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events in many parts of the country. If it is not usual everywhere, it ought to be. There are dangers in dealing with an equity of redemption, with which every lawyer is acquainted, and which fully justify arming a second mortgagee with more summary powers than are needed by a first mortgagee. The second mortgagee, moreover, has, comparatively rarely a clearly sufficient security for his money. In the recent case, the Master of the Bolls admitted that "he was not prepared to say that the right to exercise the power of sale in a second mortgage ought necessarily to be limited in the same way as was usual in a first mortgage"; but as no evidence had been adduced as to the practice, he could not hold that it was the usual practice to omit the proviso. It is greatly to be regretted that the Council of the Incorporated Law Society were not applied to before the hearing of the appeal to collect evidence on a point of so much importance to the profession.

The results of the decision may be very serious. It 4s possible that it may put a stop to the advance of money by solicitors to clients on second mortgages of the client's property. No prudent solicitor will accept a second mortgage with the restrictive clause, and if he "follows the course suggested in the recent case and omits the clause, informing his client of the consequences of the omission, how is he to ensure that, years afterwards, he will be prepared with evidence that he has completely explained the consequences of the omission to his client? According to the recent case the onus of proving that the explanation was given is thrown on the solicitor. Would Mt. Justice Fry accept as sufficient evidence an entry in the solicitor's diary? We trow not; and if so, how is the solicitor to ensure the preservation of evidence that the explanation was given P

Bat Lord Justice Brett seems to think that it would be desirable to check the practice of solicitors lending money to clients on second mortgages in order to make up the sum required. The practice, he is reported to have said, "gave the solicitor very great power. ... It would be much better for a solicitor not to lend money to -hiB own clients at all." This is a specimen of the style of observation and opinion of which we have sometimes to complain in the otherwise admirable decisions of the •Court of Appeal. Some of the learned judges who eit in that court seem to think that everything can be settled upon abstract considerations, without regard to the wants and convenience of the community. Does Lord Justice Brett know anything of the practice of builders in and near large towns? If not, let him ask the first builder he meets whether tho invariable practice is not for the builder to buy land, ereet houses on it, and then apply to his solicitor to obtain a mortgage for him, in order to enable him to repeat the operation. The solicitor cannot always, or perhaps often, obtain a sufficient ..advance on a first mortgage, nor can he get anyone to tftke-n second mortgage for the balance. He has, therefore, to advance it himself. He gets five per cent, interest, for which he runs all the risks of a second mortgagee. Tbe result of " checking" this practice will be extremely serious to builders, and it is very much to be hoped that the Court of Appeal will take an early opportunity of availing itself of the loophole which the Master of the Bolls, with his invariable sagacity, has left open, in case It can be shown that the omission of the restrictive proviso is usual in the case of second mortgages.

The London sittings, says the Timet reporter, have oonaisted of only five working days, and only four special jury ami •bout twice that number of common jury cases have been disposed of,

A Government Bill has been printed which proposes to suspend for a limited time, "with a view to the future consideration of the cases by Parliament," the elections of members for the following citiea and boroughs:—Boston, Canterbury, Chatter, Gloucester, Macclesfield, Oxford, and Sandwich.



