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the technical convenience of the existing law and the inconvenience of
that proposed in its stead. To such of those few as may have read
and considered the operation of the clause abolishing estates tail it
must be obvious that for the avowed purposes of the Bill that
abolition is unnecessary, while it will make settlements, which the
law will still permit, much more intricate in form, and, consequently,
both more costly in creation and more uncertain in effect than the
documents hitherto in use.
A CONVEYANCER.
Lincoln's-inn, July 12.

in the instances we have examined, the decisions dealing with the case referred to are correctly classified, and the extracts from judgments judiciously selected. The editors have been properly cautious in not affirming that a case has been overruled unless judges have so stated, and it is obviously not within the scope of their work to balance conflicting cases. There must necessarily be ɔmissions in a work covering so extensive a field, and, as instances, we may note that Sclater v. Cottam (3 Jur. N. S. 630), in which the doctrine was laid down that a solicitor-mortgagee can only charge 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. Woodcock (7 M. & W., at p. 19) and Mackintosh v. Trotter (3 M. & W., ROE v. MUTUAL FUND LOAN ASSOCIATION (LIM.)-C. A. No. 1, at p. 186); which dicta were explained in Ex parte Brook (10 Ch. D., at 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, however, that the work has been carefully executed, and is likely to be of much service to the practitioner.

JUSTICES' LAW.

THE JUSTICES' MANUAL; OR, GUIDE TO THE ORDINARY DUTIES OF
A JUSTICE OF THE PEACE, WITH TABLE OF CASES, APPENDIX OF
FORMS, AND TABLE OF PUNISHMENTS. By the late SAMUEL STONE.
TWENTY-FOURTH EDITION. Edited by GEORGE B. KENNETT,
Solicitor, Clerk to the Justices of Norwich. Shaw & Sons.

Of the greater part of this book it is only necessary to say that the decisions since the last edition have been carefully noted; the Summary Jurisdiction, Employers and Workmen, and Crown Office Rules, so far as they affect the procedure of justices of the peace, incorporated, and the index amplified. But a word of special praise should be bestowed on the care with which the Married Women (Maintenance in Case of Desertion) Act, 1886, has been annotated. Not only are the cases collected from all the reports, but opinions and practical suggestions are given upon the doubtful points as yet uncovered by decision, on one point fortified by the advising of Mr. Poland and another counsel. The Criminal Law Amendment Act, 1885, is not less carefully annotated; we observe that the editor has not even overlooked a ruling by Mr. Baron Huddleston at the Bristol Assizes in November last (noted ante, p. 26). We may add that in all the instances in which we have checked the notes of recent decisions we have found the effect of the cases accurately and tersely treated. We think the present a well prepared edition of a standard work.

CORRESPONDENCE.

THE LAND TRANSFER BILL.
[To the Editor of the Solicitors' Journal.]

Sir, I am glad to see that you deprecate the passage by themselves, without further consideration, of the clauses in the Land Transfer Bill relating to the devolution at death of real property. Upon one of these proposals-the abolition of estates tail-I have seen scarcely any comment. Its title doubtless commends it to a numerous class, and may give a certain popularity to the whole measure, but the number of those who can accurately imagine how the proposed change in the law would operate is small, and the clauses which are intended to make that change are not unlikely to escape criticism.

It does not appear that the Lord Chancellor wishes to hinder the creation of settlements or of settlements intended to transmit a landed estate to the eldest son of a family. If that object were aimed at it ought to be, and, of course, would be, distinctly pointed out, and the expediency of such a change in the law so explicitly affirmed as to challenge a discussion of the proposal. If that object be not aimed at, the abolition of estates tail appears to be merely and needlessly mischievous. The peculiar quality of an estate tail does not fetter the power of its owner in possession to dispose of the land as he pleases. Its abolition is not needed to facilitate transfer. Even the slight additional cost involved in the necessity which at present exists of inrolling the deed whereby the entail is barred might, were that thought desirable, be removed without abolishing estates tail. The value of the possibility of creating estates tail consists in this, that, by the use of the few words required for the creation of such an estate, the desired destination is given to the property in every one of many possible events. If the possibility of creating estates tail be destroyed, the same end can only be accomplished by lengthy and complicated clauses, difficult to frame and likely to err and to give rise to litigation.

Except, however, to the few and comparatively uninfluential persons who are engaged in conveyancing, it is impossible to explain

CASES OF THE WEEK.

11th July.

TRESPASS-SEIZURE UNDER VOID BILL OF SALE-WAIVER OF

ESTOPPEL.

