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THE LIMITS or THE RULE IN csoaca o. cmcarr.

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doubtful, but because it appears to be the first occasion on w i ‘ lu

statement of the result of the decision. If the equity depends iinqn 9 belief. it surely can only arise mm a belief which the plaintiff has caused in some way—or, in other words, which the defendant was entitled to derive from his conduct. Nice questions may conceivably arise as to what conduct or circumstances would stify such a belief on the defendant's part. It seems hardly

. . _ h ch _ the sub]ect involved has come before the highest legal tribunal. l possible to lay down any general rule on the subject, as it must

The question was as to the true limits of the doctrine laid down de

pend apparently on the circumstances of each particular case.

in the well-known case of George v. Clagett (7 T. R. 359, 2 sm_ i With regard to persons the nature of whose business is notoriously

L. C., 8th ed., p. 118). The head-note to that case states the °“

ly to act as agents or go-betweens, such as some kinds of brokers,

result of the decision as follows—viz., that, if a factor sells goods there would generally be very little question. In George v.

as his own and the buyer knows nothing of any principal, the C

agelt the agents were factors to whom the possession of, or

I buyer may set off any demand he may have on the factor against indicia of title to, goods is or are intrusted by their principals for

the demand for the [price of the] goods made by the principal. th
The terms of this proposition are perhaps rather too sweeping °n
unless read by the light of the facts of the case itself. In the bl"
note to the case in Smith’s Leading Cases that learned author °b
states that the decision too clearly results from natural equity to bu
need much discussion or explanation. He subsequently states that th

the rule is subject to the exception that it “ only applies when the Pifrtl °°nt"-@1118 1158 not the means of knowing that the party pith whom he contracts is but an agent. If he has the means of

V1118, Bud, though he may not be expressly told, still must be supposed to have known that he was dealin not with a rin i al

. 3 p c p l1\1fi_Witl1 an agent, the reason of the rule ceaises, and then cossante T

rations cessat low.” This qualification of the rule seems open to

objection on the ground of ambiguity, because it half implies, but co

does not exactly state, that the means of knowledge must always

be_ considered equivalent to knowledge that the agent is not a $0
principal. It may be observed that the judgment in Barin v. -

Corrie (2 B. & A. 137), on which it is based, seems open toythe Z1

same objection

In the case of Ooolce v. Esholby, which we are discussing the an

facts were these :—L. & Co. sold cotton to C. in their own names,

but really on behalf of an undisclosed rinci al C knew that P

. . P P -

£1-£00. were in the habit of dealing both for principals and on l
mad ‘fill? "°°°'111l3, and l1fl<l_n0 belief on the subgect whether they t
‘mi; ldlzhconéract on their own account or for a principal. It 9
for the _ at! . could not, in an action brought by the principal t

The price o the cotton, set oif a debt due from L. &_ Co. t
naturizl reason for this_ decision seems tolerably obvious. The 0
to be 9%!-lity upon which such. a claim of set off depends appears 1.
to £eI0_ er as we understand it, that the purchaser was induced 0

cIi_ r_ into the contract because he thought the agent was selling
S P“'1°1Pa_1, find having regard to the existing state of the account
between himself and the agent, or that the debt sought to be set l

e purposes of sale, and also were in the habit of selling goods

their own occount._ In Cooke v. Eskelby the agents were okers, and also were in the habit of acting as principals. It is vious that a good deal would turn on the nature of the agent’s sines_s, and how far it was known, or could be known, or not, to e plaintiffs or the defendants respectively.



HERE should have been added (ante, p. 424) to the administration sts falling on the residuary personal estate

(0) The costs of getting in or converting and remitting to this ouniry personal estate in a colony or foreign country, loyether ifh all duties payable to the Government of such colony or country respect of such personal esfafe (Peter v. Stirling, 1878, 27 W. R. 29, 10 Ch. D. 279). In that case a testator who died domiciled England ho/d personal estate in the Colony of Victoria, where uty is payable on the property of all deceased persons. The duty ayable amounted to £2,800, and it was contended by the residuary egateos that the colonial duty should be paid by each legatee on he proportion of his legacy which the assets in Victoria bore to he whole assets, but Malins, V.C., held that, “ whatever are the xpenses of getting in these assets in Victoria, whether they are he expenses of calling them in, or selling property, or paying duty o the Government, they are all deductions to be made as expenses f the estate to be paid out of the estate generally ; and that which emains after paying all the debts of the testator remains as assets f the testator, and goes to pay the legacies in full.”

