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junerj. I887. THE SOLICITORS’ JOURNAL. 573

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now customary. Our own belief is that, if the Legislature were
compelled to speak plainly, it would impose the obligation of
registering a “ caution " on every person claiming any special right
overriding a registered proprietor’s right to convey. Such require-
ment would he no hardship on the cautioner, and the compensating
searches, if the present rule is continued, are very onerous.

.Fourtl|.—Bonndaries, land tax, tithe, easements, and tenancies
will have to be inquired after. It is pointed out that,
as an ordinary registered title does not guarantee boundaries,
and as the conditions of “confirmation ” of boundaries are
(as we ourselves have also pointed out, ante, p. 392) likely
to be found more onerous in practice than they seem to be on

paper, the purchaser must still make his own inquiries on
this point, and this is no doubt the case. Land tax, tithe, and
easements, together with rights to mines and minerals, and leases
and tenancies for under twenty-one years in occupation, are also
(with other things) exempted from the effect of registration by
section 18 of the Act of 1875.

Fiflk.—-Where the subject of the purchase is a leasehold, the
purchaser must satisfy himself that the rent has been paid and the
covenants performed.

To these points mentioned by Mr. Hunter we would ourselves add one more, which is not unfrequently lost sight of. It is this. It appears from the wording of the Act of 1875 that a purchaser from a registered proprietor will have to satisfy himself of the identity of his vendor, or else he may get no title. The words of the Act are these. Section 29 says :—“Every registered proprietor of land may, in the prescribed manner, transfer such land or any part thereof. The transfer shall be completed by the registrar entering the transferee as proprietor.” From this it would appear that to a valid registration two things are requisite—a transfer by the reyistered proprietor, and registration of such transfer by the registrar. If the person purporting to transfer is not the registered proprietor, but only someone personating him, the transfer is invalid. The question then arises, What about the next transferee ? Is he to be forced to inquire into the identity of all his predecessors in title? Apparently not. The first transferee, in a case of personation, though not having a good title as against all the world, is undoubtedly “the registered proprietor ” as long as his name is on the books as such, and as such he can make a valid transfer to a third party. It would, however, be a very desirable thing if clause 29 (and the corresponding clauses 22 —mortgages—and 34—leases—) could be so worded as to leave no room for doubt one way or the other. On the general question it appears to be no great hardship on a transferee to hold him responsible for the identity of his own immediate transferor, and to have the rule so cuts off a certain opening for conspiracy against the insurance fund.

We may add that Mr. Hunter singles out section 21 of the Act of 1875 ("title adverse to the registered proprietor shall not be acquired by any length of possession”) as an object of opprobrium, and suggests its repeal. Nearly every critic of the Act has done so. Broadly, the section has been objected to as being opposed to every principle of law and every rule of convenience. All attempt is made by new clause 19 of the amended Bill to palliate it to some extent (a provision which Mr. Hunter appears t0_l1ave overlooked), but that clause rather tends to confirm the opinion that no palliation short of entire repeal can be of the slightest use. The wording of clause 19 is very complicated and diflicult to understand; its effect at best is only partial, and, on one possible interpretation, nil. It runs thus (shortly) :—“ Where the description of the boundaries or parcels of registered land is not in accordance with possession, and the proprietor would not—bllt for section 21 of the principal Act—be entitled to recover P°“§@s5101i of the parts of which he is not in possession, the board "19-Y» subject to the prescribed conditions, rectify the description.” The restriction of the operation of the clause to “the description °f the boundaries or parcels” seems more verbal than actual; m°"’°"e1', when we consider under what “conditions” the b°fl1'd can'alone be permitted to alter a registered description, the following case will illustrate the probable results to which it gill lead :——A. and B. are adjoining registered proprietors, with

°“1}dfiI'16s conclusive. A. sets_back his fence two feet in consideration of B. relinquishing a claim for a water easement Emnewhere else. No note is entered on the register. B. builds up 0 the new line. A. sells to C. After twenty years or so, B.

l applies, under section 19, to have the description of the boundaries rectified. The board can hardly do this without notice to C. But what is the effect of such a notice? No right has as yet been obtained by B. as against C., owing to section 21 of the principal Act; nor dose the new clause 19 give him any. Result: an action for ejectment at once commenced by C. against B., to which there is no possible defence. And so, as far as we can see, it would always work out. As long as B. keeps quiet he may remain undisturbed, but he will certainly be turned out the moment he attempts to protect himself under clause 19.

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SOLICITOR-TRUSTEES’ COSTS.
II.

