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recoverable, it would seem, upon a prosecution by any member of the public-but this is a point which is far from clear.

WE HAVE SEVERAL TIMES referred to the effect of section 56 of the Indian Act II. of 1874, under which the Administrators-General of Bengal, Madras, and Bombay were appointed, in removing the ground on which the old Court of Chancery allowed an executor, to whom no legacy was given in his character of executor, a commission of five per cent. on all assets of the testator collected by him in India. An agitation has been commenced for the repeal of this provision, and on Monday last a deputation waited on Lord HARTINGTON to present a memorial asking the Government to take steps to attain this result. They are reported to have complained that "the law as it stood prevented persons from appointing executors of their estates." If this was the only complaint of the deputation we think their case was very weak, for we do not know that there could be a better proof of the confidence felt in the system of administration by the Administrators-General than the non-appointment of executors. If it is alleged that executors are not appointed because they cannot be got to act without receiving commission, the reply is that there is nothing to prevent testators from leaving legacies to the persons they wish to appoint executors, expressly made dependent on their acting. It can hardly be doubted that in a country like India, where Europeans die far from their friends, a system of administration by a public officer must be advantageous, provided due safeguards are imposed for the proper execution of his duties by such officer. The system established by the Act above referred to appears to afford satisfactory safeguards. There is first the requirement of competent legal ability on the part of the Administrator-General; next, the requirement of large security for the due administration of his office; there are also stringent rules as to the investment of assets in his hands; and, lastly, there is a half-yearly examination of his accounts by auditors appointed by Government. We may add that in 1855 a similar attempt was made to obtain a relaxation of the rule prohibiting private executors and administrators from receiving commission, but the Legislative Council, under the guidance of Sir LAURENCE PEEL, Sir BARNES PEACOCK, and Mr. ALLEN, refused to assent to the alteration.

THE HOUSE OF LORDS has altered the amended patronage clause of the Judicature Bill, and has restored the name of the Lord Chancellor in place of the senior puisne judge, notwithstanding the protest of the Lord Chancellor that he did not wish "personally, or even officially, to add this particular patronage to the responsibilities of his office." The Lord Chancellor has not hitherto had any share in the patronage dealt with by the clause-that is, the appointment of masters or clerks in the Central Office-and since the clause providing that the appointment of masters or principal officers whose duties have relation solely or chiefly to the Queen's Bench Division shall be made "with the concurrence of the Lord Chief Justice," has been struck out, the effect of the change will be to give the Lord Chancellor uncontrolled patronage as to officers with whose duties he may be entirely unfamiliar.

In the course of a case tried at Westminster on Wednesday week, the actuary of the London and Liverpool and Globe Insurance Office stated, in cross-examination, that his office paid a commission to agents and also to solicitors, from whom the introduction of new business generally came, whereupon, Mr. Justice Field is reported to have remarked that no doubt solicitors, from their position, had a great power of influencing business of this kind, but it was a great question whether or not they ought to take commissions.

TRADING BY AN EXECUTOR.

I.

WHEN, upon the decease of a trader, his business is carried on by his executor, the rights and liabilities of the latter, as well as the equitable right of property in the assets employed in the business at any particular moment, as, for instance, on the bankruptcy of the executor, are not generally to be understood without attentive consideration; and as several recent cases in the reports illustrate some of the principles applicable in such circumstances, it may be useful to call attention to the subject, even if these late cases can scarcely be said to add to the already existing rules of law.

