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some premises, whether a building or not, named by him refuses to give a satisfactory account of the means by within the jurisdiction of such court, the court may, which he became possessed of the article," he shall be although such officer does not specify any particular reasons liable to be fined £20, “or if, after due inquiry, the for his belief, or specify which of the articles are in such
court considers that there is sufficient primâ facie premises as aforesaid, grant to the officer a special search
evidence that the article was stolen, to imprisonment warrant under this section."
with or without hard labour for a term not exceeding The special search warrant authorizes any officer one month." We think that this is a little too hard authorized thereby to enter in the daytime, search, and upon the general public. It includes, be it observed, seize all articles found which appear to the officer to all articles whatever, and would, we think, press unduly have been stolen.
upon such unfortunate persons who, happening to be in These provisions differ materially from those of the reduced circumstances, might wish to be sellers for the Metropolitan Police Act (2 & 3 Vict. c. 71), s. 25, for most innocent of reasons, and yet be unable to answer which they are to be substituted. That section allows “satisfactorily” questions of a searching character. any person to give information, and permits the magis We now come to the regulations specially affecting trate to authorize a search in the night-time. We think pawnbrokers and “ second-hand dealers," but before con. that in making the law of search of universal applica- sidering them, it is necessary to extract from the intertion it is very wise to limit the power of information pretation clause the definition of " second-hand dealer," to superior officers of police, and to limit the power of which is as follows:search. The words “states on oath” admit of an oral
“The expression 'second-hand dealer' means a person information. In order that this may not be too loosely
who carries on the business of dealing in, or buying or given, it might be prudent to require that the informa
selling by retail, second-hand ar ticles manufactured wholly tion should be read over to and signed by the informant or partly of gold, silver, or ot her precious metal, or any old (upon a form which might be scheduled to the Act) ecrap, broken or defaced gold, silver, or other precious before the search warrant is granted. And in connection metals, or second-hand jewellery, second-hand watches, with search warrants it seems desirable either to repeal second-hand clothing or tools, old iron, rags, or marine stores, or to preserve, in the same manner as section 480 of the whether such person deals in, buys, or sells such articles and Merchant Shipping Act, 1854 (as to dealers in marine goods only, or other stores and goods; provided that a stores), section 8 of 6 & 7 Vict. c. 40. which empowers 1 person who bona fide carries on the business of manufacjustices to grant search warrants on suspicion of thefts
turing and selling new articles of gold, silver, or other by “persons employed in the woollen, linen, cotton, flax,
precious metal, or new jewellery, or new watches, shall not
be deemed to be a second-hand dealer within the meaning of mohair, and silk hosiery manufactures."
this Act.' The second paragraph of clause 4 is a very severe one. The opening paragraph of the clause is as follows:
Second-hand dealers are placed on the same footing “ Where any articles are found in any premises either upon
as pawnbrokers in all respects by the Bill, although none a search in pursuance of a warrant under this, or in pursuance
of the provisions of the Pawnbrokers Act are applied to of any other warrant, or without such search, or are other
them. These traders are required to give every assistwise found in the possession of any person, and are brought
ance to the police in the recovery of stolen goods, by before a court of summary jurisdiction”
giving speedy information, by allowing inspection
of their wares by "a constable specially authoThe next paragraph provides that :
rized as provided by this Act," and by answering all “If the court is satisfied that the person in whose posses inquiries made by such constable. It is also provided sion the said articles (any articles ?], whether found in any that second-hand dealers must take out excise licences premises or otherwise, are found, had reasonable cause to (the licences of puwnbrokers are provided for by suspect that they were stolen, and failed to give information sections 37–44 of the Pawnbrokers Act, 1872, to the police of the fact that he bad such articles in his which sections are left undisturbed), which licences are possession, that person on summary conviction shall be liable to be forfeited upon convictions, as also are pawnbrokers' to a fine, &c., or in case of a second or third offence, &c., &c." | licences (the Pawnbrokers Act contains no provisions for Surely this is going too far, Is not the effect of it
forfeiture of licences, but only restrictions upon the this, that if anything is found anywhere which anybody
grant of them). Next we come to a series of clauses thinks another person ought to have thought to have
| (16—19) providing for the registracion of convicted pawnbeen stolen, such other person, if he should fail to put
brokers and second-hand dealers. To these clauses, the law in motion against an imaginary thief, is to have
which are to some extent modelled upon the well-known the law put in motion against himself? We cannot but
ones in pari materia which the Licensing Act of 1872 think that it would be reasonably sufficient if the
first brought into vogue, there can be no reasonable liability should be confined to cases of the search warrant
objection, nor is there any reasonable objection to only.