TORT

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 of sale on the furniture in question as a security for a loan of £80, with interest at the rate of twenty-seven per cent per annum, and agreed to pay principal and interest by eight equal payments of £13 each on September 19 next, and the nineteenth day in every succeeding third month, and, in case of default in the payment of any of the instalments, to pay the grantees immediately the whole amount remaining unpaid. Default was made in the payment of the first instalment, and, on October 26, 1885, the plaintiff filed a petition in bankruptcy, and a receiver was appointed. On October 30 the plaintiff filed a statement of affairs, in which the defendants were inserted as secured creditors for and on November 4 the defendants seized the furniture under the bill of £104. On November 3 the plaintiff's landlord put in a distress for rent, sale, and sold it by auction. landlord, the sum of £32 8s. 3d. was realized, thus leaving a balance due After payment of costs and rent to the to the defendants of £71 11s. 9d. On December 18 a composition of 2s. 6d. in the pound was sanctioned by the court, and the receiving order was rescinded. On November 3, 1886, the plaintiff's solicitors wrote to the defendants inclosing a cheque for £8 11s. Sd., as the dividend on the balance due to them, and a form of receipt which they requested the defendants to sign, discharging the plaintiff from his debt to them. They stated by the letter that the payment was without prejudice to any claim which the plaintiff might make in regard to the seizure and sale of the of sale to be bad under the authority of Davis v. Burton (32 W. R. 423) and furniture. The defendants signed the receipt. Pollock, B., held the bill Myers v. Elliot (34 W. R. 338), and he further held that the grantor was 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 the appeal, and entered judgment for the defendants. Lord ESHER, M.R., said that he thought the conduct of the plaintiff amounted to an estoppel, but it was immaterial to decide that since the case came clearly within the principle laid down in Smith v. Baker (8 C. P. 350), of which he entirely approved. A man could not say at one time that a transaction was valid, and thereby obtain some advantage to which he could only be entitled on the footing that it was valid, and at another time say that it was void for the purpose of obtaining some further advantage. Here, the plaintiff, by treating the bill of sale throughout as a good bill of sale, had obtained the advantage resulting from the composition, and the discharge of his debt, and he could not now be allowed to obtain the further advantage of damages from the defendants by saying that the bill of sale was bad. The letter of November 3, 1886, was quite ineffectual to negative the plaintiff's former conduct, and his acquiescence in the action of the defendants on the bill of sale. LINDLEY, LJ., said that the position of the parties was so altered in consequence of the plaintiff's conduct that he was estopped from denying that the bill of sale was good. It would be utterly inconsistent to allow him now to turn round and declare the bill of sale to be invalid under which he had already obtained substantial advantage. LOPES, L.J., concurred.— COUNSEL, Murphy, Q.C., and Nasmyth; Vaughan Williams and James Wilson. SOLICITORS, W. J. W. Beard; Olding & Olding.

Re ADAM EYTON (LIM.)-C. A. No. 2, 7th July. COMPANY-WINDING UP-REMOVAL OF OFFICIAL LIQUIDATOR-"DUE CAUSE SHEWN"-COMPANIES ACT, 1862, s. 93-APPEAL-LOCUS STANDI. This was an appeal against an order made by North, J., removing the person who had been appointed official liquidator of the company, and appointing another person in his place. Section 93 of the Companies Act, 1862, provides that "any official liquidator may be removed by the court on due cause shewn." In the present case B. had in the first instance been appointed official liquidator, and on the application of W., his counsel, undertaking to pay into the Bank of England" to the credit who claimed to be a creditor of the company, and on 66 the applicant, by of the matter, on or before a specified day, "the sum of £2,500, and to pay any further sum of money to the like credit as the court may direct in respect of claims brought in by other creditors of the company not mentioned in the schedule hereto, and also undertaking to pay any sums necessary to answer any costs properly incurred by B. as provisional

official liquidator and official liquidator of the company," the judge appointed C. official liquidator of the company in the place and stead of B. It was argued, on the appeal, that the "due cause shewn" for which a liquidator could be removed meant something in the nature of a personal disqualification arising from his misconduct or unfitness, reliance being placed on the decision of the Court of Appeal in Re Sir John Moore Gold Mining Co. (12 Ch. D. 325). No allegation was made against B., and the order amounted to a sale of the liquidation to the highest bidder. On the other side it was urged that the liquidator himself had no locus standi to appeal. During the argument the court communicated with North, J., and ascertained that he made the order because the company was insolvent, and the applicant, who had disputed claims against the company, was willing to undertake to pay in full all the creditors whose claims were undisputed, and to deposit the £2,500 as security, if his nominee was allowed to conduct the liquidation.

THE COURT (COTTON, BOWEN, and FRY, L.JJ.) dismissed the appeal, though they held that the appellant had a locus standi to appeal. They said that due cause" was not confined to objections personal to the liquidator, but extended to any cause which rendered it desirable in the interest of the company and the creditors that the liquidator should be removed and another person substituted. The real interests of the liquidation were to be considered.-COUNSEL, Cozens-Hardy, Q.C., and Oswald; Napier Higgins, Q.C., and Hatfield Green; C. H. Turner; A. Dunham; Pochin. SOLICITORS, Thos. Hulbert: Pitman & Sons; Miller & Miller;

F. Burchail.

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This case (reported ante, p. 591) came on for further argument on the question reserved whether section 47 of the Fines and Recoveries Act prevents the court from enforcing specific performance of a covenant to execute a disentailing deed. The action was brought to compel the specific performance of a covenant by the defendant in a conveyance to the plaintiff that the defendant and every person having or claiming any interest in the property conveyed through or in trust for him, would “ cute every such disentailing and other assurance, and do every such thing for the further or more perfectly assuring all or any of the said premises to the use of the" plaintiff, his heirs or assigns, as should be reasonably required. The defendant, when tenant in tail in remainder, had executed a deed converting his estate into a base fee, his father, the tenant for life and protector of the settlement of the estate, refusing to consent to barring the entail. Afterwards the defendant conveyed the property to the plaintiff, and entered into the above-mentioned covenant. Upon the death of the tenant for life, the purchaser called upon the defendant to execute a disentailing deed converting the base fee into a fee simple. The defendant refused, contending that his covenant did not extend to any future interest devolving upon him, and that the plaintiff knew the state of the title when the covenant was executed. Kekewich, J., held (34 Ch. D. 415, ante, p. 202), that the defendant was bound to execute a disentailing deed. Section 47 of the Fines and Recoveries Act 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 any 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." THE COURT (COTTON, BOWEN, and FRY, L.JJ.) held that section 47 did not prevent the court from enforcing specific performance of the covenant. COTTON, L.J., said that before the Act a court of equity would have enforced the specific performance by a tenant in tail of an agreement to sell the fee by directing him to levy a fine or suffer a recovery-that is, it would enforce the agreement as against the person who had made the bargain. But, if he had died without carrying out the agreement, the court would not interfere at all; it would not treat that which had been agreed to be done as done. The Attorney-General v. Day (1 Ves. sen. 218) shewed that this was the law before the Act. No doubt a court of equity did, for either valuable or meritorious consideration, aid the defective execution of powers, not only as against the person who had made the informal appointment, but also as against those who were entitled in default of an exercise of the power. Perhaps that jurisdiction was not founded on sound principles, but it was settled law. Having regard to this state of the law and the mere construction of section 47, the object of that section was to prevent a court of equity from holding that a contract to execute a disentailing deed was as good as a disentailing deed, and from applying the doctrine of imperfect execution of powers. The initial words of the section-"in cases of dispositions of land under this Act"-shewed that the section was not dealing with mere contracts, but with deeds intended to operate under the Act. True there was a reference to the exclusion of the doctrine of specific 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 disentailing deed was to be treated as barring the entail he would have gone counter to the Act, but that was not his decision. His lordship would give no opinion as to the power of the court to enforce specific performance of an agreement by the protector of a settlement to consent to a disentailing deed. If he agreed to do so by deed, probably the re

