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THE LIMITS OF THE RULE IN GEORGE v. CLAGETT. THE case of Cooke v. Eshelby, recently decided in the House of Lords (12 App. Cas. 271), is one of some importance, not because the point actually decided in the case could be really considered doubtful, but because it appears to be the first occasion on which the subject involved has come before the highest legal tribunal. The question was as to the true limits of the doctrine laid down in the well-known case of George v. Clagett (7 T. R. 359, 2 Sm. L. C., 8th ed., p. 118). The head-note to that case states the result of the decision as follows-viz., that, if a factor sells goods as his own and the buyer knows nothing of any principal, the buyer may set off any demand he may have on the factor against the demand for the [price of the] goods made by the principal. The terms of this proposition are perhaps rather too sweeping unless read by the light of the facts of the case itself. In the note to the case in Smith's Leading Cases that learned author states that the decision too clearly results from natural equity to need much discussion or explanation. He subsequently states that the rule is subject to the exception that it "only applies when the party contracting has not the means of knowing that the party with whom he contracts is but an agent. If he has the means of knowing, and, though he may not be expressly told, still must be supposed to have known that he was dealing, not with a principal, but with an agent, the reason of the rule ceases, and then cessante ratione cessat lex." This qualification of the rule seems open to objection on the ground of ambiguity, because it half implies, but does not exactly state, that the means of knowledge must always be considered equivalent to knowledge that the agent is not a principal. It may be observed that the judgment in Baring Corrie (2 B. & A. 137), on which it is based, seems open to the same objection.

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In the case of Cooke v. Eshelby, which we are discussing, the facts were these:-L. & Co. sold cotton to C. in their own names, but really on behalf of an undisclosed principal. C. knew that L. & Co. were in the habit of dealing both for principals and on their own account, and had no belief on the subject whether they made this contract on their own account or for a principal. It was held that C. could not, in an action brought by the principal for the price of the cotton, set off a debt due from L. & Co.

The

The reason for this decision seems tolerably obvious. natural equity upon which such a claim of set off depends appears to be, so far as we understand it, that the purchaser was induced to enter into the contract because he thought the agent was selling as principal, and having regard to the existing state of the account between himself and the agent, or that the debt sought to be set off was allowed to be contracted or to remain unsued for because supposed to be practically secured to the extent of the set off. The purchaser might let the supposed vendor have goods practically in payment of his own debt, when he would not trust him for them on credit. It is true that in particular cases the supposed natural equity might not really exist in fact, the defendant not having been induced, in fact, to alter his position on the faith that the agent was principal, but our legal forefathers had a sound and sturdy faith in the excellence of general rules as preventing precarious inquiries into doubtful questions of fact, and so it was laid down generally that in all such cases the equity existed. It is rather curious to observe how very little the real grounds of it are worked out in George v. Clagett and the case of Rabone v. Williams cited therein. But, in any case, it is clear that, when a defendant did not, in fact, believe that the agent was selling as principal, the groundwork of the equity fails altogether.

statement of the result of the decision. If the equity depends upon a belief, it surely can only arise from 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 justify such a belief on the defendant's part. It seems hardly possible to lay down any general rule on the subject, as it must depend apparently on the circumstances of each particular case. With regard to persons the nature of whose business is notoriously only to act as agents or go-betweens, such as some kinds of brokers, there would generally be very little question. In George v. Clagett the agents were factors to whom the possession of, or indicia of title to, goods is or are intrusted by their principals for the purposes of sale, and also were in the habit of selling goods on their own account. In Cooke v. Eshelby the agents were brokers, and also were in the habit of acting as principals. It is obvious that a good deal would turn on the nature of the agent's business, and how far it was known, or could be known, or not, to the plaintiffs or the defendants respectively.

THE INCIDENCE OF ADMINISTRATION COSTS.

IV.

