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ground of the decision in Exc parte Goreley, to depart from a doctrine which really rests only on the decision of

SEPARATE ESTATE. a court of co-ordinate jurisdiction, and, as Mr. Dart has The protection originally afforded to married women said, could not be acted on for his own benefit by any under the equitable doctrine of separate use seems, by honest man.

recent decisions, to have been somewhat disturbed. It was a natural corollary from that doctrine that all

engagements which a married woman might be fairly THE DECISION of the Court of Appeal on Tuesday taken as having contracted on the credit of her separate last in the case of Tamplin v. James, comes oppor- property should be satisfied out of it; but the creditors tunely after our recent remarks on plans annexed of married women, proceeding, as was to be expected, to particulars of sale. In this case there was no to press the question as to what is to be taken as separate mistake in the plan, which showed the exact bound- property, so as to be applicable under this corollary in aries of the property to be sold. It was referred to satisfaction of their claims, appear at length to have got in the particulars, and was produced at the sale. But that question settled in their own favour to a degree in the course of the festive proceedings which often which may almost defeat the purpose of the settlement accompany a country sale by auction, a glass of sherry under which the separate property is created. In was spilt over the map; the auctioneer's clerk covered Vaughan v. Vanderstegen 2 W. R. 599, 2 Dr. 363), Vicethe map with blotting-paper to dry the stain, and the Chancellor Kindersley pointed out with great clear. purchaser did not inspect the map. It appeared that ness that the principle of separate use, and the conwhen he made his bid he was under the bona fide im- sequent liability of a married woman on a contract, pression that some gardens, which did not belong to the was applicable to the right of property only; and vendors but had been occupied by the tenants of the that power exercisable by a married woman, houses sold, formed part of the property sold. The being no peculiar creation of a court of equity, had no particulars of sale were perfectly accurate. The court relation to the doctrine of separate use. He held that held that the defendant, not having taken the trouble when such a woman had a separate estate for her life, to look at the particulars of sale, was not entitled to with a general power of appointment over the corpus assert that he thought that the gardens were included in after her decease, her creditors could not (except in the what he was buying, and he must be held to his bargain. special case of fraud, immaterial to be here noticed) It is comforting to learn that the vendor is not bound establish any claim against anything but her life interest, to dispel the misapprehensions of intending purchasers. for that her capacity in equity to contract was the cor

relative of the special right of property which equity had

conferred upon her, and which was limited to her life IT IS EXPECTED that the refreshment-room in the interest: _And in this view he also held that it was imRoyal Courts of Justice will be opened on or about the vivos or only by will. It is clear that if this be the

material whether the power was exercisable by act inter 3rd of August. Tenders for the supply of refreshments correct view, the general rule which, in the case of a man are now being advertised for.

or a feme sole, says that property appointed under & general power of appointment by will shall, on the failure of the general assets of the appointor, be applied in

satisfaction of his debts, on the ground that he must be The Albany Law Journal cites from another American just before he is generous, has no application at all, bejournal a case in which the question arose whether a tele

cause the claim against the married woman is ex hypothesi graph operator could be compelled by subpæna to produce not a debt, except in so far as equity in vesting property a dispatch sent by the defendant in a suit for divorce to her in the woman has given her the means of satisfying it. alleged paramour. The telegraph company asked that the But Vice-Chancellor Kindersley's decision, although operator might be excused from obeying the subpæna, on the it was followed in several cases, was dissented from in ground that they were bound to their customers to keep all Johnson v. Gallagher (9 W. R. 506, 3 De G. F. & J. dispatches secret. The judge held that telegrams were not 494), and was finally overruled by the judgment of the as such privileged communications, but were subject to

Privy Council (delivered by James, L.J.) in London compulsory production in the same manner as letters ; that

Chartered Bank of Australia v. Lemprière (21 W. R. a telegram in charge of a company might be reached by the courts in the same manner as a letter in the hands of &

513, L. R. 4'P. C. 572), which laid down the rule that a messenger. If a dispatch is relevant and competent evidence,

trust for a married woman for her separate use during and is described with sufficient certainty in the subpæna, her life, and then as she should, notwithstanding coverthe company cannot refuse to produce it. In a case like ture, by deed or will appoint, and, in default of appoint. the present, public policy does not require that any means of

ment for her executors or administrators, is a trust of communication should be protected against examination. the corpus of the property for her separate use for all The committee of the Faculty of Advocates in Scotland satisfied that, on the weight of authority and on prin.

