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inventory thereto annexed or therein referred to, is to be filed, in like manner as in the case of a bill of sale, together with an aflidavit of the time of such execution, and a description of the residence and occupation of the debtor. The Bill also contains provisions for a register to be kept containing an abstract of the contents of every deed registered; for the inspection of this register by the public; and for the transmission of particulars to the county court of the district where the debtor resides or carries on business. There is also a proposal (clause 11) that, where a deed of arrangement has not been registered, and the debtor afterwards obtains credit to the extent of £20 or upwards from any person within two years from the date of the deed, without informing such person of the nature and effect of the deed, he shall be guilty of a misdemeanour as under the Debtors Act, 1869. We have never concealed our preference for a system that would invite registration by empowering an overwhelming majority in number and value of creditors to bind an insignificant minority to a reasonable arrangement; but we are ready to admit that the mind of the general public is scarcely open to allow so serious an inroad on the principles of the present Bankruptcy Act, whilst there is undoubtedly a strong feeling in favour of compelling the publication of arrangements entered into by debtors with their creditors outside the provisions of the Act. But, seeing that the arrangement clauses of the Act have proved a failure, we have little doubt that the enactment of any system of registration of deeds will ultimately lead to the adoption of the principle we have all along advocated, as it is very clear that something must be found to take the place of the abortive system of arrangements provided by the Act. We do not, therefore, see anything to be gained by the limitation of the proposal of the Bill to trader debtors, thus reintroducing the distinction abolished by the Bankruptcy Act; nor, in view of the fact that unregistered deeds are to be wholly void, can we approve of the penal proposal of clause ll. Of the other provisions, however, we can express a general approval——not by any means as a probable settlement of the question, but merely as a stepping-stone on the way to some settlement. But it is not unlikely that creditors, when they understand that the effect of the Bill will be to expose themselves to being published from time to time in lists of creditors in the columns of certain trade journals, may not be quite so favourable to the proposal.


Wis caiioivionn elsewhere the death of Mr. Josisn W. SMITH, Q.C., a learned ex-judge who was for many years the Mums of the county court bench. Like the lamented Vice-Chancellor, he was a very learned lawyer, but very impatient of that servile deference to legislation and to the decisions of the (so-called) superior courts which a superstitious profession usually expects of a judge. As he expressed it in the draft of an “Act for giving greater effect to the true principles of judicial decisions" which he promulgated in 1877, and desired to be “made public throughout the length and breadth of the land,” “all cases in litigation, other than cases of construction,” should, “in the discretion and to the best of the judgment of the judge or judges deciding the same, be decided, so far as may be,_according to Justice, Moral Right, and Public P_olr_cy.:’ . Accordingly, the learned judge for many years pursued h_is judicial way guided by these admirable principles. But from time to time he found a grievous stumbling block in the shape of what he called the “court above,” which obstinately refused to recognize “ justice, moral right, and public policy," as interpretedby him, as a proper ground of decision. The resources of civilization, however, were not exhausted, and by means of “a stereotyped form of reply" refusing applications for leave to appeal, he sought to remove the stumbling block out of the way. But in i_87e the_use of this stereotyped form, together with some observations which he made contemplating the possibility of the " court above ” deciding “ contrary to justice and common sense ” drew down upon him the thunder of the Queen’s Bench Divisioii and shortly afterwards he retired from the bench, Peace be to hi; ashes! He meant to do even-handed justice and wehave always d011bWd Whether the Qlleelfs Bench Division treated him quite fairly. The result of his “stereotyped form of l'l‘I\]yH was to prevent the successful suitors in his courts from being harassed by appeals in matters of very small pecuniary value, and we are not at all sure that he was wrong.


We saw last week that the administration costs falling on the residuary personal estate include the costs of construing the will and the costs of ascertaining the persons entitled under the will. We have now to consider what those costs do not include, and upon some parts of this branch of our subject it is by no means easy to extract from the cases definite rules of practical value.

(5) The admiizistration costs falling on the residunry personal estate do not include :

(a) The coals ofdetcrmining questions arising with regard to, and relating exclueively to, a legacy or trust fund after it has been “ severed from the bulk of the estate.” Such costs will fall on the legacy or trust fund exclusively (Jenour v. Jenour, 1805, 10 Ves. 562, 571 Wilson v. Squire, 1842, 13 Sim., at p. 213; Hartineau v. Rogers, 1856, 8 De G. M. 8: G. 328). “ jis to the costs," said Lord Eldon in Jenour v. Jenour, “there is a distinction between this and the ordinary case of costs out of the estate; for, though it _is_true that rule prevails where a question arises between the individual and the person taking the bulk of the estate, how far the bulk of the estate is to answer for a legacy, a sum of money, or a. portion; yet, if there is no question between the latter and persons claiming against him the bulk of the estate; but after he has paid out of the bulk, and done all that is incumbent upon him, a question arises as to the interest in that property, clearly severed from the bulk, the expense oi questions touching that fund ought to be thrown upon the fund itself ” (10 Ves., at p. 571).