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

country personal estate in a colony or foreign country, together
(c) The costs of getting in or converting and remitting to this
with all duties payable to the Government of such colony or country
in respect of such personal estate (Peter v. Stirling, 1878, 27 W. R.
429, 10 Ch. D. 279). In that case a testator who died domiciled
in England had personal estate in the Colony of Victoria, where
duty is payable on the property of all deceased persons.
The duty
payable amounted to £2,800, and it was contended by the residuary
legatees that the colonial duty should be paid by each legatee on
the proportion of his legacy which the assets in Victoria bore to
the whole assets, but Malins, V.C., held that, "whatever are the
expenses of getting in these assets in Victoria, whether they are
the expenses of calling them in, or selling property, or paying duty
to the Government, they are all deductions to be made as expenses
of the estate to be paid out of the estate generally; and that which
remains after paying all the debts of the testator remains as assets
of the testator, and goes to pay the legacies in full.”

We now come to the consideration of the rules which have been laid down as to the incidence of administration costs in cases where the residuary personal estate is insufficient for their payment, and upon this subject the cases are frequently inconsistent, and difficult to reduce to any definite general principle. There are two general principles, either of which might have been adopted, but neither of which has, in fact, been completely adopted. In Eyre v. Marsden (1839, 4 My. & Cr. 243), Lord Cottenham laid down the rule that administration costs "should be defrayed in such a manner as not to disappoint the legal directions of the testator"; hence, that any part of his estate "unaffected, for any reason, by the 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 have been reasonably applied both to the personal and real estate. We shall see that this principle has not been so applied. The other The headnote to the report of the case we are discussing in the course which might have been adopted is to follow the rules which Law Reports states the general principle thus: "Where an agent have been laid down as to the order of assets for payment of sells in his own name for an undisclosed principal, and the prin- debts. In Harrison v. Harrison (1872, 8 Ch., at p. 344, note cipal sues the buyer for the price, the buyer cannot set off a debt [1]), Romilly, M.R., laid it down that administration costs were due from the agent, unless in making the contract he was induced payable out of the assets in the same order as debts; and in many by the conduct of the principal to believe, and did, in fact, believe, of the cases the decisions upon the payment of debts are treated that the agent was selling on his own account." It may be as authorities on the question of the payment of administration observed that the actual facts of the case did not cover the whole costs. But, as we shall see, the order prescribed for the application of this proposition. It being admitted that the defendant did not of assets in payment of debts has been departed from, and a good believe that the agent was acting as principal, it was im- deal of the confusion and uncertainty which prevails in some material to consider whether it would be necessary that branches of this subject appear to be due to the divergence of the plaintiff should have induced him by his conduct so to be- opinion as to whether the rules as to debts are binding with lieve. But, nevertheless, it seems clear from the judgments and regard to costs. the reason of the thing that the proposition so stated is a correct

(7) It seems that where the residuary personal estate is insuffi

cient to pay the administration costs, the deficiency must be made up by the pecuniary legatees (Tompkins v. Colthurst, 1875, 24 W. R. 267, 1 Ch. D. 626; see also Collins v. Lavis, 1869, 8 Eq. 708; Dugdale v. Dugdale, 1872, 14 Eq. 234). These 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 insufficient for payment of debts and legacies, the pecuniary legatees and the residuary devisee must contribute rateably to the payment of the debts which the general personal estate was insufficient 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 Tomkins v. Colthurst, 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, M.R., said (in Harrison v. Harrison, ubi supra) "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."

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(8) Next in order comes the descended real estate (Barber v. Wood, 1877, 4 Ch. D. 885, 886; see also Galton v. Hancock, 1744, 2 Atk. 430; Wood v. Ordish, 1855, 3 Sm. & Giff., at p. 128). In Barber v. Wood, 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, 1859, unreported, but see extract from the decree given in 7 Eq., at p. 116 note (1); see also the judgment in Scott v. Cumberland, 1874, 18 Eq., at p. 583; and Row v. Row, 1869, 7 Eq. 414, in which case, however, 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 Beav. 658) and Bagot v. Legge (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 Maddison v. Pye 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 is rather odd that so much should have been made of this decision in subsequent 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. Legge (ubi suprà) 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 devisees and heir-at-law. Since the decisions of the Court of Appeal (referred to ante, 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 exclusively occasioned by the administration of a testator's real estate, and as prescribing the manner in which such costs are to be borne. It appears that lapsed shares of residuary real estate are to be considered as on the footing of descended real estate as regards priority of application in payment of administration costs (Scott v. Cumberland, ubi suprà a decision which has not been overruled-but see the remarks of Jessel, M.R., in Trethewy v. Helyar, 1876, 4 Ch. D., at p. 57, and of Pearson, J., in Hurst v. Hurst, 1884, 28 Ch. D., at p. 169). Real estate which has

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, if the testator has expressly or impliedly charged the whole of 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. Hardaker, 1873, 21 W. R. 258, 15 Eq. 175; see the judgment in Scott v. Cumberland, 1874, 18 Eq., at p. 585).

