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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 affidavit 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 11. 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.

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WE CHRONICLE elsewhere the death of Mr. JOSIAH W. SMITH, Q.C., a learned ex-judge who was for many years the MALINS of the county court bench. Like the lamented Vice-Chancellor, 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 Policy." Accordingly, the learned judge for many years pursued his 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 interpreted by 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 1878 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 Division, and shortly afterwards he retired from the bench. Peace be to his ashes! He meant to do even-handed justice, and we have always doubted whether the Queen's Bench Division treated him quite fairly. The result of his stereotyped form of reply" 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.

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THE INCIDENCE OF ADMINISTRATION COSTS.

II.

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 administration costs falling on the residuary personal estate do not include :

:

(a) The costs of determining questions arising with regard to, and relating exclusively to, a legacy or trust funt 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; Martineau v. Rogers, 1856, 8 De G. M. & G. 328). "As 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 of 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 bulk of the estate. 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 between 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. Lawes, 1849, 8 Hare, 32, 43). It follows that the mere fact that the particular amount of a legacy has been paid into ticular bank, or placed in certain custody or carried to particular account until the question of the ownership is decided, does not per se take the case out of the ordinary rule (Attorney-General v. Lawes). Thus, in Dugdale v. Dugdale (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.

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The test seems to be, have the executors, as such, lost all dominion over the legacy or trust fund? If they have not, the rule does not apply. Where, for instance, a testator bequeathed a fund to trustees on trust, to pay the interest to a tenant for life, without any bequest of the corpus, or with a bequest thereof of doubtful validity, so that the corpus might ultimately become part of the residuary estate, the corpus of the fund will be regarded as assets of the testator's estate unadministered, ultra the life estate, and the costs of a suit to determine the construction or validity of the gift will fall on the residuary estate (Pennington v. Buckley, 1848, 6 Hare, 451). "The payment of a legacy while debts are unpaid," said Wigram, V.C., in that case, "may furnish a just inference that there are assets to pay debts. But the transfer of the stocks by [the executrix] to the trustees furnished no inference that the residue of the stocks might not be wanted for purposes having priority over the claims of the residuary legatees. Something more, therefore, as it appears to me, was wanted the day after the transfer to entitle the residuary legatees to say that this portion of the testator's estate was so completely administered and separated from the testator's general estate, and transferred to themselves, that the personal representative of the

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, ipso facto, 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 executorssuch 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 difficulty 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. Burford, 1854, 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 trust] they became trustees for their cestuis que trust; the £400 then ceased to be part of the testator's assets, and it became a trust fund for the benefit of the plaintiff for life, and afterwards for his children, and the executors became mere trustees for them of that fund." It would seem, therefore, that, on principle, the assent of the executor to a bequest to himself in trust would be a sufficient severance to throw costs subsequently arising, with regard to questions relating exclusively to the trust fund, upon such fund; but we have not been able to discover any reported authority upon the question. And, considering the comparatively slight circumstances from which an assent by the executors to hold as trustees may be implied, it may perhaps be doubted whether an implied assent would be held to constitute a sufficient severance for the purposes of the rule as to costs which we are now considering. This is a point of considerable practical importance, and, consider ing the frequency with which the question must have arisen, it is surprising that (so far as we can discover) it is not covered by authority.

THE LAND TRANSFER BILL.

V.

