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framed to meet the defect disclosed by Dumpor's case, although, as we all know, the doctrine of that case died more than twenty years ago. Why is this? There are several causes. One is the agreement of the parties, which is very commonly for a lease on the same terms as those on which the last tenant held the premises. Here the solicitor has no alternative but to repeat the covenants of the old lease. Another cause is the conservatism of the estate offices of large proprietors or corporations. The legal effect of the old form is known; the old form is kept in print, and it is considered desirable that all the tenants should hold subject to the same provisions. Another cause is the conservatism of the solicitor of the intending lessee. Any unusual provision (which will never be in favour of the lessee) is struck out, the reason given in the margin being simply " This is unusual." And lastly, the authoritative collections of precedents of leases being always edited by counsel, who have seldom before them any other leases than those of exceptional importance, which are granted by large proprietors or corporations having traditional forms of lease, the stereotyped covenants are in the precedents taken from these leases to save the tronble of framing them anew. We do not hesitate to say that there is no thoroughly satisfactory collection of precedents of leases before the public. For instance, where can you find a full and complete model of an underlease? Some experience of drafting and knowledge are requisite, no doubt, for the task of framing one, but we cannot doubt that the learned editors of the leading collections of pre. cedents possess these qualifications, if they would only take the trouble to consider the question. But it is not desirable to enter on the task with revolutionary fervour and without much consideration. For instance, we have always regarded with considerable interest a certain form of "sub-lease," given in a well-known work (not mainly devoted to precedents), wherein the simple reader is warned that a sub-lease should never [the italics are the editor's] be drawn in the Bame words as the original lease. Duly following out this great discovery, the editor, in his model " sub-lease," makes the sub-lessee covenant only to pay rent and perform the covenants in the original lease, except the covenant for payment of rent and other excepted covenants; apparently forgetting that the effect of this will be to enable the original lessor, but not the uuderlessor, to enter and leave notice to repair; and to render the consent of the original lessor, but not of the underlessor, necessary to an assignment or underlease! We agree with our correspondent whose letter has suggested these observations, that some reformation in the collections of precedents of leases is necessary, and we hope learned editors of these collections will take heed to the matter.

Some Time Ago we received the following letter :—

"Sir,—Will yon inform me what is the locus standi of an amicus curice in a case; whether he is feed, and if so by whom; and by whom appointed f" As the letter is signed and bears an address, we presume that it is genuine; and, therefore, in our humble capacity of missionary to those that sit in legal darkness, we shall endeavour to supply an answer. The "locus standi" of the amicus curice is the ignorance, or f orgetf ulness, or want of candour of the counsel engaged in a case, and the—well, momentary lapse of memory on the part of the judge. These little defects are allowed to be supplied by any member of the bar who happens to be in court; who, so to speak, hands up a little lantern to help the judge through the dark ways of the law. The only fees of the amicus curia: are (1) the sense of having done bis duty; (2) the thanks of the court; and (3) the reputation of being a man who has cases at his fingers' ends. Fees belonging to classes (2) and (3), however, we ought to warn our correspondent, in case he intends to become an amicus curios, are (like certain other fees) somewhat uncertain. It is not a profitable thing to be