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sf Wizuilillowed to be contracted or to remain unsuedbfor because the residuary personal estate is insuflicient for their payment, and ThPP° to be practically secured to the extent of the set off. upon this subject the cases are frequently inconsistent, and difficult . ' . to

6 purchaser might let the supposed vendor have goods practically

reduce to any definite general principle. There are two

g-Llzgypipnt of his own debt, when he would not trust him for them general principles, either of which might have been adopted, but _ e i . It is true that in particular cases the supposed natural neither of which has, in fact, been completely adopted. In Eyre

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een induced: 111 flwt, to alter his position on the faith that the the rule that administration costs “should be defrayed in such a m - ' ‘

agent W“? Prilwlpv-1, but our legal forefathers had a sound and faithin th_e excellence of general rules as preventing predowu 5 lnqulllilefl 111120 doubtful questions of fact, and so it was laid mther8;p¢_l'a y that in all such cases the equity existed. It is worked O lzousélo observe how very little the real grounds of it are Cited that; .m ""9" Y- Clagelt and the case of Rabone v. lVill£ams did not inefimt Bu?’ 111 any case, it is clear that, when a defendant gmundzmrkuof, pelieve that_the agent was selling as principal, the The head °t t 8 equity fails altogether.

Law R8 tno e to the report of th_e case we are discussing in the sens in 8 states the general principle thus z “ Where an agent cipal sues tgwp name for an undisclosed principal, and the prindue from th 0 "Yer for the_price, the buyer cannot sct ofl’ a debt by the canal‘: tgfllll, uiil_ess_in making the contract he was induced that the 8 so to the principal to believe, and did, in fact, believe, observed thfitllth was selling on his own_account.” It may be of this pm os_t_c actual facts of the case did not cover the whole believe thgt Eon. It being admitted that the defendant did not material to e_ “gent was acting as principal, it was imthe Plaintiff élllfillger whether it _would be necessary that new But new hhave _mduced him by his conduct so to bethe reason at flrelt _eless, it seems clear from the judgments and

‘ ° flu-"8 that the proposition so stated is a. correct,

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anner as not to disappoint the legal directions of the testasor ”; ence, that any part of his estate “unaffected, for any reason, by

he dispositions of his will, is to be applied in payment of the costs of administration in preference to, and therefore in exoneraation of, those parts of his estate which are affected by such dispositions.” It is true that Lord Cottenham was speaking here of the personal estate only, but the principle is one which might

ave been reasonably applied both to the personal and real estate.

We shall see that this principle has not been so applied. The other oursc which might have been adopted is to follow the rules which

ave been laid down as to the order of assets for payment of

debts. In Harrison v. Harrison (1872, 8 Ch., at p. 344, note [1]), Romilly, M.R., laid it down that administration costs were payable out of the assets in the same order us debts; and in many of the cases the decisions upon the payment of debts are treated as authorities on the question of the payment of administration costs. But, as we shall see, the order prescribed for the application of assets in payment of debts has been departed from, and_a good deal of the confusion and uncertainty which prevails in some branches of this subject appear to be due to the di_ver_gence_of opinion as to whether the rules as to debts are binding with regard to costs.

(7) It seems that where the residuary personal relate is insuff

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cient to pay the administration costs, the deficiency must be made up by the pecuniary lcgatees (Tompkins v. Uolthursl, 1875, 24 W. R. 267, 1 Ch. D. 626; see also Collins v. Lavis, 1869, 708; Dugdalc v. Dugdalc, 1872, 14 Eq. 234). Those decisions are opposed to one of the points decided in Hensman v. Fryer (1867, 16 W. R. 162, 3 Ch. 420, 426), where Lord Chelmsford, C., held that where the general personal estate is insuflicient for payment of debts and legacies, the pecuniary legatees and the residuary devises must contribute rateably to the payment of the debts which the general personal estate was insufiicient to satisfy ; but in each of the three above-mentioned cases the decision on this point was treated as mistaken, and opposed to the settled rule of the court; and in Tomlcina v. Uollhurst, Malins, V.C., said that “ No one denies that it has been the rule of the Court of Chancery that pecuniary legacies are, in case of the deficiency of the general personal estate, the primary fund for payment of the debts and funeral and testamentary expenses.” This is in conflict with the rule on which Romilly, h[.R., said (in Harrison v. Harrison, nbi suprd) “he had for many years acted.” under which real estate descended was applied in payment of debts and administration costs in priority to pecuniary legacies; but it is to be observed that, on appeal in that case, Lord Selborne, C., said that “it does not appear to us to be a true result, either of principle or of the English authorities, that the costs of the general administration of the personal estate would have been thrown on the [descended] real estate in favour of legatees upon the principle of marshalling."

(8) Next in order comes the descended real cstaie (Barber v. Wood, 1877, 4 Ch. D. 885, 886; see also Gallon v. Hancock, 1744, 2 Atk. 430; Wood v. Ordish, 1855, 8 Sm. & Gill, at p. 128). In Barber v. TVood, Hall, V.C., after deciding that certain real estate descended to the heir-at-law, said that “it must be the first real estate to be applied in payment of debts in case there be a deficiency in the personalty." It seems that the same rule applies to the payment of administration costs (Morley v. Tunstall, 18-59, unreported, but see extract from the decree given in 7 Eq., at p. 416 note (1); sec also the judgment in Scott v. Cunzberland, 1874. 18 Eq., at p. 583; and Row v. Row, 1869, 7 Eq. 414, in which 055°, h°W9"9l‘. James, V.C., expresses a doubt as to whether the rule would apply if the heir-at-law had had “a clear legal estate in the property descended to him.”)