But, in order that this rule may apply :

(1) The legacy] or fund must be clearly severed from the hulk of the csiate. The meaning of the rule has been said to be that, “ if the executors, admitting the legacy to be payable, sever it from the estate, and a dispute afterwards arises be-tween the persons to whom, or some of whom, the legacy belongs, and the court has to decide to whom it belongs, there the particular fund bears the costs; but, if the dispute arises between the persons claiming the legacy and those claiming the estate or residue, whether the legacy is payable or not, that cannot be the case of a severance in the sense in which the rule applies," because there, until the question is determined whether the legacy is payable, it is not severed from the estate ; the executors have kept it under their control for the purpose of having the point decided (Attorney-General v. Lawn, 1849, 8 Hare, 32, 43). It follows that the mere fact that the particular amount of a legacy has been paid into a pal‘ticular bank, or placed in certain custody or carried _to _a particular account until the question of the ownership 15 decided, does not per so take the case out of the ordinary rule (Attorne_1/- General v. L/trues). Thus, in Du_r/dale v. Dugrlole (1849, 12 Beav. 247), although a legacy for a class of next of kin directed to be raised out of the real estate had been raised and carried to a separate account in the suit, costs afterwards incurred in ascertaining the class were ordered to be paid out of the general estate.

The test seems to be, have the executors, as such, lost Ill dominion over the legacy or trust fund? If they have not, the rule does not apply. Where, for instance, a testator bequeathed 8 fund to trustees on trust, to pay the interest to a tenant for lifei without any bequest of the corpus, or with a bequest thereof Oi doubtful validity, so that the corpus might ultimately become part of the residuary estate, the corpus of the fund will be regarded 1" assets of the testator’s estate unadministered, ultra the life estate, and the costs of a suit to determine the construction or validill of the gift will fall on the residuary estate (P8fl""l.7f°” ,v' Buckley, 1848, 6 Hare, 451). “The payment of a legacy While debts are unpaid," said Wigram, V.C., in that case, “ may fumuh a just inference that there are assets to pay debts. Bl1t_ the transfer of the stocks by [the exccutrix] to the trustees furnished no inference that the residue of the stocks might not be wflllted for purposes having priority over the claims of the 1‘05l(llll1TY legatees. Something more, therefore, as it appears to me, was wanted thc day after the transfer to entitle the residuary 1831119993 to say that this portion of the testator’s estate was so complelig


administered and separated from the testator’s general estflwi transferred to themselves, that the personal representative °i the

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original testator had lost all dominion over it. The case is the same as if there had been a direction to set apart a sum of money to provide for an annuity for life, and no subsequent disposition of the fund had been made; would such an application of the sum, ipsofizclo, make the trustees of it trustees for the next of kin or the residuary legatees of the testator? I think it clearly would not.”

It is, of course, clear that, after a trust fund has been actually placed in the hands of the trustees thereof by the executors— such trustees being different persons from the executors—-it is to be considered as severed from the bulk of the estate, so as to make the rule we are now considering applicable (see the decree in Jenour v. Jenour, 10 Ves., at p. 573). The dilficulty arises where the executors are themselves also the trustees of the fund. Will their assent to the trust bequest (whereupon they forthwith become trustees: Dix v. Biujford, 18-54, 19 Beav. 409) constitute such a severance of the trust fund as to make the rule as to costs apply? In Dix v. Burford it was laid down that “the moment the executors assented to the bequest [of £400 to themselves in


_ (ii.) Registration of l>0imdaries.—Another incessant source of difliculty in the Land Registry has been the description of estates. Every estate must have its map and its tracing; every map and tracing must be made to a certain scale from a public map ; Wl1Pn made it must be passed by the Surveyor-General ; weeks are sometimes spent in correspondence over little points raised on thése maps which to an ordinary purchaser on the spot would be explained away in ten minutes. (It is not quite clear what is this ob]ect of this extraordinary care under Lord Cairns’ Act, considering that that Act does not profess to register boundaries, but it is the case notwithstanding). Here, again, we see the fatal effect of the cast-iron system hitherto adopted. A mistake in a map mav deprive someone of his land; therefore all maps must be examined by the Surveyor-General himself, and compared with the oflir-ii

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children, and the executors became mere trust_ees_ for them of that
fund. It would seem, therefore, that, on principle, the assent of 9,

the executor to a bequest to himself in trust would be a sutficient very

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“licensed surveyors.” These are local surveyors who have passed n ‘ ‘

examination and are authorized to act for the office, charg_ng cheap rates, in all matters of mapping. Their maps are ded in, signed, with the application, and the office accepts them

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assent would be held to constitute a sufficient severance for the and

conclusive even against unconscious third parties without

P"1'P0%s0f the rule as to costs which we are now ¢°I1Bi<loring- compensation in case of error. There is a collection of twenty-two

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istakes made by licensed surveyors during the first five years of South Australian Registry. They are in a return to the gislature cf that colony made in 1864 ('Papers—House of ssembly—Return, vol. 3, 1864, p. 173). They include specimens