(9) In case the assets before mentioned are insufficient for payment of administration costs, such costs must be borne by the specifically-bequeathed personalty, specifically-devised realty, and residuary realty rateably according to value (Jackson v. Pease, 1874, 23 W. R. 43, 19 Eq. 96; Lancefield v. Iggulden, on appeal, 1874, 23 W. R. 136, 10 Ch. 136). The basis of the rule is that a residuary devise is still specific, notwithstanding the 24th section of the Wills Act (Hensman v. Fryer, ubi suprà).

(10) It seems that the last assets to be applied in payment of administration costs are real or personal property over which the testator 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, 3 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 of 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 of appointment the administration costs fall rateably on the appointed and unappointed shares of the property (Warren v. Postlethwaite, 1845, 2 Coll. 108, 123; Trollope v. Routledge, 1847, 1 De G. & Sm. 662, 671; Moore v. Dixon, 1880, 29 W. R. 12, 15 Ch. D. 566). 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 suprà) Malins, V.C., laid some stress upon the circumstance that all the objects of the power were “purchasers for value, and entitled to take free from costs as far as 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 power of appointment over a fund settled by a marriage settlement. (12) Where administration costs to which the specifically-devised personal estate and the real estate are bound to contribute are paid in the first instance out of the general personal estate, each of the other funds must pay interest on the amount which it ought to 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 Ashworth v. Munn, reported in last week's issue of the WEEKLY REPORTER (35 W. R. 512). In that case a testator devised and bequeathed his real and personal estate as a mixed fund, and directed that, after payment of his debts, funeral and testamentary expenses, legacies, and expenses of execution of the trusts, it should be held on certain trusts. Under these provisions, of course, the debts and other charges fell rateably on the whole of the testator's estate. In the course of administration by the court, however, the debts and some of the legacies had been paid, in the first instance, out of the general personal estate. The question was now raised whether, besides contributing rateably to the payment, the specifically-bequeathed personal estate and real estate were liable to pay to the personal estate interest on the amount of capital which they ought to have contributed at the time when the payments were made out of the personal estate. There seems to have been no previous direct authority on the point, but Mr. Justice North held that interest was payable. "One of the three funds," he said, "has contributed an undue proportion of the charges. There were good reasons for its doing so in the first instance; but now an adjustment of the amount of the contribution is to be made between the three funds, and I think that each of them ought to be placed in the same position as if it had contributed its proper proportion at the time at which it ought to have done so. It seems to me, therefore, that the real estate. for instance, ought now to contribute, not only its proportion of the capital, but also interest thereon from the respective times at which the payments were made. The persons who are entitled to the real estate, if they had contributed to the payment of the

debts at the proper time, would not thenceforth have received the income of the capital which they had contributed, as they have, in fact, done."

REVIEWS. SEARCHES.

ON SEARCHES: CONTAINING A CONCISE TREATISE ON THE LAW OF JUDGMENTS, EXECUTIONS, LIS PENDENS, BANKRUPTCY, INSOLVENCY, ANNUITIES, AND STATUTORY CHARGES, AS AFFECTING LAND. By HOWARD WARBURTON ELPHINSTONE, M.A., author of "A Practical Introduction to Conveyancing," and one of the authors of "Key and Elphinstone's Compendium," and of "Elphinstone, Norton, and Clark on Interpretation of Deeds," and JAMES WILLIAM CLARK, M.A., Fellow of Trinity Hall, Cambridge, one of the authors of "Elphinstone, Norton, and Clark on Interpretation of Deeds," Barristers-at-Law. W. Maxwell & Son.

This work will not require any introduction to the readers of the SOLICITORS' JOURNAL, or, we venture to think, any very elaborate testimony to its merits. The articles"Concerning Searches" which appeared in these columns at the close of last year and the commencement of the present year were, we believe, generally recognized as supplying a want in legal literature, and affording in a terse and clear form information of great practical value to the conveyancer. The labour and research which were expended in the exploration of a subject in many parts previously almost untrodden have probably, however, hardly been appreciated; anyone who glances at the voluminous table of cases prefixed to the book will see that the reports and authorities from the earliest period have been ransacked, and the table of over 150 statutes will give some idea of the range of investigation in this direction.