If we begin with the position of the executor personally, it must be recollected that the continuance of a business is scarcely a legal conception at all. "Business" consists of certain contracts by a person to buy or sell goods, or to perform services or works; and although one person may come after another in the occupation of particular premises, and make contracts of the same kind and with the same persons as the contracts made by his predecessor, yet the succession can scarcely be said to have any legal signification, except in so far as it may involve a contract between the outgoing and incoming trader that the latter shall have every facility for making such contracts, or, in other words, shall have the goodwill of the business; for the rights and obligations of each party in respect of the contracts made by him are clearly and absolutely distinct from those made by the other. Whether the business is continued by a purchaser or by an executor, the position in this particular is the same. In each case the creditors of the business will have to look primarily to the trader's personal liability, and as in the case of a purchaser they will have nothing else to look to, so also it may be in the case of an executor. The liability of the latter is so purely a personal liability that, notwithstanding his right to pledge or sell the specific assets of his testator, it is settled that his general engagements do not bind the testator's assets (Farhall v. Farhall, 20 W. R. 157, L. R. 7 Ch. 123); and consequently the right to the assets employed in the business at the testator's decease will, subject to the conditions to be presently referred to, remain what it then was without reference to the executor's business con. tracts. Nor can the executor, even by professing to trade as executor, prevent the application of these rigid rules (Labouchere v. Tupper, 5 W. R. 798, 11 Moo. P. C. 198; In re Leeds Banking Company, 14 W. R. 255, L. R. 1 Ch. 242). The contract would still remain a personal contract in respect of which he would be chargeable de bonis propriis, and not de bonis testatoris. The creditors of the business as conducted by him have primarily no concern with the testator's affairs. Even if the testator has directed or empowered his executors to carry on his business, and to continue to employ for the purpose the capital in the business at the time of his decease, or any part of his general estate by way of further capital, the remedy of the creditors of the business since the death is still by action against the executor on his contract (Owen v. Delamere, 21 W. R. 218, L. R. 15 Eq. 134); and it is only if that remedy fail, as by the bankruptcy or insolvency of the executor, that such creditors can claim, by virtue of the direction contained in the will, a specific right against the assets authorized to be employed in the business so as to have such assets administered by a court of equity for their doubtful, has benefit. The nature of this right, if it was now been clearly defined by the (29 W. R. 168, L. R. 15 Ch. D. 548), where it is Master of the Rolls in the case of In re Johnson laid down that it is not on the ground of anything in the contract with the executor that the creditor has such a right, but of the special equity that the beneficiary on whose behalf the trade was carried on shall not take the benefit of his trustee's trading until the debts incurred

ever

by the trustee in making the profit have been satisfied. The trustee is bound to satisfy them, and can claim to be indemnified out of the testator's estate in respect of his own payments in doing so, in so far as the estate was authorized to be employed in the business. If he fails to satisfy these debts, then the creditors are entitled to stand in the trustee's shoes and avail themselves of his right of indemnity. But if the trustee is in default, and indebted to the estate, he can claim no indemnity except on the terms of making good his default, or by showing that the profit brought to the estate by means of the trade debts incurred exceeds the amount in which he is indebted to it. Consequently, in the case under consideration, the fact that he was in default was held to preclude the creditors from making any claim against the estate except upon the terms above mentioned.