Wb last week considered some recent cases illustrative of the law affecting the rights of creditors, as well against the executor continuing his testator's business as against the assets of the business for the time belug, irretpectm of any question of partnership. The executor's personal liability where the testator's business was a partnership concern depends upon the question whether the business done since the testator's decease is to be considered in law as having been done by the executor jointly witU the surviving partners, or as having been done by the latter alone. The principles upon which the courts act in deciding whether or not one person is to be treated u a ;ua«t-partner with others, so as to render him liable to the creditors of tbe firm for its debts (independently of an? question as to their rights as partners t'nter It), have been gradually growing in clearness since Cox v. Hickman (i H. L. C. 268), until, instead of the old rule that sharing in profits is the test of such liability, we have auother and totally distinct rule—namely, that the point is to he settled with reference to the question whether the person to be made liable is in the relation of principal to the person carrying on the business, and that »■:.:• ever negatives the fact of agenoy is evidence which mar rebut the presumption which would otherwise arise from participation in profits. Whether the sharing in profits is a sharing by a person in his own right or in a representative capacity was, under the old rale, considered to be Immaterial; and it is immaterial still, except in so far as the executor's title to profits may be a title absolutely precluding the possibility of the relation of principal and agent between the parties. Consequently, where the executor's right to profits depended upon a deed of partnership which provided that, on the death of a partner during the partnership term, the bui-iuesj should be continued by the survivors, and that they ahould pay the deceased partner's representatives his share of the profits, the executors were held not to be liable on a contract made by the survivors. Lord Justice (thru Mr. Baron) Bramwell adopted the principle stated in Shaw r. Gait (16 Ir. C. L. Hep. 357), which has so frequent!; been quoted with approval, that " a partnership, eren as to third parties, is not constituted by the mere fact of two or more persons participating in the net profits of a business; but the existence of such a partnership implies also the existence of such a relation between those persons as that each of them is a principal and each an agent for the others " ; and he rested his judgment upon the ground that the oxecutors had no right of interference or control ; that they could neither make contracts on behalf of the firm, nor prevent it from entering into what business engagements it pleased {Holme v. Hammond, 20 W. E. 747, L. B. 7 Ex.

In that cose there was no capital in the firm belonging to the testator; but his lordship expressly tUtti that the existence of such capital, and the right of exeeutors either to withdraw it or not, were immaterial to the decision. Tbe judgments of the other members of the court are not so clear upon this latter point, »nd the liability of executors continuing their testator's capital in a firm, and receiving profits out of the business, has not been fully discussed since the decision of the House of Lords in Cox v. Hickman settled the law upon the principle above referred to. But having regard to the way in which that principle has been applied in subsequent cases, there can be no doubt that an executor acting in accordance with the provisions of partnership articles, which provide for the retention of the testator's capital in the business, and the payment of profits to Ms executor, upon terms which leave him no discretion, could never be made personally liable for the acta of the firm; and this notwithstanding the law laid down in Labouchcre v. Tupper (5 W. B. 798, 11 Moo. P. C. IWJwhich must be considered as applicable only to * Om* where the articles provide, in express terms, for the executor being personally a partner in the business. But where, under the articles, the executor is not bound, but has the usual right of executors to wind up the business, it cannot at present be considered safe for him to rely upon the judgment of Lord Justice BramweU, above referred to, to the extent of supposing that he will not be liable to the creditors of the firm if he simply leaves matters in statu quo. If he on his own account enters into an express agreement with the firm that the capital shall be continued as a loan to the firm upon certain terms, and a portion of the profits be paid in respeot of it, it could, having regard to recent authorities, scarcely be argued that there was any such relation between him and the surviving partners as that they were to be regarded as his agents for carrying on the business. But when he retains a continuing control over the capital, and receives the profits earned by it, he might perhaps be considered as allowing and adopting those acta and contracts, of the firm by means of which the capital is applied in this way or that, and the profits are earned, and so as having constituted the relation of principal and agent between himself and the other parties; and until the law is further elucidated executors will only be safe if they act upon the supposition that such a course of conduct will render them liable.

It will be observed that we have referred to the position of executors under articles of partnership only; their position under the will of their testator is not material to the question of their personal liability, but, on the principles which we discussed iu the former article, is a matter important—firstly, to themselves, because upon it depends their right to indemnify themselves for this liability out of the assets of their testator; and, secondly, to their creditors, because in the event of the executor's inability to meet his engagements, the creditors may be able themselves to obtain satisfaction out of the assets.

