decisions establishes in such cases, that though the mere non-payment for one delivery does not of itself release the vendor. from the obligations of the contract with regard to the subsequent deliveries, yet under certain circumstances it may do so-that is, when the non-payment for one delivery is under such circumstances as to give the seller reasonable ground for believing that the purchaser will be unable to pay for the subsequent deliveries, and that he does not intend to go on with the contract (see Bloomer v. Bernstein, L. R. 9 C. P. 595, and also Ex parte Chalmers, 21 W. R. 349, L. R. 8 Ch. 289). This view goes on the principle established by Frost v. Knight (20 W. R. 471, L. R. 7 Ex. 111),that a party may so conduct himself before the time for performance has arrived as to break the contract as it were by anticipation. Now it does seem to us that possibly a refusal to accept the first delivery may give rise to a question for the jury whether it took place under such circumstances as to entitle the vendor to treat the purchaser as entirely repudiating the contract. If so, without going the whole length of the arguments of the majority in Honck v. Muller, and still upholding Simpson v. Crippin, we may think that practically the judgment in Honck v. Muller was right in substance, on the ground that in such a case the jury ought to arrive at the conclusion they did in Bloomer v. Bernstein. In Simpson v. Crippin there seems to have been hardly any evidence of an intention by the plaintiff to repudiate the contract in toto; it was only that in the course of its fulfilment he did not take the full quantity required to be taken in the first month.

to an application to set aside an award upon a compulsory reference under the Common Law Procedure Act, 1854, s. 9, though this has not been, we believe, expressly decided. "Lawful authority" is now in motion in the shape of the Judicature Bill now before the House of Lords. Surely such a Bill should contain an additional clause to provide that the time for moving to set aside an award, however made, shall be regulated by the sittings and not by the "terms."

The next suggestion which we have to make also concerns arbitrations. Under the law as it is, an official referee has no power to enter judgment, though a master has (Longman v. East, 26 W. R. 183; L. R. 3 C. P. D. 142). Also it has been held by the Court of Appeal that an action cannot be referred under section 3 of the Common Law Procedure Act, 1854, if the defendant denies his liability (Clow v. Harper, 26 W. R. 364, L. R. 3 Ex. D. 198), but that under section 57 of the Judicature Act, 1873, the court may refer, not only the issues of account, but all the other issues (Ward v. Pilley, 28 W. R. 937, L. R. 5 Q. B. D. 427). Here is subject-matter calling loudly for a remedy. To a great extent a remedy was sought to be provided last session by a very useful measure called the "Common Law Procedure and Judicature Acts Amendment Bill," prepared and brought in by Mr. Mellor. Mr. Gregory, and Mr. Marriott, of which it is said (p. 74 of Ilbert's Judicature (Officers) Act, 1879), that "it passed the two Houses of Parliament, but as there was no time at the

end of the session to consider in the House of Commons certain formal amendments made in the House of Lords, it did not become law." The 1st clause of this Bill was as follows:

"In any cause or matter (other than a criminal proceedin which all parties who are under no disability consent, and also without any such consent in any such cause or matter requiring any prolonged examination of documents or accounts,

SUGGESTED ADDITIONS TO THE JUDICATURE BILL.

LAST week we commented in some detail upon the minor provisions of the new Judicature Bill. We now propose to suggest one or two additions.

66

One very necessary amendment of the Act of 1873 is occasioned by the construction which, rightly or wrongly, the Court of Appeal put upon section 26 in Christ's College v. Martin (25 W. R. 637, L. R. 3 Q. B. D. 16). Section 26, it will be remembered, abolishes terms, 80 far as relates to the administration of justice," but also, unhappily, provides that "in all other cases in which, under the law now existing, the terms into which the legal year is divided are used as a measure for determining the time at or within which any act is required to be done, the same may continue to be referred to for the same or the like purpose, unless and until provision is otherwise made by lawful authority." Christ's College v. Martin, it will also be remembered, decides that, under the saving clause of this section, the old terms as fixed by the antediluvian Act of 11 Geo. 4, and 1 Will. 4, c. 70, s. 6, and not the new sittings as fixed by the Rules of the Supreme Court from time to time, must be referred to for the purpose of determining the time for moving to set aside an award under 9 & 10 Will. 3, c. 15, s. 2, and the same reasoning would no doubt apply

the court or a

judge may, at any time, on such terms as may be thought proper, order the whole cause or matter to be tried before an official referee, who shall have power to direct in what manner the judgment of the court shall be entered, and to exercise the same discretion as to costs as the court or julge could have exercised."