Maddison v. Pye (1863, 32 Bear. 658) and Ba;/ol v. Leggc (1864, 2 Dr. & Sm., at p. 262) are, at first sight, opposed to this rule, inasmuch as in both those cases it was held that administration costs must be borne rateably by the descended and devised estates. It is to be observed, however, that in Maddisoiz v. .P_1/c the testator’s personal estate had been duly administered, apparently out of court, and the suit was merely to administer the real estate; moreover, there was an agreement for compromise of the suit, the terms of which the court held (see p. 659) to mean that the costs should be borne by the whole of the real estate. It Es rather odd that so much should have been made of this decision in_subsequcnt cases; the decision appears to have turned on special circumstances, and ought not to to have been reported at all; it is, moreover, very badly reported, neither the terms of the will nor the names of the counsel being given. The judgment_in Bagot v. Leogc (ubi snprrl) expressly recognizes “the principle of the costs being first payable out of the personal estate, and then out of the descended estates,” and distinguishes the case before the court on the ground that there was no personal estate, and that the questions were entirely as to the rights of the devisees inter _se and the rights of the devisces and heir-at-law. Since the decisions of the Court of Appeal (referred to anlc, p. 459), that costs exclusively occasioned by the administration of the real estate of the testator are to be borne by the real estate exclusively,

it may be suggested that both the above-mentioned decisions

should be considered as applying only to the case of costs exclu-
sivel occasionedb th <1 ' ' ' 1

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descended to a testator’s heir-at-law by reason of a forfeiture by the devisee under the will is not_ liable to pay administration costs in priority to specifically-devised estate (Hurst v. Hurst‘, 1884, 28 Ch. D. 159).

It seems, however, that, it the testator has expressly or i_inplicdly charged the whole 0! his real and personal estate with payment of his debts and testamentary expenses, the descended and specifically-devised real estate will be liable rateably to payment of administration costs (Stead v. Hardahcr, 1873, 21 W. R. 258, 15 Eq. 17-5; see the judgment in Scott v. Cumberland, 1874, 18 Eq., at p. 585).

(9) In case {he assets before mentioned are insuflicient fir payment of administration costs, such costs must be borne by the Rpeci/i0(lll_2/-l1t'Qll€(llh6tl personally, specifically-devised realty, and residuary realty rateably according to oaluc (Jackson v. Peace, 1874, 23 W. R. 43, 19 Eq. 96; Lancefield v. Iggulden, on appeal, 1874, 23 \V. R. 136, 10 Oh. 136). The basis of the rule is that a resizlunry devise is still specific, notwithstanding the 24th section of the Wills Act (Hensman v. Fr_i/er, ubi cuprd).

(10) It seems that the last assets to be applied in payment of administralion cosfs are real or personal praperfypver which ihc tcstalor had a general power of appointment. This is the rule with regard to the payment of debts, on the ground that such property is not the property of the testator (Fleming v. Buchanan, 1853, 8 De G. M. & G. 976, 979); and it is presumed, though we find no decision upon the point, that such property is applicable to payment ot administration costs of a will, and in the same order as in the case of payment of debts.

(11) In the administration of property subject to a power 0f_'oppointmcnt the administration costs fall raleably on the appoiizled and unappoinled shares of the property (Warren v. Posllethwmlfi, 1845, 2 Coll. 108, 123; Trollope v. Roullerlqe, 1847, 1 De G- 51 Sm. 662, 671; Moors v. Dixon, 1880, 29 W. R. 12, 15 Ch. 1)5GG). It is to be observed that all these cases were decided on the administration of the trusts of marriage settlements, and that in Moore v. Dixon (ubi suprd) Malins, V.C., laid some stress upon the circumstance that all the objects of the power were "P111" chasers for value, and entitled to take free from costs as fill‘ M they can.” There appears to be no reported case where the question has arisen in the administration of a will, but it is presumed that the rule will apply to the partial exercise by will of a p0W81' of appointment over a fund settled by a marriage settlement. I