quirements of the Act would be satisfied; if his agreement was not under seal his lordship would give no opinion what would be the result. It Was argued that by decreeing specific performance of the covenant the court would be "supplying a defect in the execution of the power of disposition given by the Act." That was not so; the court would only be compelling the defendant to do that which he had agreed to do Having regard to the previous state of the law, his lordship was of opinion that this was the true construction of section 47. And though there was no actual decision on the point (in Lewis v. Duncombe (20 Beav. 398) the point was not argued), there was a consensus of opinion among learned text-writers (such as Sugden, Hayes, and Dart) in favour of this view. BowEN and FRY, L.JJ., concurred.--COUNSEL, Warmington, Q.C., and Russell Roberts; Barber, Q.C., and T. Rawlinson. SOLICITORS, R. Chapman; Lovell, Son, & Pitfield.

ALLCARD v. SKINNER-C. A. No. 2, 9th July.

SETTING ASIDE VOLUNTARY DEED-UNDUE INFLUENCE-DELAY. This was an appeal from a decision of Kekewich, J. (35 W. R. 424). The action was brought to set aside certain gifts made by the plaintiff to the defendant while the plaintiff was a member of a sisterhood of which the defendant was the lady superior. The plaintiff sought to recover two sums of stock transferred by her to the defendant in 1874, which still annual income, which had been from time to time given by the plaintiff to remained in the name of the defendant, and also all moneys, other than the defendant, and which had been expended by the defendant for the charitable purposes in which the plaintiff and the other members of the sisterhood had been engaged. On the appeal the claim of the plaintiff was confined to the sums of stock still remaining in the name of the defendant. In 1868 the defendant was the lady superior of an institution or sisterhood, which was an association of ladies who devoted themselves to works of charity, with the assistance and under the spiritual direction of the Rev. Mr. Nihill. In 1868 the plaintiff, who was then residing with her mother, became an associate of the sisterhood, and joined in the charitable work in which they were engaged, but did not reside with them. In January, 1870, she became a postulant, and made a will giving all her property to the sisterhood; in May of that year she became a novice; and in August, 1871, she became a professed sister, and, as such, took the VOWS. The rules had not then been reduced into writing, but the principles on which the sisterhood was conducted were the same as those afterwards expressed in the rules, and the rules expressed in detail the vows of poverty, chastity, and obedience which the plaintiff took when she became a professed sister. Though the vow of poverty required that a sister should not hold any property, yet neither the vow nor the rules required that the property owned by any sister before she became professed should be made over to the superior or to the sisterhood. The rules imposed the most absolute submission by the sisters to the superior, and prevented a sister from obtaining, without leave, the advice or counsel of any person not connected with the sisterhood. After the plaintiff became a professed sister she from time to time handed over to the defendant the money to which she was entitled under her father's will, and also the capital moneys, as she was entitled to receive them, under that will. The capital moneys amounted to about £8,000, and of this she handed over to the defendant sums exceeding £7,000, of which the sums of stock amounting to £500 Ordinary Stock of the Midland Railway Co. and £1,171 Four per Cent. Caledonian Railway Stock were still remaining in the hands of the defendant. The remainder had been expended for the purposes of the sisterhood before the action was brought. The stock was transferred to the plaintiff in 1874. In 1879 the plaintiff revoked her will and left the sisterhood, but she made no claim for the return of the property until 1885. Kekewich, J., dismissed the action with costs.

THE COURT OF APPEAL (COTTON, LINDLEY, and BowEN, L.JJ.) affirmed the decision, COTTON, L.J., differing from the majority. CoTTON, L.J., was of opinion that there was a difference between the claim of the plaintiff to the stock remaining and her claim to the moneys given by her to the defendant and applied by her to the purposes of the sisterhood. If the money so expended had been applied by the transferee for her own selfish purposes, or had been obtained by fraud or deception on the part of the donee, probably there would have been no difference. But if the plaintiff had an equity to set aside gifts made to the defendant, the defendant would have a stronger equity against the plaintiff to prevent her from making the defendant personally liable for money spent by her for the charitable purposes to promote which the plaintiff and defendant were at the time of the expenditure associated, and which the plaintiff was at the time willing and anxious to promote. Was the plaintiff entitled to recall the stock still in hand? There was no decision in point with reference to a case like the present. Did the case fall within the principles laid down by the decisions of the Court of Chancery in setting aside voluntary gifts executed by parties who at the time were under such influence as, in the opinion of the court, enabled the donor to set the gift aside? These decisions might be divided into two classes (1) When the court had been satisfied that the gift was the result of influence expressly used by the donee for the purpose; (2) when the relations between the donor and donee had at or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor. In such a case the court set aside the voluntary gift, unless it was proved that in fact the gift was the result of a free exercise of the donor's will. The first class of cases might be considered as depending on the principle that no one should be allowed to retain any benefit arising from his own fraud or wrongful act. In the second class of cases the court interfered, not on the ground that any wrongful act had in fact been committed by the donee, but on the ground of public policy, and to prevent the relations which existed between the parties, and the influence arising therefrom, from being abused.