The 2nd clause directs that the procedure shall be under the Judicature Acts, the 3rd that any matter which may be referred to an arbitrator may be referred to an official referee, and the 4th that parties may agree to refer existing or future differences to an official referee. This Bill seems to go a long way towards putting things straight, and might be almost incorporated

verbatim in the Bill now before the House of Lords, occasion being taken to repeal and re-enact sections 56 and 57 of the Judicature Act, 1873, so far as necessary.

The two next suggestions which we have to make both arise out of section 47 of the Act of 1873. That section provides that the jurisdiction of the Court for Crown Cases Reserved shall be exercised "by five judges at the least, of whom the Lord Chief Justice of England, the Lord Chief Justice of the Common Pleas, the Lord Chief Baron or one of such chiefs at least shall be part." The 26th clause of the new Judicature Bill provides that "where, by any statute, the concurrence of the two extinguished chiefs "or either of them is required for the exercise of any power or the performance of any act, it shall be suf ficient henceforth that the Lord Chief Justice of Eng and shall concur therein." "A Court for Crown Cases," therefore, cannot now be" made" without the presence of the Lord Chief Justice of England. That the Lord Chief Justice of England should sit in this court if he can is no doubt desirable. But is it equally desirable that the court should not be competent to sit without him? We think not, and would suggest that either his presence should be dispensed with as a sine quâ non, or that if the presence of a high official should be deemed necessary, a judge of the Court of Appeal should be

"The Winter Assize Act, 1876, shall henceforth extend to all assizes to be held at any time of the year, in the same manner as if the word 'winter' were omitted from the said Act, and as if the months of November, December, or January were not mentioned therein."

We have already said that this important clause would be beneficial to all parties concerned, but we think that greater care might be taken to simplify the law. Turning to the Winter Assizes Act, for instance, we find section 4 to run thus:

"All enactments relating to the power of her Majesty to alter the circuits of the judges, or places at which assizes are holden, or otherwise relating to assizes and circuits, shall apply, and may be put in force, for the purpose of carrying into effect this Act, or any order made thereunder."

In a similar "saving" spirit it is enacted by section 23 of the Act of 1875 that the power thereby given to regulate circuits by Order in Council "shall be deemed to be in addition to, and not in derogation of, any power already vested in her Majesty in respect of the matters aforesaid." Government draftsmen seem perpetually haunted by the fear that when they confer a new and increased power on the executive, they may be losing some valuable old power which has long ceased to be used, but we doubt whether this is the proper way to present measures to Parliament. The enactments relating to circuits are, as far as we can discover, 3 & 4 Will. 4, c. 71, and 26 & 27 Vict. c. 22, both of which Acts appear to be displaced by section 23 of the Act of 1875. Would it not, therefore, be fitting to repeal them, incorporating in the present Bill all provisions (if any) which are not so displaced?

There has for some time been a growing feeling of confidence in the future of land: that there is a present improvement in the realization of the same is evidenced by the sale at the Mart on Wednesday week, by Messrs. Edwin Fox & Bousfield, of the Finningley Estate, Yorkshire, consisting of 2,418 acres, which with the buildings and cottages thereon, produce a rental of £2,200. Mr. Bousfield in introducing the property remarked on the regularity with which the rents were paid, and stated that no deduction was made therefrom. He dwelt on the importance of the position of the estate and the advantage of acquiring so compact a domain in view of the certain advance in the value of land. The first offer for the property was £40,000, and the biddings advanced to £60,000, at which amount it was sold. At the Auction Mart, on Wednesday week, Messrs. Edwin Fox & Bousfield also sold the premises, No. 63, Gracechurch-street, occupying an area of 1,500 feet, with a frontage of about 14 feet, let at £160 per annum, for £10,900. Also two houses in Plough-court, Fetter-lane, let at £225 per annum, for £4,500.

RECENT DECISIONS.

PERPETUITY AND EQUITABLE CONTINGENT
REMAINDERS.