(12) Where administration costs to which the specifically-devised personal estate and the real estate are bound to contribute are P’“‘l in the _/irst instance out of the general personal estalc, each of llw other funds must pay interest on the amount which it ought f0 have contributed at the time when the payments were made out of the general personal estate. This appears to follow from the decision of Mr. Justice North in Ashu-orlh v. Mann, rep0lt°d m last week’s issue of the WEEKLY Rnronrsn (35 W- 3- 512) In that case a testator devised and bequeathed his real and ps1‘9°|1'fl estate as :1 mixed fund, and directed that, after payment of 1118 debts, funeral and testamentary expenses, legacies, and expenses Oi execution of the trusts, it should be held on certain trusts. U115" these provisions, of course, the debts and other charges fell r=}i<_%!1lll' on the whole of the tcstator’s estate. In the course of admllllslfa5°“ bY the court, however, the debts and some of the 195%“; had been paid, in the first instance, out of the general PF1'5°P° estate. The question was now raised whether, besides contributing rateably to the payment, the specifically-bequeathed P61591151 estate and real estate were liable to pay to the personal estate 1lll}81'95t (1)111 the amount of capital which they ought to have contributed at lltee time when the payments were made out of the personal estabThere seems to have been no previous direct auth0r1tY °n lle point, but Mr. Justice North hold that interest W115 Palag e’ “One of the three funds,” ho said, “has contributed 1111 11",“ proportion of the charges. There were good reasons for its dopllosé so in the first instance; but now an adjustment of the amoun_ k the contribution is to be made between the three funds, if-Ed I film-t that each of them ought to be placed in the same position _flB 1f at had contributed its proper proportion at the time at which it ougt to have done so. It seems to me, therefore, that the rcal esta e, f°Yi11@l5F"1¢°, Ought now to contribute, not only its PT°P_°'l‘°l1 Os the capital, but also interest thereon from the resP°°l“'e tiillied at which the payments were made. The persons who are enti tie to the real estate, if they had contributed to the Paimenl of

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May21,i887._ THE SOLICITORS’ JOURNAL. H g g W g 475

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VENCY, ANNUITIES, AND Srsruroar CHARGES, AS Ari-'1-zcrrno LAND. fun

Practical Introduction to Conveyancing,” and one of the authors own

of “Key and Elphinstone’s Compendium,” and of “Elphinstonc, fun

Norton, and Clark on Interpretation of Deeds," and JAMES Rom

WILLIAM CLARK, M.A., Fellow of Trinity Hall, Cambridge, one of whi
the authors of “ Elphinstone, Norton. and Clark on Interpretation side
of Deeds,” Barristers-at-Law. W. Maxwell & Son. pas

This work will not require any introduction to the readers of the atte

debts at the proper time, would not thenceforth have received the i coinparatively few and trivial. We think we may say that, consider

income of the capital which they had contributed, as they have, in ins the nature Of the subject. the degree of accuracy attained is
fact done," somewhat remarkable ; an we may add with confidence that the
book is as practical as it is erudite, and that it ought to find its way
L on to the table of every conveyancing solicitor,



f recent years the subject of contracts has been perhaps more

y and ably expounded than any other branch of the law. None

less Dr. Clark Harc’s book willdeservcdly gain a position of its . At first sight it may seem to aim at too much. It contains a account of the history and final development of contracts in an law; incidentally it describes very clearly the manner in

ch this law was made, and finally digested and declared ; it eon

rs the principles which regulate its modern application; it then

ses to the discussion of the history of contracts in English law,

mpting in particular a new explanation of the origin of the

SoL_I01TORs' .l'0URN.-iL, or, we venture to think, any very elaborate action of assmnpsit and the doctrine of consideration; it deals tcstimon to its merits. The articles “ Concerning Searches " which generally with the principles of contract in English and American

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; and, finally, as an example of theseprinciples, it discusses fully contract of sale. If a book of this kind is not the one to which lawyer will first turn, it will prove of the greatest value to those

clear form information of great practical value to the con- who are interested in the theory of law as well as in its practice, and veyancer. The labour and research which were expended in the even upon practical grounds it will be useful to refer to the later exploration of a subjeotin many parts previously almost untroddeu chapters, in which many points that have recently come up for have probably, however, hardly been appreciated; anyone who decision are consiilered, and both the American and English cases

glances at the voluminous table of cases prefixed to the book will sec are

that the reports and authorities from the earliest period have been
ransacked, and the table of over 150 statutes will give some idea of as

exhaustively discussed. The portion of the book which treats of the Roman law contains, might be expected, little that is new on the subject. It is

the range of investigation in this direction. valuable, however, for the clear and interesting manner in which it The book, however, is not a mere republication of the articles; connects the growth of the law with the increasing and varying needs

there are few pages which do not bear traces of careful revision, and of
advantage has been taken of the republication to add important of

the peoples whom it affected, and the influence which the opinions the jurisconsults had upon it is explained perhaps more fully

matter on several branches of the subject. Thus the chapter on than in any previous work in the language. The perusal of the first Crown Debts has been elaborated into a complete, but concise, hundred pages will amply repay any student of Roman law who treatise on this thorn sub'ect' lar eadditions have been made to the wishes to gain a clear idea of contracts and legislation in that

. Y _ .l 1 g
portions of the book relating to charges under Public Acts and charges sy
under Local and Personal Acts, and the chapter on Local Registries
has been considerably extended. en

In dealing with the history of contracts in England, the author
tcrs upon a more difficult subject. The original actions of con-