IV. THE INSURANCE FUND (Continued).

(ii.) Registration of boundaries.-Another incessant source of difficulty 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; when made it must be passed by the Surveyor-General; weeks are sometimes spent in correspondence over little points raised on these maps which to an ordinary purchaser on the spot would be explained away in ten minutes. (It is not quite clear what is the object 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 may deprive someone of his land; therefore all maps must be examined by the Surveyor-General himself, and compared with the office maps in all their minutest particulars, and sent back for correction or explanation wherever the smallest inaccuracy or doubtful point occurs. In Australia the office has all this work done for it by "licensed surveyors." These are local surveyors who have passed an examination and are authorized to act for the office, charging very cheap rates, in all matters of mapping. Their maps are handed in, signed, with the application, and the office accepts them ordinarily without delay or question. This system leads to occasional inconsistencies and mistakes, but they are compensated out of the insurance fund, and business meanwhile proceeds rapidly. This delegation of important duties would be impossible were the boundaries thus delineated to be past the possibility of correction, and conclusive even against unconscious third parties without compensation in case of error. There is a collection of twenty-two mistakes made by licensed surveyors during the first five years of the South Australian Registry. They are in a return to the Legislature of that colony made in 1864 (Papers-House of Assembly-Return, vol. 3, 1864, p. 173). They include specimens of every error that can be imagined almost. All these mistakes were found out and corrected before any harm came of them. These Australian reports and returns throw a curious light on the subject in various ways. In England it is a commonplace to say that the work of delineation of boundaries must have been greatly simplified in Australia by the uniform Colonial Government surveys which existed in all cases, instead of our defective and irregular tithe and other maps (the report of Mr. O. Morgan's Committee, 1879, p. 5, is very great on this). In the Colonies themselves it is an equally common remark that the registered descriptions will never be satisfactory until something like the excellent English tithe maps are constructed to supersede the grossly inaccurate Government surveys (South Australia-Parliamentary Papers, 1861, vol. 3, No. 192, Report 13, for one out of many references that might be given).

It is to be observed that, in the reported cases in which a legacy or trust fund has been held to be severed from the bulk of the testator's estate for the purposes of the rule as to costs, a considerable period had elapsed since the testator's death. Thus, in Jenour v. Jenour (ubi suprà) the trust fund had been for seventeen years out of the hands of the executor (see 10 Ves., at p. 573); in King v. Taylor (1801, 5 Ves. 809) part of the legacy had been paid over to the legatee five or six years before the hearing; and in Martineau v. Rogers (ubi suprà), also, about eight years had elapsed from the testator's death until the hearing of the case. Some stress appears to have been laid on this circumstance in Jenour v. Jenour (ubi suprà), but it is considered that it is really immaterial; the only question is, Have the executors, as such, lost all dominion over the fund?

(2) The question with regard to which the costs are incurred must relate exclusively to the interest in, or ownership of, the legacy or trust fund; it must not be a question between the person claiming such legacy or trust fund and the persons claiming the bulk of the estate as to the amount of the legacy or trust fund, or as to whether it is payable at all (Jenour v. Jenour, ubi suprà, p. 572; Hill v. Rattey, 1862, 2 J. & H. 634, 647). The practical test appears to be: Does the question affect in any way the residuary legatee? if it does, the costs will be payable out of the residue.

Shadwell, V.C., added another qualification-viz., that if the question arose as to the construction of the bequest of the legacy or trust fund, the costs must be borne the residue. He laid it down, in Wilson v. Squire (ubi suprà), that, "if a fund is separated from the bulk of the testator's estate, and then a question arises about it, the fund pays the costs. But if the question is who is entitled to the fund in the first instance, that question is raised by the testator himself, and his estate must bear the costs; for a testator's estate bears the costs of all the questions that arise on his will respecting it." It is submitted, however, that this is no longer law, and that, if a legacy or trust fund has been severed as above described, it is immaterial that the question with regard to which the costs are incurred is occasioned by the ambiguity of the testator's will. Both in Jenour v. Jenour (ubi suprd) and Martineau v. Rogers (ubi supra) the questions decided were on the construction of the will.

If the insurance system can be so applied in practice as to render the registration of absolute titles as easy as the acceptance of titles on sales by ordinary purchasers, and also the registration of boundaries and their subsequent manipulation and alteration, especially on sales in lots, at a reasonable expense, it will, no doubt, entitle those who have introduced it to claim that they have done a good deal. Whether such a result is possible, however, experience only can decide. In a similar manner it seems possible that the insurance fund might be utilized to render the verification of instruments easier than it is at present, and to furnish conveniences in respect of official searches, cautions, and notifying the cessation of charges, and even to reduce the magnitude of that standing rock-the foreclosure of a mortgage. These matters we may, perhaps, revert to at a subsequent date.

