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,Ju1y=s. 1887: j THE SOLICITORS’ JOURNAL. 6,3


PALLISER v. GUBNEY—C. A. No. 1 (sitting as a Divisional Court) 18th July. ’

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This was an appeal from the 'ud ment of the ‘ud ' London Court. The action was fhr 5217 10s., the pl-icegeof°ivili)eesi(i)ggli:<§ to the defendant's order. The defendant was a married woman who was said to be carrying on business as a Court dressmaker ' but there was no evidence that she was possessed of any separate property at the time when she ordered the wine. The judge gave judgment for the defendant It was argued on behalf of the appellant that the intention of the Married Women's Property Act, 1882, was to confer on every married woman the capacity of contracting so as to bind any separate property which she became possessed of, and that it was not necessary that she should have separate property at the time of contracting. Sub-sections 3 and 4 of section 1 were rehed on, and it was urged that the judgment of Pearson, 1,111 the case of Re Slml:e-spear‘, Dea/tin v. La/tin (33 \V. R. 741 30 Ch. D. 169), ought not to be followed. '

,T*'E C°‘*'m' (Lord Esriim, M.ft., and LINDLEY and LOPES, L JJ.) disinlisssd the appeal. The question whether the defendant was bound by E is_ceutract depended on the Married Women's Property Act, 1882. b9Gt10l1 1, sub-section 2, of that Act sa_id that a married woman should up cnlpable of entering into and rendering herself liable in respect of and

hut e extent of her separate property on any contract. The true conn) ttion of those words must be, in accordance with the decision of

eglei-so‘n,_ J., that a contract to bind a married woman must be a contract giibre into by her at the_time when she had enisting separate property.

ii -section 3 had been inserted to _meet a difficulty, which had been €:€V10l18ly felt, as to whether a married woman's separate property was

hund by her general engagements; and the meaning of it was that In ere any_ contract had been entered into by a married woman, that is,

{ii married woman having at the time separate property, that contract. s ould bind her separate property, whether the separate property was mentioned in the contract or not. And sub-section 4 meant that where a nlilamed woman having separate property entered into a contract, she ereby bound, not only her then existing property, but also any future iégpnrate property which she might acquire. Here there was no evidence this the defendant had any separate property at the time of entering into CB. contract. Therefore the judgment for the defendant was right.0L.\sEL, Hilbery; Gye. SOLICITORS, R. Chandler," G. S. Q H. Branrlon.

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dghig was an appeal against an order made by Chitty, J., restraining the en ant from committmg a breach of an agreement not to set up or fiiirfy on the business or profession of a surgeon, &c., within certain 0;!-iIiits.& %n October, 1885, the defendant, ll_I., entered into the employment bush; who were then carrying on in partnership, at Newtown, the the 45:8 n Dgeneral medical practitioners, as their salaried assistant. On he b 0 eoeniber. 188a, the defendant gave H. & P. a bond, by which mi ecannle bound to pay to tliem, their executors, administrators, or H £15e Wm °f 51.000 The bond contained the following recitals :— mimvrgas M. has lately been taken into the employment of H. K: P. as an B own _in their business or practice of surgeons, accoucheurs, and wlile °°“'1°5» carried on by them _in Newtown and its surroundings; and of Ions of the terms upon which M. was taken into the employment busi- - Was that he should not at any time set up or carry on the in ‘B13280 or profession of a surgeon, accoucheur, apothecary, or physician ma B Wn, or within ten miles thereof, and that he should enter into shauoxeciute these presents.” The condition of the bond was, “ that, if M. in 8;; Rt i_iny time hereafter, directly or indirectly, and either alone or om? _ership with or as assistant of any other person or persons, or SWBIWISB howsoever, set up or carry on the profession or business of a an geon, accoucheur, apothecary, or physician, or any branch thereof, or mznpmfefllional business connected therewith, within the town of NewH &,Por within ten miles thereof, without the consent in writing of £0} th t’! their executors, and administrators, or assigns, being first obtained pm “ Purpose; and if M. shall not, either by himself or by any other mu °“ °T Peiflolis, either on behalf of himself or any other person or per“: it 8117 time hereafter solicit the custom or support of any of the limos who are now, or may hereafter from time to time be, the us, me" °{' Patients of H. & P., their executors, administrators, or bung-15, 0! either o_f them, in or in connection with such profession or her e%l1as_afoi-esaid, or solicit any of such persons to discontinue his or eicheml} °F"1B & P., their executors, administrators, or assigns, or afiecg 31 flifim ,but so that nothing herein contained shall prejudice or rem _ ‘;J1'18_lit of & P., their executors, administrators, or assigns, to he1_ei‘:€Y mliinction any breach on the part of M. of the agreement “mi _e ore recited, nnd to recover damages ainst him, his executors, mk,nm°tmt°l5._0I assigns, for any antecedent&%reach thereof, in lieu of than §hPr°°"d111Bgainst him or them under the above-written bond), aha“ b e above-written bond shall be void and of no effect, or otherwise the met and remain lIJfllll force and virtue.” On the 2nd of May, 1887, for ",°"_h1P W118 dissolved by tho judgment of the court in an action up“ ts? '1_t1°11, and thenceforth H. & P. each carried on business as B “ Y 1:11 NB_Wfown. The defendant entered into the employment of H. homaflflfifi assistant, and P. brought this action to restrain the defendant the 815° ""5118, °ll the ground that he was thereby committing a breach of °'° °8reement. The only evidence of the agreement was the recital