as

right and expedient to save persons from the consequences of their own folly? Or was it that it was right and expedient to save them from being victimized by other people. In his lordship's opinion the doctrine of undue influence was founded upon the second of these two principles. The undue influence which courts of equity endeavoured to defeat was the undue influence of one person over another, not the influence of enthusiasm on the enthusiast who was carried away by it, unless, indeed, such enthusiasm was itself the result of external undue influence. But the influence of one mind over another was very subtle, and of all influences religious influence was the most dangerous and the most powerful, and to counteract it courts of equity had gone very far. They had not shrunk from setting aside gifts made to persons in a position to exert undue influence over the donors, although there had been no proof of the actual exercise of such influence; and the courts had done this on the avowed ground of the necessity of going this length in order to protect persons from the exercise of such influence under circumstances which rendered proof of it impossible. The courts had required proof of its non-exercise, and, failing that proof, had set aside gifts otherwise unimpeachable. In this particularcase his lordship could not find any proof that any gift made by the plaintiff was the result of any actual exercise of power or influence on the part of the lady superior or of Mr. Nihill, apart from the influence necessarily incidental to their position in the sisterhood. Everything that the plaintiff did was referable to her own willing submission to the vows she took, and to the rules which she approved, and to he own enthusiastic devotion to the life and work of the sisterhood. There was, in fact, no unfair or undue influence brought to bear upon the plaintiff other than such as inevitably resulted from the training she had received, the promise she had made, the vows she had taken, and the rules to which she had submitted herself. But her gifts were in fact made under a pressure which, while it lasted, the plaintiff could not resist, and were not past recall when that pressure was removed. When the plaintiff emancipated herself from the spell by which she was bound, she was entitled to invoke the aid of the court in order to obtain the restoration from the defendant of so much of the plaintiff's property as had not been spent in accordance with the wishes of the plaintiff, but remained in the hands of the defendant. The plaintiff now demanded no more. As to the second point, whether it was too late for the plaintiff to invoke the assistance of the court, more than six years had elapsed between the time when the plaintiff left the sisterhood and the commencement of the action. It was not necessary to decide whether this delay alone would be a sufficient defence to the action. There was far more than inactivity and delay on the part of the plaintiff. There was conduct amounting to confirmation of her gift. Gifts liable to be set aside by the court on the ground of undue influence had always been treated as voidable, and not void. A gift made in terms absolute and unconditional naturally led the donee to regard it as his own; and the longer he was left under this impression the more difficult it was justly to deprive him of what he had naturally so regarded. So long as the relation between the donor and the donee which invalidated the gift lasted, so long was it necessary to hold that lapse of time afforded no sufficient ground for refusing relief to the donor. But this necessity ceased when the relation itself came to an end; and if the donor desired to have his gift declared invalid and set aside he ought to seek relief within a reasonable time after the removal of the influence under which the gift was made. If he did not the inference was strong, and, if the lapse of time was long, the inference became inevitable and conclusive, that the donor was content not to call the gift in question, or, in other words, that he elected not to avoid it, or what was the same thing in effect, that he ratified and confirmed it. The plaintiff considered when she left the sisterhood what course she should take, and she determined to do nothing, but to leave matters as they were. She insisted on having back her will, but she never asked for her money until five years after she left the sisterhood. In this state of things his lordship could only come to the conclusion that she deliberately chose not to attempt to avoid her gifts but to acquiesce in them, or, if the expression be preferred, to ratify or confirm them. Upon the evidence he could come to no other conclusion. Moreover, by demanding her will and not her money she made her resolution known to the defendant. It was urged that the plaintiff did not know her rights until shortly before she asked for her money back. But, in the first place, his lordship was not satisfied that the plaintiff did not know that it was at least questionable whether the defendant could retain the plaintiff's money if she insisted on having it back. In the next place, if the plaintiff did not know her rights, her ignorance was simply the result of her own resolution not to 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 defence based on laches and acquiescence. Again, it was urged that the defendant has not been prejudiced by the delay, and that nothing had been done on the faith that the plaintiff would not require her money to be returned to her. His lordship did not think this material. He treated the money as absolutely given to the sisterhood when the plaintiff determined not to ask for it back, which she did in 1880. But he could not come to the conclusion that nothing had been done on the faith of the money being the property of the sisterhood. It was contrary to human nature to suppose the plaintiff's money was not for years regarded as the money of the sisterhood, and that the sisterhood did not act on that assumption and make their arrangements accordingly. Mr. Nihill's evidence satisfied him that they did so, although he did not think he shewed that they took any particular step on the faith of having the particular sum now sought to be taken from them. It is not, however, necessary to prove so much as this. Whether the plaintiff's conduct amounted in point of law to acquiescence or laches, or whether it amounted to an election not to avoid a voidable transaction, or whether