It lg 5° be Ollficrved that, in the reported cases in which a legacy of every error that can be imagined almost. All these mistakes

or trust_fund has been held to be severed from the bulk of the l§Btstor"s estate for the purposes of the rule as to costs, a considerable period had elapsed since the testatur’s death. Thus, in 1; Jenour v. Jenour (ubi suprd) the trust fund had been for seventeen 5 _y8&rs_ out of the hands of the executor (see 10 Ves., at p. 573); 111Kmg v. Taglor (1801, 5 Ves. 809) part of the legacy had been

paid over to the legatee five or six years before the hearing; and 3 In Harimaau v. Rogers (ubi supni), also, about eight years had

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'l“P5edf1'0m the testator’s death until the hearing Of the 0l1fl8- themselves it is an equally common remark that the registered

§°mc stress appears to have been laid on this circumstance in d . ‘"0"’ Y- Jsnour (ubi suprd), but it is considered that it is really {mmt°ml;_t_li8 only question is, Have the executors, as such, Wt 8-ll dominion over the fund?

(2) The question with regard to which the costs are incurred must relate e.vclusi'velg to the interest in, or oiomrrs/zip of, the legacg

escriptions will never be satisfactory until something like the

excellent English lithe maps are constructed to supersede the gr

ossly inaccurate Government surveys (South Australia—Parlia

mentary Papers, 1861, vol. 3, No. 192, Report 13, for one out of many references that might be given).

If the insurance system can be so applied in practice as to

°"l'1'"*3fi'1lll; it must not be a question between the person claiming render the registration of absolute titles as easy as the acceptance we 19880)’ or trust fund and the ersons claimin the bulk of the of titles on sales by ordinary purchasers, and also the registration

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boundaries and their subsequent manipulation and alteration,

2'3 Paflble at all (Jenour v. Jenour, ubi suprii, p. 572; Ell v. specially on sales in lots, at a reasonable expense, it will, no

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doubt, entitle those who have introduced it to claim that they have
done a good deal. Whether such a result is possible, however, ex-
perience only can decide. In a similar manner it seems possible

Shtdwelli V-C-, added another qualification—viz., that if the that the insurance fund might be utilized to render the verificallllefllwll arose as to the construction of the bequest of the legacy tion of instruments easier than it is at present, and to furnish i)r.dt"}"l7 fund, the costs must be borne the residue. He conveniences in respect of oificial searches, cautions, and notifying U It d°“'T1, in lVilaon v Squire (ubi suprd), that “if the cessation of charges, and even to reduce the magnitude of

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go°“l7l°11BlIl1at arise on his will respecting it.” It is submitted, lessness, and to rely too much on the compensation principle. It
fimvgever, that this is no longer law, and that if a legacy or trust will be remarked that a purchaser in most cases does very dis-

qneatillas been severed as above described, it is immaterial that the by the liwgill {egard to which the costs are incurred is occasioned , . .

tinctly desire to obtain the definite plot of 1an_d that he_ has bought, and that, however satisfactory it may be in Australia to

(uh. m lglllty of the testator s viill. Both in Jenour v. Jenour receive only a certainty of money damages iii case of loss, yet

decidgprdl and zllartineau v. Rogers (u_bi suprd) the questions

that in England something more than this will be required to


Were on the construction of the Wlll. hmeet the necessities of the case. This objection is a weighty


one, but there are considerations which enable it to be answered with some confidence. Let us divide the possible sources of crrer, as we did before, into (1) first registrations, and (2) registered dealings. In first registrations it is tolerably clear that neither a whole estate, nor any material part of it, could be registered wrong without fraud. Now careful inquiry has shewn that even the slight degree of publicity created by deed registries has sufiiced to exclude fraud entirely from the counties of Middlesex and York; therefore, it may he expected that the considerably greater publicity attending all applications for first registration will exclude it also. Passing from fraud to mistake, the only mistakes possible will be from dormant claims—a risk which (judging by the common conditions of sale now submitted to) purchasers are now content to run, even without an insurance fund, and small errors as to boundaries which the ordinary purchaser, again, is usually content to buy in the auction room subject to a condition making them matter of compensation merely. At any rate, as a wide discretion in the matter will probably be given to the board, it will not be diflicult to correct any tendency to undue indulgence as soon as its effects are complained of. Secondly, asto the probability of errors in registered dealings. If the Australian practice is copied in this matter, which by all accounts is quite facile enough for business purposes, we may expect to sufier no more from fraud or error than the Australians have hitherto done. Now the Australian statistics give no instance of a registered purchaser yet losing the substance of his purchase ; and, as to mistakes in details, the figures given in our last issue but one shew that the extent of the risk incurred by a purchaser of having to accept money compensation only as to a portion of the land purchased has hitherto been somewhere about ,-5-015,,-,,_

