is, however, provided for by section 7, to be noticed hereafter. (Hall v. Hall, 3 Atk. 721). It is his duty to see that the infant

Power of the father to appoint guardians.—The substance of the is properly maintained out of the income of his property provisions of sections 7, 8, and 9 of 12 Car. 2, c. 24, as subse-|(Mathew v. Brise, 14 Beav., at p. 345), and to prevent an quently varied and interpreted, may be stated as follows:—The Act unfitting marriage of the ward (see Barber v. Taylor, 1 C. & P. vests the power of appointing the guardian in the father only: an 101; also the provision, as to consent, of the Marriage Act, 4 appointment by the mother was void, although it might influence Geo. 4, c. 76, s. 16). the choice of the court in appointing guardians (Re Kaye, 1 Ch. 387). As regards the lands of the ward, the testamentary guardian The Act (section 8) enabled the father, whether under twenty- may, it has been said, “maintain trespass and ejectment, 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 (R. v. Oakley, 10 East., at p. 494 ; see Wude 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.,

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 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 As regards the personal property of the ward, there is little children should be committed to the person specified (see Miller direct authority as to the powers of the testamentary guardian, 1. Harris, 14 Sim. 540).

but it is apprehended that his powers and duties correspond in The statute enables the father to appoint "any person or general to those of an ordinary trustee, so far as relates to manpersons other than Popish recusants "--an exception which, for our agement of the property which comes into his possession. He purposes, it is not necessary to discuss. It seems that an infant can- must make the property productive by 'properly investing it, not act as guardian (Co. Lit. 52a). The father may appoint a guardian and also all surplus income beyond that required for the proper upon the happening of a future event (Solby v. Solby, 2 Eq. Cas. 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 exception of equitable terms, was a case, not of a simple trust, but in the Irish Act (14 & 15 Car. 2, c. 19, Ir.) conferring of a great complication of equital.le interests (see per Stuart, V.C.,

custody, tuition, and management” of the ward's per- Gore v. Bowser, 3 Sm. & Giff. 1); and the decision may be supsonal estate on the guardian (words precisely similar to those in ported on this ground, for it was settled law that the statute did the English Act), have been held to make the receipt of a testa- not enable legal execution to be enforced against any equitable mentary guardian for a legacy to the infant a good discharge interest of which the debtor was not the sole owner (Forth v. Duke (McCreight v. McCreight, 13 Ir. Eq. 314). The general impression of Norfolk, 4 Madd. 504); "there must be a clear and simple in England has been to the contrary; but it is to be observed that trust for the benefit of the debtor" (Doe v. Greenhill, 4 B. & Ald. in Re Cresswell (30 W. R. 244), Fry, J., did not dissent from the 684), 6.g., it did not operate where he had only an equity of reIrish decision, and, indeed, expressly disclaimed any intention of demption (3 Prest. Abst. 326; 1 Pow. Mort. 257; Lyster v. Dolinterfering with it.

land, 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 CONCERNING SEARCHES.

satisfaction of his debt out of an equitable interest in a term of

years (Gore v. Bowser, ubi sup.). (XII.) JUDGMENTS.

Appointment.Upon the principle that an appointee takes im. JUDGMENTS BEFORE 1 & 2 VICT. C. 110.

mediately under the donor of the power, and that the exercise of Ar common law a judgment creditor could not take in execution the power divests an estate limited to the donee in default of apthe land itself; he could only sue out a writ of levari facias, under pointment, it was held that an appointee (even with notice : which he received the profits as they accrued, through the sheriff, Skeeles v. Shearley, 8 Sim. 153; 3 My. & Cr. 112) was not bound who thus collected the debt for him (3 Rep. 11; 2 Wms. Saund. by judgments entered up against the appointor after the creation