The position of the executors of a deeeased partner under his will, however, may, it appears, also be considered in another aspect, or was so considered in a recent case, which is not to be nnderstood without bearing clearly in mind the rules which govern the administration of partnership property. To begin with, although the joint creditors of persons trading in partnership are entitled to have the joint property of the partnership applied in liquidation of their demands, before any part of it can be made available for the iepaiate creditors, yet the joint creditors can scarcely be said to have a specific right against it any more than the general creditors of a testator have a specific right against his assets. They can require such an application of it as above indicated whilst it continues to be joint property, but they cannot prevent any disposition of it by the partners by virtue of which it will cease to be tho joint property of the original firm, and become theaiparate property of one of the partners or the joint property of some other firm, and such a disposition will preclude any <slaim by them to have it appropriated for their own benefit, and will, of course, bar the ordinary right of the partner making it to rid himself of the liability which he is under in respect of the debts incurred whilst he was a member of the firm, by having the joint assets applied in liquidating them. If the partnership deed provides, in effect, that the whole interest in the assets ohsll pass to surviving or continuing partners, the power thus conferred upon the latter entitles them to employ them as they please, free from the obligation of satisfying the creditors to whom the deceased, or out-going, partner, is liable (Be Simpson, 22 W. B. 697, L. B. 9 Ch- 572). But, inasmuch as on the determination of a partnership the ordinary right of each partner is to have the assets applied in payment of the partnership debts, a provision in a partnership deed, whereby the assets are vested in surviving or continuing partners, will generally be taken to mean that they are to be so ■vested after the debts have been satisfied thereout, for

neither the creditors of the firm, on the one hand, nor the outgoing or deceased partner on the other, are to be deprived by implication of their right to have the property of the firm applied in the ordinary manner (Ex Morhy, 21W. E. 942, L. B. 8 Oh. 1026; Ex parte 24 W. B. 525, L. B. 1 Ch. D. 514). An absolute transfer of assets free from any obligation as to the application of them is, however, common enough, not only iu such a case as Re Simpson, where it was provided for by the articles of partnership, but in ordinary case of dissolution as to one of several partners, who assigns all his interest in the assets to his co-partners in consideration of a covenant of indemnity against the debts of the firm. And it seems (see the observations of Lord Justice Mellish in Ex parte Dear) that not only a partner himself, but his executors, have the power by such an absolute transfer to continuing partners to put an end to the joint estate with its consequent primary liability to joint debts, or, in other words, to withdraw it from the preferential claims of one set of persons—the creditors of the old business—and to subject it to similar claims by another set of persons—namely, the creditors of the new business. Ex parte Butcher, In re Mellor (28 W. B. 484, L. B. 12 Ch. D. 917, 13 Ch. D. 465), is a decision to the effect that they cannot make such a transfer unless the will authorizes it. In that case three executors were empowered to continue the business, and it was held that two of them could not be considered, by merely carrying on the business themselves, to have made a transfer to themselves so as to convert the assets of the old business into assets of the new, and thus defeat the rights of the creditors of the former. The judgment is undoubtedly right, but the reasoning of Bacon, C.J., who referred to the impossibility of executors defeating the claims of the joint creditors by merely carrying on the business themselves, is perhaps simpler than the reasons stated in the Court of Appeal, where the case was decided with reference to the terms of the will. The terms of the will may be material in certain events, as we showed last week; but they are material as affecting the power of executors to subject the testator's property to a fresh set of business creditors, and not as conferring on them a power to withdraw it from the primary claims of the testator's own creditors. And if, as against creditors, the executor has, in the particular case of partnership, such a right to dispose, virtute officii, of the testator's interest in the assets of the firm as was referred to by Mellish, L.J., in Ex parte Dear, it is not necessary for them to rely on any express authority in the will so to deal with them. Consequently the case of Ex parte Butcher cannot be considered as a very satisfactory contribution to the law upon this subject.



{Rudow v. Great Britain Mutual Life Assurance Company, C.A., 29 W. B. 585.)