come an amicus curice in certain courts. "Will your lordship allow me," says a learned gentleman in the back benches, "as amicus curia:, to refer your lordship to the case of Jones v. Smith, fifteen Vesey, at page one hundred and twenty-one." "Fetch 15 Vesey," says the judge to his officer. Vesey is brought. "Mr. Brown, what has this got to do with the case in hand :- You've overlooked the facts on which the decision in that case was based." And 15 Vesey descends with ominous rapidity to the officer. In this case, our correspondent will observe, the amicus curice is not "feed." The origin of the amicus curice is, it has been stated, to be found in the Roman law. A judex, before deciding a case, was entitled to take the advice of "friends, acquaintances, and legal amateurs," but was not bound either to seek, or to adopt, their opinion (see Colquhoun's Summary of Roman Law, I. 35). The custom was established in Lord Coke's time, for he says that when a judge is doubtful or mistaken as to any question of law, he may be informed by any bye-stander, as au amicus curice. It has also been thought that a matter can be made to appear by suggestion on the roll by au amicus curice, although iu Smyth v. Irish (2 Keb. 548) it was said that "as amicus curice is not usual, by pleading it cannot be." In Rtx v Vaux (Comb. 13) it was held that any person'could, as an amicus curice, move to quash a vicious indictment, since judgment would have to be arrested in the event of a trial and verdict. We may add that the late Lord Campbell, when at the bar, was on one occasion "deputed" by the Chief Justice to go, as amicus curice, into the Court of Queen's Bench to ascertain the practice of that court is to taking a cause out of its turn to prevent an inj unction in equity (see Qoldschmidty. Marryat, 1 Camp. 559); and upon his return Mr. Campbell "certified " the rule in such matters as adopted by Lords Kexxox and Ellenborougb.

A Correspondent of the Times has drawn attention to the fact that affidavits are continually being lost at, or taken away from, the common law judges' and masters' chambers. He says that within the last few mouths no less than three affidavits have disappeared in cases in which he has been concerned, and he understands it is still a common practice for the officials at chambers to hand the affidavits back to the solicitors' clerks to enable them to draw up the orders which have been obtained upon them. Under the rules of April, 1S80, it is provided that every affidavit shall be filed in the Central Office, and that office copies of affidavits may, in all cases, be used, such copies being first duly authenticated by the seal of the office; but the writer says that when affidavits are filed, and office copies made for use in chambers, the masters disallow the costs of making office copies, and so encourage the old practice of using originals. The writer has apparently overlooked the fact that the rule does not require office copies to be taken, or forbid the original affidavits to be used as evidence. As a matter of fact even in the Chancery Division, in urgent cases, the original affidavit, having the filing stamp affixed, is used in court, but it is afterwards handed to the registrar to be filed. If, however, it is the fact that original affidavits at the common law judges chambers are handed back to the solicitors, and never filed, then of course the rule is broken; and it is easy to see that both the Revenue and the suitor are likely to lose by this irregular practice.

In View Op The Painful Incident which has resulted in the loss of the head and neck of one of the figures of mounted policemen represented in relief on the Temple Bar Memorial, it may be well to warn persons afflicted with emotions of iconoclastic zeal that the law affords means for their repression. By the Malicious Injuries to Property Act (24 & 25 Vict. c. 97, s. 39) it is provided that "whosoever shall unlawfully and maliciously destroy or damage any statue or monument exposed to public view, or any ornament surrounding such statue, shall be guilty of a misdemeanor," and, on conviction, shall be liable to imprisonment not exceeding six months, and, if a male under sixteen years of age, may be whipped. It is indeed possible, considering that the section is headed "Injuries to SVorks of Art," to raise a question whether it was intended to protect works such as the Temple Bar Memorial, but the words of the section apply to all " monuments," and this is clearly a monument both of Temple Bar and of civic obstinacy.


The case of Burnand v. Rodocanachi (L. B. 5 C. P. D. 434}, decided by Lord Coleridge, C. J., is one of some interest, involving as it does a curious application of a well-known principle of insurance law. It appeared that the plaintiff!i weTe underwriters who insured under a valued policy, covering war risks the cargo of a ship subsequently destroyed by the Confederate cruiser The Alabama. The damage done by The Alabama formed, as will be remembered, the subject of a claim by the United States against England, which was referred to arbitration; and ultimately a large sum was awarded by the arbitrators to the former nation. An Act of Congress was passed for the purpose of regulating the distribution of this sum of money among the parties who had suffered through The Alabama's operations. The Act provided that no claim should be admissible for any loss or damage for or in respect to which the party injured, his assignees or legal representatives, should have received compensation or iudemnity from any insurance company, but, if such compensation or indemnity so received should not have been equal to the loss or damage so actually suffered, allowance might be made for the difference. And it was also provided that no claim should be admissible or allowed by or on behalf of any insurance company or insurer, either in its or his own right, or as assignee or otherwise, in the right of a person or party insured as aforesaid, unless such claimant should show that during the late rebellion the sum of its or his losses in respect to its or his war risks exceeded the turn of its or his premiums or other gains upon or in rerpect to such war risks, and in case of any such allowance, the same should not be greater than such excess of loss: and that no claim should be admissible or allowed arising in favour of any person not entitled at the time of his loss to the protection of the United States in tbe premises, &c. The defendants, the owners of the cargo, received the amount insured for as upon a total loss, but the cargo was really of greater value. The defendants subsequently claimed under the Act above mentioned, and received a part of the compensation fund in respect of their loss beyond the amount insured. The plaintiffs sued them to recover the compensation money •0 paid to tbem. It was held that they were entitled to recover.