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Besides adding to the Land Transfer Act of 1875 the three important practical features of (I) compulsion, (2) confirmation of titles and boundaries, and (3) an insurance fund, the present Bill makes (4) an administrative change. The present oflice of land registry is “ conducted by a registrar appointed by the Lord Chancellor, with such number of ofiicers as the Lord Chancellor (with the concurrence of the Treasury as to number) may from time to time appoint~”—such registrar being a barrister of ten years’ standing, and the assistant registrar being a barrister or solicitor or certificated conveyancer of five years’ standing (section I06 of the Act of 1875), thus practically excluding all but professional lawyers from influential posts. The new Land Transfer Board will consist “of a registrar-general, a chief examiner of titles, and an assistant registrar, appointed by the Lord Chancellor” (Bill, clause l). There is no provision for increasing the numbers of the board, nor is any professional qualification expressly required for membership, or indeed for either of the three named posts. The memorandum prefixed to the Bill also definitely states that the hoard is intended to comprise “persons of experience in organization and administration as well as in conveyancing.”

Now, although the terms of the memorandum have created in some quarters an impression that the professional lawyer will have but a small voice in_ the deliberations of the board, yet, when the provisions of the Bill are considered, it would seem more probable that he would have a good working majority of two to one; and that the new board will difier but little from the old staff. For the old staff practically consisted of the registrar and assistant registrar, with the advice, on conveyancing matters, of either one or other of the two examiners of title ; the new board will consist of the chief examiner of titles, who obviously must be an experiencedconveyancer, and of the registrar and his assistant, of whom it is at least unlikely that both will be laymen. Still the fact should be observed. that the casting vote on the board (on which much that is of importance to persons transacting business Wltll 19-115: W111 depend) will be determined according as it is thought right or wrong to select both the registrar and his assistant

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estggfgglle fit if l8_75 and the present Bill contain provisions for

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framers of the Bill have failed to express their intentions, or have
omitted to make necessary provisions; because, if this be so, the
defects will no doubt be remedied by those charged with the con-
duct of the measure directly their attention is called to them. Our
object has been different. It has been to try and lay before our
readers the broad effect of the proposals now intended to be made,
on the assumption that they will in the end be expressed with
accuracy and completeness, and will be enacted by the Legislature.

We understand thit the Council of the Incorporated Law Society
and the Bar Committee have both been requested by the Lord
Chancellor to report upon the Bill, and that remarks and sugges-
tions from individual convcyancers have also been invited. It is
possible that both the Bill and the Land Transfer Act of 1875,
which it enforces, may receive much alteration in the passage of
the measure through Parliament. Further, there are the rules still
to be published, on which much of the practical effect of the
system will depend.

We propose, then, to defer making more detailed statements as to the operation of the measure, as a whole, until more information is before us. It will be remembered that clause 2 leaves the application of compulsion entirely subject to orders in council, and that clause 47 enables such orders to be revoked and altered. So


that the passage of the Bill into law will not involve or authorize
any step utterly beyond recall.

THE LAND TRANSFER BILL. (To the Editor of the Solicitors’ Jour-nah]

Sir,—There seems to be a. chance of this Bill, with its compulsory clauses, being hurried into law, and I would suggest that such clauses should not come into force for, say, five years from the passing of the Act. This period would be suflicient to shew how the Act would work and in what respects it might, with advantage, be amended With the experience before us of the confusion introduced by the Judicature Acts and their endless rifles, and of the trifling value of the advantages gained by the changes made, it seems desirable that no such radical change as that proposed with regard to land transfer should be made without ample time being allowed to test the value of the scheme. B




Saturday the 30th day of April 1354-_

Whereas the Secretary of State for India in Council has by 11 _l1°i1°° dated the 19th A ril 1887 stated that he is willing to grant 111 ex’ change for India Flour pounds er centum stock and India Four pounds per centum stock certificates a like amount of India Three p0\}!1d5 tel‘ shillings per centum stock and India Three pounds ten shilllljgs W centum stock certificates respectively and that the holders of India Foil? pounds er centum stock or stock certificates who may avail themsclieds of his olfier will receive on the 6th July 1887 a. pxayment of One P°“n twelve shillings and sixpence per centum on t e amount of stock 31‘ stock certificates surrendered being a quarter's interest at Four pflllll 5 per centum per annum to that date and Ten shillings per 6811911111 P“ annum for a year and a quarter to October 1888 paid in advance. f

And whereas by the said notice it is required that the hold_e!‘B,;1 India Four pounds per centum stock or stock certificates should BISERI; their assent to the Secretary of State for India in Cfllmfill and f such assents must be delivered at the oflice of the Chief A.O6011l1t8l1t 0 the Bank of England on or before Wednesday the 1st June 1887. k

And whereas a large amount of India Four pounds per centum sffocof is now standing to the account of the Pa aster General on bell’! fr the Supreme Court of Judicature at the giink of England “Pd It 15 l(:_ the advantage of the persons interested in that stock that it _be co r verted into a like amount of India Three pounds and ten 511111193” Pet centum stock in accordance with the said notice and it is alB0 exgeihffi that any amounts of India Four pounds per centum stocli 8-'1 3 to Four pounds per centuin stock certificates which may be Tlausffiulike the said account before the lst June lS87 should be converted 111 manner. ' er