‘ 0 of it contained in the bond. Chitty, J , granted an injunction and the gffendantappealed. It was argued on behalf of the defendant that the agreeeu WE" ‘ml? 11 ]_0int oue_-not joint and several—and was intended for the protection of the joint business only, and thatbusiness being now at an end, the plaintiff alone could not sue on the agreement; that acting as an assistant to another person was not a breach of an agreement not to “ set up or carry on the business or profession of a surgeon,” &c, ; and that the {nerds assistant of any other person or persons ” in the condition of the ond meant any person or persons other than the parties to the agreement. 811d did not apply to the acting as an assistant to one of those persons. _ Tun Conar or Arrsan (Corron, Bowax, and Far, L.J J .) aflirmed the decision, Co-i"ros,_L.J., said that it was necessary to look at the position of the parties at the time when the agreement was entered into. H. & P. were then carrying_o_n business in partnershi , but, though the partnership was for their joint lives, it was liable to he dissolved. They had a joint interest in the agreement, but each of them had also a separate interest in _the event of a dissolution of the partnership. That being so, his lordship thought that the proper construction of the agreement, which was evidently not fully recited in the bond, was that it was entered into by the defendant with H. 8: P. jointly and severally. Parke, B., said, in Sorrbia v. _P<irk (12 M. & W. 158), “ The rule is, that a covenant will be construedto be joint or several according tothe interest of the parties appearing upon the face of the deed, if the words are capable of that construction; not that it will be construed to be several by reason of several interests, if it be expressly joint.” And the rule was similarly stated in Sheppard's Touchstone, 7th ed., vol. 1, p. 166. In his lordship‘s opinion the court having only_ this recital before it, which both parties had admitted was the only evidence of the agreement, the agreement ought, having regard to the position of the parties, to be considered joint and several. Then it w_as said that the agreement being “ not to set up or carry on the business or profession of a surgeon,” &c., it was not a breach of it to actas assistant to another person who was carrying on such a business when the assistant had no interest in the profits of the business. His lordship thought this could not depend upon whether the assistant received only a salary. The case was quite different from that of a covenant not to carry on a trade, such as Allen v. Taylor (19 \V. R. 556). Such acovenant implied the carrying on of a trade in such a way as to share in the profit or loss. Here the words were “ business or profession,” and his lordship could not see how a man was the less carrying on " the business or profession of a surgeon” when he was only acting as assistant to another person than when he was doing so on his own account. And the word “ profession " was much more emphatic than the word "business." Tiowim and Fur, L.JJ., concurred.—Covssizr., Aston, Q.C., and Yale Lee; Ifomer, Q.C , and Alan Stewart. SOLICITORS, Bolton, Robbins, Burk, Q Go. ,' Talbot 5- Quayle.

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This was an appeal from a decision of Stirling, J . (35 W. R. 541), refusing to revoke a patent on the ground of “fraud.” Section 26 of the Patents, Designs, and Trade-Marks Act, 1883, provides that the revocation of a patent is to be obtained by petition instead of by the old writ of wire f1m'a.r. Sub-secrion4 of section 26 provides that the petition may be presented (c.) by “ any person alleging that the patent was obtained in fraud of his rights, or of the rights of any person under or though whom he claims,” and (d.) by " any person alleging that he, or any person under or through whom he claims, was the true inventor of any invention included in the claim of the patentee." The present petition was presented under (o). The petitioner, Avery, had a patent in America. In January, 1885 ,he executed a power of attorney to W. to apply for patents inEng1andand othsrlduropean countries,and also gave W. power to appoint a substitute. At the same time an agreement was entered into between Avery, W., and L. and B.. under which the four were to participate equally in the profits to be derived from licensing the use of and selling the patents in Europe. W. appointed L. his substitute; L. took out the patent, but in doing so he did not take it out as " a communication from abroad," but declared that he was himself the first and true inventor. _ A company was formed which obtained an assignment of the English patent rights. The petition alleged that, instead of obtaimug letters patent on behalf of the petitioner on a communication from_ abroad, \V. had conspired with L. to wrongfully and by fraud obtain from the Grown the grant of letters patent on behalf of himself as the true inventor. L. and \V. were respondents to the petition, and they resisted an order for revocation. B. and the company were also respondents, and they supported the petitioner. There was evidence that L. had taken out the patent as he did under the advice of a patent agent. Stirling, J ., held that there was no actual fraud, and that the fraud which is necessary for the revocation of a patent under sub-section 4 (0.) must be something more than a mistake or misconception; there must be some intention to commit a fraud on the petitioner, or an intention to derive some benefit _to which the person taking out the patent wan not entitled._ _He dismissed the petition, but without prejudice to the right of tho petitioner to present a fresh petition under Sub-8601210114 (d.)_, on the ground thathe was the true inventor. On behalf of the appellant it was urged tha_t it was notnccessary that anything should have been done with an intention to deceive or get an unfair benefit, but that in “fraud of rightsf’ included anything improperly done by an agent so as ‘to take away rights of his principal and occasion him loss. The declaration by_ L. that he was the true inventor was, in law, a fraud on the Crown, which would endanger the patent, and was, therefore, a fraud on the appellant's rights in the 1!iV0i1li1°!1

Ti-is COURT or Ar-rear. (Cori-ox, Bowiix, and Par, L.JJ.) afiifined the decision, reserving, as Stirling, J., had done, a right to the petitioner to


present a new petition under sub-section 4 (11.) Corrox, L.J., said that there was no evidence that L. had committed any fraud in fact; the evidence was the other way. In his 1ordship’s opinion, the mere fact tl_iat_an agent had made a mistake, even though it caused loss to the principal, was not enough to enable the court to say that there had been an actudone in fraud of the principal's rights. _In order that there might be fraud there must be something done with an intention to deprive the principal of his rights, or to give the agent a benefit. Bowex and Far, L.JJ., concurred.—Go1:.~'sai., Oswald and Boyer W. Wallace; Pochin ; Qraham Hastings, Q.C., and Yale Lee. SOLICITORS, Edmund Kimber; Aexsli gHowell.

