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ASHWORTH v. MUNN, C.A., 28 W. R. 965.

The contention of the appellants in this case was founded on a tolerably obvious fallacy. Heal estate belonging to a partnership is treated in equity as personalty as between the real and personal representatives of the partner;. Why? Because the share of a partner is nothing more than his proportion of the partnership assets after they have been turned into money and applied in liquidation of the partnership debts. In other words, the right of the partner is not to a share of the land, but to a share of the proceeds of sale of the land. In Athicorth v. Munn it was contended that the share of -a partner in real estate belonging to the partnership was to be considered as personal estate for all purposes, and not only as personal estate, but as pure personalty within the Charitable Uses Act (9 Geo. 2,c. 36). Now, it has long been settled that the proceeds of sale of real ■estate are not pure personalty within the Act, and it would -seem that the decision of the Court of Appeal, that the -share of a partner in land belonging to the partnership cannot be given by will to a charity, might have been Tested on the footing that even if the share is personal estate it is snch as being part of the proceeds of ■ale of land, and as such cannot be given to a charity except by the observance of the restrictions of the Charitable Uses Act. But this view is not referred to in the judgment, and probably either did not occur to the ■court, or was rejected on account of difficulties arising in reconciling it with the decision in Myers v. Perigal (2 D. M. & G. 599) as to shares in joint-stock companies. The court in Ashivorth v. Munn based their judgment on the ground that the share of a deceased partner is "a charge affecting the land" within section 3 of the Charitable Uses Act. "Whatever," said James, L. J.," is due upon taking the partnership accounts is a direct charge upon the land." The practical point to be observed is that the share of a testator in partnership land cannot be given by will to a charitable use.

IN RE ARTHUR, ARTHUR v. WYNNE, M.R., 28 W. R. 972.

A difficult and interesting question was raised in this case. A man before his marriage, in 1873, covenanted with trustees to insure his life on or before July 2, 1875. Shortly before the latter date his life became uninsurable, and he died without having effected an insurance. In an action for the administration of his estate, the trustees claimed to rank as creditors against the estate for damages for breach of the covenant. Now, it is clear enough that if the covenaut was to be construed as an absolute covenant to effect an insurance on or before a given day, it would be no answer to the claim for damages for breach of covenant to say that the covenantor could not possibly have effected the insurance -during a short time before the date specified. He had nearly two years within which he might have effected it, and his representatives could not avail themselves of his neglect in order to escape liability on the covenant. But was the covenant absolute? Was it not subject to an implied condition that up to the date specified the life of the covenantor should continue to be an insurable life? Considering the absolute terms of the covenant, the nature of the contract, and what must have been the fair contemplation of the parties (namely, to insure a provision for the wife and children), the Master of the Kolls thought that there was no implied condition of the kind suggested. We confess, with great deference, that we should lave thought that the continuing insurability of the covenantor's life was, to use the language of Blackburn, J., In Taylor v. Caldwell (11 W. R 726, 3 B. & S. 826), contemplated by the parties, at the time of entering into the contract, as the very "foundation of what was to be done." It seems, as the damages were stated

to have been subsequently arranged between the parties, that there will be no appeal from the decision, and the point decided should be noticed by those who have to advise as to, or to prepare, settlements based on the common but troublesome method of provision for wife and children by insurance.

IN RE KNOWLES, ROOSE v. CHALK, V.C.M., 28 W. R. 975.