IN our previous article we shewed that the exception in Oradock v. Piper (1 Mac. & G. 668), by whichasolicitor-trustee is allowed to charge profit-costs for work done in a suit on behalf of his cotrustees, arose from Lord Cottenham's failure to see the real ground of decision in .New v. Jones (note to Cradock v. Palmer). But although this has probably been beneficial to trust estates in general, and has certainly better carried out the intention of testators than the ordinary rule, yet it has been strictly confined to work done in a suit. It is true that no restriction of this hind is mentioned in Orazlock v. Piper, and the reason upon which Lord Cottenham based his judgment—viz., that a solicitor is only debarred from charging profit-costs for work done on his own belmlf as trustee, and that it is no part of his duty to act for his cotrustees—applies, of course, to all professional work alike. But the exception was so opposed to the doctrine of the law, and such difiiculty has been found by the judges in reconciling it with New v. Jones, which, nevertheless, Lord Cottenham approved, that it has been confined to the actual circumstances of the case in which it was first recognized, and as the costs there were costs in a suit, to such costs only has it since been held to apply. The first decision to this efl’ect was that of Vice-Chancellor Turner in Lincoln v. T'VimIe0r (9 Hare, 158). In the later case of BroughIon v. Brouglzton (5 De M. & G. 160) it was noticed by Lord Cranworth that, where the question related to charges incurred in a suit, there would be considerably less danger in relaxing the general rule where the solicitor-trustee was a defendant than where he was a plaintiff. But although this was the case in

Cradack v. Paper, yet, fortunately, the further refinement thus suggested does not appear to have been recognized. The ques

tion arose before Mr. Justice Chitty in the recent case of Burgess v. Vinioombe (35 W. R. 326, 34 Ch. D. 77), and there it was expressly stated that costs of business out of court followed the general rule, while the exception in Oradocl: v. Piper was re

stricted to costs incurred in a suit; and, as it had been suggested

at the bar that this exception was not really allowed in the taxing master's oflice, special inquiry was made on the subject, with the

result that the senior taxing master, after consulting two other

taxing masters, reported that Cradock v. Piper was always acted

upon. But the matter is now definitely settled by Re Corsellix,

Lawton v. Elwes (35 W. R. 309, 34 Oh. D. 675), and this case we

shall shortly examine. _

It so happened that the solicitor-trustee or his partner had done work of various kinds, and each of these affords a useful example of the application of the rule or its exception. They may be enumerated as follows :

(i.) An application for maintenance made under the summary procedure of the court on behalf of the infant tenant for life. To this the trustees were respondents. _ _

(ii.) An action by the tenant for life against the solicitortrustee, who was now the sole trustee, to execute the trusts and for a receiver. The receiver was appointed. _

(iii.) The solicitor-trustee acted on behalf of the receiver in passing his accounts. _ _

(iv.) The solicitor-trustee acted for the trust estate in preparing leases, and claimed his profit costs in respect of these, the costs being paid by the lessees. _

(v.) The partner of the solicitor-trustee was appointed steward of a manor, part of the trust estate, and the solicitortrustee claimed s. share of the profits arising from fees paid by the copyholders.

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New the first of these depends clearly on the exception _in Gradock v. Piper. So much, however, did Mr. Justice Kay disapprove of this that he decided to follow it only if the case befpre him were of exactly the same nature (33 Ch. D. 166). Looking carefully, then, for some ground of distinction, he found it in the restriction we have noticed to costs in a suit. But an application made by summons to the court to fix the amount of maintenance could hardly be said to be a proceeding in a suit; at any rate, it was not a case of active litigation. Hence he felt free to treat it as not within Cradock v. Piper, and to apply the general rule. But when the case came before the Court of Appeal it was seen that this was an improper evasion. As was said by Cotton, L.J., it would be frittering away the decision in Cradack v. Piper to say that it only applied to a hostile action, no such limitation having been laid down by Lord Cotteriham. And as to the more important question whether the court was bound to follow that decision or no, he held that it had been so long treated as a binding authority that it was impossible now to overrule it. He referred to the doubts which had been thrown upon it; but these had been doubts merely, and not contrary decisions, whereas the case itself was a decision of the Lord Chancellor, sitting as a court of appeal, and had been acted on in taxing costs from 1850 down to the present time. He recognized, too, the anomaly of limiting the exception to costs in a suit, but suggested as a possible reason, that in a suit, although costs are not always hostilely taxed, yet there may be a taxation where parties other than the solicitor-trustee may appear and test the propriety of the costs, and the court could disallow altogether the costs of any proceedings which might appear to be improperly undertaken. The rest of the court, Lindley and Lopes, L.JJ., agreed in condemning the exception in Craiiock v. Piper, but followed Cotton, L.J., in considering that it had been too long establishedto be now overruled, and that though the distinction between costs in a suit and those otherwise incurred was anomalous, and rested upon no satisfactory reason, yet it would not be right to fritter away the case they were upholding by drawing a further distinction between a suit proper and other less formal proceedings in court. The exception in Cradock v. Piper is now, then, more firmly established than ever, and also the restriction of it to the case of business done in a suit.

The costs under the second of the above headings raise no difficulty. The co-trustee had died, and the solicitor-trustee was therefore acting for himself alone. An attempt was made before Mr. Justice Kay to shew that the share of profits which he received from his London agent was a gratuity, but this, of course, fflllédi and these costs do not seem to have been mentioned on the appea .

Then there were the profit costs charged by the solicitor-trustee acting on behalf of the receiver. At first sight it is diflicult to distinguish these from costs incurred in acting on behalf of cotrustees. Lord Cottenham based the exception in Cradnck v. Piper on the assertion that it is no part of a solicitor-trustce’s duty to act for hi_s co-trustees, and, indeed, if the court had been desirous of following that decision, it might have been easy to do so. But, as we haye seen, quite the contrary was the case. Hence, as a receiver is different to a co-trustee, the court felt itself free to go back to what it considered sound principle. We have already stated Lord Cran\vorth’s enunciution of this in .Zi‘rou_qhton v. Brougham (supra, p. 556) to the effect that no one who has a duty to perform may place himself in a position to have his interests conflicting with his duty. Now when a receiver of the trust estate is passing his accounts, it is the duty of the trustee to check them and see that no overcharge is made. But it is the business, and therefore the interest, of the recci\'er’s solicitor to uphold the charges which the receiver wishes to throw upon the estate. Thus we are brought within the above principle. Possibly, h°W°"°1‘» It may be better to broaden it slightly, as was done by

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it has been well settled that where a solicitor-trustee is not allowed profit costs on work done by himself, neither can he charge them where the_work is done by his partner.