purposes. “Their lordships," says the judgment, “ are appointed to consider the Employers' Liability. Bill say ciple, they ought to treat this as, what in common in their report :-“A minority of the committee are of opinion that the Bill altogether is of a retrograde character.

sense and to common apprehension it would be, an absoThe law has of late years been advancing towards the rule

lute gift to the sole and separate use of the lady. The that fault shall impose an obligation for redress on the authors

words are an expansion and expression of what would of the fault alone, and that rule is regarded by the minority as

be implied in the words 'sole and separate use'; and a sounder rule than that now sought to be introduced. But they conceive themselves at liberty to hold that such a the committee were of opinion that it would have been better, form of gift to a married

woman without any if practicable, to have protected workmen from the results restraint on anticipation vests, in equity, the entire of injury sustained in the course of their employment by a corpus in her for all purposes, as fully as a similar gift system of insurance, to wbich both workmen and employers to a man would vest it in him." The property was should be bound to contribute, than by a legislative measure like the present Bill. The Bill makes no provision against by the lady with her banker.

accordingly held liable to satisfy a parol contract made the employers contracting with their workmen that they shall not be liable for damage sustained by the workmen

through by act inter vivos, and although it only alluded in

In that case the settlement provided for a disposition the fault of fellow-servants of whatever grade, and the committeo do not suggest that any such restriction should be

terms to one mode of such disposition—namely, by imposed on freedom of contract. But no doubt employers deed—the court thought that, having a present absolute will take advantage of this to protect themselves; and it is

power of disposal, the woman must be taken for all in view of this that the commi would urge the considera- purposes to have the absolute property, and must theretion of an insurance system.”

fore be able to bind herself in respect to it in any way?

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she pleased. But in the recent case of In re Harvey's why the law should not imply a term in the contract that Estate (28 W. R. 73, L. R. 13 Ch. D. 216), Vice-Chan the master should be responsible. We doubt whether cellor Hall goes much beyond this, for he lays it down the reason which actually governs in the case of the that, although the settlement gives a power of appoint- friend being driven in the master's carriage is that the ment by will only, the property is liable to the general friend has not, in fact, made it a term of the relation engagements of the married woman after her decease that the master should be responsible. In truth, neither assuming that she has exercised the power—in the same the friend nor the master thought of the matter at all. way that it would be in the case of a man or a feme The law does not make it a term of the relation, because sole.

it is not just that it should be so. The question that It does not appear to us that his lordship’s judgment any plain man not versed in the law of contract or in necessarily follows from any principle laid down in the legal abstractions will ask himself is why the master case before the Privy Council. The observation sof should be responsible to an outsider and not to his own Lord Justice James which we have quoted seem to show servant, and we do not believe the Lord Justice's answer clearly enough that it was considered there that an will be satisfactory to him. We do not think that in absolute property was vested in the woman; and if that substance the matter is one of contract at all, any more was so, there could be no question as to her power to than the carrier's liability as an insurer is really a bind it by her general engagements. It may be reason. matter of contract in the sense that carriers originable to treat the corpus as her property when she has a ally intended to be liable. Unless a better present power of irrevocably disposing of it. It is a differ answer is capable of being given to the question why ent thing altogether to treat it as her property when the the master is not liable to the servant than that the sersettlement, by making the power testamentary, expressly vant did not expressly contract for his liability, the says that she is to have no power of disposition in her answer will not be satisfactory. If the master were not lifetime at all; and we therefore venture to doubt the responsible to any one in the absence of some actual soundness of the Vice-Chancellor's decision. But it well negligence on his part, no question of course would arise, indicates the current tendency to treat a married woman, but being responsible to an outsider, the question that in so far as she is entitled to any control over property, in substance arises is, What is the substantial distinction as being entitled to no immunity which would not be between the position of an outsider and a servant in accorded to her if unmarried.

case the

virtue of which it is just that in the one
master should be responsible, and in the other not? We
have frequently indicated what, in our opinion, that dis-
tinction is, and we will not repeat at length what we

have said before. To our thinking, the distinction LORD JUSTICE BRAMWELL ON THE

broadly is that the operation which the master intrusts EMPLOYERS' LIABILITY BILL.

