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in the instances we have examined, the decisions dealing with the technical convenience of the existing law and the inconvenience of the case referred to are correctly classified, and the extracts from that proposed in its stead. To such of those few as may have read judgments judiciously selected. The editors bave been properly and considered the operation of the clause abolishing estates tail it cautious in not affirming that a case has been overruled unless must be obvious that for the avowed purposes of the Bill that judges have so stated, and it is obviously not within the scope of abolition is unnecessary, while it will make settlements, which the their work to balance conflicting cases. There must necessarily be law will still permit, much more intricate in form, and, consequently, omissions in a work covering so extensive a field, and, as instances, both more costly in creation and more uncertain in effect than the we may note that Sclater v. Cottam (3 Jur. N. S. 630), in which the documents hitherto in use.
A CONVEYANCER. doctrine was laid down that a solicitor-mortgagee can only charge Lincoln's-inn, July 12. out-of-pocket costs, does not appear in the digest. It was dealt with in Re Donaldson (27 Ch. D. 544). We also miss Thresher v. East London Waterworks Co. (2 B. & C. 608), relating to the right of removal of fixtures, which was relied on in Ex parte Lloyd (1 Mont. & Ayr, at p. 511), but has since been qualified by dicta in Weeton v.
CASES OF THE WEEK. Woodcock (7 M. & W., at p. 19) and Mackintosh v. Trotter (3 M. & W., ROE v. MUTUAL FUND LOAN ASSOCIATION (LIM.)—C. A. N. 1, at p. 186); which dicta were explained in Ex parte Brook (10 Ch. D.,
11th July. p. 109). and the question was ultimately left open in Ex parte Lady Willoughby D'Eresby (29 W. R. 52). We think, on the whole, how | Trespass-Seizure UNDER Void BILL OF Sale-WAIVER OF TORTever, that the work has been carefully executed, and is likely to be of
ESTOPPEL. much service to the practitioner.
This was an appeal from the decision of Pollock, B. The action was brought for trespass in seizing and selling certain furniture belonging to
the plaintiff. On June 19, 1885, the plaintiff gave the defendant a bill JUSTICES' LAW.
of sale on the furniture in question as a security for a loan of £80, with THE JUSTICES' MANUAL; OR, GUIDE TO THE ORDINARY DUTIES OF
interest at the rate of twenty-seven per cent per annum, and agreed to A JUSTICE OF THE PEACE, WITH TABLE OF CASES, APPENDIX OF pay principal and interest by eight equal payments of £13 each on FORMS, AND TABLE OF PUNISHMENTS. By the late SAMUEL STONE. September 19 next, and the nineteenth day in every succeeding third TWENTY-FOURTH EDITION. Edited by GEORGE B. KENNETT, to pay the grantees immediately the whole amount remaining unpaid.
month, and, in case of default in the payment of any of the instalments, Solicitor, Clerk to the Justices of Norwich. Shaw & Sons.
Default was made in the payment of the first instalment, and, on Of the greater part of this book it is only necessary to say that the October 26, 1885, the plaintiff filed a petition in bankruptcy, and a decisions since the last edition have been carefully noted ; the Sum- receiver was appointed. On October 30 the plaintiff filed a statement of mary Jurisdiction, Employers and Workmen, and Crown Office affairs, in which the defendants were inserted as secured creditors for Rules, so far as they affect the procedure of justices of the peace, and on November 4 the defendants seized the furniture under the bill of
On November 3 the plaintiff's landlord put in a distress for rent, incorporated, and i he index amplified. But a word of special praise sale, and sold it by auction. should be bestowed on the care with which the Married Women landlord, the sum of £32 8s. 3d. was realized, thus leaving a balance due
After payment of costs and rent to the (Maintenance in Case of Desertion) Act, 1886, has been annotated to the defendants of £71 11s. 9d. On December 18 a composition of Not only are the cases collected from all the reports, but opinions 2s. 60. in the pound was sanctioned by the court, and the receiving order and practical suggestions are given upon the doubtful points as yet was rescinded. On November 3, 1886, the plaintiff's solicitors wrote to uncovered by decision, on one point fortified by the advising of Mr. the defendants inclosing a cheque for £8 11s. 8d., as the dividend on the Poland and another counsel. The Criminal Law Amendment Act, balance due to them, and a form of receipt which they requested the 1885, is not less carefully annotated; we observe that the editor has defendauts to sign, discharging the plaintiff from his debt to them. They not even overlooked a ruling by Mr. Baron Huddleston at the stated by the letter that the payment was without prejudice to any claim Bristol Assizes in November last (noted ante, p. 26). We may add which the plaintiff might make in regard to the seizure and sale of the that in all the instances in which we have checked the notes of of sale to be bad under the authority of Davis v. Burton (32 W. R. 423) and recent decisions we have found the effect of the cases accurately and Myers v. Elliot (34 W. R. 338), and he further held that the grantor was tersely treated. We think the present a well prepared edition of a standard work,
not estopped from disputing the validity of the sale, and gave judgment for the plaintiff. The defendants appealed on the ground that the plaintiff had so altered the position of the parties by his conduct that he could not now assert that the bill of sale was bad.