Section 204 of the Companies Act, 1862, expressly provides that " the provisions made by this part of the Act with respect to unregistered companies shall be deemed to be made in addition" to, and not in restricti on of, any provisions hereinbefore contained with respect to winding up companies by the court." This part of the section clearly applies to the winding up of unregistered companies the provision of section 85 of the Act with reference to the power of the court to grant an injunction to restrain further proceedings in any action, suit, or proceeding against the company. But section 204 proceeds to say that "an unregistered company shall not, except in the event of its being wound up, be deemed to be a company under this Act, and then only te the extent provided by this part of this Act."

parte Dear,

Vice-Chancellor Bacon seems to have read thiB clause as meaning that the provisions as to winding up companies by the court, including section 85, only applied to unregistered companies as to which an order for winding up had been actually made, and he refused to apply section 85 to a company as to which a winding-up petition had been ordered to stand over. The Court of Appeal held that section 85 applies equally to registered and unregistered companies.

ATTESTATION OF BILL OF SALE. (Sea? v. Claridge, C.A., 29 W. R. 598.) In this case a bill of sale was attested by a solicitor, who was the grantee. The court held that the attestation required by the Bills of Sale Act, 1878, is that of an independent solicitor. As we remarked some time ago, when dealing with the question of whether the solicitor of the grantee could be the attesting solicitor, there is no authority directly in point, and the decision of the Court of Appeal rests on general considerations. The Lord Chancellor said it was " inconsistent with the principle and object of attestation that a party should attest an instrument for his own benefit. A real attestation was emphatically intended and required by the Legislature." This, we think, must clearly be so. There is understood to be some judicial opinion in favour of the proposition that the attesting solicitor must not be the solicitor of the grantee, but we are not aware of any reported decision to that effect.

AMENDING BILL OF COSTS AFTER DELIVERY. (In re Holroyde, M.R., 29 W. B. 599.) In re Heather, Son, * QUI (18 W. R. 1079, 34 Beav. 177), it was decided by the Court of Appeal in Chancery that after a solicitor has delivered his bill of costs, and it has been objected to, and certain items have been specified as overcharges, the solicitor has no right to reform his bill, and the client has a right to have the original bill taxed. The present case was exactly on all fours with the previous decision, and only deserves notice for the observation of the Master of the Rolls that, " If the solicitor had informed his client, at the same time as he sent the bill, that there were charges in it unwarrantable in law, and payable or not entirely at his client's option, the case might have been different."

NOTICE OF INTENDED EXERCISE OF POWER OF SALE. (Hoole T. Smith, Fry, J., 29 W. R. 601). We should have thought it too clear for argument, that under the ordinary clause following the power of sale in a mortgage, which provides that notice to pay off shall be given to the mortgagor, "his executors, administrators, or auignt," notice must be given by the mortgagee before he exercises his power to all subsequent mortgagees, they being clearly "assigns" of the mortgagor. In this case, however, it was contended that "assigns" applies to a case where the mortgagor's property has been sub-divided, not where the mortgagor remains owner of the whole, and that notice to the mortgagor alone was sufficient. Mr. Justice Fry held that there must either be notice to the mortgagor and his assigns, or at least notice to the assigns.

STAMP ON DEBENTURE FRAMED AS A PROMISSORY NOTE. (Britith India Steam Navigation Company v. Commissioners of Inland Revenue, Q.B.D., 29 W. R. 610.) In this case a company issued debentures, not under seal, framed as promissory notes, in the ordinary form, stating that the "company will pay £100, the amount of this debenture, to A. or order at" a specified place, " and the company will also pay to the holder of this debenture interest at the rate of five per cent, per annum on the •aid sum of £100, by equal half-yearly payments in each