to the fellow-servant is carried on for the joint benefit of The letter recently addressed by Lord Justice Bramwell

the servant and himself. The servant is as much a party to Sir Henry Jackson is a very powerful piece of reason.

to its being so intrusted as the master. The outsider ing. We believe, however, that legislation of some sort

may say that he has nothing to do with the master's has become inevitable

, both parties being pledged to it, trusting to the coachman to drive his carriage, and that We are not very certain that there ought to be any

if the master for whose benefit the carriage is driven alteration of the present law, but we think it may be

does not drive it himself, he ought to be responsible for that, to some extent, there should be an alteration in the it seems to us, in justice lie in the mouth of the foot

the man who does. This line of argument does not, as direction of limiting the doctrine of common employment, and also of making the master responsible for the

man who receives wages for standing behind the carriage negligence of what has been called the vice-master. But driven by a coachman. Unless a master delegated acts

which at the time he hired himself he knew would be the distinction which we have always drawn between the outside public and servants is a distinction which, in our

to servants, the whole system under which other seropinion, justifies the existing law in the main, and con.

vants' services become requisite and are sought for could sequently we are not convinced that any very sweeping servant from that of an outsider on broad and substan

not exist. This seems to us to distinguish the case of a alteration will be beneficial. A great part of the Lord Justice's letter is taken up with the demolition of a

tial grounds, and this distinction lies close to the fallacy which, according to his view, lies at the bottom

evil of the economical objection to any sweeping of much of the argument in favour of the alteration of

alteration of the law. If the master's responsibility is the law. The idea which he considers fallacious is the

not very carefully limited and defined, those enterprizes idea that the law generally makes the master responsible which exist for the joint benefit of the master and serfor the negligence of his servant, and that the non

vants will be crippled and interfered with, and the serliability for negligence of a fellow-servant is an exception master's profits, will in the end be injured. One of the

vants, whose wages depend upon them as much as the to the general rule. The way in which the learned Lord Justice puts it seems to be this. The responsibility of provisions of the proposed Act seems to us to point to a :, the master for the negligent acts of his servant within

sense on the part of its promoters that the change is of the scope of his employment is not general, but only should have a cause of action against his master for negli.

a somewhat doubtful nature. If it be just that a servant exists when the person injured is one of the outside world. Where there is any relation between the master

gence of a fellow-servant in the cases specified, on what and the person injured, the master is not responsible tion should be limited to so many years' wages ? We

principle can it be right that the amount of compensaunless such responsibility is one of the terms of the relation. For instance, the master is not liable to a

certainly fail to see the justice of this, assuming that the friend being driven in his carriage who is injured by change proposed by the Bill is just. It seems to be a the negligence of his coachman. So the servant has no

distinction between actions by persons of a particular remedy for the negligence of the fellow-servant, because

class and actions in general, utterly indefensible on any there being a contractual relation between himself and ground of principle. his master he has not made it one of the terms of the relation that the master should be liable. This is a very subtle and forcible way of putting Jennings, solicitor and agent for the Liberal party at the

The Daily Telegraph says that Mr. Francis Barnard the case, but we are not convinced that it is altogether recent borough election for Ipswich, was charged on unassailable. The law constantly annexes to a contract Monday with illegally voting, he being at the time a paid terms which the parties have not actually expressed or

agent, and, consequently, not entitled to poll under the eveu contemplated, and we doubt whether the Lord Ballot Act. The magistrates committed Mr. Jennings for trial Justice's argument does vot leave room for the question at the assizes in his own recognizances of £100.

Recent Decisions..

Cases of the week.





