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THE CONVEYANCING BILL.

I.

THE Conveyancing and Law of Property Bill has now passed the House of Lords, and, in all probability, will become law this session. There are comparatively few conveyancing transactions which it will not affect, and it is, therefore, important that its provisions should receive the speedy and careful attention of the profession. We propose to consider first the clauses relating to sales. These, in the first place, extend the provisions of section 2 of the Vendor and Purchaser Act, 1874. "If and so far as a contrary intention is not expressed in the contract for sale," in the case of sales made after the commencement of the Act [the clause is expressly restricted to titles and purchasers in "sales" properly so called], certain conditions of sale are to be implied. These conditions relate to, first, the non-production of the title to the leasehold reversion under a contract to sell and assign a sub-lease. The case of a contract to grant a sub-lease is afterwards similarly dealt with under the head of leases (clause 17). The omission of this restriction from rule 1 of section 2 of the Act of 1874 was an oversight, and the new provision is entirely in accordance with practice. Secondly, the purchaser of enfranchised copyholds is restricted from calling for the title to make the enfranchisement. This provision can hardly have any very extensive operation, as we have always imagined that where an enfranchisement has been effected under the General Enfranchisement Act, it is unnecessary to show the title of the lord. It was expressly decided by the late Master of the Rolls in Kerr v. Pawson (6 W. R. 447, 25 Beav. 394), that under the Copyhold Enfranchisement Act, 1852, a good title to the lands enfranchised may be made without any proof of the lord's title. The next condition to be implied is an unusually stringent condition against the production or investigation of title before the time prescribed by law or stipulated for commencement of the title. The purchaser is not to require the production of any deed, will, or other document, dated or made before that time, 66 even though it creates a power subsequently exercised by an instrument abstracted in the abstract." He is also to assume, unless the contrary appears, that the recitals contained in the abstracted instruments of any document forming part of the prior title are correct, and give all the material contents of the document so recited, and that every document so recited was duly executed by all necessary parties, "and perfected, if, and as required, by fine, recovery, acknowledgment, inrolment, or otherwise." We have next the condition which a singularly superstitious belief in the efficacy of the receipt of rent as waiver of forfeiture for breaches of covenant has rendered universal on the sale of leaseholds -that the receipt for the last payment of rent shall be be conclusive evidence of the performance of the covenants in the lease. This clause has been amended by the addition of the words we suggested when the Bill last appeared in Parliament, so as to make the receipt which is to be produced the last receipt before the actual completion of the purchase. The next condition relates to the costs of production and inspection of documents, &c. This has been amended with reference to a criticism we ventured to make last year, but we do not think very successfully. It is still open to the objection that under its terms it may be contended that copies of, or extracts from, documents not to be handed to the purchaser are to be furnished before completion at the cost of the vendor. It is provided, first, that the costs of copies of, or extracts from, documents not in the vendor's possession are to be borne by the purchaser, and it is then added, "where the vendor retains possession of any document, the expenses of making any copy thereof, attested or unattested, which a purchaser requires to be delivered to him, shall be borne by that purchaser." It appears to

us that this provision would be held to refer exclusively to copies asked for by the purchaser on completion, and not to extracts from documents asked for in the course of the investigation of the title. A few words should be added to make the meaning clear. The last condi. tion is the ordinary one, restricting the purchaser of two or more lots held under the same title from requiring more than one abstract, except at his expense.

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The next clause proposes to provide that, "where at the death of any person there is subsisting a contract enforceable against his heir or devisee, for the sale of the fee simple or other freehold interest, descendible to his heirs general, in any land, his personal representatives shall, by virtue of this Act, have power to convey the land for all the and interest vested in him at his death, in any manner proper for giving effect to the contract," but the conveyance is not to affect the beneficial rights of any devisee, heir, or next of kin of a testator or intestate. Having regard to the fate of section 4 of the Act of 1874, it is not very likely that this power will be extensively used. It is not probable that the personal representative will be very ready to take upon himself to decide whether a contract is or is not "enforceable against the heir or devisee," or what is the "manner proper for giving effect to the contract."