Influence had been denied; there was no suggestion that the defendant acted from any selfish motive, and it could not be contended that the case came under the first class of decisions. In his lordship's opinion the case came within the principle of the second class. At the time of the gift the plaintiff was a professed sister, and, as such, bound to make absolute submission to the defendant superior of the sisterhood. She had no power to obtain independent advice, she was in such a position that she could not freely exercise her own will as to the disposal of her property, and she must be considered as being (to use the words of Knight-Bruce, L.J., in Wright v. Vanderplank, 8 D. M. & G. 137) "not in the largest and amplest sense of the term, not in mind as well as person, an entirely free agent." When she exercised her legal right to leave the sisterhood she was entitled to recover so much of the fund transferred by her as remained in the hands of the defendant, on the ground that it was property the beneficial interest in which she had never effectually parted with. It was urged that it would be contrary to public policy to grant the plaintiff relief, on the ground that it would be a hindrance to the charitable work in which the plaintiff and the sisterhood were engaged, and that it would be better to shew those who were desirous of leaving the work that they could not take with them any part of their property. In his lordship's opinion it would be wrong to put such pressure on those who might wish to leave. Such work, to be effectual, must be done with a willing mind, and it would be productive of evil to attempt to retain in such a society as the sisterhood, by the pressure of loss of property, those whose hearts and will were no longer in the work, and who desired to exercise their legal right of withdrawing. Kekewich, J., decided against the plaintiff on this ground, that she had competent advice, that of her brother, before she joined the sisterhood, and that she then formed the resolution (as Mr. Nihill stated in his evidence) to give everything to the sisterhood, and that this prevented the subsequent transfer being set aside. In his lordship's opinion, even if there were evidence that she had, before she joined the sisterhood, advice on the question of how she should deal with her property, that would not be sufficient. The question was whether, at the time when she executed the transfer, she was under such influences as to prevent the gift being considered as that of one free to determine what should be done with her property. No reliance could be placed on the promise made to Mr. Nihill. This could not be enforced, and did not in any way bind her in law, or pass the property; and the title of the defendant depended solely on the transfer made in 1874. When the plaintiff left the sisterhood in 1879 she was entitled to set aside the transfer, and to have re-transferred to her the fund still held by the defendant. Had she lost this right by delay? The case was not like that of a contract voidable for fraud. There the party defrauded must elect, and within a reasonable time, for until he does so he retained the right or the benefits, however inadequate, secured to him by the contract. In the case of a voluntary gift like the present, the person seeking to set aside the transfer never received any benefit whatever from the transaction. There was an attempt to shew that in consequence of the plaintiff's delay in bringing the action the defendant and the sisterhood, which she represented, had incurred liabilities on the faith of retaining the money given by the plaintiff. But there was no evidence of this. Was the delay (and in this case it was very great) of itself sufficient to deprive the plaintiff of her right to the fund now in the defendant's hands? The defendant had not pleaded the Statute of Limitations, and his lordship did not suggest that she could successfully have done so. In cases where the fact of influence depended on the result of conflicting evidence, delay must be important, but it could not be disputed that the plaintiff was in a state which necessarily subjected her to a powerful influence. The proof of this did not depend on parol evidence, but on the rules and admitted principles of the sisterhood. Mere delay in enforcing a right was not in itself a defence. It was very different from raising no objection to an act while it was being done, which might be treated as assent to the act. Moreover, delay in asserting rights could not be in equity a defence, unless the plaintiff were aware of her rights. She deposed that until long after 1879 she did not know that she could set aside the gift. and, on the evidence, his lordship thought that she did not until long after 1879 know her rights. The delay which had occurred since 1879 was, he thought, & defence against any claim on behalf of the plaintiff to the dividends on the stock still in the name of the defendant before the commencement of the action. But he thought it was no defence as regarded the stock remaining in the hands of the defendant and the dividends accrued since the commencement of the action. At the time when the plaintiff left the sisterhood in 1879 that stock was property which the plaintiff was entitled to claim, as being held by the defendant in trust for her. The delay did not, in his lordship's opinion, amount to evidence that the plaintiff recognized the gift as her own spontaneous act, and it could not be relied upon as having deprived the defendant of any evidence in her favonr which could have been adduced if the plaintiff had brought her action shortly after she left the sisterhood. LINDLEY, L.J., said that there was no authority whatever for saying that the plaintiff's gifts were inValid at law. It was to the doctrines of equity that recourse must be had to invalidate the gifts. The doctrine relied upon by the appellant was that of undue influence expounded and enforced in Huguenin v. Baseley (14 Ves. 273) and other cases of that class. There Lord Eldon said :-The question was not whether she knew what she was doing, had done, or proposed to do, but how the intention was produced; whether all that care and providence was placed around her, as against those who advised her, which, from their situation and relation with respect to her, they were bound to exert on her behalf." But in Huguenin v. Baseley and all such cases it was the duty of the donee to advise and take care of the donor. Where there was no such duty the language of Lord Eldon ceased to be applicable. What, then, was the principle? Was it that it was

it amounted to a ratification or a confirmation of her gifts, were questions of mere words. It would not be fair or right to the defendant to compel her now to restore the money sought to be recovered. Such a result would not be in comformity with sound, legal, or equitable principles. BOWEN, L.J., concurred with Lindley, L.J.-COUNSEL, Sir Horace 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; Freemans &Dicker.

THE MINERAL WATER BOTTLE EXCHANGE AND TRADE PROTECTION SOCIETIES (LIM.) AND J. COX v. BOOTH & CO. -Chitty, J., 8th July.

s. 16.

INJUNCTION RESTRAINT OF TRADE-TRADE PROTECTION SOCIETY-TRADE UNION ACT, 1871, ss. 4, 23, AND TRADE UNION AMENDMENT ACT, 1876, In this case the question arose as to the enforceability of an agreement contained in the rules of a trade protection society providing that no member should employ any traveller, carman, or outdoor employè who had left the service of another member without his consent in writing until after the expiration of two years from his leaving such service. The number of members of the society was limited to 500, and the actual number was 179. The members had places of business in various parts of the United Kingdom, and also, as it appeared in one stated instance, at Sydney, in New South Wales. The society moved for an interim injunction to restrain a member from committing a breach of the agreement, contending that the rule was reasonable and intended to prevent members acquiring each other's trade, and the cases of Rousillon v. Rousillon (28 W. R. 623, 14 Ch. D. 153) and Rigby v. Connol (28 W. R. 650, 14 Ch. D. 482) were relied on. The defendant, however, submitted that the society was a trade union within the definitions of the Trade Union Act, 1871, s. 23, and of the Trade Union Amendment Act, 1876, s. 16, and therefore that the agreement was not enforceable by reason of section 4 of the Act of 1871. The defendant also submitted that it was void as being made in restraint of trade, and cited Hilton v. Eckersley (4 W. R. 326, 6 E. & B. 47).