year, upon presentation and delivery of coupons," which were attached to the instrument, and each of which on its face was called a debenture, was numbered, and stated the amount of interest and place at which it was to be paid. The question was whether this instrument was to be stamped as a promissory note or as a debenture. The court held that it must be stamped as a debenture. It is curious that there is no definition of a "debenture," and the court did not attempt to construct one, but Qrove, J., said that the "real distinction between the instrument in question and a promissory note arises from the special mode in which the interest is payable and the mode in which a limitation is placed on its payment. Interest is to be paid only to the holder of the debenture—that is, to the holder of the debenture or to anyone who is a bond fide holder of the document— and it is to be paid, not merely when it becomes due, but as specially stated in the document, on 'the presentation and delivery of the coupons hereto annexed,' There is nothing of that kind in a promissory note." It is to be observed that Mr. Palmer, in his useful book on Company Precedents, at p. 252 (2nd ed.), suggests that such a debenture "should be stamped as a


CHANCERY ACTIONS. A Concise Treatise Ok Thb Practice And Pboctoubb

In Chancery Actions. By Sydney Pbkl, Barrister.

at-Law. Second Edition. Stevens & Sons.

Mr. Peel has removed a defect we pointed out in the first edition of his work, by adding chapters on Applications in Chambers, Proceedings in Chambers under Judgment, and Further Consideration. No doubt this is to some extent a departure from his plan, which is to give only the Judicature Rules relating to chancery actions, with a summary of the cases decided upon them; but we think the addition adds considerably to tho value of the book. The cases decided since the last edition bar* been added, and their effect is very concisely stated. The book will give to the student a good general view of the effect on ohancery practice of the Judicature Acts and Orders.




Smith, Barrister-at-Law. Second Edition. & Haynes.

As a summary of the law (which is all It professes tobe) this little book may be useful to the student, but it would be more useful if it contained more detail, and especially more practical information as to the formation of a company, and as to the memorandum and articles. Table A ought to be printed in full, and all the ordinary additional or substituted clauses in articles might easily be given in italics or smaller type. Some such outline of the general provisions of articles is much needed.

ARTISTIC COPYRIGHT. Thb Law Op Artistic Copyright. By Maeth Boctb» Barrister-at-Law. Remington & Oo.

This is a novelty in legal literature. A considerable part of the book is couched in the form of dialogue. That, on the subject of copyright in photographs—as to which our readers may remember we had a lively controrersy some time ago with the present Mr. Justice Williams—we have a dialogue commencing thai:—

Scene,Photographic Studio.F.nter a gentlman (M.).

M. : I see that you have my portrait in jour window labelled "Copyright."

Photoobafhbb : May I ask your name?

M.: Lord H .

P. : Certainly, I have your portrait exhibited for isle bo4»

■singly, and in a group combined with the portraits of your fellow Cabinet Ministers. Have you any objection?

M. : I wish, rather, to ascertain whether I have any right to object. What is the law in relation to photographic copyright?

P.: The law places photographs on a par with paintings and drawings ; but curious difficulties arise in interpreting and applying the law, owing to the inherent difference whioh exists between the two. . . .

M.: I understand, then, that whenever paintings and drawings are mentioned in the previous dialogues the conversation would equally apply to photographs?

P. : That is so. But you must regard the negative of the photograph, and not the photograph itself, as that which corresponds to the painting. Look, if you please, to this copy of the first section of the Fine Arts Act, 1362. ■*' The author of every original photograph shall have the sole and exclusive right of copying, engraving, reproducing, and multiplying such photograph, and the negative thereof, by any means and of any size, for the term of the natural life of such author, and seven years after his death."

M. : Then the copyright to start with is in the photographer—

P. : Yes •, but the effect of the rest of the section which follows is, that, upon the first sale of the negative, the copyright must be preserved by an agreement in writing, signed either by the vendor or purchaser of the negative, giving the copyright to the other party, otherwise it is irredeemably lost; except in cases where the negative is made on behalf of any other person for a good or valuable consideration, in which case the copyright, if no agreement is made, vests in the sitter or commissioner.