Act, 1869, 8. 8-BANKRUPTCY RULES, 1870, R. 38(Ex parte Jay, In re Harrison, C. A. 28 W. R. 449, In a case of Ex parte Rogers, before the Court of Appeal on L. R. 14 Ch. D. 19.)

the 8th inst., a question arose as to the proof which ought to be This case, to which we have before briefly referred, given of the commission of an act of bankruptcy on the is chiefly remarkable for the enunciation of law bearing of a petition for an adjudication of bankraptey


Section 8 of the Bankruptcy Act, 1869, provides that at the attributed in the Law Reports to the Chief Judge hearing of the petition, " the court shall require proof of the in the court below. The case was a contested claim debt of the petitioning creditor, and of the trading, if to a builder's materials upon his bankruptcy. The necessary, and of the act of bankroptcy," and that it may question arose upon a building agreement under which, adjourn the petition for the procuring of further evidence

. in the event of the builder making default in any of the and sub-section 1 of section 80 provides that every backstipulations, or becoming bankrupt, the materials were ruptcy petition shall be accompanied by an affidavit verifying become forfeited. Upon the bankruptcy happening,

the statements contained in such petition.” Rule 32 provides the Chief Judge held that the trustee had no title; and that, " after the presentation of the petition, and before sealing he is reported to have said : "Is it not a perfectly good the copies of the petition for service, the statements in the and valid contract? The debtor says in effect, "If I petition shall be carefully investigated, and where some of

ibe statements cannot be sworn to witnesses may be become bankrupt, that which is mine shall become yours.'

summoned to prove the same." And by rule 36, "where a There is no objection to such a contract as that.”

debtor intends to show cause against a petition, be lordship cannot have had immediately in his mind the

shall file a notice with the registrar, showing the statements language used by the Court of Queen's Bench in in the petition which he intends to deny or dispute." And Hawthorn v. Newcastle and North Shields Railway rule 38 provides that, "on the appearance of the debtor to Company (9 L. J. N. S. Q. B. 385), the case upon show cause against the petition, the petitioning creditor's which the Chief Judge relied in Ex parte Dickin (25 debt, trading, and aot of bankruptcy, or such of those W. R. 258), his professed guide in the present case.

matters as the debtor shall have given notice that he intends Lord Denman, C.J., there starts with saying: “ We

to dispute, shall again be proved, and if any new evidence of think it cannot be contended that this agreement,

these matters, or any of them, shall be given, or any witness whether entered into by one subject to the bankrupt examination, and further time shall be desired to show

or witnesses to such matter shall not be present for crosslaws or not, bears anything unlawful on its face. It has no professed or necessary reference to the event of reasonable, grant soch further time as it may think fit."

cause, the court sball, if it think the application bankruptcy; and assuming the solvency of the contrac- In Ex parte Rogers, the act of bankruptcy alleged tors, and that bankruptcy was not in contemplation, and was the failure of the debtor to comply with the requirethat they were the owners of the chattels to be affected ments of a debtor's summons which the petitioning creditor by the deed, they might certainly stipulate with regard alleged that he had caused to be served on him. At the to them as the contractors have done by this instrument.” hearing of the petition no evidence was adduced of the The stipulation there was simply that the company service of the debtor's summons other than the ordinary should have a lien upon the materials for the time being affidavit of the petitioner accompanying the petition and on the ground as a security for the completion of the verifying the statements contained in it. No evidence was works. If these contracts are read as merely giving a

given by the person who had actually served the sommons. right to seize, or contingent interest to arise, upon bank

Bat an application to dismiss the summons had previously ruptcy, then the principle plainly applies which is thus

been made by the debtor, and in his affidavit in support expressed by Lord Justice James : A simple stipulation

of that application he bad expressly admitted that the sao. that upon a man's becoming bankrupt that which was

mong had been served upon him. An affidavit of the his property up to the date of the bankruptcy shall go who had served it. Bat do notice had been given of any

service of the summons had also been made by the person over to some one else, and be taken away from his credi

intention to use the evidence given in the matter of the tors, is void, as being a violation of the policy of the

summons upon the hearing of the petition. At the hearing bankrupt law.” That was the reading of the contract the objection was taken that the service of the summons in Ex parte Jay which the Court of Appeal adopted. had not been proved, and that consequently the act of What would be the operation of the principle adverted bankruptoy had not been proved. The registrar, however, to in cases where the contract does transfer an interest made the adjudication. The Court of Appeal (JAMES

, in property ab initio, though not quite an easy Brett, and COTTON, L.JJ.) held that the objection, though question, yet seems to be covered by Ex parte Mackay purely technical, was a valid one.