extending to second-hand dealers that provision of the Clause 6, which is taken from the Old Metal Dealers
Pawnbrokers Act which prohibits dealing with children Act, provides that persons buying gold, silver, &c.,
or drunkards, and the employment of persons under shall not melt the same until the expiration of not less
sixteen as servants or apprentices. than seventy-two hours (increased from the forty-eight
Passing to the general clauses of the Bill, we observe hours of the Old Metal Dealers Act) after he bought the
the appeal clause (clause 22) to be as follows :same, and shall also keep a register of all sales, and allow “ Where a person convicted under this Act is sentenced to a constable at any time to examine such register, &c. be imprisoned, or to pay a fine exceeding five pounds, or to We are here treading on the very hotbed of thieves and have his licence or certificate indorsed or forfeited, or to be receivers, and every precaution should be taken to make registered, such person may appeal against the this clause as severe as possiblo. We think that the
a court of general or quarter sessions." common law right of re-sale must necessarily be sus It is important to compare this clause with the pended ; the time of suspension might fairly be extended appeal clauses of the Summary Jurisdiction Act, 1879, as from seventy-two hours to one clear week. And might this is the first Bill of importance which has succeeded it not be provided that, in case of a second sale by the that Act, the appeal clauses of which it will be same person within a limited period, up to a certain remembered apply to future as well as to past acts. A amount, notice of the purchase should be sent to the l persons conversant with modern statutes will gladly police? This would, of course, lead to thieves dealing miss the lengthy “conditions of appeal” which, in various with two or more receivers, and so double, or proportion forms, puzzled the reader before the passing of the Act ately increase, the chance of detection.
of 1879. For these conditions, reference is to be had It is next provided (clause 7) that if any person to the Act of 1879, and when they once become familia offers any article for sale, or in pawn, " and is unable, or much trouble will have been saved. But it may be asked why there should be an appeal clause at all ? Thecited might, perhaps, have been inserted under the subanswer is that the Act of 1879 does not give an appeal head “ Jurisdiction over Solicitors as Officers.” Under against fines, and therefore the appeal must be given by these general headings the matter is arranged under the Bill.
sub-heads, to which reference is rendered easy by the The clauses that “this Act shall be, in addition to, tables prefixed to the titles. The cases seem to be and not in derogation of, any other powers or enact industriously collected; their effect is concisely stated, ments in relation to stolen goods," and that “this Act and references are given to all the reports. We have shall not exempt any person from any proceeding by pleasure in commending the work to our readers. indictment or otherwise for an offence which is punishable at common law, or under any Act other than this Act, so that no person be punished twice for the same
JUDICATURE ACTS. offence," do not please us much. The 480th section of THE JUDICATURE Acts, 1873 AND 1875, THE APPELLATE the Merchant Shipping Act, 1854, is expressly preserved, JURISDICTION ACT, 1876, AND OTHER STATUTES, THE and we suppose that it could ill be torn out from its parent RULES OF COURT AND ORDERS IN COUNCIL, WITH NOTES, Act. But we think it would have been no very hard FORMING A PRACTICE OF THE SUPREME Court. By J. M. matter to pick out, repeat, and incorporate the “other LELY AND W. D. J. FOULKES, Barristers-at-Law. enactments,” and this brings us, in conclusion, to pass THIRD EDITION. H. Sweet. from what the Bill does to what it does not do.
There has been some increase of size in this edition, The Metropolitan Police Act (2 & 3 Vict. c. 71), will be found to contain a series of provisions (sections 26
but it still remains a very handy book, and there is 30) for the restoration to the owner of stolen goods.
plenty of room in the margins for annotating new These provisions may be administered by a magistrate
decisions. As regards mechanical arrangements and summarily but are, of course, confined to the metropolis.
devices for facilitating ready reference, this work on The Larceny Act, 1861, s. 100, provides for the issue
the Judicature Acts is excellent, and we may add, as of a “writ of restitution” to an owner after a conviction
the result of frequent reference to former editions, that
the effect of the cases is given with accuracy and terse. for felony or misdemeanor. Sections 101 and 102 of the same Act, amended by the Larceny Act, 1870, as to
ness in the notes. We have not missed any recent case the insertion of advertisements in newspapers, prohibit
in this edition, and the new orders and rules are inserted
in the proper places. The Judicature (Officers) Act, the taking reward for helping to the recovery of stolen property without bringing the offender to trial, and the
1879, is carefully annotated, but we doubt whether the
conveyancing counsel to the Court of Chancery can (as advertising a reward for the recovery of stolen property, with an indication that "no questions will be asked.”