The fourth point raises some new considerations. The solicitortrustee acted on behalf of the estate, or rather on his own behalf as trustee, in preparing certain leases the cost of which was to fall on the lessees. Both Mr. Justice Kay and the Court of Appeal decided against him, though on somewhat diiferent grounds. The former pointed out at length that, though the lessees might pay the costs, yet it would be for the solicitor-trustee's interest that they should be as large as possible, and though the trust estate would not be directly injured, yet this might happen indirectly owing to intending lessees being deterred by the heavy expense. But in the Court of Appeal it was said more briefly that the trustee was, at any rate, employed by himself, although, by custom, the costs would fall on someone else.

Lastly, we have to consider the position of the trustee, or rather his partner, who is steward. Mr. Justice Kay treated this case as being similar to the last, and decided against the trustee because he might act prejudicially to the estate by claiming exorbitant fees. But the Court of Appeal thought this impossible, as the fees are fixed by custom, and though the steward is appointed by the trustees, yet, as in no case are they liable to him, they cannot be said to employ him within the terms of the ]udgment on the previous point. But how is this to be reconciled with the maxim that a trustee is not to make a. profit by his trust? Perhaps the following is the true explanation. As we have seen, this maxim must be interpreted by the fuller statement that _a trustee is not to put himself in a position where his duty and his interest will conflict. Now a trustee who is steward undoubtedly makes a profit by his trust, but is there any conflict between his duty and his interest ? Mr. Justice Kay thought there might be; the Court of Appeal thought that the fixed amount of the feel would avoid any such conflict. Hence there was no rei?-B011 W compel the solicitor-trustee to account to the trust estate for his share of the profits which his partner had received. ,

Of course all that has been said above as to a solicitor-trustee B costs holds only in the absence of special agreement or of a clause in the settlement or will authorizing him to charge profit 005155

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This was an appeal by the defendants from the_decision of _I3_\llt,fi-Z; and raised the question whether the master of a ship has a mBIlt1lTl9The on the ship for disbursements made by him on account of the shiP- ea action was brought by the master against the owners, and the mortgagb of the ship intervened as defendants. Butt, J ., held himself b0“(ll1 T}: the authority of The llingdova (34 W. R. 744, 1i P. _D.1?0l. 8? the ii...-y ism (14 w. R. 1:56, i A. 8: E. s), and gave Judsmefli °‘ plaintiff. Mm,

THE Conn-r (Lord Esiisii, M.R., Lmnuav and Loras, L.JJ-) §m1“,:°t me decision, and dismissed the appeal. Lord Esniia, l\I.R.iid at the question turned on the construction to be given to sectlon_10 Zmted Admiralty Court Act, 1861 ('24 & 25 Vict. c. 10). That sectionleim of that the High Court should have jurisdiction over (inter aim) Kill!“ we masters of ships in respect of disbursements. Did that section ti eneglin a master a maritime lien upon the ship? Jurisdiction \\_‘i1B 0°30rt Ac, similar words in certain cases by section 6 of the AdmiraltY .“r,sd,c_' 1840. There were certain matters over which the court had 11°11‘ owe, tion until it was conferred upon them by statute. _In ccrt:1I11a,“n matters, such, for instance, as collisions on the open sell, It hfld Tv;;!,,On_ absolute jurisdiction, and could enforce a lien against the shiP- the words clusion arrived at by Dr. Lushington in The Mary Anna was that f mew in the statute, " The court shall have jurisdiction," did noiitge gave selves, confer a right to enforce a maritime lien, but If Junde, jurisdiction in matters in which the court had a1!§BdY»_ excigk efiec; certain circumstances, jurisdiction to enforce a maritime lien, I; v owe: to was to do away with such exceptions, and to give the °°_ur liil of the enforce a maritime lien in all such cases. The effect of section, under Merchant Shippmg Act, 1854, was to allow the Court of Ad_!11“'“ of ,, very special circuinstanccs, to enforce a maritime lie!-1 1" ffivhad been master for disbursements by him on account of the ship- '-nmthe Hume. decided in T/la‘ Gl(‘1l!£lfl1i0T(SW5.¢ll5). The effect, thefefoiei of S b,,,,,, quent Act of 1861 was to extend this to all cases of disbursemelmdecided, master. Both The Glmtanmr and ‘The Jllary Amie WEN H8?“ yobviously and had been followed by many subsequent cases. The sectio: he could intendedto give the master a maritime lien on the sli1P Wmcoup-sry 911f0Ioe against the ship by an action in rem, and 5° h°1dme