This is the view which our learned correspondent impugned, contending that the copyright in photographic portraits does not, in any case, belong to the eitter unless the sitter expressly stipulates for the purchase of the negative. We think, however, that the arguments the other way are conclusive. The statements of law in the book appear to be accurate, and they are couched in untechnical language, so as to meet the requirements of the artists, publishers, and photographers ior whose use it appears to be mainly intended.


•" LONDON CASES AT COUNTRY ASSIZES." [To the Editor of the Solicitors' Journal."]

Sir,—I have read the report of Lord Justice Bramwell's observations in your paper of the 23rd ult., under this heading, and think it high time that some notice should be taken of such uncalled-for remarks. Like many others of his brethren on the bench, the learned Lord Justice is very fond of attacking the members of the "lower branch of the profession." I wish to ask, through the medium of your journal, whether the charges this learned judge so often indulges in, at the expense of those who are really in a manner, defenceless, can be -considered manly or dignified, even assuming the slightest ground to exist for the "soft impeachment"? What the "certain smart lawyer" was guilty of to bring ■down upon his unfortunate head such a rebuke from the ■bench, without the privilege of a reply, I am at a loss to ■understand. As an old practitioner, well versed in the trial of causes in London and at the assizes, it appears •to me that the plaintiff's solicitor in the action in question very properly advised his client to have his cause disposed of as expeditiously as possible, and the learned Lord Justice ought to know that, although the solicitor might " get his harvest quicker," it would not be so rich as it would have been if delayed, even should the apprehension be realized that the parties might be "silly enough to come to an amicable arrangement."

If, before making these attacks, which can do no good, but ore calculated to cause much mischief, by bringing into odium the profession of which the Lord

Justice is himself so worthy and high an ornament, his lordship would take the trouble to inquire of, say, the merest tyro at common law, used to the taxation of our costs, he would be told that, in these days of railway communication, a cause is tried at much less expense at the assizes, a few miles from town, than in London itself; and that the "enormously" increased expense his lordship speaks of is only the creation of a fertile imagination. I have always understood that the tendency of legislation, from the time of Lord Brougham downwards, has been to make the administration of j ustice cheap, speedy, sure, and "above all things cheap," as the present Lord Chief J ustice not long ago took occasion publicly to promise it would be. I can imagine what Lord Justice Bramwell would say to a solicitor charged with negligence in not trying his clients' cause as speedily as possible, and thereby causing the "enormously" increased expense of the often-repeated item in the bill of costs, " attending court all day, cause in paper, but not reached," in addition to the risk of losing the fruits of the verdict, which too frequently occurs by delay.

In conclusion, I would merely express my wish that some more able pen than mine had drawn attention to this subject, which certainly requires ventilation; and, with the greatest submission to the learned Lord Justice, I would ask whether he considers it consistent with his well-known love of fair play to so unwarrantably encourage the idea the majority of the lay publto hold, that all lawyers, whether barristers or solicitors, are "concerned " only for the quick and rich harvest?' 1 A Subscriber To Your Journal From Its Commencement.

Bedford-row, August 3.

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

Sir,—On the 2nd inst. you drew attention to the crude form in which the list of dormant funds was issued, and Mr. Stanley Leighton has since then drawn attention to the matter in the House of Commons, but has failed to extract a promise that any improvement shall be made in future lists.

It is difficult for the outside publis to understand why information spontaneously afforded by one department of the State should be refused by another. For instance, a notice concerning unclaimed funds in the hands of the Administrators-General, issued by order of the Secretary of State for India, shows (1) date of remittance; (2) name of presidency; (3) name of estate; (4) to whom payable; and (5) amount. A notice of this sort commends itself to business men, and one would suppose that the chancery officials would, for their own comfort, voluntarily issue the lists of dormant funds in such a form that persons supposing themselves to be interested might see at a glance if they were so interested, and to what extent. If this were done, the officials would not be pestered with inquiries from fanciful claimants.