The Lord Chief Justice of the Common Pleas appears tj base his judgment on the principles which have been applied by the decisions of the courts to valued policies. The broad principle which governs in these cases is that, for the purpose of all questions that may arise between the parties to a valued policy with regard to the subject-matter of the contract, the value as stated in the policy must be taken to be the real value. The obrious immediate object of the valued policy was to avoid, in the event of a loss and an action on the policy, all question as to the real value of the subject-matter of iLsurance. Such policies appear to be, to some extent, in contravention of the policy of law which declares tho contract of insurance to be one of indemnity; but to determine the value of something that no longer exists in may be a very difficult matter, involving much expense and conflict of testimory, and this form of policy

appears to have been found convenient in many cases by mercantile men. But when the same test of value comes to be applied to other questions than the mere question what is to be paid under the policy, which may arise between the parties with regard to their rights under the contract, it may be doubtful whether the law does not go beyond the actual intention of the parties, and whether some amount of hardship may not arise. Nevertheless the law is obviously logical. There would be a difficulty in saying that for certain purposes of the contract the value of the subject-matter is to be regarded as settled by the agreement of the parties, and for others it is to be regarded as open.

It is clear law on an open policy that where the insurer has paid for a total loss the salvage belongs to him. Whatever may be the principle on which this depends, it seems to be settled law. If compensation in the nature of damages is to bo regarded as salvage witkia this rule, it would seem tkat tke same principle must apply to it quite independently of any question of valued or open policy. But if tke decision is to be treated as turning on tke policy being a valued one, it may be doubted wketker it was consciously intended by those wko first devised the valued policy tkat tke value of the subjectmatter should be considered as fixed for tbe purposes of tkese collateral questions, as well as for the purpose of determining the amount the underwriter was to pay for a loss. That the underwriter should be entitled to the salvage to the extent of indemnifying him may be just, but it is conceivable that if he is entitled to the whole be may make a large profit out of the loss. In the case of Young v. Turing (2 M. & G. 601), it was decided tkat, for the purpose of determining wketker tkere was a constructive total loss, tke valuation in tke policy was to be disregarded ; and Lord Abinger, in giving j udgment says, "Tbe agreed value in tke policy of the subject iusured is intended to save tke expense and doubt tkat may attend tbe investigation of value as affecting tke question of compensation only." Tke principle, however, of tkis class of cases is explained by Lord Coleridge, in the judgment in tbe case on wbick we aro commenting, as being tkat, altkougk you are not bound by tbe valuation in ascertaining wketker there has been a total loss, yet such a loss having once been established, then for ail purposes you are bound by the valuation. The case of North of England Insurance Association v. Armstrong (L. K. 5 Q. B. 244) is most distinctly in point, and seems to go the whole lengtk of the proposition on which tke judgment in tke case of Burnand v. Rodocanachi is based. There tke ship was iusured for £6,000 by a valued policy, the value declared being £6,000. Tbe skip was run down by another skip, and the owners recovered £5,000 against tke owners of tke otker skip. The real value of tke skip was £9,000, and tkere was no otker insurance upon ker. It was held tkat, as between tbe underwriter and tke assured, the value of the ship must be taken to be £G,000 for all purposes, and that, tkerefore, tke damages recovered, which were in tke nature of salvage, belonged entirely to the underwriters. The question which in tkat case was pressed on the counsel for the shipowners was to whom the ship, if it had been itself salved, would have belonged? He felt constrained to admit that it would have belonged to the underwriters, but he argued that that would have been a case of salvage, and that the then present cose was not. The court, however, could not distinguish between the ship and the damages that represented her.