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This was_ an appeal from a decision of Stirling, J . (ante, p. 286), the question being whether the domicil of the testator in the cause was. at the time of his death, German or Anglo-Indian. The testator was born in India, his father being an ofllcer in the service of the East India Co. He was himself an ofl-lcer in that service, and he never left India until the year l8'_I0. He left the service in 1868, and from that time till his death he was in receipt of a Government pension. After 1868 he entered the service of the N izam of Hyderabad. Early in 1871 he left Hyderabad and went to reside at Darmstadt; He purchased a house there in May 1872, and lived there until the time of his death, with the exception of short visits England in each of the years 1871, 1872, 1873, and 1874; a visit to India in l8i-1 for the purpose of obtaining a pension from the Nizam ; and some short visits to friends in Germany. His will was made in 1874, on the occasion of a visit by him to Wiesbaden. It was in the English form, and by it he gave his property to his grandchildren, to the exclusion of his children, whom, by the German law, it is not competent for a testator to disinherit. _ A good many witnesses deposed to their belief that the testator was dissatisfied with Germany and desirous to live in England. Stirling, J ., was of opinion, on the evidence, that the testator had acquired a _German domicil, and that he retained that domicil at the times of his will_aud of his death. It was argued on the appeal that a domicil of choice could be abandoned by mere expressions of intention.

Tris Coi:u'r or Avesan (Corrox, BOWEN, and Far, L.JJ.) afllrmed the decision. Coifrox, L..l., said that he understood the law to be this—that a man s domicil of origin remained, unless he had acquired a domicil of choice by residence in another country with the intention of permanently residing there. If he abandoned his domicil of choice, his domicil of origin reverted. A mere intention to abandon the domicil of choice was not enough; there must be act as well as an intention. The abandonment must be ammo etfiwto. The mere fact that a man began to entertain doubts whether he had acted wisely in changing his residence would not destroy his_ domicil of choice. The fluctuations of a man’s mind were of importance in deciding whether he had arrived at a. determination to reside permanently in another country ; but, when once the court came to the conclusion that he did intend to reside permanently in the country in which he had taken up his residence, the subsequent fluctuations of his mind were of no importance. On the evidence, his lor-lship came to the conclusion that the testator had acquired a German domicil, and that he retained that domicil at the time when he made his will and at the time of his death. BOWEN, L.J., said that when once a man had formed a fixed and settled intention of residing permanently in a new country, in Which he had taken up his residence, a change of domicil was effected, and that would not be undone by subsequent fluctuations of his opinion whether his act had been a wise one. Far, L.J., C0l1Cl.ll‘l'6d.—00L'NSBL, P"""""i Q-C-. and Carson; Graham Hastings, Q.C., and Farwcll. SoniCITQRS, H. W1 Cliatterlon _,' F. Rainer,

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In this case an application was made by a Protestant mother, married to the plaintiff, a Roman Catholic, that her child, being the only issue of the mB}'l'_1Bge and an infant of eight years of age, might be educated in the '9l181Ql1 0_f the Established Church of England, the applicant undertaking I9 mfllntain and support the infant. The action had been brought by the applicant s husband for the enforcement of a separation deed made

fitw_een him and the applicant, whereby it was agreed that, during the continuance of the separation, the applicant’s father should maintain and °PPP°1'N>l1@ infant, and the applicant should have its custody and control. lwnhi J‘) hflvlng made an order in the action giving the applicant the °‘15dY andvcoutrol of the infant until seven years of age on hcr under;f“¥""8 to bring 1t_up in principles not at variance with the Roman Catholic *i";l1i_ the question now arose as to its religious education. The lnlllilll maintained that, being the father of the infant, he had the 9831 fight to control its religious education. The applicant had some algal! means of her own, and was living with her mother. The plainthe (‘;]Q£dWltll0llfl means, except what he earned, but oflered to maintain

CHITTY» -7-_. said that it was admitted that the child was to remain in the gag“! Oi its mother. The Infants Custody Act, 1873, s. 2, enacted Ora “ “°Parat1on deed providing that the father should give up the control heh‘il1_Bl/Ody of the children of the marriage to the mother was not to be an hlélvfllid on that account, provided always that no court should enforce ofcth 9Bd_ unless it was of opinion that to do so would be for the benefit ml 6 children. He was of opinion that the words of the section “ conwu 0; custody ': were large enough to include religious education. He meg” <_>f opiniou_that it was for the benefit of the infant in the present wh direct that it should be brought up in the religion of its mother.

en the infant was to be in the custody and control of its mother, to

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‘ direct that it should be brought up in another religion would be injurious to the infant, and would, moreover, be a futile order. He directed that the fathor should have reasonable access to the infant, and made an order as to the terms of such 8OC8B8.—-COUNSEL, Lyttelton Cbubb; Ramon. Sonrcrrons, A. B. Oliubb ; W. P. Barton .Brown¢. '