JAMES, L.J., said (21 W. R. 664) and Ex parte Williams (26 W. R. that the proceedings on the debtor's summons and the 274). Why should a mortgagee be allowed to stipu- petition were entirely distinct litigations, as distinct as if late for liberty to avail himself of his security in the

the summons had been an action in the High Court, and single event of bankruptcy when he is not allowed

the evidence in the one was not evidence in the other unless to acquire a further specific security in that event ?

notice was given to use it. The order of adjadication This latter was in Ex parte Williams considered to be

was accordingly discharged, and the matter was remitted the substance of the attornment clause; which was in it has been the practice in the London Court of Bankrupte

to the registrar to hear further evidence. We believe that that view held ineffectual against the trustee. It is impossible in these cases to make use of section 94 for the given in the matter of the summons as evidence upon the

to treat the evidence of the service of a debtor's summons purpose of assisting a title under a contract vicious in hearing of a bankraptoy petition founded on the movie itself ; for that section requires the condition to be satis- compliance of the summons as a matter of course. This fied of the contract or dealing set up having been made decision is, therefore, of some praotical importance. in good faith.

SOLICITORS, W. Rogers ; Travers, Smith, $ Braithwaite.

MORTMAIN_INTEREST IN LAND-BEQUEST TO CHARITY OF According to a return which has been made to the House SHARE OF PARTNERSHIP AssetS-9 GEO. 2, c. 36.-I. & of Lords, by the Solicitor to the Treasury, of all costs already case of Ashworth v. Munn, before the Coart of Appeal on incurred by the Treasury on behalf of Lord Penzance in the the 9th ingt., the question arose whether a gift by a tescases of Martin v. Mackonochie and of Mackonochie v. Martin, counsels' fees have amounted to £579 28. 6d.; shorthand the assets of a partnership business was void under the

tator to a charity of the proceeds of sale of his share ia writers have cost £217 198. 8d. ; total, £797 25. 2d.

statute 9 Geo. 2, c. 36. The assets of the partnership


consisted in part of real estate. The Court of Appeal regarded the enjoyment of and power over the property

(JAMES, BRETT, and COTTON, L.JJ.), affirming the decision settled, as if she were a feme-sole. To hold that an infant of Malins, V.O., held that the interest of the testator in could exercise such a power would, in his lordship's opinion, the proceeds of the sale of the real estate of the partner be to allow an infant to biud her property which the law, on ship, though it was personal estate as between his real general principles of public policy, said that she could not and personal representatives, was still an interest in land, do. The case might be thus disposed of if there were an inand was therefore within the Statute of Charitable Uses, dication of intention on the part of the donor of the power and consequently that the gift of it to the charity was that it might be exercised notwithstanding the infancy of void.-SOLICITORS, Clarke, Woodcock, & Ryland ; Walker the donee. But the mere fact that a power, which might & Battiscombe; Hollams, Son, & Coward; Robinson & Pres. not have to be exercised for many years, was given to a per. ton ; Gregory, Rowcliffes, & Rarole ; Hare & Fell.

son who at the time was an infant, was not, in his lordship’s opinion, a sufficient indication of intention that the power

might be exercised during infancy, and he was unable to find POWER OF APPOINTMENT-EXERCISE BY INFANT-MAR- | that the settlement expressed any such intention. The fact RIAGE SETTLEMENT OF PERSONAL ESTATE.-In a case of In re that the power might be exercised by deed or will was, he D' Angibau, before the Coort of Appeal on the 12th inst., thought, against there being any such intention, as no will the question arose whether an infant married woman could could be made by an infant, and as at the date of the settleexercise a power of appointment of personal estate reserved ment the property settled was reversionary, and the wife, to her by her marriage settlement. At the time of her though an infant, was upwards of nineteen years of age, marriage the wife was an infant of about the age of nine there was, his lordship thought, no presumption that the teen, and she was described in the settlement as an infant. consent to a change of investment would have to be given She was, under the will of her father, entitled to a som of during her infancy. Brett, L J., thought that the power money, subjeot to the payment of an appnity to her was a pure mandate, and that it did not deal with any propmother, and this sum had been set apart to answer the