The rules that apply to the subject of damages for collision in the Court of Admiralty seem to have prevented the question arising in its strongest form; but suppose the full value of the ship could be recovered as damages, and apply that hypothesis to circumstances such as arose in the case of North of England Insurance Association v. Armstrong, then the result would have been that the underwriters, besides the premium, would have made a gain of £3,000 out of the loss. This would be a startling result, but we do not see why it ia not a fair test to apply to the principle on which the decision went. In such a case the result would not seem to be altogether just. The assured is not indemnified, but suffers a loss of £3,000, and the underwriter gets a windfall of £3,000 for which he has given no sort of consideration. At the same time it must be admitted that if it is clear that the ship itself would have belonged to the underwriters, however much its value exceeded the amount of the valuation in the policy, it is difficult to see how the damages are to be dealt with on a different footing. We do not say that it is not clear law that the ship would have so belonged to the underwriters, but we are inclined to think that it is doubtful—if the thing were res integra—whether there is not some'room for argument that all the underwriters ought to have in such a case is at the utmost a lien on the ship for the total amount they have paid. But the truth is that it would rarely happen, when a total loss was paid for, that the ship, after deducting the expenses of salvage and repairs, was worth more than the valuation in the policy. Where the owners elect to abandon the ship and recover for a total loss, it may fairly be argued that, whatever the value of the salvage may ultimately prove to be, it was recovered on behalf of the underwriters, and ought to belong to them.

But it seems to us that it may be urged that, whatever may be logical in theory, it is doubtful whether, practically speaking, damages stand on the same footing as salvage in specie. They are not the ship nor are they the remains of it; they are an indemnity or compensation for the loss of it; and to the extent to which the persons receiving them were indemnified aliunde, it may be right that they Bhould account, either wholly or partially, for the damages to the indemnifier; but it seems a very strong proposition to say that, though they are not indemnified in toto, they must hand over the surplus beyond what is necessary to indemnify the indemnifier. In the case of Burnand v. Bodocanachi the actual figures are not given, and it must probably be presumed that the sum awarded by the United States court did not exceed the sum paid under the policy. It is difficult to suppose that it could have done so, because it will be observed that it is only the excess of loss beyond amount of insurance that was admitted by the Act as a ground for claim to a share of the compensation fund, so that unless this excess exceeded £15,000, the amount to be handed over by the defendants could not exceed the amount which the plaintiffs had paid. Therefore, no such case arises as we have been supposing—viz., a case where the total amount recovered exceeds the sum paid by the underwriter; but if such a case could and did arise, it will be observed that the reasoning on which the decisions in North of England Insurance Association v. Armstrong and Burnand v. Bodocanachi are founded would apply, and would go the length of showing that the whole amount recovered must be handed over by the incompletely indemnified insurer. We cannot help thinking that the propositions that the compensation or damages necessarily in all cases represent the thing insured so absolutely as to be treated as salvage, and also that the valuation is conclusive, not oaly for the purposes of an action on the policy, but to show that the assured has been completely indemnified, and so is bound to hand over all that he recovers, need further discussion before the law on this subject can be considered as established on a satisfactory basis. It may be observed that it is not very obvious on the principle enunciated by the Queen's Bench—viz., that the damages are to be regarded in the same way exactly as the ship in specie—how the question of the policy being a valued one is material. The same result must follow whether the policy is open or valued. The only question to which the form of the policy can be material is the question how far the insurer has been completely indemnified.

