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PHELPS, CHARLES, Cardiff, Fruiterer, Nov 12 at 12. Off Rec, 3, Crockherbtown,

Cardiff

PURKIS, ALFRED, Landport, Hants, Baker. Nov 11 at 12. Off Rec, 166, Queen

st, Portsea

REYNOLDS, THOMAS HENRY, Durham, Grocer. Nov 9 at 3.30. Three Tuns Hotel,

Durham

ROWE, ROGER, Treorky, Glamorganshire, Boot Maker. Nov 11 at 12. Off Rec,

Merthyr Tydfil

RUST, HENRY JAMES, and EDWARD THOMAS SMITH, Gloucester, Ironmongers.
Nov 9 at 2. Spread Eagle Hotel, Gloucester

SEANOR, SAMUEL EXLEY, Leeds, Hackle Maker. Nov 12 at 11. Off Rec, 22, Park

row, Leeds

SEARLE, GEORGE, Rowbarton, Taunton, Builder. Nov 10 at 11. Off Rec, 9,
Middle st, Taunton

SCOULLAR. JAMES, and DAVID MARSHALL SCOULLAR, Liverpool, Provision Mer-
chants. Nov 12 at 3. Off Rec, 35, Victoria st. Liverpool

SNELL, ALFRED LEGASICK, Llanelly, Carmarthen, Grocer. Nov 11 at 3. Off Rec,

11, Quay st, Carmarthen

STEPHENSON, WILLIAM, York, Cabinet Maker. Nov 11 at 2. Off Rec. York

TAYLOR, GEORGE, Brinnington, Cheshire, Printer. Nov 12 at 12.30. Off Rec.

County chbrs. Market pl, Stockport

TURNER, GEORGE, Old Radford, Nottingham, Carter. Nov 10 at 11. Off Rec, 1,

High pavement, Nottingham

TURNER, ISAAC, Newcastle on Tyne, Traveller. Nov 13 at 10.30. Off Rec, Pink

lane, Newcastle on Tyne

TYSER, EDWARD HAYES, Gorleston, Suffolk, Draper. Nov 12 at 12. Off Rec, 8,

King st, Norwich

WARDLE, ROBERT WINLOW, Jarrow on Tyne, Durham, Builder. Nov 12 at 11.

Off Rec, Pink lane, Newcastle on Tyne

WEBB, ALFRED ISAAC, Buckingham, Shoe Maker. Nov 12 at 11.30. Off Rec, 1,

St Aldates. Oxford

The following amended notice is substituted for that published in the

London Gazette of Oct. 26.

MARKE, ROBERT, Shirland mews, Paddington, Cab Proprietor. High Court.

Pet Oct 11. Ord Oct 29

MASON, JOHN FRANCIS, Nottingham, Jeweller. Nottingham. Pet Oct 27. Ord

Oct 28

MEDWIN, LESLIE ALLEN, Ladbroke gr, Notting hill, no occupation. High

Court. Pet Oct 27. Ord Oct 29

MORRIS, WILLIAM, Lincoln, Cattle Dealer. Lincoln. Pet Oct 30. Ord Oct 30

MOUNSTEPHEN, WILLIAM JAMES, Torquay, Builder. Exeter. Pet Oct 26. Ord

Oct 28

MUNDAY, THOMAS, Shoreham, Sussex, Potato Merchant. Brighton. Pet Oct 26.

Ord Oct 29

NISBECK, GEORGE, Pontymister, Mon, Grocer. Newport, Mon. Pet Oct 18.

Ord Oct 29

PARRY, JOHN, Britonferry, Glamorganshire, Moulder. Neath. Pet Oct 23. Ord

Oct 28

PAYNE. JOHN, Stone, nr Dartford, Bootmaker. Rochester. Pet Oct 19. Ord

Oct 28

PETERS, ANDREW, Tir Phil, Glamorganshire, Carpenter. Merthyr Tydfil. Pet

Oct 27. Ord Oct 29

PRICE, JOSHUA CHARLES, Cardiff, Grocer. Cardiff. Pet Oct 26. Ord Oct 30

PULMAN, LEWIS, Halifax, Grocer. Halifax. Pet Oct 27. Ord Oct 27

RANKIN, FRANCIS WILLIAM, Worcester pk, Surrey, Gent. Croydon. Pet Aug 25.

Ord Oct 27

REED, WILLIAM, Waddon New rd, Croydon, Baker. Croydon. Pet Sept 30.

Ord Oct 28

ROBERTS, THOMAS, Bryngwran, Anglesey, Tanner. Bangor. Pet Oct 5. Ord

Oct 28

ROBERTS, WILLIAM HENRY, Coleman st, Solicitor. High Court. Pet July 13.

Ord Oct 30

RowE. ROGER. Treorkey, Glamorganshire, Boot Maker. Pontypridd. Pet

Oct 26. Ord Oct 28

SMITH, DANIEL, Temple Sowerby, Westmoreland, Clerk in Holy Orders. Kendal.