This reference to a specific claim against the testator's assets, apart from the personal remedy against the executor, leads to the inquiry as to the position at any particular moment of the assets of a business continued by an executor. For such assets are not to be considered indiscriminately as assets of the executor as a trader, or as assets of the testator. In so far as they consist of goods bought by the executor, or of moneys owing to him in the course of the business done by him, the assets are his property, and if, in the acquisition of such property, he has sold the goods of, or collected the moneys due to, his testator's estate, he is liable to account to the estate for the amount of his receipts in respect of such sale and collection (per James, L.J., Ex parte Morley, 21 W. R. 942, L. R. 8 Ch. 1032). But in so far as the assets consist of property existing in specie at the death of the testator, the position is that, although the legal property in them is in the executor, yet the creditors of the testator have something in the nature of a specific right to them, inasmuch as they can always claim to have such assets administered by the court for their benefit. It is true that their right is not an absolute right in rem, because it is subject to the executor's 's power to sell or dispose of the property, and even after a decree for administration, this power of sale or disposition remains in the executor if there has been no order for an injunction or receiver (Berry v. Gibbons, 21 W. R. 754, L. R. 8 Ch. 747). But it is a right in rem to this extent, that the creditors can demand to have the goods, whilst in possession of the executor, treated as goods of their testator, and not as goods of the executor. Unless they abandon this right, it does not appear how they can, as to such goods, be prejudiced by the fact of the subsequent trading, for the trade creditors of the executor have not, in any case, any claim to the testator's assets, except in the event of their being able to avail themselves of the executor's right to indemnity out of the property authorized by the testator to be employed in the trade, and such a claim to indemnity can scarcely be created by the testator so as to defeat the rights of his own creditors. Therefore, so soon as the assets of the business are separated into those specifically existing at the testator's decease, and those subsequently acquired, it is only necessary, in order to ascertain the relative rights of the testator's creditors and the executor's creditors, to ask, have the former abandoned their rights? It seems that they must be active in asserting such rights or they will be taken to have abandoned them. Although it was long ago settled that property in the hands of an executor in his representative character does not prima facie pass to his creditors as being within his order and disposition or reputed ownership, yet it is otherwise if they are allowed to remain in his possession under such circumstances as may induce his creditors to suppose that they are his own. In Kitchen v. Ibbetson (22 W. R. 68, L. R. 17 Eq. 46), it was held that an administratrix having such possession and continuing the business for fifteen months must be taken to have the order and disposition of the goods with the consent of the true owner so as to entitle her own creditors to them upon her

bankruptcy. And in In re Fells (25 W. R. 382, L. R. 4 Ch. D. 512), it seems to have been held that the rights of the testator's creditors might be defeated without the aid of the doctrine of bankruptcy as to reputed ownership. There the administratrix carried on business for four years and then married; and Bacon, C.J., ruled that on the second marriage the goods passed absolutely to the husband, and that a creditor of the testator would have to rely upon his remedy for a devastavit and could not follow the goods.

THE DOCTRINE OF "LUMLEY v. GYE" CONSIDERED.

IN the recent case of Bowen v. Hall (29 W. R. 367, L. R. 6 Q. B. D. 333) a point of considerable importance was decided by the Court of Appeal. It was there held that an action lies against a person who maliciously induces another to break his contract of exclusive personal service with an employer where the natural consequence of such breach of contract is to cause damage to the employer, although the relation of master and servant does not exist between the employer and employed. The question here raised is the same as that raised in Lumley v. Gye (1 W. R. 432, 2 E. & B. 216), the decision in which case was, of course, not binding on the Court of Appeal. The question has been considered to be one of a doubtful character, inasmuch as Sir John Coleridge, in a very powerfully reasoned judgment, dissented from the view expressed by the majority of the court. In the case of

Bowen v. Hall the Lord Chief Justice also dissented from the decision of the majority (Lord Selborne, C., and Brett, J.). He stated in his judgment that there had been great lawyers who are well known to have thought that Lumley v. Gye was wrongly decided, and in particular Willes, J.

There is much to be said on both sides. We are not disposed to think that abstract and technical reasoning carries one very far towards a solution of this sort of question. The law on such a matter does, or ought to, depend on general expediency. Brett, L.J., in giving judgment, says, "The decision of the majority (in Lumley v. Gye) will be seen on a careful consideration of their judgments to have been founded on two chains of reasoning. First, that wherever a man does an act which, in law and in fact, is a wrongful act, and such an act as may, as a natural and probable consequence of it, produce injury to another, and which in the particular case does produce such an injury, an action on the case would lie. This is the proposition to be deduced from the case of Ashby v. White (1 Sm. L. C., 8th ed., p. 264). If these conditions are satisfied, the action does not the less lie because the natural and probable consequence of the act complained of is an act done by a third person, or because such act so done by the third person is a breach of duty or contract by him, or an act illegal on his part, or an act otherwise imposing an actionable liability on him." The learned Lord Justice then proceeds to dispose of the reasoning founded on the well-known case of Vicars v. Wilcox (8 East. 1), a decision which has been treated by some as establishing that, wherever the damage results from the voluntary act of a third party intervening between the act of the defendant and such damage, the damage is too remote. It seems to us that the reasoning of the learned Lord Justice successfully disposes of this line of argument. If it be established that the voluntary act of the third party immediately occasioning the damage can be reasonably considered as the natural result of the act of the defendant, it seems to us that there is no ground for suggesting that the damage is too remote. Many cases might be instanced as showing this. If a man procures the commission of a murder, he is guilty of murder. Why should not the same principle apply with regard to civil ability? The question seems to be whether the act of

