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The rules which have been laid down are professedly based upon the principle that the costs of administration must be defrayed in such a manner as not to defeat the intentions of the testator (Eyre v. Marsden, 1839, 4 My. & Cr., at p. 243). The first rule is, therefore, that

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(1) The testator's express directions as to the fund out of which administration costs are to be paid must be observed. Hence, real or leasehold property which a testator has charged with payment of his "testamentary expenses," in exoneration of his personal estate, must bear the whole costs of administration (Morrell v. Fisher, 1851, 4 De. G. & Sm. 422; Harloe v. Harloe, 1875, 23 W. R. 789, 20 Eq. 471). So also the expenses of administration will fall on any particular fund out of which a testator has directed that his " 'testamentary or "executorship" expenses are to be paid (Sharp v. Lush, 1879, 27 W. R. 528, 10 Ch. D. 468). (2) Where the testator has given no such directions, administration costs are primarily payable out of the residue of his personal estate. It has been pointed out that it is not strictly correct to say that the administration costs are paid out of the residue of the personal estate; they are supposed to be paid out of the personal estate before any distribution of it takes place (Shuttleworth v. Howarth, 1841, Cr. & Ph., at p. 232). But as the residue (which is defined as being what remains after payment of the testator's funeral and testamentary expenses, debts, legacies, and the costs of administration of the estate, including all costs and charges occasioned by the will: Elborne v. Goode, 1844, 14 Sim. 165, 178; Ripley v. Moysey, 1836, 1 Keen, 578; Trethewy v. Helyar, 1876, 4 Ch. D. 53, 56; Re Reeve's Trusts, 1877, 4 Ch. D., at p. 844) is less than it would otherwise be by the amount of the payments for administration costs, those payments do in fact substantially and practically come out of the residue.

(3) There are no degrees of liability among different portions of the residue of the testator's personal estate. Whether the residue be wholly given or wholly undisposed of, or partly given and partly undisposed of; whether there be one residuary legatee or more, or one person next of kin or more, the thing that is taken is of the same quality, and the parts which constitute the whole only come into existence after satisfaction of the general costs of administration; in other words, the takers of the shares, where shares are taken, are liable to the costs in proportion to their shares (Elborne v. Goode, ubi suprà). Vice-Chancellor Malins, indeed, expressed an opinion in Gowan v. Broughton (1874, 19 Eq. 77) that a lapsed share of residuary personal estate should exonerate the other shares and be the primary fund for payment of administration costs. The ground for his opinion appears to have been that, having previously (in Scott v. Cumberland, 1874, 18 Eq. 578), held that a lapsed share of residuary real estate should exonerate the other shares, the learned judge considered "that it would be very inconvenient if there should be one rule as to real, and another as to personal estate." His observations, however, were mere dicta, and they have been dissented from by Jessel, M.R., in Trethewy v. Helyar (1876, 4 Ch. D. 53); by Bacon, V.C., in Fenton v. Wills (1877, 7 Ch. D. 33); and by Hall, V.C., in Blann v. Bell (1877, 7 Ch. D. 382). The rule appears to be that where a share of the residue becomes undisposed of, whether by lapse (Ackroyd v. Smithson, 1 Bro. C. C. 503, as explained, on reference to registrar's book, in 4 My. & Cr., at p. 245; Roberts v. Walker, 1 Russ. & My. 752; Cresswell v. Cheslyn, 2 Eden, 123, as explained in note 1 Swanst. 571; Fenton v. Wills, ubi suprà), or owing to the operation of the Mortmain Act (9 Geo. 2, c. 36) (AttorneyGeneral v. Lord Winchelsea, 3 Bro. C. C. 373; Attorney-General v. Hurst, 2 Cox, 364); or owing to the operation of the Thellusson Act (39 & 40 Geo. 3, c, 98) (Eyre v. Marsden, ubi suprà;

Elborne v. Goode, ubi suprà; Green v. Gascoyne, 1865, 13 W. R. 371), the administration costs are payable pro ratâ out of the shares of residue taken by the legatees and the shares which have failed. The same rule appears to apply where a share of residue fails owing to a revocation of the bequest by the testator (Cresswell v. Cheslyn, as stated from the registrar's book, 1 Swanst., at P. 571, note (d.); see also the judgment in Eyre v. Marsden, ubi suprà; but see contrà, Skrymsher v. Northcote, 1818, 1 Swanst. 566, 572).

(4) The administration costs falling on the residuary personal estate include :—

(a.) The costs of construing the will. This is so, although they are only the costs of construing the will as respects one particular gift (Jessel, M.R., in Re Reeve's Trusts, 1877, 4 Ch. D. 841, 844; Boulton v Beard, 1853, 3 De G. M. & G. 608). Hence the costs of ascertaining the construction of a gift of a pecuniary legacy (Re Reeve's Trusts, ubi suprà), or of a share of the residue which is settled by the will (Boulton v. Beard, 1853, 3 De G. M. & G. 608, 612), fall, not on the legacy or settled share as to which only the question of construction arose exclusively, but on the whole of the residue.