The book, however, is not a mere republication of the articles; there are few pages which do not bear traces of careful revision, and advantage has been taken of the republication to add important matter on several branches of the subject. Thus the chapter on Crown Debts has been elaborated into a complete, but concise, treatise on this thorny subject; large additions have been made to the portions of the book relating to charges under Public Acts and charges under Local and Personal Acts, and the chapter on Local Registries has been considerably extended.

In the general mode of dealing with the subject, the book follows the plan adopted in the articles; in the case of each class of incumbrances the law is first stated and then practical rules and directions are given as to the searches which may be made, and in a concluding chapter the result of the book is summed up by a practical consideration of the searches usually made, as determined (1) by the estate or interest of the vendor or the status of the persons searched against, and (2) by the tenure or nature of the property; sections being added on searches on mortgages and searches at the Central Office. We think that this concluding chapter alone would be worth a great deal more to any solicitor or conveyancer than the price of the book. It gives in a terse and lucid, yet detailed and complete, form an answer to the question which practitioners have such frequent reason to ask with reference to the varying circumstances of transactions, What searches are usually made in practice?

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Not content, however, with the practical help afforded by this chapter, the authors have prefixed to the book a 'tabular guide to searches," printed, for easy reference, on paper of a different colour from the rest of the book. The reader will find here, in about five pages, a summary of the searches to be made under different circumstances, with a statement of the place of search and length of search, references being given to the page of the book at which more detailed information is to be found. The result is that the solicitor who is considering what searches should be made before the completion of any transaction relating to land, has only to run his eye over these five pages in order to obtain a satisfactory general guide to the searches required, and, on reference to the pages indicated, he will find full information on the sub ject. Throughout the book we find the same careful attention to ease of reference and clearness of arrangement; the chapters are broken up into sections and sub-sections, each headed in large type with a statement of its subject-matter, and as these headings are given at the commencement of each chapter, the reader has no difficulty, even without reference to the index, in finding his way to the subject he has in hand.

Upon a subject so extensive, and so obscure and complicated, as are some of the branches of the law of searches-and particularly upon the practical question of what are usual searches, upon which there is hardly any judicial authority there is sure to be room for difference of opinion; and it is almost impossible to avoid an occasional oversight or inaccuracy. But, reading the book, as far as practicable, without prepossession, we find the points on which we should be disposed to raise a question

comparatively few and trivial. We think we may say that, considering the nature of the subject, the degree of accuracy attained is somewhat remarkable; and we may add with confidence that the book is as practical as it is erudite, and that it ought to find its way on to the table of every conveyancing solicitor.

CONTRACTS.

THE LAW OF CONTRACTS. By J. T. CLARK HARE. Boston: Little, Brown, & Co.

Of recent years the subject of contracts has been perhaps more fully and ably expounded than any other branch of the law. None the less Dr. Clark Hare's book will deservedly gain a position of its own. At first sight it may seem to aim at too much. It contains a full account of the history and final development of contracts in Roman law; incidentally it describes very clearly the manner in which this law was made, and finally digested and declared; it considers the principles which regulate its modern application; it then passes to the discussion of the history of contracts in English law, attempting in particular a new explanation of the origin of the action of assumpsit and the doctrine of consideration; it deals generally with the principles of contract in English and American law; and, finally, as an example of these principles, it discusses fully the contract of sale. If a book of this kind is not the one to which a lawyer will first turn, it will prove of the greatest value to those who are interested in the theory of law as well as in its practice, and even upon practical grounds it will be useful to refer to the later chapters, in which many points that have recently come up for decision are consi lered, and both the American and English cases are exhaustively discussed.

It is

The portion of the book which treats of the Roman law contains, as might be expected, little that is new on the subject. valuable, however, for the clear and interesting manner in which it connects the growth of the law with the increasing and varying needs of the peoples whom it affected, and the influence which the opinions of the jurisconsults had upon it is explained perhaps more fully than in any previous work in the language. The perusal of the first hundred pages will amply repay any student of Roman law who wishes to gain a clear idea of contracts and legislation in that system.

