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by the court, who laid it down that the statute only extended to "natural relations.”

Viciz-Cnsxcstton Bacon has entered a protest against the growing practice of inflicting on the court lengthy correspondence, often written with a view to publication before the judge. In a case before him on Thuisday, counsel, having diligently read through the docunien:s and pleadings in a case, proposed to invite the attention of the court to certain correspondence between the parties, whereupon the learned judge remarked that, after the pleadings, they were now coming to “the parasitical vermin of



Ar the risk of inflicting some rather trite law on our readers, we think it desirable to accompany our observations on the recent “Act to amend the law relating to the guardianship and custody of infants” (49 & 50 Vict. c. 27) with a short notice of the oifice and functions of a testamentary guardian before the recent Act came into operation. It is impossible to understand the effect of many of the new provisions except in connection with the old law. Omitting the obsolete law relating to guardians in socage, by nature, for nurture, and by election, and also as far as possible the subject of appointment of guardians by the court, we propose to deal with the general subject of guardianship.

Constitution of the mother as _quarrlian..—The first material provision of the new Act introduces a new guardian, appointed, not by designation of any person, but by the law. It provides (section 2) that

“ ‘Jn the death of the father of an infant, and in case the father shall have died prior to the passing of this Act, then from and after the passing of this Act, the mother, if surviving, shall be the ardian of such infant, either alone when no guardian has been appointedh; the father, or jointly with any guardian appointed by the father."

The powers and duties of this new guardian are to be similar to those of testamentary guardians appointed by the father. It is to be observed that no provision is made that the mother is to be guardian during widowhood only, nor is it provided that she must be the wife of the father at the time of his death. The contingency of a divorced mother becoming guardian of her children is, however, provided for by section 7, to be noticed hereafter.

Power of the father to appoint _qu,ardian.r.—The substance of the Provisions of sections 7, 8, and 9 of 12 Car. 2, c. 24, as subsequently varied and interpreted, may be stated as follows :—The Act vests the power of appointing the guardian in the father only: an appointment by the mother was void, although it might influence the choice of the court in appointing guardians (Ra Kaye, 1 Ch. 387). The Act (section 8) enabled the father, whether under twenty0_ne or of full age, to appoint guardians “by deed executed in his lifetime, or by his last will in writing in the presence of two or more credible witnesses.’ ’ The Wills Act (sections 1 and 7) deprived an infant father of his right to appoint guardians by will; but there is nothing to prevent an infant father from appointing them by deed_. It is not clear that the provision of the statute as to two fifedlble witnesses applies to the case of deeds (see Morgan v. Itatchell, 19 Beav., at p. 87); if it does, the appointee is not disabled from being a witness to the deed (Ibial, at p. 88). A deed aPP°iIiting guardians is deemed “to be only a testamentary instrument in the form of a deed " (Ea: parts I lchester, 7 Ves., at p. 367), End may be revoked by a subsequent will (Shaftesbm-_y v. Harmam, Finch, 323). A will appointing a guardian need not be proved (Gilliat v. Gilliat, 3 Phillimore 222). No formal words are necesnary for the appointment of guardians by will; all that is necessary 18 fin expression of intention that the management and care of the children should be committed to the person specified (see Miller v. Harris, 14 Sim. 540).

The statute enables the father to appoint “ any person or Persons other than Popish recusants ”—an exception which, for our P‘n'P°5°5, It is lt 1190988813‘ to discuss. It seems that an infant cannot actas guardian (Co. Lit. 52a). The father may appoint a guardian

In remamder ”—a._g., on the death of the person first named, or “P°11fl1c happening of a future event (Selby v. Selby, 2 Eq. Cos.

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Abr. A88), and may give to the survivor of the persons appointed gilarfllanfl power to nominate another person as guardian (In the Goods of Parnell, 2 ,P. &D. 379). A guardian may disclaim before he has acted (O Keefe v. Casey, 1 Sch: & L. 10_6).

The Act provides that the father may appoint guardians “ of his children under the age of twenty-one years and not married at the time of his death.’_’ Though there are no children born at the time of the appointment, it is nevertheless valid (Ex parts Ilchestar, 7 Ves. 348), and the subsequent marriage of a child who was unmarried at the death of the father does not, it seems, determine the guardianship, even in the casc of a female infant (Roach v. Garvan, 1 Ves. sen. 160; but see Menrles v. zllmdes, Jb. 91). But the father can only appoint guardians of his Ieyitfmalc children (Sleeman v. Wilson, 13 Eq. 36). ' _

The appointment may be made to last during such time as the children “shall respectively remain under the age of twenty-one years or any lesser time.” If no time is mentioned in the appointment_it seems that it will bc deemed to continue until the children attain twenty-one (Mendes v. Mendes, 1 Ves. sen., at p. 91 ; but see Bedall v. Constable, Vaughan, 184).