11 Vin. Abr. Execution, Q.a. 3, Pl. 2). This was of the power (Doe d. Wigan v. Jones, 10 B. & C. 459; 1 Sand. sistent with the policy of the early feudal law, which forbade Us. 161; Langton v. Horton, 1 Ha., at p. 563). alienation, and the first enactment which allowed a judgment Effect of contract for sale. „A judgment entered up against the creditor to take possession of the lands of his debtor was the vendor after a contract for sale, but before conveyance, was imStatute of Westminster 2 (13 Edw. 1, c. 18), made shortly before material in equity (Averall v. Wade, Ll. & G. t. Sugd. 262); for the power of alienation was conferred by the Statute of Quia the equitable interest had ceased to belong to the vendor (Finch Emptores (18 Edw. 1). Under the Statute of Westminster 2 v. Winchelsea, 1 P. Wms. 277; Lodge v. Lyseley, 4 Sim. 70, Benwas framed the writ of elegit, by virtue of which the sheriff ham v. Keane, 1 J. & H., at p. 697). Therefore, after contract, the delivered to the judgment creditor possession of a moiety of the Court of Chancery would, on behalf of the party entitled to the debtor's lands, including under that term freeholds held in benefit of the contract, restrain a judgment creditor from proceeding severalty, in coparcenary, or in common, rents-charge, impropriate against the legal ownership (per Wood, V.C., Benham v. Keane, rectories, and tithes, estates tail (but only during the life of 9 W. R. 765, 1 J. & H. 697). The purchaser was, therefore, protenant in tail), and reversions (2 Wms. Saund. 69n; 3 Prest. tected in respect of so much of the purchase-money as he had Abst. 326). But copyholds, customary freeholds (probably), advow- paid before he had notice of the judgment; but, as soon as he sons in gross, glebe, and rents seck were held not to be within the became affected with notice, the creditor acquired a lien on the statute (ibid.). The right of the creditor against the lands of a purchase-money remaining unpaid (Forth v. Duke of Norfolk, 4 joint tenant was defeated upon the debtors's death by the jus Madd. 505 ; 3 Prest. Abst. 329); and this appears to be law at the accrescendi of surviving joint tenants (6 Rep. 78). Å term of present day (Sugd. Conc. V. 390 ; Dart. 472). years might be extended as to a moiety under an elegit, or the Trust for sale.—So, where lands had been conveyed to trustees whole term might be sold under a fi. fa. (2 Wms. Saund. 68 f, n). for sale, they were not bound by judgments subsequently entered

A judgment affected, or was a lien upon (see this explained, up against the settlor; but the purchaser, if he became affected by post), not only lands belonging to the debtor when it was entered notice of them, would be bound in respect of unpaid purchase up, but also any lands subsequently acquired by him. Freeholds money, unless the trustees' receipts were to be sufficient diswere bound from the time of entering up the judgment, but terms charges, in which case it would seem that even express notice of years, as being chattels, were bound at common law only when would not make him liable to the judgment creditor (Lodge v. execution was sued out—i.e., from the teste, or date, of the writ Lyseley, 4 Şim. 75). (Fleetwood's case, 8 Rep. 171a); and by the Statute of Frauds

These rules as to the effect of contracts and trusts for sale are (section 16) they were not bound until the writ was delivered applications of the principles—first, that a judgment creditor is to the sheriff (see Dart V. & P. 475). The process by elegit has not a purchaser ; second, that he can take only what belongs to been already explained (30 SOLICITORS' JOURNAL, 724), and may his debtor subject to every liability which affected it in the be seen clearly exhibited in Underhill v. Devereux (2 Wms. debtor's hands. Saund. 68).

