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but yet they are to be bound by the agreement entered into by their predecessors that that sale shall take place ; and in addition to that, during the whole of the term they are precluded from selling any part of the property to anyone but the lessees, however beneficial in their judgment such a transaction might be."

In the recent case of The Oceanic Steam Navigation Company (Limited) v. Sutherberry (29 W. R. 113), the question arose whether the same rule applied to executors and administrators who have granted an underlease of the testator's leasehold property. There is a general impression that executors and administrators have wider powers than a mere trustee for sale. The Court of Appeal held that there was no difference between the power, in this respect, of an executor or administrator and of an ordinary trustee for sale. Lord Justice James said:-"For the purposes of this case, I can see no difference between an executor or an administrator and any other trustee. The only difference is this, that the law does not oblige a purchaser to require from an executor evidence that what he is doing when he effects a sale is necessary for the purposes of his trust. The executor has power to sell and give receipts virtute officii, and a purchaser is not entitled to require from him evidence that the sale is one absolutely required. With that difference he is in the same position as any other trustee. A trustee cannot bind the property of his cestui que trust by an option of sale to be exercised at a future time."

The Master of the Rolls added, with reference to the leasing power of an executor or administrator, that “an administrator is, in the view of the courts of equity, in the same position as a trustee for sale of personal estate for the purpose of paying the intestate's debts. When leaseholds become vested in an administrator he may in some cases underlet, and that underlease will be supported; but it must not be forgotten that that is an exceptional way of dealing with the assets. Ordinarily the duty of an executor or administrator is to sell, and those who accept an underlease accept it at some risk, and ought, therefore, to take care to see that, under the circumstances of the case, a fair necessity has arisen for granting the underlease."

It will be seen that henceforth, not only must no underlease containing an option to purchase be taken from an executor or administrator, but that caution will be necessary in taking any lease from an executor or administrator. The result, it appears to us, will be very greatly to restrict personal representatives in dealing to the best advantage with the testator's leaseholds.

Mr. W. Blake Odgers has published a chapter from his forthcoming "Digest of the Law of Libel and Slander," relating to Seditious Words, in the hope, as he says in the preface, that it may prove of practical use to many at the present time. He adds that it was written many months ago, before the events in Ireland had directed special attention to this subject. Although we do not propose to forestall our notice of the work of which this chapter is to form part, we may say that it contains a very full statement of the law relating to treasonable and seditious words.

The Council of Legal Education has made the following appointments for the year 1881:-Professors and examiners (jurisprudence, international law, Roman law, and constitutional law):-Joint professors-Frederic Harrison, Esq., and James Bryce, Esq., D.C.L.; Joint examiners-W. A. Hunter, Esq., M.A., and C. L. Shadwell, Esq., B.C.L. Equity:-Professor-Arthur Shelley Eddie, Esq., Q.C.; Examiner-W. H. G. Bagshawe, Esq., QC. The law of real and personal property:-ProfesBOY-Wm. Barber, Esq., Examiner-T. C. Wright, Esq. The common law:-Professor-John D. Mayne, Esq.; Examiner-Hugh Cowie, Esq.

CONCEALED FRAUD.

In spite of the discouragement which the law has given to persons seeking to oust the holders of estates after long possession, such claimants continue to appear from time to time with more or less sanguine expectations. The case of Willis v. Earl Howe (29 W. R. 70) is the most recent instance. The plaintiff's allegations in his claim were that about the year 1800 the defendant's predecessor fraudulently represented himself to be the heir of William Jennens, though he was, in fact, illegitimate; that his mother concealed the fraud, which was only discovered by the defendant in 1879 in consequence of a communication made by a daughter of the mother of the fraudulent heir; and that the fraud had been known to, and concealed by, the successive predecessors of the defendant. The defendant demurred, relying on the 26th section of the Statute of Limitations (3 & 4 Will. 4, c. 27), which provides that "in every case of a concealed fraud, the right of any person to bring a suit in equity for the recovery of any land or rent of which he, or any person through whom he claims, may have been deprived by such fraud, shall be deemed to have first accrued at, and not before, the time at which such fraud shall, or with reasonable diligence might, have been first known or discovered." Vice-Chancellor Malins allowed the demurrer, on the ground that the fraud, if any, might have been discovered long ago.