erty of the infant, but only with the property of the settlor. annuity, and was held by the trustees of the father's will. But, if it did affect property of the intant, he thought that Previously to the marriage a settlement was executed, by the proper inference was that it was the intention of the which the husband covenanted that, in the event of the settlor that the power should be exercised during infancy. marriage taking place, he and all other necessary parties The power was a mandate, and when exercised it would take wonld assign to trustees the interest to wbich, under her

effect from the direction of the settlor. It was delegated by father's will, the intended wife was entitled in the fund a person who had full power himself to do the act which he set apart to answer the annuity, and that the trustees

delegated, and to say that the mandate was suspended during should hold the fund upon trust for the intended wife for

the infancy of the mandatory appeared to his lordship a most her life, for her separate use, and after her death upon

artificial doctrine. If it had been a power over real estate, certain trusts for the benefit of the intended husband till

no doubt the matter would have beea concluded by direct he should become bankropt, with remainder in trast

authority. But that authority was founded on one of for the issue of the marriage, and, if there should be

those artificial rules which had done

than no issue who should become absolutely entitled, upon

anything else

to bring disgrace upon the law. trust as the intended wife should by deed or will appoint,

Unless there was some principle the rule ought not to be and in default of such appointment, if the wife

carried a step further. As a general rule an infant might should survive the husband, in trust for her absolutely ;

exercise a mandate. If it was merely to be exercised by but, if the basband should survive the wife, upon trast for

writing, it could be exercised at any time ; was there any her next-of-kin at her death, as if she had died intestate

reason why it should not equally be exercised by deed ? and & widow. There was no issde of the marriage,

The deed did not take effect as the deed of the infant; and the wife died while still an infant. She had

it was only a very solemn form of exercising the mandate. previously exeonted a deed by which she purported to

The fact that the power was to be exercised by deed or will, exercise the power of appointment by giving the fund to her

when the exercise of it by will duriog infancy was rendered husband absolutely. He survived her, and shortly after ber

invalid by express statutory enactment, led, in his lordship's death he filed a liquidation petition. The trustee in the

opinion, to the inference that it was intended to be exercised liquidation claimed the appointed fund, and brought the

by deed during infancy. JAMES, L.J., agreed with the Master action against the trustees of the settlement, and the mother

of the Rolls and with Brett, L.J. According to his view, and brother of the deceased wife, who were her next of kin.

an infant might be an agent. He might be the donee of a The mother and brother demurred to the statement of claim.

power of attorney, and it was difficult to understand why he Jessel, M.R., overruled the demurrer (ante, p. 67). He

might not equally be the donee of a power in a will or a was of opinion that the power was a power in grossi.e.,

settlement. Hearle v. Greenbank no doubt decided that an that, though not simply collateral, it did not affect any

infant could not exercise a power over real estate, but the interest of the infant. He was of opinion that, although an

judgment was carefully limited to real estate ; and the case infant could not exercise a power appendant, he could validly

had been considered by eminent text-writers as an authority exercise a power in gross, and, moreover, that even if the

that an infant could exercise a power over personal estate. power could not be treated as a power in gross, there was a

His lordship would be sorry to express any doubt that an clear intention that the power might be exercised during

infant feme covert could exercise the ordinary powers coninfancy, and that the exercise of it was, therefore, valid.

tained in a marriage settlement of personal estate, unless This decision was affirmed by the Court of Appeal (JAMES,

there was something in the settlement to raise a presumpBRETT, and COTTON, L.JJ.), though Cotton, L.J., differed

tion that she was not intended to do so, though of course an from the view of the majority. COTTON, L.J., said that

infant could not by making a settlement give herself such a there was very little authority as to the exercise by an in

power. On another ground, however, which had not been fant of a power over personal estate. Hearle v. Green

taken before the Master of the Rolls, the court all agreed in bank (3 Atk. 695) was, as regarded powers over per:

supporting his decision. The settled fund had never come to sonal estate, only an authority that a power to appoint the hands of the trustees of the father's will, the widow being

the hands of the trustees of the settlement, but was still in by will could be exercised during infancy after the infant had attained the age when, independently of any liquidation of the husband, but was also the legal personal

still living. The plaintiff was not only trustee in the power, he could make a will of personal estate, and the passage in 1 Sug. Powers (6th ed.), p. 220, did not

representative of the wife. And the court held that the settle

ment, which contained no declaration of trust on the part of carry the case any further. There was no authority that a power, the exercise of which could affect the interest of the