The Act enables the father to “dispose of the custody and tuition " of the child, and enables the guardians to “take into their custody, to the use of such child, the profits of all lands, tenements, and hercditaments of such child, and also the custody, tuition, and management of the goods, chattels, and personal estate of such child,” and to “bring such action or actions in relation thereunto as by law a guardian in common socage might do." The general efiect of these provisions is to constitute the testamentary guardian a peculiar kind of trustee :—not merely trustee of tl e property of the ward, but also with duties relating to the person of the ward ; not trustee of the whole property of the ward, but only of such of the property as comes into his possession in the character of guardian (Mathew v. Briae, 14 Beav., at p. 345; Sleeman v. Wilson, 13 Eq., at p. 41) ; and, lastly, a trustee for the purpose of management only, not of sale. Being a trustee for the benefit of the ward he is under the “ superintendency ” of the court in ease of “misbehaviour” E_ rs v. Sha tasbur , 2 P. Wms. 103), and is liable to account (in 1/a court offequityii, a liability which no time will bar (Mathew v. Brice, 1iBeav. 341). _ _

More specifically, and sub]eot to the principles stated above, the rights and duties of the testamentary guardian, as regards the person of the ward, are these: He is entitled to the custody and control of the ward (see Re Andrews, 8 Q. B. 153), and to determine the mode, and select the place, of education of lphe viéard (Hall v. Hall, 3 Atk. 721). It is his duty to see that_t e in ant is properly maintained fiat of tthe éfigme gftohis property

Mathew v. Brice, 14 eav., a p. , an preven an

iinfitting marriage of the ward (see Barber v. Taylor-,_ 1 C. & P. 101; also the provision, as to consent, of the Marriage Act, 4 Geo. 4, c. 76, s. 16). _

As regards the lamlsq/' the ward, the testamentary ‘guardian may, it has been said, “maintain trespass and ejectment, avow for damage feaxant, make admittance to copyhold, and lease

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voidable by the ward on attaining twenty-one (see ac r. leases (I., 9)). In Roe v. Hodyson (2 Wils. 129, 13b) a lease by a testamentary guardian for twenty-one years was said to be ahsolutely void, but this opinion is not consistent with the earlier authorities as to guardians in socage, and the authority of the

d th rrectness of the report have been doubted (see 1

case, an e co
Platt on Leases, 376 ; 5 Dav. Conv. 258). The testameiitaryggiari

dian of an infant tenant for life is authorized by sec ion 0 the Settled Land Act, 1882, to apply for the appointment Of a person to exercise on behalf of the infant the powers of n tenant for life, and by section 68 to apply for the appointment by the court of trustees of the settlement for the purposes of the Act. _

As regards the personal property of the want, there is little direct authority as to the powers of the testamentary gnnrdlv-P. but it is apprehended that his powers and duties correspond in general to those of an ordinary trustee, so far as relates_to migagement of the property which comes into 11155_5°“1°'_" . 6 must make the property productive by 'Pl‘°_Perly investmg it, and also all surplus income beyond that required for the P1'°Pe" maintenance and education of the ward. If he retainfl 19-1'89 balances in his hands he will be charged Wlfll 1111167993


(See zllathew v. Brice, 14 Beav., at p. 346).-Ighe pgpvision in the Irish Act (14 & 15 Gar. 2 c. 19, r. co erring the “custody, tuition, and managemeiit” of the ward’s personal estate on the guardian (words precisely similar to those in the English Act), have been held to make the receipt of a testamentary guardian for a legacy to the infant a good discharge (.lloC'reight v. Mc0'roight, 13 Ir. Eq. 314). The general impression in England has been to the contrary; but it is to be observed that in Re Cressuwll (30 W. R. 244), Fry, .T., did not dissent from the Irish decision, and, indeed, express y disclaimed any intention of interfering with it.


CONCERNING SEARCHES. (XII.) IUDGMENTS. Juneiiiiivrs BEFORE 1 & 2 Vicr. c. 110.

Ar common law a judgment creditor could not take in execution the land itself; he could only sue out a writ of Zevarifaoiae, under which he received the profits as they accrued, through the sheriif, who thus collected the debt for him (3 Rep. 11 ; 2 Wms. Saund. 68u; 11 Vin. Abr. Execution, Q.a. 3, Pl. 2). This was consistent with the policy of the early feudal law, which forbade alienation, and the first enactment which allowed a judgment creditor to take possession of the lands of his debtor was the Statute of Westminster 2 (13 Edw. 1, c. 18), made shortly before the power of alienation was conferred by the Statute of Quia Emgztores (18 Edw. 1). Under the Statute of Westminster2 was framed the writ of elegit, by virtue of which the sherifi delivered to the judgment creditor possession of a moiety of the debtor’s lands, including under that term freeholds held in severalty, in coparcenary, or in common, rents-charge, impropriate rectories, and tithes, estates tail (but only during the life of tenant in tail), and reversions (2 Wms. Saund. 69n; 3 Prest. Abst. 326). But copyholds, customary freeholds (probably), advowsons in gross, glebe, and rents seck were held not to be within the statute (iI>i."l.). The right of the creditor against the lands of a joint tenant was defeated upon the debtors’s death by the jus accrescendi of surviving joint tenants (6 Rep. 78). A term of years might be extended as to a moiet und lo '