There was, in the case we are discussing, a further question whether the sum recovered by the cargo owners from the compensation fund could be treated as analogous to legal damages so as to bring the case within

the principle of North of England Insurance Association v. Armstrong. Lord Coleridge, very rightly, as weventure to think, looked to the substance of the thing, and decided that the amount recovered, though not legally damages, was so far analogous as to come within the same reasoning. He also held that the fact that insurers were excluded from the benefit of the Act, except in certain cases, did not affect the right of the plaintiffs to claim from the defendants that they should, according to the principles of English law, be held in the English courts to be trustees for the plaintiffs of the amount recovered out of the compensation fund.


It is satisfactory to find that the reports for the past year contain very few cases arising out of misconduct on the part of solicitors. In Cave v. Cave (28 W. R. 764) Mr. Justice Fry had reported to the official solicitor of theChancery Division certain misconduct on the part of a solicitor which had been disclosed in the course of an action tried before him; and he held, upon an application for leave to serve a notice calling upon the solicitor to show cause why he should not be struck off the rolls, that he had jurisdiction iu the matter, since it was a "further proceeding" in the action, within ord. 51, r. la, and did not fall within the Lord Chancellor's Order of June 19, 1877. Beg. v. Fullagar (41 L. T. N. S. 448) igthe only reported case of the prosecution of a solicitor. The prosecutrix was entitled to certain money which, had come into the hands of the prisoner, as solicitor to her trustees, ou a mortgage being paid off. He wrote a letter to her acknowledging the receipt of the money, aud asking for instructions as to its re-investment. The prosecutrix replied that she would consult her trustees, aud let him know the result. He appropriated the money to his own use, but afterwards told her that he had invested it on a fresh mortgage, and for six yeara he paid her what purported to be interest on the newmortgage. The Court for Consideration of Crown Cases Reserved held that he had been guilty of fraudulentlyconverting to his own use property which had been ia trusted to him as a solicitor for safe custody (until the prosecutrix had informed him of her wishes as to re-iiivestment) within the 24 & 25 Vict. c. 96, s. 76.

There were two cases of applications for attachment against solicitors. In the first case (In re A Solicitor, L. R. 14 Ch. D. 152) the solicitor had not complied with an order made on a petition for the delivery of certain deeds to his client, and the Master of the Rolls held that the personal service of the order made ou the petition, and the service of notice of motiou for an attachment by leaving it at the solicitor's residence, were sufficient within ord. 44, r. 2, aud ord. 53, r. 3. In Tilney v. Stans/eld (28 W. R. 582) the action had been stayed, and the plaintiff's solicitor had been ordered to pay the defendant's costs, on the ground, that the action was frivolous, vexatious, and an abuse of the process of the court. Substituted service of this order and of a subpoena for payment having beeu directed and made, the defendant applied, under ord. 41, r. 1, for an attachment against the solicitor for disobedience. Hall, V.C., made an order for an attachment to issue for the payment by the solicitor of the costs, as between solicitor aud client, of the application and of the attachment, but he directed that the order should not be drawn up for a week, the solicitor being informed that it had been made and would be acted upon in default of compliance at the end of that time.

Barrow's case (28 W. R. 341) is an important decision as to the receipt by a solicitor of a commission upon the allotment of shares in a company. The directors of the company passed a resolution to allow a commission of two shillings and sixpence per share to any person introducing a shareholder. Mr. Barrow, the solicitor and secretary to the company, introduced a client as a purchaser of 2,000 shares, but the purchase-money for them was paid by the solicitor's father, who was the chairman of the company, and to whom the shares were, immediately after the allotment, transferred in consideration of the payment of fire shillings. The solicitor received the stipulated commission on the 2.000 shares, but, upon the company being wound up, Bacon, V.C., ordered the money to be refunded, holding that the solicitor, being in a fiduciary position, ought not to have received any commission.