the authors suggest on p. 109) be said to be intended to be
included among such“ other officers of the Supreme Court These matters are so closely allied to the subject-matters of the Bill, that it would perhaps be worth while to con
as are, from time to time, transferred to the Central Office
by rules of court." Those gentlemen would be greatly ·solidate and incorporate them with the necessary amend
astonished to hear of any such proposed transfer. This ments. It will be found that the Metropolitan Police
edition of Messrs. Lely and Foulkes' book will be found Act contains many provisions which may aptly be
a very complete and practical compendium of the brought into force in the whole kingdom, especially when it is considered that the two sections which deal
| present practice.
HARRIS, Barrister-at-Law. SECOND EDITION. Revised
by the AUTHOR and F. P. TOMLINSON, Barrister-at
Law. Stevens & Haynes.
The favourable opinion we expressed of the first ediTHE PRACTICE OF THE SUPREME COURT OF JUDICATURE.
tion of this work appears to have been justified by the
reception it has met with. Looking through this new ALPHABETICALLY ARRANGED. Designed by F. 0.
edition we see no reason to modify the praise we CRUMP, Esq., Barrister-at-Law. Part I.--The Prac- bestowed on the former edition. The recent cases have TICE OF THE CHANCERY DIVISION OF THE HIGH COURT been added and the provisions of the Summary JurisOF JUSTICE (INCLUDING THE WINDING UP OF COMPANIES), diction Act are noticed in the chapter relating to SumAND ON APPEAL TO THE COURT OF APPEAL AND HOUSE
mary Convictions. The book is one of the best manuals or LORDS. By FRANK Evans, Esq., Barrister-at-Law. of criminal law for the student. Horace Cox.
The design of this work, the credit of which belongs to Mr. Crump, seems to us a very good one. The idea is to bring together, under headings arranged alphabetically, not only the provisions of the Judicature Acts and | Mr. Woodforde, the judge of the Derby County Court, is Rules and the decisions upon them, but also all the said on Saturday to bave stated that “the county court statutes and orders now in force, with the decisions registrars (who at present tax bankraptoy costs), being upon them, relating to the practice of the Supreme paid by fees and not by salary as he would have them paid, Court. There is an obvious convenience to the practi- knew that it was important for them to treat in a friendly tioner in being able to refer to a section which contains. | nanner the accountants and trostees who maioly brought in a short compass, everything relating to the matter in
business to the courts. He furnished an instance in support hand. The present volume comprises the practice of
of bis statements wherein a bankrupt's estate realized £249, the Chancery Division, and, judging from the titles webat as the costs amounted to $245, there was bat £4 for have examined, we are dieposed to consider it a good
the creditors.” [Some explanation of this statement ap. piece of workmanship. Taking, for instance, the title
pears to be required.]
In the House of Commons on the 15th inst., in answer *Solicitors," we find the subject arranged under nine to Mr. Hicks, Sir W. Harcourt said that be was quite heads - General Provisions, Proceedings affecting
aware of the inconvenience which is caused in some cases Status, Retainer and Authority, Changing Solicitor,
both to the judges and to others who have to attend the Costs, Payment of Money and Delivery of Papers, Eu autumn and winter assizes, and he had been in communiforcing Undertaking, Disclosure as to Writ, and De cation with the Lord Chancellor and the Attorney-General fault in Proceeding. This last head, which does not on the subject, and hoped that some more convenient appear in the table prefixed to the title, does not seem system might be devised by which all prisoners might be strictly to fall within the subject, and the only provision brought to trial speedily and the gaol system consolidated.
broker's wife should charge her separate estate with the CASES OF THE WEEK.
amount of the loss which the plaintiff bad sustained through the broker's misconduct. When the case was called on the
magistrate was informed of the terms of the agreement, WILL - CONSTRUCTION -CONDITIONAL LEGACY --MAR
and he gave his sanction to the withdrawal of the proseRIAGE WITH CONSENT OF GUARDIAN OR GUARDIANS
cution, and the defendant was discharged. In pursuance DEATH OF SOLE GUARDIAN APPOINTED BY WILL.-In a
of the agreement some title deeds of separate estate of the case of In re Brown's Trusts, before the Court of Appeal
wife were deposited with some bankers. The wife afteron the 13th inst., a question arose as to the non-fulfilment
wards declined to carry out her agreement, and the action of the condition upon which a legacy had been given. A tes.