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Clause 5 is repeated unaltered from last year's Bill. It provides that, "where the solicitor of a purchaser finds that the title shown to the property purchased has been previously investigated and accepted on behalf of a purchaser through whom the title is deduced, it is hereby declared to be in the discretion of the solicitor to dispense with further examination or investigation of the title so previously investigated and accepted; and a solicitor so dispensing shall not be answerable in respect of any loss that may arise thereby. Where the solicitor is acting for trustees, executors, or other persons in a fiduciary position, those persons also shall not be answerable as aforesaid." This clearly will not do. If the clause is passed as it now stands, every solicitor who dispenses with the further examination or investigation of title, on the ground that it has been previously investigated and accepted, will have to prove that the title was previously investigated. Suppose the prior owner bought under conditions cutting down his right to investigate to the conveyance to such purchaser, is that an "investigation which would enable a solicitor to dispense with any investigation of the title? Clearly not, for the clause only provides that the solicitor may dispense with further examination or investigation "of the title so previously investigated and accepted "—that is to say, the solicitor, in the case we have put, may dispense with further investigation of the conveyance to the purchaser, but he will be liable to his client if he omits to investigate any earlier or other title which he may be allowed by the conditions of sale to investigate. See what a snare is here laid for unwary practitioners, and see also how useless the provision will be. Before the solicitor can dispense with further investigation, he must satisfy himself what part of the title has been investigated; he cannot do this without being furnished with the contract of sale and abstract and requisitions on the former purchase, and he will have to examine the abstract to see how far it covers the ground of the present title. Moreover, a solicitor who dispenses with further examination of title will have to carefully preserve evidence of the fact that the title was previously investigated.

The next clauses relating to searches appear to have been left in the Bill without considering the fact that since it was drafted it has been provided by Rules, April, 1880, rule 48, that searches and certificates of search shall be made on a request in writing by the registrars of certificates of acknowledgment and of judgments. General rules are to be made under the clause, prescribing forms and contents of requisitions and certificates. It is provided that "where a solicitor obtains an office-copy certificate of result of search

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shall set forth the consideration for which such bill of sale was given." The facts in that case were as follows: -The bill of sale recited that the plaintiffs had agreed to lend the grantor the sum of £7,350, that he was already indebted to them, and that it had been agreed that he should execute the bill of sale as a security for the repayment of the said sum, with interest. The bill of sale then witnessed that, in pursuance of the agreement and in consideration of £7,350 paid by the plaintiffs to the grantor, he assigned the goods mentioned therein to the plaintiffs. No money actually passed between the parties, but the sum of £7,350 was the balance due to the plaintiffs in respect of advances made by them from time to time to the grantor. The question was whether the consideration was properly set forth. The general principle to be applied to the construction of this section was laid down in Ex parte The National Bank, In re Haynes (28 W. R. 399, L. R. 15 Ch. D. 42), where Lord Justice James said that "the Act requiring the real, the actual, consideration to be set forth, does not require that any bargain between the parties relating to it should be stated. Of course, if there was a bargain that the whole sum which is stated to be the consideration should be at once returned to the grantee, that would be a sham transaction, and the court would know how to deal with it. But when there is a bargain that a part of the sum stated to be advanced shall be applied in the payment of a real debt due at the time from the grantor to the grantee, there is no reason for calling that a sham transaction, or for holding that the Act applies to it. view the real consideration as between the grantor and the grantee the consideration which would have been properly stated in the deed if the Act had not been passed-is the consideration which ought now to be stated in the bill of sale." In that case an antecedent debt was satisfied out of a new advance, the grantor handing back £550, out of £2,050, to pay off previous liabilities to the grantees. In Credit Company v. Pott ro money was handed over, but in other respects the transaction was similar, and the Court of Appeal held that the decision must be the same. As Lord Justice Brett said, it is sufficient if the statement of facts is accurate as to their legal effect or as to their mercantile and business effect, although the facts themselves are not accurately stated. "It was agreed between the parties that a certain security, although it might have been demanded at once, should be held over until demand had been made in writing, and that arrangement was carried out by the bill of sale. The legal effect of that was that the old debt was wiped out, and a new debt established-in other words, that a new debt was incurred, and an agreement for valid consideration was entered into that that debt should not be payable till after a demand in writing had been made. There was a new debt upon new terms. It was the same thing as if the money had been handed to the creditor, and immediately handed back by him on the new terms agreed upon. The legal effect was getting rid of the old advance and establishing a new loan; that was also the mercantile and business effect, so that the money said to be advanced under the bill of sale was as much advanced as if cash had passed between the parties, and therefore the consideration was truly described in the bill of sale."

