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Anoiw THE CHANGES which have been introduced in the Railway and Canal Trafiic Bill in the House of Lords, there is one the indirect importance of which has not, we believe, been generally appreciated. As the Bill now stands, the commission is to consist of two permanent appointed commissioners and three ex ofiicio commissioners. Of the three ea: oficio members one is to be appointed for England, one for Scotland, and one for Ireland ; and the ea: ofiicio commissioner for each part of the United Kingdom is to be one of the judges of the superior court of that part. The ea: qficio commissioner for England is to be such judge of a superior court as the Lord Chancellor “ may from time to time by writing imder his hand assign, and such assignment shall be for a period of not less than five years," and regulations are to be made as to the arrangements for securing the attendance of the ex ofiicio commissioner, as to the times and place of sitting in each case, and otherwise for the convenient and speedy hearing thereof. Now comes the alteration to which we allude. Clause 6 provides that:

“ It shall be lawful for her Majesty, having regard to the business required by this Act to be transacted by the ez oflieio commissioners, and to the proper transaction of the business of the superior court in England, to appoint an additional judge of such court, and from time to time to fill any vacancy in such judgeship, and the law relating to the appointment and qualification of the judges of such superior court, to their duties and tenure of oifice, to their precedence, salary, and pension, and otherwise, shall_apply to any judge so appointed under this section, and a judge so appointed under this section s all be attached to such division or branch of the court as her Majesty may direct, subject to such power of transfer as may exist in the case of any other judge of such division or branch.”

It will be observed that, although the additional judge of the High Court is to be appointed in consequence of the provision for the ea: oflicio judicial commissioner, it is nowhere provided that the new judge shall be such commissioner. He is to be attached to such division of the court as her Majesty may direct, while the commissioner is to be “ such judge of a superior court " as the Lord Chancellor may from time to time assign. The probability seems to be that the new judge will be attached to the Chancery Division.

THE ATTEXTION of practitioners in courts of summary jurisdiction should be called to the case of Saulh Stqflordshire Waterworks Ca. v. Stone (Weekly Notes, 1887, p. 130), and the strict construction there put upon one of the Summary Jurisdiction Rules of 1886. It is enacted by section 33 of the Summary Jurisdiction Act, 1879, that any person desiring to question a conviction of a courtof summary jurisdiction may apply for a special case, and that “ the application shall be made and the case stated within such time and in such manner as may be from time to time directed ” by rules under the Act. Rule 18 of the Rules of 1886, repeating without alteration rule 17 of the Rules of 1880, directs that “ an application to state a special case shall be made in writing, and a copy left with the clerk of the court, and may be made at any time within seven clear days from the date of the proceeding to be questioned.” In the South Staf/"ordshire case an oral application to state a case was made to justices while sitting, and was granted by them in court, but no copy of any application was loft with the clerk, though a “notice of appeal" was afterwards served upon him within the seven days. The case was stated by the justices; but the court (Lord COLERIDGE, C.J., and DENMAN, J .) declined to hear it, on the ground that they had no jurisdiction. The case seems a_hard one, but we think the decision is in accordance both with principle and authority. The rule secms to be that, where a statute Confers a privilege or right, “the regulations, forms or conditions which it prescribes for its acquisition are imperative, in the sense that non-observance of them is fatal,” (Maxwell, on

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days occur at a period when the oflices of the court are closed, as where an appellant received a case on Good Friday and transmitted it on the following Wednesday (Mayor v. Harding, 2 Q. B. 410).

Tni: Loan CHIEF J USTICE was engaged on Wednesday last in the somewhat unusual duty of charging the Grand Jury for Middlesex on an indictment against a local authority for polluting the Thames with sewage. It is stated that this is the first indictment which has been presented to this Grand Jury since the J amaioa prosecution, which caused the memorable controversy between Lord Chief Justice COCKDUEN and the present Lord Bnacxiioux. Formerly the Middlesex Grand Jury was summoned once in every term, but the Grand Juries, Middlesex, Act, 1872 (35 & 36 Vict. c. 52), s. 1, relieved the county urors by providing that the grand ury should not be summoned in any term unless before the fourth day thereof the Master of the Crown Oflice should have received notice of some business intended to be brought before them._ The duty of charging the Middlesex Grand Jury was formerly discharged by the senior puisne judge of the Court of Queen’s Bench, who received an additional payment of £10 per term for so doing, It may be remembered that this extra payment was abolished by section 29 of the Judicature Act, 1875 (38 & 39 Vict. c. 77) subjectto the vested interests of Mr. Justice BLACKBURN, who was the senior puisne judge of the court when the Act came into operation.