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 restraint on trade. In the first place it was an agreement, not between an employè and his employer, but between employers as against the employed. In the next place the number of the society's members and its field of business was practically unlimited. The motion was refused with costs.-COUNSEL, Bradford; Hall. SOLICITORS, Wm. Webb; Smythe

& Brettell.

WALKER v. THE GENERAL MUTUAL INVESTMENT BUILDING SOCIETY-North, J., 8th July.

BUILDING SOCIETY-DISPUTE WITH MEMBER-ARBITRATION WITHDRAWING MEMBER-BUILDING SOCIETIES ACT, 1874 (37 & 38 VICT. c. 42), s. 34. This action was brought by a member of a building society, who had given notice to withdraw, and whose notice had expired, against the society, claiming to restrain the society from acting upon certain resolutions which the plaintiff alleged to be ultrà vires. The resolutions had been passed before the plaintiff gave his notice of withdrawal. One of the society's rules provided that "the board shall have power to determine all matters of dispute arising between the society and any member, or person claiming on account of any member; and if the party shall be dissatisfied with their decision, or shall refuse to abide thereby, the matter shall be referred to three of the arbitrators of the society." This was a motion by the plaintiff for the appointment of a receiver. On behalf of the defendants it was objected that the dispute ought to be referred to arbitration, as provided by the rule. On behalf of the plaintiff it was urged that the rule did not apply, because he had, by his notice of withdrawal, ceased to be a member of the society. By consent of the parties the matter was treated as if an application had been made by the defendants to stay the proceed ings in the action.

NORTH, J., held that the rule applied, and that the dispute ought to be determined by arbitration. He made an order staying the proceedings. COUNSEL, Napier Higgins, Q.C., and A. N. Cumming; Cozens-Hardy, QC., and Micklem. SOLICITORS, Evans & Batchelor; Flint & Gardiner.

BOLTON . THE NATAL LAND AND COLONIZATION CO.North, J., 8th July. PRACTICE-DISCOVERY—AFFIDAVIT OF DOCUMENTs—Items not suFFICIENTLY DISTINGUISHED.

This action was brought by a shareholder in the defendant company to restrain the company from paying dividends, which the plaintiff alleged they were about to pay out of capital. The defendants had been required to make an affidavit of documents, and an affidavit had been made by their secretary, the 1st schedule to which contained 646 items. Many of these items consisted of bundles of documents and books (such as letterbooks), each of which comprised a large number of distinct documents. Some of the books were general letter-books of the company and volumes of copies of letters. The plaintiff applied by summons to have the affidavit taken off the file, on the ground that it was an abuse of the process of the court, because it did not sufficiently distinguish which of the items in the schedule, or what parts of the items, related to the matters in question in the action.

NORTH, J., granted the application, and ordered that the affidavit should be taken off the file.-COUNSEL, Cozens-Hardy, Q.C., and Methold; Decimus Sturges. SOLICITORS, Bolton & Co.; Harries, Wilkinson, & Raikes.

Re WILLIAMS' TRUSTS-North, J., 9th July.

PETITION FOR APPOINTMENT OF NEW TRUSTEES-JURISDICTION-NO TRUSTEE ORIGINALLY APPOINTED REAL ESTATE-VESTING ORDER-HEIR OF TESTATOR DEAD WITHOUT PERSONAL REPRESENTATIVE-CONVEYANCING ACT, 1881, s. 30.

This was a petition for the appointment of new trustees of a will. The testator, by his will, appointed a trustee, but the person so appointed died before the testator, and the will did not contain any power to appoint 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 who was then an infant, became heir to the testator. Administration to her estate was granted, during the minority of her son, to another person. The son had attained twenty-one, but no fresh administration had been granted, and there was, consequently, no legal personal representative of the sister. Her son was served with the petition. An order vesting the real estate in the trustees to be appointed was asked for. Section 30 of the Conveyancing Act provides that, "when an estate or interest of inheritance in any tenements or hereditaments is vested on any trust in any person solely, the same shall, on his death, notwithstanding any testamentary disposition, devolve to, and become vested in, his personal representatives or representative from time to time, in like manner as if the same were a chattel real vesting in them or him." The question was whether it was necessary that administration should be taken out to the estate of the sister, or how, in the absence of a representative to her, the vesting order should be expressed.

NORTH, J., held that administration was not necessary. He was of opinion that he had jurisdiction to appoint trustees, and he made an order vesting the real estate in the new trustees "for all such estate as was vested" in the sister at the time of her death.-COUNSEL, Bardswell; G. M. Dale; Simmonds. SOLICITORS, Burton, Yeates, & Co.; S. B. Somerville

Re HOBBS, HOBBS v. WADE-North, J., 11th July. STATUTE OF LIMITATIONS-POSSESSION OF ONE TENANT IN COMMON-RECEIPT BY FATHER OF RENTS BELONGING TO INFANT CHILD-3 & 4 WILL. 4, c. 27, s. 12.