The doctrine of equity is well known, that there is no limitation against fraud. As Lord Cottenham said in Trevelyan v. Charter (4 L. J. Ch. 209), "It is fitting that those who thus appropriate the property of others should be assured that in this court no time will assure to them the fruits of their dishonesty, but that their children's children will be compelled to restore the property of which their ancestors have fraudulently possessed themselves. Time is no bar, except the party having full information of his injuries and rights allows time to elapse without seeking relief." The 26th section of the Statute of Limitations (3 & 4 Will. 4, c. 27), at first reading, seems to favour claims founded on a fraudulent concealment, but the construction which has been put upon this section renders it exceedingly difficult to establish such a case. The question to be decided really comes simply to this: What is reasonable diligence? or, Has reasonable diligence been used? It is unfortunate that such cases cannot be, or at least are not, tried before a jury. What is reasonable diligence is eminently a question for a jury. Judges without juries are apt, as Lord Justice Brett said recently, to decide questions of fact according to fixed principles; and the principle applicable to the question of reasonable diligence in the discovery of concealed fraud seems to be that lapse of time affords a presumption that reasonable diligence was not exercised. In Chetham v. Hoare (L. R. 9 Eq. 571), for instance, it appeared that great care had been taken to conceal the fraud which broke the link in the claimant's title. More than a century after its perpetration the claimant discovered the fraud by accident. There was no evidence to show that the plaintiff's earlier predecessors had any ground for suspecting that they had any right. Indeed, it might be said that the circumstances under which the plaintiff's discovery was made rather showed that reasonable diligence, if it had been used, would have failed to discover the fraud. Certainly there was nothing to show that reasonable diligence had been used, but equally clearly there was nothing to show that it had not, beyond the fact that the fraud remained undiscovered. In that case the fraud consisted in the concealment of a marriage; the plaintiff discovered that two pages of the index to the register had been stuck together, and the page on which the marriage must have been registered had been neatly removed from the book. On separating the two pages of the index the names were found, and a reference to the missing page, the absence of which had been further concealed by altering the paging of the leaves. This had been done

apparently early in the eighteenth century. There were no other facts evidencing either the fraud or attempts to discover it. Vice-Chancellor Malins, in deciding against the claimant, said that marriages were not only proved by registers; the registers in the eighteenth century were notoriously imperfect, and there were other ways in which the concealment might have been found out besides the discovery of the tampering with the register.

It must remain, to a great extent, a matter of of opinion what was the proper inference to be drawn from the circumstances. Clearly the fraud had been successful. The argument about the imperfection of registers and the other modes of proving a marriage cuts both ways.

One point in the judgment of the learned Vice-Chancellor in Willis v. Earl Howe is open to criticism. The alleged wrong-doer, one of the defendant's predecessors, had been created an earl, and the Vice-Chancellor said that, though he did not wish to decide upon probabilities, yet it did seem most improbable, especially bearing in mind that the peerage must have been granted partly on the strength of the possession of the large estates, that the first Earl Howe should have been an impostor. Now, it is certainly not likely that he would have been made an earl if he had not had great possessions; but it is hardly accurate to say that his claim to an earldom must have been grounded on his title to It might be said that the fact of his being created an earl only showed how well the fraud was carried out, and how difficult it would have been for any reasonable diligence to discover the concealment.

THE JUDICIAL STATISTICS.

the estates. The altering of the register cannot have been the only fraud practised, for clearly the marriage was successfully concealed. And the fact that it was not discovered might be taken to show that the fraud was so clever that reasonable diligence could not discover it. The estates were of great value; therefore either reasonable diligence was used without success, or, if it was not, that was because the fraud was so well contrived that nothing could put the plaintiff's predecessors upon suspicion. At the same time it cannot be denied that the court was justified by the circumstances in forming an opinion that reasonable diligence might have discovered the fraud, and there was a very powerful reason to make the court adopt this view. If claims of this kind could be successful after a lapse of a century and half, what titles would be safe? That is to say, although time is no bar in a case of fraud, the court will, if possible, resist a claim founded upon concealed fraud, in order not to shake the security of titles. The case of Vane v. Vane (21 W. R. 66, L. R. 8 Ch. 383), however, showed that there can be allegations sufficient at least to prevent a demurrer founded upon the 26th section of the statute. There the fraud was alleged to have been committed within living memory, and it was unnecessary to rely merely upon presumption or opinion to decide the question of diligence. allegations were distinct and minute. Vice-Chancellor Malins overruled the demurrer, and his decision was affirmed by the Court of Appeal. Accordingly the defendant put in an answer, and ultimately the case came to a hearing in 1876, when the decision was against the plaintiff's claim.