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An inquiry having been directed in this action as to who was the heirat-law of the deceased, two persons brought in rival claims, which were investigated in chambers, and one of the claimants was found by the chief clerk to bethe heir-at-law. Thereupon the unsuccessful claimant took out a summons to vary the certificate by declaring him to be the heir-at-law, and the certiicate was varied accordingly, the court proceeding mainly on the ground that certain hearsay evidence which had been adduced in support of the rival claim was inadmissible without independent evidence that the deponent was a member of the deceased's family. The question then arose whether the claimant who had failed was entitled to his co.~ts out of the estate, or was liable to pay the costs occasioned by his claim.

KAY, J., held that there was no general rule that, on an inquiry as to who was heir-at-law or next of kin, a person who failed to establish his claim was entitled to have his costs out of the estate. On the contrary, the rule was correctly statcd in Seton on Decrees, 4th ed., p. 66, 67, that a claimant failing iii chambers to make out his claim might be ordered to pay the costs thereby occasioned. But this rule must be applied according to the circumstances of each case. In the present case the unsuccessful claimant would not have any costs of the inquiry, and must pay the costs of the summons to vary the chief clerk's finding.—Coc_\'si=:i., Millar, Q,.C , and Metliolii; Mnrtmi, Q.C., and Eyre," Vernon Smith; and 8. Stephens. Sotrciroas, Jemzinys, Son, 4- Burton ,- G. L. P. Eyrvit Co. ,Burton, Ycnln, Hart, Q Burton; R. Hewlett.

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This was a summons to allow the defendants’ objections to the taxation of their costs and to refer it buck to the taxing master to vary his certificate. The action was for partition of real estate devised bv a will which contained a power to appoint new trustees. By an indentiire of the 3rd of March, 1883, the donee of the power appointed the defendants trustees of the will in the place of the original trustees, who were dead. On the 2itli of March, 1885, an order was made in the action which, mm aim, dll'€0lZ!‘(l taxation of the costs of the parties, including in the costs of the defendants “ any costs, charges, and expenses properly incurred by them as trustees of the will of the testator beyond their costs of the action." On taxation the taxing master disallowed—first, payments made by the defendants in respect of expenses incurred by the original trustees before the 3rd of March, 1883. These payments had been made to the executor of the last surviving trustee, who refused to transfer the estate till he was_pai_d. They consisted of charges by the solicitor of the executor for windmg up and transferring the estate to the defendants Secondly, the costs of examining by their own solicitor into the condition of the trust funds—the details of which were excessively complicated— and the validity of their own appointment. Thirdly, the costs of ghe donee of the power, consisting of the hill of the solicitor employed by her and the original trustees relating to obtaining the consent of and appoint. ing thc new trustees. The taxing master did not go into the items, but dis. allowed all these casts on the ground that the order gave costs to the defendants only, and that that did not include the costs incurred before their appointment.

KAY, J -, said that lie had never before heard it disputed that where new trustees were appointed under a power contained in the ,instrument creating the trust, the coats of that appointment, includinglhose of thedonee of the power, ought to be paid out of the estate. On the first point the de_fe_nda.nts were perfectly right if the charges they paid were such 5;, the original trustees were entitled to make. It was for those who objected to the payment to shew that it was wrong, and they had not done so On the second point, it was not only the right, but the duty, of new gi-1189.955 to inquire into the condition of the estate of which they were to be 1;m.tee,, and to have the costs of transferring the estate to them treated, 35 cog“, é their appointment. On the third point, the costs of the donee on 1,1; 2° be paid out of the trust estate. The only way to get them was to 11%]; the new trustees for them, and if they paid them they were entitled to be 1paid out of the estate. The particular items would, of course be sub'eet to the taxing master’s discretion.—Coi'i\'si-11., G:or_/ye H¢,,,1¢,-1,0,, . L c

S0i.ici-i-ons, Itose Q Jolmum ; Bolton, Robbins, Q 1},,,.._ ' “ML

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186-2, by the allottees of fully paid-up shares, for rectification of the register of shareholders by striking out the applicants’ names therefrom and for re-issue to the applicants of new shares. It appeared that in March, 1883, an agreement was made between the applicants and the company for the erection by the applicants of certain buildings, and that the applicants should receive fully paid-up shares in part payment for their work. In August, 1883, the shares were issued to the applicants upon completion of the work. In August, 1836, it was ascertained that tho agreement had never been registered as provided for by section 20 of the Companies Act, 1867. It was submitted, on behalf of the applicants, that in order to obtain an order on the motion all that was required was evidence that the allottees were ignorant of the omission to register. Rs Danton Colliery 6'0. (22 W. R. Dig. 66, IS Eq. 16) ; Ra New Zcaland Kapariga Gold Jllining Co. (18 Eq. 17) ; Rn Drailwich Salt Co. (22 W. R. 767); and Ra Darlington Forge Co. (35 W. R. 53'i',_34 Ch. D. 522) were cited. The company appeared and raised no objection. It appeared that there were only two creditors of the company, one of whom was stated to assent to the application, and the other, a mortgagee, had not assented.

Cm-rrr, J ., said that he had sent for the aflidavits in Re New Zv/ilan_d Ifapanya Gold 00., which was the case chiefly relied upon by the applicants, and it appeared from them that in that case tnere was the strictest evidence of the solvency of the company. He should make auoider as asked upon production of evidence of the assent of the one creditor,_ and the order must also be served on the other creditor, with leave for him to move within three weeks to discharge it.—Cocsssi., Ranwr, Q,C., and F. J3. Palmer; G. P. C’. Lawrence. Souciroiis, Mackrcll, Jlaton, if Godler; Baker, Blalzcr, Q Hawcs.