THE COURT (Lord Esher, M.R., LINDLEY and Lopes, L.JJ.) allowed CORRESPONDENCE.
the appeal, and entered judgment for the defendants. Lord ESHER,
M.R., said that he thought the conduct of the plaintiff amounted to an THE LAND TRANSFER BILL,
estoppel, but it was immaterial to decide that since the case came clearly [To the Editor of the Solicitors' Journal.
within the principle laid down in Smith v. Baker (8 0. P. 350), of
which he entirely approved. A man could not say at one time that a Sir,- I am glad to see that you deprecate the passage by them- transaction was valid, and thereby obtain some advantage to which he selves, without further consideration, of the clauses in the Land could only be entitled on the footing that it was valid, and at another Transfer Bill relating to the devolution at death of real property.
time say that it was void for the purpose of obtaining some further Upon one of these proposals—the abolition of estates tail-1 have advantage. Here, the plaintiff, by treating the bill of sale throughout as seen scarcely any comment. Its title doubtless commends it to a mengerous class, and may give a certain popularity to the whole position, and the discharge of his debt, and he could not now be allowed but the number of those who can accurately imagine how
to obtain the further advantage of damages from the defendants by clauses which are intended to make that change are not unlikely to acquiescence in the action of the defendants on the bill of sale. Lindley,
was quite ineffectual to negative the plaintiff's former conduct, and his escape criticism.
It does not appear that the Lord Chancellor wishes to hinder the the plaintiff's conduct that he was estopped from denying that the bill landed estate to the eldest son of a family. if that object were aimed turn round and declare the bill of sale to be invalid under which he had and the expediency of such a change in the law ist explicitlynaffirmed Counsel, Murphy, Q.o., and "Nasmyth; Vaughan Williams and James as to challenge a discussion of the proposal. If that object be not
Wilson. SOLICITORS, W. J. W. Beard; Olding & Olding. aimed at, the abolition of estates tail appears to be merely and need.
Re ADAM EYTON (LIM.)–C. A. No. 2, 7th July. he pleases. Its abolition is not needed to facilitate transfer. Even better the power of its owner in possession to dispose of the land as COMPANY-WINDING UP_REMOVAL OF OFFICIAL LIQUIDATOR" Due Cause
SHEWN"-COMPANIES Act, 1862, s. 93-APPEAL-Locus STANDI. the slight additional cost involved in the necessity which at present This was an appeal against an order made by North, J., removing the evints of inrolling the deed whereby the entail is barred might, were person who had been appointed official liquidator of the company, and they by the use of the few words required to test the consists in this court on lue menuise shown." "Hin the presentatasomag hade interne tilst the bah, walue of the possibility of creating estates tais consists in this, AM, 1862, provides that any oficial liquidatori may be removed by the
stance been appointed official liquidator, and on the application of W., dermany possible events. If the possibility of creating estates tail be his coloniset, undertaking to pay into the Bank of England” to the credit destroyed, the same end can only be accomplished by lengthy and bis the matter, der to before na specified day, “ the sum of £2,500, and to minum aplicated clauses, difficult to frame and likely to arr and to give paytan y further sum of money to the like" credit as the court may direct
Except, however, to the few and comparatively uninfluential per- mentioned in the schedule hereto, and also undertaking to pay any sums sons who are engaged in conveyancing, it is impossible to explain necessarga to answer any costs properly incurred by B. as provisional
official liquidator and official liquidator of the company," the judge quirements of the Act would be satisfied; if his agreement was not appointed C. official liquidator of the company in the place and stead of under seal his lordship would give no opinion what would be the result. It B. It was argued, on the appeal, that the" due cause shewn" for which Was argued that by decreeing specific performance of the covenant the a liquidator could be removed meant something in the nature of a per court would be supplying a defect in the execution of the power of dissonal disqualification arising from his misconduct or unfitness, reliance position given by the Act.” That was not so; the court would only be being placed on the decision of the Court of Appeal in Re Sir John Moore Gold compelling the defendant to do that which he had agreed to do Having Mining Co. (12 Ch. D. 325). No allegation was made against B., and the regard to the previous state of the law, his lordship was of opinion that this oder amounted to a sale of the liquidation to the highest bidder. On the was the true construction of section 47. And though there was no actual other side it was urged that the liquidator himself had no locus standi to decision on the point (in Lewis v. Duncombe (20 Beav. 398) the point was appeal. During the argument the court communicated with North, J., not argued), there was a consensus of opinion among learned text-writers and ascertained that he made the order because the company was insolvent, (such as Sugden, Hayes, and Dart) in favour of this view. Bowen and and the applicant, who had disputed claims against the company, was Fry, L.JJ., concurred.--Counsel, Warmington, Q.C., and Russell Roberts ; willing to undertake to pay in full all the creditors whose claims were Barber, Q.O., and T. Rawlinson. SOLICITORS, R. Chapman ; Lovell, Son, ģ undisputed, and to deposit the £2,500 as security, if his nominee was Putfield. allowed to conduct the liquidation. THE COURT (Cotton, Bowen, and Fry, L.JJ.) dismissed the appeal,
ALLCARD v. SKINNER-C. A. No. 2, 9th July. though they held that the appellant had a locus standi to appeal. They said SETTING ASIDE VOLUNTARY DEE1—UNDUE INFLUENCE-DELAY. that “due cause" was not confined to objections personal to the
This was an appeal from a decision of Kekewich, J. (35 W. R. 424). liquidator, but extended to any cause which rendered it desirable in the
The action was brought to set aside certain gifts made by the plaintiff to interest of the company and the creditors that the liquidator should be
the defendant while the plaintiff was a member of a sisterhood of which removed and another person substituted. The real interests of the
the defendant was the lady superior. The plaintiff sought to recover two liquidation were to be considered.-COUNSEL, Cozens-Hardy, Q.C., and
sums of stock transferred by her to the defendant in 1874, which still Oswald ; Napier Higgins, Q.O., and Hatfield Green ; C. H. Turner ; A. Dun
remained in the name of the defendant, and also all moneys, other than ham ; Pochin. SOLICITORS, Thos. Hulbert ; Pitman & Sons ; Miller & Miller ; | annual income, which had been from time to time given by the plaintiff to F. Burchail.
the defendant, and which had been expended by the defendant for the
charitable purposes in which the plaintiff and the other members of the BANKES v. SMALL-C. A. No. 2, 8th July.