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In this case the plaintiff, a member of the defendant friendly society, claimed an injunction restraining the committee of management from making alleged unauthorized payments and from acting as such committee, and also claimed an order for the recoupment of mlsapplied payments. The action was by plaint in the County Court of Liverpool, and the sum involved was, according to the plaintiff's statement, some £1,600, and, according to the defendants, some £7,000 or more. In a previous similar action (ante, p. 269) Chitty, J ., had made absolute a writ of m-rim-ari, obtained by the defendants, for the transfer of the proceedings to the High Court, on the ground that section 22, sub-section (d), and section 30, sub-section 10, of the Friendly Societies Act, 1875, were permissive enactments, and did not oust the jurisdiction of the High Court, and that the action was one which could be better tried in the High Court. The defendants in the present action having obtained. a writ of ccrliarari nisi, it was now argued by the plaintifi, on shewing cause against the rule, that the effect of putting a permissive construction upon section 22, sub-section (d), was that, whenever an application byaniember of a friendly society was made under the rules of the society for a reference, the society might purposely delay giving a reference until the aggrieved member, on the ground that “ no decision had been made on the dispute within forty days after the application to the society fora reference," sought the aid of the county court, as provided for by section 22, sub-section (d), when the society would forthwith apply for am'tiorari_for removal to the High Court, and by these means drag matters into the High Court by declining to comply with its own rules. The plaintiff submitted that, if the enactment were treated as permissive, it could be rendered altogether futile, the result being that an enactment which was intended by the Legislature to open the doors of the county court was, by means of the interpretation put on it, rendered inoperative if the defendants, the governing body of a friendly society, so willed, although the enactment was intended to benefit plaintiffs who were members of a friendly society when proceeding against the society.

CHXTTY, J., said that the argument was an ingenious one. If, however, a friendly society were to endeavour to creep out of its rules by the means pointed out by the present plaintiff, tho court could still refuse to grant the writ of cartiarari. He was of the same opinion as previously expressed (ante, p. 269)—-namely, that the Friendly Societies Act, 1875, _n. 22, subsection (dl, conferred a jurisdiction on the county courts, but did not take away that of the High Court. The present case was a proper one for ilie High Court. The rule was made absolute, with costs to be costs in the action.-—Cov:NssL, 0. E. E. Jenkins ,- Romer, Q.C., and Ru!/ier_/‘ord. Soucrrous, Bordman §- 0a. ; Gregory, Itowclqféas, Q 00., for Bremner, Sail, 4‘ Pennington, Liverpool.

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This was a petition for the appointment of new trustees of a trust estate and a vesting order. It appeared that there were originally three trustees, two of whom survived, and it was asked that two trustees only should be appointed. The evidence shewed that one of the two surviving trustees had been attacked in January, 1886, by apoplexy, which had affected his mental condition, although not to any very serious degree, but that his physical condition was such as to render him “ physically iiicompetent to attend to or transact business." The question arose whether an application should be made in lunacy. Ra Harlin’: Trusts (35 W. R. 524, 34 Ch. D. 618); Re Dew}ii'r.it's Trusts (35 W. R. 147, 33 Ch. D. 41(5), were referred to.

CHITTY, J ., said that the case fell within section 32 of the Trustee Act, 1850, and he should make the order appointing new trustees. ‘\'ll2ii regard to appointing two instead of three, although he, for his own part, failed to understand why the court should not sometimes appoint a less number of trustees than the original number, yet he thoughtit preferable, in the absence of special circumstances, to adhere to_ the original 11illIil.)81‘.—C0l'.\'fl1-IL, E. S. Ford; S. Hall. Soucrrous, 1’:-ilrliarzl, Englafialii, ij Ca , for Em-Ir, Sam, 4— Co, Manchester; Bower, Cotton, 5- Iiowzr, for Witlmiytan ,- Pally 4 lion!/lawn-, Manchester.

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This was a summons by one of the defendants, under rule 4 of ordcr 2-) of the R. S. 0., 1883, to strike out the statement of claiin, on the ground that it disclosed no reasonable cause of action. The action was brought to determine the construction of a will, and, if neoessai-y,,for the administration of the testator’s estate. The testator,whose will was made in 1809, and who died in that year, bequeathed the residue of his personal estate to trustees on trust for sale and conversion, and to invest the proceeds of sale in the purchase of real estate, or upon Parliamentary or real securities, or in the purchase of stock in any of the public funds, and

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out of the income to payto the testator’s wifs during her life for her saparate use an annuity of £1,300, and to pay the residue of the income to the testator's son K. for his life ; and, in case K. should marry and have children lawfully begotten, the whole of the interest of the trust estates should," after the death of K., go to the use of his first son lawfully to be begotten and the heirs male of his body, and for default of issue to the use of the second, third, fourth, and fifth son and sons, and all and every other the sons of K. successively in priority of birth, and the heirs male of the body or bodies of all and every such son or sons; and, in default of such issue male, the whole of the interest of the trust estate should go to and for the use of W. R. B. and the heirs male of his bod_v lawfully begotten; and, in case he should die without leaving issue male lawfully begotten, the interest of the trust estate should go to J . B. and the heirs male of his body lawfully begotten. according to priority of birth; and, in case of failure of such issue of J. B., the whole of the trust estate should be divided equally amongst his female issue. The testator's widow died in 1832. K. died in 187-L. He never had any issue. W. R. B. died in 1844. He had had one child only, a son, who died in 1841 under twenty-one. J. B. died in 1856. He loft several children surviving him. The defendant was one of his sons. The plaintifl was one of the next of kin of W. R. B., who had died intestate. It had been decided by the House of Lords in another action that the testator’s estate was not in equity converted into real estate, but that it retained its quality of personal estate. The plaintiff in the present action alleged that, in the events which had happened, the interest of W. R. B. under the will was an absolute interest, and was not dlvested on his death without issue—that is, that the words “ die without issue male" in the gift over ought to be read “ die without having had issue male," and that, inasmuch as he had had a son who predeceased him, the gift over did not take effect, and, the property going as personalty, the interest of W. R B., though in form an estate tail, was an absolute one. The defendant insisted that the words “ die without leaving issue male ” ought to be read literally.