Now I do order that the Payniaster General do signify in the_m;‘i}$ee directed by the said notice his assent to the convemion inw Indifld an Pmmds hm shining“ Per centum stock or India Th!“ POM S "til


(shillings per centum stock certificates respectively in accordlmve “'1

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May 7, 188']. g g run SOLICITORS’ JOURNAL. iii


the said notice of all such India Four pounds per centum stock and
India Four pounds per centum stock certificates as shall on the let June
1887 be standing to his account on behalf of the Supreme Court of
Judicature (excepting so much thereof as he may by any order made in
the Supreme Court or in Lunacy be directed to exce t) and do cause
such assent to be delivered at the oilice of the Chief dbcountant at the
Bank of England on the said lst June 1887.

And I do further order that when such conversion shall have been
effected the Paymaster General do place to the credit "of the- several
accounts on which such India Four poimds per centum stock or stock
certificates shall be standing in his books corresponding amounts of
India Three pounds ten shillings per centum stock or stock certificates
and do write ofl‘ such India Four pounds per centum stock or stock
certificates from the same accounts.

And I do further order that after the 1st June 1887 the Paymastcr General do as far as may be practicable give effect to all direct-ions contained in any order fiat report or certificate made in any division of the Supreme Court of Judicature or in Lunacy and to all powers of attorney an other instruments which shall be in force on that day and shall refer to any India Four pounds per centum stock or stock certificates converted in ursuance of this Order as if they referred to India Three pounds ten shillings per centum stock or India Three pounds ten shillings per centum stock certificates.

And I do further order that the Paymaster General do hold the sum of Twelve shillings and sixpence per centum part of the said sum of One pound twelve shillings and sixpencc per centum and pay and apply the same quarterly from time to time in like manner as the same would have been applicable if it had not been received in advance.

We concur in this Order,
Hsnannr Eosracr: Maxwnnn.

N.B.—Having regard to the above Order suitors are informed that
any order excepting amounts of India Four pounds per centum stock
or certificates from the conversion above directed should be left at the
Pay Ofiice not later than Friday the 27th May 1887.

W. HENRY WHITE, Assistant Paymaster General.

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This was an appeal by the plaintiff from the decision of Manisty, J. On January 28, 1882, the plaintilf was appointed chemical superintendent of the defendants’ works at a salary of £600 per annum, the engageinentto be terminated by six months’ notice in writing on either side. 0M5!_2?,_1335. a receiving order was made in the Chancery Division on the application of some debenture holders of the company, by which a man named Thorn was appointed receiver and manager of the company. Q11 _Mny 28, 1885, the company passed a resolution for its voluntary hqmdlllou, and Thorn and a man named Nutt were appointed liquidators. 011 December 16, 1885, Thoi-n’s accounts as receiver were passed, and he Wu-s discharged from his receivership. The plaintiff, who was aware of the Olrcumstances of the company, continued his employment, receiving o. salary of_£50a month till January 15, 1885, when he was dismissed by the 1-"lllldators. He then brought an action against the company for gmnllfll dismissal, claiming £300 damages as being six months’ salary bgflvhim under the agreement of January 28. The action was tried

'°f° Mfllilsty, J . , and a special jury. The jury found that the plaintiff
§°1"1!1l164_i in the service of the company after May 22, 1885, but Manlsty,

ii 85" Judgment for the defendants on the grounds that the appointment
0 the receiver had the effect of a notice discharging the company's
zgzctwts, and that the resolution for volimtary liquidation had a similar

B TCWRT (Lord Esiinu, M.R., Far and Lor-rs, L JJ.) dismissed the
ogrebh Lord Esnsn, M.R., said that it was clear that if there had been
of 5‘ one mortgage on this business the mortgagee could enter fora breach
mchimmfiage Covenants. The onl) reason a receiver was appointed in
motme! W8! to avoid the inconvenience of entries by a large number of
b t8°8B¢H. The appointment had therefore the some eifect as an entry
"lye" m°“§"8°9, and was equivalent to a discharge of all the servants of
:°'"PB'J_y. No doubt, therefore. the plaintiff had a right of action for
maingllll dismissal on Maaiy 22, 1885. But such an action could not be
um fiilllfid unless he h sustained some damage. The utmost damage
in thee could claim would be for the loss of his six months’ salary. But
rm“ Present case the plaintiff had continued in the employment of the I
more 3:’, Mt indeed on the some agreement, but at the same salary, for .
not EuI1 $11 months. He had therefore sustained no damage. and could
1,-qui dsfeed Hgfllllfib the defendants. The question as to the effect of the
appom £11 did not arise. Fur, L.J., said that he did not think the
of nub ent of such areceiver was necessarily equivalent to a dismissal
c,,cummiu';°""ntB Of the company. It would depend on the particular
merely tc CB8 oi each case, and whether the receivership was likely to be
me time $1P"“1"Y - It was, however, clear‘ here that thcrc was nothing at
o iecelverwas appointed to indicate that his possession was ,

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likely to be temporary, and therefore the appointment was equivalentto be u discharge of the plaintiif by the company. It was unnecessary to decide whether the liquidation had a. similar effect or not. Loriis, L.J., con~ curred.—CouNsizr., Kemp, Q.C., and .l{cCIynmnt,- Murphy, Q.O., and J. G. Witt. SOLICITORS, J. 0. Jar-obs ; Saunders, Haw/vqford, Bmnet, §- Co.