In the general mode of dealing with the subject, the book follows tract were covenant and debt. The former was purely formal and the plan adopted in the articles; in the case of each class of incum- gained validity from the writing under seal. The latter only lay brances the law is first stated and thcn practical rules and directions where there was an executed consideration, or, as it was called, a. are given as to the searches which may be made, and in a concluding quid pro qua. Afterwards the case of a promise upon an executed

chapter the result of the book is summed up by ii practical considera- co

nsideration followed by malfeasance, or a negligent performance

tion of the searches usually made, as determined (1) by the estate or resulting in damage, was dealt with as a tort and was remedied interest of the vendor or the status of the persons searched against, under the Statute of Westminster 2 by an action of trespass on the and $2) by the tenure or nature of the property; sections being case. The problem is to discover how the action of assumpsit was sdde on searches on mortgages and searches at the Central Office. introduced for the case of such a promise followed by nonfeasance, We think that this concluding chapter alone would be worth a great and then for the case in which mutual promises are the consideration deal more to any solicitor or conveyancer than the price of the book. for each other. There is no doubt that it was originally an action

It gives in a terse and lucid, yet detailed and complete, form an of

tort, and was brought to remedy some detriment sustained by

answer to the question which practitioners have such frequent the plaintiff. Dr. Clark Hare points out that this detriment became

reason to ask with reference to the varying circumstances of transac- ultimately the consideration, and hence he explains the rule of the

tions, What searches are usually made in practice? common law, that, in an action for breach of contract, the plaintiff

Not content, however, with the practical help afforded by this must be the person from whom the consideration moves. As to the r

chapter, the authors have prefixed to the book a “tabular guide to o

'gin of the action, it is usually said to have been a development

l "*11'¢l16S,” printed, for easy reference on paper of a different colour from trespass on the case when the allegation of an undertaking had from the rest of the book. Tlic reader will find here, in become prominent enough to oust the trespass and substitute the shout five pages, a summary of the searches to be made under assumpsit. But Dr. Clark Hare thinks he has founda more probable different circumstances, with a statement of the place of search and origin in another action under the Statute of Westminster 2—viz., length of search, references being given to the page of the book at deceit on the ease. If by my promise I induce a man to act and so which more detailed information is to be found The result is that sltcr his position, my subsequent refusal to perform is more akin to the solicitor who is considering what searches should be made before deceit than to trespass. But if this was the idea of the early lawyers,

£139 touipletion of any transaction relating to land, has only to run i

t seems that deceit on the case was little used, and that, imtil

IS eye over these five paves in order to obtain a. satisfactory rrssumpszt was fully established as an independent action, trespass on general guide to the seardhes required and, on reference to the case was the usual action both for malfeasance and 110I1f9fl8Hl108

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in the canon law, by which mere promises were held to be binding. But, upon these, some check was necessary, and the lawyers rciiitroduced thc Roman idea. of causa, though with a s_0mewhu.t different meaning. This CILMSCL it was which was adopted in erfuity when it began to take cognizance of contracts and particular y_ of covenants to stand seised. It had, however, a much wider meaning than our modern consideration, including valuable consideration, natural affection, lplgal obligation, and moral obligation; and although it has shru to its present limits, yet traces of all these remain in the law. But even if, as Mr. Salmond says, consideration in this sense in equity was in use before the quid pro qua of debt, yet it seems not improbable that, upon its transfer to common law, the well-known ue of the idea of quid pro quo should have had much influence in reducin it to its modern dimensions. The actual transfer to common law and the rapid growth of assumpsit are accounted for by the desire of the common law courts to check the tendency which was appearing in equity to exercise jurisdiction over contracts. For this purpose they not only suffered the new action to grow, but also, now that mere promises were to be enforced, adopted the idea of consideration as a limit upon them.

With the remaining part of the book we have not space to deal, hut, as we have already said, it will be useful to those who wish to know the latest decisions of American law and how these compare with the corresponding cases here. As an example, we may refer to the exhaustive manner in which the subject of contracts by post is dealt with in the chapter on Bilateral Contracts. Or, again, to the chapter on the Sale of Specific Goods, where the question of transfer of ownership is very clearly worked out, and, in particular, with regard to such substances as wheat, where a portion of a particular quantity is sold without actual separation. Throughout the book Dr. Clark Hare keeps clearly before the reader the fundamental distinction between the civil law and the common law. In the former the essence of a contract consists in the meeting of two minds for a common purpose; in the latter, the obligation rests upon the consideration, and, in the absence of this, the mere consent goes for nothing.

In conclusion, Dr. Clark Hare’s book must he welcomed for its careful comparison of the two systems of law, for its skilful abstraction of principles, and for the application it makes of them to present circumstances. It is typical of the improved method which now characterizes all our better treatises.


Annisoiv ON TORTS. A TREATISE on WRONGS AND THEIR REMEDIES. By C. G. Annisoiv, Esq. Sixrn EDITION. By Houses SMITH, Barrister-at-Law, Recorder of Lincoln. Stevens & Sous.