sisterhood had been engaged. On the appeal the claim of the plaintiff VENDOR AND PURCHASER CONVEYANCE OF BASE FEE BY TENANT IN was confined to the sums of stock still remaining in the name of the deTAIL IN REMAINDER-COVENANT TO Execute DISERTAILING Deed
fendant. In 1868 the defendant was the lady superior of an institution or SPECIFIC PERFORMANCE-3 & 4 WILL. 4, c. 74, s. 47.
sisterhood, which was an association of ladies who devoted themselves to
works of charity, with the assistance and under the spiritual direction of This case (reported ante, p. 591) came on for further argument on the
the Rev. Mr. Nihill. In 1868 the plaintiff, who was then residing with question reserved whether section 47 of the Fines and Recoveries Act her mother, became an associate of the sisterhood, and joined in the prevents the court from enforcing specific performance of a covenant to charitable work in which they were engaged, but did not reside with them. execute a disentailing deed. The action was brought to compel the In January, 1870, she became a postulant, and made a will giving all her specific performance of a covenant by the defendant in a conveyance to property to the sisterhood; in May of that year she became a novice; the plaintiff that the defendant and every person having or claiming any and in August, 1871, she became a professed sister, and, as such, took the interest in the property conveyed through or in trust for him, would exe
The rules had not then been reduced into writing, but the princicute every such disentailing and other assurance, and do every such ples on which the sisterhood was conducted were the same as those afterthing for the further or more perfectly assuring all or any of the said wards expressed in the rules, and the rules expressed in detail the vows premises to the use of the" plaintiff, his heirs or assigns, as sho::ld be of poverty, chastity, and obedience which the plaintiff took when she reasonably required. The defendant, when tenant in tail in remainder, became a professed sister. Though the vow of poverty required that a had executed a deed converting his estate into a base fee, his father, the sister should not hold any property, yet neither the vow nor the rules tenant for life and protector of the settlement of the estate, refusing to required that the property owned by any sister before she became proconsent to barring the entail. Afterwards the defendant conveyed the fessed should be made over to the superior or to the sisterhood. The rules property to the plaintiff, and entered into the above-mentioned covenant. imposed the most absolute submission by the sisters to the superior, and Upon the death of the tenant for life, the purchaser called upon the prevented a sister from obtaining, without leave, the advice or counsel of defendant to execute a disentailing deed converting the base fee into a
any person not connected with the sisterhood. After the plaintiff became fee simple. The defendant refused, contending that his covenant did
a professed sister she from time to time handed over to the defendant the not extend to any future interest devolving upon him, and that the
money to which she was entitled under her father's will, and also the plaintiff knew the state of the title when the covenant was executed.
capital moneys, as she was entitled to receive them, under that will. Kekewich, J., held (34 Ch. D. 415, ante, p. 202), that the defendant was
The capital moneys amounted to about £8,000, and of this she handed bound to execute a disentailing deed. Section 47 of the Fines and over to the defendant sums exceeding £7,000, of which the sums of stock Recoveries Act provides that "in cases of dispositions of lands under amounting to £500 Ordinary Stock of the Midland Railway Co. and $1,171 this Act by tenants in tail thereof
the jurisdiction of courts of Four per Cent. Caledonian Railway Stock were still remaining in the hands equity shall be altogether excluded, either on the behalf of a person of the defendant. The remainder had been expended for the purposes of the claiming for a valuable or meritorious consideration or not, in regard to sisterhood before the action was brought. The stock was transferred to the specific performance of contracts and the supplying of defects in the the plaintiff in 1874. In 1879 the plaintiff revoked her will and left the execution of the powers of disposition given by this Act to tenants in sisterhood, but she made no claim for the return of the property until tail, and the supplying under any circumstances of the want of execu 1885. Kekewich, J., dismissed the action with costs. tion of such powers of disposition
and in regard to the giving The Court of APPEAL (COTTON, Lindley, and Bowen, L.JJ.) affirmed 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
the decision, Cotton, L.J., differing from the majority. Cotton, L.J.,
was of opinion that there was a difference between the claim of Act.' THE COURT (COTTON, BOWEN, and Fry, L.JJ.) held that section 47 did given by her to
the plaintiff to the stock remaining and her claim to the moneys not prevent the court from enforcing specific performance of the covenant.
the defendant and applied by her to the pur; COTTON, L.J., said that before the Act a court of equity would have en
poses of the sisterhood. If the money so expended had been applied forced the specific performance by a tenant in tail of an agreement to sell the fraud or deception on the part of the donee, probably there would have been
by the transferee for her own selfish purposes, or had been obtained by fee by directing him to levy a fine or suffer a recovery-that is, it would no difference. But if the plaintiff had an equity to set aside gifts made enforce the agreement as against the person who had made the bargain. to the defendant, the defendant would have a stronger equity against the But, if he had died without carrying out the agreement, the court would not plaintiff to prevent her from making the defendant personally liable for done. The Attorney-General v. Day (1 Ves. sen. 218) shewed that this was the plaintiff and defendant were at the time of the expenditure associated, and
money spent by her for the charitable purposes to promote which the law before the Act. No doubt a court of equity did, for either valuable or which the plaintiff was at the time willing and anxious to promote. Was meritorious consideration, aid the defective execution of powers, not only the plaintiff entitled to recall the stock still in hand? There was one as against the person who had made the informal appointment, but also decision in point with reference to a case like the present. Did the case Perhaps that jurisdiction was not founded on sound principles, but it was Chancery in setting aside voluntary gifts executed by parties who at the
fall within the principles laid down by the decisions of the Court of settled law. Having regard to this state of the law and the mere construction time were under such influence as, in the opinion of the court, enabled the of section 47, the object of that section was to prevent a court of equity donor to set the gift aside? These decisions might be divided into the from holding that a contract to execute a disentailing deed was as good classes-(1) When the court had been satisfied that the gift was the tion of powers. The initial words of the section="in cases of disposi- the relations between the donor and donee had at or shortly before the tions of land under this Act” shewed that the section was not dealing execution of the gift been such as to raise a presumption that the donne True there was a reference to the exclusion of the doctrine of specific voluntary gift, unless it was proved that in fact the gift was the result of performance, but it was only " in cases of dispositions of lands under the Act.” If Kekewich, J., had decided that the covenant to execute a
a free exercise of the donor's will. The first class of cases might be con; disentailing deed was to be treated as barring the entail he would have to retain any benefit arising from his own fraud or wrongful act. In the
sidered as depending on the principle that no one should be allowed gone counter to the Act, but that was not his decision. His lordship second class of cases the court interfered, not on the ground that the performance of an agreement by the protector of a settlement to consent ground of public policy, and to prevent the relations which existed be: to a disentailing deed. If he agreed to do so by deed, probably the re tween the parties, and the influence arising therefrom, from being abused.