RECENT DECISIONS.

IN RE ROOSE, EVANS v. WILLIAMSON,
M.R., 29 W. R. 230.

The question here was as to whether under a bequest of "farming stock" growing crops will pass. The point is one on which much doubt has been felt, and the decisions have been conflicting. The first case in which it arose appears to have been Cox v. Godsalve, which is reported in a note at p. 604 of 6 East., from a MS. of Lord Holt. There the bequest was of "all my goods and chattels, stock of my farms,

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and all other my moveables whatsoever," and it was held by Lord Holt that growing corn passed under the bequest. In West v. Moore (8 East. 335), under a bequest of "stock upon my farm, with the implements of husbandry, and all that my personal estate of what nature or kind soever," Lord Eilenborough held that growing crops of corn were included in the bequest, although he said that, but for Cox v. Godsalve, he "should have been more inclined to think that 'stock on the farm,' meant moveable stock;" but, he added, "a construction having been once put upon these words, the question is now concluded." In Blake v. Gibbs (reported 5 Russ. 12, note), Lord Gifford, M.R., adopted the same view, saying that "the two cases which have been cited prove that the implements are part of the stock, and will pass under the description of stock on a farm.” It can hardly be doubted that these judges considered that the expression "stock on a farm" had received a construction, and that a bequest in a will of "stock on a farm" would include growing crops. But in Vaisey v. Reynolds (5 Russ. 12) Sir John Leach refused to follow these decisions, on the ground that in the case before him the gift of the stock on the farm was not accompanied with a gift of the residue of the personal estate. He thought that the cases above mentioned had been decided "rather because the [legatee] was plainly meant to take the whole personal estate, than from the mere force of the words 'stock of my farm,' or 'stock upon my farm."

In In re Roose a testatrix had devised all her real estate to her daughter and "all the farmingstock, goods, chattels, and effects which shall be in or about Frondeg [i.e., the farm] at the time of my death." There was a gift of the residue of the personal estate to her executors upon trusts. The Master of the Rolls said that a construction had been put upon the words "farming stock" by the earlier cases, and he held that they in cluded growing crops. His decision is in accordance with the weight of authority and probably with the intention of testators. But it is to be observed that the decision is not quite inconsistent with Vaisey v. Reynolds, for the testatrix bequeathed to the granddaughter, not merely the farming stock, but also all the goods, chattels, and effects on the farm. It will not be quite clear that Sir John Leach's decision is overruled until we have a case in

which there are no other words in the will besides "farm

ing stock" which would suffice to carry the growing

crops.

MUDGE v. ADAMS, P.D., 29 W. R. 307. This case is of importance as deciding that a husband can, after his wife's death, take proceedings to set aside a protection order obtained by her on the ground that it was obtained without his knowledge and by means of misrepresentation and fraud, and that he has not been guilty of desertion. Sir J. Hannen also held that a will made by the wife after the date of the protection order, and disposing of separate estate, is not one of the "acts of the wife which are protected under the 21 & 22 Vict. c. 103, s. 8, in case of the discharge of the order. The case further decided an important point of pleading. In a suit for probate of a will made by a wife who had obtained a protection order, Sir J. Hannen held that a

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counter-claim in which the defendant asked for a discharge of the protection order upon the grounds already mentioned was good, since the relief asked for in the counter-claim was precisely within section 24, sub-section 3, of the Judicature Act, 1873, as being such relief as the court "might have granted in any suit instituted for that purpose by the same defendant against the same plaintiff."

CORRESPONDENCE.

NAVAL DISCIPLINE ACT AMENDMENT BILL. [To the Editor of the Solicitors' Journal.] Sir,-The clause to which, in your issue of the 19th inst., your correspondent "J. G." called attention, is one deserving, I think, of grave consideration. It is, I think I may safely say, without precedent. It seems obvious that the draftsman, desiring to effect consolidation, has adopted the present course to avoid that obstruction to the measure which might arise from actual consolidation by the Bill; as in that case every clause, although a mere reproduction of existing law, would be exposed to the same opposition as if it were really a new enactment.