4. The limits of reliance on the insurance fund.—It will probably have occurred to some, in perusing the last section, that the office may now begin to be tempted to err on the side of carelessness, and to rely too much on the compensation principle. It will be remarked that a purchaser in most cases does very distinctly desire to obtain the definite plot of land that he has bought, and that, however satisfactory it may be in Australia to receive only a certainty of money damages in case of loss, yet that in England something more than this will be required to meet 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 error, 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 sufficed to exclude fraud entirely from the counties of Middlesex and York; therefore, it may be 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 difficult to correct any tendency to undue indulgence as soon as its effects are complained of. Secondly, as to 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 suffer 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 red.

V. THE LAND TRANSFER BOARD.

Besides adding to the Land Transfer Act of 1875 the three important practical features of (1) compulsion, (2) confirmation of titles and boundaries, and (3) an insurance fund, the present Bill makes (4) an administrative change. The present office of land registry is "conducted by a registrar appointed by the Lord Chancellor, with such number of officers 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 106 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 1). 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 board is intended to comprise "persons of experience in or ganization 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 differ 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 experienced conveyancer, 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 with land will depend) will be determined according as it is thought right or wrong to select both the registrar and his assistant, or only one of them, from persons unacquainted with conveyancing practice.

Both the Act of 1875 and the present Bill contain provisions for establishing local registries and delegating duties to local officials.

We have now passed in review what we believe to be the most important practical points in the Bill. We have avoided dwelling upon incidental matters, in which it has appeared to some that the

framers of the Bill have failed to express their intentions, or bave omitted to make necessary provisions; because, if this be so, the defects will no doubt be remedied by those charged with the conduct 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 that 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 suggestions from individual conveyancers 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.

CORRESPONDENCE.

THE LAND TRANSFER BILL. To the Editor of the Solicitors' Journal.] 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 sufficient to shew how the Act would work and in what respects it might, with advantage, be amended Judicature Acts and their endless rules, and of the trifling value of With the experience before us of the confusion introduced by the 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.

NEW ORDERS, &c.

SUPREME COURT OF JUDICATURE. CONVERSION OF INDIA FOUR PER CENT STOCK.

B.

Saturday the 30th day of April 1887. Whereas the Secretary of State for India in Council has by a notice dated the 19th April 1887 stated that he is willing to grant in exchange for India Four pounds per centum stock and India Four pounds per centum stock certificates a like amount of India Three pounds ten shillings per centum stock and India Three pounds ten shillings per centum stock certificates respectively and that the holders of India Four of his offer will receive on the 6th July 1887 a payment of One pound pounds per centum stock or stock certificates who may avail themselves twelve shillings and sixpence per centum on the amount of stock or stock certificates surrendered being a quarter's interest at Four pounds per centum per annum to that date and Ten shillings per centum per annum for a year and a quarter to October 1888 paid in advance. And whereas by the said notice it is required that the holders of India Four pounds per centum stock or stock certificates should signify their assent to the Secretary of State for India in Council and that such assents must be delivered at the office of the Chief Accountant of the Bank of England on or before Wednesday the 1st June 1887. And whereas a large amount of India Four pounds per centum stock is now standing to the account of the Paymaster General on behalf of the Supreme Court of Judicature at the Bank of England and it is for the advantage of the persons interested in that stock that it be converted into a like amount of India Three pounds and ten shillings per centum stock in accordance with the said notice and it is also expedient that any amounts of India Four pounds per centum stock and India the said account before the 1st June 1887 should be converted in like Four pounds per centum stock certificates which may be transferred to

manner.

Now I do order that the Paymaster General do signify in the manner directed by the said notice his assent to the conversion into India Three pounds ten shillings per centum stock or India Three pounds ten shillings per centum stock certificates respectively in accordance with

the said notice of all such India Four pounds per centum stock and India Four pounds per centum stock certificates as shall on the 1st 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 except) and do cause such assent to be delivered at the office of the Chief Accountant at the Bank of England on the said 1st 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 pounds 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 off 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 Paymaster General do as far as may be practicable give effect to all directions 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 and 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 pursuance 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 sixpence 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.