Tns ransrimssiiiu: suitor in person has come to the front again this week; a plaintilf who conducted his own case bcfore Mr. Justice Cnrrrr occupying the time of the court for the_great€r part of three days. The inconvenience usually experienced in thew cases by reason of the ignorance of the rules of evidence and oi advocacy exhibited was in this case aggravated by the powefiul eloquence of the plaintifi. His desire to make a speech 0_11 em’? occasion during the course of giving his evidence and of his crossexamination by the defendant’s counsel, as well as on the crossexamination of tho principal defendant, andhis indignation, cXpl'9"9d in loud tones, when any irrelevant question or ill-timed speech W115 objected to, many times brought down upon him a rebuke from $116 judge, only to be followed by further indignant speeches from the plaintiif. After this exhibition can it be said that a suitor 111 P91‘son ought to be treated with leniency, or to be allowed BUY 8"e"*te" licence than a barrister who is acting as an advocate? ho dougt a judge has in his hands the power to put a stop to any Wtuh’ ing to disturb the due administration of justice or to wastet B public time, but he naturally hesitates to put_it in force and? make a martyr of the suitor in person. The time would seem. ° have arrived when the judges should agree to some course of 11Ctl0l; which would have the effect of putting a stop to, or, at least, ° mitigating, the evils here pointed out.

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Tnr. BALANCE SHEET of the Paymaster-General, 0_l1 bell"-lfq°fhth‘j Supreme Court of Judicature, during the ycar ending the {if gt February, 1886, has recently been issued. It is a reinarkah e avthat the value of the cash and securities in the hands of thlf P“. master belonging to suitors, which, up to the end of F9h'“:2'j 1884, had for many years been on the increase, 119-5» °n ti two returns, shewn a considerable decrease. On the lst_0i “am, 1884, the property (leaving out some miscellaneous Iii?‘ fly securities cxpresed, in foreign currency) in the hands of_ Buying, master, consisted of £4,429,079 cash and £73.931i2418°S6 i, value of securities; whereas on the lst of l\lor_fll1, ufitliesv consisted of £3,931,054 cash and £7l,945,_527 In $398 03,; shewing a decrease over the whole period Of ortof in cash and £1,984,720 in securities. In the _ “Pm of the Auditor-General, attention is called to the lilffe 15,, suitors’ funds, being £12,056,884 since the lst of Of=t° “hard ,0 when the Audit Ofiice undertook its present duties with fliie ks, those funds, but no mention is made of the falling ofl of accounts tW° Yea1'5- Dllrillg the last fifteen years the number 0 3, 02, to which these funds stand has increased from_ 291960 30mgthe and it further appears from the Judicial Statistics tl1"t. léhe Pavsame period the annual number of cheques drawn "1 ' master’s office increased from 51,623 to 61,464.

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rl. July 2. 1887- THE SOLICITORS’ JOURNAL. 589

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ilnfli | ' , -~ also Sim l those ho en r in o ' ' ' iance on a 9,!q.l RECTIFICATILON OF DESCRIPTION UNDER THE pope}; title, wivtvhout tiilering the difrhliiblzd thug}; gtllttlldllhldliretlt the subAND TRANSFER BILL ject-matter of their bargain, or to make obvious inquiries sugLAST week _we called attention to an arguable point that will pro- Basted by Patel-It fictiEH_;_ bably be raised sooner or later on clause 19 of the Land Transfer which 0f $11686 tW0 rival classes Of claimants ist-he more entitled Bill, relating to the rectification of the “ description” of registered 5° P1‘°t~%ti°1-'1 ? “pkg estates where adverse possession has been proved against the regis- _ M med °“"1°I~ Allvfller cunous enquiry is also suggested by the L ' ‘_ proposed enactment. e _ Under the Act of 1875 (section 83 (5)) the registered descrip- WILLS OF MARRIED WOMEN.

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tion is “ not conclusive as to the boundaries or extent of the land.” Howjbr m, then, does the force of section 21 of that Act, relating to adverse possession, extend ?. This will probably depend upon circumstances, giving much opportunity for discussion of delicate points in each particular case. It would seem that as long as boundaries are not “confirmed” (as under the Bill proposed) it will always be a more or less open question of what land a registered proprietor has been registered as proprietor. Thence, by an easy step, it appears that it will also be an open question what land can not be acquired by adverse possession. Further, whatever answer be given to this question, another point may be taken on the application of clause 19 of the Bill—namely, this: had the expressions used both in clause 19 of the Bill and section 83 (5) of the Act been identical, it would have been clear that clause 19 was only to apply where boundaries had been confirmed; but they are not identical. Th_e Act provides that the registered description shall not be conclusive as to the “ boundaries or extent ” of the landmeaning, probably, that if the centre of a hedge is registered as the boundary, yet for all that the boundary may remain where it was, four feet away from it, and that a registered disposition of 4,000 square yards may, in imaginable cases, really only afiect the transfer of 2,000. (Vendors and purchasers of registered estates are probably not generally aware of these points.) But clause 19 of the Bill permits rectification of the description of the land whereever it is shewn that the “ boundaries or parcels ” are not in accordance with possession, &c. This raises the question what is a parcel? If it had been intended that the clause should apply to the whole of a registered estate, of course the words boundaries and parcels_would not have been used. How many parcels, then, and how big, can be abstracted from a registered title as merely parcels,” and at what point is the substance of the estate to be held to be aifeoted by the lopping of its outlying dependencies? In this respect it seems that clause 19 goes somewhat further than the_section 88 (5), so as to bring again under the operation of the °Id1l1ary law as to adverse possession certain portions (though 9"¢Bre what portions) of a registered estate which would have been safe under the Act of 1875, even without having its boundaries confirmed under the Bill. d But whatever the court may ultimately hold that the clause ‘"38 me5",_ it is very clear in certain other cases what the court will decide that it does not mean. Whatever interpretption may be put upon the words “boundaries,” extent,” or WPBICBIB, it is clear that they cannot mean tlie whole of an estate. hel_'°Ve1'>_ therefore, adverse possession against a registered P'°Pl'1etor is obtained as to the whole of an estate— that is to say, gr the very cases where the occupier has the strongest moral claim the pr0t9Ct1OD of the law, and the registered proprietor has been tg_'“1tY of the grossest possible carelessness and neglect—the opera11$ of the statute will be to oust the former in favour of the 5 tel And this, too, not only in the case of a purchaser, but so :18 obenable the yery man, and his successors in title, who have dmgiered °nfl1e1!'1‘1gl1t§ fol‘, say, 100 years, to require the inflit‘, °'1B_8I1d unsuspecting occupier to relinquish his holding at eir arbitrary bidding.