But the question remains, Is the proposed course right?

The clause referred to by your correspondent requires that "her Majesty's printers shall print, in accordance with the copy so certified [i.e., by the Clerk of the Parliaments], all copies of the Naval Discipline Act, 1866, which are printed after the commencement of this Act." This seems to be retroactive legislation, making what has been done under the existing Act appear to have been unlawfully done; sentences of corporal punishment, for instance, pronounced under it will appear to have been illegal. Surely if anything in the shape of consolidation in the form proposed is to be adopted, the copy certified by the Clerk of the Parliaments should be deemed an Act of 1881, and so issued. Moreover, it is to be observed, the present Amendment Bill, when it has become an Act, will be printed, notwithstanding that its amendments of the Act of 1866 will, by the process contemplated (with one or two exceptions which it is unnecessary for the present purpose to notice), be consolidated with that Act.

It is really difficult to know what character to assign to the instrument to be certified by the Clerk of the Parliaments. It is to be printed in the place of the original Act of 1866, which Act, however, is not to be repealed, and, as already noticed, the amending Act will be printed. Will not the profession, being in possession of the Acts of 1866 and of the amending Act of 1881, be content to disregard the document certified by the Clerk of the Parliaments, or a print of it issued in the place of the Act of 1866, which, it seems to me, for the reasons I have stated, they will be under no obligation to look at?

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DUTY.

THE following resolutions have been passed by the Council of the Nottingham Incorporated Law Society 1. That, in the opinion of this council, the imposition of a tax upon solicitors for practising their profession is unfair in principle and harsh in effect, and ought to be abolished.

2. That copies of the foregoing resolution be forwarded to the Incorporated Law Society of the United Kingdom, and to the provincial law societies, and that they be invited to co-operate in endeavouring to obtain the abolition of the above tax.

CASES OF THE WEEK.

HUSBAND AND WIFE-ANTE-NUPTIAL ASSIGNMENT BY WIFE TO HUSBAND-ACTION TO SET ASIDE-ALLEGED UNDUE INFLUENCE-APPOINTMENT OF RECEIVER.-In a case of Monk v. Monk, before the Court of Appeal on the 17th inst., a question arose as to the appointment of a receiver under somewhat singular circumstances. The action was brought by a wife (by her next friend) against her husband, claiming to set aside or vary a deed whereby she, the day before the marriage, had assigned to him absolutely the lease of a public-house which belonged to her, and in which she was carrying on the business of a publican. The plaintiff alleged that she had been induced to execute the deed by undue influence and pressure, and she asked for the appointment of a receiver and manager of the stock-in-trade and business, and an injunction to restrain the husband from interfering with them. The plaintiff alleged that before the marriage the husband had promised to carry on the business properly, and that he was not doing so. It appeared that, prior to the marriage, a settlement had been executed of other property belonging to the wife, but that the husband had said he would not marry her unless the lease of the publichouse was assigned to him absolutely, and she then consented to make the assignment. She was a widow, aged about fifty. On an interlocutory motion by the plaintiff,. Malins, V.C., appointed a receiver and manager. The Court of Appeal (JAMES, COTTON, and LUSH, L.JJ.) discharged the order, on the ground that there was no jurisdiction to make it. JAMES, L.J., said that he was unable to see any ground for the interference of the court with the possession of the husband. It was not denied by the wife that he insisted on the assignment being made to him as a condition of the marriage, and that she assented to his wish. This, then, promised to manage the business properly could not be made was the bargain between the parties. The fact that he had the foundation of any equity to set aside the deed, which was executed by her with full knowledge of its contents. Indeed, if it were set aside, the only result would be that he would take the property in his marital right. There was no ground for saying that the husband had exercised any undue influence in refusing to marry the lady unless she would execute the assignment, and there was no foundation for the interference of the court. COTTON, L.J., said that the deed could not be varied, it not being shown that there was any other contract between the parties. And it could not be set aside, for the plaintiff did not allege that she did not understand its effect, and if it was set aside the property would be the husband's. The wife's case came to this, that she had made a foolish marriage. But the court could not interfere merely because there were unfortunate differences between husband and wife, and they had discovered that they had made a mistake in marrying. The only ground for the interference of the court would be that there had been a contract for a settlement of the property. It could not interfere, because it might think that, by reason of unhappy differences between the husband and wife, it would be better that there should be a settlement. The case was not one in which any equity to a settlement would arise in favour of the wife. An attempt was made to support the jurisdiction of the court by a reference to the decision of Lord Langdale, M.R., in the case of Page v. Horne (11 Beav. 227). In that case a marriage was agreed upon between the plaintiff and a young lady, and after some negotiation a settlement was made of a sum of £1,500, to which the lady was entitled, and which was invested on a mortgage in the name of her former guardian, and the mortgage was transferred to the trustees of the settlement. The settlement was executed on March 14,