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j gm ected, or_ was a lien upon (see this explained, post), not only lands belonging to the debtor when it was entered up, but also any lands subsequently acquired by him. Freeholds were bound from the time of entering up the judgment, but terms of years, as being chattels, were bound at common law only when execution was sued out—i'.e., from the teste, or date, of the writ (Flestwood’s case, 8 Rep. 171a); and by the Statute of Frauds (section 16) they were not bound until the writ was delivered to the sherifi (see Dart V. & P. 475 . Th '

_ ) e process by olegrt has been already explained (30 Sohicirons’ JOURNAL, 724), and may be seen clearly exhibited in Underhill v. Devereuz (2 Wms. Saund. 68).

Equitable intareste.—Uses were not extendible at common

law, nor were they within the Statute of Westminster 2 (2 Pow. Mort: 601). The statutesl Ric. 3, c. 1, and 19 Hen. 7, c. 15, subjected them to execution, but these enactments were rendered obsolete by the Statute of Uses. The revival of uses under the name of trusts eventually led to the enactment of section 1010f the_Statute of Frauds, which empowered the sheriff to deliver in execution hereditaments held in trust for the debtor “at the time of e:ucutz_on suedfv’ Under these words equitable estates were not bound until execution, and, therefore, could not be taken in legal execution as against a purchaser to whom the legal estate had been conveyed; but in equity, 1f the purchaser, before he paid his P_‘11ha°°"m°11°Y» hfld notice of judgments affecting the equitable title, he could not safely complete without having such judgments satisfied or the property exonerated from them (3 Prest. Abst. 325, i517; -H14"! V- Golds, Com. Rep. 226). It is frequently laid down in text-books that a trust of aterm of years was held not to be within the statute, an exception put by some on the ground that section 10 of the Statute of Frauds uses the word “ lands " which is said not to be applicable to interests less than freehold '(1 Sand. Us. 285; 2 Pow. Mort. 603n, citing Shep. Touch. 88 92)- by others on the use of the word “ seised ” in the s ct" , ,

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exception of equitable terms, was a case, not of a simple trust, but

of a great complication of equitable interests (see per Stuart, V.C.,

Gore v. Bowser, 3 Sm. 8: Giff. 1); and the decision may be supported on this ground, for it was settled law that the statute did not enable legal execution to be enforced against any equitable interest ofwhich the debtor was not the sole owner (Forth v. puke qfNorfolk, 4 Madd. 504); “there must be a clear and simple trut for the benefit of the debtor ” (Doe v. Greenhill, 4_B. dc Ald. 684), o.g., it did not operate where he had only an equity of redemption (3 Prest. Abst. 326; 1 Pow. Mort. 257; Lgster v. Dolland, 1 Ves. 'un. 431; Plunhett v. Pearson, 2 Atk. 290 ; Smith v. Hurst, 10 lilo. 51).

A creditor who had sued out a fi. fa. could in equity obtain satisfaction of his debt out of an equitable interest in a term of years (Gore v. Bowser, ubt sup.).. _ _

Appoi'ntmmt.—Upon the principle that an appointee takes immediately under the donor of the power, and that the exercise of the power divests an estate limited to the donee in default of_appointment, it was held that an appointee (even with notice: Slceeles v. Shearleg, 8 Sim. 153; 3 My. & Cr. 112) was not bound by judgments entered up against the appointor after the creation of thepower (Doe d. Wigan v. Jones, 10 B. & C. 459; 1 Sand. Us. 161; Langton v. Horton, 1 Ha., at p. 563). _

Eject of contract for sale.—A judgment entered up against _the vendor after a contract for sale, but before conveyance, was immaterial in equity (Averall v. Wade, Ll. 8: G. t. Sugd. 262);_for the equitable interest had ceased to belong to the vendor (Finch v. Winchelsea, 1 P. Wms. 277; Lodge v. Lgsaleg, 4 Sim. 70; Benham v. Keane, 1 J . & H., at p. 697). Therefore, after contract, the Court of Chancery would, on behalf of the party entitled to the benefit of the contract, restrain a judgment creditor from proceeding against the legal ownership (per Wood, V.C., Benham v. Keane, 9 W. R. 765, 1 J. & H. 697). The purchaser was, therefore, protected in respect of so much of the purchase-money as he had paid before he had notice of the judgment; but, as soon as he became affected with notice, the creditor acquired a lien on the purchase-money remaining unpaid (Forth v. Duke qf Norfolk, 4 Madd. 505 ; 3 Prest. Abst. 329) ; and this appears to be law at the present day (Sugd. Cone. V. 390 ; Dart. 472).