Mr. Justice Cave brought the last edition of this standard work into excellent shape, and as his arrangement has been adopted by his successor, we have only to deal with the mode in which it has been developed and the changes in the law incorporated. Among the developments is a. short chapter entitled “ The Justification of Torts," which gives with commendable terseness the effect of the cases relating to the different modes in which a tort may be justified. _We observe, by the way, in this chapter a note at p. ~17, stating that “the setting of spring guns to shoot trespassers does not seem to be justifiable.” Surely the words “without pubhc notice ” must have accidentally slipped out of this note. The bare effect of the alterations introduced by the Married Women’s Property Act, 1882, and of the decisions thereon, is carefully. given, but we miss any independent comment on the statutory grovisions pr decisions. Thus, Seroka v. Kattenberg] (34 W. R. 542, 17

. B. D. 1_47)—_pei-haps the most doubtful of all the cases decided on the A0iS—_*l5 dismissed with the mere statement that “this section E. e., section 1, sub-section 2] has been held not to relieve the hus

and from his hahility to be sued in respect of his \vife’s torts committed after marriage." We cannot speak in praise of the way in which the effect of the Bills of Sale Act, 1882, is stated. We are first of all told (p. 460) that " By the Amendment Act, 1882, every bill of sale _must be duly attested and registered within seven fl"-Ff, l7lf_?T'l.I/‘I86 it 18 -void." Again, we are told, at p. 463, that

livery bill of sale executed after the 31st of October, 1882, must have annexed thereto or written thereon a schedule,” &c. ; and it is not until p. 464 that the reader is incidentally informed that the Act of 1882 does not apply to bills of sale given otherwise than by way ‘J7 "cunt? f°1'_m°n°Y- On the same page, after the statement that B0 much 05 59011011 10 of the Act of 1878 as provides for attestation by a 9°1l¢'ltQl' 55 repealed, Mid “ it is enacted [by the Act of 1882] that the

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recasting with a view to increased clearness. We are glad to add, however, that in most respects the edition has been satisfactorily edited. Throughout the book we have found the recent decisions up to the end of last year carefully and intelligently incorporated, and the index has been enlarged.


CORRESPONDENCE. THE LAND TRANSFER BILL. [To the Editor of the Solicitors’ Jom-nal.]

‘ - lo for addressin ou on this sub'ect is that I gafiiirer fi-din tiig regnzarks contained inyyour notice of thd Bill uSappearing in the issue of the Somciroas’ JOURNAL for the 9th t.) that in uiry and discussion on the subject are invited. _ _

(lt would seem very desirable that,_ if there are clauses in the Bill which are justly susceptible of opposite constructions, some movement should be made towards clearing up doubtful wording before the Bill passes into law, and as section 2 of the Bill appears to_me to bell‘ 5 different construction to that placed upon it in the notlce! I Y9Y1i""> to give my reasons for thinking so._ _ _ _

The portion of the notice in question to which I refer is sub-section (d.) on the compulsory clauses, and is headed, “ II "9"i"‘i"’" t“ remain compulsory ? " _ _

It is submitted that registration of transfers is clearly intended to remain or continue compulsory. Section 2 of the Bill provides that “ Her Majesty may, by Order in Council, from time to time, _dec are . . . that, on and after a day specified in the order, the registration of the transfer of land in the district is to be compulsory, and that, on and after that day, it shall be the duty of every person before selling. settling, or m0’!‘iga._q1"1ig land in the district to be registered asbs proprietor of the land,” &c. Now, in the first p18-06, It 15 wt noticed that this section does not speak of regislrfliwn Q/' 7111111» b“ _° reg1'slrati'on of the transfer of land, nor does it speak of the first regieé tration of land referred to in section 4 of the Bill, and also refenke to in the principal Act. It deals with the registration of the trans er of land, and it is submitted that it makes it compulsory on every person for ever after the date to be mentioned in the order, b_eft01’9 selling, settling, or mortgaging land,_to he_reg1B_t€!6§l 89 P1'°P"g mg Where is there any indication that this registration A18 to be con mi to the first transfer only ? It would seem_ p‘f""” fameesp? 7 equally to all subsequent transfers. In fact, if it were ccinfis H13‘: registration preparatory to the first dealing with the an , would be no compulsory registration of transfers at all. f tic“

If the construction suggested by me ‘ne_correct, the result 0 sect be 2 will be to provide that every dealing with the laud, whethelifllmou by sale, settlement, or mortgage, shall be. prefaced bi’ B 11381: or of the last dealing which took place—i.e.._ the _v8!1d01‘, 5° ‘mt _ mortgagor is to register preparatory to dealing with the P1'°P°1'n%£ but the purchaser, trustees of a settlement, Q1‘ m0l'tg§E"9h'“'° O _ bound to register on acquiring their respective interests_in t e pruipe erty. The effect of this would be that no person woulo evei; acqd to an interest (except the mere right of enforcing a contract re errgmr in sub-section ((19.3 of section 2) except from a registered PP°P" ’ and it is subinitt that this is the intention of the Bill. t fer to

Section 3 supports this contention, inasmuch as it does nol ri the a first sale of land by the court, but speaks generally of a sa e fycom coiirt. Sections 4, 5, and 6 also appear to support the VIEW 0 tinuous com ulsory registration.