Influence had been denied; there was no suggestion that the defendant right and expedient to save persons from the consequences of their own acted from any selfish motive, and it could not be contended that folly? Or was it that it was right and expedient to save them from being the case came under the first class of decisions. In his lordship's victimized by other people. In his lordship's opinion the doctrine of unopinion the case came within the principle of the second class. At the time due influence was founded upon the second of these two principles. The of the gift the plaintiff was a professed sister, and, as such, undue influence which courts of equity endeavoured to defeat was the unbound absolute submission
the defendant due influence of one person over another, not the influence of enthusiasm superior of the sisterhood.
She had no power to obtain in on the enthusiast who was carried away by it, unless, indeed, such enthudependent advice, she was in such a position that she could not freely siasm was itself the result of external undue influence. But the influence exercise her own will as to the disposal of her property, and she must be of one mind over another was very subtle, and of all influences religious considered as being (to use the words of Knight-Bruce, L.J., in Wright v. influence was the most dangerous and the most powerful, and to counterVanderplank, 8 D. M. & G. 137) “not in the largest and amplest sense of act it courts of equity had gone very far. They had not shrunk from the term, not in mind as well as person, an entirely free agent.” When setting aside gifts made to persons in a position to exert undue influence she exercised her legal right to leave the sisterhood she was entitled to over the donors, although there had been no proof of the actual exercise recover so much of the fund transferred by her as remained in the hands of such influence; and the courts had done this on the avowed ground of of the defendant, on the ground that it was property the beneficial the necessity of going this length in order to protect persons from the interest in which she had never effectually parted with. It was urged that exercise of such influence under circumstances which rendered proof of it it would be contrary to public policy to grant the plaintiff relief, on the impossible. The courts had required proof of its non-exercise, and, failing ground that it would be a hindrance to the charitable work in which the that proof, had set aside gifts otherwise unimpeachable. In this particuplaintiff and the sisterhood were engaged, and that it would be better to larcase his lordship could not find any proof that any gift made by the plaintiff shew those who were desirous of leaving the work that they could not take was the result of any actual exercise of power or influence on the part of the with them any part of their property. In his lordship's opinion it would lady superior or of Mr. Nihill, apart from the influence necessarily be wrong to put such pressure on those who might wish to leave. Such incidental to their position in the sisterhood. Everything that the plaintiff work, to be effectual, must be done with a willing mind, and it would did was referable to her own willing submission to the vows she took, be productive of evil to attempt to retain in such a society as the and to the rules which she approved, and to he own enthusiastic devotion sisterhood, by the pressure of loss of property, those whose hearts and to the life and work of the sisterhood. There was, in fact, no unfair or will were no longer in the work, and who desired to exercise their legal undue influence brought to bear upon the plaintiff other than such as right of withdrawing. Kekewich, J., decided against the plaintiff on inevitably resulted from the training she had received, the promise she this ground, that she had competent advice, that of her brother, before had made, the vows she had taken, and the rules to which she had subshe joined the sisterhood, and that she then formed the resolution (as Mr. mitted herself. But her gifts were in fact made under a pressure Nihill stated in his evidence) to give everything to the sisterhood, and which, while it lasted, the plaintiff could not resist, and were not past that this prevented the subsequent transfer being set aside. In his lord recall when that pressure was removed. When the plaintiff emancipated ship’s opinion, even if there were evidence that she had, before she joined herself from the spell by which she was bound, she was entitled to in. the sisterhood, advice on the question of how she should deal with her pro- voke the aid of the court in order to obtain the restoration from the perty, that would not be sufficient. The question was whether, at the defendant of so much of the plaintiff's property as had not been spent time when she executed the transfer, sbe was under such influences as to in accordance with the wishes of the plaintiff, but remained in the prevent the gift being considered as that of one free to determine what hands of the defendant. The plaintiff now demanded no more. As to should be done with her property. No reliance could be placed on the the second point, whether it was too late for the plaintiff to invoke the promise made to Mr. Nihill. This could not be enforced, and did not in assistance of the court, more than six years had elapsed between the any way bind her in law, or pass the property; and the title of the time when the plaintiff left the sisterhood and the commencement of defendant depended solely on the transfer made in 1874. When the the action. It was not necessary to decide whether this delay alone plaintiff left the sisterhood in 1879 she was entitled to set aside the would be a sufficient defence to the action. There was far more transfer, and to have re-transferred to her the fund still held by the than inactivity and delay on the part of the plaintiff. There was defendant. Had she lost this right by delay? The case was not like that conduct amounting to confirmation of her gift.