(Abbiss v. Burney, C.A., L. R. 17 Ch. D. 211). LAST year the minds of those few persons who continue to take a lively interest in English real property law were agitated by the news that Vice-Chancellor Malins had decided, in a case of Abbiss v. Burney, that equitable contingent remainders are not within the restriction imposed by the rule against perpetuities. We took occasion (24 SOLICITORS' JOURNAL, 817) to exIt was press our surprise at the supposed decision. taken to be pretty certain that equitable contingent remainders, quite apart from 40 & 41 Vict. c. 33, are not liable to destruction by the determination of the particular estate before the happening of the contingency which is to vest the remainder, and some persons went so far as to speculate whether, if the Vice-Chancellor's ruling should be upheld, a fine opportunity might not be opened to the ingenuity of conveyancers. The full report, both of the Vice-Chancellor's decision and of the judgment of the Court of Appeal overruling it, is now before us, and though, upon a close examination, the point in question appears not to have been necessary to the decision of the case, and therefore cannot, strictly speaking, be said to have been decided, we do not think that any of our readers would care to build anything upon the chance that it will ever be decided in conformity with the Vice-Chancellor's opinion.

In Abbiss v. Burney a testator devised and bequeathed certain freeholds and leaseholds to trustees, and their heirs, executors, administrators, and assigns, respectively, upon trust to pay the income to his wife for life, and after her death if A. should be then living, to retain to their own use the income during A.'s life, and after the decease of A. upon trust "to convey, assign, and pay his said freehold and leasehold estates, and the rents and profits thereof, unto such son of B. as should first attain the age of twenty-five years, his heirs, executors, administrators, and assigns, absolutely for ever," upon certain conditions as to bearing the testator's erest and arms, with accumulation in the meanwhile. In the events which happened, all the persons mentioned were living at the testator's death; and at the death of A. the property was claimed by the heir-at-law of the eldest son of B., who had attained the age of twenty-five, and had afterwards died during A.'s lifetime. This claim was disputed by the heir-at-law of the testator, who contended that the contingent interest (or whatever it is to be called) given to the eldest son of B. on attaining twenty-five was void for contravening the rule against perpetuities. He also contended that B.'s eldest son had disqualified himself by omitting to bear the testator's arms within the prescribed period; but with this point we do not propose to trouble the reader.

We cannot help regarding it as significant of the general contempt into which real property law seems to be falling, that so many pages of argument and of judgment should in this case have been devoted to disquisition upon the properties of contingent remainders. The interest given to B.'s children was a mere right to call, under certain circumstances, for a conveyance; and it was explicitly given to them as a mere trust. To call such an interest a remainder, whether legal or equitable, vested or contingent, is to commit as frightful a solecism in legal terminology as can possibly be committed; and to seek to infer something about its attributes, from the fact that certain attributes are attached to legal contingent remainder, is to argue with a wildness which sets criticism at defiance. We must even beg leave with humility to express some feeling of regret that the Master of the Rolls, the most eminent pillar of real property law upon the bench, should, by implication, have styled this

a

interest an executory devise; though no doubt the lastmentioned phrase is elastic, and may be taken to include almost anything in futuro given by a will. But we conceive that the phrase ought properly to be confined to legal estates which are given by way of executory devise; and that it ought not to be applied indiscriminately to any capricious limitation, embodied in a mere executory trust, which happens to come into the head

of a testator.

This interest being, by the most explicit provision of the testator, an executory trust, and nobody having ever pretended that executory trusts are not within the restriction of the rule against perpetuities, we cannot help wondering that the opponents found so much to talk about, and that on both sides they thought it worth while to display such a mighty concern with the properties and attributes of contingent remainders. But the fact that they did so has elicited from the Master of the Rolls a disquisition upon this subject, which, though it is strictly speaking obiter dictum, and not relevant to the actual decision, will probably for ever set at rest a question which has never yet been decided—namely, that equitable contingent remainders, not being liable to be defeated by the determination of the particular estate before the happening of the contingency, are therefore within the restriction of the rule against perpetuities, and must be so limited as necessarily to vest during a life or lives in being or within twenty-one years afterwards.

REVIEWS.

With

ELEMENTARY EDUCATION ACTS. THE ELEMENTARY EDUCATION ACTS, 1870-1880. Notes, &c. By W. CUNNINGHAM GLEN, Barrister-atLaw. SIXTH EDITION. By R. CUNNINGHAM GLEN, Barrister-at-Law. Shaw & Sons.