In dealing with the history of contracts in England, the author enters upon a more difficult subject. The original actions of contract were covenant and debt. The former was purely formal and gained validity from the writing under seal. The latter only lay where there was an executed consideration, or, as it was called, a quid pro quo. Afterwards the case of a promise upon an executed consideration followed by malfeasance, or a negligent performance resulting in damage, was dealt with as a tort and was remedied under the Statute of Westminster 2 by an action of trespass on the case. The problem is to discover how the action of assumpsit was introduced for the case of such a promise followed by nonfeasance, and then for the case in which mutual promises are the consideration for each other. There is no doubt that it was originally an action of tort, and was brought to remedy some detriment sustained by the plaintiff. Dr. Clark Hare points out that this detriment became ultimately the consideration, and hence he explains the rule of the common law, that, in an action for breach of contract, the plaintiff must be the person from whom the consideration moves. As to the origin of the action, it is usually said to have been a development from trespass on the case when the allegation of an undertaking had become prominent enough to oust the trespass and substitute the assumpsit. But Dr. Clark Hare thinks he has found a more probable origin in another action under the Statute of Westminster 2-viz., deceit on the case. If by my promise I induce a man to act and so alter his position, my subsequent refusal to perform is more akin to deceit than to trespass. But if this was the idea of the early lawyers, it seems that deceit on the case was little used, and that, until assumpsit was fully established as an independent action, trespass on the case was the usual action both for malfeasance and nonfeasance. We have seen that Dr. Clark Hare derives consideration from the detriment to the promisee which was necessary to found assumpsit as an action of tort. Though there is truth in this idea, it is probably not the whole truth, and, very opportunely for our purpose, we have strong additional light thrown upon the subject by Mr. J. W. Salmond's article on the "History of Contract" in the current number of the Law Quarterly Review. He there combats Mr. Justice Holmes' theory that consideration is a development of the quid pro quo in debt, and takes up the idea which Professor Pollock favours in his work on Contract, that it has come from the Roman law by way of chancery. The whole article is one of the ablest contributions we have had to this perplexing subject, and, in particular, the writer's theory of consideration is worked out with great clearness and supported by weighty reasons. The tendency of every system of contract law seems to be to dispense more and more with form and to rely upon the mere promise. This was carried to its full extent

in the canon law, by which mere promises were held to be binding. But, upon these, some check was necessary, and the lawyers reintroduced the Roman idea of causa, though with a somewhat different meaning. This causa it was which was adopted in equity when it began to take cognizance of contracts and particularly of covenants to stand seised. It had, however, a much wider meaning than our modern consideration, including valuable consideration, natural affection, legal obligation, and moral obligation; and although it has shrunk 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 quo of debt, yet it seems not improbable that, upon its transfer to common law, the well-known use of the idea of quid pro quo should have had much influence in reducing 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, but, 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 separati on. 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 be 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.

TORTS.

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ADDISON ON TORTS. A TREATISE ON WRONGS AND THEIR REMEDIES. By C. G. ADDISON, Esq. SIXTH EDITION. By HORACE SMITH, Barrister-at-Law, Recorder of Lincoln. Stevens & Sons. 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. 47, stating that "the setting of spring guns to shoot tres passers does not seem to be justifiable.' Surely the words "with. out public 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 provisions or decisions. Thus, Seroka v. Kattenberg (34 W. R. 542, 17 Q. B. D. 177)-perhaps the most doubtful of all the cases decided on the Act-is dismissed with the mere statement that "this section Lie., section 1, sub-section 2] has been held not to relieve the husband from his liability to be sued in respect of his wife'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 days, otherwise it is void." Again, we are told, at p. 463, that “Every 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 of security for money. On the same page, after the statement that so much of section 10 of the Act of 1878 as provides for attestation by a solicitor is repealed, and "it is enacted [by the Act of 1882] that the execution of every bill of sale shall be attested by one or more credible witnesses," &c., but that the section of the Act of 1878 "is still to be considered," we are told that "non-compliance with this provision will not invalidate the bill of sale as between grantor and grantee. The reader will be very apt to take this observation as referring to the new provision made by the Act of 1882. The whole of the section relating to the Act of 1882 seems to need careful

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' Journal.]