Pet Oct 12. Ord Oct 30

SNELL, ALFRED LEGASICK, Llanelly, Grocer. Carmarthen. Pet Oct 26. Ord

Oct 30

STEPHENSON, WILLIAM, York, Cabinet Maker. York. Pet Oct 29. Ord Oct 30

STRASSMAN, JULIUS, Milton bldgs, Watling st, Trimming Maker. High Court.

Pet Oct 23. Ord Oct 30

THOMAS, BENJAMIN, Llanstephan, Carmarthenshire, Chemist. Carmarthen. Pet

Oct 12. Ord Oct 28

THOMAS, GEORGE LLOYD, Newport, Mon, Draper. Newport Mon. Pet Oct 20.

CLEAVER, CHARLES GEORGE, Tanner st, Bermondsey, Leather Merchant. High

Court. Pet Oct 21. Ord Oct 29

CRANE, WILLIAM, Broadway, Westminster, Licensed Victualler. High Court.

Pet Oct 21. Ord Oct 30

CRUTCHLEY, HENRY HARDING, Kington, Herefordshire, Licensed Victualler.

Leominster. Pet Oct 22. Ord Oct 28

DANIEL, THOMAS, Aberdovey, Merionethshire, Ironmonger. Aberystwith. Pet

Oct 5. Ord Oct 29

DAVIES, BENJAMIN, Carmarthen, Licensed Victualler. Carmarthen. Pet Oct 12.

Ord Oct 29

DAVIES, EVAN, and WILLIAM WILLIAMS. Pencoed, nr Bridgend, Colliery Proprie-

tors. Pontypridd. Pet Sept 6. Ord Sept 29

EASTERBROOK, WALTER, and GEORGE HENRY HANNAFORD, The Terrace, Chis-

wick, Signal Makers. Brentford. Pet Aug 3. Ord Oct 26

EBDY, EDMUND JOHN BATTENSBY, Hartlepool, Steamship Manager. Sunderland.

Pet Oct 23. Ord Oct 28

EDEN, ROBERT WILLIAM, Bedford, Furrier. Bedford. Pet Oct 29. Ord Oct 30

EVANS, THOMAS ARTHUR, Newtown, Montgomeryshire, Provision Dealer. New-

town. Pet Oct 14. Ord Oct 29

FAUNTLEROY, ROBERT, address unknown. High Court. Pet Aug 4. Ord Oct 28

FUNK, HENRY, Commercial rd, Grocer. High Court. Pet Sept 7. Ord Oct 29

GALBRAITH, JOHN JAMES, Walton, nr Liverpool, Grocer. Liverpool. Pet Oct 5.

Ord Oct 29

GAMLIN, WILLIAM, Birkenhead, Gardener. Birkenhead. Pet Oct 27. Ord Oct 29

GARDNER, ARTHUR GILL, Leeds, Traveller. Leeds. Pet Oct 28. Ord Oct 28

GARRETT, FRANK, Tredington, Worcestershire, Farmer. Banbury. Pet Oct 14.

Ord Oct 28

HALLILEY, ROBERT THOMAS, York, Boot Dealer. Manchester. Pet Oct 6. Ord

Oct 30

HURN, JAMES, Bristol, Clerk of Works. Bristol. Pet Oct 20. Ord Oct 28

JACKSON, FREDERICK JOHN, Willenhall, Staffe, Grocers' Assistant. Wolver.

hampton. Pet Oct 26. Ord Oct 29

JOHNSON, JAMES, Ashbury, Berks, Cattle Dealer. Swindon. Pet Oct 14. Ord

Oct 30

JONES, WILLIAM GRIFFITH, Bethesda, Llanllechid, Carnarvonshire, Auctioneer.

Bangor. Pet Sept 22. Ord Oct 29

JORDAN, GEORGE, Wing, Buckingham, Shopkeeper. Luton. Pet Oct 25. Ord

Oct 28

KNIGHT, HENRY, Rushall, Stafford, Builder. Walsall. Pet Oct 6. Ord Oct 28

LANGFORD, CHARLES JOSIAH, Halifax, Tea Dealer. Halifax. Pet Oct 28. Ord

Oct 29

LEACH. WILLIAM, West Monkton, Somerset, Innkeeper. Taunton. Pet Oct 25.

Ord Oct 29

FEE, TWO GUINEAS, for a sanitary inspection and report on a London dwelling-
house. Country surveys by arrangement. The Sanitary Engineering and Venti-
lation Company, 115, Victoria-street, Westminster. Prospectus free.-[ADVT.
FURNISH ON NORMAN & STACEY'S HIRE PURCHASE SYSTEM; No Deposit ;
1, 2, or 3 years; 60 wholesale firms. Offices, 79, Queen Victoria-street, E.C.
Branches at 121, Pall Mall, S. W., and 9. Liverpool-street, E.C.-[ADVT.

SALE OF ENSUING WEEK.

Nov. 10.-Messrs. EDWIN Fox & BOUSFIELD, at the Mart, at 2 p.m., New River
Shares and Property (see advertisement, Oct. 30, p. 4).

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44

34

47

In the Solicitors' Journal.