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(b) The costs of ascertaining the persons entitled under the will. "The principle," said Jessel, M.R., in Re Reeve's Trusts (ubi suprd),"is, that there is no residue until the entire costs of administration are paid. Now, what are the entire costs of administration?' Surely they include the ascertaining, not only of the specific and pecuniary legatees, but of the residuary legatees also. You cannot administer an estate-that is, divide it properly-until you have found out all the parties who are entitled. Therefore, it appears to me on principle that the whole of the costs of ascertaining who those persons are are properly payable out of the estate which remains after paying the debts, funeral and testamentary expenses, and legacies; and that there is really no residue to be divided until you have paid all those costs." Where, therefore, there is a gift of residue to be divided among certain persons and classes of persons, the costs of proving the pedigrees of the various persons entitled to share in the residue are payable out of the whole residue before it is divided (Re Reeve's Trusts, ubi suprà). And it is altogether immaterial that some of the classes turn out to be much more numerous than others, so as to make the expense of establishing the claims of the individuals composing them very much greater. An extreme instance of this occurred in Shuttleworth v. Howarth (ubi suprà). One of the classes among which the testator's residuary estate was to be divided in certain proportions consisted of two individuals; the others of 213, 119, 32, and 110 individuals respectively. It was held, nevertheless, that the costs of all the persons who established their claims were not to be paid exclusively out of the portions attributable to their classes respectively, but out of the residuary fund before any apportionment of it took place; the result being that the two persons composing one of the classes paid a share of the expense of establishing the title of the 474 other persons interested in the residue.

The same rule, of course, applies to the costs of ascertaining the kinship of next of kin taking the share of a deceased beneficiary under a gift of residue which is construed to be a gift to several persons or their next of kin. In this case the decision appears to have rested on the consideration that the next of kin of the deceased beneficiary were to be considered "as much the testator's legatees as "the other beneficiaries who had survived (Doody v. Higgins, 1852, 9 Hare App. xxxii.). This principle would not seem to be applicable to the costs of ascertaining the next of kin of the testator who becomes entitled to lapsed shares of a residue. The precise question does not appear to have been contested and determined in any reported case until Re Giles (1886, 34 W. R. 712). In that case Kay, J., held (though, as will be seen, with some hesitation) that the costs of ascertaining the next of kin in the case last mentioned are costs of administration. "The only question," he said, "is whether these costs are costs of administration. On the whole, I think they are. No authority has been cited to me to show that a lapsed share ought to bear the costs of ascertaining the next of kin entitled to it in exoneration of the general residue. If, in an administration action, it had appeared that some shares of the residue had lapsed, it would have

been a matter of course to direct an inquiry as to who were the next of kin of the testator, and, so far as I know, there is no case in which it had been held that the cost of an inquiry of that kind ought to be borne by the lapsed share instead of by the general residue. On the other hand, I think it would have been treated as a matter of course to order those costs, as well as the other costs of the action, to be paid out of the general residue. And the reason of that is well expressed in the case of Eyre v. Marsden (ubi suprà)-viz., that there can be no residue until the costs of the administration have been paid. The trustees would have a right to ascertain at the expense of the general residue, who were the persons entitled either in the case of lapse or under the will, and the costs of ascertaining that are costs which ought to be paid, in the first instance, out of the general fund before you can arrive at the residue at all. Of course it is easy to put, as I put in the argument, cases where that would seem to be very hard. A case may be imagined where the residue is divisible into twelve shares, and one of the shares lapses. Are the persons entitled to the other eleven shares to wait until a very difficult inquiry as to the next of kin entitled to the twelfth share is worked out? But then, I think the answer to that is simple. They need not wait. It is easy enough for the trustees to ascertain approximately the amount of the shares, and to set apart a fund to answer and pay for the cost of ascertaining the next of kin; or, if any difficalty should arise, then the trustees can come to the court at once, and ask the court to ascertain the fund for them or to tell them what they ought to pay over, or if they ought to pay over anything, and thus act by the direction and under the sanction of the court."

THE LAND TRANSFER BILL.

IV.

IV.—THE INSURANCE FUND (continued).

2. Will it be a tax? (continued).—We would call attention to a fact (mentioned in our last week's issue, but) which seems to have been overlooked by some who have been studying the Bill, that no contribution to the fund will be payable on registrations with possessory title only. So that the extra expense that will be incurred on next sales will consist of the correspondence with the registry, the furnishing of such information as the rules may require, and the payment of the office fees (if any) prescribed.

It must further be observed that the insurance charge on subsequent registered dealings (which, by the way, is to be paid equally, whether the first registration was with possessory, qualified, or absolute title) is only levied where such dealings are for value. So that (subject to a possible doubt as to whether or not a marriage settlement, or a charge of jointure, or portions, is a dealing for value) as long as, and in so far as, changes of ownership only take place by way of Settlement, Will, or Succession on Death, no insurance money will be payable on registering such changes. To owners of large estates these considerations are clearly of great importance, because, if, as at first sight appears possible, on every re-settlement or succession on death (the necessary and permanent private expenses of which will probably be but little diminished from what they are now) there were to be added an insurance charge amounting, in large estates, to some hundreds of pounds, besides the correspondence with the registry and office fees, the obvious drawbacks of the new system might well appear greater than its possible advantages. We have reason to believe that a certain amount of misapprehension on the above points has arisen owing to the provisions of Schedule I. having been rather insufficiently studied.