Trust for sale.—-So, where lands had been conveyed to trustees for sale, they were not bound by judgments subsequently entered up against the settlor; but the purchaser, if he became affected by notice of them, would be bound in respect of unpaid purchasemoney, imless the trustees’ receipts were to be sufiicient discharges, in which case it would seem that even express notice would not make him liable to the judgment creditor (Lodge v. Lg/eeley, 4 Sim. 75).

These rules as to the effect of contracts and trusts for sale are applications of the principles—first, that a judgment creditor is not apurchaser; second, that he can take only what belongs to his debtor subject to every liability which affected it in the debtor’s hands.

(1) Judgment creditor not a purchriser.—A judgment creditor is not to be considered h '

a purc aser, for he does not lend his money upon the security of the land $]Brace v. Duchess of Marlborough, 2 P. Wms. 490) ; his rights in t e land, therefore, are subject to all prior estates and interests therein, whether he has notice of them or not, and he cannot claim the protection given in equity to purchasers for value without notice (Whitworth v. Gauguin, 1 Ph., at p. 733; Beavan v. Earl of Oxford, 3 De G. M. Sc G. 517, foll.; Benham v. Keane, 1 I. & H., at p. 698, 8 De G. F. & J., at p. 332, 9 W. 765, 10 W. R. 67). And this applies even where he is in possession under an elegit and has a legal estate (3 Hare, 41 _6), for the court, having established that the equitable ownership may be in one person and the legal ownership in another, must interpose where it is necessary to protect the equitable ownership (Langton v. Horton, 1 Ha. 560).

_ But, while a judgment creditor cannot defeat the prior equitable interest of a purchaser, even though he had no not' f 't h

ice o i , on t e other hand, he is not affected by notice as against other judgment creditors because th '

, ey are not purchasers (see per Wood, V.C., in Benham v. Keane, 1 J. dc H., at p. 702).

(2) Judgment creditor can take only what belong; to the debtor. _—A judgment only attaches on that which is, at the time when it is entered up, or which afterwards becomes, the property of the debtor, both at law and in equity; for if _it is charged in equity

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before the entry of the judgment, the judgment will not aifect such charge. It can only attach upon the interest which remains in the debtor-—-viz., the legal estate subject to the charge (Whitworth v. Gauguin, 1 Ph. 728). The creditor stands in the place of his debtor, and only takes the property of his debtor subject to every liability under which the debtor himself held it (Whitworth v. Gauguin, 3 Ha. 325). He cannot take the property of other persons though it may be in the possession of the debtor as trustee (1 Hare, 560). The question is not whether the judgment creditor had or had not notice, but whether there is anything belonging E the debtor which can be attached (see Benha/m v. Keane, 1 J. &

. 697).

These principles are equally applicable since 1 & 2 Vict. c. 110 (1 Ph. 734 ; see Kinderley v. Jervis, 22 Beav. 1, 2 Spence Eq. Jur. 325), and they have recently been applied as against a judgment creditor’s garnishee order (Ex parts Whitehouse, 82 Ch. D. 512). _ Judymenta in what sense a lien.—It is frequently said that a judgment under the old law was a “ general lien ” or a “charge” oii_ the debtor’s lands, but such expressions are inaccurate, and are misleading unless understood in a restricted sense (5 J arm. Conv. 41). The lands became bound only in the sense that they were hable to be seized by the creditor whenever he should please to sue out writs of execution for that purpose (1 Pow. Mort. 274n, {S Dc G. M. & G. 517, 518) ; but he had no interest merely by the judgment in the estate itself (3 My. & Cr. 417); he had only "the potentiality of acquiring one” (per Jessel, M.R., 9 Ch. D. 284), a right to seize and hold the lands for the payment of the debt ('3 De G. F. K: J. 329). “ It is not correct to say that, according to the usual acceptation of the term, the creditor obtains a hen by virtue of his judgment. If he had an equitable lien, he would have a right to come here to have the estate sold; but he has no such right” (per Lord Cottcnham, C., Neate v. Duke of Marlborozzgh, 3 My. & Cr., at p. 417). _ When, therefore, statutes speak of lands being “aEected” by judgments, it would seem that the meaning is merely that they become liable to such rights as, by the common and statute law for the time being in force, are given to the creditor. Under the old law his right was only to obtain possession of the lands and receipt of the rents and profits until the debt was satisfied, and this remark flpplies to the equitable execution given by the Court of Chancery in cases where the lands could not be delivered in execution at law (see 9 Ch. D. 284, 269, 291).

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(Jones v. Scottish Accident Insurance 00., 17 Q. B. D. 421; Thomas v. Duchess of Hamilton, lb. 592.)