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This was an appeal by the plaintiff from the decision of Manisty, J. On January 28, 1882, the plaintiff was appointed chemical superintendent of the defendants' works at a salary of £600 per annum, the engagement to be terminated by six months' notice in writing on either side. On May 22, 1885, 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. On May 28, 1885, the company passed a resolution for its voluntary liquidation, and Thorn and a man named Nutt were appointed liquidators. On December 16, 1885, Thorn's accounts as receiver were passed, and he was discharged from his receivership. The plaintiff, who was aware of the circumstances of the company, continued his employment, receiving a salary of £50 a month till January 15, 1885, when he was dismissed by the liquidators. He then brought an action against the company for wrongful dismissal, claiming £300 damages as being six months' salary due to him under the agreement of January 28. The action was tried before Manisty, J., and a special jury. The jury found that the plaintiff continued in the service of the company after May 22, 1885, but Manisty, J., gave judgment for the defendants on the grounds that the appointment of the receiver had the effect of a notice discharging the company's servants, and that the resolution for voluntary liquidation had a similar effect. THE COURT (Lord ESHER, M.R., FRY and LOPES, L JJ.) dismissed the appeal. Lord ESHER, M.R., said that it was clear that if there had been only one mortgage on this business the mortgagee could enter for a breach of the mortgage covenants. The only reason a receiver was appointed in such cases was to avoid the inconvenience of entries by a large number of mortgagees. The appointment had therefore the same effect as an entry by a mortgagee, and was equivalent to a discharge of all the servants of the company. No doubt, therefore, the plaintiff had a right of action for wrongful dismissal on May 22, 1885. But such an action could not be maintained unless he had sustained some damage. The utmost damage that he could claim would be for the loss of his six months' salary. But in the present case the plaintiff had continued in the employment of the receiver, not indeed on the same agreement, but at the same salary, for more than six months. He had therefore sustained no damage, and could not succeed against the defendants. The question as to the effect of the liquidation did not arise. FRY, L.J., said that he did not think the appointment of such a receiver was necessarily equivalent to a dismissal of all the servants of the company. It would depend on the particular circumstances of each case, and whether the receivership was likely to be merely temporary. It was, however, clear here that there was nothing at the time the receiver was appointed to indicate that his possession was

likely to be temporary, and therefore the appointment was equivalent to be a discharge of the plaintiff by the company. It was unnecessary to decide whether the liquidation had a similar effect or not. LOPES, L.J., concurred.-COUNSEL, Kemp, Q.C., and McClymont; Murphy, Q.C., and J. G. Witt. SOLICITORS, J. O. Jacobs; Saunders, Hawksford, Bennet, & Co.

THE QUEEN v. LORD PENZANCE-C. A. No. 1, 28th April. PROHIBITION-ECCLESIASTICAL COURT JUDGMENT WRITTEN OUTSIDE THE PROVINCE IN WHICH THE OFFENCE WAS COMMITTED-CHURCH DISCIPLINE ACT (3 & 4 VICT. c. 86).

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 monition 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 Penzance, the judge of the court, who was in London. he sent down to York with directions to the surrogate that it should be His lordship read the affidavits and wrote a judgment in London, which 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 order, application was made for a significavit, which was issued by the judge in the same manner, Mr. Bell Cox not appearing. Mr. Bell Cox then moved in the Queen's Bench Division for a prohibition on the ground that Lord Penzance 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 prohibition, and their decision was upheld by this COURT (Lord ESHER, M.R., FRY, and LOPES, L.JJ.).

Lord ESHER, M.R., said that there were three grounds on which a prohibition would issue-namely, where 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 prohibition. 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 prohibition.-COUNSEL, Arthur Charles, Q.C., Sir Waller Phillimore, and said, therefore, that any injustice was being done which would call for a Beaufort; Sir Edward Clarke, S.G., and Danckwerts; Jeune and R. Saunders. SOLICITORS, Brooks, Jenkins, & Co.; The Solicitor to the Treasury; Jas. Girdlestone.

BARONESS WENLOCK AND ANOTHER v. THE RIVER DEE CO.C. A. No. 1, 30th April.