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In this case a question arose as to the effect of the Judicature Act, 1873, upon a married woman's equity to a settlement. The plaintiff, who was then a spiuster, became, under the will of an uncle who died in I\‘oveniber, 1880, entitled to some leasehold houses and some shares in jointstock companies. In May, 1882, she married J., and he, in September, 1885, executed an assignment, by way of mortgage, of the houses and the shares to R. R., in October, 1885, commenced an action in the Queen's Bench Division against the wife, for the recovery of the title deeds relating to the houses and the certificates of the shares. The shares stood in the wife’s maiden name. The wife delivered a counter-claim by which she asserted that she had an equity to a settlement out of the property, and she brought this action in the Chancery Division against her husband and R. to enforce that equity. The actions were consolidated, and the consolidated action came on to be argued, on the question of law, whether such a right as the wife alleged could exist. On behalf of the defendants it was contended that the husband had alegfll right to the property by virtue of the marriage, and that, as he did not need the assistance of a court of equity to enforce his right, no equity to 8 settlement could exist. On behalf of the wife it was urged that since the Judicature Act every branch of the High Court is a court of equity as well as a. court of law, and that, in case of any conflict between the rules of equity and the rules of common law, the rules of equity are t0 prevail. Consequently, if a husband now came to a court of law to enforce his legal right to his wife’s property, that court would recognize her right to a settlement. And it did not signify whether the application to the court was made in the first instance by the husband or t e wife.

N ORTH, J ., held that there was no equity to a settlement. The husband had a legal interest in the leaseholds, and he was not claiming the_ass1stance of any court. Whether, if he were coming to the court to assist hini in enforcing his right, the wife would have any equity to a settlement it was not necessary to decide, though, in that case, there might be If 8°°d deal to be said in her favour. But, as he was not invoking the assistance of the court, it was clear that before the Judicature Act the wife Would have had no right to intercept his legal right, and the Judicature Act_ had made no difference. The shares stood in the same position. _ Either under the Companies Clauses Act, 1845, or under the Companlefi A03, 1862, the husband could enforce the registration of the shares in his own name without the wife’s assent, and in spite of her opposition.--Couxsal-1 (Jnzens-Harriy, Q.C., and Yale Lee ,- Uoalci-on, Q.C., and Gully. Soi.ici'i'011-Si E. Flux g Learlliittzr; Paltison, Wiyq, §- Co.

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The question in this case was whether a tenant for life of an undivided moiety of land had power to sell the land under the Settled Land Ach 1882. A testator by his will, made in 1552, devised real estate to trustees, on trust to pay the income to his wife for her life, and after her death on trust to divide the income between his sons James and John. in 9<l““1 shares, during their respective lives and after the death of either of thern on trust to divide the income unto and equally between the testatorfl surviving son and the issue then living of the deceased son (the issue to take the parent's share only), and after the death of the survivor Oi the testator’s sons, on trust to sell the property and to divide the P1'°°eed5 of sale, and the rents until sale, into two rqiial shares, and to PB!’ ‘me °f such shares to the issue of the son James and the other to the issue 05 the son John, in equal shares. But in caee the sons, or either of them, should die without leaving issue, then on trust to pay one moiety of the


7 July 23, I887. THE SOLICITORS’ JOURNAL. . g __,_ W _ 645


proceeds of sale, and of the rents until sale, to such person or perons
assuch son or sons so dying without issue should bequeath the same by his
will. The will did not contain any disposition of either moiety in case
of the sons, or either of them, dying without issue and without exercising
the power of appointment thus given to him. The testator died in April,
1852, and the wife died in April, 1876. The son, John, died in January,
1876, without having been married, and without having exercised the
power of appointment. His moiety of the estate accordingly descended
to the son ames, as undisposed of by the testator’s will. James had
issue. He sold the moiety which thus descended to him, and conveyed it
to the purchaser in fee. In August, 1886, the court appointed trustees of
the will for the purposes of the Settled Land Act. The son James gave
the trustees notice of his intention to sell the undivided moiety of the
land of which he was tenant for life under the will. The trustees took
out this summons to determine whether he was entitled to do this. Sub-
section 5 of section 2 of the Settled Land Act, 1882, provides that “ The
person who is for the time being, under a settlement, beneficially entitled
to possession of settled land for his life, is, for purposes of this Act, the
tenant for life of that land, and the tenant for life under that settlement.”
And by sub-section 6, “If, in any case, there are two or more persons
so entitled as tenants in common, or as joint tenants, or for other con-
current estates or interests, they together constitute the tenant for life for
purposes of this Act." By section 19, “ Where the settled land com-
prises an undivided share in land, or, under the settlement, the settled
land has come to be held in undivided shares, the tenant for life of an
undivided share may join or concur in any manner, and to any extent
necessary or proper for any purpose of this Act, with any person entitled
ll(:01'll,&Vll1g power or right of disposition of or over another undivided
s are.’

Nosrs, J., held that the tenant for life was not entitled to sell the settled moiety. He was not entitled to the beneficial possession of “ land ” for his life, but only to possession of an undivided moiety of land. Subsection 6 recognized a case in which there were tenants for life of undivided moieties of land, but it did not say that each of them should be a ‘_‘ tenant for life.” During the joint lives of the sons James and John neither of them could have sold alone, and if James could nothave sold alone during the life of John, it was not easy to see why he could sell alone when the other moiety had become vested in a stranger. Section 19 only provided that the tenant for life of an undivided share might “ join or concur ” with any person entitled to, &c., another undivided share. It was contended that that section did not prevent the tenant for life of an undivided moiety from actmg alone. If this had been intended the Legislature would have said so. The Legislature had taken care to protect the interests of persons _entitled in remainder, and there were obvious reasons rendering it undesirable in their interest that a tenant for life should have power to B611 an undivided moiety separately. In his 1ordship’s opinion the tenant for life could not sell without the concurrence of the owner of the other

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This was an originating summons raising points as to the construction of is will. It came on for hearing in January, 1886, when some of the P°11its were disposed of and certain inquiries were directed. Further fiousideration was not adjourned, but liberty to apply was reserved. The "1‘l\"l'i@fi hflviug been answered, some questions of construction remained to be argued, and application was made to the court for directions as to "18 mode of bringing on the case for argument.