Gifts liable to be of a contract voidable for fraud. There the party defrauded rnust elect, set aside by the court on the ground of undue influence had always and within a reasonable time, for until he does so he retained the right been treated as voidable, and not void. A gift made in terms or the benefits, however inadequate, secured to him by the contract. In absolute and unconditional naturally led the donee to regard it as the case of a voluntary gift like the present, the person seeking to set his own; and the longer he was left under this impression the more aside the transfer never received any benefit whatever from the transac difficult it was justly to deprive him of what he had naturally so tion. There was an attempt to shew that in consequence of the plaintiff's regarded. So long as the relation between the donor and the donee delay in bringing the action the defendant and the sisterhood, which she which invalidated the gift lasted, so long was it necessary to hold that represented, had incurred liabilities on the faith of retaining the money lapse of time afforded no sufficient ground for refusing relief to the donor. given by the plaintiff. But there was no evidence of this. Was the But this necessity ceased when the relation itself came to an end ; and if delay (and in this case it was very great) of itself sufficient to deprive the the donor desired to have his gift declared invalid and set aside he ought plaintiff of her right to the fund now in the defendant's hands? The to seek relief within a reasonable time after the removal of the influence defendant had not pleaded the Statute of Limitations, and his lordship under which the gift was made. If he did not the inference was strong, did not suggest that she could successfully have done so. In cases where and, if the lapse of time was long, the inference became inevitable and the fact of influence depended on the result of conflicting evidence, delay conclusive, that the donor was content not to call the gift in question, must be important, but it could not be disputed that the plaintiff was in or, in other words, that he elected not to avoid it, or what was the same a state which necessarily subjected her to a powerful influence. The thing in effect, that he ratified and confirmed it. The plaintiff conproof of this did not depend on parol evidence, but on the rules and sidered when she left the sisterhood what course she should take, and she admitted principles of the sisterhood.
She inMere delay in enforcing a right determined to do nothing, but to leave matters as they were. was not in itself a defence. It was very different from raising no sisted on having back her will, but she never asked for her money until objection to an act while it was being done, which might be treated as five years after she left the sisterhood. In this state of things his lord. assent to the act. Moreover, delay in asserting rights could not be in equity ship could only come to the conclusion that she deliberately chose not to a defence, unless the plaintiff were aware of her rights. She deposed that attempt to avoid her gifts but to acquiesce in them, or, if the expression and, on the evidence, his lordship thought that she did not until long after come to no other conclusion. Moreover, by demanding her will and not
It was thought, a defence against any claim on behalf of the plaintiff to the urged that the plaintiff did not know her rights until shortly before she dividends on the stock still in the name of the defendant before the com asked for her money back. But, in the first place, his lordship was not mencement of the action. But he thought it was no defence as regarded satisfied that the plaintiff did not know that it was at least questionable the stock remaining in the hands of the defendant “and the dividends whether the defendant could retain the plaintiff's money if she insisted accrued since the commencement of the action.
on having it back. In the next place, if the plaintiff did not know her plaintiff left the sisterhood in 1879 that stock was property which the rights, her ignorance was simply the result of her own resolution not to plaintiff was entitled to claim, as being held by the dependant in trust for inquire into them. Ignorance which was the result of deliberate choice
was no ground for equitable relief; nor was it an answer to an equitable that the plaintiff recognized the gift as her own spontaneous act, and it defence based on laches and acquiescence. Again, it was urged that the ing her favone which could have been adduced if the plaintiff had brought been done on the faith that the plaintiff would not require her money to there was no authority whatever for saying that the plaintit's gifts were in the money as absolutely given to the sisterhood when the plaintiff ir validate the gifts. The doctrine relied upon by the appemant was that not come to the conclusion that' nothing had been done on the faith of Ves: 273) and other cases of that class.orgehere Loras Endon said.sele! The human nature to support the plaintiff's money was not for years regarded care posed to do, but how the intention was produced whether and that that assumption and make their arrangements accordingly. Mr. Nihill's here and providence was placed around her, as against those who advised evidence satisfied him that they did so, although he did not think he partea bound to exert on her behalf." But in Huguenine prestaseley and all particular sum now sought to be taken from them. It is not, however, donor: Where there was no such duty the language and take aon ceased amounted point of law to acquiescence or taches, or whether it to be applicable. What, then, was the principles of Was it that is an ad amounted to an election not to avoid a voidable transaction, or whether
it amounted to a ratification or a confirmation of her gifts, were questions NORTH, J., granted the application, and ordered that the affidavit of mere words. It would not be fair or right to the defendant to compel should be taken off the file.-VOUNSEL, Cozens-Hardy, Q.C., and Methold ; her now to restore the money sought to be recovered. Such a result Decimus Sturges. SOLICITORS, Bolton & Co.; Harries, Wilkinson, f Raikes. would not be in comformity with sound, legal, or equitable principles. Bowen, L.J., concurred with Lindley, LJ.-COUNSEL, Sir Horace
Re WILLIAMS' TRUSTS-North, J., 9th July. Davey, Q.C., Finlay, Q.C., and F. B. Palmer, Sir E. Clarke, S.G., Warmington, Q.C., and E. Ford. Solicitors, Blount, Lynch, & Petre; PETITION POR APPOINTMENT OF New TRUSTEES - JURISDICTION—No TRUSTEE Freemans f Dicker.