CHANCERY DIVISION.

her amcant was £6,037,301. Under

winding up companies the calls er amounted to £928,406, and the dered to be paid was £230,276, faded to contributories. There gs, and they realized a total of 3 estates were purchased by order es collected by stamps in chambers

-The return hitherto made cons and Writs is now made by the Court of Judicature; and this

esfice of the clerks of Records present return shows that during the cins and original proceedings were inacery Division, including 208 trans

stries and 6 from county courts. the number of actions and original 4. Ten years ago the number ch more than half that of 1879. dfees collected in stamps was

The returns from the Report Office documents were fled in that office, med, and that the total fees ember of witnesses examined was 2 1575, and the fees amounted to

THE returns from the courts of civil jurisdiction are for
the year ending the 31st of October, 1879. The pro-
ceedings in the Chancery Division are shown in the re-
turus from the several offices of the division. The num-
ber of demurrers, actions for trial, motions for judg-
ment, special cases, questions of law or fact, and further
considerations for hearing at the commencement of the
year was 577; during the year 3,274 were set down,
2,247 were heard, and 802 otherwise disposed of,
leaving 796 as remanets at the end of the year. In the
previous year there were 580 for hearing at the com-
mencement, and 2,649 were set down during the year;
of this number 2,200 were heard, and 488 otherwise
disposed of, leaving 549 as remanets. This shows an
increase in the work of the Chancery Division from 3,237
causes, &c., in 1878 to 3,845 in 1879. Besides the 2,247
orders made on the hearing of causes, &c., during the
year, there were 234 orders made on the hearing of pe-
titions under the Companies Acts, 1,985 on other peti-
tions, 2,638 on special motions, 13,115 in chambers on
summons, 307 on summons adjourned into court, and
139 on motious of course, making a grand total of
20,638 orders to be drawn up, passed, and entered by
the registrars. The certificates for sale or transfer of
stocks and securities out of court numbered 3,713. In
the previous year the orders pronounced amounted to
19,802, and the certificates to 4,112.

The

The case of Willis v. Earl Howe did not present any serious difficulty. Here, again, the Vice-Chancellor said that to overrule the demurrer would be to make all titles unsafe. But, with that chief reason for defeating the claim, it was still easy to find other grounds for a decision. The person who was alleged to have been illegitimate was, according to the plaintiff's allegations, a wrong-doer.

Pucipal Secretary.-The number 1013, as against 1,634 in the 10 in 1967. The fees collected ted to 4874.

-There were 1,156 petitions , as against 616 in the previous

* There were also 4,511 petitions Te tees amounted to 12,127 168., the previous year.

entres presented by the taxing

* vision show that there were 415 orders and references

But bills were taxed, and that asters were made. In the Merences were 4,653, the bills A te certificates 4083. The total raze was £1,251,263, and the fees 5,000. These figures are also of the previous year. The returns from the office of that there were during the ry in commissions of lunacy Pinay, 245 reports made to the el tr the percentage on lunatics'

During the course of the year the five judges of the Chancery Division sat in the aggregate 780 days, as against 887 in the previous year; but during that year Vice-Chancelior Malins only sat 75 days, while the other judges averaged 171 days each, and Lord Justice Baggallay, who sat for Vice-Chancellor Malins, only did so on 10 days. In the previous year the aggregate number of days on which the judges of the Chancery Division sat was 887, being 117 more. Of the 20,665 orders pronounced in court and at chambers to be drawn up by the registrars, 18,655 were actually drawn up; and the fees collected thereon, and on the setting down of causes and appeals, amounted to £12,950 178. In 1878 the number of orders drawn up was 18,598, and the fees £12,502 13s. 6d.

"Where a wrong-doer enters on land," said the Vice-Chancellor, "the true owner is bound to know his own title, and when a person claiming adversely to him enters into possession, he is bound to ascertain whether such person has a title or not, and to bring his action within the statutory time." In his opinion the fact that the alleged wrong-doer was allowed to take possession without inquiry, and by himself and his successors for generations to remain there, showed gross neglect. The 26th section of the Statute of Limitations must receive the strictest interpretation. That interpretation was given in Chetham v. Hoare :-"A person who comes seeking to deprive others of those rights, which they have enjoyed for a long time, in the possession of land, should be bound to prove that he falls strictly and literally within the exception, the benefit of which is given to him by this statute." "I think it of very great importance," said Vice-Chancellor Malins, "that this section, which, in its widest extent, would give the right of recovering the possession of land at any time whatever (in this case it is one century, and, upon the arguments I have heard, it might just as well have been after five centuries), should, in the interests of society, receive the very strictest interpretation."