Faffing from the cases in which solicitors were personally interested, we have to notice several decisions as to the duty and responsibility of members of the profession in particular circumstances. The question of a solicitor's attestation of a bill of sale was dealt with in three cases, which have been before commented on by us. In Hill v. Kirkwood (28 W. R. 358) the bill of sale was attested by a solicitor who was not practising on his own account, but was managing clerk to the grantee's solicitors. Malins, V.C., held that the attestation was insufficient within section 10 of the Bills of Sale Act, 1878, but this judgment was reversed by the Court of Appeal. James, L.J., expressed a doubt whether the Act of 187S applied at all as between grantor and grantee, and also whether, if it appeared from the attestation clause that the instrument had been explained to the grantor, the court had any power to inquire into the sufficiency of the explanation. The court also held that there was nothing in the Act to require the attesting solicitor to be in practice on his own account or unconnected with the grantee. In Dairies v. Goodman (28 VT. R. 559, L. R. 5 C. P. D. 128) the Common Pleas Division had held that a bill of sale not attested by a solicitor and explained to the grantor was void as between the gTantor and the grantee, but this decision was reversed by Lords Justices Baggallay, Bramwell, and Thesiger. Bramwell, L.J., laid down that the Bills of Sale Act, 1878, must be read as if section 8 included section 10. The latter section was intended for the benefit of creditors as well as of the grantor, and tince it attached no consequences to the non-fulfilment of its provisions, there was no ground for holding the instrument void as between grantor and grantee. As to section 8, Thesiger, L.J., pointed out that the grantor was not included among the persons ■gainst whom the bill of sale is to be void in the event of certain conditions, including attestation, not being duly complied with. This case was followed by the Court of Appeal in Ex parte National Mercantile Bank, rt Haynes (28 W. R. 848, L. R. 15 Ch. D. 42), where James, L. J., observed, "The Legislature thought that they would give to the grantor the protection of a solicitor pledging his word to the fact that he did give the explanation. . . . The validity of the bill of sale a not affected by the omission of the attesting solicitor to give the explanation which he says that he has given." Baggallay, L.J., also laid down—what wis only hinted by the Lords Justices in Hill v. Kirk•nvi—that the court could not go behind the Act and inquire into the sufficiency of the explanation given.

&iffron Walden Building Society v. Rayner (23 W. R. 681, L. B. 14 Ch. D. 406) is an important decision u to the effect of a notice given to the solicitors to trustees of the existence of an incumbrance on the trust fond, but it is now so well known, and has been so often discussed in our columns, that it is not necessary to state it.

Two cases during the year dealt with questions of privilege in connection with proceedings for discovery. In Mayor of Swansea v. Quick (28 W. R. 371, L. R. 5 C. P. D. 106), interrogatories administered to the t>U:ntiff corporation were answered by their solicitor, who was town clerk of Swansea, and who declined to give the information sought for, on the ground that it referred to communications which were privileged as tiring been made to him in his capacity of solicitor to

the plaintiffs. The Common Pleas Division held that the interrogatories must be answered, for the plaintiffs, having elected to answer through their solicitor, must be taken to have waived any privilege of which they might otherwise have availed themselves. In Tyas v. Brown (28 "W. R. 575), which was an action brought after the death of a lunatic to enforce an agreement made iu lunacy, Malins, V.C., ordered the production {inter alia) of the counsels' briefs used in the lunacy proceedings and of the shorthand notes thereof.

Ex parte Duce, In re Whitehouse (28 "W. R. 501, L. R. 13 Ch. D. 429), is an important decision as to the use of a .proxy by a solicitor in a liquidation proceeding. A creditor sent a proxy signed by him in blank to his solicitor, who sent it to the debtor's solicitor. The latter filled in his own name and voted with it in support of a composition. The Court of Appeal (affirming the decision of the Chief Judge) held that, although the creditor's solicitor had given the debtor's solicitor no express instructions as to the use to be made of the proxy, the creditor must be taken to have given an implied authority to vote on his behalf.