Let us take, for instance, the not infrequent case of a tenant for gfigrtat *1 Peppercorn rent holding over after the determination of he i8e'm;°Y ; _all parties being under the mistaken impression that He d a. °e,@"11P1_6 0W_rl1er. He spends money in improvements. re is {"1838 it to his widow as her sole provision. On going to be heiefirf . she finds that by no means whatever can she protect of con mm elflotment at any moment, at any distance of timc. an wigs?’ _the_insurance fund will not help her in the least. And gent °w1l1]ll?Bt109 for what? To protect the careless and negliobject Elf!‘ It has this effect, but this can hardly be the real land?- Y0 protect purchasers, mortgagees, and lessees of registered

es, but what sort of purchasers, mortgagees, and lessees?

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Ir must, we think, have occurred to many that the law, as established by the House of Lords in Willock v. Noble (23 W. R. 809, 7 H. L. 580), which disables a married woman from making a will that may be effectual to pass property to which her title only arises under her husband's will, is unsatisfactory. We are not presuming to find fault with the decision, which, if we may be allowed to say so, seems quite sound, but with the law itself. The Married Women's Property Act, 1882, has made no alteration of the law in this respect (In re Price, 28 Ch. D. 709).

It may be well to give a moment’s consideration to what is the law as regards the wills of married women. A married woman might. before the Wills Act (1 Vict. c. 26), and can still, makea will (1) disposing of her separate estate or its savings, or (2) in execution of a power, or (3), if an executrix, in order to appoint an executor for continuing the representation to the original testator, or (4), with her husband’s consent, disposing of property not reduced by him into possession during the coverture to which he would, as husband, have acquired a right on his Wife’s death, subject, however, to the obligation of taking out administration: see judgments of Lords Selborne and Cairns in Noble v. VVillocI:, 1Villo1:k v. 1Voble (21 W. R. 711, 8 Ch. 778, 23 W. R. 809, 7 H. L. 580). We should mention, however, that in the books are found two other cases—that of the wife of a man banished for life by Act of Parliament (Countess of Portland v. Pro/(oars, 2 Vern. 109), and ( when the law authorized sentences of transportation) that of the wife of a man sentenced to transportation for life and transported (Re zllartin, 2 Rob. 405.) A Queen Consort is expressly enabled by statute (39 & 40 Geo. 8, c. 88, s. 9) to make a will of real and personal estate. It seems clear that in the last only of the four first-mentioned cases the will ceases to be efl’ectual by the death of the husband during the wife’s lifetime. In the case of the exercise of a power, the power is, of course, assumed not to be in terms exercisable onlyin case the husband is the survivor.

Let us now see what are the provisions of the Wills Act which have to be regarded for the purposes we have in view in this article. They are sections 1, 3, 8, 24, and 27. Under section I the word “ will ” in the Act extends to “ an appointment by will . . . in exercise of a power,” and every word importing the masculine gender is to extend to a female. Section 8 empowers every person to dispose of, by wiH, all real and personal estate which he shall be entitled to at law or in equity at his death, and which, if not so disposed of, would devolve upon the heir of him or his ancestor, or upon his executor or administrator. Section 8 enacts that “no will made by any married woman shall be valid except such a will as might have been made by a married woman before the passing of this Act.” By section 24 every will is to be construed, with reference to the real and personal estate comprised in it, to speak and take efl’ect as if executed immediately before the death of the testator, unless a contrary intention appear by the will; and by section 27 a general devise or a bequest of the personal estate of the testator, or of personal property described in a general manner, is to include any real or personal estate to which the description extends which the testator may have power to appoint in any manner he may think proper, and is ‘to operate as an execution of the power, unless a contrary intention appear by the will. Section 24 gave to a will, and section 27 to a general devise or bequest, an extended operation. This being so, the question arose whether these enactments applied to the will of a married woman, having regard to section 8 of the same Act ; and in T/lomas v. Jones (10 \V. R 853, 2 J. & H. 483; on appeal, ll W. R. 242, 1 D. J. & S. 63) it was decided by Lord Hatherley, then Vice-Chancellor—and his decision was aflirmed by Lord Westbury, C.—that they did. It was there held that a power of appointment over real estate given to the_ survivor of three persons