Sir,-My apology for addressing you on this subject is that I gather from the remarks contained in your notice of the Bill (appearing in the issue of the SOLICITORS' JOURNAL for the 9th ult.) that inquiry and discussion on the subject are invited.

It 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 bear a different construction to that placed upon it in the notice, I venture 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, “Is registration to remain compulsory?"

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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, declare 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 mortgaging land in the district to be registered as a proprietor of the land," &c. Now, in the first place, it is to be noticed that this section does not speak of registration of land, but of registration of the transfer of land, nor does it speak of the first registration of land referred to in section 4 of the Bill, and also referred to in the principal Act. It deals with the registration of the transfer 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, before selling, settling, or mortgaging land, to be registered as proprietor. Where is there any indication that this registration is to be confined to the first transfer only? It would seem prima facie to apply equally to all subsequent transfers. In fact, if it were confined to a registration preparatory to the first dealing with the land, there would be no compulsory registration of transfers at all.

If the construction suggested by me be correct, the result of section 2 will be to provide that every dealing with the land, whether it be by sale, settlement, or mortgage, shall be prefaced by a registration of the last dealing which took place-i.e., the vendor, settlor, or mortgagor is to register preparatory to dealing with the property; but the purchaser, trustees of a settlement, or mortgagee are not bound to register on acquiring their respective interests in the property. The effect of this would be that no person would ever acquire an interest (except the mere right of enforcing a contract referred to in sub-section (a.) of section 2) except from a registered proprietor, and it is submitted that this is the intention of the Bill.

Section 3 supports this contention, inasmuch as it does not refer to a first sale of land by the court, but speaks generally of a sale by the court. Sections 4, 5, and 6 also appear to support the view of continuous compulsory registration.

If, however, this view is not correct, but the case be as suggested in the notice-namely, that, when a proprietor has been registered, section 2 has been exhaustively complied with, and that it is then open for the parties to continue ad infinitum a system of conveyancing by private deeds, protected by cautions, although it is true that, if care were taken, such a system might be quite as safe as, or safer than, the present system of conveyancing; still, it is submitted that, in addition to making conveyancing, in these instances, as complicated (after a few years had elapsed from the date of the one compulsory registration) as it is now, there would be added the necessity of searching for cautions from the date of the registration of the land up till completion, and the placing of a caution on the register after completion.

It may be that in many cases the advantage of keeping up a registered title would insure subsequent registration; but I would suggest that, in a great many instances, such as settlements, and possibly mortgages, there may be motives for avoiding registration, and that, after one or two transactions had taken place without registration, it might be infinitely less trouble for persons dealing with land, in the individual transactions concerning them, to simply place a caution on the register than to clear the title up to date, and thus each succeeding person would defer registration.

It is, therefore, submitted that, if the construction I have ventured to place on the Bill is not the true one, it would perhaps be

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.]

THE LAW SOCIETY MEETING. [To the Editor of the Solicitors' Journal.] 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 should, an accurate copy of the resolutions so passed and as recorded by you in the first February number of the SOLICITORS' JOURNAL. At that meeting, on the motion of Mr. G. B. Gregory, the words "of the club were inserted 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, and 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 a previous meeting. Your report makes me say "They " (the absent members) "might very reasonably imagine that the words of the club' should come in after the words 'general meeting,' because it was a notice of motion sent out by the society." The word "club" should be "society." EDMUND KIMBER.

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

CASES OF THE WEEK.

BARNETTS, HOARES, & CO. v. THE SOUTH LONDON TRAM-
WAY CO.-C. A. No. 1, 10th May.

GAPP v. BOND-C. A. No. 1, 12th May.
BILL OF SALE-DUMB BARGE-EXCEPTION OF "ASSIGNMENT OF SHIP OR
VESSEL"-BILLS OF SALE ACT, 1878 (41 & 42 VICт. c. 31) s. 4.