tations as between tenants in common. A question arose in this case as to the operation of the Statute of LimiThe 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 to the custom of gavelkind, were her co-heirs. When she died S. was of age, but B. was only fourteen years old. According to the custom of gavelkind the testator was entitled to receive, so long as he should remain a widower, a moiety of the rents of his deceased wife's moiety of the land. Upon her death he entered into receipt of the whole of the rents of the land, and continued in such possession for more than twelve years, without accounting to his sons for their shares of the rents or giving any acknowledgment in writing of their title. In February, 1884, the testator married a second wife, and his estate by the curtesy came to an end. J., the younger son, attained twenty-one in 1877, and died in May, 1884. On his death his interest in the property descended to his brother S., as heir of the mother. The testator died in November, 1884. There was evidence that in 1884 the testator had accounted to his son S. for his share of a quarter's rents, and made a payment to him accordingly. It was admitted that the title of S. to that moiety of his mother's moiety, the income of which the testator was entitled to receive until his second marriage, could not be disputed. The question was whether the title of S. to the other moiety of his mother's moiety was barred by the Statute of Limitations. It was contended on behalf of S., on the authority of Thomas v. Thomas (2 K. & J. 79) and Wall v. Stanwick (34 Ch. D. 763), that the testator must be taken to have entered into receipt of the share of the rents which belonged to his infant son J., as his agent or bailiff; that his receipt in that character did not cease when J. attained twenty-one; and that the Statute of Limitations did not, therefore, apply to J.'s one-eighth of the property. And it was urged that, as the testator 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 character for the other son.

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 to him on the death of his brother J. was not barred. On the authority of the above-mentioned cases his lordship held that the testator must be assumed to have entered into the receipt of J.'s one-eighth of the rents as his bailiff, and to have continued to receive them in that character until something was done to change the character in which he received them. As to the one-eighth which originally belonged to S., he being of age when the testator commenced to receive the rents, there was nothing in the relation of the parties to lead to the presumption that there was any 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 testator to S. the statutory period had run, and no such payment could defeat the operation of the statute, which had already put an end to the title of S. Nor was the payment any evidence that the testator had before the expiration of the statutory period been in possession as bailiff for S.—COUNSEL, Mulligan; C. T. Mitchell; Freeman. SOLICITORS, Saw & Son; Bolton & Mote.

BANKRUPTCY CASES.

Ex parte PATERSON, Re RATHBONE-Cave, J., 7th July. BANKRUPTCY-DISCLAIMER OF LEASE-PARTIES OUT OF JURISDICTIONNOTICE-BANKRUPTCY ACT, 1883, s. 55, SUB-SECTION (3)-PRACTICE. Section 55, sub-section (3), of the Bankruptcy Act, 1883, provides that "a trustee shall not be entitled to disclaim a lease without the leave of the court, except in any cases which may be prescribed by general rules, and the court may, before or on granting such leave, require such notices to be given to persons interested, and impose such terms as a condition of granting leave as the court thinks just." In the present case the trustee in the bankruptcy was desirous of disclaiming certain leasehold property situate in Ireland of which the bankrupt was assignee. The 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 the motion to disclaim. The case was therefore referred to the judge for decision as to the proper course to pursue. CAVE, J., directed that the notices should be served on the parties in Ireland in the ordinary way. His lordship said that there was a clear distinction between the present case and a case formerly decided by him (unreported) in which he had declined to allow a notice to be served out of the jurisdiction. In that case the notice was one leading to proceedings against the person whom it was desired to serve, affecting his rights and making him liable to the jurisdiction of the court. There was nothing to prevent the trustee from issuing a writ and obtaining leave to serve the writ abroad under the Judicature Acts. In the present case there was no action whatever against the persons to whom notice was to be given, and no writ could be issued against them. The court was asked to give the trustee leave to disclaim a particular lease and he was required to give notice to certain persons in order that the court might have all the circumstances before it. But no remedy was ever given personally against the persons on whom the notice was served. The case was clearly not within the previous decision, and notice of this application might be and ought to be served on the parties in Ireland.-COUNSEL, Brooke Little. SOLICITORS, Peacock & Goddard.

LAW SOCIETIES.

INCORPORATED LAW SOCIETY.
ANNUAL GENERAL MEETING.

The annual general meeting of the Incorporated Law Society was held on Friday, the 8th inst., at the Society's Hall, Chancery-lane, the President, Sir H. WATSON PARKER, taking the chair.

ELECTION OF COUNCIL.

The following members of the council, who had, under the bye-laws, retired from office, were declared duly elected, there being no other candidates:-Mr. Kichard Pennington, Mr. Barnard Platts Broomhead, Mr. John Moxon Clabon, Mr. Frederick Halsey Janson, Mr. Henry Leigh Pemberton, Mr. Henry Skrine Law Hussey, Mr. William Alfred Jevons, Mr. Benjamin Greene Lake, Mr. William Williams, Mr. Lewis Fry, M.P.

PRESIDENT AND VICE-PRESIDENT-AUDITORS.

On the motion of Mr. DAY (London), seconded by Mr. ILIFFE (London), Mr. Markby was elected President, and, on the motion of Mr. G. O. HUMPHREYS, seconded by Mr. ILIFFE, Mr. B. G. Lake Vice-President, for the ensuing year. The following gentlemen were clected auditors of the society's accounts:-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., who had been nominated, had written to the council requesting that his nomination might be withdrawn.

THE SOCIETY'S ACCOUNTS.

The account of receipts and payments for the year ending 31st December, 1886, as certified to by the auditors, was laid before the meeting, and the PRESIDENT moved its adoption.