N°R1‘H._ J_-. adopted the literal construction. He said that, in cases ivhere a hmited interest had been given to the first taker, the court had, in favour of vesting, construed the word “leaving” in a gift over as meaning :‘ having had.” The principle was that it would adopt that construction if the result of so doing was to make the whole of an instrument consistent, to make the gift over fit in with the original gift, and to avoid the divesting of a vested interest. The proposition was stated in Jarman on \Vills (-lth ed.), vol. 2, p. 823. In White v. Hiy/it (12 Ch. D. 751) Bacon, V.C., had applied this construction to a case where there was an absolute gift to the first taker. His lordship had some clifliculty in understanding the Vice-(lhancellor’s reasoning, but still he professed to be following the previous decisions. He thought the present case was not really governed by W bite v Eight, and he felt bound by the older authorities. Therefore he should construe the word “leaving” literally, and hold that the gift over took effect on the death of W. R. B.——O0UNBBL, (7°"7~‘w", Q.C., and Dauney; Kenyon Parker. SOLICITORS, R. C’. Hcmrott; Parkar, Garrett, j Ilzrkn.

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The question in this case was whether the manager in a foreign country of an English trading company had authority, by virtue of his position as such, to bind the company by a promissory note which he had signed on its behalf. The company was formed to carry on the business of importers and dealers of tinned ox tongues and other provisions. Soon after the formation of the company_the directors appointed H. to be the inlanager of the company s business in South America, to take the entire cargo of the interests of the company there. N o express authority was given to him to sign or accept bil s or promissory notes on behalf of the fiompany. He went to South America, and there he endeavoured to enter :!nt<i_a contract with L. for a supply of ox tongues to the company, L.

ec ined to enter into a contract unless some third person would give a guarantee that the contract would be carried out by the company. At the request of H., and _on the production of the agreement between him and the _company_ by which he was appointed their manager, S. agreed to deposit £1,000 in a bank to the order of L as a guarantee for the fulfilment of £118 2<in(f)&s)ct._ As a counter security to S., H. gave him a promissory note bil; , , signed by himself as on behalf of the company. The contract

"Q91! L-_ and the company was entered into, and, under a provision contained in it, L. forfeited the deposit on account of the company's _?§f!1\t1lt,u;1lld. the £1,000 was paid to him_. No gpods were supplied by

m ° ° °°mP'111¥; S. claimed to prove in the winding-up of the compapzy upon the promissory note. to b;>l:¢('1r1;il;3T.2x:'l\2ectedl;the claim on the ground that H. had no authority the authority Olpifllly y the piommior-7 Pot?‘ He flmught the hi" as t° in Lindley on Pm_m*‘8°1l1{t to bind his principal was accurately laid down than speak, of figs ‘P (4th ed.), vol. 1., p. 26$. The author was

5 ‘ ““th°Y1W Of a partner to bind the firm which

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carried on must evidently be determined by the nature of the business, and by the practice of persons engaged in_it." Applying that to the present case, there was no evidence that the signing of the promissory note was necessary for the carrying on of the company's business. There was evidence that L. was “ almost " the only person with whom a contract could be entered into for the supply of tongues ; not that he was the only person. \Ve.s the transaction in the ordinary course of the business of the company P This was a new company, and had no ordinary course of business as yet. But he thought that such a transaction had never been held to be in the ordinary course of the business of any company whatever. H. had authority to buy tongues for the company, and for that purpose possibly he had authority to pledge the credit of the company, though that was not clear. But he did not obtain the loan of £1,000 in order to pay for goods supplied to the company. The company never received the money, but it was forfeited by L. before he had supplied any goods to the company. The transaction was not necessary for the carrying on of the oompany’s business, or in the ordinary course of business. It was an altogether abnormal transaction, and H. had no authority to enter into it on behalf of the company. And the company had done nothing to ratify or adopt it afterwards.—Coi'.\'ssi;, Napier Hzygim, Q.C., and Lemon; Cooksan, Q.C., and Seward Brice, Q.C. Soticirons, 0. F. Hadron, Jlattliaws, Q C0. ; G. Castle.

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This was an action of negligence, for havingallo wed a brow attachedto a pier to be in a dangerous condition, in consequence whereof the plaintiff sustained inj uriss. A provisional order of 1863, which was confirmed by_an Act of the same year, had vested in the defendants, as the local authority, the then existing pier at Chatham; and one of the clauses of the order provided that the powers and functions thereby vested in the local board should be exercised and carried into effect by them as part of_ their general powers and functions, and subject to the like privileges, indemnilies, and regulations. A provisional order of 1884, confirmed by an Act of that year, vested in the defendants the present pier, which had been constructed in place of the old pier, and the works connected therewith; and repealed the above claims of the former order; and pr0vid_¢d that all expenses of and incidental to the pier and all charges on the pier income, which that income might be insuflicient to defray, should be discharged out of the general district rate, as though they were expelllefl properly incurred under the Public Health Act, 1875. The questiolii which was raised by a special case, was whether the defendants were entitled to the protection given by section 264 of the Pubhc Health Act. that is, whether the plaintiff was bound to give notice of action» and whether it was necessary to commence the action within six months after the accruing of the cause of action.