and it contained a declaration that the trustees should stand possessed of the £1,500 on trust for the lady, her executors, administrators, and assigns, until the solemnization of the intended marriage, and after the solemnization on trust for the wife, during the joint lives of herself and her husband, for her separate use without power of anticipation, with remainder for the survivor for life, with remainder to the children of the marriage, with remainder, in default of issue, to the survivor of the husband and wife. On the 27th of March, the intended husband and wife executed a deed poll by which she, with his privity, purported to revoke the settlement, and to declare that the trustees should hold the £1,500 on trust for

her, to the intent that the same might on the marriage vest in the husband by virtue of his marital right. The next day the marriage was solemnized. The suit was brought after the marriage by the husband against the trustees and the wife to obtain payment of the £1,500. The master by his report found that the wife executed the settlement in the belief that the effect of it would be to leave the fund subject to her absolute control as if she had remained unmarried; that a few days before the marriage she became aware for the first time of the real effect of the settlement, and at once expressed her determination not to marry under such circumstances; and that thereupon the deed of revocation was prepared and executed of her free and voluntary act and without persuasion, request, or influence by the intended husband. Lord Langdale thought the case one of great difficulty. He observed that no one could say what might be the extent of the influence of a man over a woman whose consent to marriage he had obtained. The master had reported that no undue influence had been used, but the court would look with great vigilance at the circumstances and situation of the parties in such cases, and would not only consider the influence which the intended husband, either by soothing or violence, might have used, but would require satisfactory evidence that it had not been used. The husband had acted in concurrence with the wife's guardian in the first instance, and his lordship thought it was not competent for him afterwards to deal with her alone in obtaining a revocation of the settlement. Therefore he dismissed the bill, though not without considerable doubt. JAMES, L.J., said it was unnecessary to express an opinion whether that case had been rightly or wrongly decided, though it went further than any other case before or since. But it was a peculiar case. And, if the deed of revocation could not stand, the settlement remained in force; whereas in the present case, if the deed was set aside, the husband would still take the property.-SOLICITORS, W. Crook; H. May.

LIQUIDATION RESOLUTIONS REGISTRATION SMALL AMOUNT OF ASSETS-BONA FIDES OF CREDITORS-BANKRUPTCY ACT, 1869, s. 125.-In a case of Ex parte Mathewes, before the Court of Appeal on the 17th inst., the question arose whether resolutions, which had been passed by the statutory majority of creditors, for the liquidation of a debtor's affairs by arrangement ought to be registered by reason of the small amount of his assets, as shown by his statement of affairs, in proportion to the amount of his debts. The debts were stated to amount to £1,759, and the assets were estimated as worth £85, from which a deduction of about £15 would have to be made for preferential debts. The creditors resolved upon a liquidation by arrangement, and gave the debtor an immediate discharge. They also fixed the remuneration of the trustee at £10. At the meeting the debtor's solicitors, who were appointed solicitors to the trustee, said that they would be content to take only their costs out of pocket of the proceedings. The registration was opposed by a creditor who had recovered judgment for £182, and who was in a position at once to issue execution, but had been restrained by an order of the Court of Bankruptcy. Bacon, C.J., held that the case was governed by the decision of the Court of Appeal in Ex parte Early (28 W. R. 310, L. R. 13 Ch. D. 300), and ordered the resolutions to be registered. In Ex parte Early the debts were £534 and the assets £85, and the creditors had resolved on a liquidation and given the debtor an immediate discharge. The registration was opposed by one creditor, who had, after the filing of the petition, seized the debtor's goods (which formed the whole of his assets) under an execution for £95. The Court of Appeal held that the resolutions ought to be registered, on the ground that, as JAMES, L.J., said, though the assets were small and might probably produce nothing for anyone, the real contest had been whether one creditor should take the whole of them, or whether they should be distributed among all the creditors. On behalf of the appellant in Ex parte Mathewes reliance was placed on Ez parte Staff (23 W. R. 950, L. R. 20 Eq. 775), Ex parte Sir W. Russell (23 W. R. 817, L. R. 10 Ch. 255), and Ex parte Aaronson (26 W. R. 470, L. R. 7 Ch. D. 713), Cases in which the registration of liquidation resolutions had been refused, the assets of the debtor being very small in proportion to his liabilities. In Ex parte Aaronson the creditors had not given the debtor a discharge, and therefore they bad reserved their rights against his after-acquired