PRACTICE-REFERENCE FOR INQUIRY AND REPORT-POWER OF REFEREE 10 HEAR WITNESSES-JUDICATURE ACT, 1873 (36 & 37 VICT. c. 66), s. 56. 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 amoun claimed. The Court of Appeal, on the 9th of May, 1883. held that the defendants had only borrowing powers to the extent of £25,000, 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, with 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 report varied in certain particulars, when the defendants took the preliminary objection that the reference was under section 57 of the Judicature Act, 1873, and that the findings of the referee under that section were equivalent to the verdict of a jury, and the motion ought to be made in the Divisional Court. It was contended in support of this objection that a referee had no power to examine witnesses upon a reference under section 56, and that as the referee here had, from the necessity of the case, examined witnesses, the reference must have been intended to be under section 57. THE COURT Overruled the objection. Lord ESHER, M.R., said that the only difference between a reference under section 56 and a reference under section 57 was this-that in the first case the case was referred for report, so that the court might adopt the report, or reject it simply on the ground that it disagreed with it; whereas in the second case the referee's findings were to have the effect of the verdict of a jury, so that his report could only be set aside on the ground upon which the verdict of a jury could be set aside. Under section 56 the reference was for "inquiry and report." "Inquiry" was not limited to what a man saw with his own eyes. It signified a judicial inquiry with witnesses. The word "inquiry" used because, in the result, it was not to have the same effect as a "trial" under section 57. His Lordship said that, having made inquiries, he found that the matter had always been dealt with on the footing of that being the only difference between the two sections, it being the iuvariable practice for a referee under section 56 to hear counsel and witnesses.

was

consideration, was binding as between the surrenderor and the surrenderee, but the lord could not enforce it, and the surrenderor 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 JAMES HANNEN concurred. LINDLEY, 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 fine 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.-COUNSEL, Barber, Q.C., and Archibald Brown; Elton, Q.C., and Challis. SOLICITORS, R. Furber; Aldridge, Thorn, & Co.

After such a consensus of action, the section could not be construed otherwise. The reference, therefore, was under section 56. FRY, 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 hear 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 & 16 Vict. c. 80, s. 42, of calling in the assistance 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 stated his doubt, his lordship was glad that the practice LUNATIC-SALE OF MORTGAGED PROPERTY-EXERCISE OF POWER OF SALE was the other way, as it gave a beneficial operation to section 56. LOPES, 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 deprive it of its beneficial operation.-COUNSEL, Rigby, Q.C., and R. O. B. Lane; Sir H. Davey, Q.C., and A. R. Kirby. SOLICITORS, Emmet, Son, & Stubbs; Ashurst, Morris, Crisp, & Co.

HALL v. BROMLEY-C. A. No. 2, 29th April.

COPYHOLDS ADMISSION-FINES.

Re HARWOOD-C. A. No. 2, 2nd May.

BY COMMITTEE-CONVEYANCE TO PURCHASER-LUNACY REGULATION ACT, 1853 (16 & 17 VICT. c. 70) ss. 116, 136.

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 ordinary power of sale contained in the mortgage, to convey the estate, when sold, 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 lunatic'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 appears to 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 purposes.