Janes Hickie (Deceased), Re, Hickie

v. Colmer

Blaiberg v. Beckett

Lord Petre, Re. Lord Petre v. Petre 46

Coode v. Johns

Mills' Estate, Re

Mowatt v. Castle Steel and Iron

works Co.

..........

Scarlett, Re

Hall v. Comfort

The Barangah Oil Refinery Co., Re 46

The Medical Attendance Assurance Association, Re

The Newport (Monmouth) Slipway, &c., Co. v. Paynter

45

The Oxford Building and Investment Society, Re

Sailing Ship "Garston" Co. V. Hickie, Borman, & Co.

33

46

Wilson and Green, In re

Hughes v. Little

Luddy's Trustee v. Peard

Ross v. Army and Navy Hotel Co. (Limited)

37

A QUESTION was raised this week, before Mr. Justice BUTT, as to the interpretation of one of the provisions of the Guardianship of Infants Act, 1886, which we discussed in our recent articles. Section 7 provides that "in any case where a decree for judicial separation, or a decree either nisi or absolute for a divorce, shall be pronounced, the court pronouncing such decree may thereby declare the parent by reason of whose misconduct such decree is made to be a person unfit to have the custody of the children (if any) of the marriage; " in which case, the parent declared to be unfit is not to be entitled, as of right, to the custody or guardianship of the children upon the death of the other parent. In a suit 43 in which a wife had obtained a decree nisi for dissolution of marriage on the ground of her husband's adultery and cruelty, the petitioner's counsel applied to the court, while making the

48

36

44

40

The Solicitors' Journal and Reporter.decree absolute, to pronounce a declaration, under section 7 of the

LONDON, NOVEMBER 13, 1886.

CURRENT TOPICS.

MR. ARTHUR KEKEWICH, Q.C., has been appointed a judge of the High Court of Justice in the place of Vice-Chancellor BACON. The new judge was called to the bar at Lincoln's-inn in 1858, and for many years had a large junior practice, particularly in connection with the Bank of England. He took silk in 1877, and has recently practised in the court of Mr. Justice Kay.

WE MAKE the above announcement with a regret which we feel sure will be shared by the profession. In spite of our appreciation of the many merits which distinguish the new judge in his private and personal capacity, we are bound to say that neither his rank in the profession nor his attainments or characteristics as a lawyer are such as to mark him out for selection as a judge of the High Court.

THE ARRANGEMENTS consequent on the resignation of Vice-Chancellor BACON and the appointment of the new judge will be as follows:-The chamber work, Chief Clerks, and causes of ViceChancellor BACON will be transferred to Mr. Justice KAY, and those of Mr. Justice KAY will be taken over by Mr. Justice STIRLING, whose causes will be transferred to Mr. Justice KEKEWICH.

AN ORDER to transfer forty actions from Mr. Justice KAY, thirty from Mr. Justice CHITTY, and thirty from Mr. Justice NORTH to Mr. Justice STIRLING, for the purpose only of trial or hearing, was in course of preparation, but the transfer will now be made to Mr. Justice KEKEWICH.

ever

PROBABLY NO more dramatic judicial retirement was witnessed than that of Vice-Chancellor BACON, and certainly no scene was ever less sought or prepared for. Though the learned judge had some time before intimated to the Lord Chancellor his desire to retire, the secret was so well kept that we believe neither bench, bar, nor officers of the court knew anything of the impending event until a few hours-in most cases less than an hour before it occurred. The Vice-Chancellor's list appeared the evening before with but one part heard case, but this was ascribed to some engagement rendering it necessary for him to rise early, and it was not until Wednesday morning that the news spread through the Royal Courts that the learned judge was about to take his farewell. The expression of respect and affection which followed was so sudden and absolutely spontaneous that the Attorney-General, in conveying to the Vice-Chancellor the good wishes of the bar, explained that he had but a moment ago heard that the duty would fall on him. The duty, nevertheless, was well discharged, and no farewell from the bench has been more impressive than the modest and touching reply of the Vice-Chancellor. We have noticed elsewhere some of those characteristics of the learned judge which have most frequently attracted the attention of that most cynical of all bodies, the bar, but it should be added-if, indeed, after the recent demonstration, it is necessary to add it-that, even among them, the eager relish for the Vice-Chancellor's "latest" was always mingled with unfeigned respect and affection for the vigorous old man, who at long over eighty years of age was still a match for the keenest intellects

at the bar.

Act, of the respondent's unfitness to have the custody of the only child of the marriage. Mr. Justice BUTT expressed an opinion that the words "the court pronouncing such decree" referred only to the judge before whom, and the time when, the suit was tried, and that therefore the application was too late. It appeared, however, that the decree niei was pronounced before the passing of the Act, and the case ultimately stood over to enable the petitioner to file affidavits in support of the motion. Looking to the words "a decree either nisi or absolute," it certainly seems difficult to infer that the court is functus officio before the decree has been made

absolute.