Lay-There were 253 petitions 179 petitions for orders for en for inquiry made, besides 523 directed to be paid into court

In the chambers of the Master of the Rolls and the three Vice-Chancellors the number of summonses issued was 39,533 in 1879 as against 37,495 in the previous year. On these summonses 30,254 orders were made, of which 15,185 were of the class drawn up by the registrars, and 15,069 of the class drawn up at chambers. In the year 1878 the total number of orders made at chambers was 28,253. There were brought into chambers for prosecution 121 orders for winding up companies and 3,149 other orders. The number of debts claimed was 18,687 and the amount of debts proved £3,383,883; in the previous year the debts numbered

the stock directed to be transH; the money paid out of and the stock transferred out

During the year 1979 the total paid and transferred into and that paid and transferred The number of cheques the accounts open were 31.767. matted to £1,113. The (2002) stocks and securities, & nominal total of pose year the total amount of 54112980, and in 1863

Reads appearing in the

T

LASTER CHANCERY COURT.

ery of the County Palatine of

Under

only 11,725, but their amount was £6,037,301. the orders made for winding up companies the calls made during the year amounted to £928,406, and the amount of dividends ordered to be paid was £230,276, and £100,869 was refunded to contributories. There were 749 estates sold, and they realized a total of £3,146,295; while 129 estates were purchased by order of the court. The fees collected by stamps in chambers amounted to £15,136.

Record and Writ Clerks. The return hitherto made by the clerks of Records and Writs is now made by the masters of the Supreme Court of Judicature; and this is the last return from the office of the clerks of Records and Writs. The present return shows that during the year 6,237 actions and original proceedings were instituted in the Chancery Division, including 208 transferred from district registries and 6 from county courts. In the previous year the number of actions and original proceedings was 5,487. Ten years ago the number was only 3,344, not much more than half that of 1879. The total amount of fees collected in stamps £18,992 10s. 4d.

was

Report Office. -The returns from the Report Office show that 16,804 documents were filed in that office, and 28,591 copied and examined, and that the total fees received amounted to £3,026.

Examiners.-The number of witnesses examined was 171, as against 195 in 1878, and the fees amounted to £260, as against £289.

Lord Chancellor's Principal Secretary.-The number of petitions presented was 1,013, as against 1,634 in the previous year, and 1,638 in 1867. The fees collected by means of stamps amounted to £874.

Secretary of the Rolls.-There were 1,156 petitions presented at the Rolls, as against 616 in the previous year, and 593 in 1877. There were also 4,511 petitions for orders of court. The fees amounted to £2,127 16s., as against £1,629 13s. in the previous year.

Taxing Masters.—The returns presented by the taxing masters of the Chancery Division show that there were carried into the office 4,815 orders and references for taxation; that 9.469 bills were taxed, and that 4,299 certificates and allocaturs were made. In the previous year the references were 4,653, the bills taxed 9,138, and the certificates 4,083. The total amount of the bills taxed was £1,251,263, and the fees of taxation amounted to £35,093. These figures are also an increase over those of the previous year.

Masters in Lunacy.-The returns from the office of the Masters in Lunacy show that there were during the year 115 orders of inquiry in commissions of lunacy executed by masters in lunacy, 248 reports made to the Lord Chancellor, and that the percentage on lunatics' incomes amounted to £21,140.

Registrars in Lunacy.-There were 253 petitions presented for hearing, and 179 petitions for orders for inquiry, and 119 orders for inquiry made, besides 523 other orders. The cash directed to be paid into court amounted to £81,413, and the stock directed to be transferred into court to £144,439; the money paid out of court was £31,701, and the stock transferred out £325,925.

Chancery Paymaster.-During the year 1879 the total amount of cash and securities paid and transferred into court was £12,485,864, and that paid and transferred out of court was £12,648,033. The number of cheques signed was 55,862, and the accounts open were 31,767. Fees collected by stamps amounted to £1,113. The total amount of the suitors' funds appearing in the several accounts was £69,083,526 stocks and securities, and £5,029,454 cash, making a nominal total of £74,212,980. In the previous year the total amount of

the suitors'

£63,835,946.

funds was £74,112,980, and in 1869

COUNTY PALATINE OE LANCASTER CHANCERY COURT.
In the Court of Chancery of the County Palatine of

Lancaster the number of suits and matters originated was 599, as against 558 in the previous year. There were 262 orders made on original hearing, and 86 on further directions, 56 on petitions, and 408 on motion, besides 1,340 made on motions of course. Looking back to the year 1869 we find thero were then only 245 suits and matters originated, so that the business in this respect appears to have more than doubled in ten years.

QUEEN'S BENCH, COMMON PLEAS, AND EXCHEQUER DIVI

SIONS.