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A suit was instituted under the Church Discipline Act against the Rev.
James Bell Cox, incumbent of St. Margaret/s, Toxteth-park, Liverpool,
in the Chancery Court of York, for alleged illegal practices of ritual. Mr.
Bell Cox did not appear, and a mouition to refrain from such practices
having been issued and disobeyed, application was made for his suspension.
Affidavits were filed in support of the application and were sent by the
surrogate to Lord Penzunce, the judge of the court, who was in London.
His lordship read the aiiidavits and wrote a judgment in London, which
he sent down to York with directions to the surrogate that it should be
delivered if Mr. Bell Cox did not appear, but that if he appeared the
court should be adjourned for the attendance of Lord Penzance himself.
Mr. Bell Cox did not appear, and the surrogate delivered the judgment,
which directed a suspension of the defendant for six months. Mr. Bell
Cox having disregarded this ordsr, application was made for a iignijicu/vit,
which was issued by the judge in the same manner, Mr. Bell Cox not
appearing. Mr. Bell Cox then moved in the Queeifs Bench Division for
a prohibition on the ground that Lord Peuzance could not do any judicial
act outside the province in which the offence was committed, and that
since the proceedings would terminate in imprisonment of the defendant
it was contrary to natural justice to allow judgment to be pronounced by
the surrogate, who had no power to hear the defendant, but could only
adjourn the case, if he appeared, for the attendance of the judge. The
Divisional Court (Mathew, Cave, and A. L. Smith, JJ.) refused the pro-
hibition, and their decision was upheld by this Couar (Lord Esniin, M.R.,
FRY, and Lora L.JJ.).

Lord Esuim, $.11, said that there were three grounds on which a pro-
hibition would issue—namely, \vhere a court acted without jurisdiction,
or in excess of its jurisdiction, or where its action was contrary
to natural justice and violated the general principles of the law
of the land. Mere irregularity of procedure was not a ground for a pro-
hibition. In this case whatever judgments had been pronounced had
been pronounced in the province of York, although they had been
written outside the province. No judicial act, therefore, had taken place
outside the province. It was clear that Mr Bell Cox did not intend to ap-
pear, but if he had appeared the court would have been adjourned and
opportunity would have been given him of being heard. It could not be
said, therefore, that any injustice was being done which would call for a
prohibition.—-Couivsizr,, Arthur C/mrles, Q.C., Sir Waller Pliilhrnorr, and
Beaufort ; Sir Edward Clarke, S.G., and Danckwcrta ; Jeane and 18. Saunders.
Sonicirons, .Broo1l's, Jenkins, 4» 00. ; The »5'olicitor to the Treasury; Jae.

c. 4.. No. 1, sow April.

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This was an action by the executors of the late Lord Wenlock to recove
£173,000, advanced by Lord Wenlock to the defendant company, an
secured on mortgage. Huddleston, B., gave judgment for the full umcim
claimed. The Court of Appeal, on the 9th of May, 18§.'§_. held that the
defendants had only borrowing powers to the extent of £2.>,000, and gave
judgment for the plaintiffs for this sum with interest, and also for so
much of the sums advanced as was employed in the payment of any debts
or liabilities of the defendant company_properly payable by them, _W1tl1
interest thereon, and the court referred it to a. special referee to inquire as
to. and report the amount of, the sums so employed as aforesaid. The
referee having heard counsel and witnesses, and having made his report,
the plaintiffs now moved the Court of Appeal to have the {9!1° "Fed, "1
certain particulars, when the defendants took the preliminary objecti_on
that the reference was under section 57 of the udicature Act; IE/3.
and that the findings of the referee under that section were equgfi _en tr;
the verdict of a jury, and the motion ought to be made III. the ivisiolna
Court. It was contended in support of this objection that a referplemad
no power to examine witnesses upon a reference under section 56, and lg
as the referee hero had, from the necessity ot the case, exa_nim§7 wi -
nesses, the reference must have_bee_n intended to be under sectionth th
Tun Counr overruled the objection. LOI'd._E§l'£B|l, M-B--» fmld 5 d;
only diiference between a_reference under section -)6 and a reeelrcznce un It
section 57 was thlsfthat in the first case the case was. referr “pr NP‘) é
so that the court might adopt the report, or reject it snnply on , eflilélilgl
that it disagreed with it; whereas in the secpnd case t-be referee s rt “)8;
were to have the effect of the verdict of! Jury, 5° Fhit 111% 1'°P° fig be
only be set aside on the ground upon which the V6l‘1‘i‘l?E of_a jury 00 rt H
set aside. Under section 56 the reference was for _inqliiry I111 19:0 t
"Inquiry" was not_ limited what a man saw with .l1lB_0Wl1_9Y"3"u.
signified ii judicial mquu-y_ with witnesses. The wordfi ;n;1sl1g!'7; trial"
used because, in the result, it was not to have tho same e deo in aims, he
under section 57. His Lordship said that, hH_Ym8 7-1*; goon?) of that
found that the matter had always been dealt with onbe.e the ifivuiable
b ‘ the onl difference between the two sections, it ing