was brought claiming a charge on her separate estate. No. tator, by his will, appointed his wife sole guardian of his
objection to the legality of the agreement was raised by children during their respective minorities. And he be
the pleadings, but Fry, J., held (28 W. R. 908, 24 Solici. queathed the sum of £5,000 to each of his daughters, “ upon
TORS JOURNAL, 691) that the agreement, being for the com. her attaining the age of twenty-one years, or on her marriage
pounding of a felony or the stilling of a criminal prosecuwith the consent of her guardian or guardians, which should
tion, was contrary to public policy and illegal, and that it first happen." The widow died before one of the
could not be enforced. And be held that the wise was en. daughters attained twenty-one, and this daughter married
titled, as between herself and the plaintiff, to the return of under twenty-one without the consent of any guardian,
| the deeds, for which she had delivered a counter-claim, none having been appointed after the death of the widow.
though he could only make a declaration of the right, and The daughter died under twenty-one. The question then
could not make an order for the return of the deeds, because arose whether the daughter's representative was entitled to
there was a prior mortgage of the property, and the holder the legacy Fry, J., held that, as a guardian might have
of that mortgage was not a party to the action. This been appointed, the performance of tbe condition had
decision was affirmed by the Court of Appeal (JAMES, BAG not become impossible, and that, as it had not been
GALLAY, and LUSH, L.JJ.), who said that it was immaterial complied with, the legacy bad lapsed. This decision was
that the agreement had been made in court with the sancaffirmed by the Court of Appeal (JAMES, BAGGALLAY, and I tion of the presiding magistrate. Such & sanction could LUSH, L.JJ.). It was contended that the case was governed
not give any legality to that which was in itself an illegal by Dawson v. Oliver-Massey (24 W. R. 993, L. R. 2 Ch. D.
| act. It was ohjected tbat by making a declaration as to the 753), in wbich a legacy was given to an infant, "upon her title deeds, the court was affording active relief to one of attaining twenty-one or marrying with the consent of her the parties to the illegal agreement. But the court said parents,' and, after the deatb of one parent, the infant that the declaration was the logical result of the dismissal of married with the consent of the surviving parent, and
the plaintiff's claim. If the plaintiff had not acquired a the Court of Appeal held that this was a sufficient com
valid charge on the property, it followed that the wife, pliance with the condition, it having become impossible, by being entitled to the property, free from any charge in the act of God, and without any default on the part of ihe
favour of the plaintiff, was entitled :o the deeds. LUSH, legatee, to obtain the consent of both parents. So in L.J., said that com pounding a telony was not only an ilIn re Brown's Trusts it was urged that, there belog no legal, but a criminal act. rendering the person wbo attempted guardian in existence at tbe time of marriage, and the will
it liable to punishment, and it followed that every agreenot having pointed out any mode of appointing guardians, & ment by which a person in consideration of a private benefit strict compliance with the condition had become impossible. to himself consented to withdraw from a charge of felony JAMES, L.J., said that the real question was whether the was illegal and could not be enforced. There was no principle of the decision in Dawson v. Oliver- Massey applied.
n. Dawson v. Oliver- Massey applied: legal obligation on a man who had been wronged to proseWhen parents were dead it was impossible to supply their cute the wrongdoer, but, if he did institute a prosecoplace, but there was no such impossibility of supplying the tion, then be acted on behalf of the public, and would not be place of guardians, and the testator, in using the words "with
allowed to enter into any bargain not to continue the pro
aller the consent of her guardian or guardians,” evidently
seoution. — SOLICITORS, P. Bradley ; Remnant, Penley, $ contemplated that guardians of the infants would be appointed
Grubbe. in the event of the death of the motber. It would have been the easiest thing possible to obtain the appointmeot of guardians by the court. A guardian appointed by the SET-OFF-ARMY AGENT-SALE OF OFFicer's COMMISinfant herself to consent to ber marriage would not be sion.-In a case of The Duke of Roxburghe v. Cox, before the a guardian within tbe meaning of the condition. It would Court of Appeal on the 13th inst., a question arose as to setbe an unwarrantable extension of Dawson v. Oliver-Massey | off. An officer, who desired to retire from the army, applied to hold that the temporary non-existence of a guardian to the Army Purchase Commissioners to purchase bis comwas equivalent to the non-existence of parents. BAGGALLAY, mission. The purchase-money was deposited by the ComL.J., said that, having been a party to the decision in missioners with the badkers, who acted as their agents, to be Dawson v. Oliver-Massey, he entirely agreed with the dis. paid by them to the officer on his retirement being gazetted. tinction which had been drawn between that case and The bankers had also acted as the bankers of the officer, and the present. LUSH, L.J., said that if, after appointing the there was a balance due from him to them on his current mother sole guardian of the children, the testator had said | account. The bankers claimed a right to retnin this debt. that the daughter's marriage must be with the consent" of out of the purchase-money, and Bacon, V.C., held that they her said guardian," it would have been impossible after the were entitled to do so by virtue of their banker's lien. On death of the mother to comply with that condition. the appeal it was contended that no banker's lien could exist, But the testator had not done this; on the contrary, | inasmuch as the bankers did not hold the purchase-money as he had clearly contemplated the existence of a guardian or the officer's bankers, but as trustees for him. The Court guardians other than the mother.-SOLICITORS, Emmet, Son, of Appeal (JAMES, BAGGALLAY, and LUSH, L.JJ.) held that & Stubbs ; Simpson, Hammond, & Co.