The first question here was whether the Act 11 Geo. 4, and 1 Will. 4, c. 40, affects the title of an executor, as against the Crown, to the undisposed-of residue of the testator's personal estate. There could not be much difficulty as to the answer. The Act, it will be remembered, by section 1, provides that when any person Bhall die, having by will or codicil appointed any executor, such executor shall be deemed by courts of equity to be a trustee for the person or persons (if any) who would be entitled to the estate under the Statute of Distributions, in respect of any residue not expressly disposed of, unless it shall appear by the will or any codicil thereto, that the person so appointed executor was intended to take such residue beneficially. But section 2 provides that nothing in the Act shall affect or prejudice any right which any executor, if the Act hod not been passed, would have been entitled to, in cases where there is not any person who would be entitled to the testator's estate under the Statute of Distributions, in respect of any residue not expressly disposed of. The effect of this last section is clearly to retain the old law unaltered in case3 where there are no next of kin, and so VioeChancellor Malins held. In this case, therefore, unless there is something in the will to show an intention to the contrary, the executors will, as against the Crown, take the property for their own benefit. But it was contended in the recent case that a direction in the will that the testatrix's debts and funeral expenses should be paid by her executors showed an intention to the contrary. It was urged that this directionjwas equivalent to an expression that the purpose of the appointment was "to seo that my will is put in force," which words in Braddon v. Farrand (2 Russ. 87) were held to make the executors trustees. But Vice-Chancellor Malins rejected this rather far-fetched argument, and took occasion to express his disapproval of the decision in Braddon v. Farrand.


CHITTY'S STATUTES. Chitty's Collection Of Statutes Op Practical Utility, Arranoed In Alphabetical And Chronological Order, With Notes Thereon. The Fourth Edition. By J. M. Lely, Esq., Barrister-at-Law. Henry Sweet; Stevens & Sons.

We are glad to be able to express strong approval of this new edition of Chitty. A glance at the pages will show the extent to which the convenience of the reader has been consulted in the mechauical arrangements of the book. The type used is larger than in the last edition; the heading of each page includes, besides the main catchword, subsidiary words indicating more accurately the subject of the Act given below; and in all cases the date of the Act is given in bold figures in the heading, and the year and chapter in the margin. This renders it easy for the practitioner to find the Act he is in search of by means of the headings of pages alone. Nor is this the only improvement which has been introduced. Each subject upon which several statutes are printed is prefaced with a list of the Acts and a statement of their general object, with a reference to the pages at which they are to be found. Crossreferences are also given to other titles under which matter bearing upon the subject may be found.

Iu the more important and difficult matter of the selection of the statutes to be printed, we think Mr. Lely has generally shown sound judgment. If he has erred at all, it is on the safe Bide of giving too many Acts. Thus he prints the Land Transfer Acts of 1862 and 1875, which can hardly be said to be referred to in ordinary practice, and in all probability, will not be alive a year hence. Still in face of the facts that Mr. Bart and his editor have thought these Acts worthy of a long summary, and that Mr. Frideaux has printed the Act of 1875 in full in the appendix to his Precedents, it would have been a bold measure to omit them from a collection of statutes. So far as our investigation has yet gone, we have not detected the omission of any statute of importance to the practitioner. With regard to the arrangement of the Acts, we are also generally well satisfied with the result of our examination of the book. It would, of course, be easy to find instances where it appears to us that the convenience of the reader could be better consulted by placing a particular statute under a different heading. We should, for instance, have placed .33 & 34 Vict. c. 44, "An Act to declare the stamp duty chargeable on certain leasee," under the head of "Stamps" ; or if this course was not adopted, we should have included under the head of "Leases," in addition to this Act, 39 Vict. c. 16, and the portions of the Stamp Act, 1870, relating exclusively to leases. And it would certainly have been more convenient if the editor had abolished Mr. Chitty's rather unmeaning heading of "Conveyances," and placed some of the matter under the familiar bead of "Vendor and Purchaser." But considering the great difficulty which often arises in deciding as to the title under which a statute shall be placed, we think Mr. Lely may be congratulated on tho generally successful way in which he has dealt with the matter.

The modem practice of legislation by orders places the editor of a book like that before us in considerable difficulty. If he prints all the orders, he swells his book with matter which practitioners have on their shelves in more handy volumes; if he omits all orders, he runs the risk of being charged with rendering his book imperfect. Mr. Lely has very properly omitted the Bankruptcy Bules and the County Court Rules, but he has printed the rules under a large number of other statutes, from the Debtors Act, 1869, to the Vaccination Act, 1874.