Recent decision on points arising under R. S. 0., 1883, XL, shew that. there is still some uncertainty as to the circumstances in which service out of the jurisdiction will be allowed. Jones v. The Scottish Acwh-n_t Iiisurlince Co. was a case in which the defendant company had their head ofiice in Edinburgh, whilst their secretary resided there; but they had also branch oflices and agencies thonghout England, _W1th a chief oflice for England in London. It was contended that, inasmuch as the defendants carried on business in England by their “3!1_0l1§ ‘agents, they were “domiciled or ordinarily resident within the jurisdiction.” But, as Pollock, B., pointed out, to hold that a <>0mpany is domiciled where it has an agent for local business would be to hold that it is domiciled in every town in England, Scotland, and Ireland where it has an agency. The application was, of course, Tfifused. In Thomas v. The Duchess of Ha1ni'Ito'n—-an action for the P1'1<>9 Of goods supplied—an order for service out of the jurisdiction had b%8n_ made and service had been effected. The defendant then “P111195 to the judge at chambers to rescind the order and to set aside the Proceedings w ich had been taken thereon. The judge, however, refused to do this, but made an order to the eifect that the plaintiffs (=18-1m should_be limited to the recovery of the price of goods in r°9P°ct of which it might a pear at the trial that a writ could have bee? PI'0p_erly served out ofp the jurisdiction. The plaintiff appealed agflllistthis order, and his ap cal was allowed on the ground that it was git convement to impose alimitation of this kind on the plaintifi‘.

f 9 qelendmt then» 111 turn, a pealed, and the Court of Apgiil were °. °P1IJ10l1 that the judge in dhambers had exercised his ' cretion glghfly. and restored his order. Before the Judicature Act the prac

'°§ BPPBBH to have been to impose this limitation on the plaintiff's chum where there was a conflict as to the facts on which the right to

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serve the writ out of the jurisdiction depended. However, the disadvantages of postpomng until the trial a preliminary question of procedure are obvious, and it would certainly seem to be the moreconvenient gpactice that, in applications for leave for service out of the juris

_ ction, the leave, if given at all, should not be qualified by any limitation. _We.may add to the above cases on R. S. C., 1883, XI., that an application for leave to serve an originating summons out of the ju.nsdrc_tion was unsuccessful (lie Buafield, 30 SoLicr'rons' JOURNAL, 303). Service out of the jurisdiction‘ of a petition for payment out of court has _becn_ allowed (Calls v. Ifobbins, 1b., 550) ; but the court has no j_ui-isdiction to give leave to serve notices of orders and other P!0_9Bd1n_gs _1n the winding up of a company on persons residing out of $19 j[1)1r1§d;<):tion (Re Anglo-African Steamship Co., 34 W. R. 554, 32



Marston, Searle, & Rivington.

In our notice of the first English edition of this work we took
occasion to observe that the editor of -i new edition of a. standard
law book has two courses open to him, either of which may lead to
a. satisfactory result. He may reproduce the original book verbatim
and bring it up to date by means of additional notes or interpolated
sections, distinguishing these by brackets or other devices from the
original text; or he may rewrite such par-ts of his author as new
laws and decisions have made obsolete, and thus in elfect produce ri
new treatise. The former plan is that which has been here adopted,
but we doubt whether it was wise in this particular case to attempt
to bring the original text up to date by the addition of occasional
footnotes. Reverence for the authority of Judge Story has, however,
induced the present editor to revert to the last edition which
received the author’s personal supervision in passing throu h the
press, and to reprint that edition, with its footnotes, as an authorita-
tive text uncorrupted by the annotations of his predecessors. He
reserves for a second set of footnotes his own editorial observations,
which he relies upon as filling up the gap since 1846. But forty
years of legislation have wrou ht such changes in equity juris-
prudence “ as administered in lgngland” that many of the state-
ments in the text are obsolete and misleading; and so universally is
this true that it would be, in our opinion, hopeless to correct the
errors of the original text by any annotation, however careful.
Although legal and equitable rights are still perfectly distinct, there
is in this coimtry no such thing as s. court of equity separate from a
court of law. The divergence and the occasional antagonism of the
two have been abolished by the fusion of the several jurisdictions.
Conse uently, the very foundation of Mr. Justice St0lg'8 book-
viz., tlhe distinguishing features of courts of equitilan courts of
couimon—has been altogether swept away. “ any persons,”
we are informed in section 34, “ and es ially foreigners, have often
expressed s rise that distinct courts shzculd m Eng and and America
be establish:?for the administration of equity, instead of the whole
administration of municipal justice being confided to one and the
same class of courts, wit out any discrimination between law and
equity.” So Judge Story wrote in 18-16, and the statement is
repeated by his editor in 1886 without note or comment of any kind.
We only give this as a. specimen of the havoc which time has played
with the text; for from beginning to end of the book we have th_e
ever-reciuring ides of the separate jurisdictions of the courts. _ This
error is not corrected by the editor, and is even reproduced in his
own notes. Thus, in the note at p. 31 of vol. 1, we find the state-
ment “that even in courts of general chancery powers-—that is, in
the English Chancery—-the common practice in matters of concurrent
jurisdiction is to remit parties to their remedy at law, if that is plain
and adequate.” Dr. Melville M. Bigelow cannot have _comp_letely
grasped the effect of the Judicature Act upon the admmistration of
equity jurisprudence in this country, or he would not have made use
of such obsolete expressions. Were it not that we noticed in the
chapter on “Bills Quin Timet" a reference to the Judicature Act.
1873, we should have supposed that the existence of that statute had
not come to the editor’s knowledge. _ _