Of the great value of publicity in such matters I could cite many precedents; but the case of the Thames Tunnel Company may suffice. In the course of the winding up of that company, a large sum in the shape of surplus assets awaited distribution. Accordingly, advertisements were inserted in the leading newspapers thus:—

[table][merged small]


SolicitorBreach Of DdttMortgage From Client"unusual ClauseOmission To Limit Right To Exercise Power Of SaleMeasure Of DamagesDefault In Payment Of InterestRents Received By Mortgagee In PossessionStatute Of Limitations—3 & 4 Will. 4, a 27, s. 40.—In a case of Cockburn v. Edwards, before the Court of Appeal on the 2nd inst., a question arose as to the duty of a solicitor, who takes a second mortgage from his client to himself, to limit the right to exercise the power of tale of the mortgaged property, by providing, as is Mini in the rase of first mortgages, that it shall only be exercised after six months' notice to pay off the principal, or in case the interest shall be in arrear for more than three months; and there was a farther question as to the measure of the solicitor's liability in damages for his omission to insert such a limitation. The question also inciden tally arose whether the receipt of the rents of mortgaged property by a mortgagee in possession amounts to a payment of interest on the mortgage debt. The plaintiff had employed the defendant, who was his solicitor, to procure him an advance of money on the security of property of which he was seised in fee. The defendant accordingly negotiated a first mortgage of the property for £450 to a third person, and took a second mortgage to himself for £50. The defendant himself prepared tbe second mortgage, which contained a power cf sale without any limitation on the mortgagee's right to exercise it, and the defendant, without any notice to the plaintiff, sold the property for £630. The plaintiff alleged that the sale was at an undervalue, but on the evidence, Fry, J., held that the price was not an inadequate one. He held, however (L. R. 16 Ch.D. 393, ante, p. 117), that the defendant had acted improperly, in not fully explaining the effect cf the deed to the plaintiff, and that, consequently, the defendant was liable in damages. And his lordship gave damages (inter alia) under the following heads:—(1) The costs whioh the plaintiff would be put to in re-investing the £630 in property of a similar nature; (2) the prnlmbie prospective increase in the value of the property sold (there being some evidence that property in the neighbourhood had considerably increased in value); and (3) tbe extra costs of the action, above tbe party and party costs, which were given to the plaintiff in the ordinary way. The Court of Appeal (jessel, M.R., and Brett and Cotton, L.J J.) affirmed the decision as to the liability of the defendant, though they differed from it as to the measure of damages. Jessel, M.R., said that a solicitor ought to be donb'v careful when he was acting in a double capacity in bis owi. interest, and as the adviser of his client, and the obligatioL waa on him to show that he bad fully informed his client ol the nature of the deed. In such a case, a solicitor would act wisely in insisting on the intervention of Mother solicitor on behalf of the client. The defendant, therefo'e, did wrong in inserting such a power of sale, if it was unusual. On this point his lordship had some doubt. He was not prepared to say that tbe right to exercise the power of sale in a second or subsequent mortgage ought necessarily to be limited in the same way as was usual in a first mortgage. No evidence had been addneed as to the practice, and his lordship had not suffioient judicial or professional knowledge to enable him to say what it was. In several cases which had come before him judicially more Btringent provisions had been inserted in second mortgages than are usual in first mortgages. But be co old not say that there waa any such established practice of conveyancers, and he could not hold that the power in the present case was a usual clause. If, therefore, no notice of the sale was given to the plaintiff, and tbe interest was not in arrear, the sale was wrongful, and tbe defendant was liable for some damages. Moreover, it was said on behalf of the plaintiff that the defendant had not informed him that his estate was liable to be sold if the interest was in arrear, and that the plaintiff had a right to know this so that he might pay the interest in time. His lordship could not see any answer to this argument. Therefore, assuming that the interest was not in arrear, the defendant was liable in damages. What then were the damages P As to the first head, the plaintiff would never have had anything like £630 to re-invest; for the amount due on the mortgages must be deducted from that sum. On the second head, the evidence of increase in value of the property was