WE REPORT elsewhere an important decision of the Court of Appeal (Re Mills's Estate) relating to the extent of the jurisdiction over costs which is given to the court by R. S. C., 1883, LXV., 1, which provides that, "subject to the provisions of the Acts and these rules, the costs of, and incident to, all proceedings in the Supreme Court shall be in the discretion of the court or judge." The corresponding rule 1 of order 55 of the R. S. C., 1875, was to the same effect. The question was whether this rule enables the court to give costs in a case in which, before the Judicature Act, it would have had no jurisdiction to do so, or whether it only regulates the exercise of the jurisdiction over costs which existed before the Judicature Act. In Ex parte Mercer's Co. (27 W. R. 424, 10 Ch. D. 481), JESSEL, M.R., adopted the former view, and held that the court had power to order a public body to pay the costs of the petition for the payment out of court of money which had been paid in as the purchase-money of land taken by the public body under the provisions of a special Act with which the Lands Clauses Act was not incorporated, and which did not provide for the payment of those costs, and that decision has since been followed in many cases in the High Court, though the point had not, before the recent case, been actually decided by the Court of Appeal. The court held that the true construction of ord. 65, r. 1, was that it was only intended to regulate the mode in which costs were to be dealt with where the court had, either by Act of Parliament or independently, power to deal with costs.

REFERRING LAST WEEK to the expense of obtaining the special licence necessary to enable a Queen's Counsel to defend a prisoner, we remarked that at the close of the last century it was about £9, and we asked for information as to the cost at the present day. One correspondent tells us that, before the recent change, the cost was a guinea, composed of 10s. 6d. to the Queen's Counsel's clerk and 10s. 6d. to the official at the Home Office. Another correspondent has furnished information as to the procedure to be adopted under the new regulations. He states that, since the abolition of the necessity for the Queen's signature of the licence, no fee is payable at the Home Office. The procedure is as follows:-Prepare a petition to the Secretary of State for the Home Department, on foolscap, setting out that A. B. has been committed to take his trial at the ensuing Winter Assizes, to be holden (e.g.) in and for the county of Southampton at Winchester, on a charge of felony (or conspiracy, &c., &c.), and that he is desirous of having the services of Mr. X., Q.C., for the conduct of his defence. Pray that a licence may be granted Mr. X., Q.C., accordingly. Take the petition to the

Solicitor for the Treasury, and he will (unless he has retained Mr. X.) mark upon it that he has no objection to the licence issuing. Then take the petition thus marked to Room 54 at the Home Office, and ask for the licence, which will be at once made out and handed to you.

THE SHOCK which Mr. Justice KAY sustained on hearing that, in consequence of a mistake, the sum of £1,000 had been, in pursuance of an order made by him, paid out of court to a person who had no title whatever to it, will affect many besides the learned judge. The mistake, as described by him in court on the 6th inst., was one of a character which the late Master of the Rolls was so careful to guard against. Sir GEORGE JESSEL would never be satisfied with a copy of a document, but always called for the original, and it will be in the recollection of many of our readers that on a certain occasion, when sitting in the Court of Appeal, he discovered by means of the probate of a will, that certain words which had been omitted from a copy, taken many years previously, had been omitted from all succeeding copies of that copy, and that, in consequence, an annuity of a large amount had for many years been paid which was not in fact payable. The mistake referred to by Mr. Justice KAY was of a similar character, and arose from a copy of a copy being used, in which there was an omission of a few important words. The learned judge expressed a desire, and in fact directed, that in future every petition seeking for payment of a fund out of court should contain a verbatim extract, marked with inverted commas, of the clause of the will or settlement under which the parties claim. The effect of the discovery of the mistake was to protract very considerably the business of Mr. Justice KAY's court on Saturday, for he carefully examined the evidence, in each case calling for original documents, and going through them critically.

THE REMARKS We made last week on Lord Justice FRY's condemnation of the practice of entering affidavits in an order as having been read which in fact were never read to the court, received, in some respects, a singular confirmation in the course of an appeal in White v. Peto, heard before a division of the Court of Appeal of which Lord Justice FRY was himself a member. The court rejected, almost with contempt, the argument that a judge could not have exercised a judicial discretion in making an order of reference under section 57 of the Judicature Act, 1873, because he did not hear the affidavits read, but acted on the statement of the plaintiff's counsel, which was assented to by the defendant's counsel, that the evidence was conflicting. It was "every-day practice," said Lord Justice COTTON, "for a judge to ask counsel whether his affidavits answered the case made by the other side, and if counsel replied that he could not say that they did, it would be wrong for the judge to require the affidavits to be read at length. It would entirely destroy the mode in which business was conducted in the English courts in reliance on the statement of counsel." The question we desire to repeat is, How an order in such a case can be drawn up without stating as read the evidence on which the order is based, and which Lord Justice COTTON expressly says ought not to be read at length to the court?

THE LORD CHANCELLOR, in his speech at the Mansion House on Tuesday, dropped a remark obviously intended to allay the not unreasonable apprehensions to which the stress previously laid on the cheapening of land transfer has given rise. He is reported to have

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Any future legislation which enables people to deal with their own in any way they may please without uudue restriction and without undue expense is calculated to add to our advantages as a community. I believe that if passed in that spirit legislation is possible and is desirable, but I do not believe, and I wish to state my belief expressly upon the point, that any legislation which has for its object to deprive a man of any right without giving him compensation for what is taken from him is neither desirable nor likely to promote the harmony and the welfare of this great empire. In our future legislation we must proceed upon the lines of respecting the rights of all."