(1) Judgment creditor not a purchaser.-A judgment creditor is Equitable interests.—Uses were not extendible at common not to be considered a purchaser, for he does not lend his money law, nor were they within the Statute of Westminster 2 (2 upon the security of the land (Brace v. Duchess of Marlborough, Pow. Mort. 601). The statutes 1 Ric. 3, c. 1, and 19 Hen. 7, 2 P. Wms. 490); his rights in the land, therefore, are subject to all c. 15, subjected them to execution, but these enactments were prior estates and interests therein, whether he has notice of them rendered obsolete by the Statute of Uses. The revival of uses

or not, and he cannot claim the protection given in equity to purunder the name of trusts eventually led to the enactment of section chasers for value without notice (Whitworth v. Gaugain, 1 Ph., at 10 fof the Statute of Frauds, which empowered the sheriff to deliver p. 733 ; Beavan v. Earl of Oxford, 3 De G. M. & G. 517, foll. ; in execution hereditaments held in trust for the debtor " at the Benham v. Keane, 1 J. & H., at p. 698, 3 De G. F. & J., at p. time of execution sued.Under these words equitable estates were 332, 9 W. R. 765, 10 W. R. 67). And this applies even where he not bound until execution, and, therefore, could not be taken in is in possession under an elegit and has a legal estate (3 Hare, legal execution as against a purchaser to whom the legal estate | 416), for the court, having established that the equitable owner. had been conveyed; but in equity, if the purchaser, before he paid his ship may be in one person and the legal ownership in another, purchase-money, had notice of judgments affecting the equitable must interpose where it is necessary to protect the equitable title, he could not safely complete without having such judgments ownership (Langton v. Horton, 1 Ha. 560). satisfied or the property exonerated from them (3 Prest. Abst. 325, But, while a judgment creditor cannot defeat the prior equitable 327; Hunt v. Coles, Com. Rep. 226). It is frequently laid down interest of a purchaser, even though he had no notice of it, on the in text-books that a trust of a term of years was held not to be other hand, he is not affected by notice as against other judgment within the statute, an exception put by some on the ground that creditors, because they are not purchasers (see per Wood, V.C., in section 10 of the Statute of Frauds uses the word “ lands,” which Benham v. Keane, 1 J. & H., at p. 702). 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

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

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before the entry of the judgment, the judgment will not affect serve the writ out of the jurisdiction depended. However, the dissuch charge. It can only attach upon the interest which remains advantages of postponing until the trial a preliminary question of proin the debtor—viz., the legal estate subject to the charge (Whit- cedure are obvious, and it would certainly seem to be the more convenient worth v. Gaugain, 1 Ph. 728). The creditor stands in the place practice that, in applications for leave for service out of the jurisof his debtor, and only takes the property of his debtor subject to limitation. We may add to the above cases on R. 8 C., 1883, XI.,

diction, the leave, if given at all, should not be qualified by any every liability under which the debtor himself held it (Whitworth that an application for leave to serve an originating summons out of v. Gaugain, 3 Ha. 325). He cannot take the property of other the jurisdiction was unsuccessful (Re Busfield, 30 SOLICITORS' JOURNAL, persons though it may be in the possession of the debtor as trustee 303). Service out of the jurisdiction of a petition for payment out of (1 Hare, 560). The question is not whether the judgment creditor court has been allowed (Colls v. Robbins, 1b., 550); but the court had or had not notice, but whether there is anything belonging has no jurisdiction to give leave to serve notices of orders and other to the debtor which can be attached (see Benham v. Keane, 1 J. & proceedings in the winding up of a company on persons residing out of H. 697).

the jurisdiction (Re Anglo-African Steamship Co., 34 W. R. 554, 32

Ch. D. 348). 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).

REVIEWS. Judgments in what sense à lien. It is frequently said that a judgment under the old law was a general lien” or a charge

EQUITY JURISPRUDENCE. on the debtor's lands, but such expressions are inaccurate, and are

COMMENTARIES ON EQUITY JURISPRUDENCE AS ADMINISTERED IN misleading unless understood in a restricted sense (5 Jarn. Conv.