The notes are terse and practical; and where, as in the case of the Trustee Acts, they are numerous, the lengthy expanses of notes which are to be found in former editions are avoided by the use of a smaller type. A similar expedient would have been useful under "Charities," where the notes might also, with advantage, have been somewhat fuller.

If anyone thinks that the completion of the Revised Statutes has rendered Chitty unnecessary, he should turn to the heading "Land Tax" in tho latter work, and compare the ease with which he can there find any provision he wants with the difficulty he experiences in hunting out the Acts through the volumes of the Revised Statutes, even with the aid of the Statute Index. The truth is that, independently of the fact that the Revised Statutes come down only to 1868, there will always be an opening for a collection of statutes classified according to subject. The practitioner has only to take down one of the compact volumes of Chitty, and he has at once before him all the legislation on the subject in hand. Only those who have frequently to consult the statutes can understand the full benefit thus conferred; but we imagine we have said enough to show that the remodelled Chitty deserves a place on the practising lawyer's shelves.


The Law Relating To Waters, Sba, Tidal, And InLand. By H. J. W. Coulson and TJ. A. Forbes, Barristers-at-Law. H. Sweet.

The authors of this volume have chosen a difficult

subject, but one on which they have the advantage of the labours of several eminent text-book writers. Some of the works of these writers, notably that by Mr. Phearr contain an unusual amount of that most rare of all qualities in a law work—original and careful thought. But it is twenty years since Mr. Phear's book was published, and, with all its great merits, v.e believe it was never very successful. It contains, we must admit, a* good deal of ingenious twisting of cases to fit certain theories propounded by the author; too muoh argumentative inference from cases, and too little clear distinction between such inference and the positive law stated by the writer. If more care had been taken to point out to the reader (by meaus of quotations from, or references to, judgments) when the text was founded on the decisions of judges and when on the decisions of the learned author, the book would probably have met with greater success. The authors of the present work cannot be said to err in this way. Their references to authoritiesare copious, and their extracts from judgments numerous; while their speculations and criticisms are few and* far between. They avow in their preface their intention to be to confine themselves, as far as possible, "to thedecisions of the courts as expressed iu the words of learned judges." If, however, their mode of dealing with their subject is unambitious, then conception of the subject is not so. They sweep into their net every topic connected with waters, including not only the sea, but also bridges, and tolls, and rates.

Perhaps the fairest mode of testing the mode of execution of the book will be to take an important receut case as to which the authors must have trusted wholly to their own j udgment. The first decision we looked for was Hurdman v. North-Eastern Railway Company (26 W. R. 489, L. R. 3 C. P. D. 168), a case of no little interest on the difficult question of striking the balance of justice and expediency between the rights of adjoining landowners. The case is accurately stated at page 133, and the extent of the principle is given in the words ot Lord Justice Cotton. We do not understand,, however, why the important statement in the judgment of the ground of the non-liability of an upper-mine* owner for the flow of water to a lower mine should be relegated to a foot-note, instead of being added to to the statement, on the next page, of Wilson v. Waddell. We do not think that ground is very satisfactory; but it ought, at all events, to be brought to the knowledge of the reader who consults the book for information as to mines; and it should, moreover, be stated as having been laid down in Burdman's case, and not merely as the suggestion of the authors. The case of Holker v. Porrit (21W. R. 414, 23 W. R. 400, L. R. 8 Ex. 115, 10 Ex. 59) seems to us to be inadequately stated and discussed; but it is hardly worth while to gofully into the subject here. The authors have evidently set before themselves a modest standard, and, if judged by this, they cannot be said to have been unsuccessful. It appears to us, from a perusal of a considerable part of the work, that the statement of the law is generally accurate. Considerable pains have evidently been bestowed on the book, and, although it has no pretensions to originality or scientific arrangement, it will bea useful compendium of the law on a difficult subject.