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ception in the case of dormant claims. Registration of Title to Land (C. F. Brickdale, November, 1886), at p. 46, advocates the enforcement of the rule without any exception whatever. The question was raised in the House of Lords last Monday evening on the second reading of the Bill. The Bill (clause 16) provides that "where a person satisfies the High Court that he has been deprived of registered land by forgery, or fraud, or error of the board or its officers, the court may, according as the court may think equitable, either order compensation to that person, or that the land shall be restored to that person, and that the person losing the land shall receive compensation.' It was pointed out that this clause laid down no principle to guide the court, and that it would be better to lay down some principle, to be followed in ordinary cases, subject to exception, perhaps, on special cause shewn. Lords Herschell and Bramwell advocated the rule above stated. Lord Selborne was for favouring purchasers, if possible, as against volunteers: but in making this suggestion the noble and learned lord appears to have overlooked the consideration that owners of family estates-the very persons most obviously entitled to restoration of the land in specie-are nearly all volunteers, a consideration fatal to the adoption of the rule he proposed.

Of course, there are objections to any rule that can be proposed. The present law, which leaves a purchaser with no greater protection than his own vigilance and the vendor's covenant for title, is hardly so perfect as to justify very severe criticism of a law where the only possible question will be whether he is to have the land or full damages paid by the Government.

Leaving the substantial question to be decided as may be thought best, let us turn to one or two incidental matters that claim attention in regard to the subject of this section.

The first is that procedure by application to the High Court, wherever restoration is sought, appears to be needlessly cumbrous. It must be remembered that if some such rule as that above suggested is laid down, the inquiry needed to be made will be of the simplest possible kind. Therefore, subject to an appeal to the court, it would seem well to make the Board the tribunal in the first instance, especially as they will have before them all the material documents, and probably all the material facts, at no expense in the great majority of instances. With regard to the frequency of appeals, it is the Australian experience that the decisions of the registrar are usually acquiesced in (1881: Return on Australian Registration, p. 148).

The second matter is that the expression registered land in the portion of the clause above quoted introduces at least a doubt as to whether or no, in cases where land is wrongly placed on the register in the first instance with absolute or qualified title, the rightful owner of the unregistered estate will be entitled to apply for restoration, or whether he will be confined to his compensation under Clause 15 (1) and Schedule I. (A) (1)-where, by the bye, the use of the word "land" alone lends colour to the doubt now expressed. Such is the rule, it may be observed, under the Torrens Acts; and it is possible that it may be intended to repeat it in the Bill. The reasons for making such an exception (if it be intended) are not obvious. It would create much reasonable uneasiness, and it would oblige the registrar to be far more particular in registering absolute and qualified titles, and in confirming titles and boundaries, than he otherwise need be.

The third matter is that the exact procedure under clause 16 is not laid down in the Bill. It is not clear, for instance, whether it will be necessary for the purposes of the section that the owner shall have been actually deprived of his land before the court can exercise its authority. Some procedure whereby a merely threatened owner might bring the matter on for decision would probably be useful, and also definite power for the defendant in an action for recovery of land to claim the benefit of this jurisdiction in the same action. The costs of the application to the court under this clause (16), being definitely occasioned by the error of the Board, it would seem that, if reasonably incurred, they ought also to be paid out of the fund. This is also not quite clear from the Bill as it stands.

3. How will it be available?-One very substantial question arises under this head. When a mistake is detected, who is to have the land, and who is to have the money? What we believe to be the true rule has (curious to state) only now at last emerged into notice or even into existence; the original rule proposed by the Commissioners of 1857 being its exact opposite, and the Torrens Acts only partially adopting it. The true rule is A fourth point is that it is nowhere exactly stated whether or thus stated by a marginal note on page 32 of the Statement on the no the Board will have power to admit and satisfy such claims for Land Laws (Incorporated Law Society, January, 1886)-" Any compensation as may appear just without putting the claimants to compensation should be given to purchaser, and owner should not any further expense. It will be observed that clause 15, which be dispossessed." Land Transfer (Bar Committee, February, 1886), provides the fund, also empowers the rules to provide for "any at p. 86, recommends the same thing, inserting, however, an ex-matters necessary or proper for giving effect" to the section and

the scheme in Schedule I. It is unprofitable, therefore, to go into much detail on these points until the rules appear.

4. The possible uses of the fund in facilitating the despatch of business. Enough has already been said to shew that the omission of the compensation fund was a grave one from the point of view of abstract justice. It was, however, no doubt, defended by the consideration that the registrar would always proceed cautiously, so that no injuries would result to innocent persons. And, in truth, in this respect (as probably only in this respect), the experience of the Acts has entirely justified the expectations of their framers. What appears to have been forgotten was that in ordinary business people do not proceed cautiously; they proceed indolently, confidingly, eagerly, recklessly; they prefer risk to trouble, suspicion, restraint, delay. A system that proposes to conduct ordinary business without ever running a risk will never fulfil the requirements of the case.