Mr. Glen's book contains the Act of last year, annotated, and the appendix appears to contain all the orders and circulars issued by the Education Department. The new Code, issued in February last by the Education Department, is not printed, inasmuch, as the editor explains, as the alterations made are very elight, and are fully noticed, and the Department intend to simplify the Code next year. The notes to the Acts are full and painstaking, and include information derived from all sources, including the parliamentary reports in the daily

papers.

CORRESPONDENCE.

THE PROPOSED IRISH LAND COMMISSION. [To the Editor of the Solicitors' Journal.] Sir, Mr. Gladstone yesterday announced, as most of your readers will have observed, the names intended to be proposed to the House of Commons as Irish Land Commissioners. And I fear, unless some energetic steps are promptly taken to prevent it, that we shall be visited with a repetition, in Ireland, of the "Collier trick," which the English bar has neither forgotten nor forgiven.

It was from the first conceded on all hands that the success or failure of the present experiment would largely depend upon the constitution of "the court," a tribunal which has been made-unfortunately, as I think -identical with the commission to which so many and important other, non-judicial, functions have been intrusted. It was promised, and even embodied in the Bill as introduced, that one of the members of the court should be a judge or ex-judge of the High Court of Judicature, a provision which tended more than any other to inspire confidence in, or at least allay distrust of, the proposed tribunal. Some of us were even sanguine enough to hope that it foreshadowed the appointment to this office of Judge Longfield, whose name would have been received with acclamation by probably every man in Ireland, except the "irreconcileables" on both sides, as unquestionably the most competent man now living to deal with this question on principles at once just and liberal. Or, if the country is still in so backward a condition, that even in a purely legal appointment the question of religion cannot be disregarded, the Govern ment would, I faucy, bave fully satisfied every reasonable expectation bad they proposed to confer this office upon "that consummate lawyer and finished gentleman," Lord Justice Deasy, who would doubtless have been glad, after Dearly sixteen years' service on the bench, to accept an honourable and dignified office, with an addition of £2,000 a year to his retiring pension. If the result of any such appointment were to be the bona fide elevation of Serjeant O'Hagan to the bench, no one, I think, unless it were the Attorney-General, could have the slightest reason for dissatisfaction. But it is no disparagement to the learned serjeant to say that "a fair lawyer and finished scholar" (which he undoubtedly is) is not precisely a description of the exceptional qualifi cations necessary for the discharge of exceptional powers of extraordinary importance, or that a man may be very fit to be a puisne judge and yet not fill satisfactorily a post involving the exercise of unprecedented discretionary power, and exposed to adverse criticism, from opposite points, of unexampled keenness.

Another, equally serious, objection is this: If the court is to command confidence, its head, the judicial member, must not only be, but be felt to be, entirely inaccessible to "pressure from without": the promise of "an ex-judge" seemed to fulfil this condition, because such a judge would ordinarily be entirely out of the range of possible promotion, but no one can imagine that a lawyer in first-class practice would accept an office of this nature otherwise than as a stepping-stone, and from this point of view the more excellent the appointment the more objectionable.

Of the other members of the commission I do not propose to speak, because my present object is not to criticise the tribunal as a whole.

Lincoln's-inn, July 19.

ALEXANDER EDWARD MILLER.

CUSTOMS AND INLAND REVENUE ACT, ISI. [To the Editor of the Solicitors' Journal.] Sir,-There is one effect of the probate clauses of this Act to which attention should be directed, as it

·would seem to be a step in the wrong direction. The modern tendency is to lighten the liability to duty of those who have been dependent upon the bread-winner whose death gives rise to such liability. The new Act effects what appears to be an improvement-viz., the placing of widows and children upon an equality as to duty, where they happen to be residuary legatees (which is the case in the majority of instances)-for now no legacy duty is payable, whether the legatee be the widow or a child (section 41); but this is effected by indirectly more heavily charging the widow, and bringing her up to the level of the children, instead of bringing the children down to the level of the widow. The following instances will show this more clearly-assuming in each case that the widow or the child takes the whole estate less duty and expenses :

It is true that in small estates under £1,000 the increase of probate duty is small, and it may be urged that those above £1,000 can bear the larger increase, but it is in the medium estates, where the widow has been accustomed to be entirely dependent on her husband, and has not contributed to the maintenance of the family in a pecuniary sense, that on the husband's death every £1 left by him is an assistance; and in these cases, whilst the children should, I think, be put upon an equality with a widow when they are left orphans, it should not have been done by more heavily-although indirectly-charging the widow, but by lightening the liability of the children.