The Queen's Coroner and Attorney and the Master of the Crown Office show in the present return that there were during the year five persons convicted as against nine convicted and two acquitted in the previous year. In four of these cases fines were imposed, and in the remaining case no final judgment or sentence was pronounced. In the three common law divisions there was an aggregate number of 59,659 writs of summons issued, besides 196 removed from district registries. In the previous year there were 55,655 writs issued and 189 cases removed from district registries. Appearances were entered to 27,516 of these writs and 25,200 judgments entered, 16,660 of which were put to execution. The total amount of fees received was £63,958 18s. 1d. Associates' Return. Among the causes entered for trial there were for trial in London and Westminster 694 remanets from the previous year; 2,301 were entered for trial at London and Westminster, and 1,243 at Nisi Prius. Of all these cases there were only 883trials at Nisi Prius, and 1,100 at London and Westminster, 109 of which latter were undefended, 956 were made remanets by order or for want of time to try, 1,104 were withdrawn or struck, and 147 stood once either for judgment or for further consideration.

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Masters' Returns. In respect of the 25,200 judgments before mentioned, 16,660 writs of execution were issued, of which 16,150 were writs of fieri facias, 362 writs of possession, and 148 of elegit. There were during the course of the year 201 motions for new trials; seventy-two of which were refused and 129 rules nisi were granted, and of these 129 rules nisi, 59 were made absolute, and 68 discharged.

Judges' Chambers.-The returns of the chamber clerks show, among other things, that there were in the three divisions 74,569 summonses taken out, and 62,886 orders made as against 86,006, and 73,239 in 1878, and that there were 36,138 acknowledgements by married women brought into the office as against 31,671 in 1878.

Official Referees.-There were 91 references sent to the official referees, including remanets. Of this number 23 were partly head, 8 were withdrawn, and 2 stood over, 46 were heard, and 12 remained.

District Registries.-The returns from the 74 district registries show that, during the year 1878-9 39,834 writs of summons were issued as against 36,809 in the previous year. There were 10,799 judgments as against 11,857 in 1878. The fees received in the registries amounted to £29,764; in the previous year the sum was £23,496.

Sittings in Banco. The proceedings at the sittings in Banco of the Exchequer Division relating to business on the revenue side of the court, and other proceedings are shown in the returns of the Queen's Remembrancer. Under this procedure there were 5 cases touching appeals as to income tax and inhabited house duty, 1 case stated by the Commissioners of Inland Revenue as to stamp duty, 67 motions for attachment on matters concerning legacy and succession duty, and 7 motions on various

other matters.

Suitors' Fund.-The total amount of the suitors' fund in the three divisions on the 1st of November 1878, amounted to £86,730 19s. 10d.; during the year the amount paid in was £258,442 4s. 3d., and the amount paid out was £231,068 0s. 9d., leaving a balance on the 31st of October 1879, of £114,105 3s. 4d.

The total amount of receipts in the three common

law divisions, the Court of Bankruptcy, and in the Land Registry for the year ending the 31st of March, 1880, was £626,470 2s. 3d, and the payments amounted to £724,321 10s. 2d.

PROBATE DIVISION.

By the return from the Probate Division it appears that during the year ending the 31st of October, 1879, there were 12,536 probates and 6,153 administrations granted out of the principal registry as against 11,544 and 5,675 in the previous year. Also during the year 1879 there were 79 probates and administrations granted on the hearing of actions, 261 on motions, and 34 on summons. The total amount of fees of court in contentious business was £2,398 as against £1,902 in 1878, and the taxed costs £19,798 as against £42,764. The total amount of probate and administration stamps issued in London was £2,109,281, of which £1,224,381 was for use in the principal registry and £884,900 for the district registries. The value of the effects was sworn under £80,326,190; the amount in the previous year was £68,998,655. The fees levied in the principal registry amounted to £70,930 in 1879 and £65,910 in 1878. In 1879 the expenditure in the principal registry consisted of £46,376 for salaries; £6,656 for registering and copying clerks; and £428 for incidental expenses.

In the district registries of the Probate Division 20,582 probates were granted, and 9,401 administrations, as against 18,860 probates, and 8,686 administrations in the previous year. The total fees received amounted to £80,318, the amount in 1878 having been £74,412. The total amount of property under these probates and administrations was sworn under £56,581,761, which being added to the amount in the principal registry makes a total of £136,907,951, upon which probate or administration duty was paid; in the previous year this total was £119,895,619.

DIVORCE AND MATRIMONIAL CAUSES.

The number of petitions filed in the Divorce Division in the year ending the 31st of October, 1879, was 915, of which 441 were dissolution of marriage, and 114 for judicial separation. In the previous year there were 997 petitions, of which 516 were for dissolution of marriage, and 116 for judicial separation. In 1879 there were 358 decrees absolute for dissolution, and 38 for separation. The fees received during the year amounted to £5,410.