In order to understand the influence which the insurance fund seems designed to exercise on the despatch of business in the office, it will be necessary to observe the procedure hitherto adopted somewhat closely.

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(i.) First registration with absolute title.-Under Lord Westbury's Act nothing but a "marketable " title was to be approved by the registrar. Now, assuming (as equity does) that a marketable title is absolutely safe (which it is not, but no matter), this was fair enough; but what a work did it entail! In the appendix to the report of 1870 (p. 78) are the particulars of twenty-five cases furnished by the registrar himself as affording "a fair average illustration" of the time occupied in first registrations. The average time will be found to be about two years and three months apiece; one comes within nine days of five years; only four are under a year. The shortest 66 run on the record is also given-four months twenty-seven days. Some may wonder how the time was wiled away in the office; the following occurrence may serve to explain. One of the former owners of an estate to be registered was one John Harrison, of Reigate, farmer, who bought in 1830, and died in 1850. Proof was required that a judgment against one John Harrison, of Newcastle-on-Tyne, beerseller, and another judgment against one George Harrison, of Cockermouth, ironmonger, did not affect the estate (1870 appendix, p. 56). Nor can we suggest that, under the system subsisting, these precautions were unsuitable.

66

the insurance fund may be conjecturally estimated somewhat as
follows:-
The general experience of private purchasers is well known to
be perfectly satisfactory in point of security; therefore, it appears
that, if the board can exercise an ordinary purchaser's vigilance,
the mistakes made in the bulk will be more than covered by the
proposed insurance charge (supplemented as it is by the provisions of
Schedule I. (c.) and (g.)). Thus the expenses and delays of procuring
an absolute title might possibly be reduced to little more than those
incurred by ordinary purchasers on sales. But this is not all that
can be done. A good deal of the trouble incurred by ordinary
purchasers is directed, not to the satisfaction of their own doubts,
but to the accumulation of evidence that may satisfy possible
future purchasers from themselves, or is due to that extra degree
of caution that is natural wherever dealings are entered into singly
or in small numbers. But the board will have no need to perpetuate
evidence if once really satisfied; for it will never have to "shew
its title " again, and also, by reason of the large extent of its
operations, diminishing the relative importance of a possible failure
here and there, the board will be able (should it be authorized to
do so) to proceed with rather more boldness than any private
purchaser can in overlooking remote possibilities of error. And,
lastly, those who have perused the titles of a large area well know
that, as the process goes on, a sort of general bird's-eye view is
obtained, which renders incidental doubts less frequent.

All these considerations put together may possibly have created a belief that, with the insurance fund at their backs, the board will be able to sanction the registration of an absolute title in ordinary cases on as easy terms as ordinary purchasers proceed upon on sales. We do not desire to express any opinion as to whether the belief is well founded, but if it should prove to be so, vendors and purchasers will be likely enough before long to acquire a habit of applying for absolute titles on sales instead of being content with the necessary possessory registration required by law, even though the latter be now capable of confirmation after further formalities and the lapse of five years.

66

CORRESPONDENCE.

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THE LAND TRANSFER BILL. To the Editor of the Solicitors' Journal. Sir,-I beg to enclose copy of a letter I have addressed, and by this post sent, to the secretary of the Incorporated Law Society on the subject of this Bill. As you will see, the point to which I have directed his attention is of the utmost importance_to_solicitors. 2, Portland-street, Southampton, April 25. The following is the letter referred to :—

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R. R. LINTHORNE.

It will be remembered that under Lord Cairns' Act of 1875 (section 17, sub-section 3) power is given to the registrar to approve of, and register as indefeasible, any title which, though open to objection," yet, in his opinion, "will not be disturbed." Of this the Bar Committee say: "The convenience of this enactment in facilitating the registration of titles is obvious, but this convenience is manifestly gained by giving power to an official to confiscate dormant rights without compensation if he thinks them not likely to be prosecuted with effect." And later, "If such 25th April, 1887. provisions are administered with prudence and discretion, they "Dear Sir,-Observing in a recent issue of the SOLICITORS' leave the procedure practically unaltered. Some reduction may be JOURNAL that a copy of the Lord Chancellor's Land Transfer Bill effected in the necessary expenses, but the practical effect for this has been sent to your society for criticism and suggestion, I beg to purpose of a mere reduction is inconsiderable" (Land Transfer, draw your attention to one matter which, in my humble opinion, is pp. 55, 61). Experience has shewn the justice of this observa- of the utmost importance to solicitors and the public. It is this: tion. The provision has (as would hardly be doubted) been pru-gested by the society, and receive its most strenuous support, for Clauses of the most comprehensive character should, I think, be sugdently administered, with the result that first registration under providing that all business required to be done in relation to Lord Cairns' Act, as under Lord Westbury's (though in a less degree), registration of land, and all dealings with registered land, should be continues to be both a longer and a more expensive business transacted in person or by solicitor and by no other agent.' than a sale under ordinary conditions. This makes it simply out "Unless some provision of this kind be made, the profession will of the question for a vendor to try to register preparatory to a find auctioneers and estate agents' (who draw the public by their sale, and renders it most unlikely that a purchaser, who has only advertisements to find purchasers and mortgagees) transacting all just finished grumbling at the length of his solicitor's bill, will the business connected with the Land Registry, to the exclusion of the put his name down as an applicant for a double dose of the same profession and the disadvantage of the public, and who, no doubt, acid draught that he has just swallowed with so bad a grace; and and there will be nothing, as the law now stands, to prevent their will charge for their services as much as, if not more than, solicitors; if it is not to the interest of an intending vendor, or to the taste doing so, as the only protection solicitors now have as regards the of a recent purchaser to register his title, it is difficult to see at conveyancing branch of their business is under the 60th section of what juncture of affairs it will be either useful or pleasant to the Stamp Act, 1870, which is, practically, limited to instruments anybody.