property. And it was also urged that the appellant could not derive any separate advantage by a refusal to register the resolutions, for if he should levy execution, it could not prevail against the title of the trustee in bankruptcy of the debtor. Some creditor would doubtless present a bankruptcy petition, founded on the filing of the liquidation petition as an act of bankruptcy, and the appellant's counsel offered an undertaking by the appellant to present a petition. The court (JAMES, COTTON, and LUSH, L.JJ.), however, affirmed the decision of the Chief Judge. JAMES, L.J., said that he could find no sound distinction between this case and Ex parte Early. In the cases which had been cited on behalf of the appellant, the court came to the conclusion that the resolutions had not been passed in the interest of the creditorsthat, in fact, they had no interest. But in Ex parte Early the creditors had an interest in endeavouring to get the whole of the debtor's assets distributed among all the creditors, and in preventing the one creditor from taking the whole. The contest there was not on behalf of the debtor, but on behalf of the creditors, and there was no ground for a distinction between that case and the present. COTTON, L.J., agreed that there was no distinction between the two cases, and therefore, though with reluctance, he was of opinion that the resolutions must stand. LUSH, L.J., thought that the case was exactly within Ex parte Early, and said that he should have arrived at the same conclusion, independently of that decision.—SOLICITORS, Spyer & Son ; Greenfield & Abbott.

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APPEAL NOTICE TO ITHDRAW-RIG T OF APPELLANT TO PROCEED.-In a case of Watson v. Cave, before the Court of Appeal on the 19th inst., the question arose whether an appellant, who gives the respondent notice of his intention to withdraw his appeal, is entitled afterwards to proceed with it. After the notice of appeal had been served, the appellants' solicitor wrote on the 26th of January to the respondents' solicitors-"I propose to withdraw the appeal. Please hand bearer your consent to the withdrawal. My clients will, of course, pay your proper costs of the appeal. In the event of your not consenting, I must ask you to treat this letter as without prejudice.' On receiving this letter the respondents' solicitors at once wrote, consenting to the withdrawal of the appeal. On the 28th of January, after receiving this consent, the appellants' solicitor again wrote to the respondents' solicitors-" When I wrote my letter to you of the 26th inst. my clients were under a misapprehension as to a matter of fact which it was material for them to know in deciding whether to proceed with the appeal or to withdraw it. That misapprehension has to-day been removed, and it is now their intention to proceed with the appeal. I write, therefore, without a moment's delay, to give you notice that I no longer propose to withdraw the appeal, and that it will be proceeded with." The appeal was accordingly brought on, and upon it being opened the preliminary objection was taken that after the notice of withdrawal the appellants could not proceed with their appeal, and the court (JAMES and LUSH, L.JJ.) held that this was a valid objection. It was urged on behalf of the appellants, that there had been no actual withdrawal of the appeal, but only a statement of their intention to withdraw it, and that they gave notice of their change of intention before either side had taken any steps to have the appeal struck out. Until something had been actually done in pursuance of the voluntary agreement, there was, it was said, a locus pænitentiæ. JAMES, L.J., said it would be pessimi exempli to allow such a withdrawal of the appeal to be rescinded. It was true that the attempt to recall the withdrawal was made within two days after it had been seat. But it might have been after two years, and it was impossible to say what steps the respondents might not