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was, under the Wills Act, well exercised by a general devise

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by a married woman who did not become the survivor until after the execution of her will. The Vice-Chancellor said:— “ The construction I give to the 8th section is, That it disables s married woman from doing anything which before the passing of the Act she could not have done by reason of her coverture ; it preserves the incapacity of coverture as it stood before the Act ; but, as regards any incapacity arising from matters independent of coverture, applicable to men and women alike, the statute wasinot intended to draw a distinction between married women and other persons.” And, on the appeal, Lord Westbury said :— “ The objection of the appellants is foimded on the 8th section of the statute, and may be thus stated: The statute cannot be applied to render valid any devise contained in the will of a married woman, which would not have been valid before the Act. But the will of Margaretta Nicboll, if made before the statute, would not have been valid as an appointment of the estate in question. Therefore, say the appellants, the court cannot apply to this will the beneficial principles and rules of construction which are introduced by the 24th and 27th sections of the Act, and which are necessary to render the will a valid appointment. In other words, the plaintiffs contend that the application to this will of the 24th section of the statute, thereby giving a subsequent date to the will, is to confer a testamentary capacity which would not otherwise exist, and that this is forbidden by the 8th section. They insist that, if, by applying the statute, you make the will of a flame covert include that which, but for the statute, it would not, you enlarge her capacity, and make her will valid as to property of which, without the statute, it would not be a valid disposition. It is obvious that the result of this reasoning would exclude all wills of married women from the benefit of the provisions of the Act, wherever by virtue of its enactment such wills would receive a more extended operation. Such could hardly have been the intention of the Legislature. . . . Personally she acquires no enlarged capacity from the statute, although her testamentary instrument or will, when made, may have the benefit of more liberal rules of interpretation.”

It may, perhaps, be right to notice that in Thomas v. Jones the testatrix died married ; but it is submitted that this was unimportant, for it seems clear that a general testamentary power, where not limited to take effect only in the event of the husband surviving, may be exercised by a married woman so as to take effect whether she survives her husband or not (see 3 Dav. Pi-sc. (3rd ed.), 186, 187). It seems also clear that a general testamentary power given to a woman while sole may be exercised by her when married (Sug. Pow. (8th ed.), p. 154). Then, it being clear that under sections 24 and 27 or the lVills Act a general disposition in a will made before a general testamentary power is created may operate as an execution of that power, even although the instrument creating the power in terms contemplates a prospective execution (see, among other cases, Bayes v. Cook, 28 W. R. 754, 14 Ch. D. 53, and Airey v. Bower, 12 App. Cas. 263), it seems to follow that a general disposition in the will of a married woman may operate as the execution of a general testamentary power, exercisable irrespective of coverture, which becomes vested in her under the will of her deceased husband. Then, as to separate estate, section 24 of the Wills Act must, according to lhomas v. Jones, apply to separate property in real estate as well as to a power over i .

We may observe that, under the Married Women’s Property Act, 1882, it would seem that in the not infrequent case of an investment in the joint names of a husband and wife, if made after 1882, the wife would be capable of disposing by will made during the marriage of her contingent title by survivorship.

Thiis far w_e have considered the extent of a married woman’s capacity of disposition by will either under a power or in respect :£t§§1%ar‘;:‘tP£gP§g§€', *_1ll, 1;? we said at the beginning of this

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U. :1 ..Z.2::;“.:$::?:.*z:::si::*.“::::"‘. 122:" bi °“'“°“hiPv n°tW9T—B!'ises under her husband's will PW’ hg 0 3-1'°°‘lY “P785566 the inclination of our opinion that a iiiarridd woman ma excrcis ‘ -

bamrs win? If mg €§‘:)P‘:l£1l;ilg*°:illgo8wcr arisiing under her hus. to exercise u right of dispovsmon afisin friparrie wolpianhnot be able vested in her under her husband“! wgu 9 m fiwners ip t at becomes what _was said by Mellish, L.J., in1Vo[,1,,'v 1;/3Z,c;:W€_,,:n :5) ieéilgrgo referring to this question put by Lord Penzance in his jiidgment

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in Noble v. Phelps (2 P. & D. 276, at p. 283, 19 W. R. III5, at p. 1117), “Does the will of a married woman made during coverture speak and take effect with reference to property comprised in it as if it had been executed immediately before her death?”, Mellish, L.J., in answer to it, said: “Now, certainly I should be far from saying that that would not have been a very reasonable thing to enact if the Legislature had enacted it, because, no doubt, it vcry often happens that the husband and the wife grow old together, they both become ill together, at the same time almost, and, possibly, it might be a very convenient thing if a married woman might make a will anticipating the time when shc should become a widow, and efieotual in that event. After her husband’s death she might be in a state practically incapable of making a will until she herself died. In my opinion, the law has not gone to that extent." Befoie adverting to Lord Justice Mellish’s remarks, we may notice that Lord Penzance’s question itself was not, it appears to us, so expressed as to bring out the real point, as it omits reference to the cessation of coverture. The question intended, we think, was something like this-Does the will of a married woman made during coverture speak and take effect as if it had been executed immediately before her death so as to comprise property acquired aflor cessation of the coverture? and it is clear that it is to such a question the Lords .Tustice’s remarks are directed. Then, adverting to his lordship’s remarks, what was said by the Lord Justice seems to us to afford a strong ground for an amendment of the law in the direction indicated in his remarks; and when it is borne in mind that a married woman’s will may operate as an execution of a general power taking effect on her surviving her husband, and, as it appears to us, even although the power arises under her husband’s will, it is difficult to see why a married woman should not be made capable of making a will which shall be operative on priqperty of which she becomes the owner under her husband's w .