ENGLAND AND AMERICA. By JOSEPH STORY. THIRTEENTH 41). The lands became bound only in the sense that they were

EDITION. By MELVILLE M. BIGELOW. 2 Vols. Sampson Low, liable to be seized by the creditor whenever he should please to

Marston, Searle, & Rivington. sue out writs of execution for that purpose (1 Pow. Mort. 274n, 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 6 De G. M. & G. 517, 518); but he had no interest merely by the law book has two courses open to him, either of which may lead to judgment in the estate itself (3 My. & Cr. 417); he had only a satisfactory result. He may reproduce the original book verbatim "the potentiality of acquiring one (per Jessel, M.R., 9 Ch. D. and bring it up to date by means of additional notes or interpolated 284), a right to seize and hold the lands for the payment of the sections, distinguishing these by brackets or other devices from the debt (3 De G. F. & J. 329). “It is not correct to say that, original text; or he inay rewrite such parts of his author as new according to the usual acceptation of the term, the creditor obtains laws and decisions have made obsolete, and thus in effect produce a a lien by virtue of his judgment. If he had an equitable lien, he new treatise. The former plan is that which has been here adopted, would have a right to come here to have the estate sold; but he but we doubt whether it was wise in this particular case to attempt has no such right” (per Lord Cottenham, C., Neate v. Duke of footnotes. Reverence for the authority of Judge Story has, however,

to bring the original text up to date by the addition of occasional Marlborough, 3 My. & Cr., at p. 417).

induced the present editor to revert to the last edition which When, therefore, statutes speak of lands being "affected” by received the author's personal supervision in passing through the judgments, it would seem that the meaning is merely that they press, and to reprint that edition, with its footnotes, as an authoritabecome liable to such rights as, by the common and statute law for tive text uncorrupted by the annotations of his predecessors. He the time being in force, are given to the creditor. Under the old reserves for a second set of footnotes his own editorial observations, law his right was only to obtain possession of the lands and receipt of which he relies upon as filling up the gap since 1846. But forty the rents and profits until the debt was satisfied, and this remark years of legislation have wrought such changes in equity jurisapplies to the equitable execution given by the Court of Chancery ments in the text are obsolete and misleading; and so universally is

as administered in England” that many of the statein cases where the lands could not be delivered in execution at law this true that it would be, in our opinion, hopeless to correct the (see 9 Ch. D. 284, 289, 291).

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. RECENT DECISIONS.

Consequently, the very foundation of Mr. Justice Story's bookSERVICE OUT OF THE JURISDICTION.

viz., the distinguishing features of courts of equity and courts of

common law-has been altogether swept away. • Many persons, (Jones v. Scottish Accident Insurance Co., 17 Q. B. D. 421; Thomas

we are informed in section 34, "and especially foreigners, have often v. Duchess of Hamilton, Ib. 592.)