meanwhile have taken on the faith of the withdrawal. The letter of the 26th must be treated as a formal notice of the appellants' intention to withdraw their appeal. Their proposal was accepted by the respondents, and if they afterwards wished to return to their former position their proper course would have been to apply for leave to give a fresh notice of appeal. If there had been any mistake the court might have acceded to the application, but at present the court knew nothing about the facts. LUSH, L.J., said that the proposal made by the appellants, when acceded to by the respondents, amounted to a contract binding on the parties, and it was not necessary to give it validity that the appeal should be actually struck out of the list. After what had taken place the court itself would have ordered the appeal

to be struck out. If the appellants could have shown that there had been a mistake of a serious nature, the court might have allowed them upon a proper application to give a new notice of appeal. The appeal was accordingly dismissed, with costs, but the respondents were disallowed their costs of some affidavits which they had filed after they had accepted the withdrawal. And the court gave the appellants leave to serve a notice of motion to enlarge the time for appealing. SOLICITORS, Rooks & Co.; Smiles & Co.; T. Cave; Markby, Stewart & Co.; James Neal; Harrison, Beal & Harrison; Batten & Co.; G. & S. Brandon; Travers Smith, & Braithwaite.

SOLICITOR-COSTS-TAXATION-PAYMENT-6 & 7 VICT. c. 73, s. 41.—In a case of In re Whately, Milward, & Co., before the Court of Appeal on the 22nd inst., a question arose as to the right to taxation of some solicitors' bills of costs. Bills had been from time to time delivered by the solicitors to the client, and the client had from time to time paid the solicitors various sums on account generally. On the 13th of April three bills were delivered, and on the 4th of July the client paid the solicitors £200 on account. The £200, together with the previous payments made by the client, considerably exceeded the amount of all the bills which had been delivered up to that time. Other bills were subsequently delivered, and, at the time when the client ceased to employ the solicitors, the account of bills delivered on the one side, and pay; ments made by the client on the other, showed a small balance in favour of the client. The client applied for a taxation of the bills more than twelve months after the payment of the £200, and the solicitors objected that the bills had been paid, and that it was too late to ask for taxation. Hall, V.C., made an order for taxation, and his decision was affirmed by the Court of Appeal (JESSEL, M.R., and JAMES and LUSH, L.JJ.), who said that it was necessary for the solicitors to prove that which would support a plea of payment at law. The payment of sums on account might support a plea of set-off, but would not support a plea of payment. Payments on account could not be treated as payment of the bills, unless it was proved that the client had agreed that they should be so treated.SOLICITORS, S. Whitehead; J. Cotton.

PRACTICE-TIME FOR APPEALING-REFUSAL AT TRIAL OF LEAVE TO AMEND PLEADINGS-ORD. 58, R. 15.-In a case of Laird v. Briggs, before the Court of Appeal on the 23rd inst., a question arose as to the proper time for appealing from the refusal of an application for leave to amend a pleading made by counsel at the bar in the course of the trial of an action. At the trial of the action on the 14th of December, 1880 (29 W. R. 197), the defendant's counsel asked for leave to amend his statement of defence. Fry, J., refused the application, and he gave judgment for the plaintiff, granting an injunction to restrain the defendant from committing certain acts of trespass. The judgment, as drawn up at the request of the defendant, contained a recital of the application for leave to amend, and a statement that the court did not think fit to make any order on the application. The defendant served a notice of appeal from the judgment, stating in his notice the effect of the judgment so far as it granted the injunction, but in no way referring to the refusal of the leave to amend. Afterwards he desired to appeal from that refusal, and he moved in the Court of Appeal that, notwithstanding the expiration of the twentyone days limited by rule 15 of order 58, he might be at liberty to give notice of appeal from the refusal of leave to amend. The court (JESSEL, M.R., and JAMES and LUSH, L.JJ.) said that no leave was necessary. The refusal of leave to amend was not an interlocutory order, but was part of the judgment in the trial, and on the appeal from the judgment the whole thing would be open, and the Court of Appeal could give leave to amend, if it should be of opinion that the judge had wrongly refused it. The application was accordingly refused with costs. JESSEL, M.R., said that the refusal of leave to amend ought not to have been referred to in the judgment. Such a reference was contrary to the practice. -SOLICITORS, Remnant, Penley, & Grubbe; Harrisons.