N°llTH, J-, said that the case might be placed in the paper on the 118day 011 which he should take further considerations.—Cousssi., Farivell. s°“°"°R@, Pritcliard, E/old, g U0.

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Posr OFFICE—TELEGRAM Sex-r BY lllisriii-is as A Paizss MBSSAGE—EXCESS

This was an appeal from a judgment of the Judge of the City of London Court. The action was for 3s. 6d., excess charge on a telegraphic message. The defendant handed in at a post office a message on a press messagi form with three addresses. By the rules of the General Post Oflice, a press message can only be addressed to newspapers, clubs, or agencies registered at the General Post Otflce for the receipt of telegrams. The charge for press messages is at the rate of one shilling for a hundred words. Two of the addresses given by the defendant were registered addresses; but the third, that of the Central Press, was not registered. This was not noticed by the clerk, who demanded 2s. 441., and sent the telegram as a press message. Subsequently the Post Oflioe demanded 3s. 6d., the excess charge. The defendant refusing to pay, the Postmaster-General brought this action, and obtained judgment. It was argued on behalf of the appellant that the question whether any address was registered was ii matter within the knowledge of the Post Ofiice, and that, after the message had been sent, no claim could rightly be made for any excess.

Tire COURT (Lord Esnsa, M.R., LiNi>La\' and Lorns, L.JJ.) dismissed the appeal. The clerk had made a mistake, but that did not operate as an estoppel. He had not made any representation, and, if he had, he had no authority to do SO.—C0l'NSBL, 11'. C’. Ric/mrrls; Uaeserley. SOLICITORS, J. G. Lemon ; Solicitor to the Post Ofice.

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This was an action brought against Lord Truro, the Registrar of the llliddlesex Registry, by Mr. F. K. Munton, for ii _mamz'amue to compel the registrar to register a memorial, the oath relating to_ which had been taken by Mr. Miinton as a London commissioner to administer o_atl_is; and it raised the question of the right to administer the oath verifying the memorial, the registrar contending that the oath can only be administered at the oilice of the Middlesex Registry by one of the otlicials there.

Mr. Munton’s affidavit in support of the application for niandaznur stated the material facts as follows :—1. On the 13th day of May, 188i, I attended at the hliddlesex Registry, 12, Great J ames-street, Bedford-row, W.C., for the purpose of registering a memorial of an indenture dated the 8th day of July, 1885, between the Duke of Northumberland of the one part and myself and another of the other part, bemg a conveyance of certain freehold property in the county of MiddleseX,_ Whh_me!1101'l*11 18 shewn to me at the time of swearing this my affidavit, and is marked 2. The defendant Lord Truro is the only registrar. On the occasion in question I saw Mr. Stahlschmidt, the deputy-reglstrflfi and I tendefed t° him for registration the said memorial with the conveyance, offering to pay the proper fees thereon, but the said deputy-registrar decllnlfd go receive the said memorial on the ground that the witness deposing-It eae 0 was resident in London,_and that his deposition taken before a hon oai commissioner to administer oaths, as shewn on the back cg t e_ia1 memorial, was inadmissible. 4. In the said oflice of the sai l'Egl51fi\1' there is a writ ten announcement, and the said deputy-reg_istr_ar_person:h yr stated, that the form of taking the oath out of London is B51111 ar tp a adopted in the present instance, except that the registry oes i_io_ (LVN; require commissioners to describe themselves as more than rfimmissfio eéih to administer oaths in the Supreme Court of Judicature. any 111) 21;! ofiicers are not, and never were, either masters extraordinary or 31 $11; mg commissioners, but became commissioners for all the dlViBl0l1:f \the6Acts J iidicature Acts from the fact that at the time of the passingl knowled e they held common law commissions._ I speak from peasféllflut re istil;

I m self am one of such commissioners .> The sol 9P 3" B

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causes an ma B - f
' tion now came on or
a mmidamus was granted in May last, and the ques
argument‘ be lute STEPHEN J . said
THE Couar made the rule for a mandamus a 0 h wér cit the

it appeared clear upon the Act 16 8: 17 Vict. that t e po


masters extraordinary under the Act of Anne had been transferred to the present commissioners for taking oaths. Wii.i.s, J ., concurred, and said that as the masters extraordinary had formerly power to take the oath to the memorial, the commissioners now had the power.—CoDNszL, Reid, Q.C., and llurray ; C/mnnell, Q.C., and I‘rei'cZ_1/an.


THE report of the Committee on the Central Office of the Supreme Court has just been published. The conclusions arrived at by the committee ai-e:-

“ I. That a thorough re-organization of the Central Office is required.

" 2. That structural changes iii the Royal Courts of Justice (which do not appear to present any diificulty) will be required for that purpose.

“3. That the number of eighteen masters provided by the Ofiticers Act, 1879, is excessive.

“ 4. That certain duties now performed by masters might be performed by other masters.

“ 5. That the number of clerks of higher grades might, upon 1e-organization, be materially reduced.

“ 6. That all oificers should be in attendance throughout the ofiice hours, and that some effective supervision should be devised to secure this attendance."

The effect of the first recommendation, if carried into effect, will be to divide the clerical staff into three grades—the first class, equivalent to managing clerks to solicitors, receiving a salary of £500, rising to £600. Thececond and third class clerks, whose duties are puiely clerical, will receive respectively £250, rising to £400, and £100, rising to £250.

The structural alterations mentioned in the second recommendation have been carried into effect.