We ought not, perhaps, to expect from an American writer t_hc same familiarity with English procedure us we do from the English author of a purely English text-book ; but these commentaries, _as appears from the title-page, profess to be almost as much_E_l18'115§ as American, for they treat of equity jurisprudence “as administere in England and America.” We do, therefore, expect from 8-11 951101‘ who undertakes the task of bring-ing_ them _down to date sgme familiarity with the principal statutory mnovations which have @911 introduced in this country. The notes of the present editor by no

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6 ms SOLICITORS’ JOURNAL. Oct =0. use


means satisfy our requirements in this particular. Thus, for ex-
ample, in the chapter on partition, there is but one cursory reference
to the Partition Acts; in that on mortgages the statutory powers
are entirely ignored. “ Consolidation ” is treated without mention-
ing the important provision on that subject m the Conveyancing
Act, 1881; and the same observation applies to the power of the
court to order a sale. The Rules of the Supreme Court, no umm-
portant part of the administration of equity, are, so far as we_ have
noticed, never once referred to. But perhaps the most astonishing
omission of all is the treatment of "married women " without
referring to any of the Acts which have been passed in relation to
their property. _

The citation of cases is equally incomplete. To g-ive_but one
example :—In the chapter on “ Compensation and Damages "in specific
performance, no reference is made to Hmty v. Schriider (L. R. 12
Ch. D. 666), Tamplin v. James (L. R. 15 Ch. D. 215), or Hipgravo
v. Case (L. R. 28 Ch. D. 356), cases which we should certainly
expect to find in an English text-book treating thc same sub]ect.
The cases cited, too, are very frequently not arranged in their
chronolo 'cal order. Thus, at p. 286 of the 2nd volume, we
have 9 Oil, 2 Eq., 8 Eq., 1 Eq. as the order of citation, and, again,
on 289, 1 Atk., 4 Ch. D., 6 Hui-l. & N., 1 Ves. sen. This
jum ling of cases without any excuse for such arbitrary arrange-
ment is embarrassing to the reader, and tends to the conclusion
that they were pitchforked into their places without due regard to
the proposition which they were intended to support. This con-
clusion, we fear, is occasionally but too well founded. We will give
an instance from vol. ii., p. 285, where six cases are cited in support
of the statement that marria. e articles are to be construed “most
beneficially for the issue of the marriage.” Of these six cases the
first four relate to covenants to settle after-acquired property in
ante-nuptial settlements, one is a case of volimtary settlement upon
a married woman and her issue, and the sixth, in which alone
marriage articles are mentioned, contains no single sentence touching
the proposition in the text.

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[To the Editor of the Solicitors’ Journa-1.]

S_ir,—d marriage settlement of a. reversionary interest in a fund which will fall into possession on the death of the settlor’s father and mother. Is the stamp duty on the settlement to be calculated on the value of the fimd as a reversionary interest, or on the full value as if it were in possession? I should feel obliged if one of your l‘8Bbd6l‘S could enlighten me. No-rARy_

ct. 25.

[On the full amount of the reversionary interest, not on its value at the time of settlement—see Griflith’s _Stamp Duties Digest, 8th ed., lgo. But we have been unable to discover anilpther authority for as réileftlliere laid down, and should be glad to ow if any exists.


[T0 the Editor of the Solicitors’ JournaI.]

311‘,-—With reference to the proposal referred to in Mr. Morre1l’s
valuable paper, _read at the late provincial meetin of the Incor-
po_ra_ted Law Society at York, and to the letter of Er. Percival, of
Trmity College, Oxford, to the president of the Incorporated Law
Society. I beg to refer you to the fact that the objects desired are
attauied at Cavendish College, Cambridge; which has been estab-
hshed for some years to enable students at an early age, and at
giiiggeratc cost, to take the University degree in arts, law, and medi-
_ The college is well spoken of by all who know it. There is sutfi-
cient supervision over the_ students, and such other arrangements are
made, t at parents can with confidence send their lads to the Univer-

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|_To the Editor of the Solicitors’ Journal?

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ears) is bound as regards third parties fi-oin the time when the writ it delivered to the sheriff. This may done immediately before completion of a purchase, a fact of which the purchaser may be i orant, the result being that he may be ousted by a purchaser from thin: sheriff and lose his money.” _ _

In the next paragraph but one precedmg that which I have quoted the article dea s with the question from what time the term of years is bound by afi. fa., and in support _of the statements there made the cases of Guest v. 0'0/ivbrfdge Railway O0. (6 623) and Ea parle Williams (7 Ch. 314) are, amongst others, quoted. I was so startled by this very plain statement so_contrai-y to all that I have understood to be the fact, that I deterimned to loo]: up these_ cases, as well as those which refer to a previous part of your article in which " Actual delivery in execution " under the head of Elegit is dealt with. I cannot find that the case of Guest v. Oowhriilge Railway Co. touches the question of third parties. It simply decides the priorities of creditors inter se. The second case was one relating to goods only, and had no reference to the Act of 27 & 28 Vict. c. 112 ; while those of Ex parte Ermls and Re Hobson do not, as far as I can understand them, justify the construction put upon them.