Now, unless the framers of the present Bill have entirely abandoned all hope of inducing vendors or purchasers to apply for absolute titles (which is certainly possible), it may be supposed that they expect the insurance fund to exercise an influence on the official procedure on first registrations that will bring absolute titles within the reasonable ambition both of vendors and purchasers on actual sales. The extent of the possible influence of

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If, therefore, in the inception of land registration, land agents' be precluded from acquiring any right to act in connection with it they will have no cause of complaint; but should it not be done, and it should afterwards be found necessary for the profession to take of vested interests requiring compensation, &c. some steps in the matter, the profession would hear of the acquisition

"I enclose you cutting from a local paper shewing the further development of the agent' system.

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THE COURT (Lord ESHER, M.R., FRY and LOPES, L.JJ.) allowed the appeal. They said that the utmost effect of the decisions on the rating of railways was that it was not wrong to rate a portion of a homogeneous railway worked by one company and as one line from terminus to terminus on the mileage principle.. But it was only because no other principle was applicable in such a case, and it was at best but a rough method of assessing the rate. In this case it was clear that the individuality of the junction company had been preserved, and the agreement, which had now the force of an Act of Parliament, contemplated the possibility of the whole undertaking being demised by the three companies, with the consent of the junction company, to a tenant. A tenant was therefore possible, and the proper method of arriving at the assessment was to consider what such a tenant would give for the line. The arbitrator had found, on perfectly admissible evidence, that such a tenant would give an amount which justified this assessment.-COUNSEL, Sir R. E. Webster, A.G., MeIntyre, Q.C., and Cyril Dodd; Sir E. Clarke, S.G., Meadows White, Q.C., and Tyrrell Paine. SOLICITORS, Pilley & Wright, for Ruston, Clarke, & Ruston, Brentford; Paine, Son, & Pollock.

REG. v. JUDGE OF THE CHELMSFORD COUNTY COURT AND
CLARKE-C. A. No. 1, 27th April.
PROHIBITION-JUDGMENT DEBT-INTEREST UPON-COUNTY COURT JUDG-
MENT-1 & 2 VICT. c. 110, s. 17-COUNTY COURTS ACT, 1846 (9 & 10
VICT. c. 95) ss. 94, 109, 110.

[To the Editor of the Solicitors' Journal.] Sir,-In commenting on my letter to the Times you think I have stated my experience too strongly. I feel I have not stated it strongly enough. I affirm that no man or woman can undesignedly sign his or her name in identically the same characters; they must be similar, but cannot be the same. Nullum simile est idem. Lord Coke was aware of and recognized the distinction. The impossibility of identity rests upon a physical fact. The human body is not a piece of mechanism like a watch or steam-engine. It is an organism, fearfully and wonderfully made, which is kept in perpetual motion from the moment of the first inspiration to the last expiration, from the first moment of independent life to the last, be the interval what it may, to the last syllable of recorded time. When a man or woman signs his or her name the act is a completed act; when the attempt to sign again is made an interval of time must have elapsed, during which the organism has undergone a change, necessarily-not dependent on volition-a change which makes identity physically impossible, but necessarily, in the absence of volition to the contrary, produces similarity. Physicists have calculated that in seven years these changes in the organism, silent and imperceptible, produce a new body. I am not desirous of indulging in the luxury of a theory. Try yourself to write your own name twice or oftener, and see for your self whether your signatures are identical. A few days ago I signed my name forty times consecutively to tickets for admission to the Botanical Gardens, of which society I am a fellow. I could not find two signatures exactly alike. Yesterday I signed a cheque pay-fi. fa. was altered and made to include interest on the judgment debt. able to order, and added my signature at the back. The two signatures were not, on examination, identical. W. T. S. DANIEL.

51, Parade, Leamington, April 26.

CASES OF THE WEEK.

NORTH AND SOUTH-WESTERN JUNCTION RAILWAY CO. v.
BRENTFORD UNION ASSESSMENT COMMITTEE C. A. No. 1,
21st April.

POOR RATE-ASSESSMENT OF JUNCTION LINE OF RAILWAY OWNED BY ONE
COMPANY AND LEASED IN PERPETUITY TO OTHERS.