If, howeviir, this view is not correct, but_the case be as sugfiisid in the notice—namely, that, when a proprietor has been l'_8tgl_B the‘; section 2 has been exhaustively complied Wltll. and that ‘ “Hem, open for the parties to continue ad infi 71/H1117}; a sy stein 0f_ °°1"'°5;’]mt if by private deeds, protected by cautions, although it is ffllfiier thy“ care were taken, such a system might be quite_as_safe as, _or 2;; that it: the present system of conveyancing ; still, _it is submitte lies-ted addition to making conveyancing, in these instances, B8 0°11‘? “law, (after ii. few years had elapsed from the date of the one coingity 0. registration) as it is now, there would be added $119 nefihelwd searching for cautions from the date of the registration 0_ tar after up till completion, and the placing of a caution on the reg“ com lotion. - ,1

Itpmay be that in many cases the advantage of keepiligwgllld registered title would insure subsequent reg1strai1101l; F1Hts and suggest that, in a great many instances, such 9:8 '59emfistruifiony possibly mortgages, thore may be motives for BVOl(llHg _r€1g‘uHegis_ and that, after one or two transactions had taken place Wlt '13. with tration, it might be infinitely less trouble for person! ll?“ uig place land, in the individual transactions concerning them, to slmligd thus a caution on the register than to clear the title up to date, each succeeding person would defer registration. _ I have

It is, therefore, submitted that, if the construction MP8 be


ventured to place on the Bill is not the true one, it “'°“1d Per

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better if it were ; that is, assuming that it is recognized as desirable that there should be a general system of registration of titles at all. A. W. [Our correspondent has omitted to observe the first words of clause 2 (a.) of the Bill.—ED. S. J.]

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Sir,—In your report of the last meeting of the Incorporated Law Society I see there is a mistake in the statement of what I said, which alters the whole sense of it.

I was alluding to the notice sent out by the council purporting to confirm certain resolutions passed at the previous meeting of the society with reference to the club. This notice did not contain, as it shoul , _an accurate copy of the resolutions so gassed and as recorded by yoiim the_ first February _number of the oucrroiis’ JOURNAL. At that meeting, on the motion of Mr. G. B. Gregory, the words “of the club_” were mserted in the resolution after the words “ general meeting,” because it might be thought that the resolution meant that no persons outside the society should be admitted members of the club without the sanction of a general meeting “ of the society” instead of “ of the club.”

These words, “of the club,” were left out of the confirmatory notice, an_d my contention was that the notice was, therefore, bad, and that it would be unfair to members of the society who were not present to pass _a vote of which they had not had due notice, and which was not, in fact, confirmatory of what was done at ii. previous meeting. Your report makes me say “ They ” (the absent membersg “ might very reasonably imagine that the words ‘ of the club ’ shoul come in after the words ‘ general meeting,’ because it was a notice of mption sent out by tho society.” The word “ club” should be “°°°1°ty-" EDMUND Knusaa.

15, Walbrook, E.C., May 17.

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On the l_2th of January, 1883, Messrs. Green dz Burleigh entered into a contract with the defendants for the construction of a portion of their line. By the contract the defendants were to pay 90 per cent. of the amount certified from time to time by their en ineer, and to retain 10 per cen_t., the retention moneys not to be payable till after a six months’ maintenance term (during which the contractors were to maintain the tramway works), which was to expire on the 21st of March, 1884. On the 2nd of November, 1883, Green & Burleigh gave the plaintiffs a charge for 52.000 upon the retention moneys, then in the hands of the defendants, in oonsi eration of a loan for that amount. Notice of this charge was given to the secretary of the defendant company, who in reply wrote that "197 noted the charge upon the retention moneys then in their hands to the amount of £2,000, which they held to the plaintiffs’ order, payable on the 21st of March next. In answer to an inquiry as to whether the £2,000 was free from any possible claim of the defendant company, or "H0116 B189, the secretary on the same day wrote to the plaintiffs that the m°71eY5 they held represented retention moneys on contracts, and beyond me9Bible_clsims of the company upon the contractors to keep up their works for six months after the expiry of their contracts there was no hmher °h*“‘Re on the same. On the 21st of March, 1884, the plaintiffs demanded the £2,000 from the defendants, but they refused payment, °*°@Pt IQ to a_ small sum, on the ground that there was not sufficient £011:-ys in their bands due to Green & Burleigh, either on the 2nd of

ovember or subsequently. to meet the plaintiffs’ claim. The plaintiffs 33:32:: thsittfihs defendants were estopped by their secretary's repre

-, an . - - for the defendantsst they were therefore liable. Field, J ., gave Judgment T31} CKIVRT dismissed the appeal. Lord Esi-iaii, M.R., said that the gpestioii was whether the court could, on the mere fact of a person being

iisecrefary, hold that he was a person on whom the plaintiffs were 3‘ t.1‘~'_d l'°"l)’ _as having the authority of his principal to answer the villlllnss as he did. His lordship was content to repeat what he said in ff: “W78 V- Tbs National Employers’ Accident Assoriation (54 L. J. Q- B- 423) I Md '“"°i*"'.l' is a more servant; his position is that he is to do wliat he is an {hind "° Person can assume that he has any authority to represent haze‘ wrist all. nor can anyone assume that statements made by him are be, 82'.‘ Y _to be accepted as trustworthy without further inquiry.” That of egid is view the appeal must fail. Far, L.J., said that, in the absence um cougice that the secretary had authority to answer such questions, so L0 could not assume that it was within the scope of his duty to do