The

the third party can be reasonably considered, though voluntary, the natural result of the defendant's act. There may be cases where the act, though in fact resulting from the defendant's act, may be considered as not a natural or probable result of it, as, for instance, if in consequence of a slander persons had assembled and thrown the person slandered into a pond, the case suggested by Lord Ellenborough in Vicars v. Wilcox. Where the reasoning of Lord Justice Brett does not seem so conclusive is in the preceding step. The difficulty does not seem to us really to be as to the remoteness of the damage, but as to the foundation of the cause of action. The passage we have cited really assumes the datum which is the foundation of the doctrine of Ashby v. White. judgment all through, as it seems to us, assumes rather than proves that the act of the defendant is a wrongful act. The Lord Justice says later on," We think it cannot be doubted that a malicious act, such as is above described, is a wrongful act both in law and in fact." It is clear that the cause of action is not ex contractu, and therefore it must be ex delicto, or a tort. A tort involves as its correlative, a duty. We feel a shade of difficulty as to the duty. It will be observed that the exact nature of the duty is not very distinctly defined. Malice is stated to be essential to the action. It is clear from the language of the judges, and indeed from the facts of the case itself, that malice includes, not only the malicious intention of injuring the plaintiff, but the desire to benefit self at the expense of the plaintiff. Lord Justice Brett says: "If the persuasion be used for the indirect purpose of injuring the plaintiff, or of benefiting the defendant at the expense of the plaintiff, it is a malicious act, which is in law and in fact a wrong act, and therefore a wrongful act, and therefore an actionable act, if injury ensues from it." Is the proposition to be considered to be as wide as this-viz., that wherever a person induces another to break his contract, knowing that such contract exists, and, therefore, that the act he is procuring is wrongful on the part of the contractor as against the other party to the contract, there is a cause of action? We are afraid this must be too wide a definition, and might possibly lead to surprising results. Suppose я man has made an improvident promise of marriage, and a sensible friend, for his welfare, persuades him to break it. That could hardly be thought actionable, though the friend undoubtedly procures a wrongful act in one sense. Again, suppose a young man of high birth promises to marry a young woman of very humble station, and his high-born and haughty parents, as in a transpontine melodrama, with no regard for his welfare, but for their own pride only, as the jury might find, procure a breach of his promise. It may be said that these are not serious illustrations, but we are seeking the principle, and it may fairly be tested by any possible cases.

In all earnestness we are disposed to think that the decision of the majority was right in the particular case, and was in accordance with the expediency of the case; but we are puzzled with regard to the limitations of the doctrine. It is one which does not seem to stop at the particular sort of breach of contract which was maliciously procured by the defendant. It is very easy to say that "malice" is a necessary ingredient of the cause of action, but are we really driven, upon translating legal terms into plain English, and dealing with them as realities, to say that it is for the jury, upon consideration of all the circumstances of the particular case, to say when it is wrongful to procure a breach of contract and when it is not? We believe it to have been, and to be, a strong tendency-perhaps a growing tendency-of the judges whom we may, notwithstanding the Judicature Acts, still call the common law judges, to leave the essence of legal questions to the decision of juries under cover of such terms as "malice." There have, no doubt, been struggles in the other direction, as in the cases with regard to negligence on the part