both the demands that of the officer against the bankers, and that of the bankers against him-were legal demands,
and that the one could be set off against the other, and on ILLEGAL CONSIDERATION_COMPOUNDING A FELONY
this ground they supported the decision of the Vice-ChanSTIFLING A PROSECUTION-DEPOSIT OF TITLE DEEDS.--In
cellor.-SOLICITORS, W. f A. Ranken Ford; Fladgate, a case of Whitmore v, Farley, before the Court of Appeal
Smith, f Fladgate. on the 14th inst., a question arose with regard to the validity of an agreement upon the terms of which a criminal prosecution had been withdrawn. The plaintiff bad | BANKRUPTCY — LETTERS ADDRESSED TO BANKRUPT – deposited some securities with a broker, and she afterwards APPLICATION FOR RE-DIRECTION- Locus STANDI-BANKbrought a charge against him before a magistrate of wrong RUPTCY Act, 1869, S. 85.--In a case of Ex parte Lister, fully converting the securities to his own use. After the before the Court of Appeal on the 12th inst., a question charge had been partly beard, the wife of the broker en arose as to the locus standi to apply for an order for the redeavoured to induce the plaintiff to withdraw from the pro direction of letters addressed to a bankrupt. Section 85 of secution, and ultimately, on the morning of the day fixed the Bankruptcy Act, 1869, provides that "the court, upon the for the further bearing of the charge, an agreement was application of the trustee, may, from time to time, order that, come to that the prosecution should be withdrawn if the for such time as the court thinks fit, not exceeding three consent of the magistrate could be obtained, and that the months from the date of the order of adjudication, post letters addressed to the bankrupt at any place or any of the places pal debtor chose to ascertain the amount of the liability. mentioned in the order, shall be re-directed, sent, or Lush, L.J., said that the guarantor had not undertaken to delivered by the Postmaster-General, or the officers acting be liable for such an amount as an arbitrator might find to under bim, to tbe trustee, or otherwise as the court directs, be dae by the principal debtor to the creditor. If there bad and the same sball be done accordingly.” An adjudication been a verdict by a jury for the amount due from the prinbad been inade against iwo of three partners who had traded cipal debtor to the creditor, it would have been no evidence in England. The third partner was resident abroad, and bad as against the surety of the amount due. The creditor never been within the jurisdiction of the English Bankruptcy must have proved the amount due over again as against the Court. A receiver had been appointed, but no trustee had surety. He was only liable to pay what should be found been chosen, and one of the registrars was acting as trustee. due as against him. There must be specific words in the Upon the application of the registrar trustee and of the guarantee in order to make the guarantor liable to pay petitioning creditor, another of the registrars, acting as whatever might be awarded by a third person, whether an Chief Judge, ordered that all post letters addressed to the arbitrator, a jury, or a judge. If the surety insisted on it, bankrupts at their place of business should be re-directed, the amount due must be proved against him just as against sent, or delivered to the receiver. The petitioning creditor the principal debtor. The proof against the principal debtor applied to the registrar to vary this order, on the ground was res inter alios acta, and did not bind the surety,-that it ought to have dealt with all letters addressed to the SOLICITORS, Hindson, Miller, d: Vernon ; Slibbard, Gibson, bankrupts in the name of the firm under which they had | £ Co. traded. The registrar trustee declined to join in the application, being of opinion that the variation asked for would not be authorized by section 83. The registrar refused the
VENDOR AND PURCHASER-RESTRICTIVE COVENANTapplication. The petitioning creditor appealed, and the
LEASE-NOTICE OF LESSOR'S TITLE_VENDOR AND PURregistrar trustee declined to join in the appeal. The Court
CHASER ACT, 1874, s. 2, SUB-SECTION 1.--In a case of of Appeal (JAMES, BAGGALLAY, and Lush, L.JJ.) dismissed Patman v. Harland and Bennett, before the Master of the the appeal, on the ground that such aa order can, by section
Rolls on the 13th inst., a motion was made to re85, be made only on the application of the trustee. They
strain the defendants from erecting a building to be used as said that possibly the petitioning creditor might obtain
an art studio in breach of a covenant contained in a former authority to use the name of the trustee.-SOLICITORS, S. S.