Allen v. Lloyd (28 W. R. 8,L. R. 12 Ch. D. 447) involved the question of the propriety of the appointment as a receiver of a solicitor who was the executor of a will which was being contested in the Probate Division. The solicitor commenced an administration action in the Chancery Division against the testator's widow. Malins, V.C., on a motion in the action, appointed the plaintiff (whose firm acted in the chancery proceedings both for him and for the defendant) as receiver, but the Court of Appeal discharged this appointment, and ordered the plaintiff to pay the defendant's costs in both courts. The Master of the Rolls characterized the appointment as "obviously improper," since it rendered it impossible to insure the proper checking of the receiver's accounts.


IN RE CLAY And TETLEY, C.A., 29 W. R. 5.

There could be little doubt as to the decision in this case. A testator directed that his debts should be paid by his executors, and, in case his personal estate was insufficient for that purpose, he charged his real estate with the payment of the deficiency. The executors named in the will renounced, and letters of administration, with the will annexed, were granted to the widow, who, on the personal estate proving insufficient to pay the debts, entered into a contract for sale of a portion of the real estate to make up the deficiency. The purchaser objected that an administratrix was not entitled to sell real estate for payment of debts, and therefore the vendor could not make a good title to the property. The court laid it down unequivocally that there is no authority for saying that there has ever been implied a power to sell real estate for payment of debts in an administrator, who, as the Master of the Rolls pointed out, is not appointed by the testator, but is, in fact, an officer of the court. A testator naturally expects that the executors he has named will act, and f here is no reason to suppose that he intends au administrator to have such a power.

The question was then raised whether section 16 of Lord St. Leonards' Act wus to be construed as conferring this power on administrators. As to this tho words of the section seem conclusive. "The executor or executors for the time being named in such will (if any)" are the persons in whom the power of sale is vested, and "such power shall, from time to time, devolve to, and become vested in, the person or persons (if any) in whom the executorship shall, for the time being, be vested." It hardly needs to be pointed out that the section is carefully framed so as to confine the power to executors; and so the court held, adding that it cannot be supposed that the Legislature forgot that there are such persons as administrators,

SMITH v. ANDERSON, C.A., 29 W. R. 21. The Court of Appeal in this case (which we discussed at the time of its decision) overruled two elaborate judgments of the Master of the Bolls in the Arthur Average Association (23 W. B. 939), and Sykes v. Beadon (27 W. R. 464). The exact point at issue was the same as in Sykes v. Beadon, which the Master of the Rolls had followed in this case—viz., What is an "association carrying on business for the purpose of gain" within the meaning of section 4 of the Companies Act, 1862? The association in this case was for the purpose of making investments in the various submarine telegraph companies, and was called the "Submarine Telegraph Trust." It was constituted in a similar •way to the "Government and Guaranteed Securities Permanent Trust" of Sykes v. Beadon—that is, it was constituted by a trust deed entered into between the trustees and a covenantee. This deed provided for subscriptions of given amount, in return for which the subscriber received certificates for £100 payable to bearer. The amount subscribed wa3 to be invested in the purchase of shares of the given class. The proceeds were to be applied in payment of a fixed percentage to certificate-holders, and the surplus in redeeming certificates by open purchase and by drawings at fixed values, twenty per cent, above the nominal value. "Coupons of reversion" were given in return for redeemed certificates, entitling the holders to a share in the trust funds when the truBt came to an end. Powers of varying securities at a profit were given to the trustees. The trustees and secretary were to have salaries. General meetings were to be held in manner provided by the Companies Act. The Master of the Bolls held that such "trusts" were really companies, of which the trustees were directors and the certificate-holders shareholders; that they had in view the acquisition of gain by the company and the individual members; and therefore, as consisting of more than twenty members and being unregistered, were illegal associations. The Court of Appeal pointed out that the question was not whether the certificate-holders had "gain" for their object, but whether they were carrying on a "business" which had gain for its object. On the facts they held that the trust was really a trust, although the cesiuis que trust might be more than usually numerous. Yet none of the provisions of the trust deed differed from those found in ordinary trust deeds, except in regard to meetings, and the difference was due to the numbers of the cestuis que trust. There was really no "business" to be carried on. If there was any "business," it was carried on, not by the certificate-holders, who only had to receive the dividends on their investments, but by the trustees, who were less than twenty in number. The object was, no doubt, "gain," by spreading the risk of investment on the principle of averages—the success of most of the companies on -whose shares investments were made being sure to compensate for the failure of others; but the gain was not sought by carrying on business. The decision is not, we believe, of so great practical importance as it might have been at an earlier date, for many of the "trusts," alarmed by Sykes v. Beadon, have turned themselves into limited companies. But as bearing on the question of the distinction between director and trustee, the judgment of the court is of considerable interest.