COMPANIES. The Law And Practice Op Joint Stock And Other ComPanies, &c, &c. By Sir Henry Thrino, K.C.B. Fourth Edition. Edited by G. A. R. Fitzgerald^. Barrister-at-Law. Stevens & Sons; H. Sweet; Maxwell & Sons.

As the draftsman of the Companies Act, 1862, Sir H. Thring was able to give to his book more authority than usually attaches to annotated editions of statutes. He constructed his work on the principle of, first of all, giving a treatise on the Law of Companies, and then printing the statutes, with notes to the sections. Both tbfe treatise and notes have always appeared to us to be excellent specimens of workmanship; and after the modifications and additions introduced in the last edition by Mr. Fitzgerald—especially the largely increased notes to the Acts—the work took its place as|one of the standard text-books on Companies. Since the last edition was issued there have been passed the three Companies Acts of 1877, 1879, and 1880. These are printed in full, and are prefaced with notes explaining their cause and general object. These notes appear to us to be a very useful feature of the work; that on the Act of 1879 is exceedingly well done. There are also, of course, notes appended to the sections. The precedents in Appendix IL, which are not the least useful part of the book, have been added to. We may, however, suggest as desirable the addition of object clauses and articles moulded with special reference to the very common case now-adays of the turning of a private business into a limited company, in which the shares are to be held by a small number of persons, and the working of the company is as far as possible to resemble that of a private partner

THE JUDICATURE ACTS. The Supreme Court Of Judicature Acts And The AppelLor Jurisdiction Act, 1876, With Rules Of Court And Forks, To Mat, 1880, Annotated So As To Form A Manual Of Practice Adapted Chiefly To The ChanCery And Common Law Divisions. By R. W. Andrews, and A. B. Stoner, Barristers-at-Law. Reeves & Turner.

This is a compact and handy edition of the Acts and Sales; and as it includes all the rules, up to those published in May last (the latest issued except the order as to fees of search, &c, issued in September last), and has all the rules placed under their proper orders, the book will be well worth buying as a mere matter of convenience to the practitioner. But the work has other merits. The notes of cases appended to the sections and rules are very condensed, but so far as we have tested them they appear to be exceptionally intelligent and accurate. They are very seldom mere copies of head-notes, and often indicate that the authors have considered the cases cited with

LEGAL DIARY. "the Lawyer's Companion And Diary And London And Provincial Law Directory For 1881. Edited by John Thompson, Esq., Bsrrister-at-Law. Thirty-fifth Annual Issue. Stevens & Sons; Shaw & Sons. This well-known Diary needs r.o commendation beyond the simple announcement of its publication. We have tested it by many years' use, and can testify that it is complete, accurate, and convenient.

Id the Court of Appeal, on Tuesday, the Lord Chancellor and the Attorney-General paid a tribute of esteem to the late Lord Justice Tbesiger. The Lord Chancellor said that the late Lord Justice " was advanced to this Court of Appeal at a very early age in comparison with the age at which men nscally attain to distinction, and after a professional career, brilliant indeed, bat comparatively short. In another man so rapid and so early an advancement might, perhaps, have provoked some envy, bat with him it was attained with universal goodwill. While he sat on the bench he folly justified the discernment of those who advised the Crown to promote bim, by his knowledge, by his learning, by his patienoe, by his industry, and by that unfailing modesty and dignity of demeanour whioh in him no cirenmstances could change. While he lived be did good work and well sustained the reputation of the bench while he sat here, and the public hoped that it would for many years have had the advantage of his wisdom and his virtue. These hope* have now been disappointed, and all that it remains for me to say is tbat we shall long deplore his loss, and shall ever affectionately regard his memory."



[To the Editor of the Solicitors' Journal.]

Sir,—The suggestion that the profession or the Law Society should be represented in Parliament is one, I think, well entitled to consideration.

Mr. Keen's paper on the subject will no doubt shortly be circulated, with the account of the society's transactions at Sheffield, when his reasons in support of the suggestion can be more fully considered.