expressed surprise that distinct courts should in England and America Recent decisions on points arising under R. 8. C., 1883, XI., shew be established for the administration of equity, instead of the whole that there is still some uncertainty as to the circumstances in which administration of municipal justice being confided to one and the service out of the jurisdiction will be allowed. Jones v. The Scottish same class of courts, without any discrimination between law and Accident Insurance Co. was a case in which the defendant company equity.” So Judge Story wrote in 1846, and the statement is had their head office in Edinburgh, whilst their secretary resided there; repeated by bis editor in 1886 without note or comment of any kind, but they had also branch offices and agencies thoughout England, We only give this as a specimen of the havoc which time has played with a chief office for England in London. It was contended that, with the text; for from beginning to end of the book we have the inasmuch as the defendants carried on business in England by their ever-recurring idea of the separate jurisdictions of the courts. This various 'agents, they were“ domiciled or ordinarily resident within error is not corrected by the editor, and is even reproduced in his the jurisdiction.” But, as Pollock, B., pointed out, to hold that a own notes. Thus, in the note at p. 31 of vol. 1, we find the statecompany is domiciled where it has an agent for local business would ment “ that even in courts of general chancery powers--that is, in be to hold that it is domiciled in every town in England, Scotland, the English Chancery—the cominon practice in matters of concurrent and Ireland where it has an agency. The application was, of course, jurisdiction is to remit parties to their remedy at law, if that is plain refused. In Thomas v. The Duchess of Hamilton-an action for the and adequate." Dr. Melville M. Bigelow cannot have completely price of goods supplied-an order for service out of the jurisdiction had grasped the effect of the Judicature åct upon the administration of been made and service had been effected. The defendant then equity jurisprudence in this country, or he would not have made use applied to the judge at chambers to rescind the order and to set aside of such obsolete expressions. Were it not that we noticed in the the proceedings which had been taken thereon. The judge, however, chapter on " Bills Quia Timet” a reference to the Judicature Act, refused to do this, but made an order to the effect that the plaintiff's 1873, we should have supposed that the existence of that statute had claim should be limited to the recovery of the price of goods in not come to the editor's knowledge. respect of which it might appear at the trial that a writ could have We ought not, perhaps, to expect from an American writer the been properly served out of the jurisdiction. The plaintiff appealed same familiarity with English procedure as we do from the English against this order, and his appeal was allowed on the ground that it was author of a purely English text-book ; but these commentaries, as not convenient to impose a limitation of this kind on the plaintiff. appears from the title-page, profess to be almost as much English The defendant then, in turn, appealed, and the Court of Appeal were as American, for they treat of equity jurisprudence "as administered of opinion that the judge in chambers had exercised his discretion in England and America." We do, therefore, expect from an editor rightly, and restored his order. Before the Judicature Act the prac- who undertakes the task of bringing them down to date some tice appears to have been to impose this limitation on the plaintiff's familiarity with the principal statutory innovations which have been claim where there was a conflict as to the facts on which the right to introduced in this country. The notes of the present editor by no


weans 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 In the next paragraph but one preceding that which I have quoted
court to order a sale. The Rules of the Supreme Court, no unim- the article deals with the question from what time the term of years
portant part of the administration of equity, are, so far as we have is bound by a fi. fa., and in support of the statements there made
noticed, never once referred to. But perhaps the most astonishing the cases of Guest v. Cowbridge Railway Co. (6 Eq. 623) and Ec
omission of all is the treatment of ““ married women”, without parte Williams (7 Ch. 314) are, amongst others, quoted. I was so
referring to any of the Acts which have been passed in relation to startled by this very plain statement so contrary to all that I have
their property.

understood to be the fact, that I determined to look up these cases,
The citation of cases is equally incomplete. To give but one as well as those which refer to a previous part of your article in
example:- In the chapter on." Compensation and Damages”in specific which “ Actual delivery in execution" under the head of Elegit is dealt
performance, no reference is made to Henty v. Schröder (L. R. 12 with. I cannot find that the case of Guest v. Cowbridge Railway Co.
Ch. D. 666), Tamplin v. James (L. R. 15 Ch. D. 215), or Hipgrave touches the question of third parties. It simply decides the priorities of
v. Case (L. R. 28 Ch. D. 356), cases which we should certainly creditors inter se. The second case was one relating to goods only,
expect to find in an English text-book treating the same subject. and had no reference to the Act of 27 & 28 Vict. c. 112; while those
The cases cited, too, are very frequently not arranged in their of E.c parte Evans and Re Hobson do not, as far as I can understand
chronological order. Thus, at p. 286 of the 2nd volume, we them, justify the construction put upon them.
have 9 Ch., 2 Eq., 8 Eq., 1 Eq. as the order of citation, and, again, What I wish to point out is this :-
on p. 289, 1 Atk., 4 Ch. D., 6 Hurl. & N., 1 Ves. sen. This 1. That although the Act of 27 & 28 Vict. c. 112 is limited to
jumbling of cases without any excuse for such arbitrary arrange- assimilating the law affecting freeholds and leaseholds to that affect-
ment is embarrassing to the reader, and tends to the conclusion ing purely personal estates, yet the Act uses a particular expression
that they were pitchforked into their places without due regard to in describing the event upon which the first-named class of property
the proposition which they were intended to support. This con- is to be affected, and that, therefore, the whole question is, What is
clusion, we fear, is occasionally but too well founded. We will give “ actual delivery in execution”?
an instance from vol. ii., p. 285, where six cases are cited in support 2. The case of Guest v. Cowbridge Railway Co. establishes that a
of the statement that marriage articles are to be construed "most creditor has no lien until the return of the writ. This case has no
beneficially for the issue of the marriage.” Of these six cases the reference to a debtor and his purchaser on the one hand and creditors
first four relate to covenants to settle after-acquired property in on the other. It simply decided the priorities between creditors
ante-nuptial settlements, one is a case of voluntary settlement upon inter se; but the decision is important.
a married woman and her issue, and the sixth, in which alone 3. The case of Re Duke of Newcastle, quoted in the case of Champ-
marriage articles are mentioned, contains no single sentence touching neys v. Burland, lays it down plainly that the mere issuing a writ of
the proposition in the text.