It appears to us that an amendment of the law for this purpose is made more desirable by the passing of the Married Women's Property Act, 1882, inasmuch as it seems likely that by reason _0f that Act the number of married women who make their wills will be greatly increased, and it would surely be an advantage that I1 married woman should not be obliged to make a second will in the event of becoming a widow and acquiring the ownership Of property under her husband’s will. Moreover, as Parliament hasby the Married Women’s Property Act, recognized the capacity Of a married woman to manage her property and secured to her the power to do so, it seems well nigh absurd that she should {$111 remain incapable of making a will while under coverture (llFp05m8 of property which may be in her power of disposition when she becomes a widow. The influence of her husband must su1'91Y be less to be apprehended in the case of property which he 081111“ himself enjoy than in the case of property which hc ma)‘ hike under her disposition if he survives. An enactment that a muffled woman shall be capable of disposing by will of any P"°Perty which at the time of her death may be subject to her testamentary disposition would seem to meet the object.

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CORRESPONDENCE.

SOLICITOR-TRUSTEE COSTS. [To the Editor of the Solicitors’ Journal-1 _ B“ Sir,—-You refer to Christopher v. White as settling the point agafilere partner of a solicitor-trustee being able to charge profit costl/18 re was the trustee himself would not be allowed them. I thouiht t lghough a case a year or two since in which, on it being shewn that. "business the trustee was a partner he took no profits from the 9 held

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and did not do the work himself, and that in T P 1-_ that the partners might charge in the usual way. ' ' London, June 25. ' ‘ r-t1‘\lSt99

[Our meanin , of course was that where the B0llCll50 would participaie in the piofit dosts, his partper could notfilligf thcui. If the partnership articles expressly provide that the 5° benefit trustee shall not participate in the profit costs, or have Billychnrm from them, the solicitor-trustee may pay his partner the um; Q my for work done for the trust estate (Clack v. Carlon, I Jun . ' ‘O',, the We are not aware of any more recent reported B.1ltl10rliYracywc point, but should be glad if our correspondent (Wh°s° “cu know) could refer us to one.—ED. S. J.]

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This was an appeal against a decision of Kekewich, J. (35 W. R. 516),
the question being how, on the purchase of the undertaking of the
company by the Secretary of State for India, the purchase-money was to
be divided among the stock and shareholders of the company. The
Secretary of State had an option of purchasing the company’s under-
taking “ at a sum equal to the amoimt of the value of all the shares and
capital stock in the company issued or created for the purposes of the
railways and flotilla, calculated according to the mean market value of
such shares or stock during the three years immediately preceding the
date of the purchase," and he was also empowered, instead of paying a
gross sum, to pay an annuity for a fixed term of years. At the time when
the Secretary of State gave notice of his intention to exercise his option
of purchase the capital_of the company consisted of £ll,0lO,l00 stock and
14,832 shares of_£20, iii respect of which only £5 per share had been
called up and paid, The provisions of the Companies Clauses Consolida-
tion Act, 184:3, with respect to the making of dividends, were incor-
porated. in the company's special Acts, the profits being divisible in
proportion to the amounts paid up by the shareholders. In March, 1885,
the Secretary of State gave notice of his intention to purchase the com-
pany's undertaking at the price of £l4,009,124 8s. 3d. The question was
whether th_is sum was divisible amongst all the holders of stock and shares
in proportion to the respective amounts of capital paid up by them (in
which case the holder of £20 stock would receive four times as much as
the holder of a £20 share on which only £5 had been paid) or whether (as
the holders of the £20 shares on which only £5 per share had been paid
contended) the holders of stock ought to receive in the first instance £15
for each £20 of stock which they held (so as to place them on an equality
with the holders of_ the shares), and the residue of the purchase-money
should then be divided rateably amongst all the holders of stock and
shares on the footing that five shares of £20 were equivalent to £100
stock. I _There was no provision by statute or by agreement as to the mode
of division. Kekewich, J., held that the purchase-money ought to be
divided among the holders of stock and shares in proportion to the
amounts contributed by them respectively to the capital of the company-
in other words, that each holder of £20 stock ought to receive four times
as much as the holder of a £20 share.

Tris Cov:ii._r or APPEAL (Cor-rozv, Bowsiv, and FRY, L.JJ.) nfilrmed the decision, being of opinion that the equitable mode of division was in proportion to the amounts of the contributions by means of which the Property which was purchased had been creatcd.—CoimssL, Riyby, Q O. ; R. S. Wriylit and C. A. Reeve; Sir H. Davey, Q.C., Barber, Q.C., and Iflyle Joyce. SOLicrroRs, Tri'na'ers,' Hollams, Son, 4, Coward.