conveyance of the property. The property in question was Seal; Aldridge.
sold and conveyed by the plaintiff to the predecessor in title of the defendant Harland, subject to the covenants and conditions contained in an indenture of the 25th of Oc
tober, 1876, and, amongst others, to a covenant not to erect PRINCIPAL AND SURETY-JUDGMENT AGAINST PRINCIPAL any building upon the said property other than a private DEBTOR-RIGHTS OF CREDITOR AGAINST SURETY.-In a case dwelling-bouse. A private dwelling-bouse had been duly of Ex parte Young, before the Court of Appeal on the 12th erected upon the property in question, but the defendant inst., the question was raised whether a judgmeat or award | Bennett had recently commenced to erect at the side of the against a principal debtor is binding on or is evidence against house a corrugated iron structure not attached to the house, the surety in an action against him by the creditor. It was intended to be used as an art studio in connection with an stated by counsel that no Eoglish authority was to be found on art college for ladies carried on in the house. The dethe point, but that it had been decided by the Amerian courts fendant Harland had leased the premises to the defendant that the surety is not bound, reference being made to a Bennett, and had expressly covenanted with the latter that decision of the Supreme Court of New York in the case of she should make the erection in question. The conveyance ef Douglas v. Howland, 24 Wendall, 35. The question to Harland was made expressly subject to the indenarose thus:---An agreement had been entered into between a | ture of the 25th of October, 1876. The plaintiff now firm of English wine merchants, consisting of K. and M., with moved for an injunction to restrain the erection of the proa firm of wine growers in Germany, for the supply of wines | posed studio. For the defendant Harland it was contended by the latter to the former, the English firm binding them. that he was not a necessary party to the motion, and that selves to take a certain quantity of wine yearly. After | the erection would not be a breach of the covenant. wards K. retired from the English firm, and was succeeded For the defendant Bennett it was contended that she had not by W. The German firm objected to continue the arrange. | constructive notice of the covenant, as she was expressly ment with the new English firm, unless K. would guarantee told she had liberty to make the erection in question, the due performance of it by them. K. then wrote a letter and reliance was placed upon the dicta of Turner, L.J., to the German firm, by which he requested them to treat the in Wilson v. Hart (L. R. 1 Ch. 463). JESSEL, M.R., was original agreement as made between the new English firm of opinion that a lessee who took a lease had constructive and themselves, and in consideration thereof he undertook notice of his lessor's title, and Lord Eldon had treated such and guaranteed that all wines supplied by them to the new | a doctrine as settled law in his time, and it had not been firm should be duly paid for, and that the agreement should, disturbed since, and in fact there was no difference as to in other respects, be daly performed by the new firm. Upon notice whether a man took by purchase or under a this guarantee being given, the German firm continued the lease. A man who purchased or leased was bound supply of wine to the new English firm. The German firm after. to investigate bis vendor's or lessor's title, and wards complained that the new English firm had not taken he was held to take with notice of that title, and was bound the quantity of wine which they were bound to take under tbe to inquire what that title was. Of course that meant reasonagreement, and they claimed a reference to arbitration under able inquiry, and a purchaser or lessee was not simply limited an arbitration clause contained in the original agreement. The to the conveyance to his vendor or lessor, but must go back arbitration took place and the arbitrator awarded £1,250 during the usual length of title. In the present case damages, to be paid by the new English firm to the German if only the conveyance to Harland had been seen, the lessee firm, for breach of contract. The amount awarded was not would have seen that the property was subject to the repaid, and the German firm claimed to prove for the amount strictive covenants. It had, however, been argued that if a against the estate of K., who had meanwhile filed a liquidation lessee having constructive notice were told by his lessor that petition. The court (JAMES, BAGGALLAY, and LUSH, L.JJ.) there was no restrictive covenant, that would do away with held that the proof could not be admitted for that amount. the effect of constructive notice, but he entirely dissented -James, L.J., said that the meaning of the guarantee was that, with that doctrine. If a