ADMIRALTY.

REVIEWS.

MERCHANT SHIPPING.

A TREATISE ON THE LAW OF MERCHANT SHIPPING. By DAVID MACLACHLAN, Barrister-at-Law. THIRD EDITION. William Maxwell & Son.

From the brief statement in the preface, that a new edition of this work is "demanded," we presume that the last edition has met with a success which it deserved. But from the rest of the preface it might be surmised that the author's main object in issuing the new edition was to expose the ignorance displayed alike by counsel and learned lords in the recent decision of Lohre v. Aitchison To this end the learned author has composed an excursus in several pages of small print, which we think might have been advantageously curtailed to eight lines instead of eight pages.

(L. R. 4 App. 755).

With

this exception the supplementary matter added to the present edition does not occupy much space. Only five years have elapsed since the last edition was published; but the cases which have been decided in the interval have, so far as we are able to judge, been carefully and industriously noted. Gabarron v. Kreeft (24 W. R. 146, L. R. 10 Ex. 274) is hardly an authority for the proposition for which it is cited on p. 433, and the decisions in Glyn, Mills, & Co. v. East and West India Docks Company (L. R. 5 Q. B. D. 129), and Porteous v. Watney (27 W. R. 30, L. R. 3 Q. B. D. 534), deserved a little more notice than they have received. The latter case in particular is of importance, as deciding the point mooted in the well-known conflict of opinion between Lord Mansfield and Lord Tenterden on the subject of demurrage; and in his judgment Brett, L.J., takes especial notice of, though he does not adopt, an ingenious theory on the subject which Mr. Maclachlan propounded in a former edition of this work, but which has been excised sub silentio from the present edition.

There were in the year ending the 31st of October, 1879, 388 actions instituted in the Admiralty Division, including 33 transferred to that division. There were also 8 appeals from county courts. The money value of the claims in all these actions was £983,944. In the previous year the money value of the 413 actions was £1,217,113. Final judgment was given in 174 cases. References to the registrar assisted by merchants were made in 95 cases. The bills submitted to taxation were 267, and the total amount of the costs reported due was £27,135. The court sat on 149 days, and the registrar with merchants on 79 days. The references to the registrar are continually on the increase; in 1874 there were only 53 and the number has been gradually increasing to 95 since that date.

was

The amount of naval prize money paid in was £11,471 and £8,851 were ordered for distribution. The balance of suitors' and other money in admiralty cases £45,463 at the commencement of the year; £150,928 were received during the year, and £165,236 paid out, leaving a balance at the end of the year of £31,154. The amount of fees received in judicature stamps was £7,034, and in cash £1,585.

The Assize Commissioners are Mr. Joseph Brown, Q. C., and Mr. Murphy, Q.C.

Again, in considering the question whether the term "act of God" is confined to that which is irresistible, a question which Mr. Maclachlan discusses with some elaboration on pp. 536, 537, he might usefully have referred to Nichols v. Marsland (25 W. R. 173, L. R. 2 Ex. D. 1), and Nitrophosphate Company v. St. Katherine Dock Company (27 W. R. 267, L. R. 9 Ch. D. 503). It is true that in neither of those cases is the term used with reference to a shipping contract, but Mr. Maclachlan seems to think that this is immaterial in considering the meaning of the expression, for he characteristically that "it is a phrase of that excellent and solitary nature that does not admit of modi. cation or colour, as other phrases interpreted a sociis." However, it is of course easy to suggest improvements of this kind. On the whole, the alterations and additions seem to be well and carefully made; the recent statutes on the subject are added to the appendix, and the work is a very complete text-book on the subject with which it deals.

says

may

be

STATE PRACTICE.

PTICE OF THE HIGH COURT OF GRANTS OF PROBATES AND ADTETER PRACTICE AS TO MOTIONS AND ATENTIOUS BUSINESS. BY THOMAS m. D.C.L., Advocate, of Doctors" Sterworths,

ply want, since none of the pe contentious probate business at the requirements of the profession, As have considerably modified a hepatice under the Act of 1857 Lad The practice of the ecclesiastical Iran possesses exceptional qualifications

be has undertaken, both from his feld and the new practice, ad the framers of the Judicature Act A glance at the table of contents

to show how much assistance the from the work. The practice as lauses is frst explained, and then prate suit, from caveat to entry of the provisions of the rules and toare Acts, as well as those of the porated in the text. There is Appeals, which sets forth the pracThe Court of Appeal, but in the House Laried Women's Property Act, 1870, the appendix, and its effect upon len is fully referred to in the

red in two of the current series of
general, carefully collected, al-
ver any reference to the recent
LR.4 P. D. 84), although it is
Een was a party to the judgment
LR5Q.B.549), "and adheres
Car Dr. Tristram appears to
arly passed over without notice all
reported in the Law Reports

This has led to the omission of
andyrance, such as Wells v. Brook (25
important case upon the question
in making a grant of administra
e case of In the Goods of Gatti
Tolved the construction of two

det. On the other hand, we
the author has referred to all such
enterther divisions of the High Court,
bearing upon probate practice.