These words will be remembered by the profession when the time comes for discussing the promised scheme for facilitating and cheapening land transfer.

ON THE FORM OF MORTGAGE BILLS OF SALE. I.

THE very large number of cases that come before the courts where the question in dispute is whether a bill of sale given to secure money is valid or invalid, shews the profession that there are still some points which are doubtful even to the minds of We do not wonder at this being lawyers in considerable practice. the case, as there cannot, we believe, be found in the whole statute-book such ill-drawn Acts as the Bills of Sale Acts, 1878 and 1882 (41 & 42 Vict. c. 31, 45 & 46 Vict. c. 43). In these articles we shall confine ourselves to the discussion of the form of bills of sale given as security for money, and when we use the phrase "bill of sale," we shall only mean a bill of sale given for that purpose "by the grantor thereof."

In accordance with the form in the schedule.-The Bills of Sale Act, 1882, provides (section 9) that "a bill of sale made or given by way of security for the payment of money by the grantor thereof shall be void unless made in accordance with the The meaning form in the schedule to this Act annexed." of this section was much discussed in Ex parte Stanford, Re Barber (34 W. R. 507, 17 Q. B. D. 259), where the judgment of Lord Esher, M.R., and of Cotton, Lindley, Bowen, and Lopes, L.JJ., states that "a bill of sale is surely in accordance with the prescribed form if it is substantially in accordance with it—if it does not depart from the prescribed form in any material respect. But a divergence only becomes substantial or material when it is calculated to give the bill of sale a legal consequence or effect either greater or smaller than that which would attach to it if drawn in the form which has been sanctioned, or if it departs from the form in a manner calculated to mislead those whom it is the object of the statute to protect. In estimating the effect of a divergence, one must not take into consideration for a moment the provision of section 9, that the bill of sale, if it varies from the rial variation can, in the end, have any legal effect at all. To form, is to be void; for, owing to this statutory penalty, no matesuppose, for example, that a bill of sale can be brought back into harmony with the statutory form by the mere addition of a proviso that all covenants or conditions at variance with the take the form, interpreted by the light of the Act, on the one statutory form are to be disregarded, would be absurd. We must hand, the instrument to be discussed upon the other; and we must then consider whether, but for the avoidance inflicted by section 9 of the statute, the instrument, as drawn, will, in virtue either of addition or omission, have any legal effect which either goes beyond or falls short of that which would result from the statutory form, or whether the instrument, in respect of such benefit the statutory form is providod. If so, the variance is variance, would be calculated reasonably to deceive those for whose material, and the bill of sale is not in substantial accordance with the statutory precedent. Whatever form the bill of sale takes, the form adopted by it, in order to be valid, must produce, not merely the like effect, but the same effect that is to say, the legal effect, the whole legal effect, and nothing but the legal effect-which it would produce if cast in the exact mould of the schedule. Such a test as this contains no element of uncertainty, is one which every lawyer throughout the kingdom is competent to apply, and is based upon a method of interpretation familiar to our courts. This is the construction we are prepared to put upon the section, and we proceed accordingly to inquire on which side of the line the bill of sale before us falls if this test is to be applied."

The opinion expressed in some of the earlier cases, eg., by Brett, M.R., in Melville v. Stringer (13 Q. B. D., at p. 397)," that bills of sale must be in a form which is sufficiently simple, in the first place, for a borrower of ordinary understanding to know the nature of the security he had given for his debt; and, secondly, for a new proposed creditor to understand at once on searching the register and without taking counsel's opinion as to the meaning of the security and the true position of the borrower" can hardly now be considered to be correct, the true question being, "Is the bill of sale substantially in accordance with the prescribed

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What instruments must be in the prescribed form.-The expression "bill of sale" as defined in the Bills of Sale Act, 1878, which is incorporated in the Act of 1882, includes some instru

ments which, from their nature, cannot possibly be expressed in the prescribed form-for example, a licence to seize personal chattels as security for a debt is a "bill of sale" within the definition contained in the Act of 1878. It is obviously impossible to express it in accordance with the form prescribed by the Act of 1882. It might be thought that, as the law requires no man to do an impossibility, the user of the statutory form might be dispensed with in cases of this nature; but this view is erroneous, and every such instrument "given by way of security for the payment of money by the grantor thereof" not made in accordance with the statutory form is absolutely void: Ex parte Parsons, Re Townsend (34 W. R. 329, 16 Q. B. D. 532), and per Lopes, L.J., Myers v. Elliott (16 Q. B. D., at p. 530).