The Local Examinations and Lectures Syndicate of the University of Cambridge have recommended that students who intend to enter into articles of clerkship to a solicitor may, though above the age of sixteen, be admitted to the examination for students under the age of sixteen; and that the names of students so admitted and satisfying the examiners besent to the secretary of the Incorporated Law Society, but that no certificates be granted to such students, and that their names be not inserted in the published class list.


[To the Editor of the Solicitors' Journal.']

Sir,—In these days, when the district surveyors of the Metropolitan Board of Works are far more active than they used to be in discovering dangerous structures as defined by the Building Acts, and when a large number of leases for long terms are about expiring, and when leases of houses which have been built for many years are being granted, a question must now be frequently arising as to the extent of the liability of a lessee under an ordinary repairing lease when the structural part of the premises demised to him is condemned by reason of age and the operation of the elements, and the lessee is called upon to do the requisite repairs.

It would appear that for the purposes of the Building Acts the occupier of a house under the ordinary repairing lease for twenty-one years is the "owner," as defined by the Building Acts, and is liable to the Metropolitan Board of Works to do the repairs. The premises having been partially or wholly condemned, the unlucky lessee probably finds himself in the position of being unable to call upon his landlord to do the repairs in question— sinoe the landlord is under no such liability save by express covenant—and yet obliged to pay his rent, whether the repairs are done or not.

No doubt in many cases the landlord is, irrespective of his legal liability, willing to meet the tenant, and if not to do at bis own expense, at least to share the cost of, the requisite repairs. In some cases, however, the landlord is not so willing, and the position of the tenant is one of some difficulty and hardship. The repair is probably one for which, as between the tenant aud landlord, the former is not liable to the latter, though as between the tenant and the Metropolitan Board of Works the former is liable to the latter.

In a recent case coming under my own observation, the lessee took some old premises on lease for seven, fourteen, or twenty-one years, having, prior to obtaining the lease, put them into habitable repair to the approval of the landlord's surveyor. By reason of tho age of the external walls (not the party walls), the walls in question have been condemned.

The landlord is not liable to do the repairs, or, it would seem, to bear the cost. The lessee is not liable to do the repairs by the terms of the lease, but being the owner, the Metropolitan Board of Works can require him to do the repairs or fix him with the cost thereof. Probably but for the attention of the Metropolitan Board of Works having been called to the condition of the walls, they might have lasted the length of the lease, but this is, of course, a matter of speculation. The lessee does not wish to give up his lease, and even if he did it is by no means clear that the landlord would accept it; hence it is that if the lessee wishes to retain his lease and to have premises of use to him, he must bear the expense of these repairs himself, which, but for tho action of the Metropolitan Board of Works, the lessee would not have been required, and might not hav9 found it necessary, to do.

I think this is a case of some hardship, aud that if, as a matter of law, the lessee is not liable to his lessor to do repairs which he is required to execute by the Metropolitan Board of Works, the lessee ought to be entitled to be recouped his expenditure by the lessor. This remedy appears to be given in the case of partystructures.

I think I am right in the view I take of the matter, but if not I shall be happy to have it corrected by those whose knowledge and experience are greater on the subject than mine.

This leads me to remark that I think in many respects the present form of lease—which, by the way, has, in recent years, been modified in some particulars—requires qualifying on several points.

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