AND ADMINISTRATORS. d from Mr. W. Gregory Walker 23 me of the review which apme weeks ago (ante, p. 69) of and Administrators, calling in drme of our reviewer's statements irst of all, print Mr. Walker's , and then proceed to consider

We may, perhaps, venture to express a hope that, in any future edition, the author's style may be a little more subdued. The affectation-for we can call it by no other name-in which Mr. Maclachlan here and there indulger, and of which our last quotation is an example, is a serious disfigurement to the book, and a sore trial to the patience of his readers. Why, for instance, for the sake of supposed grammatical precision, does he insist upon substituting "lie-days" for the well-known "lay-days"? Does he seriously suppose that a phrase thoroughly established in law and commerce is to be corrected by the censure of a text-writer? And what is the exact meaning of the expression, at p. 369, “The popular oddity of" Carr v. Wallachian Petroleum Company?

a car review were correct. Mr. Ma of Barack. Garrick as a sufficient to my inaccuracy' in adopting atau teharging an executor with comI anderstand, that (a) the judgment; (5) that that case in with the cases Peter (L. R. 7 H. L. 346). As to recognized" by ed objecin, I am in no way conExperts from any strictures you I have re-read Burdick v. Garrick tee that the head-note in ques e of the decision. As to the second ce (not 'cases) mentioned by which I am referred is Jones T.

Som after alluding extrajudiciall

PROBATE PRACTICE.

THE CONTENTIOUS PRACTICE OF THE HIGH COURT OF JUSTICE IN RESPECT OF GRANTS OF PROBATES AND ADMINISTRATIONS; WITH THE PRACTICE AS TO MOTIONS AND SUMMONSES IN NON-CONTENTIOUS BUSINESS. By THOMAS HUTCHINSON TRISTRAM, D.C.L., Advocate, of Doctors' Commons. Butterworths.

This work will supply a want, since none of the existing treatises upon contentious probate business have entirely satisfied the requirements of the profession, while the Judicature Acts have considerably modified a system in which the practice under the Act of 1857 had been blended with the old practice of the ecclesiastical courts. Dr. Tristram possesses exceptional qualifications for the task which he has undertaken, both from his experience under the old and the new practice, and also as one of the framers of the Judicature Act Rules and Forms. A glance at the table of contents will be sufficient to show how much assistance the practitioner will derive from the work. The practice as to motions and summonses is first explained, and then the procedure in a probate suit, from caveat to entry of judgment, is set forth; the provisions of the rules and orders under the Judicature Acts, as well as those of the Probate Act, being incorporated in the text. There is also a chapter upon Appeals, which sets forth the practice, not only in the Court of Appeal, but in the House of Lords. The Married Women's Property Act, 1870, is given in extenso in the appendix, and its effect upon the wills of married women is fully referred to in the

text.

The decisions reported in two of the current series of reports appear to be, in general, carefully collected, although we cannot discover any reference to the recent case of Smee v. Smee (L. R. 4 P. D. 84), although it is stated that Sir J. Hannen was a party to the judgment in Banks v. Goodfellow (L. R. 5 Q. B. 549)," and adheres to it in the Probate Court." Dr. Tristram appears to have somewhat arbitrarily passed over without notice all cases which are not reported in the Law Reports or the Law Journal. This has led to the omission of some decisions of importance, such as Wells v. Brook (25 W. R. 463), which is an important case upon the question of passing over a widow in making a grant of administration, and the more recent case of In the Goods of Gatti (27 W. R. 323), which involved the construction of two of the Naturalization Acts. On the other hand, we should mention that the author has referred to all such recent cases, in the other divisions of the High Court, as have any direct bearing upon probate practice.