ORIGINALLY APPOINTED -REAL ESTATE — VESTING ORDER-HEIR OF
TESTATOR DEAD WITHOUT Personal REPRESENTATIVE-CONVEYANCING ACT, THE MINERAL WATER BOTTLE EXCHANGE AND TRADE 1881, s. 30. PROTECTION SOCIETIES (LIM.) AND J. COX v. BOOTH & CO. This was a petition for the appointment of new trustees of a will. The - Chitty, J., 8th July.
testator, by his will, appointed a trustee, but the person so appointed INJUNCTION-RESTRAINT OF Trade-TRADE PROTECTION SOCIETY-TRADE died before the testator, and the will did not contain any power to apUnion Act, 1871, ss. 4, 23, and Trade Union AMENDMENT Act, 1876, point new trustees. At the time of the testator's death his sister was his
heiress-at-law. She died in 1882 (after the Conveyancing Act, 1881,
came into operation), and on her death her son, who was her heir, and In this case the question arose as to the enforceability of an agreement who was then an infant, became heir to the testator. Administration to contained in the rules of a trade protection society providing that no her estate was granted, during the minority of her son, to another person. member should employ any traveller, carman, or outdoor employè who The son had attained twenty-one, but no fresh administration had been had left the service of another member without his consent in writing granted, and there was, consequently, no legal personal representative of until after the expiration of two years from his leaving such service. the sister. Her son was served with the petition. An order vesting the The number of members of the society was limited to 500, and the actual real estate in the trustees to be appointed was asked for. Section 30 of number was 179. The members had places of business in various parts of the Conveyancing Act provides that, "when an estate or interest of the United Kingdom, and also, as it appeared in one stated instance, at inheritance in any tenements or hereditaments is vested on any trust in Sydney, in New South Wales. The society moved for an interim injunc any person solelý, the same shall, on his death, notwithstanding any tion to restrain a member from committing a breach of the agreement, testamentary dis position, devolve to, and become vested in, his personal contending that the rule was reasonable and intended to prevent mem representatives or representative from time to time, in like manner as if bers acquiring each other's trade, and the cases of Rousillon V.
the same were a chattel real vesting in them or him." The question was Rousillon (28_W. R. 623, 14 Ch. D. 153) and Rigby v. Connol (28 W. R. whether it was necessary that administration should be taken out to the 650, 14 Ch. D. 482) were relied on. The defendant, however, submitted estate of the sister, or how, in the absence of a representative to her, the that the society was a trade union within the definitions of the Trade vesting order should be expressed. Union Act, 1871, s. 23, and of the Trade Union Amendment Act, 1876, s. NORTH, J., held that administration was not necessary. He was of 16, and therefore that the agreement was not enforceable by reason of opinion that he had jurisdiction to appoint trustees, and he møde an section 4 of the Act of 1871. The defendant also submitted that it was void order vesting the real estate in the new trustees “for all such estate as as being made in restraint of trade, and cited Hilton v. Eckersley (4 W. R. was vested " in the sister at the time of her death.-Counsel, Bardswell ; 326, 6 E. & B. 47).
G. M. Dale; Simmonds. SOLICITORS, Burton, Yeates, f Co.; S. B. Somerville, CHITTY, J., said that for the purposes of a decision on the motion he held that the society was within the mischief of the Trade Union Acts of 1871 and 1876. The agreement was also void as an unreasonable re
Re HOBBS, HOBBS v. WADE-North, J., 11th July. straint on trade. In the first place it was an agreement, not between an STATUTE OF LIMITATIONS-POSSESSION OF ONE TENANT IN COMMON-REemployè and his employer, but between employers as against the CEIPT BY FATHER OF RENTS BELONGING TO INFANT CHILD-3 & 4 WILL. employed. In the next place the number of the society's members and its field of business was practically unlimited. The motion was refused
4, c. 27, s. 12. with costs.-CounsEL, Bradford; Hall. SOLICITORS, Wm. Iebb ; Smythe tations as between tenants in common.
A question arose in this case as to the operation of the Statute of Limi& Brettell.
The testator and his first wife were tenants in common in fee of gavelkind land in undivided moieties.
She died in May, 1870, intestate, leaving two sons, S. and J., who, according WALKER v. THE GENERAL MUTUAL INVESTMENT BUILDING to the custom of gaveskind, were her co-heirs. When she died S. was of age, SOCIETY-North, J., 8th July.
but B. was only fourteen years old. According to the custom of gavelkind BUILDING Society-Dispute with Memrer-ARBITRATION-WITHDRAWING moiety of the rents of his deceased wife's moiety of the land. Upon her
the testator was entitled to receive, so long as he should remain a widower, a MEMBER-BUILDING SOCIETIES Act, 1874 (37 & 38 Vict. c. 42), s. 34.
death he entered into receipt of the whole of the rents of the land, and This action was brought by a member of a building society, who had given continued in such possession for more than twelve years, without notice to withdraw, and whose notice had expired, against the society, claim- accounting to his sons for their shares of the rents or giving any acknowing to restrain the society from acting upon certain resolutions which the ledgment in writing of their title. In February, 1884, the testator plaintiff alleged to be ultrà vires. The resolutions had been passed before married a second wife, and his estate by the curtesy came to an end. J., the plaintiff gave his notice of withdrawal. One of the society's rules pro the younger son, attained twenty-one in 1877, and died in May, 1884. vided that “the board shall have power to determine all matters of dis On his death his interest in the property descended to his brother S., as pute arising between the society and any member, or person claiming on
heir of the mother. The testator died in November, 1884.
There was account of any member; and if the party shall be dissatisfied with their evidence that in 1884 the testator had accounted to his son S. for his decision, or shall refuse to abide thereby, the matter shall be referred to share of a quarter's rents, and made a payment to him accordingly. It three of the arbitrators of the society.' This was a motion by the plain - was admitted that the title of S. to that moiety of his mother's moiety, the tiff for the appointment of a receiver. On behalf of the defendants it income of which the testator was entitled to receive until his second was objected that the dispute ought to be referred to arbitration, as pro- marriage, could not be disputed. The question was whether the title of S vided by the rule. On behalf of the plaintiff it was urged that the rule to the other moiety of his mother's moiety was barred by the Statute of did not apply, because he had, by his notice of withdrawal, ceased to be a Limitations. It was contended on behalf of S., on the authority of member of the society. By consent of the parties the matter was treated Thomas v. Thomas (2 K. & J. 79) and Wall v. Stanwick (34 Ch. D. 763), as if an application had been made by the defendants to stay the proceed that the testator must be taken to have entered into receipt of the ings in the action.
share of the rents which belonged to his infant son J., as his agent or NORTH, J., held that the rule applied, and that the dispute ought to be bailiff ; that his receipt in that character did not cease when J. attained determined by arbitration. He made an order staying the proceedings. twenty-one ; and that the Statute of Limitations did not, therefore, apply Counsel, Napier Higgins, Q.C., and 4. N. Cumming ; Cozens- Hardy, C., to J.'s one-eighth of the property. And it was urged that, as the testator and Micklem. SOLICITORS, Evans & Batchelor ; Flint & Gardiner.
had been in receipt of a part of the rents as agent for one of his sons, he
must be taken to have been in receipt of the remainder in the same charBOLTON v. THE NATAL LAND AND COLONIZATION 00.
acter for the other son. North, J., 8th July.