of railway companies. Certain judges, who might, perhaps, be termed by some narrow-minded, strive to very clearly define, and almost, one might say, contract, the limits which separate what is tortious or wrongful from what is lawful, on the principle that it is better on the whole for the community that fas and nefas should be separated by plain, clearly distinguishable lines, about which there can be no doubt or fluctuation. Others, on the other hand, tend rather to think that such hard and fast lines are not really suited to the exigencies of civiliza. tion, but only serve as charts to the tortiously minded, advertizing them how they may pursue their wrongful enterprizes without running on to legal rocks or shoals. It is difficult to say which tendency is the safer; probably every lawyer is conscious of being at one time actuated by one of these tendencies, and at another by the other, and possibly neither ought to be the entirely governing tendency. The difficulty that we feel with regard to the ratio decidendi of the majority is, we believe, somewhat similar to that expressed by the Lord Chief Justice in the latter part of his judg. ment. He seems there to feel a difficulty in seeing how the malicious motive can make that actionable which, without it, would not be actionable. If a man acts within his right, then the motive is immaterial. If there is no duty apart from motive not to abstain from persuading another to break his contract, and if a man, endeavouring to persuade another to break his contract, and succeeding, but doing so without malice, cannot be sued, then why should the action lie if there be malice? It is only the case of a man maliciously availing himself of his rights. This, if we do not misunderstand it, is somewhat the line of his lordship's argument. We are not quite sure that we go the whole length with it, for it seems to us that it would, if pushed to its full length, be fatal to the action for malicious prosecution; but, though it may possibly go too far, it strongly confirms what we have before said. In this class of actions, where malice is made an essential element, you practically leave the legality or otherwise of what the defendant has done to depend on whether the jury think, on the whole, he ought or ought not to have done it, subject, of course, to some amount of restraint on the part of the court. It may be inevitable that this should be so, but in such cases "jus est vagum." Lord Coleridge, C.J., suggests this consideration when he says, "I do not know, except in the case of Lumley v. Gye, that it has ever been held that the same person, for doing the same thing, under the same circumstances, with the same result, is actionable or not actionable according to whether his inward motive was selfish or unselfish for what he did. I think the inquiries to which this view of the law would lead are dangerous, and inexpedient inquiries for courts of justice; judges are not very fit for them and juries are very unfit."

It seems to us that the safest way to look at the decisions in Lumley v. Gye and Brown v. Hall is to regard the case with which they deal as analogous to the action for seducing a servant from service, and not to endeavour to extract any very sweeping principle from them with regard to the actionability or otherwise of procuring a breach of contract. Regarded in this narrow light, we are disposed to think the decisions right, notwithstanding the eminence of the dissentients; but we should think if the decisions are to be regarded as establishing the more sweeping proposition to which we have adverted, that there would be grave reasons for questioning how the application of such a principle would be found to work in other cases.

At an auction held at Henstridge last Friday by Messrs. Chinnock, Galsworthy, & Chinnock, the total quantity of land offered being 104a. Or. 36p., with a rental of £220, the whole realized the sum of £6,910, being 31 years' purchase, or £66 per acre.

RECENT DECISIONS.

RIGHT OF "RESIDUARY LEGATEE" TO UNDISPOSED OF REALTY.

(In re Methuen and Blore's Contract, M.R., 29 W. R.

656.)

Though the words "residuary legatee" in a will are, of

CORRESPONDENCE.

DOES PAYMENT OF PURCHASE-MONEY FOR LAND TAKE A CASE OUT OF THE STATUTE OF FRAUDS ?