When the committee came to consider the question of the number of masters they seem to have had a somewhat difiicult problem to grapple with. Reference is made toths irre(g;ilarity in the hours of attendance and the almost uniform recurrence of ys of absence in the case of some of the masters. The committee recommend that all future appointments to the o_filce of master should, as in the case of chief clerks, be subject to the condition that they should retire on a pension on attaining the age of seventy, unless, for special reasons, the appointing authorities should allow the_m_to continue their duties for another five years. The committee are of opinion (to which they attach considerable weight on account of its bearing on the question of numbers) that the masters should distribute their work over the whole of the oflico hours. The committee think that only fifteen masters are required for the conduct of the Central Ofllce, with salaries of £1,200 rising, after three years, to £1,500.

The effect of the fifth recommendation, if carried into effect, would be to reduce tho number of first-class clerks from seventeen to ten, and of the second. class from forty-one to twenty-nine. A scheme for the reOIQBDIEBCIOB of the various ofilces, based upon suggestions made by Sir Frederick Pollock and_l\Iastei' Jenkins, is, however, contained in the report, the effect of which would be to inaks the total number of clerks qgpgty-three—viz., ten iirst class, twenty-nine second, and thirty-four

The committee recommend that the retirement of unnecessary ofiicers should be effected as soon as practicable, and that for this purpose the committee of masters named. in the report should be empowered to call upon any ofilcer who is incapacitated by age, infirmity, or other cause for £l161€IIl(:l6Dl,dlSCIll?.1'gB of his duties to retire upon the pension for which ups ength of service qualifies him, and to offer _to such other officers as

ey_niay select p€I‘|1111i5I0l1 to retire on the abohtion of their ofllce on the special terms of pension reserved for such retirement by section 7 of the Superannuation Act The committee believe that by these means and by £110 vacancies from death and other natural causes, the office will shortly

tefireuuced to the 1'equired_ hmit without the necessity of compelling any 3 oer to i-etire_compulsorily who is able and willing to discharge his

utie_s to the satisfaction of the heads of the department. t Vgitliregard to circuits, the committee think (l) that no clerk of assizs O _e ere‘after appointed should be a solicitor practising within the circuit; (2, that every _clerk of assize or other ofllccr to be hereafter 8Ppo1u_ted should do his work in person; (3) that no change should be made in existing salaries, but thatin_ future appointments no clerk of assme, except on the Northern Circuit, should have more than £500 a year and no other oillcer more than £300 iiyear; and (-1) that for the future, when vacancies occur, a clerk of assize and two oilicei-ii with 3 bailiff at £100 a year, would be sufficient for each circuit for all pllrpoaeg including the duty of swearing witnesses, which is clearly “ analogous‘; to the other duties. They also suggest better Brlangements for the 56. curity and custody of records, indictments, and other documents from each circuit. The committee have not come to any conclusion as to whether it would be a better arrangement to amalgamatc the staff of circuit ofiicers with the Central Oiilco. They suggest an inquiry as to the possibility of utilizing the different legal ofilcers who perform dutigg in the various assize towns, such as district registrars of the High Con;-1; 3 d of the Probate Division. This matter formed no part of the refs It the committee, but it appeared to them that a change in this dlagdeti 0 might be productive of efficiency and economy. on

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The following are further extracts from the report of council, continued from p. 632.

Agricullural Holding-1 (England) Act, l883—.Ba|'liflIi' Fees.—Ll-let year the council referred to the fact that they had communicated with the provincial law societies and numerous solicitors on the subject oi the appropriation by the bailiff of the statutory poundage on levying distress on agricultural holdings. After careful consideration of the various opinions they collected, they came to the conclusion that the percentage was not payable to the bailiff who executed the distress, but to the landlord. In pursuance of this opinion, the council took up ll test case, which was heard at the Wantage County Court, when judgment was given in accordance with this view. The Cornwall Law Society called the attention of the council to another case in which the county court judge at St. Austell gave a contrary decision. The council supported an appeal against this decision, and, in the result, their view has been sustained by the Queen's Bench Division.

Deal/1 Duti'ea—Claim.i of f/:0 C'rown.—In their last report the council referred to the steps which they, with the assistance cf Mr. Gregory, had taken for limiting the claims of the Crown with regard to death duties, and pointed out the hardships to which trustees, executors, and others liable for the payment of these duties were exposed by the present law. At the time, the Government which has iince gone out of ciiice undertook to introduce the clause proposed by Mr. Gregory into an omnibus Bill. The council brought the question under the notice of the present Chancellor of the Exchequer, who has promised to give it careful consideration.

0oun.~wl's CIm‘ks' Fm.-—In July, 1886, the council called the attention of the Bar Committee to the fact that some barristers’ clerks were in the habit of soliciting and pressing for payment of clerks’ fees in excess of those regulated and allowed by the Rules of the Supreme Court, 1883. In the opinion of the council, solicitors ought to adhere to the rules instituted for their guidance by the proper authorities and for the public good. In many instances, however, solicitors have to choose between submitting to a trifling imposition or raising at a critical juncture a petty and irritating question, and find it expedient, as the lesser evil, to yield. This places solicitors in a false position. N o clerks‘ fees paid in excess of the allowance under the rules are recoverable on taxation even as between solicitor and client, and, if questioned, would have to come out of the B0lIClB01':8 own pocket. The council feltthat solicitors ought to be relieved from this embarrassment, and they suggested to the Bar Committee that this could properly and easily be accomplished if the Bar Committee would obtain the establishment of a rule that barristers’ clerks should not ask for nor accept gratuities beyond those allowed by the scale. The Bar Committee agreed with the council that those rules ought to be adhered to, and they accordingly requested members of the bar to call their clerks‘ attention to the matter. _