I have, however, been led to look into the society's last annual report to see how far it affords any information showing that the council really require the aid of a parliamentary representative. The report refers at some length to the amendment of the law of real property, with special reference to the papers read at the Cambridge meeting, and explains the course pursued by the council with regard thereto.

It appears that the council were frequently in communication with the Lord Chancellor upon the Bills which he introduced last February, respectively entitled the " Settled Lands Bill" and the " Conveyancing and Law of Property Bill." All the proposals of the council were considered and many were adopted.

In referring to the exertions made by the council, the report hopes that the influence thus exercised will serve to show that solicitors are not averse to thb improvement and simplification of the law, though it may involve a curtailment of their pecuniary privileges. Now I cannot help feeling that, in considering the details of the Lord Chancellor's Bills, the council would have been materially assisted if they could have secured the constant attention of a member directly representing tho interests of the profession in the House of Commons, and that the passage of the Bills would have been greatly facilitated if they had reached the Lower House, supposing they could have been authoritatively supported by such a member. Moreover, there are practical details connected with the amendment of the law of real property of the greatest importance to clients, with which solicitors only are competent effectually to deal.

Then, with regard to the remuneration of solicitors, which was another subject considered by the council, there are few questions of more practical importance both to solicitors and their clients. A member, therefore, addressing the House of Commons, even on this comparatively small topic, as the representative of the profession, could not fail to command attention and to contribute materially to the solution of this troublesome, and by no means easy, question. Somewhat similar remarks apply to the many other important matters with which the society's report shows the council had been dealing during the previous year. The space at your disposal necessarily prevents my referring to them in detail. Those, however, of your readers who care to pursue the matter further can consult the report and satisfy themselves upon the point. But I venture to submit that in the consideration of many of the matters from time to time deliberated upon by the council, the assistance of a parliamentary representative would prove of great value and materially promote the result which the council might desire to attain. In addition, I apprehend frequent references are made to the council by members outside the council, which, in order to be adequately disposed of, would probably render it necessary to put a question in the House of Commons.

At the present time there is no member by whom the council can require the requisite interrogatory to be put. Again, the Lord Chancellor, or the AttorneyGeneral for the time being, may differ from the council as to the necessity for, or the contents of, n Bill. It may be that the council is right, and that the Lord Chancellor or the Attorney-General is wrong. Surely in order to arrive at a satisfactory conclusion it would seem just for there to be some member officially to announce, and to enforce, the views of the council upon the particular point. I know of no body so much consulted as the council on matters affecting legislation. If it is right that all professions should possess a parliamentary representative, that is an additional reason, but very far from being the only reason, for accepting Mr. Keen's proposal. In all commissions affecting the administration of justice, or the amendment of the law in any particular upon which it is probable that a solicitor may be consulted, it is now almost the invariable rule to invite the president, or some other member of the council, to become a member of the commission.

I think there is great force in the remark of "One who was Present" that solicitors now in Parliament must, in the first place, consider their duty to their constituents. Mr. 'Whitley, the member for Liverpool, is no doubt quite willing to give to the council all the parliamentary assistance in his power. With, however, the duties of so large a constituency as Liverpool, which is so deeply interested in mercantile matters and legislation generally, it is not to be expected that Mr. Whitley, or, indeed, any solicitor in Parliament, can give the time and attention of which the council has probably often stood in need.

I confess that until Mr. Keen drew attention to the suggestion it had not occurred to me. It is certainly worthy of full consideration. If the profession should become entitled to be represented in Parliament, surely that candidate would be elected who should appear most fitted by his judgment, experience, knowledge, and ability, to command the attention of the House. He might be a Liberal-Conservative or a ConservativeLiberal; and although, in the event of a contest, politics would influence the result, yet no such member would stand the chance of being re-elected if he should prove a failure, no matter what might be his political views.