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practice for a referee under section 56 to hear counsel and wi


Affor such s consensus of action, the section could not be construed otherwise. The reference, therefore, was under seclion 56. Far, L.J., said that the order of reference ought to state under which section the reference was directed. The forms given in the appendix contained this statement, and those forms ought to be followed. The obvious intention here was to direct a reference under section 56, and no doubt it was intended that the referee should take evidence. The motion was therefore properly made to this court. As to whether, in a reference under section 56, the referee could take evidence and hoar witnesses, his lordship doubted whether the Legislature intended the referee to do more than make an inquiry himself, and not from other persons. It seemed to him to be the intention to extend to all the courts the power given to the Court of Chancery by 15 5: 16 Vict. c. 80, s. 42, of calling in the assist-nice of scientific persons. The form of reference under section 56 given in the appendix contained no power to examine witnesses, whereas the form under section 57 did. It would be advisable, if the referee was to examine witnesses, to give such a power on the face of the order of reference. Having sfafod his doubt, his lordship was glad that the practice was the other way, as it gave a beneficial operation to section 56. Lorna, L.J., said that though the form in the appendix of a reference under section 56 contained no provision for the examination of witnesses, whereas the form under section 57 did, yet the forms were no part of the Act. He agreed with Lord Esher, M.R., that under the word “inquiry,” in section 56, the referee had power to examine witnesses. That had been the invariable practice, and the narrower construction of the section would

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y en i e to t e property), a deed was executed by which, after an erroneous recital that no surrender had been mad in

e pursuance of Edward Hammond's covenant, the trustees of the settlement purported to grant, bargain, and sell the copyholds to Anna Dench absolutely in fee simple. Anna Dench afterwards married one Gilbert, and a settlement was then executed by which her interest in the copyholds was vested in trustees. She died in March, I856, and in March, 1884, Edward Hammond (who during all this time was the tenant on the rolls of the manor) died, his executors being the defendants Bromley and John Edward Hammond. The trustees of the Gilbert settlement sold the property, and the question arose who were the proper persons to be admitted as tenants in order to make a title to the purchaser. Bacon, V.C., on a summons under the Vendor and Purchaser Act, decided that the defendants, as executors of Edward Hammond, were the PT°P6r persons to admitf/ed. They were admitted tenants on May 13, 1885, and the question was then raised what fines were payable to the lords of the manor on the admittarice. Besides the fine on the admission of the defendants, tho lords_claimed two other fines-—viz., a flue in respect of the legal estate which, as they contended, became vested in_ Anna Dench, as appointee under the conveyance of the Dench trustees in 185$; and a fine in respect of the legal estate which, they alleged, vested in Edward Hammond as customary heir of Anna Dench, he bemg her brother. Kekewich, J., held that only one fine was payable.

TH! boom" or Arrnr. (Corron, L.J., Sir J. HANNBN, and LINDLBY, L.J.) sflirmed the decision. Co-rrox, L.J., said that the purchaser had not only to be satisfied that there was a good legal title, but that there was a 8°°d 9q\11§Bble t1_t»le to the property. He must see that all persons entitled :1 an eguitagle interest in the property concurred in or authorized the

9- Ill? i B lord had nothing to do with equitable interests; he was only concerned with the legal tenant on the rolls. The case was very fi1I:g1’€i“1"ti<i1!"‘;\e:"<’lt§l£1mmon¢_1 was duly admitted as heir of Mary Hammond, insist on the Burmzacmaiped on the rolls. Those who had the right to 1853 was an a intmztto £1849 t-M not d° 8°’ andem‘ ‘f theMd °f _ PP° *1 ° ,\1s_@s.1l= was very doubtful whether the lord could have enforced admission. But in truth th 1; d d such an appointment. Instead of refer:-in to tll] ee Y1 not Edward Hammond, as it would have done if had be “Hen Br ' by ment in furtherance of the object of that and an lipptgnh contained a recital that no such amend Bll1l‘1!"f51 eg, la e eed Edward Hammond remained on the rolls as tru teerf em madewhen she dealt with her equitable interest hes 8 :1l;,Anna Denchand’ trustee, and he was still there as trustee for therem ed on the mus as sale. No doubt, a covenant to surrender, engfiolgghdgililrdiz