the husband, but was merely a coveoant by him to make a

settlement, could not be considered as a declaration of trust infant, or one in gross, could be exercised by an infant, constituting the relation of trustee and cestuique trust between except where infancy would not, if there was no power, pre. vent him from disposing of the property. In the absence of

the husband and the demurring defendants, and the court authority his lordship thought that on principle an infant

would not, as against the legal title of the plaintiff, enforce could not exercise a power like that in the present case, regarded as mere volunteers.-SOLICITORS, Yarde $ Loader ;

the covenant in favour of those defendants, who must be which, in his opinion, was in the nature of property, by which he meant that the trusts of the settle independ

Wilkins, Blyth, & Fanshawe; Petgrave & Hoykinson. ently of those for the children and husband, were intended to «pat the wife as nearly as possible in the same position, as

PARTIES—ADMINISTRATION PROCEEDINGS-ORD. 16, R. also shipped produce to all parts of Europe, and drew opon 121. (APRIL, 1880)—APPEAL-SECURITY FOR COSTS.-A their correspondents for the price. These bills, when not case of In re Dorsett, before the Court of Appeal on the 14th Degotiated in India, were transmitted to the defendants inst., shows that the existence of the new role of April last, for collection, and, when collected, the Bombay firm were ord. 16, r. 12b. (ante, p. 424), is hardly yet recognized even credited with the amount. These bills bad nothing whatby some of the judges. The rule provides that, “In any ever to do with the proceeds of any particular goods sent cause for the administration of the estate of a deceased | to India, and the Bombay firm bought goods to a much person, no party to the cause, other than the executor or greater value than the goods shipped to them, with the administrator, shall, unless by leave of the judge, be en- result that they had to draw on the defendants for the titled to appear, either in court or in chambers, on the difference of the goods sold and bought, and also for the claim of any person not a party to the cause against proceeds of bills remitted to the defendants for collection. the estate of the deceased in respect of any debt or liability." For the plaintiff it was contended that the defendants were In In re Dorsett the application to the Court of Appeal in the position of brokers or factors, and that the proceeds (JESSEL, M.R., and BRETT and COTTON, L.JJ.) was for of sale of the plaintiff's goods could be followed so as to security for the costs of an appeal from the rejection by Hall,

see wbat profit was made thereby, and reliance was placed V.C., of a claim which the appellant had carried in against

upon Taylor v. Plumer (3 M. & S. 576), and the recent the estate of the testator in the cause. The plaintiff in

case of Ře Hallett's Estate (L. R. 13 Ch. D. 696), JESSEL, the action was one of the executors, and the defendant was M.R., said that the decision of the Court of Appeal, in the residuary legatee, who was also the other executor. It

which he took part, of Re Hallett's Estate had nothing to was mentioned by the counsel for the plaintiff, who was the do with commission agents. That decision was only applicant for security for the costs of the appeal, that before

applicable to a case of a bailee or broker wbose daty it the Vice-Chancellor the plaintiff and the defendant had

was to remit the very proceeds of sale to his principal. appeared separately, and that the Attorney-General had

Tbis case was a totally different one, and the defendants also appeared on behalf of some charities, and that the

were in the position of ordinary commigsion merchants, Vice-Chancellor had ordered the claimant to pay the costs of

who received goods for sale on commission, and who would all those parties. It was admitted that the attention of

be liable to pay interest on any moneys which they failed the Vice-Chancellor bad not been called to the new rule.

to account for to the person intrusting them with the goods. JESSEL, M.R., said it was clear that only the executor was

The idea was novel, in his experience, for a commission entitled to appear upon the claim. The two executors ought

mercbant to keep a separate account at bis bankers for to have appeared together, and the Attorney-General ought

each of bis customers, and it was not to be supposed for a not to have appeared at all. There had been a slip owing

moment that & commission merchant was bound to transto the Vice-Chancellor's attention not having been called to

mit to his principal the very coin he received. The the new rule. As to the security for costs, it appeared that the notice of motion had been served on a Saturday, and

course of trade in such cases was that the commission

agent was liable to the consignor for the amount of the that on the next Monday the plaintiff's solicitors wrote to