Tun Covnr (Ms-rn aw and Cave, JJ .) held that the defendants were 110$ entitled to the protection of section 264 of the Public Health Act. 'l'h8¢ which was complained of in this action was not anything done or omitted to be done under the provisions of the Public Health Act. The defendants were in the position of ordinary undcrtakers of works of a aim!-ll! l(ll1Cl.—Ci)UNBBL, Channel, Q.C., and Muir 1llacImi:o'a,' Jtlf, Q.-C-1 and Winch. SOLICITORS, Werllali-e, Lens, if Wedlake; Satchel! Q Chap)!!!

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This was an appeal by the trustees of an undischarged b_M1kl"1Pl agbfigf in order, mode by Mr. Registrar Hazlitt on the apphcation_of the admit rapt, directing the trustees to proceed with and either to reject or tithe proof of an alleged creditor for £400,000. The trustees were llfizfieix gating the proof. The trustees appealed, and it was contended Oil the behalf that the banknipt, being undischarged, had no intereflli 1" matter, and had no locus Mandi to make the application. M R

Without deciding this point, Ti-is Couiir or APPEAL (Lord ESE“. 8'8 ii; and Linnrsr and Lorss, L.JJ.) took the objection that thebank1‘l1Pl" um contempt by reason of his having disobeyed several orders of thggfion and that on this ground the court ought not to hear B11! “PP'beWf made by him until he had cleared his contempt. It was US$33 tn the of the bankrupt that, as he was not in contempt with !‘9B_ what matter actually before the court, there was no ground for refufllflfl him. .d that the

The Ooviir allowed the appeal. Lord Esnaii, M-R-1 9*“ mu conduct of the bankrupt had been before this court on former 00H Mu; and the court from its own knowledge expressed its view that l19_ um of defying the orders of the court. The registrar who had oognm wen this bankruptcy confirmed this view. An opport11I11W hlfd beeggiml to the bankrupt of appearing and contesting these al1e8°h°mimd o,,]y contempts were specified, and the bankriipt’s 00\ll1l°1 d we dealt with one case, and did not call the bankrulil legwn. allegations. His lordship was of opinion that the bankr'lPl‘,"“ mm, tempt of the court in respect of several orders, and tile Nllstiiifinnnh fore, ought not to have made the order now in question, Bud “mum” set aside. LINDLBY, L.J., said that the registrar ought t° “Wm win dismissed the application, on the ground that the lJBl1kmPl7 ,1’. mm the knowledge of the court, defied every order of the 001111, End Eamon ought, out of self-respect, to refuse to make any order on 11125512, we untilhe had complied with the orders of the court. Loris. LJ-I

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JOURNAL. 577

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orders of the court, and the bankrupt, though he was present, was n

called to deny the report made by the registrar. It must, therefore,

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ot the draftsman had used the phrase with that signification at the end of be section 17. On the other hand, on behalf of the wife, it might be urged

taken that ho had systematically disobeyed the orders of the court, and that the construction “for the purpose of a trade or business carried on by

on this ground the registrar ought not to have heard this motion until t
bankrupt had purged his contempt —COUNSEL, Winslow Q O , and Sidn

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he the liusband_or in a different manner than by the husband " was more n . .

o ant with the usual meaning of the phrime, and was the meamng ; which the draftsman had himself adopted on seven other occasions in the A t. It was an obvious criticism that, if the draftsman had intended the mea ing contended for by the trustee, it would have been simpler either to have said “lent for any purpose whatsoever" or to omit all reference to the purpose of the loan, but the same observation was applicable to the use of the words "disposing by will or otherwise" in the first clause of

The trustee in this bankruptcy moved to expunge a proof tendered by N.

which had been admitted by an oversight, and he served N. with

subpa-via dam mum to bring his books and accounts, and sent him £5 for h‘
expenses. N. demanded a larger sum for his expenses, and, not having by h

received the sum which he demanded, he did not appear at the t‘

appointed for the hearing of the motion. At the request of t

trustee the hearing was adjourned, and Mr. Registrar Hazlitt ordered
to pay the costs of the ad journment.

Tun Oornr or APPEAL (Lord Esiiim, M.R., and LIZ\'DLE\' and Loriis P
L.JJ.) held that there was no jurisdiction to make such an order. Lo '
ESHHR, M.R., said that it was impossible to uphold the order. If r
order was made on the ground of disobedience to the subpoena, the prop
course would have been to call upon N. to shew cause why he should n
be committed for contempt. And in the character of respondent to t
molicu N. could not be ordered to pay the costs of an adjournment whi

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' J une.