The above instances are based upon the supposition that the widow or children are residuary legatees; but if a child is a mere pecuniary legatee, and the widow is a residuary legatee, the child actually gets off free from duty, whilst the widow has to bear, out of her residue, the probate duty, not only in respect of that residue, but in respect of that portion of the estate which the child takes as a legacy. EDWARD H. HART.

THE MEETING OF THE INCORPORATED LAW SOCIETY.

[To the Editor of the Solicitors' Journal.] Sir,-At the meeting of the Law Society, held on the 8th inst., the chairman stated, as appears from the report in your paper, "I suggest to you whether you would like to appoint a committee to-day to make suggestions to the judges or to the Lord Chancellor as to the amendments you consider necessary in legal procedure." The meeting, as you are aware, was adjourned to the 15th inst., when, much to the surprise of many members present, the council opposed the appointment of such committee, and consequently none has been appointed, although it was urged that the council had, in their printed report, suggested the committee's appointment, and that it was part of the business of the meeting. A member of the council stated that since the report was issued circumstances had changed, but I should have expected in such a case some authoritative statement by the chairman of the reasons why the views of the council had been altered; none was however given. The matter certainly requires explanation. F. M. July 19.

[To the Editor of the Solicitors' Journal.] Sir,-It is due to myself to explain my notice of motion given for the general meeting of the Incorporated Law Society. The notice of motion, which was hastily penned, was, "That the Council of the Incorporated Law Society do forthwith take such proceedings in the case of Re W, solicitors, submitted to the said society by Harris & Powell in March last, as to this meeting shall seem fit." In February I, by my agent, completed a purchase, and on the following day I received a letter from the vendors' solicitors, that "of course I was aware that one of the vendors mortgaged his interest." I replied that the mortgage was not abstracted, and I was not aware of it, and I requested particulars. Not receiving a reply, I, four days later, wrote, that unless a satisfactory explanation were given I should lay the matter before the Law Institution. The vendors' solicitors then wrote a reply informing me that they had omitted to state that the mortgage had been paid off before completion. We required of them that the mortgage and re-conveyance should be handed to us, or that a deed of covenant for production should be furnished us free of expense. Our client had notice of deeds affecting his title, and no knowledge of, or power to ascertain, their contents. Our request being refused, we, early in March, laid a statement of facts before the Law Institution. On the 22nd the secretary wrote me, "The council desires me to state that, in their opinion, the matter referred to is not one in which they can usefully interfere." On the 23rd I answered this by saying that if it were clear that the vendors' solicitors had been criminally guilty of professional misconduct, there would be no necessity for me to apply to the Law Institution for assistance or advice. And I understood one of the objects of the Law Institution was to take cognizance of professional misconduct. On the 30th I gave leave to the Law Institution to send a copy of my statement of facts to the vendors' solicitors. My clerks called once or twice at the Law Institution, and receiving no satisfactory reply, I, on the 9th of June, posted my notice of motion. Before eleven o'clock on the 10th I received a letter to the effect that the matter had been, and would again that day be, placed before the council. On the 11th of June I received a letter from the Law Institution that the council "are of opinion that you are entitled to have from the purchaser what you have already demanded-viz., an abstract, for perusal and approval, of the mortgage and re-assignment in question, and to have the deeds handed over to you, or a covenant for production." Here was a case in which the Law Institution could not "usefully interfere"! though it afterwards allowed I was right. I am, though the representative of an old practice, a young man, and go to the Law Institution for aid in a case. Yet I cannot get even advice how to act. I am not told whether I should attempt criminal proceedings for fraudulently suppressing a mortgage, or whether I should sue the vendors or their solicitors for damages, or what to do. On the 28th of June I received a circular from the Law Institution with notices of motion, and mine not being amongst the number, I complained, and on the 29th, the secretary wrote me, "Your notice of motion will be circulated with another just received." At the general meeting the president ruled that my motion could not be put. In common courtesy I should have received some previous notification of this ruling, which I contend is wrong. As matters stand, my professional brethren will think I wanted to indulge in a piece of personal spite against a firm of solicitors, and I have no opportunity of a public explanation. Suffice it to say that this was not my object, the transaction in question being the only piece of business I ever had with the vendors' solicitors. As the Law Institution gave me little or no help, my object was to obtain aid from the members generally. JAMES POWEll.

London, July 16.