The North and South-Western Junction Railway Co. were the owners of a line, of about five miles in length, which connected the railways of the Great Western, Midland, London and South-Western, and London and North-Western Railway Companies, with the last of which the North London. Railway Co. was in connection. By an agreement made in 1871 the junction company undertook to lease their line in perpetuity to the Midland, London and North-Western, and North London Railway Companies at an annual rent of £9,502. This agreement was confirmed by and incorporated in a private Act of Parliament. Some three miles of the railway lay within the parish of Acton, and were in the Brentford Union district. The junction company having been rated for this portion of their line at £3, 125 gross estimated rental and £2,500 rateable value, appealed to quarter sessions, whence the appeal was referred by consent to an arbitrator, who stated his award in the form of a special case for the opinion of the Divisional Court. He found that if the proper principle of assessment were to take the railway as being an integral part of the railway systems of the three companies, and to assess it accordingly on the principle of mileage, the present assessment was too high, if, however, he were entitled to consider what a possible tenant would give for the line, he inferred from the evidence of the profits of the junction company prior to 1871, the increased traffic since then, and the amount of rent paid by the three companies in perpetuity, that the present assessment was justified. The Divisional Court (Day and Wills, JJ.) were of opinion that the three companies, and not the junction company, were liable to be rated, and considered that the railway was part of the integral system of the railway systems of those companies, and must be rated accordingly. The Assesment Committee appealed from this decision, and

This case raised the question whether county court judgments carry interest under section 17 of 1 & 2 Vict. c. 110. Clarke recovered judgment in 1880 against one Cotton for £26 in the Chelmsford County Court. Cotton died in 1886, the judgment remaining unsatisfied, and then the £26 was paid into court. Clarke thereupon applied for leave to add Cotton's administratrix as defendant for the purpose of reviving the judgment, and for leave to issue execution upon the judgment for £6 in respect of interest. The county court judge granted the application. Cotton's administratrix thereupon applied for a prohibition on the ground that county court judgments were not within section 17 of 1 & 2 Vict. c. 110 and did not carry interest, and the judge had no jurisdiction to make the order. That section enacts that " every judgment debt shall carry interest at the rate of four pounds per centum per annum from the time of entering up the judgment until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment." The Divisional Court (Mathew and Cave, JJ.) refused the prohibition. Lord ESHER, M.R., said that before the passing of 1 & 2 Vict. c. 110, THE COURT OF APPEAL allowed the appeal and granted the prohibition. judgment debts did not carry interest, and the writ of fi. fa. addressed to the sheriff gave him no authority to levy for interest on the judgment debt. execute the writ of fi. fa. for more than was contained in the judg1 & 2 Vict. c. 110, s. 17, was passed to enable the sheriff to ment-namely, for interest upon the judgment debt. That section did not make any new judgment, but it followed from it that the writ of Afterwards the present county courts were established by 9 & 10 Vict. c. 95. That statute authorized county court judges to make very peculiar orders, very unlike judgments at common law. Section 94 provided that when a judge should have made an order for the payment of money, execution by a writ of fi. fa. might issue for the amount and costs of the execution. Nothing was said about interest. If it had been intended to include interest it would have been mentioned. So also sections 109 and 110 provided that the execution should be superseded on payment of the debt and costs. Again, nothing was said about interest. That shewed that the Legislature, having full knowledge of the provisions of section 17 of 1 & 2 Vict. c. 110, must have intended that the provisions of section 17 should not apply. There was also authority on the point. In Berkeley v. Elderkin (1 W. R. 305, 1 E. & B. 805) it was held that an action would not lie on a county court judgment, on the ground that a county court judgment was essentially different from an ordinary judgment. The Legislature had invented new rights and given new remedies, and those were the only remedies. County court orders or judgments were not within section 17, and did not carry interest, being governed solely by the County Court Acts. FRY and LOPES, L.JJ., concurred.-COUNSEL, R. V. Williams; Richmond. SOLICITORS, Sandilands; Peace & Co.

SCHNEIDER v. BOND-C. A. No. 2, 26th April. COVENANT IN RESTRAINT OF TRADE-CONSTRUCTION-INJUNCTION. The question in this case was as to the construction of a covenant in restraint of trade which the defendant had entered into upon the dissolution of a partnership between himself and the plaintiff. The defendant had for some years carried on business as a ship and boat builder, and in 1882 the plaintiff was admitted into partnership with him for a term of fourteen years, under articles which provided that the business of the firm should be that of a ship and boat builder and engineer in all its branches, and all things incident thereto. In July, 1883, the partnership was dissolved by agreement, and a deed was executed by which the defendant assigned all his share and interest in the business to the plaintiff, and covenanted that he would not at any time thereafter "carry on or be engaged or concerned directly or indirectly in the business of a ship and boat builder and engineer on the River Thames, or within fifty miles therefrom." The defendant shortly afterwards entered into partnership at Limehouse and West India Dock in a business which included the making of masts and spars, ships' fittings and gear, and shipwrights' and shipsmiths' work, but not the actual building of boats and ships. The plaintiff brought the action to restrain the defendant from carrying on this business, which the plaintiff alleged to be a breach