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 CORRESPONDENCE.

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 STAMP ON SETTLEMENT OF REVERSIONARY INTEREST. writ was not necessary to protect the creditor against a trustee in [To the Editor of the Solicitors' Journal.]

bankruptcy who had been appointed after delivery but before the

return of the writ. See also the recent case of Re Pope. Sir,-A marriage settlement of a reversionary interest in a fund which will fall into possession on the death of the settlor's father and of the sheriff to the writ constitutes actual delivery. James, LJ.,

5. That the case of Ex parte Evans does not decide that the return mother. Is the stamp duty on the settlement to be calculated on

says that the appointment of a receiver is an equitable delivery in the value of the fund as a reversionary interest, or on the full value execution and equivalent to a return of the sheriff to a writ of as if it were in possession ? I should feel obliged if one of your elegit. readers could enlighten me.

NOTARY. From a consideration of these cases I deduce the following :Oct. 25.

(a.) That “actual delivery in execution ” in the case of an elegit, [On the full amount of the reversionary interest, not on its value at as of a fi. fa., can only be satisfied by an actual going on to the land the time of settlement-see Griffith's Stamp Duties Digest, 8th ed., and delivery of seisin. 105. But we have been unable to discover any other authority for

(6.) That such delivery is perfected in either case without an the rule there laid down, and should be glad to know if any exists.- immediate return to the writ by the sheriff. Ed. 8. J.]

(c.) That, on the authority of Re Duke of Newcastle, registration of the writ before actual delivery in execution is not in “ disaccord

ance (see headnote) with the Act, and that, therefore, a purchaser UNIVERSITY EDUCATION OF SOLICITORS.

may, by searching, discover that which may stop him ere it be too

late. [To the Editor of the Solicitors' Journal.]

(a.) That, in all cases where the writ of elegit or fi. fa. is registered Sir,,With reference to the proposal referred to in Mr. Morrell's in strict conformity, in point of time, with the words of the Act, valuable paper, read at the late provincial meeting of the Incor- searching is absolutely useless for the simple reason that the mischief porated Law Society at York, and to the letter of Dr. Percival, of is done before the writ is on the file. Trinity College, Oxford, to the president of the Incorporated Law

I have only to observe that it will be seen that my view of the law, Society, I beg to refer you to the fact that the objects desired are as based upon the cases I have referred to, is quite opposed to that attained at Cavendish College, Cambridge; which has been estab- laid down in the article alluded to. I shall be glad to be set right if lished for some years to enable students at an early age, and at I am wrong, but I certainly hope I am right.