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This was an application for leave to set down an appeal from an order made by Cllltty, J ., in chambers, without any certificate from him that he lmd heard the case fully argued, and did not desire to hear any further liflzllment. He had declined to give the certificate when application was made to him for it, and had said that the applicant must move in court to d“°h‘"'_8c the order. It was urged that the question (which was whether the action should be tried with a jury) had been, in fact, fully argued iii °hmb9T_B. and that the result would be only to inflict unnecessary costs on llleflpplicant if he was compelled to move in court to discharge the order. Rlilllnce was placed on Re Eliom (6 Ch. D. 346) as shewing that, under £11911 Circumstances, the Court of Appeal would allow the appeal to be

card without the certificate.

ThTHB Counr or APPEAL (Corrox and Far, L.J J .) refused the application. BY laid that in Re Elaom it was laid down that the Court of Appeal Wald dispense with the certificate of the j udge if they were satisfied by other means that the case had been fully argued before him. In the gfelent case they were not satisfied that Chitty, J ., did not desire to hear “the! '“'Bument.—C0uxsiaL, Oswald. Souciron, T. Lamartine Yates.

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the de ndant being then in a position to execute a disentailing deed, and thus convert the base fee into an estate in fee simple, the plaintifl’ claimed specific performance of the covenant for further assurance by the execution of a disentailing deed. On behalf of the defendant it was urged that the covenant for further assurance did not extend to 0. future interest devolving on the vendor, and that the parties knew the state of the title at the time when the deed was executed. Kekewich, J., held (34 Ch. D.-115, ante, p. 202) that the defendant was bound to execute a disentailing deed. TH3 COURT or APPEAL (Corrox, Boiveiv, and Far, L.JJ.) agreed in the view of Kekewich, J., subject to a question which they raiscd—viz., whether section 47 of the Fines and Recoveries Act (3 & 4 Will. 4, c. 74) did not prevent the court from entertaining such an action. That secriou, it will be remembered, provides that “in cases of dispositions of lands under this Act by tenants in tail thereof . . . the jurisdiction of courts of equity shall be altogether excluded, either on the behalf of a person claiming for a valuable or meritorious consideration, or not, in regard to the specific performance of contracts and the supplying of defects in the execution of the powers of disposition given by this Act to tenants in tail, and the supplying under circumstances of the want of execution of such powers of disposition . . . and in regard to the giving effect in any other manner to any act or deed by a tenant in tail . . . which in a court of law would not be an effectual disposition under this Act.” This point was reserved for further argument.——CouNsiir., Warinington, Q.C., and Russell Itobz-rt.r; Barber, Q.C., and 71 Rrlwlinson. SOLIcirons, R. Cliapmzm; Lovell, Son, §- I’i'{/ield.

MAGNUS v. THE QUEENSLAND NATIONAL BANK—Kay, J., 25th
June.

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The object of this action was to make the defendant bank liable for the value of £7,828 railway debenture stock, which had been misappropriated by Bartle Goldsmid, a stockbroker, under these circumstances. The stock was vested in Goldsmid and two other persons as trustees upon certain trusts, Goldsmid being the acting trustee. He was in the habit of suggesting and carrying out changes of investments. and early in 1882 he proposed to his co-trustees to sell this stock and re-invest the proceeds, with the result that they executed a deed of transfer of the stock to two transferees for a consideration of 5s. This transfer, together with the certificate of the stock, was deposited by Goldsmid with the bank with whom he dealt, as part security for a large advance to him for his private purposes, the transferees’ names being trustees for the bank, who understood that G0ldsmid’s authority was, not to sell to the bank, but onlv to mortgage. When the advance was repaid the bank did not re-transfer to the three transferors, but by the direction of Goldsmid, and without communicating with the other two, caused the stock to be transferred to a purchaser from Goldsmid, and handed him the certificate. Goldslnid thus received the purcliase-money for the stock, which he invested in the purchase in his own name of the other stock which he had suggested to his co-trustees. This stock he afterwards sold and appropriated to his own use, and then became bankrupt and absconded. His co-trustees thereupon brought this action against the bank to make them account for the value of the stock.

KAY, J ., held that the bank was liable for the value of the stock at the time when they transferred it to the purchaser from Goldsmid. Tne transfer by the trustees conferred, at most, an authority to sell to the bank. But the bank did not buy, and the sale to the actual purchaser was entirely without the authority of the co-trustees of Goldsmid. The bank was bound to have re-transferred the stock to the three transferors. It was argued that the bank's breach of duty was not the proximate cause of the loss, for that G-oldsmid had re-invested the proceeds of sale, and, although in his own name only, that the trustees had intended a sale of the stock, and might have claimed the re-investments. But that could only have been as against Goldsmid, The proceeds of sale had never been properly invested or secured to the trust, and this was owing to the breach of duty by the bank. N0 doubt the co-trustees ought to have been vigilant to see that the re-investment was properly made, but_ no negligence on their part had in any way caused th_e loss. The immediate cause was the didionesty of Goldsmid in selling the stock without authority, and in this act the bank concurred. They were, therefore, liable for the value of the stock.—CoL'xsaL, Sir H. Davey, Q.C. ; In/:e, Q,.C., and G. Henderson ,' Riyby, Q C., and Fern:-ll: 1i’ens/mic, _Q.C., and In_qln Joyce. Souciroas, Fulvoye, Field, §- Baker; Slreltan, Hilliard, Dale, Q .M:wmrm ,- Norton, Rose, Norlon, §- Ca.