of the defendant's covenant. Kay, J., granted an injunction, being of
opinion that the defendant, in making all things requisite for shipbuilding,
though not actually putting the things together, was infringing the spirit
and meaning of the covenant.
THE COURT OF APPEAL (COTTON, L.J., Sir J. HANNEN, and LINDLEY,
L.J.) held that the making and sale of masts and spars and other articles
used by shipbuilders in the building and repair of ships was a distinct
business from that of a ship and boat builder; and they varied the order
by directing that the injunction was not to prevent the defendant from
carrying on the business of making and selling oars, masts, blocks, and
other articles used in shipbuilding; but they ordered him to pay the costs
of the appeal.-COUNSEL, Marten, Q.C., and Simmonds; Hemming, Q.C.,
and Maidlow. SOLICITORS, J. W. Marsh; Dawes & Son.

s. 153, was made by the liquidator of the company for payment by the
directors of some £2,100 in respect of payments, made by their
authority, pending a winding-up petition. The company was
registered on the 30th of July, 1884, and on the 23rd of July,
1885, a winding-up petition was presented by a shareholder on,
amongst other grounds, that of not having commenced business. The
payments in question were made upon or immediately after the presenta-
tion of the petition, and a number of new shares were issued about
the same time. In October, Mathew, J., dismissed the petition with
costs. In February, 1886, the Court of Appeal, having admitted
further evidence, made a winding-up order. The respondents to
the present application submitted that section 153 conferred no
jurisdiction upon the fact of receiving from directors moneys paid in
respect of transactions between the presentation of the petition and
the winding-up order, but that the effect of the section was merely to
make such transactions void, and to leave the liquidator to recover the
money from the persons to whom it was paid, and they also submitted
that the application could not be made under section 165, as that section
only rendered directors liable for misfeasance and the like.
CHITTY, J., said that the application was not made under any par-
ticular section, and that the effect of the two sections, when read together,
was to render the directors primâ facie liable as a collective body, although
the individual responsibility was a matter for future ascertainment. The
directors must be taken as knowing section 153 of the Act, and as having
made the payments with the knowledge that they would be disallowed
unless the court ordered otherwise. It was certainly a bold thing to make
such payments. He directed an account to be taken of the moneys which
had come into the hands or under the control of the directors or any of
them, and of the disbursements made by them or any of them, after the
date of the winding up.-COUNSEL, Romer, Q.C., and Medd; Decimus
Sturges; Rawson. SOLICITORS, S. Hughes & Son; Harries, Wilkinson, &
Raikes; Desborough & Son.

Re SWANSTON (AN INFANT)-C.A. No. 2, 27th April. INFANT-ADVANCEMENT-JURISDICTION OF COURT TO CHARGE REAL ESTATE. In this case a question arose as to the power of the court to charge real estate of an infant for the purpose of raising a sum required for his advancement in life, there being no power to do so contained in the will by which the estate was given to him. Under the will of his father the infant was entitled to a vested interest in real estate, subject to an annuity to his mother for her life. He wished to learn farming, and to go to Virginia for that purpose, and it was desired that he should be apprenticed to a farmer there. His guardians applied to the court for authority to raise by a mortgage of the infant's real estate a sum of £200 to provide for the fee which would have to be paid to the farmer and for the infant's outfit and passage-money. Chitty, J., felt a difficulty in granting the application by reason of what was said by Cotton and Lopes, L.JJ., in Cadman v. Cadman (33 Ch. D. 397, 30 SOLICITORS' JOURNAL, 687), where they threw some doubt upon the accuracy of the decision of James and Mellish, L.JJ., in Re Howarth (8 Ch. 415), and he refused it. In Re Howarth it was held that the court had power to charge the real estate of an infant with the cost of his past maintenance which had been pro. vided by his mother, on the ground that, if the mother were to sue the infant for necessaries supplied to him, a judgment might be obtained by which his inheritance would be bound, and that the order asked for came substantially to the same thing. In the present case Re Howarth was relied on, and it was urged that judgment could be obtained at law in an action for money advanced for the purpose of supplying an infant with And reference was made to Co. Litt., 172a, where it is said, "an infant may bind himself to pay for his necessary meat, drink, apparel, necessary physic, and such other necessaries, and likewise for his good teaching or instruction, whereby he may profit himself afterwards." The appellant's counsel asked the court, at any rate, to expressing resolutions for the voluntary liquidation of the company, but that an opinion that, if the money required should be advanced and applied in the way suggested, a charge on the real estate for the amount might THE COURT OF APPEAL (Sir J. HANNEN and LINDLEY, L.J.) affirmed the decision. Sir J. HANNEN thought that the court was not in a position to make the order asked, which would no doubt be a very reasonable thing to do if there was power to do it. It might be that if the money had been actually advanced and applied in providing the infant with necessaries, the order could be made, but, having regard to what had been said, that might not be the opinion of the court before which the application might come. In his lordship's opinion Re Howarth was a decision binding on the court. LINDLEY, L.J., was satisfied that the order asked for could not be made, and he thought that the court ought not to express a hypothe-winding up had been passed, and the petition was ordered to stand over tical opinion. In his opinion the decision in Re Howarth was right. There the sum charged was for past maintenance of the infant. The present case was not like that, and might never be like it.-COUNSEL, E. Bray. SOLICITORS, Warrens.

necessaries.

be authorized.