G. A. C. moderate cost, to take the University degree in arts, law, and medi

London, Oct. 27. cine. The college is well spoken of by all who know it. There is suffi- ible to find space for a replý in detail to his criticisms, but we will refer

[We fear that our correspondent's hope is delusive. It is imposscient supervision over the students, and such other arrangements are made, that parents can with confidence send their lads to the Univer

to the main points raised in his letter. sity at the early age of sixteen to seventeen.

He objects to our statement, at p. 725, that while, as regards the

London, Oct. 25.

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 PURCHASER'S TITLE DEFEATED BY FI. FA.

does not say (as he might have said) that this case is not an authority LTo the Editor of the Solicitors' Journal.1

because it related to elegits; we cited it only as throwing light on what Sir,-Since my return to town. I have been looking up the back (1 T. R. 729), shews that, as between two creditors issuing writs of

was sufficiently proved by the other cases cited. Hutchinson v. Johnson numbers of your journal, and have read with special interest and fi. fa., " the person whose writ is first delivered to the sheriff is attention the articles “Concerning Searches." In your issue of 4th entitled to a priority, and that the goods of the party are bound by September there occurs this passage :-" Purchaser defeated by Fi. the delivery of the writ." Fa.-As before pointed out, the debtor's term (that is, a term of In the case of Re Hobson (34 W. R. 786) there occurs the confusion


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pointed out in our article between the return " to " and the return (but not exceeding the gross amount of the un-
is of” the writ. But the context shews distinctly what was meant. secured liabilities) – viz., £1 on the first £100 or
The judgment distinguishes between delivery in execution and the fraction of £100, and 58. on each $25 or fraction of
return " to " the writ, and points out that the time of making the £25 above £100 up to £5,000, and 28. 6d. on each
return is immaterial. It is clear that the judgment uses the word £25 or fraction of £25 above that amount.
"" to " instead of “of." The form of the return " to " the writ will Every application to the court under sections 18 and 23
be found in Chitty's Practical Forms, p. 427, while the manner of to approve a composition, a fee computed at the
making the return “of” the writ, commonly called returning the following rates on the gross amount of the composi-
writ, will be found at Chitty's Archbold's Practice, p. 815.

tion-viz., £1 on the first £100 or fraction of £100,
The conclusion that our correspondent arrives at, that “actual and 58. on each £25 or fraction of £25 above £100
delivery in execution in the case of an elegit, as of a fi. fa., up to £5,000, and 28. 6d. on each £25 or fraction of
can only be satisfied by an actual going on to the land and £25 above that amount
delivery of seisin, and that such delivery is perfected in either [NOTE.—Where a scheme or composition has not
case without an immediate return to the writ by the sheriff,"

been approved by the court, and a subsequent appears to us to be inaccurate. We confess that, before we had

application is made to the court to approve of considered the subject, we were under the impression that

another scheme or composition, one or other of delivery in execution meant that something was done on the

the above fees (as the case may require) shall be land itself, but we arrived at the conclusion, not only from perusing

charged, less seven-eighths of the fee paid on the cases, but from inquiries made from practitioners of large experi

the first application, and also of any net fee ence, that a creditor to whom land is delivered under an elegit, and a

already paid under Table C.] purchaser of a term of years sold by the sheriff under a fi. fa., only Every application for search other than by petitioner, acquires a right to possession. No doubt in many cases the debtor trustee, bankrupt, or officer of the court

0 1 0 gives up possession without action, but if he chooses to remain in Every application to the court, except by the oficial possession the creditor or purchaser, as the case may be, is put to his receiver action.

Every office copy, each folio of 12 words:

0 We did not, in the article referred to, discuss the question whether On every record of trial

0 & writ of execution can be registered before delivery in execution; or such less sum as the court may specially order. we shall consider this point in a forthcoming article.