This was an appeal from a decision of Kekewich, J., the question being what fines were payable on an admission to copy holds. The plaintiffs, as lords of the manor, claimed two fines in addition to the fine admitted by the defendants to be payable by them on their admission. Mary Hammond, widow, was at the time of her death in 1847 tenant of the copyholds. By her will she appointed trustees, with a power of sale of the copyholds, but gave them no estate. Edward Hammond, her customary heir, was admitted tenant at her death. The trustees sold the copyholds to Anna Hammond. Before any conveyance of the property was executed she married James Dench, a settlement, dated July 10, 1848, being executed on the marriage. On December 21, 1849, the trustees of Mary Hammond's will conveyed the property to the trustees of Mrs. Dench's settlement, Edward Hammond entering into a covenant to surrender the property to the use of the settlement, and, on December 22, 1849, Edward Hammond surrendered to such uses as the trustees of the settlement should appoint, and, in default of appointment, to certain specified uses. This surrender was presented on May 27, 1850. On March 18, 1853 (at which time, James Dench having died without issue, Anna Dench had under the provisions of her settlement become absolutely entitled to the property), a deed was executed by which, after an erroneous recital that no surrender had been made in 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 copy holds was vested in trustees. She died in March, 1856, 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 proper persons to be admitted. 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 admittance. Besides the fine on the admission of the defendants, the lords claimed two other fines-viz., a fine 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 1853; and a fine in respect of the legal estate which, they alleged, vested in Edward Hammond as customary heir of Anna Dench, he being her brother. Kekewich, J., held that only one fine was payable. THE COURT OF APPEAL (COTTON, L.J., Sir J. HANNEN, and LINDLEY, L.J.) affirmed the decision. COTTON, L.J., said that the purchaser had not only to be satisfied that there was a good legal title, but that there was a good equitable title to the property. He must see that all persons entitled to an equitable interest in the property concurred in or authorized the sale. But the lord had nothing to do with equitable interests; he was only concerned with the legal tenant on the rolls. The case was very clear. Edward Hammond was duly admitted as heir of Mary Hammond, and till his death he remained on the rolls. Those who had the right to insist on the surrender of 1849 did not do so, and, even if the deed of 1853 was an appointment of uses, it was very doubtful whether the lord could have enforced admission. But in truth that deed was not such an appointment. Instead of referring to the surrender by Edward Hammond, as it would have done if it had been an appointment in furtherance of the object of that surrender, the deed contained a recital that no such surrender had been made. Edward Hammond remained on the rolls as trustee for Anna Dench, and, when she dealt with her equitable interest, he remained on the rolls as trustee, and he was still there as trustee for the persons who directed a sale. No doubt, a covenant to surrender, entered into for valuable

THE COURT (COTTON and LINDLEY, 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 of redemption in the mortgaged property, 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 to the purchaser.-COUNSEL, H. M. Humphrey. SOLICITORS, Torr & Co.

Re MUFFETT, JONES v. MASON-C. A. No. 2, 4th May. WILL-CONSTRUCTION-LEGACY TO TRUSTEES" FOR THEIR SERVICES." This was an appeal from a decision of Chitty, J., the question being whether the trustees of a testator's will were, under the circumstances, entitled to legacies which he had bequeathed to them. He bequeathed: "To my two trustees, J. and S., per annum of (sic) 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. The trustees did not collect the rents themselves, but employed a collector at a commission of per cent., or about £90 per annum. This was an action to administer the testator's estate, and the Chief Clerk, by his certificate, allowed the trustees the commission paid to the collector, but disallowed to each of them the legacy of £25. Chitty, J., affirmed the decision, on the ground that, as the trustees had not performed the service for which the legacy was given to them, they ought not to have it.

THE COURT OF APPEAL (COTTON, LINDLEY, and BowEN, L.J.J.) affirmed the decision. COTTON, L.J., said that the trustees might have elected whether they would collect the rent themselves and have the £25, or employ a collector at a salary. But, in his lordship's opinion, the testator 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 perform as trustees. Other parts of the will shewed that the testator thought that these sums of £25 would be the only deductions from the income of the property. The trustees had asked the court to apportion the £25, and to allow them a part of it in respect of their services other than the collec tion of the rents. If the sum paid to the collector had been less than the two suins of £25, this might have been reasonable; but the whole sum which the testator thought reasonable for expenses had been already exhausted. The point was in no way covered by authority. Wilkinson V. Wilkinson (2 Sim. & St. 237), and Baker v. Martin (8 Sim. 25), which had been cited, were entirely different from the present case. LINDLEY, L.J., and BowEN, L.J., concurred.-COUNSEL, Maclean, Q.C., and Oswald; Romer, Q.C., and J. R. Paget; Stallard. SOLICITORS, G. J. Vanderpump & Son; A. P. Jackson; Warren, Gardner, & Murton.

WARD v. DUDLEY-Chitty, J., 27th April.
FIXTURES-MINING PLANT-BLAST FURNACES-MINING RAILWAY-SETTLE-

MENT- -TENANT FOR LIFE WITH POWER OF WORKING MINES-TRADE
FIXTURES-VALUATION OF FIXTURES.

In this case a receivership motion was made for the purpose of obtaining

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