I repudiate entirely the idea that the adoption of the proposal would introduce into our ranks an element of political antagonism. The election would bo quietly conducted in the same manner as the election of members for the Universities. Exertions would, of course, be made on behalf of opposing candidates by their supporters, after the Bame fashion, I suppose, as is now frequently done to secure the election of a particular member to the council. For my own part, I like to see exertions of this kind. They tend to show that the members of our profession are not so apathetic as they used certainly to be, and that they really take an interest in the election. It is because in times gone by we have been so wrapped up in our own individual and separate interests that we have sometimes failed to rise in the estimation of the public to the true dignity of the important position we occupy in the manifold duties of their daily life. Thanks to the efforts of the council, especially in recent years, and growing in importance every year, much has been accomplished. There yet remains ground to be covered which only our own apathy can prevent us from occupying.

There are, of course, objections which may be urged against Mr. Keen's proposal. I am by no means disposed at any time to arrive at a hasty conclusion. I should like, therefore, to hear from some of your correspondents, who may have given attention to the matter and have come to an unfavourable conclusion, what are the grounds upon which they think that Mr. Keen's proposal should not be adopted, or why, if right theoretically, it is nevertheless impracticable? Lex.

THE BRIGHTON MEETING. [2*o the Editor of the Solicitors' Journal.'] Sir,—A discussion has arisen in several quarters as to the probable tax upon our Brighton friends incident to their generous offer to receive the Incorporated

Law Society in October next. Various proposals havebeen made, but I venture to think that the suggestion of a " purse," thrown out by me at Sheffield (which wasimmediately indorsed by a knot of acquaintances), has not been improved upon at present.

There is little doubt that an entertainment at Londonsuper-Mare is likely to attract a large number of solicitors from all parts of England, especially in the month, of October, when many of us visit Brighton almost as of course. It would not surprise me if the attendance fat exceeds that at any of the other towns—perhaps, indeed,, it will be greater than if the congress were held in, London itself, making the tax upon the limited resources of Brighton obviously out of all proportion.

Of course, it may be said that our Sussex friends have calculated all this, and that it is beyond our province to. intervene; but the circumstances are of a very exceptional character, and I do not think that Brighton would lose any of its dignity by accepting a contribution in a. lump sum from London men. This need not interfere with the help from the Law Society on certain heads.

A large number of town solicitors would, I think, be willing to subscribe a guinea or more to a fund, whilst many would probably hesitate to pay a fixed price for a dinner ticket (even if Brighton would listen to such a suggestion, which I doubt), for this process would tend to destroy the sentiment of an "invitation" and create an awkward precedent. I know several men who would willingly form a committee if this proposal to start a subscription meets with any general approval.

Francis K. Mtjnton.

3, Lambeth-hill, Queen Victoria-street, Nov. 1, 1880.

P.S.—The foregoing was written before I had had an. opportunity of reading the letters in your columns off the 23rd and 30th of October. Such letters, however, do not much touch my particular point, and I will only just add that I was the individual alluded to as having suggested to our friend Mr. Howlett (at the Chatsworthlunch) that he might expect a thousand visitors at Brighton, and I do not think I shall be far out in my reckoning. F. K. M.


Leave To Appeal Obtained By Person Not A Parts' To Action.—In a case of Markham v. Markham, before the Court of Appeal on the 2nd inst., the question arose how leave to appeal from an order was to be obtained by a person whowas interested in the subject-matter of an action, bat who was not a party to it. The action was an administration one,, and an order had been made on further consideration declaring that the residuary estate of the testator was, on the true construction of bis will, divisible among suoh of his brothers and sisters and the brothers and sisters of bis wife as had survived the wife, and such of the children as had survived the wife of such brothers and sisters of the testator and the brothers and sisters cf the wife as were living at the date of the will, and had subsequently died in the lifetime of the testator, or in the lifetime of the wife. One of the sisters of the widow had died before the widow, leaving one child, who had also died before the widow. This child claimed to be entitled under the will to a share of the, testator's residue; and he had made an assignment of hisinterest. The assignee was not a party to the action, and had not been served with notice of the decree, and npon thehearing on farther consideration be was in no way represented. He desired to appeal from the order on further consideration, and he applied by motion ex parte to the Court of Appeal for leave to appeal. It was urged on his behalf that under the old practice in the Couit of Chancery, as shown by the case of Parmiter v. Parmiter (2 1). F. & J. 526), leave to appeal in suoh a case would have been obtained by an ex parte petition or motion in the Court of Appeal, and that, inasmuch as no provision on the subject is contained in the Judicature Acts or rules, the old practice still remains. The Court (Lord Selboune, C, and Brett and Cotton, L.JJ.y. acceded to this view, and gave leave to appeal upon production to the registrar of an affidavit of the title of tha= applicant to the interest of the deceased child.—Solicitors, Duncan, Warren, $ Gardner.