What I wish to int out is this :-— _ _

1. That althouggiothe Act of 27 & 28 Vict. c. 112 is hmited to assimilating the law afiecting freeholds and leaseholds to that afl'e_cting purely personal estates, yet the Act uses a particular expression in describing the event upon which the first-named class of property is to be affected, and that, therefore, the whole question is, What is “ actual delivery in execution ” ?

2. The case of Guest v. (7owbri'rlge Ilriilway (70. establishes that a creditor has no lien until the return of the writ. This case has no reference to a debtor and his purchaser on the one hand and creditors on the other. It simply decided the priorities between creditors inter se ; but the decision is important.

3. The case of Re Duke of Newcastle, quoted in the case of Chumpneys v. Burlaizd, lays it down plainly that the mere issuing a writ of fi. fa. cannot satis y the statute, and that there can be no actual delivery of land in execution “ without going on the land and delivery of seisin."

4. That the case of Re Hobaon (34 W. R. 786) does not decide that the return of the writ is seizure of the land within the meaning of any Act, but that, the land having been delivered in execution by the sherifl‘ to the creditor, the statute is satisfied, and the return of the writ was not necessary to protect the creditor against a trustee in bankruptcy who had been a pointed after delivery but before the return of the writ. See also is recent case of Re Pope.

5. That the case of .EJ1]"Ill7'f€ Evans does not decide that the retum of the sheriff to the writ constitutes actual delivery. James, L J ., says that the appointment of a receiver is an equitable delivery in execution and equivalent to a return of the sheriff to a writ of <'Ze_q-it.

From a consideration of these cases I deduce the following :—

(lb) That “ actual delivery in execution” in the case of an eleyft, as of a fi.fa., can only be satisfied by an actual going on to the land and delivery of seisin.

(b.) That such delivery is perfected in either case without an immediate return to the writ by the sheriff.

(c.) That, on the authorit of Re Duke of Newcastle, re 'stration of the writ before actual deldvery in execution is not in “ <g;aecordance (see headnote) with the Act, and that, therefore, a purchaser pigey, by searching, discover that which may stop him ere it be too

a .

(zl.) That, in all cases where the writ of elegit or _fi. fa. is registered in strict conformity, in point of time, with the words of the Act, searching is absolutely useless for the simple reason that the mischief is done before the writ is on the file.

I have only to observe that it will be seen that my view of the law, as based upon the cases I have referred to, is quite opposed to that laid down in the article alluded to. I shall be glad to be set right if I am wrong, but I certainly hope I am right. G. A. C

London, Oct. 27.


pointed out in our article between the return “ to " and the return “ of" the writ. But the context shews distinctly what was meant. The judgment distinguishes between delivery in execution and the return “to ” the writ, and points out that the time of making the return is immaterial. It is clear that the judgment uses the word “ to ” instead of “ of." The form of the return “to " the writ will be found in Chitty’s Practical Forms, p. 427, while the manner of making the return “ of " the writ, commonly called returning the writ, will be found at Chitty’s Archbold’s Practice, p. 815.

The conclusion that our correspondent arrives at, that “ actual delivery in execution in the case of an elrgit, as of a fi. fa., can only be satisfied by an actual going on to the land and delivery of seisin, and that such delivery is perfected in either case without an immediate return to the writ b the she:-ifi'," appears to us to be inaccurate. We confess that, before we had considered the subject, we were under the impression that delivery in execution meant that something was done on the land itself, but we arrived at the conclusion, not only from perusing the eases, but from inquiries made from practitioners of large experience, that a creditor to whom land is delivered under an elegit, and a purchaser of a term of years sold by the sheriff under a ji. fa., only acquires a right to possession. No doubt in many cases the debtor gives up possession without action, but if he chooses .to remain in possession the creditor or purchaser, as the case may be, is put to his action.

We did not, in the article referred to, discuss the question whether a writ of execution can be registered before delivery in execution; we shall consider this point in a forthcoming article.

We are at a loss to understand why, in our correspondent’s opinion, to search for registered executions is useless, because “ the mischief is done before the writ is on the file.” A purchaser wishes to know, before he pays his money, whether the vendor can make a good title to the land sold. If the land has been delivered in execution he cannot do so, and it appears to us that if he finds a re "stared execution no mischief is done to him, while on the other banddie will be prevented from paying his money to a person who cannot give him a good title.—EI>. S. J.]