On the other hand, a document given to secure money, which is not a bill of sale as defined by the Act of 1878, need not be in the form prescribed by the Act of 1882. This has been decided -first, where the document fell within the exception to the 4th section of the Act of 1878: Re Hall, Ex parte Close (33 W. R. 228, 14 Q. B. D. 386); Re Cunningham (33 W. R. 387, 28 Ch. D. 682); see the remarks on these cases in the judgment in Ex parte Parsons (16 Q. B. D. 532); and, secondly, where the transaction was really the pledge of goods, and the document was a contemporaneous instrument signed by the pledgor recording the transaction and stating the rights of the pledgee as to selling the goods: Ex parte Hubbard, Re Hardwick (W. N., 1886, 153, 30 SOLICITORS' JOURNAL, 690), reversing the decision of the Divisional Court (34 W. R. 790).

Avoidance in toto. A question of some difficulty was decided in Davies v. Rees (34 W. R. 573, 17 Q. B. D. 408). In that case a bill of sale was decided to be void as not being in accordance with the prescribed form; and the question arose whether a covenant contained in it for payment of principal and interest was also void. It was argued that the covenant was not part of the bill of sale properly so called, and that, therefore, it might be good though the bill of sale itself was void. But it was held that, as the prescribed form of bill of sale contained a covenant for payment of principal and interest, such a covenant was an integral part of the bill of sale, and, accordingly, that, as the bill of sale was void, the covenant was void also.

It has been contended by Mr. White, in a paper read before the Provincial Meeting of the Incorporated Law Society in 1886 (see 30 SOLICITORS' JOURNAL, 821), that a mortgage of land containing the common attornment clause is a bill of sale within the Act of 1882 (see the Act of 1878, s. 6), and that therefore the covenant for payment, if not the whole instrument, is void as not being in the prescribed form. This contention is somewhat startling, and we need not say that the strong leaning of the court will be to uphold the instrument as a mortgage of land, declaring the attornment clause alone to be void. It must be remembered that, as pointed out by Bowen, L.J., in Davies v. Rees (17 Q. B. D. at p. 411), "under the apparent form of a single agreement or covenant, written on one piece of paper and signed with one seal, you may have several independent contracts or obligations, and in such a case we must take care that the fall of one of these covenants or obligations does not drag the others with it. When an Act makes one thing void, we must see that we do not destroy independent obligations merely because they are contained in the same piece of paper, or because apparently they hang together." A mortgage of land containing an attornment clause consists of two independent contracts the mortgage of the land and the mortgage of the chattels seized under the power of distress conferred by the attornment. Granting that the latter clause is void, and that, if it stood alone, the covenant for payment would be void with it, there appears little reason to fear that the covenant would not be supported as being part of the common form of a mortgage of land.

Since the preceding paragraph was written Hall v. Comfort (31 SOLICITORS' JOURNAL, 29) has been reported. In that case a mortgage by demise contained an attornment clause, and the mortgage was upheld; Coleridge, C.J., saying, "The Bills of Sale Acts did not include such an attornment as that in this deed. Certain rights were attached by the law to the relation of landlord and tenant, and among them was the right under certain limitations to seize all the property on the demised premises. Such property could not be brought into a schedule." It will be observed that the necessary short report of this case renders it doubtful whether the remarks of Coleridge, C.J., were intended to apply solely to the

case where the mortgage was by demise, or whether they would also apply to the case of a mortgage in fee and to the tenancy created by the attornment. The full report of this case will be looked for with much interest by the profession.

Contemporaneous Instruments.-It is a general rule of construction that all instruments relating to the same subject-matter and forming part of the same transaction must be construed together: see E. N. & C. Interp., p. 7. Attempts have been made to evade the Act by executing and registering a bill of sale in the prescribed form and executing a contemporaneous instrument containing other terms agreed upon between the parties. The bill of sale will, in this case, generally be void for the following reasons-First, it is void as to the personal chattels comprised in it under section 8 of the Act of 1882 because it does not truly state the consideration, part of which is contained in the unregistered instrument: Simpson v. Charing Cross Bank (34 W. R. 568); secondly, it is void as to the personal chattels comprised in it under section 8 of the Act of 1882 because part of it is not registered: Ex parte Odell, Re Walden (27 W. R. 274, 10 Ch. D. 76), Cochrane v. Matthews (10 Ch. D. 80n), cases decided under the repealed Act of 1854; thirdly, it is wholly void under the 9th section of the Act of 1882 because the whole of it is not, though part of it is, in the prescribed form: Lee v. Barnes (24 W. R. 640, 17 Q. B. D. 77), where the bill of sale contained a covenant to perform the covenant contained in a recited indenture; fourthly, it may be void as to the personal chattels comprised in it because it is subject “to a defeasance, condition, or declaration of trust not written on the same paper or parchment," so that the registration is void under section 10, sub-section 3, of the Act of 1878: see the cases collected in Ex parte Popplewell, Re Storey (21 Ch. D. 73).

Cases like Ex parte National Mercantile Bank, Re Haynes (15 Ch. D. 42) where it was held that an agreement as to the application of the money advanced on the security of a bill of sale under the Act of 1878 need not be set forth, cannot safely be relied on as authorities for the construction of the Act of 1882.