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“ an appeal to the Court dag Appeal shall lie at the instance oi t

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e n 9 rate, °t the he were applicable to a wife who lent money to her husband for the purposes “h of trade or business, for, whatever might be the terms as to interest, she O-I must, under ordinary circumstances, share in the benefit arising from her

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he Board of Trade, and at the instance of the trustee (if any) from any I, order of the court made upon such an application.” In the prese

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11, for
as SQ
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as order against a debtor, “except as directed by this Act, no creditor to

1 section 1, and to the phrase “either in contract or in tort or otherwise” 5 in the second clause of that section. His lordship guessed rather than 1“ concluded that the draftsman meant to say “ any money of the wife lent er to her husband for the purpose of any trade or business carried on

registrar had reported that the bankrupt had systematically discbeyed the husband or for a different purpose " derived support from the fact that
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im

B by him, whether alone or in partnership with others, and whether

he personally or by an agent,” &c, and that he did not mean to say “for the N- purpose of any trade or business carried on by him or for any other purose

" When we got away from the language of the Act the atmosphere

rd became somewhat clearer. Bovill's Act applied only to loans to traders,

was founded on the principle that he who shared in the profits of a

trade or undertaking should also run some risk of loss, and should, at any ' not be allowed to prove for his capital or profits in competition with creditors who did not share in those profits. Similar considerations

husband’s success. There were, however, no circumstances under which a man who lent another money for purposes other than those of trade or business was postponed to the claims of creditors, and no suficient

son could be assigned why such a penalty should be imposed on a wife.—-Covnsan, Herbert Reed; Muir Mackmzie. Soucirons, 6'. Harcourt ,W. Aldridge.

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CASES AFFECTING SOLICITORS.
Ra AARON WRAY—C. A. No. 2, 22nd June.

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1;. This was an appeal from the decision of North, J. (ante, p. 495), the cg question being whether an attachment ought to have been issued against be a solicitor for his default in not paying a sum of money which he had rd been ordered to pay in his character of an oificer of the court. Section

4 of the Debtors Act, 1869, excepts from the abolition of imprisonment making default in the payment of a sum of money “default bya licitor in payment of a sum of money when ordered to pay the same in s character of an ofiiicer of the court making the order." Section 9 of Bankruptcy Act, 1883, provides that, after the making of a receiving

c. whom a debtor is indebted in respect of any debt provable in bankruptcy

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Rule 237 provides, with r ard to the discharge of a bankrupt th “"89, the duty of appealing for the purpose of setting it right. Rul ‘n

237 substituted the Board of Trade for the trustee. Instead of compel]

i the trustee to exercise his power, the Board of Trade could do it itsel _ J_, execution, or other legal process agamst the property or person of the .ll[u'

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B ing, unless with the leave of the court, and on such terms as the court 8 may impose.” And by sub-section 2 of section 10 “the court may at f_ any time after the presentation of a bankruptcy petition, stay any action,

,,- debtor, and any court in which proceedings are pending against a debtor of may, on proof that a bankruptcy petition has been presented by or against the debtor, either stay the proceedings, or allow them to continue on such terms as it may think just." In the present case the solicitor had acted as solicitor to the trustees of a will, and had received from them some trust moneys for the purpose of investment. He did not

L; invest them, but applied them improperly, and on the 7th of March, on t

he ap licatlon of the surviving trustee and the residuary legatees, North, J ., mags an order that the solicitor should, on or before the 7th of April,

at pay the moneys in question, “ being moneys in his hands and received by er hi ' ' ' .

Y. Y y or was served on the solicitor penonally on the 22nd of March, but he failed i°);""£;"'*'. shall be treated as assets of her husband's estate in_ case of ,h

m as solicitor” for the trustees, to the surviving trustee The order

is to obey it. On the 27th of April a notice of motion, dated the 22nd of B April, was served on the solicitor by the persons who had obtained the

get tor i°1' the amollllt 01' value of such money or other estate after, order of the 7th of March, asking that they might be atliberty to issue a.

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16 writ of attachment against the solicitor for his contempt in not paying

:I(])I1Bld6l'8tlOl11l1 money or money’s worth have been satisfied." Between the money pursuant to the order. Meanwhile, on the 25th of April, a e years 1874 and 1877 the wife of the bankrupt lent to her husband receiving order in bankruptcy had been made against the solicitor upon

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to the petition of another creditor, but the applicants were ignorant of this

d fact until after they had served the notice of motion. North, J., held

that, notwithstanding the receiving order, he had jurisdiction to allow the

ggflihauemcn and wine merchant. A proof tendered by the wife for this attachment to issue, because an attachment against a solicitor for the non

“ _1'°Je0t/ed by the trustee in the bankru to on the ouud that 31122151! alillerglion 3 the claim of the wife to a dividdiidymust bgr postponed C e other creditors had been satisfied The wife appealed r

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"mud occasion of its use in section 11 it had the meanin. "
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mg“; P“l'Pf§¢?- The contention of the trustee that the words
mean. for the purpose of a trade or business carried on by f

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i: to allow the attachment to issue, on the ground that, by reason of the 7. ions 7 d In

an 10 it seemed to moan “ of a different character " On the

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payment of money which he had been ordered to pay in that character was not amerely civil process for the recovery of the debt, but was in its nature “punitive or disciplinary.” But, in the exercise of the discretion given to the court by section 10 of the Bankruptcy Act, he declined

receiving order, no benefit could result to the applicants from the attachment, aiid the issue of it might embarrass the bankruptcy proceedings. But his lordship ordered the solicitor to pay the costs of the motion. On the hearing of the appeal it was admitted by the solicitor’s counsel that the receiving order did not deprive the court of jurisdiction to issue the attachment; and on behalf of the appellants it was urged that the result

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