[To the Editor of the Solicitors' Journal.] Sir,-In a written judgment of the Court of Appeal

course, prima facie, applicable only to personalty, they (read by Baggallay, L.J.), in the recent case of Alderson

will include realty if the context sufficiently shows an intention that they should do so. Thus, where a testator stated at the commencement of his will that he had disposed by will of his estate, and then disposed of parts of his real property and appointed a "residuary legatee," it was held that the testator intended the residuary legatee" to take the residue of the real as well as of the personal property (Hughes v. Pritchard, 25 W. R. 761, L. R. 6 Ch. D. 24). The real ground of this decision was more clearly put by Lord Justice Bramwell than by the other members of the court. He said, "After giving gifts of personalty and devises of realty, the testator finishes this way: 'I make my sister and others residuary legatees,' that is to say, legatees of the residue. Residue of what? Why residue of that of which he had been previously disposing of parts. Of what had he been previously disposing of parts? Of his realty and personalty, and it seems to me almost a matter of demonstration that he is saying here residue of my real and personal estate." In other words, the question whether the residue of the real estate is dealt with is to be settled by ascertaining whether the testator has previously disposed of parts of his real estate.

In In re Methuen and Blore's Contract, a testatrix commenced her will by saying, "I commit to paper my wishes respecting the disposal of my property, and give this as my last will and testament. Everything I am possessed of I leave to my sister, S. P., for her life. After her decease I give and devise as here annexed." After some pecuniary bequests she proceeded to leave F. P. M. "residuary legatee after the demise of her sister." There was here, it will be observed, no specific gift of real property, although, under the words " everything I am possessed of," the sister S. P. took a life interest in the realty. The Master of the Rolls thought

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that there was no indication of an intention that the residuary legatee should take, after the death of the tenant for life, the real property which was given to her for life. The result would seem to be that, in order for the words "residuary legatee" to operate as a gift of the residue of real estate, the testator must have previously made specific devises of parts of his real property.

The following special questions will be treated at the Dublin Congress of the Social Science Association On October 3-8 :-I.-Department of Jurisprudence and the Amendment of the Law.-International and Municipal Law Sections-1. Is it desirable that there should be periodical meetings of representatives of various States to which all disputed international questions should be referred ? 2. Should the procedure on private Bill legislation in reference to local improvements be amended so as to facilitate inquiries on the spot by Parliamentary Committees or otherwise? 3. Are any and what alterations in the jury laws desirable? Repression of Crime Section-1. How can the work of Discharged Prisoners' Aid Societies be improved, and is it desirable to secure the co-operation of the police with liberated prisoners on their reform? 2. What results have been brought about by the Irish Sunday Closing Act in connection with crime in Ireland, and what further steps can the Legislature take for the decrease of intemperance ? 3. It is desirable that persons convicted of serious offences, instead of being sentenced to confinement for different periods, should remain in prison until reformed. (This question has been submitted by the president of the American Social Science Association, Professor Wayland, who will arrange for the sending over of a paper).

v. Maddison (29 W. R. 556), there occurs a statement of the law to which I venture to take exception.

The object of the passage in which the statement is found is to show that acts of part performance of a parol agreement as to an interest in land must, in order to be held sufficient to exclude the operation of the Statute of Frauds, be such as are unequivocally referable to the agreement; and the statement, in illustration of this, to which I refer, is as follows:-"Thus, payment of part, or even of the whole, of the purchase-money is not sufficient to exclude the operation of the statute, unless it is shown that the payment was made in respect of the particular land and the particular interest in the land which is the subject of the parol agreement."

It is to the words italicised that I take exception. In Clinan v. Cooke (1 Sch. & Lef. 22), Lord Redesdale held that payment of money was not a part performance to take a case out of the statute; he there said (p. 41):"Payment of money is not part performance, for it may be repaid"; and in Freme v. Dawson (14 Ves. 386, at p. 388), Sir William Grant explains the doctrine of payment of purchase-money not being a part performance in a way inconsistent with the notion of the doctrine's arising from there being anything equivocal about the purpose for which the money is paid. Sir William Grant said :-" Lord Redesdale, in a case before him [Clinan v. Cooke], states his opinion that payment of money is not a part performance: yet there the act can hardly be said to be equivocal in its nature; as the payment of a price presupposes a sale: but the money may be repaid, and the parties are restored to their

former situation."