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 above power, the plaintiff paid Westwood the £1,500 and took over the instalment. Westwood having threatened to take possession under 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 plaintiff's security was a bill of 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 ship or vessel or any share thereof" out of the operation of the Bills of Sale Act.

that the case of the Union Bank of London v. Lenanton (3 C. P. D. 243),
THE COURT OF APPEAL allowed the appeal. Lord ESHER, M.R., said
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 "vessel" 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 plaintiff's security was not affected by
the Bills of Sale Acts. FRY and LOPES, L.JJ., concurred.-Counsel,
Kemp, Q.C., and Wheeler, Q.C.; Charles, Q.C., and H. Reed. SOLICITORS,
Woodbridge & Sons; J. Wheatley.

PURSER v. THE WORTHING LOCAL BOARD-C. A. No. 1, 18th
May.

PRINCIPAL AND AGENT-COMPANY-ASSIGNMENT OF MONEYS DUE BY COM-vegetables and flowers in the course of his business. Purser had been

PANY-REPRESENTATIONS OF SECRETARY-AUTHORITY.

On the 12th of January, 1883, Messrs. Green & 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 engineer, and to retain 10 per cent., 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 £2,000 upon the retention moneys, then in the hands of the defendants, in consideration of a loan for that amount. Notice of this charge was given to the secretary of the defendant company, who in reply wrote that they 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 anyone else, the secretary on the same day wrote to the plaintiffs that the moneys they held represented retention moneys on contracts, and beyond the possible claims of the company upon the contractors to keep up their works for six months after the expiry of their contracts there was no further charge on the same. On the 21st of March, 1884, the plaintiffs demanded the £2,000 from the defendants, but they refused payment, except as to a small sum, on the ground that there was not sufficient moneys in their hands due to Green & Burleigh, either on the 2nd of November or subsequently, to meet the plaintiffs' claim. The plaintiffs contended that the defendants were estopped by their secretary's representations, and that they were therefore liable. Field, J., gave judgment for the defendants.

THE COURT dismissed the appeal. Lord ESHER, M.R., said that the question was whether the court could, on the mere fact of a person being the secretary, hold that he was a person on whom the plaintiffs were entitled to rely as having the authority of his principal to answer the inquiries as he did. His lordship was content to repeat what he said in Newlands v. The National Employers' Accident Association (54 L. J. Q. B. 428): "A secretary is a mere servant; his position is that he is to do what he is told, and no person can assume that he has any authority to represent anything at all, nor can anyone assume that statements made by him are necessarily to be accepted as trustworthy without further inquiry." That being his view the appeal must fail. FRY, L.J., said that, in the absence of evidence that the secretary had authority to answer such questions, the court could not assume that it was within the scope of his duty to do 80. LOPES, L.J., concurred. - COUNSEL, Charles, Q.C., and Poliard; Murphy, Q.C., and Blake Odgers. SOLICITORS, Dawes & Sons; Wilkins, Blyth, & Dutton.

RATING "MARKET GARDEN "-LAND COVERED WITH GLASSHOUSES-PUBLIC
HEALTH ACT, 1875 (38 & 39 VICT. c. 55), s. 211, SUB-SECTION 1 (B.).
This was a 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 nursery-
man."
Purser occupied a piece of land about one acre in extent, upon
which were sixteen glasshouses or greenhouses of various sizes, sub-
stantially built with brick walls let into the ground, and used by him for
the purposes of growing therein tomatoes, cucumbers, grapes, and other
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 net annual value under section 211, sub-section 1 (b), of
66 the
the Public Health Act, 1875, which provides that (inter alia)
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 glasshouses or greenhouses were
erected was a "market garden," and allowed the appeal. The case is
reported 35 W. R. 519. The Worthing Local Board appealed.

It was

THE COURT dismissed the appeal. Lord ESHER, 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.
certainly not the less "land used as a market garden" because the laud
had glass over it. FRY and LOPES, L.JJ., concurred.-COUNSEL, Lumley
Smith, Q.C., and English Harrison; Charles, Q.C., and A. Glen. SOLICI
TORS, John Hands, for W. F. Verrall, Worthing; Wolferstan & Avery.

Re MORGAN, OWEN v. MORGAN-C. A. No. 2, 16th May.
R. S. C., 1883, XIX., 4, 27-STRIKING OUT EMBARRASSING PLEADING-
INCONSISTENT ALTERNATIVE Defences.

This was an appeal from a decision of North, J., (ante, 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 claim 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, in 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 prejudice, embarrass, or delay the fair trial of the action." North, J., held that the defendant was not entitled to plead

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