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In this case the plaintiff had instituted an action against the defendant for infringement of a trade-mark registered by the plaintiff under the

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"Petty, 11-s father being tenant for life and protector of the settlement. ,

Trade-Marks Act of 1875, claiming an injunction, account, and damages.

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The plaintiff having died the action was continued by his executors, but the defendant raised the point of law that the action was extinguished by the plaintiffs death, being an action grounded on a tort, and, therefore, within the maxim actio permnalia, &c. He also contended that the executors could not sue for an injunction until they had caused themselves to be registered as owners of the trade-mark. The executors stated that it had been held, even in the time of George II., that the right to a trade. mark passed to personal representatives: Giblett v. Read (9 Mod. 459); Sebastian on Trade-Marks, 2nd ed., p. 96.

Can-rv, J ., said that he was of opinion that the cause of action continued to the executors, because the estate which they had received from their testat-or was alleged to have sufiered by the wrongful acts of the defendant. The executors, therefore, were entitled to enforce compensation. That being so, it was not necessary to decide the question as to the executors’ right to sue for an injunction.-Coc.\'ssi., Romer, Q.O., and Willis Band ; Aston, Q.O., and Bardswell. Soucirons, Paddison, Son, Q Ca. ; Home 5Birketl, for Thus. Charlton, Manchester.

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In this case the plaintiff sought an intsrim injunction restraining the defendants from erecting a wooden stand in such a way as to obstruct the plaintiffs view oi the Jubilee procession. The plaintiff submitted that under rule 5 of the Metropolis Building Act, 1855, s. 26, the defendants had no right t.o construct any projection so as to intercept the line of view of owners or occupiers of adjacent houses. The defendants had obtained from the Metropolitan Board of Works a licence under the Metropolis Management Act, 1882, s. 13, authorizing the erection.

Curr-rr, J., said that it was well established that an injunction would not go to an amenity of view. The rule relied upon by the plaintifi was made by the board for its own guidance and was not an enactment binding on all persons. Moreover, by section 13 of the Act of 1882 the board were intrusted with the power of granting licences, presumably because it was contemplated that in doing so the board would consider the interests of all parties. He declined the injunction, but costs would be costs in the action.—CovxsnL, Dirrell ; Byma.

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The question in this case was whether the mortgagees of a policy of insurance on the life of the mortgagor were entitled. after his death to apply the surplus proceeds of the policy, beyond the amount due upon tile]! mortgage, to the payment of an unsecured debt due to them from his estate. In 1847 the mortgagor, in consideration of a sum of £28,000 lent to him by an insurance company, granted to trustees for the company an annuity of £1,790 for the term of ninety-nine years, if he should so long live, the annuity being made payable quarterly. The mortgagor covenanted to pay the annuity, and charged it upon his life estate in certain real estate. The annuity was futher collaterally secured bys. warrant of attorney to enter up judgment against the mortgagor for ._€56,000, under which judgment was entered up, but, inasmuch as the judgment was never registered in compliance with 23 & 24 Vict. c. 38, it became ineffectual. In 1881 the mortgagor borrowed another sum of £4,000 from the same insurance company, and to secure it he mortgaged to their trustees a. policy of insurance for £5,000 on his own life which he had effected with another insurance company. The mortgage deed contained an absolute assignment of the policy to the trustees, subject to a proviso for redemption on payment of £4,000 and interest, in which case the mortgagees were to re-assign the policy to the mortgagor, his executors administrators, or assigns. There was a power for the mortgagees to sell the policy, and, after retaining out of the proceeds of sale the amount which should be due to them on the security they were to pay the surplus (if any) to the mortgagor, his executors iidministrators or assigns. There was no express provision for the case of the death of the'mortgagor and the receipt of the policy-moneys by the mortgagees. The mortgagoi died in September, 1885, insolvent, and this action was brought for the administration of his real and personal estate. The power of sale had not been exercised, and the mortgage debt of £4,000 was still due. Two quarterly instalments of the annuity of £1,700, and an apportioned part of a third instalment, were also due and the mortgagofs life estate having come to an end, those instalmeiits constituted an unsecured debt. The trustees of the insurance company received the £5,000 payable under the policy, and, after satisfying what was due to their company under the '11°1'l£B8@, 8 surplus of £812 remained in their hands and they claimed to Ifilfliu this surplus in part satisfaction of the unpaid airears of the annuit Yhiih ““°"“t"d_ 15° £1,099. By arrangement the question whether tlié

rus ees were entitled to do this was raised between them and the mort

8351!“? §!9;\1t<§ means of a summons in the administration action.