.RC_/ft-YIIET Fm to Culmsel.—In J une, 1886, the council called the attention of the Bar Committee to the decisions of the late Mr. Justice Pearson and the Court of Appeal in the case of Re Harrison (Weekly Notes, 24th April. 1886, p. 85, and 5th June, 1880, p. 104), suggesting the advisability of some concurrent or joint communication on the subject being mnflfll-0 the Rule Committee of the Judges on behalf of the bar and the solicitors. The droisions of the judge of first instance, and of the Court of Appeal, were based on the Rule of 1883 beingimperative, and the absence of power for the court or the taxing master to allow more than the prescribed amounts without satisfactory evidence or authority from the client to pay the higher fees. No comment on the rules is necessary as far as regards the taxaiion of costs between party and party, but the council consider that it is manifestly inconvenient and inconsistent that the taxing master should have no discretion in this respect when taxing costs as between solicitor and client. In practice it is extremely iiiconveniciit and often impossible for solicitors, during the pl’°BI°" of a. contentious business, to obtain express authority on such a matterThe client is often absent, and at other times is in a state of excitement, or occupied with the exigencies of the case; and it not unfrequently happens that during the trial questions of character or otherwise arise which greatly alter the aspect of the matter in litigation. In such circumstances the solicitor is practically compelled, in the interests of I115 client, to act on his own responsibility. Even between barristers B114 solicitors it is often impossible, during the course of a trial. to adjllflfi QM refreshers, which are frequently left to be dealt with in accordance Wllll usage and good faith. It seems difficult to exaggerate the objections to questions of implied authority being left, after a considerable lapfle °t time, to be decided by the recollection of the parties interested as W11“ took place when their minds were chiefly occupied with more excl?-1118 find more interesting matters. The fees marked on the brief, the number of Elle consultations held, the witnesses to be subpoenaed, and a variet.Y °f, °flm' items of expenditure are left to the discretion of the solicitor, subject to the decision of the taxing master as to whether or not the discrei-1011 P" been rightly exercised, and it is diilicult to understand why an iufiexiblfi rule should be applied to rcfrsshers, the amount of which must oflell vary through circumstances which could not have been foreseen. Such B discussion as that which arose in the case of R: .llfl7“I'i801l cannot be otherwlso than distasteful both to the bar and solicitors, and the council felt thatlfi was a subject in which united action should be taken by the Bar Committee and themselves. The Bar Committee concurred in tho view £8-ken W the council, and a joint letter was addressed to the Lord Chancellor 011 the subject for submission to the Rule Committee of J ridges, which l€<1 to a rule being passed to meet the difiiculty.



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Delays in tlia Tawlioii of Costs in the Cliaiicery and Queen's Bench Divisions. --The attention of the council having been called to the delays in the taxation of costs in the Chancery and Queen's Bench Divisions of the High Court of Justice, they, in conjunction with members of the society having great practical knowlege of the subject, have carefully considered the evils complained of. They find that in the Chancery Division there is no reasonable ground of complaint, except with regard to some masters’ offices. In all the other oifices appointments can readily be obtained, and the taxation of costs proceeds with reasonable speed. It appears that the existing arrangements are in themselves well conceived, and are not the cause of the block which exists. It is, however, the fact that the business gets much in arrenr in some oflices. and in consequence the complaints of the profession are loud and well founded. It is obvious that inasmuch as most of the masters are able to get their work done, there must be something defective in the oifices of those masters who fail to do so. The council do not consider that it is necessary that the number of taxing masters in the Chancery Division should be increased, as if all the masters discharged their duties with reasonable despatch there would be no arrears. The council, therefore, suggest that inquiry should be made as to the position of the taxations in the oifices of several masters, and that directions should be given that the arrears should be dis osed of, and that in future the work should be required togekept down to within reasonable limits. In the meantime, to relieve the prosent block, an arrangement should be made for transferring to the other masters a certain proportion of the bills now awaiting taxation in the offices that are in arrears, and that similar transfers should, when necessary, be resorted to and carried out by a quorum of three of the senior masters, or that, in the alternavive, some alteration should be made in the mode of assigning the taxatioiis, until the work in the several oflices should be equalized. The council also suggest that the objections totlie master’s taxation should be adjourned to the judge in chambers, who should be attended by the master, to whom the judge should give directions as to the mode in which objections should be dealt with. That all the masters ought to be required to be in attendance every day from ten till four, and that a master in the Chancery Division should take daily, without formal appointments, all iaxutions in small matters ; and that, in giving appointments to proceed with taxation, the morning from ten to one o'clock should be devoted to taxation of bills in small matters, taking up but little time; and that the afternoon, from two to four, should be given up to long appointments ; and that queries upon bills should be disposed of any day during such time as the master or his clerk are not actually engaged with parties before them. It was also suggested that in view of the arrears of bills which at the commencement of the Long Vacation remain undisposed of, each master should, before closing his office for the Long Vacation, report to the Lord Chancellor that all the bills left in his office had been taxed and disposed of, or should append a schedule of those bills which had not been taxed, and giving the reason why they had not been dealt with. With regard to taxations in the Queen's Bench Division, there is no delay in getting short bills taxed either in term or in the Long Vacation; but, owing mainly to the system of allotting the taxation to the particular master to whom the action has been referred, and who has consequently to deal with all applications in the action, there is delay in getting long bills taxed. During the Long Vacation there is only one taxing master sitting, whose time is fully occupied in dealing with short taxations, and it is therefore impossible to get long bills taxed. The council suggest that the best course to adopt would be to assign three masters to each division (one each for cases from A to F, from G to N, and from O to Z), and that they should attend in the same division every ‘mine’ during the year. Further, that the masters should be required to attend at the opening of the offices at ten o'clock, and stay till four o'clock, and that there should be three masters in daily attendance during the whole of the Long Vacation. The taxation of costs by one particular master to whom the action has been assigned should be abolished, subJsct, however, to power being given in special cases where the sitting master may think it necessary to refer to the particular master to whom the action has been assigned any question that may arise upon the taxation of the costs. The council do not think any increase in the number of taxing masters either in the Chancery or Common Law Divisions necessary, but they recommend that, in order to relieve the masters from all inere routine business, such as is involved in the length of documents, lists of attendances, and the adjustment of flxed scale charges in party lmd Pflrty costs, this vouching shall be done by the master’s principal clerk in the presence of the parties, who should have liberty to resort to the master upon any point on which they were dissatisfied with what the clerk had done, and when discussing the principle of the propriety of_ any allowance or disallowance. With regard to the Common Law Divisions, tliecouncil recommend that an additional clerk should be allowed in each division to assist the master in going through small bills, such as costs in Judgments under order 14, costs on the discontinuance of an action, or on the acceptance of money paid into court before notice of trial, and costs °1 “_PP9a1 to the judge.