goods, and he treated himself as a creditor for any adthe appellant's solicitors saying that they had not yet delivered a brief to their counsel, and that before doing so

vances made and interest, and his principal as a debtor for they wished to know whether the appellant would give £50

the amount received for his goods and interest. Jt security. In reply to this letter no offer was made by the

appeared that the Bombay firm had a number of accounts defendant. The court held that the plaintiff's offer was open, and that they adopted the same mode of keeping made in time and that the costs of the motion must be costs | their accounts with all persons, but the real contract was of the appeal. And they ordered security to be given by

what he had above stated. Ag, however, there was some paying £25 into court.-SOLICITORS, S. F. Miller & Son;

difficulty and liability to loss in sending back the exact Tuecdies

equivalent in money or bills, it was thought cheaper to buy goods in India and send return cargoes, but whether

Boch goods were bought with the plaintiff's money, or the PRINCIPAL AND AGENT-COMMISSION MERCHANT-SALE defendants' money, or with the money of other people OF Goods-RIGHT TO FOLLOW PROCEEDS OF SALE.-In a | seemed to him quite immaterial, and all that the plaintiff case of Kirkham y. Peel, before the Master of the Rolls on could require was his money with interest. The other the 9th inst., a question arose as to the mode of taking contention would lead to an account of every parcel of goods the accounts before the official referee in a case where the purchased by the Bombay firm, and an inquiry into every defendants bad sold goods for the plaintiff on commission. part of their trading. He did not think, therefore, The action was one for an account and an order to take account No. 7 Deed be brought in. The costs of the the usual accounts of the dealings between the parties motion would be costs in the action.-SOLICITORS, Milne & before the official referee had been made. He had directed Co., for Slater, Heelis & Co., Manchester; Border Cotten, the defendants to bring in certain accounts, and, amongs for Rylance, Manchester. otbere, an account (No, 7) of the application by the de. fendants' banking house “ of the proceeds realized by sale

AGREEMENT TO ACT FOR A.-PRIOR AGREEMENT TO ACT of the plaintiff's goods in India, including an account of

| TOR B.-EXISTENCE OF AGREEMENT-INJUNCTION TO REthe purobase with such proceeds of any produce, and of STRAIN ACTING FOR ANY PERSON OTHER THAN A.-In & the amounts realized by sale of the produce go purobased." case of Leavitt v. Williams, before the Master of the Rolls An objection was taken before the referee as to this on the 9th inst., a motion was made by the plaintiff to account, and he submitted the question for the decision of regtrain the defendant from acting for any other person than the court wbetber the account should be brought in. Al the plaintiff, in accordance with an agreement of the 29th of motion was now made by tbe defendants to exclude account May, 1880. By such agreement the defendant agreed No. 7. The course of dealing between the partier, so far to act for a term of forty weeks from the 15th of Sepe as it appeared from the evidence, was as follows:-The tember, 1880, in America, and not to play for any person defendants' firm in Manchester shipped goods to their firm during the engagement without the plaintiff's written conin Bombay for sale either on their account or on account | señt. The defendant admitted the agreement, but deof the plaintiff and others desirous of sending goods to clined to carry it out, on the ground that she had entered Bombay, the defendants generally making advances on the into a prior binding agreement with another theatrical goods of other persong. The Bombay firm sold the goods in manager named Rice. The evidence as to this agreement India and received the proceeds. If no advances bad been was as follows :-On the 27th of April, Rice wrote an cifer made, then the Bombay firm bought bills on England and to the defendant to engage ber to act in America from the sept them to the defendants, such bills being treated as 30th of August, 1880, saying she must cable him imthe property of the persons for whom the goods had been mediately her refusal or acceptance, as he had to communi. shipped, but where advances had been made, then the cate with another actress before the 15th of May, and if she Bombay firm directed the defendants to credit their cus accepted she was to send him her photograph, and a sketch tomers, and debit them with the amount mentioned in the of her bistory. The defendant did not telegraph to Rice, remittance sheet or account sent by them. The Bombay but sent him her photograph about the middle of May, firm were also in the babit of purchasing produce in Bom stating she was too ill to write. The defendant heard bay and shipping it to the defendants in England, the nothing further from Rice, but saw his agent in England in Bombay firm being credited with the proceede. They June. When the agreement with the plaintiff had been

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