NORTH, J., held that the title of S. to his original one-eighth was
barred by the statute, but that his title to the one-eighth which descended PRACTICE-DISCOVERY-AFFIDAVIT OF DOCUMENTS-ITEMS NOT SUFFICIENTLY
to him on the death of his brother J. was not barred. On the authority DISTINGUISHED.
of the above-mentioned cases his lordship held that the testator must be This action was brought by a shareholder in the defendant company to his bailiff, and to have continued to receive them in that character until
assumed to have entered into the receipt of J.'s one-eighth of the rents as restrain the company from paying dividends, which the plaintiffalleged something was done to change the character in which he received them. they were about to pay out of capital. The defendants had been required As to the one-eighth which originally belonged to S., he being of hinge to make an affidavit of documents, and an affidavit had been made by when the testator commenced to receive the rents, there was nothing their secretary, the 1st schedule to which contained 646 items. these items consisted of bundles of documents and books (such as letter
Many of in the relation of the parties to lead to the presumption that there was books), each of which comprised a large number of distinct documents.
auy agency or trusteeship, or that the father was receiving the rents as
bailiff for s. At the time when the payment of rent was made by the of copies of letters. The plaintiff applied by summons to have the affidavit defeat the operation of the statute, which had already put an end to the
testator to S. the statutory period had run, and no such payment could court, because it did not sufficiently distinguish which of the items in the before the expiration of the statutorya period been in possession as baisiai schedule, or what parts of the items, related to the matters in question for S.---COUNSEL, Mulligan; C. T. Mitchell ; Freeman. in the action.
Son; Bolton & Mote.
SOLICITORS, Saw &
The PRESIDENT said that Mr. Pennington, who had the charge of the BANKRUPTCY CASES.
finances of the society, would answer the question. Ex parte PATERSON, Re RATHBONE-Cave, J., 7th July. Mr. E. KIMBER (London) would like, before Mr. Pennington rose, to BANKRUPTCY-DISCLAIMER OF LEASE-PARTIES OUT OF JURISDICTION
draw the attention of the meeting to some comments of the council on Notice-BANKRUPTCY Act, 1883, s. 55, SUB-SECTION (3)–PRACTICE.
the accounts, which seemed to him to be somewhat extraordinary, and Section 55, sub-section (3), of the Bankruptcy Act, 1883, provides that ings. The members would recollect that there had been considerable dis
evidently made as the result of remarks made at previous general meet. a trustee shall not be entitled to disclaim a lease without the lenve of cussion as to whether the income received from articled clerks was fairly the court, except in any cases which may be prescribed by general rules, devoted to the objects for which it was obtained. The council stated in and the court may, before or on granting such leave, require such notices
the report as follows:-“ The item of £10,411 6s. 2d. represente income to be given to persons interested, and impose such terms as a condition of received by the society from articled clerks and from prize funds; and granting leave
as the court thinks just.”. In the present case the trustee in the bankruptcy was desirous of dieclaiming certain leasehold preparation and issue of registrar's certificates, and entering commissions
the item of £3,591 12s. represents income derived from fees paid for the property situate in Ireland of which the bankrupt was assignee. The to administer oaths.” The report then went on to say :-"The council landlord and the original lessee of this property lived in Ireland, and a question arose as to the validity of a notice to these parties in Ireland of of disbursements, amounting to £2,455 16s., are chargeable to the society's
are, however, of opinion that the first three items in the second column the motion to disclaim. The case was therefore referred to the judge for income of £8,633 3s. 11d., while the next two items in the second column, decision as to the proper course to pursue. CAVE, J., directed that the notices should be served on the parties in Fund, that the item of £1,295 19s. 7d. should be charged against the
amounting to £4,924 15s. 7d., are chargeable against the Articled Clerks' Ireland in the ordinary way. His lordship said that there was a clear registration income, and that the remaining items are properly apportiondistinction between the present case and a case formerly decided by him able and payable out of the three funds." Then they went on to say: (unreported) in which he had declined to allow a notice to be served out --“The item of £988 9s. 6d. for interest on the balance of loans must be of the jurisdiction. In that case the notice was one leading to proceedings considered as forming part only of a sum chargeable against the three against the person whom it was desired to serve, affecting his rights and funds in the nature of rent, equivalent to interest on the sum of making him liable to the jurisdiction of the court. There was nothing to £115,509 18s. 4d. expevded in the purchase of site and erection of buildprevent the trustee from issuing a writ and obtaining leave to serve the ings. In fact, the whole of the £10,411 68. 2d. is exhausted by payments writ abroad under the Judicature Acts. In the present case there was towards which that fund is applicable.” This seemed to him a non no action whatever against the persons to whom notice was to be given, sequitur. It did not appear to him clear as to how that £10,411 was and no writ could be issued against them. The court was asked to give exhausted. All that appeared to have been taken out of it was a sum of the trustee leave to disclaim a particular lease and he was required to give £4,924, which the council said was chargeable against the Articled Clerks' notice to certain persons in order that the court might have all the cir- Fund.' He would like to know about the balance of £6,000. The council cumstances before it. But no remedy was ever given personally against should make this clear to the profession and the public, not only in the persons on whom the notice was served. The case was clearly not their report, but on the face of their account. within the previous decision, and nctice of this application might be and ought to be served on the parties in Ireland.-Counsel, Brooke Little. Soli- had, in effect, put the same question as was put by Mr. Phillimore he
Mr. PENNINGTON said he would answer Mr. Kimber first. Mr. Kimber CITORS, Peacock f Goddard.