Every allocatur by any officer of the court for any costs, We are at a loss to understand why, in our correspondent's opinion, charges, or disbursements, to search for registered executions is useless, because “the mischief Where the amount allowed shall not exceed £4

0 2 0 is done before the writ is on the file." A purchaser wishes to know, Where the amount exceeds £4 for every £2 allowed before he pays his money, whether the vendor can make a good title

or a fraction thereof

0 1 0 to the land sold. If the land has been delivered in execution he Every application to an official receiver to appoint a cannot do so, and it appears to us that if he finds a registered execu special manager or to carry on the business of a tion no mischief is done to him, while on the other band he will be pre

debtor . vented from paying bis money to a person who cannot give him a good Every application by a committee of inspection to the title.-ED. S. J.]

Board of Trade for a local banking account

1 0 Every order of the Board of Trade for a local banking account

2 0 0 Every application by a trustee to an official receiver acting NEW ORDERS, &c.

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

0 10 I, the Right Honourable Hardinge Stanley Baron Halsbury, Lord Every application under section 162 to the Board of High Chancellor of Great Britain, Do, by virtue of the powers vested

Trade for payment of money out of the bankruptcy in me by the Bankruptcy Act, 1883, prescribe that the fees and per

estates account; and every application for the re-issue centages in the scale hereto annexed shall, from and after the 24th

of a lapsed cheque or money order in respect of day of October, 1886, be the fees and per-centages to be charged for

moneys standing to the credit of the bankruptcy
estates account

0 2 6 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- by the official receiver or trustee to the Board of Trade, a fee

On one copy of the cash book, shawing assets realized, forwarded nected with any such court, and in the Board of Trade and any office according to the following scale on the gross amount of the assets public money attached to any such court or to the Board of Trade. connected therewith, and by any officer paid wholly or partly out of realized and brought on credit, viz. : £l on the first £100 or fraction

(Signed) HALSBURY, C.

of £100, and 58. on each £25 or fraction of £25 above £100 up to Dated the 25th day of October, 1886.

£5,000, and 28. 6d. on each £25 or fraction of £25 above that

amount. Provided that, where a fee has been taken on an applicaSCALE OF FEES AND PER-CENTAGES.

tion under sections 18 or 23, seven-eighths of the amount thereof

shall be deducted from this fee.
£ s. d.

Every declaration by a debtor of inability to pay his

On the net assets realized or brought to credit by the official Every bankruptcy notice

5 o receiver, whether acting as interim receiver, receiver, or trustee, Every bankruptcy petition

0 after deducting any sums paid to secured creditors in respect of Every bond with sureties .

0 10 0 their securities and not being assets realized by a special manager or Every affidavit filed (or report of an official receiver in

moneys received and spent in carrying on the business of the debtor, lieu of an affidavit), other than proof of debts.

o and on the net assets realized by an official receiver when acting as Every subpoena or summons under section 27

o trustee to administer a debtor's property under a composition or For taking an affidavit or an affirmation, or attestation,

scheme, after deducting any sums paid to secured creditors in respect upon honour in lieu of an affidavit or a declaration

of their securities, and not being moneys received and spent in except for proof of debts, for each person making the

carrying on the business of a debtor, a percentage according to the

0 1 6 following scale:And in addition thereto for each' exhibit therein

On the first £1,000 or fraction thereof £5 per cent. referred to and required to be marked

1 0

next 1,500 On every proof of debt above £2

2,500 Every petition under section 125 and every order of


2 administration under section 125 (4) of the Act.

Above 10,000 Every special proxy or voting paper :

1 Every receiving order under section 103 of the Act :

On the amount distributed in dividend by the official receiver, when Every application for an order of discharge, including

0 acting as trustee under adjudications, schemes, or compositions, a

per-centage according to the following scale :expense of Gazetting .

1 10 0

On the first £1,000 or fraction thereof £23 per cent. And for each creditor to be notified

next 1,500 Every application to the court under sections 18 and 23 to


13 approve a scheme, a fee computed at the following

5,000 rates on the gross amount of the estimated assets

Above 10,000

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