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... ..“:12.:*:::::.? .2".:r:“.;'**“ "as H "cum, ‘or B debt the security for which hedsurp 11310 s_ rnonfys as odmitled that there could be no consolidation bf iiiiistgageseytiiadre bid: o . , I i €,‘hl’I;'_t1i’,§)f“:°ai;: 2:1?“ zplfogortfglzgé‘-h ll; existence. E: Parts William (16 W,-“red debt could not be tugked to 5» and it also shewed that the un. trustees had been based on three ie secured debt. The claim of the were in possession of the mon grounds(1) it was “'ge.d that “J97 They‘ no doubt had the mane 65% and that malior rstromiitzo Posstdezitis. executor, and Riv“ B fan“ 2, ut they clearly held it to the use of the 7 "Y that a man who had money in his

hands to the use of another who owed him a debt, was in any better position because he had the money in his hands, unless he had a legal right of retainer. (2) The claim was based on “ natural justice.” That might be a good argument to address to the Legislature, but a judge could only deal with the law of the land. But his lordship agreed with what Jessel, l\I.R., said in Talbot v. Frere (9 Ch. 1). at p. 571) : “ I should have thought equity and natural justice were exactly the other way. There can be no natural justice in allowing one creditor of a teststor, simply because he happens to have a mortgage, to retain the balance in favour of himself to the prejudice of the other creditors, thus virtually giving himself another mortgage. It a man has a mortgage on a dead man's property, and he realizes the property and pays off the mortgage debt and has a surplus, surely, according to natural justice, the surplus ought to belong to the dead man's estate, to be divided among the creditors. He is only a bare trustee of the surplus." (3) The third ground was a legal ono—viz., that the trustees had a right of set-ofi. The right of set-oif must depend either upon agreement or upon statute. At common law there was no right of set-ofi as between two persons each of whom had a right of action against the other. A tender of the balance by the person who owed the larger sum would not be a legal tender. There was in the present case no agreement for a set-oif, and it was clear from decided cases that there could be no statutory right of set- off of a debt due by a testator in his lifetime, for which the executor was never personally liable, against a debt in respect of which the testator had no right of action in his lifetime. If the power of sale had been exercised by the mortgagees during the testatofslifetime, and they had received more than suflicient tosatisfy their mortgage debt, and the testator had claimed the surplus, unquestionably there might have been a right of set-off against arrears of the annuity due from him. Rees v. Watts (11 Ex. 410) ; Laznbarzlv v. Older (l7 Beav. 542) ; Nrwell v. The National Provimzial Bank ofEnglrmd (1 C. P. D.-196); and Hallatt v. Hallett (13 Ch. D. 232) were clear authorities that the defendant to an action by an executor (suing as such) for a debt becoming due after the testatoi-'s death could not set ofi a debt due to him from the teststor in his lifetime. But the trustees relied on three cases. The first _wss Spulding v. Tliompson (26 Beav. 637), but the decision of Lord Romilly, l\I.R., in that case was based on grounds which entirely distinguished it from the present case. The next case was Rs Himl/"oot’.: Estate (L. B. 13 Eq. 327), the facts of which were very similar to those of the present case. Lord Romilly, M.R., there said that he thought Spalding v. Thompson was precisely in point, and that it had not been reversed or doubted; that he thought his decision there right, and that he must be bound by it. North, J., said that he had already pointed out that Spoldiny v. Thompson W84 based on an entirely difierent state of facts. But the ground ofL01'\i Romilly's decision in Rs Hasel/‘oot’s Estate was that he was_bouud bl Spaldiny v. Uiompson. He went on to give reasons for his decision, _buf1$ was clear that the report could not be relied on, for some passages 1u_ the judgment were quite iinintelligble. But Lord Romilly did not treat it as a question of set-off. The third case, which was the only one, so far B! his lordship was aware, iu which Re Hasulfoot's Estate had been followed, was Er parts Xatiorial Brink (14 Eq. 507). That case was not really any authority, for the point was not argued, and though Malins, l.C-, said (p. 516): “ It seems to me, on this general principle, that If Acreates a mortgage in favour of B., and, the mortgage being realizeii, hi has the balance in his hands, natural justice would seem to pomt out ti? he would be entitled to retain the surplus and apply it in payment 0_ I1: general debt due to him," that was a mere abiter dictum upon a point whip had not been argued, and which was not necessary to the decision of :1 case, and too much weight must not be attributed toit. Thesethrse cases I1 not furnish authority for the present case. But the decision of JEWM.n., in T111001 v. FI't1'8 (9 cu. D. sea) was precisely in P°"‘t- 1"“: immaterial in the present case whether the insurance compsuyf W@1d°r were not trustees ior tho mortgagor, for they had clearly no claim uu 2 their security which had been satisfied. They held the surplus nionstyflfl the use of the moi-t.gagor’s executor, and, there being no right of so V-1; 11 the executor's claim to be paid these moneys was well founded.-(7\"I?y§ 0;’ Cvzcns-Hardy, Q.O., and Warringlon; Napier Hiyyillii Q5-1 and ' ' Druce. Soucirons, Crosmum, Urosaman, Q 1’ric/lard ; Burrow! C B'""'“'

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claim was resisted, on the ground that the property 111

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