Another plan has been devised for attempting to evade the Act namely, by a sale to the lender and a demise back to the borrower, as in North Central Wagon Co. v. Manchester, Sheffield, and Lincolnshire Railway Co. (34 W. R. 430, 32 Ch. D. 477), but in this case the transaction is invalid for all the reasons stated above, if any part of it is carried out by a writing. If no writing is employed the transaction would not fall within the Act, and its validity would depend upon other considerations that do not fall within the scope of these articles.

CONCERNING SEARCHES.
(XIV.) JUDGMENTS.

II. THE MODERN LAW OF JUDGMENTS. THE law remained unaltered down to the present reign, when the statute 1 & 2 Vict. c. 110 was passed "for extending the remedies of creditors against the property of debtors." The first report of the Real Property Commissioners of 1829 (p. 59) had expressed their opinion that "the law appears very objectionable, whether regard be had to the complicated and dilatory relief afforded by elegit, or to the continuing effect of dormant judgments, which render the land often in effect unsaleable, and add to the expense and risk of every transfer"; and the witnesses examined by the commissioners complained that the law was obscure and unsatisfactory; that it imposed upon solicitors a liability which it was often impracticable for them to discharge; and that the searches involved so much expense and trouble as to be extremely onerous, and yet failed to ensure the security of purchasers (1st Rep. Appx., pp. 159, 445, 447, 454, 628, 630).

Legal execution under 1 & 2 Vict. c. 110, s. 11.-By this section the creditor, under a judgment recovered in an action in any of the superior courts at Westminster, is enabled to obtain delivery in execution under an elegit of the whole of the debtor's interest, instead of, as under the old law, a moiety only; and of lands of copyhold or customary freehold tenure as well as freeholds and leaseholds. This provision applies to all "lands, tenements, rectories, tithes, and hereditaments of which the debtor, or any person in trust for him, is 'seised or possessed' (these words do not include a remainder: 9 Ch. 373) at the time of entering up the

judgment, or at any time afterwards, or over which the debtor has any disposing power which he might, without the assent of any other person, exercise for his own benefit."

The operation of an appointment in overreaching judgments entered up against the appointor since the creation of the power (ante, p. 4) is thus at an end, for the judgment is in effect an execution of the power pro tanto in favour of the creditor; but (Sugd. Conc. V. 392) this is subject to the protection given by 2 & 3 Vict. c. 11, s. 5 (post), to purchasers without notice. The disposing power referred to in this section includes the power of a joint tenant to sever the joint tenancy; but it has been questioned whether it includes the power of a tenant in tail to bar issue and remaindermen; and the opinion of Lord St. Leonards was that it does not, though section 13 does: Sugd. V. & P., 14th ed, 526. Under this section (11) lands are bound as against the debtor from the entering up of the judgment; but it must be read in connection with section 19 (post), by virtue of which they are bound as against purchasers only from the date of registration of the judgment. The section enabled legal execution by elegit to be enforced against terms of years, and (under section 19) they became bound as against purchasers from registration of the judgment, whereas under the old law (ante, p. 4) they were not affected until delivery of the writ of execution to the sheriff; but the effect of 2 & 3 Vict. c. 11, s. 5 (post), is that, as against purchasers without notice, the old law remained in force (Westbrook v. Blythe, 3 E. & B. 737). And it may be noted here that if the term goods" in 19 & 20 Vict. c. 97, s. 1, were held to include chattels real (as the same term in the Statute of Frauds, s. 16, was held to include them) terms of years were not bound after 19 & 20 Vict. until actual seizure. There seems to be no ground for excluding equitable interests in terms of years from the operation of 1 & 2 Vict. c. 110, s. 11, though it has been contended (see ante, p. 4) that they were not within the 10th section of the Statute of Frauds. Under 1 & 2 Vict. c. 110, as under the old law (ante, p. 4), lands of which the debtor is equitable owner can be delivered in legal execution only where there is a simple trust for him, and he has the whole beneficial interest (Digby v. Irvine, 6 Ir. Eq. R. 149). It should be observed that the statute binds equitable interests as from entry of judgment, or as against purchasers from registration, instead of as under the old law (ante, p. 4) from execution issued.

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Charge in Equity under 1 & 2 Vict. c. 110, s. 13.-By this section a judgment entered up in the superior courts at Westminster is to operate as a charge upon all lands, &c., belonging to the debtor at the time of entering up (as against purchasers section 19 substitutes the time of registration of) the judgment, or at any time afterwards "for any estate or interest whatever, at law or in equity, whether in possession, reversion, or expectancy," or over which he has a general disposing power (described as in section 11); and it is to bind all persons claiming under him after such judgment, and also the issue of his body, and all other persons whom he might bar without the assent of any other person. The creditor is to have the same remedies in a court of equity as he would have had if the debtor had, by writing under his hand, agreed to charge the hereditaments with the amount of the judgment debt and interest; but such charge is not to be enforced in equity until the expiration of one year from entry of judgment. The section concludes with a proviso that nothing therein contained shall alter or affect any doctrine of equity protecting purchasers for value without notice. There is thus protection to purchasers without notice so far as regards the additional remedies given by section 13; but section 11 gave no such protection, and they therefore remained liable to execution by elegit (see post, 2 & 3 Vict. c. 11; Sugd. Conc. V. 387).