It hardly seems necessary further to quote authorities; but I may mention Watt v. Evans (4 Y. & C. 579.) This was a distinct decision that part payment of purchase-money was insufficient to take a case out of the statute, and, certainly, no question was made about the fact of the money having been paid for the particular estate. I may also refer to what was said by Lord Justice Knight Bruce in Hughes v. Morris (2 De G. M. & G. 356), and by Lord Justice Cotton in Brittain v. Rossiter (27 W. R. 482), in confirmation of the doctrine that payment of purchase-money is not a part performance sufficient to take a case out of the statute.

I will now only, in further support of this doctrine, draw attention to the circumstance that, in many of the cases which have arisen upon the question whether a particular written contract, sought to be enforced against a vendor, was sufficient to satisfy the statute, a deposit must have been paid, as it was in the recent cases of Sale v. Lambert (22 W. R. 478, L. R. 18 Eq. 1), and Potter v. Duffield (22 W. R. 585, L. R. 18 Eq. 4). Now it is obvious that if part payment of the purchasemoney for specific land is a sufficient part performance to take a case out of the statute, the question whether the written contract complies with the statute must be immaterial.

I am aware that I have not referred particularly to the case of payment of the whole of the purchase-money, but the dictum of Lord Justice Knight Bruce above referred to extends even to that; it does not, however, seem to have Lord St. Leonards' concurrence: see Sug. V. & P. (14th edition), p. 152. The case seems not very likely to arise. A. J. W.

Temple, July 20.

THE MEETING OF THE INCORPORATED LAW
SOCIETY.

[To the Editor of the Solicitors' Journal.]

Sir, In their annual report the committee say, "It was proposed at the meetings held in May that an outside committee should be formed to make suggestions before the special general meeting should be held. The council assent with pleasure to this, and suggest that at the general meeting a committee of this character be appointed, and that it consist of some of the members who have taken part in the debates, with any additions that may be suggested."

Now, what was this outside committee, and how was it proposed? By my following resolution, which was then in print, it was proposed :

"That a committee be chosen from the members of the society for the purpose of recommending what changes might be beneficial in the organization and functions of the society, so as to make it more useful to the public and the members, and more representative of the wishes and interests of the profession at large, and that such committee consist of the following gentlemen :-"

It is true this was not in terms a committee upon legal procedure, but it was the only committee proposed at the meetings in May last, and its scope was sufficiently wide to have embraced that subject. But how did the council treat it at the adjourned general meeting in July under the presidency of Mr. Druce? First, Mr. Lake gets up and says with hot haste that he shall resent it as a vote of censure if passed. Then when Mr. Munton moves an amendment, making it exactly in terms consonant with the report, Mr. Paine gets up and makes three or four speeches saying it is not an amendment and is out of order. The meeting gradually dwindles away in both numbers and disgust, until a mere handful of members, in sheer despair at doing anything, throw themselves upon the council, in the hope that a committee will be conceded. Nothing of the kind. Mr. Grinham Keen and Mr. Melmoth Walters magnanimously but vainly endeavoured to correct their colleagues on the council, and prevent a fiasco. It was all to no purpose. Although the members met and adopted the report, the council prevented them from carrying it into effect. If the appointment of an independent committee be a vote of censure, why did the council acquiesce in it? How would the appointment of a committee such as I suggested in May be any more a vote of censure than that which the council themselves in their report agree to ? The observation of Mr. Paine, that "the state of things which existed when the promise in the report was made no longer existed was perfectly idle. Whether the Legal Procedure Committee published their proceedings or not, it would be equally necessary for the society to hold special meetings and to appoint committees to look after the public interests and our own. The judges cannot, and do not, do this properly, and unless solicitors make their voices heard upon this question they might just as well wipe themselves out of existence.

If the council imagine that they can run away from their own report in this way with impunity, they are greatly mistaken. I have been urged to claim a seat upon the council, and to take stronger measures than I have done, but my object solely is to unite the profession into one harmonious whole, to put down envy and jealousy, and, in making our work more profitable to ourselves, to see that it is far more serviceable than it has been to the general public. EDMUND KIMBER. 22, Queen-street, City, E.C., July 26.