_l.ibrary.—On the 18th of December, 1885 the council requested the Llbmri’ Committee to consider and report on the library. The committee's Npvit was laid before the council on the 28th of May, 1886, and adopted ; and it was referred back to the committee to carry their W8B°5ti°n5 flu g1°s¢l1@ral improvement of the library into efiect. One of the 8113565

ons was that it would be desirable to have a report on the library from some well-known and com eteiit librarian. The committee accordingly consulted Mr. H. R. Tedger, the librarian of the Atheneeum Club, Pall M411, 88 to the provision made in the library with regard to the various d°P"l=l11@iits of law and literature, and as to the accommodation for the members and subscribers. Mr. Tedder sent in his report on the library to the committee on the 4th of November, 1886, and on the 26th of the


same month the committee presented to the council a report on some matters of a pressing nature, the most important of these being the precautions necessary to be taken in the society's building to prevent a flre breaking out, which subject had been previously brought before the council by the secretary. The committee suggested that they should be authorised to spend a sum not exceeding £100 for the purpose of providing extinction buckets and hose, to be placed in convenient parts of the building, in accordance with the advice of Mr. Swanton, Superintendent of the London Salvage Corps. The council having given the authority suggested by the committee, the appliances specified above have been since placed in all parts of the buil ing, including the library. Two of the suggestions contained in the report of the committee were : That the students or subscribers to the library should occupy the north wing of the library only, and that the south wing should be made more comfortable for the use of the members by the purchase of additional furniture, rearrangement of the existing furniture, and laying down Turkey carpets. These recommendations were referred back to the committee by the council, to be considered in connection with a memorial on the same subject, which had been presented by 50 members of the society. On the ‘lth of December, 1886, an interview took place between the committee and a deputation of four of the memorialists, when the president of the council informed the deputation that most of the suggestions contained in the memorial had been considered and dealt with by the council before the receipt of the memorial. The following are the chief alterations and improvements in the library, which have been either already carried out or will be completed in the course of a few weeks :—

1. The students will be admitted to the north wing only, the middll)e of the library and the south wing being reserved for the use of mem ers.

2. The arrangement in the south wing is to be altered by substituting small tables for the two large tables which were there formerly, by covering the floor with Turkey carpet, and by placing in the wing three large oak bookcases, in one of which will be placed the most valuable of the books, known as the Mendham collection, all of which were formerly in the examination hall. The council will avail themselves of the increased accommodation to buy many new books in the different departments of literature in which the library is at present weak.

3. A room has been made for the librarian, who is engaged on the compilation of a new catalogue of the books in the library. It is expected that this catalogue will be completed in about twelve months’ time.

Hatters relating ta Solicitors.—During the past year 21 solicitors have at the instance of the society been struck off the roll, and two have been suspended. Other cases are now pending. The council have during the same period obtained convictions against unqualified persons in 18 cases under the 12th section of the Solicitors Act of 1874 (37 & 38 Vict. c. 8), and fines have been inflicted in all cases. In some cases the defendants have not paid, and they have in consequence been committed to prison for various terms.

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Hoxociis Eirziiiinarron.

June, 1881.

At the examination for honours of candidates for admission on the
roll of solicitors of the Supreme Court, t_he examination committee recom-
mended the following gentlemen as being entitled to honorary distinc-
t' :—-

lon Finer Cnsss.
[In order of Merit.] _ _

John Leonard Walker, who served his clerkship with Messrs. Gibson,
Pybus, 8: Pybus, of Newcastle-on-Tyne. _ _ _

Richard Frederick Baker Gabb, who served his clerkship with Messrs. Gabb & Walford of A ergavenny. _ _ _

John White, who served his clerkship with Mr. John White, of the firm of Messrs. White & Co., of London. _ _

Henry William Michelmore, who served his clerkship with Messrs. Battishill & Houlditch, of Exeter; and Messrs. Ford, Lloyd, Bartlett, & Michelmore, of London. _ _

Arthur Henry Emanuel, who served his clerkship with Mr. Joe
Emanuel, of London.

[In Alphabetical Orde_r.] _ _

Sydney Cartwright, who served his clerkship with Mr. Alfred Dickey
Faulkner of London. _ _ _

John Lierbert Dennis, who served his_clerkship with Mr. Robert Cresswell Burrows, of the firm of Messrs. Ellison Bui'row_s, of_ Cambridge.

Lawrence Long Maudesley, who served his clerkship with Mr. Samue Wiggins, of the firm of Messrs. R. Miller, Wiggins, 8: Naylor, o f L(:l]o(liiiLI*Iichols who served his clerkship with Mr. Charles John Collins Prichard, of the firm of Messrs. Fussell, Prichard, Henderson, 8: Wall, of Bristol ; and Messrs. Clarke, Woodcock, & Ryland, of London. _

Ernest Wilson Pierce, who served his clerkship with Mr. Thos. Martin, of the firm of Messrs. T. Martin, Webb, & Hine, of Liverpool; and Mr. J, H. Lydall of London. _ _ _ _

Arthur Epigst (‘any grifichard, who served his clership with Mr. William

Id , i r e . _ _ ‘V,?OhllI(i)nJfl(iJ1€SI'8W:th01'D, who served his clerkship with ML J°B°Ph

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