The words of section 13 are wider and more general than those of section 11, and include many estates and interests which are not within that section (8 Eq. 705). And while equitable executions under the old law only gave a right to take possession and receive the rents and profits (see ante, p. 24), the section now under consideration gave a new right to the creditor, enabling him to obtain satisfaction out of the corpus of the property, and for that purpose to realize it by a suit in equity (Pratt v. Ball, 11 W. R. 82, 295, 4 Giff. 117).

It remained open to the creditor, in cases where there was any impediment to legal execution under section 11, to file a bill (without waiting for the expiration of the year to entitle him to

his new remedy under section 13) claiming relief under the old jurisdiction in equity, whereby he could obtain receipt of the rents and profits (see ante, p. 24; 1 Coote Mort. 66); but for this purpose it would formerly, as we have seen, have been necessary to issue a writ of elegit (though not so in a proceeding under section 13: 1 Coote Mort. 66). By a series of decisions since the Judicature Acts it has been settled that this formality is no longer necessary, and also that a new action need not be instituted, for the court can appoint a receiver in the original action after judgment (Smith v. Cowell, 6 Q. B. D. 75), although the plaintiff has not expressly claimed a receiver by his statement of claim (Salt v. Cooper, 16 Ch. D. 544).

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Section 13 is discussed in Harris v. Davison (15 Sim. 133); Beavan v. Earl of Oxford (6 De G. M. & G. 521, 530); Whitworth v. Gaugain (1 Ph., at p. 734; foll., 3 Ha., at p. 429): see Sugd. Conc. V. 386; Eyre v. M'Dowell (9 H. L. C. 612, 651). From these authorities it appears that its effect is not only to make a judgment attach upon property which formerly was not bound by it, but also to give it the effect of an express charge; it becomes a specific incumbrance, an equitable estate (Rolleston v. Morton, 1 Dr. & War. 195). But although it may affect a greater extent of property belonging to the debtor, there is nothing to vary the equities to which the property may be liable. The whole beneficial interest which the debtor may have in the property is bound, not the beneficial interest which a stranger may have in it" (1 Ph. 735)—i.e., the rule (discussed above, p. 4) still obtains that the creditor can take only that which really belongs to his debtor. The result is that the creditor is not to be put to the same inconvenient and circuitous mode of making his judgment available to which he was driven before the statute; but the words as to the charge, when coupled with the prior part of the section, refer only to land of which the debtor has an absolute power of disposing as he thinks fit for his own benefit (6 De G. M. & G. 521, 530; see and consider the judgment of Erle, J., in Watts v. Porter, 3 E. & B. 743, 758; approved in Beavan v. Earl of Oxford, 6 De G. M. & G. 492, 507).

What are judgments ?-By 1 & 2 Vict. c. 110, s. 18, all "decrees and orders of courts of equity," and all rules of "courts of common law," and orders in bankruptcy and lunacy "whereby any sum of money or any costs, charges, or expenses shall be payable to any person," are to have the effect of judgments in the superior courts of common law. Before the statute a decree in equity gave no right against the land (see 3 Prest. Abst. 354; Lee v. Green, 4 W. R. 270, 6 De G. M. & G., at p. 168; Nortcliffe v. Warburton, 10 W. R. 635; 1 Dan. Ch. Pr., 6th ed., 925). As to what are decrees, &c., within this section, see Dart, 466; Shelf. R. P. Stat. 590; Seton, 1142, 1143. "The principle of the decisions," said Kindersley, V.C. (Garner v. Briggs, 27 L. J. Ch. 483), "subject to exceptional cases with respect to judgments at law, is this:-To constitute a judgment debt, the judgment must not be interlocutory, but final, for the payment of specific sum of money, upon which there is nothing left to be done except to compute interest, and the party must also have an actual right to receive the money." Since the Judicature Acts the judgments and orders of all divisions of the High Court (which includes the Bankruptcy Jurisdiction: Bankruptey Act, 1883, s. 93) must be taken to be on the same footing; and in the Judicature Act, 1873, s. 100, "judgment" includes decree, and "order" includes rule. Judgments of palatine and county courts, and Scotch and Irish judgments will be dealt with hereafter.

a

Observe that the decrees, orders, and rules spoken of in this section are those of "courts of equity" and "courts of common law" generally, and not merely those of the High Court of Chancery and the superior courts at Westminster.

With regard to the case of Reeve v. Fowle, in chambers, reported ante, p. 29, it should be stated that, on the 4th inst., a divisional court of the Queen's Bench Division granted a rule absolute for a prohibition against the county court judge.

The Berlin correspondent of the Times says that the German civil code, on which a commission of eminent jurists has been labouring for some years back, is now rapidly approaching completion, only the section relating to the law of inheritance remaining now to be dealt with. The empire has already-since 1879--a criminal and commercial code, as well as a uniform system of legal procedure, and now the national unity, as far at least as law is concerned, is soon to receive the coping

stone.

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