(Mr. Pennington) thought two years ago, which had been afterwards submitted to the judges, and upon which they had expressed their opinion that the accounts were proper accounts, and that the disposition of the money, as appearing from the accounts, was a right and proper dis
position. The report stated that “the remaining items are properly LAW SOCIETIES.
apportionable and payable out of the three funds." The council INCORPORATED LAW SOCIETY.
charged the articled clerks with what they considered to be a fair
proportion of the expenses of the maintenance and repairs of the ANNUAL GENERAL MEETING.
buildings, and, in fact, the general expenses. It was perfectly right The annual general meeting of the Incorporated Law Society was held that, as the articled clerks paid no rent for the accommodation they had, on Friday, the 8th inst., at the Society's Hall, Chancery-lane, the Presi- maintaining the establishment. The matter had been carefully gone into, dent, Sir H. Watson PARKER, taking the chair.
and an account had been prepared, which had been shewn to the judges, ELECTION OF COUNCIL.
proving that, in fact, every shilling of the Articled Clerks' Fund had been The following members of the council, who had, under the bye-laws, exhausted, and that the council had attributed to them a fair and proper retired from office, were declared duly elected, there being no other proportion in the nature of rent, and a fair and proper proportion of all candidates :--Mr. Richard Pennington, Mr. Barnard Platts Broomhead, the other expenses which were incurred by the society. He thought that Permas John Moxon Clabon, Mr. Frederick Halsey Janson, Mr. Henry Leigh what he had said would probably be a sufficient answer.
Mr. PHILLIMORE said that in one place the council said that he proMr. Benjamin Greene Lake, Mr. William Williams, Mr. Lewis Fry, M.P. portions must be very much a matter of estimate.
Mr. PENNINGTON : No doubt. PRESIDENT AND VICE-PRESIDENT-AUDITORS. On the motion of Mr. Day (London), seconded by Mr. Iliffe (London), bers the amount they had estimated, and that was what he had contended all
Mr. PHILLIMORE complained that the council had never given the memMr. Markby was elected President, and, on the motion of Mr. G. 0. along was the duty of the council-namely, to state the proportions in which HUMPHREYS, seconded by Mr. Iliffe, Mr. B. G. Lake Vice-President, they thought each of these funds should bear the expenses.
place they had said, as Mr. Kimber had pointed out, that the whole of the The following gentlemen were clected auditors of the society's ac- £10,411 6s. 20. was exhausted by payments towards which that fund was counts :-Mr. J. S. Chappelow, F.C.A., Mr. R. W. Dibdin, Mr. J. M. E. Collis, the President stating that Mr. W.P.W. Phillimore, M.A., B.C.L.,
applicable. He (Mr. Phillimore) had called the attention of the Lord
Ohief Justice to the matter, as Mr. Pennington had said, some time ago, who had been nominated, had written to the council requesting that his nomination might be withdrawn.
and the correspondence which at that time had ensued between the council and himself was extremely unsatisfactory, and he could get no explanation
stice. THE SOCIETY'S ACCOUNTS.
of the question the council had submitted to the Lord Chief The account of receipts and payments for the year ending 31st Decem
wanted to know definitely whether this was a matter of guess, or whether ber, 1886, as certified to by the auditors, was laid before the meeting, and
the council had a list of figures as to how the funds should be prothe PRESIDENT moved its adoption.
portioned. The account stated that the total income of the society during the year after very careful consideration, that it would be very inconvenient to
Mr. PENNINGTON replied that the council had come to the conclusion, January, 1885, of £823 7s. 1d., and that, after the payment of all out- estimate, and it Mr. Phillimore thought that that estimate ought to be amendment :-“That the annual account be referred back to the Hinwing say nothing upon the subject more than this, that he must obtain a reso
mend PanLLIMORE said that he had given notice to move the following published and circulated amongst the members he (Mr. Pennington) could in 1884 to £2,936 10s. 8d., have increased in 1886 to £5,503 25. 4d., the sea eta, 7th, 8th, 14th, and 16th items or payment, which wimsunde venient, and so the council thought, and that was the only ans werehe che gemittee to supply to the members an amendeam account, shewing who lution of the society to that effect. It would obviously be very incon
could give. notwithstanding that the society's income last year has diminished
Mr. PHILLIMORE urged that the medical council gave similar informaquestionght this would be the proper time at which he should ask the ordinary increase which had taken place in the expenditure. Station annual accounts for the years 1884-1886 the item of Printing, in 1884" the expenses of purchasing rules were not charged to this
With bath Postages and Sundries, from £533 to 698845. 4.d.; " that of Forei cit had cnecessarily increased by the amount expended. 11,625889d. ; that of "Registration Expenses, &c.," from £419 188. 4d. the same. 29,62es Fexpenses, including Examination Postage, from 1896 148. bat et regard to the increas? in postages" and sundries the
But there was another answer, and that was that the Hned that of Voluntary Subscriptions from 32588 1 48. to 2295188389.,; ez praleis which ditemand heen necessary to purchase and circulate. The powould therefore ask that question so that the meeting might be in a County Court Rules, for instance, had been very expensive, and had cost position to judge whether the accounts were such as they ought to pass.
many hundreds of pounds. The postage of these rules had also been &
for the ensuing year.