person had notice of a deed relating if the new firm did not perform the agreement, the guarantor to the title, he had notice of the contents, and it was no excuse would be liable in an action against him for any damages for not asking to look at the deed that he was told it wbich the German firm could show that they had sustained contained nothing necessary to be seen. There might, no by the default. If he was to be liable for any amount which doubt, be cases where a deed could not be seen, and where an arbitrator between the parties to the agreement might there might be no constructive notice, but that was another fix as the amount of the damages, this ought to have been question, and when a person had constructive notice it was expressed in the clearest language in the guarantee. It no answer to say he had been told a certain deed did not preWas clear that in an action against a surety no admission of judicially affect the title. If a person knew a deed affected liability made by the principal debtor to the creditor would the title, he was bound by its contents. There was a class of be evidence against the surety. And, if the surety was not cases, of which Jones v. Smith (1 Hare, 43) was the most bound by any such admission, it would be monstrous if he were | notorious, in which it was held that if a mali was told of a to be bound by the mode in which the creditor and the princi- deed which might or might affect the title, and was told at the same time it did not affect the title, he would not in such should attain twenty-one, and in case any or either of the a case bave constructive notice of its contents. The instance children should die before his, her, or their share or he alluded to was where a purchase was made of a married sbares thereof should become “payable as aforesaid," man, and the purchaser was told the vendor had made a without leaving a child or children, the testator directed settlement on his marriage, which, however, did not | that the share or shares of him, her, or them so dying affect the property sold. No doubt some difficulty had should go to the survivor or survivors, equally if more arisen from some observations of Turner, L.J., in Wilson than one, and if but one, the whole to that one, with full v. Hart, but those observations could not alter the settled power for the trastees during the respective minorities of law on the subjeot. He was also of opinion that the Vendor the child or children, to pay and apply the interest of his, and Purchaser Act, 1874, 8, 2, sub-section 1, did not alter her, or their expectant sbare or shares for and towards the law, it only did away with that necessity for a stipulation bis, her, or their maintenance, education, and support. on the point which had previously been the practice, and, in And in case all such children should die under twerty-one, his opinion, the effect was the same as if a lessee had ex- without leaving a child or children, upon trust as the pressly bargained not to look at his lessor's title. On the merits
mother should appoint, and in default of appointment on he was of opinion that a breach of the restrictive covenant
trust for the next of kin of the mother. The daughter had occurred, and therefore he granted an injunction until
had four ohildren who attained twenty-one. Three of them the trial to restrain the completion of the building. He
died before the mother, two without issue, the third would not now grant a mandatory injunction to pull down
leaving issue. On the death of the mother the question the building (although it was stated it could be done in a few
arose whether the shares of the children had vested at hours), as it might be the building would be so altered before
twenty-one, or whether, as the first gift over was in the the time as to be used as an adjunct to the dwelling-house.
event of their dying without issue before their shares There would be no injunction against the defendant Harland,
became “ payable as aforesaid," and the shares could not and the costs would be costs in the action.-SOLICITORS,
become payable until after the death of the mother, who W. H. Bennett ; John Mackrell & Co; Edward Newman.
was the tenant for life, the shares of the two children who
had died before their mother without insbe had gone over to PRACTICE-ATTACHMENT-DEBTORS Act, 1869, s. 4, SUB
the other two. Fry, J., held that the shares had vested SECTION 3_DEFAULT BY PERSON IN FIDUCIARY CAPACITY.
on the children attaining twenty-one. He said he should -An application to enforce an order for leave to issue an
be inclined to give the word “ payable" its natural attachment was made to Hall, V.C., on the 14th inst., in an
meaning, but there were authorities for holding that it administration action of In re Spicer, Spicer v. Spicer. An
might be construed differently, and there were indications. order had been obtained in the action requiring the defend.