EXECUTORS AND ADMINISTRATORS. We last week received from Mr. W. Gregory Walker a long letter on the subject of the review which appeared in this journal some weeks ago (ante, p. 69) of his book on Executors and Administrators, calling in question the accuracy of some of our reviewer's statements of the law. We shall, first of all, print Mr. Walker's statement of his objections, and then proceed to consider how far the statements in our review were correct. Mr. Walker says:

"1. Your critic objects to my inaccuracy' in adopting the head-note (L. R.) of Burdick v. Garrick as a sufficient expression of the rule as to charging an executor with compound interest, on the grounds, as I understand, that (a) the head-note does not represent the judgment; (b) that that case must be taken in connection with the "cases recognized" by Lord Selborne in Vyse v. Foster (L. R. 7 H. L. 346). As to the first of these grounds of objection, I am in no way concerned to defend the Law Reports from any strictures you may pass upon them, but I have re-read Burdick v. Garrick in those reports, and cannot see that the head-note in question is not a correct note of the decision. As to the second ground of objection, the case (not cases') mentioned by Lord Selborne at the page to which I am referred is Jones v. Fuzall. Now, Lord Selborne, after alluding extrajudicially i

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and hypothetically to the possibility of charging with compound interest a trustee who, in disregard of the express terms of his trust, keeps trust funds uninvested, immediately adds 'Of that I say nothing.' Can this fairly be called a ' recognition of Jones v. Foxall ? On the other hand, the question of compound interest came formally before a strong court in Burdick v. Garrick (in which Jones V. Foxall amongst many other cases was cited), and the question was expressly decided in terms which, I submit, are accurately summed up in the head-note abovementioned. Moreover, on referring to Jones v. Foxall (15 Beav. 392), you will find that the Master of the Rolls in terms limits the cases in which compound interest will be charged against a trustee to cases where trust money has been employed by him in trade or speculation for his own benefit and advantage.'

"2. It is said I was 'misled' once more by that unhappy head-note to Burdick v. Garrick, and so did not call attention (as I ought to have done) to the fact, or supposed fact, that the rate of interest fixed in that case had express reference to the employment of the trust funds in trade; and it is hinted that I ought to have gone for my facts to the report of counsels' arguments. For my facts I looked, Sir, to more authentic sources, and I found (p. 255, L. R.) that the defendants swore (and it was not denied) that the money had not been in any way employed by them in business, except that is was paid into the banking account of a firm of solicitors in which the defendant M. was a partner; and I found on the same page that the Vice-Chancellor in the court below had been of opinion, not that the money had been employed in trade, but simply that the defendant M. had mixed the money with his own'; while on p. 242 I found Lord Hatherley, in determining the interest payable by M., expressly distinguishing for this purpose the business of a solicitor from trade. Once more, then, I submit that neither the head-note to Burdick v. Garrick, nor my use of it, was inaccurate.

"3. Your reviewer's next charge of inaccuracy is based upon my following the head-note to Blogg v. Johnson (L. R. 2 Ch. 225), and saying that the court will not charge an executor who has been guilty of delay in accounting with interest on arrears of income unpaid by bim'; and your reviewer refers me to a passage in Lord Chelmsford's judgment judgment I also find the following passages: in that case to prove an alleged blunder in the note. In that There can be

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no doubt, if this had been merely an application for interest upon the arrears of income due to the tenant for life], that not only the consent order would have been an answer to it, but that without any such order it must have been refused, upon the principle which has been long established by the numerous authorities referred to in the course of the argu. If then the plaintiff were seeking to obtain interest upon the arrears of income due to his testatrix, the authorities cited would be a conclusive answer to his claim.' His lordship then goes on to say that, if improper delay had been proved against the defendant, the court would, in the circumstances of the case, have ordered payment by him of interest on the sum found due from him, as on a capital sum due to the estate of the tenant for life then deceased, a very different matter. It was to this very different matter that the passage quoted by your critic bad reference.

4. But it seems I have been guilty of worse faults,' in that, while treating of the commission allowed here to executors on assets collected by them in India, I made no reference to an Indian Act of 1874. I will candidly allow, Sir, that I was ignorant of the Act; and I am very glad to have had my attention called to it, because I admit that it has an important bearing on the subject in question. The point is-ought I to have known of the Act? In your article on p. 3 of your 23rd volume (1878), in which I now know that you called attention to the enactment (not, be it observed, till four years after it had come into operation), you speak forcibly of the exceeding difficulty, almost amounting to impossibility, there is in acquiring any information as to Indian Acts. I am not aware that this difficulty is less in 1880 than it was in 1878. True, in the particular case-though, so far as I know, not one of the text-books contained any reference to the Act in questionthe SOLICITORS' JOURNAL had overcome the difficulty; but was I to know this? If the profession are bound to make themselves acquainted with all that appears in your valuable journal the obligation extends equally, it is plain, to the contents of the Law Journal and the Law Times, and possibly of other papers. Of course, a legal writer cannot justify himself if Le ignores

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