COSTS OF MARRIAGE SETTLEMENT.

[To the Editor of the Solicitors' Journal.] Sir,-Will any of your readers kindly inform the writer through your columns whether Helps v. Clayton,

where it was held that the husband was liable for the
costs of the marriage settlement, has been overruled?
Helps v. Clayton was commented upon in your issue
of May 29, 1880.
J. L. P.

LENT

CASES OF THE WEEK.

BILL OF SALE-ACT OF BANKRUPTCY-ASSIGNMENT OF WHOLE PROPERTY TO SECURE PAST DEBT-FRESH EQUIVA GOODWILL OF HOTEL. In a case of Ex parte Beevers, before the Court of Appeal on the 21st inst., the question arose whether a bill of sale, which had been executed by a liquidating debtor a few months before the filing of his petition, was void as against the trustee in the substantially the whole of the debtor's property, to secure liquidation, on the ground that it was an assignment of a pre-existing debt, without any fresh equivalent. The debtor kept a hotel, of which he held a lease. The bill of sale was executed on the 10th of Jane, 1880, to secure the repayment of a loan of £800, which had been made by the grantees to the grantor in March, 1879, without any security being then given by the grantor. The grantees had been pressing him for repayment, and had threatened to take immediate proceedings against him, and the deed contained a recital that at his request they had agreed to allow him a further period of three months for repayment of the £800, upon having the same further secured as thereinafter appeared, and on the conditions thereinafter set forth. The deed then, in consideration of the premises, assigned to the grantees all the stockin-trade, fixtures, furniture, utensils, and other effects belonging to or used in or about the hotel, or in the business carried on there, and also the goodwill of the hotel, and the justices', excise, and customs licences granted or to be granted in respect of the hotel, to hold to the grantees absolutely, subject to a proviso for redemption on payment of the £800 with interest, on September 10, 1880. The proviso for redemption was, however, expressed to be "subject, however, to all the covenants, powers, provisoes, and conditions hereinafter set forth." It was also provided that," but subject as aforesaid," until default should be made in payment of the moneys thereby secured or any part thereof, the grantor should retain the enjoyment and possession of the property assigned. And then it was provided that, if he should make default in payment on the day therein before appointed, or (whether such default should have been made or not) when, and so often as the grantees should, at any time or times thereafter, in their absolute discretion, consider the deed or the property thereby assigned, or their title thereto, to be in any wise endangered or prejudiced, it should be lawful for them, without any previous notice or demand, verbal, written, or otherwise, to take possession of and thenceforth to hold the property assigned, and to sell the same and retain the amount due to them out of the proceeds of sale. The lease of the hotel was not included in the deed. On September 21, 1880, the grantor sesigned the lease of the hotel to some other persons for £500, and on October 1 he filed a liquidation petition. The trustee in the liquidation claimed to have the bill of sale declared void the whole of the debtor's, and that no fresh equivalent was as against him, on the ground that it comprised substantially given for it. There was evidence that the lease of the hotel was worth nothing without the goodwill and the licences. It was contended on behalf of the grantees of the bill of sale that the lease of the hotel formed the substantial exception from the assignment, as was indeed shown by its selling for £500. The goodwill of the hotel, as was said by Jessel, M.R., in Ex parte Punnett (29 W. R. 129, L. R. 16 Ch. D. 226, 233), was not a personal goodwill, but passed with the lease. It, therefore, passed by the assignment of September 21, and the assignment of it by the bill of sale passed nothing to the grantees. Consequently the bill of sale was not an assignment of substantially the whole of the debtor's property. But, if it was, still a fresh equivalent was given for it by the grantees in the three months' forbearance which they allowed the debtor. The court (Lord SELBORNE, C., and BRETT and COTTON, L.JJ.), however, held that on neither ground could the bill of sale be supported. Lord SELBORNE said months' forbearance by the grantees, but it kept the word of that the deed purported to contain an agreement for three

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