too vagus, but still his lordship could not differ from the judge of first instance. The third head was the moat important, and in his lordship's opinion this was not allowable at all. All that the law gave to a successful litigant war his costs of the action as between party and party, and he could not in the same action be said to have sustained any damage in this respect, for his coBts were paid when they were paid as between party and party. Brett, L.J., said* that whenever the court could see that a particular practice in business was likely to lead to oppression or fraud, it ought to endeavour to check it as much as possible. A practice seemed to have grown up where a solicitor had some clients who had money and other clients who had none, and wanted to obtain advances of money, for tbe solicitor to advise the former class of clients to lend money to the latter on mortgage, but only to advise them to lend part of the money which was wanted, the solicitor lending the rest himself on tbe second mortgage. This gave the solicitor very great power, for he really became the mortgagee himself, and he obtained the benefit of the costs of preparing two mortgage deeds. It would be much better for a solicitor not to lend money to his own clients at all. But, if he did ss, he ought not to conduct the conveyancing in his own office; he ought to hand it over to some other solicitor. Still, if he did conduct it himself, and could show that the client had had the Bame advantage as he would have had from an independent solicitor, the law could not touch the transaction, however much it waa to be regretted. But the on%$ was on the solicitor to show this.

Upon the appeal it was argued that, when the property was sold, the interest had in fact been in arrear for more thanthree months, and therefore that no injury had been done to the plaintiff by the omission to qualify the power of sale. The defendant had been in receipt of the rents of the property as mortgagee in possession, and in some of the accounts which he had rendered to the plaintiff he had treated the) rents which he had received as appropriated to the payment of interest, but this appropriation had not been made in the last account rendered before the sale. It was, however, contended on behalf of the plaintiff that, whether an appropriation of the rents to the payment of interest was or was not made, it could not be said that the interest was in arrear if the rents received by the mortgagee had in fact covered the interest. Reliance was placed on the dictum of Vice-Chancellor Shadwell in BroekUhurtt v. Jettop (7 Sim. 438), that the receipt of rent by a mortgagee in possession would operate as a payment on behalf of the mortgagee to prevent the Statute of Limitations from running as against the mortgagee. Jessel, M.B., said that the receipt of rents by a mortgagee in possession was not a payment by contract of either the principal or the interest of the mortgage debt. When the account came to be taken between the mortgagor and the mortgagee, tbe mortgagee must of course account for what he had received in that way, but till the account was taken there was no set-off or appropriation of the rents against principal or interest. His lordship thought that the dictum in Brocklehurst v. Jessop was wrong, and it was inconsistent with the principle of tbe decision of tbe House of Lords in Chinnery v. Evans (11 H. L. C. 115). by a mortgagee in possession was n oould prevent the Statute of Limitations from t it was not a payment by tbe mortgagor or by an • on his behalf. The rents were the mortgagee's property, he bad a complete ownership of them, subject to the mortgagee's right of redemption. He received the rents as the legal proprietor of them. Of course, by agreement between the mortgagor and the mortgagee, the rattsreoeived by the latter oould be appropriated to the payment of interest. In the present case his lordship waa of opinion that tbe earlier accounts whioh had been rendered by the defendant were evidence of such an agreement, and he was of opinion that a solioitor who had for some time gone on setting off tbe rents whioh he received as mortgagee in possession against the interest due on tbe i not, without a arrangement

appropriation would still continue to sequently it could not in the present case be said that tan interest was in arrear at the time when the sale was)' made. Brett, L.J., was of opinion that the aoooaata rendered by the defendant amounted to an admission by;

;ainst the interest due on tbe mortgage cow Id any notice to bis client, pot an end to the The olient was entitled to consider that this

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