The account stated that the total income of the society during the year had amounted to £23,532 98. 9d., which included a balance on the 1st of January, 1885, of £823 7s. 1d., and that, after the payment of all outgoings, there remained a balance at the bankers of £1,272 15s. 9d. Mr. PHILLIMORE said that he had given notice to move the following amendment:-"That the annual account be referred back to the Finance Committee to supply to the members an amended account, shewing why the 3rd, 4th, 7th, 8th, 14th, and 16th items of payment, which amounted in 1884 to £2,936 10s. 8d., have increased in 1886 to £5,503 2s. 4d., notwithstanding that the society's income last year has diminished £1,039 138. 8d., and the number of articled clerks has decreased"; and he thought this would be the proper time at which he should ask the question, notice of which he had given to the council, as follows:-"Why in the annual accounts for the years 1884-1886 the item of Printing, Stationery, &c.,' has increased from £699 12s. 4d. to £1,187 14s. 11d.; that of Postages and Sundries, &c.,' from £533 to £788 4s. 4d.; that of 'Other Expenses, including Examination Postage,' from £896 14s. 8d. to £1,625 88. 9d.; that of Registration Expenses, &c.,' from £419 18s. 4d. to £1,295 19s. 7d.; that of Sundry Bills,' from £327 8s. 4d. to £495 9s. 9d.; and that of 'Voluntary Subscriptions,' from £59 178. to £110 5s? He would therefore ask that question so that the meeting might be in a position to judge whether the accounts were such as they ought to pass.

The PRESIDENT said that Mr. Pennington, who had the charge of the finances of the society, would answer the question.

Mr. E. KIMBER (London) would like, before Mr. Pennington rose, to draw the attention of the meeting to some comments of the council on the accounts, which seemed to him to be somewhat extraordinary, and evidently made as the result of remarks made at previous general meetings. The members would recollect that there had been considerable discussion as to whether the income received from articled clerks was fairly devoted to the objects for which it was obtained. The council stated in the report as follows:-"The item of £10,411 6s. 2d. represente income received by the society from articled clerks and from prize funds; and the item of £3,591 12s. represents income derived from fees paid for the preparation and issue of registrar's certificates, and entering commissions to administer oaths." The report then went on to say:The council are, however, of opinion that the first three items in the second column of disbursements, amounting to £2,455 16s., are chargeable to the society's income of £8,633 3s. 11d., while the next two items in the second column, amounting to £4,924 15s. 7d., are chargeable against the Articled Clerks' Fund; that the item of £1,295 19s. 7d. should be charged against the registration income, and that the remaining items are properly apportionable and payable out of the three funds." Then they went on to say: "The item of £988 9s. 6d. for interest on the balance of loans must be considered as forming part only of a sum chargeable against the three funds in the nature of rent, equivalent to interest on the sum of £115,509 18s. 4d. expended in the purchase of site and erection of buildings. In fact, the whole of the £10,411 6s. 2d. is exhausted by payments towards which that fund is applicable.' This seemed to him a non sequitur. It did not appear to him clear as to how that £10,411 was exhausted. All that appeared to have been taken out of it was a sum of £4,924, which the council said was chargeable against the Articled Clerks' Fund. He would like to know about the balance of £6,000. The council should make this clear to the profession and the public, not only in their report, but on the face of their account.

Mr. PENNINGTON said he would answer Mr. Kimber first. Mr. Kimber

had, in effect, put the same question as was put by Mr. Phillimore he (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 disposition. The report stated that "the remaining items are properly apportionable and payable out of the three funds." The council charged the articled clerks with what they considered to be a fair proportion of the expenses of the maintenance and repairs of the buildings, and, in fact, the general expenses. It was perfectly right that, as the articled clerks paid no rent for the accommodation they had, the society should not bear the whole of the expense of carrying on and maintaining the establishment. The matter had been carefully gone into, and an account had been prepared, which had been shewn to the judges, proving that, in fact, every shilling of the Articled Clerks' Fund had been exhausted, and that the council had attributed to them a fair and proper proportion in the nature of rent, and a fair and proper proportion of all the other expenses which were incurred by the society. He thought that what he had said would probably be a sufficient answer. Mr. PHILLIMORE said that in one place the council said that he proportions must be very much a matter of estimate. Mr. PENNINGTON: No doubt.

Mr. PHILLIMORE complained that the council had never given the members the amount they had estimated, and that was what he had contended all along was the duty of the council-namely, to state the proportions in which they thought each of these funds should bear the expenses. In another place they had said, as Mr. Kimber had pointed out, that the whole of the £10,411 6s. 2d. was exhausted by payments towards which that fund was applicable. He (Mr. Phillimore) had called the attention of the Lord Chief Justice to the matter, as Mr. Pennington had said, some time ago, and the correspondence which at that time had ensued between the council and himself was extremely unsatisfactory, and he could get no explanation of the question the council had submitted to the Lord Chief Justice. He wanted to know definitely whether this was a matter of guess, or whether the council had a list of figures as to how the funds should be proportioned.

Mr. PENNINGTON replied that the council had come to the conclusion, after very careful consideration, that it would be very inconvenient to submit to members as an account what was really nothing more than an estimate, and if Mr. Phillimore thought that that estimate ought to be published and circulated amongst the members he (Mr. Pennington) could say nothing upon the subject more than this, that he must obtain a resolution of the society to that effect. It would obviously be very inconvenient, and so the council thought, and that was the only answer he could give.

Mr. PHILLIMORE urged that the medical council gave similar information. Mr. Pennington had not answered his question as to the extraordinary increase which had taken place in the expenditure.

was

Mr. PENNINGTON said, with respect to the item for printing, that in 1884 the expenses of purchasing rules were not charged to this particular account. At present they were charged to it, and theretore it had necessarily increased by the amount expended. With regard to the increase in postages and sundries the answer But there was another answer, and that was that the expenditure had very much increased by reason of the large number of rules which it had been necessary to purchase and circulate. The County Court Rules, for instance, had been very expensive, and had cost many hundreds of pounds. The postage of these rules had also been a

the same.

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