| in the will which led to the inference that it was not to ant, who was the executrix of the estate being administered. | be read literally. The words were “payable as aforeto pay into court certain moneys belonging to the testator's said," and in the direction to pay the words were, “as and estate, the amount to be verified by her upon affidavit. The when they shall attain twenty-one." Then the power of order bad not been complied with, and an order for leave to maintenance and advancement was confined to the minoriissue attachment against her had been obtained. The ties of the children. Again, the ultimate gift over was in the registrar, bowever, had refused to draw up the order, on the | event of all the children dying under twenty-one. The ground tbat po sum was specified in the order, and the inference was that the first gift over was intended to apply Cage was not within the exception of section 4, sub- | to a state of circomstances similar to that to wbich the section 3, of the Debtors Act, 1869, whereby arrest second was to apply. On the whole, he thought the words and imprisonment for default have been retained “payable as aforesaid " must be read as meaning " attaioin the case of a person acting in a fiduciary capacity, ing twenty-one."-SOLICITORS, Pattison, Wigg, & CO.;. " and ordered to pay by a court of equity any sum in bis Tucker & Lake ; Beale, Marigold, & Co. possession or under his control.” The present application was ibat the order might be drawn up, notwithstanding the objection, but Hall, V.C., beld that the exception in the
EXECUTOR — RETAINER - EQUITABLE ASSETS 3 & 4 Debtors Act must be construed strictly, and that, as the real
| WILL. 4, c. 104.-In a casa of Walters v. Walters, before contempt consisted in pot making the requisite affidavit, the
Fry, J., on the 16th inst., a question arose as to an executor's order ought not to go, and the application must, therefore,
right of retainer. The suit was brought for the administrabe refused.-SOLICITORS, Sole, Turner, f. Knight.
tion of the real and personal estate of a testator, who died in the year 1865, and a decree for administration was made in
1866. His personal estate was insufficient for the payment PRACTICE- PARTITION ACT, 1876-REQUEST FOR SALE- of his debts, and his real estate was sold, and the proceeds of -MARRIED WOMAN-FORM OF REQUEST.-In a partition sale brought into court. The personal estate realized action of Grange v. White, before Hall, V.C., on the 14th £13,000.
£13,000. The specialty debts amoun
The specialty debts amounted to £51,000. The ipst., in which an order for sale instead of partition was simple contract debts amounted to £66,000. In August, desired by the parties, one of the parties interested was a 1876, there were in court a sum of £17,000, arising from married woman, who had been made a co-plaintiff with her personal estate, and a sum of £40,000 which had arisen from busband. The direction of the court was asked as to the the sale of real estate, and an order was then made that the form in which her request should be made. Section 6 of the £17,000, and so much of the £40,000 as should be necessary, Partition Act, 1876 (39 & 40 Vict. c. 17), provides that the should be applied paying the specialty debts, and this was request may be made on the part of a married woman by the done. Further sums were afterwards realized, both from next friend, “or other person authorized" to act on her personal estate and from the sale of real estate, and were bebalf, and in Crookes v. Whitworth (27 W. R. 149) a brought into court, and when the cacse came on for further married woman's request was made by ber counsel authorized consideration there was a sum of over £20,000 in court, to act on her behalf. However, in Wallace v. Greenwood wbich was made up of those further sums, and of the residue (43 L. T. N. S. 720), Jessel, M.R., said that the request of of the £40,000 after the payment of the specialty debts had counsel was not sufficient under the Act, and that it must been made, but there was not enough to pay the simple conbe made by some person specially authorized to act on her tract debts in full. The executor of the testator claimed, by behalf in the action. HALL, V.C., held that, to put the virtue of bis right of retainer, to be paid, in priority to the matter in proper form, the married woman should "authorize other simple contract creditors, a simple contract debt which and request A. B. (ber solicitor) to instruct counsel to the testator owed him. Fry, J., held that this claim could not request a sale."-SOLICITORS, Burton, Yeates, & Hart. be sustained. He said that the specialty debts had been,
in fact, paid out of two funds--persunal estate, which Will-CONSTRUCTION-LEGACY_VESTING—“PAYABLE."
was legal assets, and real estate, which were made
assets by the Act 3 & 4 Will. 4, c. 104. The execu-In a case of Partridge v. Baylis, before Fry, J., on the tor's right of retainer applied only to legal assets, and it was 13tb ipst., a question arose as to the vesting of some lega a right inter pares—as against creditors in the same degreecies. A testator gave a fund to trustees, opon trust to and extended no further. If the personal estate had been pay the income thereof to his daughter for her life, and applied in the first instance in payment of the specialty after her death upon trust to pay and divide £2,000, part debts, the executor could never have succeeded in asserting. of the fund, unto and equally between all and every the his right of retainer. If he could assert it now, it must be child and cbildren of the daughter as and when they by reason of the accident that the specialty debts had been