_I, the Right Honourable Hardinge Stanley Baron Halsbury, Lord _High Chancellor of Great Britain, Do, by virtue of the powers vested in me by the Bankruptcy Act, 1883, prescribe that the fees and percentages in the scale ereto annexed shall, from and after the 24th day 0 October, 1886, be the fees and per-centages to be charged for or in respect of proceedings under the said Act, and shall be taken 111 I-ny court having juris iction in bankruptcy and in any office connected with any such court, and in the Board of Trade and any oflice connected therewith, and by any oflicer paid wholly or partly out of

public money attached to any such court or to the Boar of Trade. (Signed) II.\LsisU1iY, G.

(but not excel-ding the gross amount of the un-
secured liabilities)—viz., £1 on the first £100 or
fraction of £100, and 5s. on each £25 or fraction of
£25 above £100 u to £5,000, and 2s. 6d. on each
£25 or fraction of £25 above that amount . . .

Every application to the court under sections 18 and 23
to approve a composition, a fee computed ut the
following rates on t e gross amount of the com si-
tion—viz., £1 on the first £100 or fraction of £310,
and 5s. on each £25 or fraction of £25 above £100
up to £5,000, and 2s. 6d. on each £25 or fraction of
£25 above that amount . . . . . .

[NoTE.—Where a scheme or composition has not

been approved by the court, and a subsequent
application is made to the court to approve of
another scheme or composition, one or other of

the above fees (as the case may require) shall be

char ed, less seven-eighths of the fee paid on

the %rst application, and also of any net fee
already paid under Table C.] . . . .

Every application for search other than by petitioner,

Dated the 25th day of October, 1886.
Scam: or Fans AND Pan-Cannons.


£ s. d.

Every declaration by a debtor of inability to pay his
debts . . . . . . . - . . O 5 0
Every bankruptcy notice . . . . . . . 0 5 0
Every bankruptcy petition . . . . . . 5 0 0
Every bond with sureties . . . . . . . 0 10 0

Every aflidavit filed (or report of an ofiicial receiver in
lieu of an affidavit), other than proof of debts . . 0 2 0
Every siibpcena or summons under section 27 . . . 0 1 0

For takmg an aflidavit or an afiirmation, or attestation,

upon honour in lieu of an afiidavit or a declaration

except for proof of debts, for each person making the
same . _ . . . . . . . . . 0 1 6

And m addition thereto for each exhibit therein
referred to and required to be marked . . . 0 1 0
gn every proof of debt above £2 . . . . . 0 1 0

“W petition_\m.iei- section 125 and every order of
E $dn1l111_Bi;1‘8lilOlJ under section 125 (4) of the Act . . 5 0 0
Ev“? “P9015! prog or voting paper . . . . . 0 0 1
E1'S' recclvmg o er imder section 103 of the Act . . 5 0 0

"17 flpphcation for an order of discharge, including
expense of Gazetting . . , _ _ , _ 1 10 0
And for each creditor to be notified . . . 0 1 0

E7517 8-pplication to the court under sections 18 and 23 to aPProve a scheme, a fee computed at the following rates on the gross amount of the estimated assets

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trustee, bankrupt, or ofiicer of the court . . . 0 1 0 Every application to the court, except by the oflicial receiver . . . . . . . . . 0 5 0 Every ofiice copy, each folio of 72 words . . . . 0 0 4 On every record of trial . . . . . . . 5 0 0 or such less sum as the court may specially order. Every allocatur by any oflicer of the court for any costs, charges, or disbursements, Where the amount allowed shall not exceed £4 . 0 2 0 Where the amount exceeds £4 for every £2 allowed orafraction thereof . . . . . . _ 0 1 0 Every ap lication to an official receiver to appoint a special manager or to carry on the business of a 0 debtor . . . . . . . . . . 5 0 Every ap lication by a committee of inspection to the Board) of Trade for a local banking account . . I 0 0 Every order of the Board of Trade for a local banking account . . . . . . . . . 2 0 0 Every application by ll trustee to an oflicial receiver acting as committee of inspection under rule 250 :Where the assets are certified by the official receiver as not likely to realize more than £500 . . 0 5 0 Where the assets are likely to exceed £500 . . 0 10 0 Every application imder section 162 to the Board of Trade for payment of money out of the bankruptcy estates accoimt ; and every application for the re-issue cf a lapsed cheque or money order in reslpleuct of moneys standing to the credit of the ban ptcy estates account . . . . . . - - 0 2 6 On one copy of the cash book, shawing assets realized, forwarded by the official receiver or trustee I3] the Board of tTpail1<12, a fr: ' ' e ross amoun 0 easse

according to the following scale on g _ realized and brought on credit—viz. 2 £1 on the first £100 or fraction of £100, and 5s. on each £25 or fraction of £25 above £100 up to £5,000, and 2s. 6d. on each £25 or fraction of £25 above that amount. Provided that, where a fee has been taken on an application under sections 18 or 23, seven-eigliths of the amount thereof

shall be deducted from this fee.

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