Time Foe AppealingPower Of Administp.ator To Sill Real Estate.—In a case of In re Clay arid Tttley, before the Court of Appeal on the 3rd inst., the question was raised whether an appeal had been brought in time. A summons under the Vendor and Purchaser Act, 1874, was taken out by a vendor asking that the purchaser's requisitions and objections in respect of the title to the property contracted to be sold had been sufficiently answered by the vendor, and that a good title bad been shown in accordance with the contract On the hearing of this summons. Hall, V.C., made an order that " this court, being of opinion that a good title has not been shown to the said hereditaments, doth not think fit to make any order on the said application, but doth order that the applicant do pay" the purchaser's costs of the application. This order was pronounced on the 26th of June. Notice of appeal by the vendor was served on the purchaser on the 17th of July (a Saturday), but not till after two p.m. The purchaser took the objection that the appeal was too late. The court (jesbel, M.R., and James and Cotton, L.JJ.) held that the order contained in substenoe a declaration of the rights of the parties, and that consequently it was not a simple refusal, and the time for appealing did not run from the date of the pronouncing of the order, but from the date of its completion. Jessel, M.R., said that whenever an order contained a declaration as such, or as an expression of the opinion of the court, so as to bind the rights of the parties, it did not amount to a simple refusal so as to compel the bringing of an appeal within twentyone days from the date of the pronouncing of the order. On the merits of the case, the question was whether an administrator cum testanunto annexo could sell real estate of the testator for the purpose of paying his debts, the personal estate being insufficient. The testator by his will directed that his debts should be paid by his executors thereinafter named, and, in case his personal estate was insufficient for that purpose, then he ohnrged his real estate with the payment of the deficiency. He then made beneficial devises and bequests of his real and personal estate, and appointed two persons executors. After his death the persons named as executors renounced probate, and letters of administration, with the will annexed, were granted to the testator's widow. The personal estate was insufficient to pay the testator's debts, and the administratrix entered into a contract to sell a part of the real estate. The purchaser objected that the administatrix had no implied power under ti.e will to sell the real estate, either independently of the provisions of section 16 of the Act 22 & 23 Vict. c. 35, or by virtue of those provisions. Hall, V.C. held that the objection was well founded, and the Court of Appeal (jessel,, and James and Cotton, L.JJ.) affirmed the decision. Jessel, M.B., said that a power 10 sell the real estate of a testator for payment of his debts was implied in executors, because they were appointed by the will to pay the debts. They were the nominees of the testator, and if his personal estate was insufficient to pay his debts, they had an implied power to sell his real estate. Bat there was no authority showing that the couit bad ever implied such a power in an administrator who was not appointed by the testator but was an officer of the Probate Court. The testator could not be supposed to have anticipated that his executors would renounce probate. It would not be right that the court should new for the first time imply such a power in the officer of the court. And, as to section 16 of the Act, it was carefully Iramed so as to confine the power given by it to executors and persons on whom the executorship should devolve. It was impossible to suppose that the Legislature had forgotten that there were such persons as administrators, and there was no ground for giving to the words of the section any meaning but their natural one.—Solicitors, Dviou # lit id; Gard, Corbin, f Mall.