Re ANGLO-MONTANA MINING CO. (LIM.)-Chitty, J., 22nd April.
PRACTICE-COMPANY-WINDING UP-CROSS-EXAMINATION OF WITNESSES-
PROCEEDINGS BEFORE EXAMINER-LEAVE TO ATTEND.

Re THE DISTRICT BANK OF LONDON-North, J., 23rd April. COMPANY-WINDING-UP PETITION-WITHDRAWAL BY PETITIONER-COSTS. The question in this case was whether, on the withdrawal of a windingup petition, the petitioner ought to be ordered to pay the costs of persons appearing. The petition was presented by a shareholder in the company. At the time when it was presented it was anticipated that resolutions for a voluntary winding up would be proposed, and the petition contained the following statements:-"Your petitioner has been informed and believes that the directors are about to call a meeting with a view to passthere is great reason to fear that, in consequence of certain internal dissensions which exist among the members of the company, it is quite possible that the board will fail to carry such resolutions by the requisite majority; notwithstanding that, as your petitioner is informed and believes, the greater part of the members are agreed that the company ought to be wound up either voluntarily or by the court. Your petitioner has presented this petition in the interest and for the protection of the holders of the greater part of the shares in the company, and at their request, and in the event of resolutions for a voluntary liquidation being carried, but only in that event, your petitioner will be willing, subject to the permission of this honourable court, to withdraw this petition." When the petition first came on for hearing resolutions for a voluntary in order to see whether the resolutions would be confirmed at a second meeting of the shareholders. At the second meeting the resolutions were confirmed, and when the petition came on again for hearing the petitioner's counsel stated that he wished to withdraw the petition, and asked that it might be dismissed without costs. The company did not oppose this, but counsel who appeared for some shareholders who had taken copies of the petition asked that the petitioner might be ordered to pay their costs, or that a supervision order might be made. The statements in the petition were not impugned, and the opposing shareholders had been informed when they took copies of the petition that, if a voluntary wind

In this case, a petition having been presented by a shareholder to wind up the company, and the petitioner having moved for the cross-examina-ing up should be resolved on, and they should appear on the hearing of tion before the examiner of deponents on both sides, an application was made by two shareholders, who had not been served with notice of motion, for leave to attend the proceedings before the examiner at their own expense, and without taking any part therein. It was objected on behalf of the company that the litigation was between competent parties, and also that, as the applicants had instituted proceedings against the company in respect of alleged misrepresentations in its prospectus, the inference was that they desired, for the purposes of such proceedings, to make use of any information they could get by attending proceedings in the petition.

CHITTY, J., declined to accede to the applicants' request, saying that they were not served with notice of the motion, and also, that it was open to them to obtain any information as to the result of the crossexamination from the petitioner's solicitor. He made an order in the terms of the notice of the motion, upon the petitioner's undertaking to use due diligence.-COUNSEL, Romer, Q.C., and Grosvenor Woods; Whitehorne, Q.C., Seward Brice, Q.C., and Emden; Eustace Smith. SOLICITORS, M. Abrahams, Son, & Co.; Langton & Son; Nurse, Hewitt, & Farman.

Re NEATH HARBOUR SMELTING AND ROLLING WORKS (LIM.)
-Chitty, J., 20th April.

COMPANY-WINDING UP-CONTRACTS PENDING PETITION LIABILITY OF
DIRECTORS-COMPANIES ACT, 1862, ss. 153, 165.

In this case an application, stated to be under the Companies Act, 1862,

the petition, the petitioner would object to their having any costs.
NORTH, J., ordered the petition to be dismissed without costs. He did
not understand that there was any absolute rule that, when a petitioner
dismissed his own petition, it must be dismissed with costs. No doubt
that would generally be done, but it must depend on the circumstances of
each case. In the present case the object of the petitioner was to put a
stop to dilatory proceedings with regard to the proposed voluntary wind-
ing up. Resolutions for a voluntary winding up having been now passed,
it would be fair, under the circumstances, to allow the petitioner to
withdraw the petition without ordering him to pay any costs. There was
no reason why a supervision order should be made to enable the share-
holders who appeared to obtain their costs.-COUNSEL, Abraham; Willis-
Bund; Eve. SOLICITORS, Farrer, Ouvry, & Co.; Wright & Wright; J. S.
Rubinstein.

Re ADAM EYTON (LIM.)-North, J., 23rd April.
COMPANY-WINDING-UP PETITION-COSTS-SECOND PETITION FILED WITH
NOTICE OF FIRST.

In this case there were two petitions for the winding up of the company. The second petition was prepared without any notice of the first, but, when the petitioner's solicitor went to the office to file it, he was, according to the present practice, informed by the officer of the court that another petition had already been filed. He, notwithstanding, filed the second petition, and when the petitions came on for hearing counsel for

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