MARRIED WOMAN-SEPARATE ESTATE-GENERAL ENGAGEMENTS-ACTION BY CREDITOR-INJUNCTION-JUDICA

TURE ACT, 1873, s. 25, SUB-SECTION 8.-In a case of
Robinson v. Pickering, before the Court of Appeal on the
23rd inst., & question arose as to the right of a creditor
who sues a married woman in respect of a debt contracted
on the faith of her separate estate, to obtain an injunction
restraining her from dealing with the estate pending the
trial of the action. The action was brought by a creditor,
who alleged that he had supplied goods to a married
woman on the credit of property which was vested in the
trustees of her marriage settlement on trust for her sole
and separate use, against her and her husband and the
trustees, claiming a declaration that he was entitled to a
charge on the separate estate for the payment of the price
of the goods, and payment accordingly, and that, in the
meantime, the defendants might be restrained from dealing
with the property. On an interlocutory motion, Malins,
V.C., granted the injunction asked for until judgment in
the action or further order. The Court of Appeal (JESSEL,
M.R., and JAMES and LUSH, L.JJ.) held that the injunction
had been improperly granted, and discharged it. It was
arged on behalf of the plaintiff that, inasmuch as a
married woman cannot be made a bankrupt, the court
ought to prevent her, after she has contracted debts.
on the credit of her separate estate, from fraudulently
disposing of it, and thus defeating the rights of
her creditors. And it was suggested that the court can now
grant such an injunction under the power given to it by
sub-section 8 of section 25 of the Judicature Act of 1873, to
grant injunctions whenever it shall appear "just or con-
venient" to do so. JESSEL, M. R., said that the prac
tice as to granting injunctions had been altered by
section 25, but the court must still act according to settled
legal principles. The general engagements of a married
woman, contracted on the faith of her separate property,
bound that property in this sense-that the creditor could
obtain judgment against the separate property, and
could then obtain payment out of it. She stood in
much the same position as a man who was a non-trader
stood under the old law when he could not be made a bank-
rupt. The property could not be affected by mesne process
until the creditor had established his right by obtaining a
judgment. Otherwise, any married woman who depended upon
her separate property might be left to starve if some one
alleged that she was indebted to him. JAMES, L.J., said
that, at one time there was a notion that the engagements of
a married woman were in the nature of charges upon her
separate estate. But it was afterwards pointed out
that there was only the relation of debtor and creditor, with
a right for the creditor to go against the particular fund.
If a general engagement created a charge on the separate
estate, then, as was pointed out long ago by Lord Cottenham,
each creditor would take priority according to the order in
date of his debt. Till judgment had been obtained in re-
spect of a general engagement, a married woman could not
be restrained from dealing with her separate property any
more than a man who was a debtor could be restrained from
dealing with his property at the instance of an ordinary
creditor. SOLICITORS, Elmslie, Forsyth, & Sedgwick;
T. A. G. Powell.

PATENT ACTION-ACCOUNT OF PROFITS-EVIDENCE OF COST OF MANUFACTURE-NON-PRODUCTION Of Defendant's BOOKS.-In a case of The British Dynamite Company V. Krebs, before the Court of Appeal on the 23rd inst., a question arose upon the taking of an account of profits, under a judgment against the defendant for the infringement of the plaintiffs' patent. The defendant claimed to deduct from the gross proceeds of the sale by him of the articles which infringed the patent the sum of £9,000 for the cost of manufac ture, and he swore that that sum represented the actual cost of manufacture. He did not, however, produce his books, and declined to do so. No order for production had been obtained. Hall, V.C., disallowed the whole £9,000. The Court of Appeal (JESSEL, M.R., and JAMES and LUSH, JESSEL, M.R., L.JJ.) held that this course was wrong. said that, in order to assist the plaintiffs in proving the amount of profits, they were entitled to full discovery from the defendant, including the production of his books. If they wanted the books they should have obtained an order for production, and have enforced it in the usual way. If they did not want the books they, being the largest manufacturers of the article, could have shown by other evidence what the cost of manufacture was. They

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