consideration, was binding as between the surrsnderor and the surrenderes, but the lord could not enforce it, and the surrendsror and the surrenderee could by agreement exclude the necessity of admittance, and could leave the surrenderor on the rolls as trustee. It would be different if the title depended on admittance, but that was not the case here. Sir Janus Harman concurred. Lizvnuir, L.J., said that, as a general rule, no fine was payable except on an admittance. Admittance depended on the legal estate, and the lord could look at that only. The legal title had been in Edward Hammond all along. and, when he died, it devolved upon his statutory heirs. They were therefore to be admitted. and a line was payable on their admittance. If they were not equitably entitled they would be trustees. But that was no concern of the lord; the legal title would be complete.—CousssL, Barber, Q.C., and Archibald Brown ; Elton, Q,.C., and Challis. SOLICITORS, Ii. Furber; Aldridge, Thorn, Q Co.

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The question in this case was whether the Court in Lunacy had jurisdiction to authorize a sale of real estate of which a lunatic was mortgagee, and, at the same time, authorize the committee, in exercise of an oidinarytpower of sale contained in the mortgage, to convey the esiats, when sol , to the purchaser. The practice in such cases has been, after a purchaser has been found, to vest the estate in him by means of a vesting order under the Trustee Acts. It was argued in the present case that the court had jurisdiction to authorize the committee to convey to a purchaser, either under section 136 or under section 116 of the Lunacy Regulation Act, 1853. Section 136 provides that “ when A power is vested in a lunatic for his own benefit, and such power is in the nature of a beneficial interest in the lunatic, and it appears to the Lord Chancellor to be for the 1unatio's benefit, and also to be expedient that the power should be exercised, the committee of the estate may, in the name and on behalf of the lunatic, under an order of the Lord Chancellor, made upon the application of the committee, exercise the power in such manner as the order shall direct." And by section 116 “where it appearsto the Lord Chancellor to be just and reasonable, or for the lunatic's benefit. he may order that any estate or interest of the lunatic in land" be sold for the purpose of raising money to be applied for certain specified pur


P Tm: Oounr (COTTON and LINDLBY, L.JJ.) held that section 136 did not apply. A power of sale in a mortgage, which was only an equitable power to bar the mortgagor's equity cf redemption in the mortgaged P1'°P"IY. was not a power within the meaning of the section. It was more doubtful whether section 116 applied, but it would be dangerous to introduce a new practice. The court accordingly only authorized a sale of the mortgaged property, without empowering the committee to convey W the purchaesr.—Oounsar., H. .l{. Huznphrey. Soricrrons, Torr 4- Ca.

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This was an appeal from a decision of Chitty, J., the question beinfl whether the trustees of a testator’s will were, under the circumstannflr entitled to legacies which he had bequeathed to them. He bequeathed-“To my two trustees. J. and 8., per annum of (aw) each for their services and collecting of rents, &c., £25." The testator had a number of houses, many of which were let to weekly tenants. The annual income arising from the houses amounted to between £1,700 and £1,800. Th° trustees did not collect the rents themselves, but employed a collector at I» commission of 5 per cont, or about £90 per annum. This was nn_8°il°" to administer the testatoz-'s estate, and the Chief Clerk, by his iidfblflfidtzi allowed the trustees the commission paid to the collector, but disallow to each of them the legacy of £25. Chitty, J ., affirmed the_dscinon,3 the ground that, as the trustees had not performed the service for whl the legacy was given to them, they ought not to have it. ed

Ti-in COURT or Aeran. (COTION, Lmntnr, and BOWEN, L.-I-I-) llflkmwd the decision. Corrox, L.J., said that the trustees might have also ! whether they would collect the rent themselves and have the £25.“; employ a collector at a salary. But, in his lordship‘s opinwlli I415 intended to give the £25 to the trustees to cover the expenses of collecting the rents and the other services which they would have to P61I°mh“ trustees. Other parts of the will showed that the testntor tllfluflmf the these sums of £25 would be the only deductions from the income 0 d to property. The trustees had asked the court to apportion the 525. °““ec_ allow them a part of it in respect of their services other than thchfll the tion of the rents. If the sum paid to the collector had been 19" t mum two sums of £25, this might have been reasonable; but the who fwd’ which the testator thought reasonable for expenses had b°°“ fl ,_ exhausted. The point was in no way covered by auth0l'1W- _W'”".'",']mh,,d

W1:/...“... (2 Sim. & st. 231), and 12.11." v. .i[m.*.. (s sun. 2v). WlL ,,

been cited. were entirely different from the present case, Ln:ni.s;')»w and Bowsx, L.J., (Z01'lCll1'!'6d.—COUNHBl., Jlaclean, Q.C-1 Md dump é Roma, Q..C., and J. R. Puget; Stallard. So1.ici'rca.s, G. J. V¢"df'F '

Son ; A. I’. Jackson ; Warren, Gardner, §' illurton.

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