' "51 IJ 1 concurred — Coimslr. Charla Q.O. and Pollard;

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This was an interpleader issue to try the right to certain dumb barges seized by the defendant in execution and claimed by the plaintiff. One Lloyd Bond, who was the owner of the barges, assigned them to Westwood to secure an advance of £1,500, and Westwood, under a hiring agreement, let them to Lloyd Bond, by which, on payment of all the instalments, the barges became the absolute property of Lloyd Bond, with power to Westwood to take possession upon default in payment of any instalment. Westwood having threatened to take possession under the above power, the plaintiff paid Westwood the £1,500 and took over the security and re-let the barges to Lloyd Bond under a similar hiring agreement. The barges having been seized in execution of a judgment obtained by the defendant against Lloyd Bond, Mathew, J ., on an interpleader issue, held that the plaintiffs security was a bill oi sale, and was void for want of registration. and was not within the exception of section 4 of the Bills of Sale Act, 1878, taking “ transfers and assignments of any ghip fir vessel or any share thereof" out of the operation of the Bills of

ae ct.

THE Carri-r or APPEAL allowed the appeal. Lord Esiiaa, M.R., said that the case of the Unionflank of London v. Lmanlon (3 C. P. D. 243), shewed that the words in the exception were not confined to ships or vessels requiring registration under the Merchant Shipping Act, 1854. That limit being out of the question, a “ ship " or a “vesse ” must be what, in popular language, was called a ship or a vessel. A vessel could not include everything that floated on the sea; it could not include a raft or a Thames wherry. These barges, however, though not ships, were clearly vessels in the ordinary meaning of that term. The case, therefore, was within the exception, and the plaintifi's security was not affected by the Bills of Sale Acts. Far and Lorzs, L.JJ.. ooncurred.—(locssiii., Kemp, Q,.C., and Wheeler, Q.C. ; Olmrlas, Q.C., and H’. Reed. Sonicirous, Waodbridga Q Sons; J. W/isatley.

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This was o special case stated under 12 & 13 Vict. c. 45, s. 11. George Purser was a grower of fruit, vegetables, and flowers, carrying on business at Worthing, and describing himself as a " market gardener and nurseryman." Purser occupiedapiece of land about one acre in extent, upon which were sixteen glasshouses or greenhouses of various sizes, substantially built with brick walls let into the ground, and used by him for the purposes of growing therein tomatoes, cucumbers, grapes, and other vegetables and flowers in the course of his business. Purser had been rated in respect of the glasshouses or greenhouses on their full net annual value. Purser appealed, and contended that he ought to be rated in respect of them at one-fourth only of their not annual value under section 211, sub-section 1 (6), of the Public Health Act, 1875, which provides that (inter alia) “the occupier of any land used as market gardens or nursery grounds shall be assessed in respect of the same in the proportion of one-fourth part only of the net annual value thereof." The Divisional Court (Day and Wills, JJ.) held that the land on which the slasshouses or greenhouses were erected was a “market garden," and owed the appeal. The case is reported 35 W. R. 519. The Worthing Local Board appealed.

Tna Covar dismissed the appeal. Lord Esiiiia, M.R:, said that the land in question was used, not as a pleasure garden, but as a market garden. It was used by the occupier for the purpose of utilizing the soil so as to grow vegetables and other things for sale in his business. It was certainly not the less “land used as a market garden ” because the laud had glass over it. Fm and LOPBB, L.JJ., concurred.—0oImsri., Lumley Smith, Q.C., and English Harrison ,- Charles, Q.C., and A. Glen. SOLICI-roiis, John Hands, for W. F. Vzrrall, Worthing; Walferstan Q Avery.

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This was an appeal from a decision of orth, J ., (an_l¢, p. _462). The question was whether the defendant was entitled to plead inconsistent alternative defences of fact. Rule 4 of order 19 provides that “every pleading shall contain, and contain only, a statement in a. summary form of the material facts on which the party pleading relies for his c aim or defence, as the case may be.” In the present case the action was brought by the administrators of a wife against the executor of a husband, claiming payment out of the husband's estate of certain sums of money which the plaintiffs alleged that he had received on trust for her separate use. The defendant, by his statement of defence, denied that the husband had ever received the moneys in question, and said that, if he had received them. he had not received upon any trust. The defendant also alleged, iii the alternative, that, if the moneys had been received by the husband, they had been repaid to the wife, or that she had made a gift of them to the husband. The defendant also pleaded accord and satisfaction, set off, the Statutes of Limitation, and delay. The plaintiffs asked that the defences of re-payment, gift, accord and satisfaction, and set off might be struck out under rule 27 of order 19, as being inconsistent with the others and tending “ to re udice, embarrass, or delay the fair trial of the action?’ North, J ., held that the defendant was not entitled to plead

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