Alteration Of Order When Passed And EnteredLeave To Move Tor Discharge Op Windino-up OrderForm Op Ordeb.—In a oase of Ite Flagstaff Silver Mining Company "/ Utah {Limited), before the Master of the Rolls on ibe 2nd inst., a motion was made by a oreditor of the

company to stay the drawing up of an order made by; Pollock, B., aitting as Vacation Jndge, on September 8, which discharged, as alleged, a previous order of toeMaster of the Rolls for the winding up of the company, made on the 24th of July, and that the carriage of such last-mentioned order might be given to the applicant. The faots were as follows:—It appeared that three petitions were presented to the Master of the Rolls to wind np the company by Metz, Hill, and Sadler. On the 24th or July a winding-up order was made on Metz and Hill'spetitions, but an arrangement was made giving libertyto the company to move to discharge the order if 0)3 two petitioners were settled with within a week. Onthe 31st of Jnly, the two petitioners having been paid, a motion was made to discbarge the winding-up order, and the Master of the Rolls then discharged the winding-up order in Metz and Hill's petitions, but made a winding-up order on Sadler's petition, giving leave to the company tomove to discharge such order in payment before the Vacation Judge. It appeared that on the 31stof July,notwithstanding notice by the company that they intended to payoff Metz and Hill's petitions, a winding-up order on these twopetitions was pas-ed and entered, the order being in the usual form, and without reserving any liberty to the company to discharge the order within a week. When the application to the Master of the Rolls on the 31st of July was made, the company did not know that the order had been passed and entered. On the 8th of September, on the ex parte application of the company in pursuance of the liberty reserved, and as Sadler's debt had been paid, Pollock, B., discharged the winding-up order of the 31st of July. On the 29th of September a creditor of the company moved to slay the drawing up of Pollock B.'s order, and after some discussion, it was arranged that the motion should stand to the 2nd of November, without prejudice to any question ; things iu the meantime to remain in statu quo, and the order of the 8th of September not to be drawn up. The creditor had filed an affidavit iu the application, in which he stated he was informed and believed that the Master of the Rolls had. directed the drawing up of the order to be suspended for a week, to enable the company to pay off the petitioners, but that as the company hid not done eo, the order had been passed and entered, and that on the 8th of September an. application was made to Pollock, B., to discharge the order of the 24th of July, on the ground that the company had paid off the petitioner's debts, and that there being noopposition, the judge had discharged the order of the Master of the Rolls. The applicant also submitted that the payment by the company of Sidler's debt after the winding-up order was improper, and that the winding-up order operated in favour of all the creditors. The applicant, therefore, asked to have tho conduct of the winding-up order given to him. Jessbl, M.U., in refusing the motion, did not. call upon the company's couusel, and said the cost* must follow the event. He said that he had granted, leave to fie company, the sole respondents in Metz and Hill's petitions, to move to discharger the order made on payment of their respective debt* with costs within a week, and suoh orders be frequently made. The order, therefore, of the 21th of July ought either not to have been drawn up for a week, or if drawnup within the week should have contained a reservation of the liberty to move to discbarge it. The order had, however, been passed and entered by the petitioners' solicitor on the 31st of July, and this must have been through some misapprehension, as 01 the 31st of July the order of the 24th of Jnly was discharged, uud there was an end of tbewhole matter, except that there was another petition onwbioh an order was made on the 31st of July, but leave todiscbarge that order before tbe Vacation Judge bad againbeen given by bim. That petitioner was also paid, and the winding-up order of tbe 31st of July was quite properly discharged by Mr. Baron Pollock. Another oreditor, however, disoovered that the winding-up order had been passed and entered, and then assumed erroneously that such order had been discharged by Mr, Baron Pollock without any jurisdiction to do so. It appeared to him that tbe applicant must take the consequence of the mistake be had made, as he might very easily have gone to the company's solicitor and a»certained the facts as to the several orders. No solicitor should assume that a judgewould discharge tho final order of another judge without jurisdiction, and it certainly did appear as it the ci editor

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