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but yet they are to be bound by tbe agreement entered into by their predecessors that that sale shall take place;
CONCEALED FRAUD. and in addition to that, during the whole of the term
In spite of the discouragement which the law has given they are precluded from selling any part of the property
to persons seeking to oust the holders of estates after to anyone but the lessees, however beneficial in their
long possession, such claimants continue to appear from judgment such a transaction might be.”
time to time with more or less sanguine expectations. In the recent case of The Oceanic Steam Navigation
The case of Willis v. Earl Howe (29 W. R. 70) is the Company (Limited) v. Sutherberry (29 W. R. 113), the
must recent instance. The plaintiff's allegations in his question arose whether the same rule applied to
claim were that about the year 1800 the defendant's pre. executors and administrators who have granted an
decessor fraudulently represented himself to be the heir underlease of the testator's leasehold property. There is
of William Jennens, though he was, in fact, illegitimate; a general impression that executors and administrators
that his mother concealed the fraud, which was only dishave wider powers than a mere trustee for sale. The
covered by the defendant in 1879 in consequence of a Court of Appeal held that there was no difference
communication made by a daughter of the mother of the between the power, in this respect, of an executor or ad.
fraudulent heir ; and that the fraud had been known to, ministrator and of an ordinary trustee for sale. Lord
and concealed by, the successive predecessors of the deJustice James said :-"For the purposes of this case, I
fendant. The defendant demurred, relying on the 26th can see no difference between an executor or an adminis.
section of the Statute of Limitations (3 & 4 Will. 4, trator and any other trustee. The only difference is this, c. 27), which provides that “in every case of a concealed that the law does not oblige a purchaser to require from an
fraud, the right of any person to bring a suit in equity executor evidence that what he is doing when he effects
for the recovery of any land or rent of which he, or any a sale is necessary for the purposes of his trust. The
person through whom he claims, may have been deprived executor has power to sell and give receipts virtute officii,
by such fraud, shall be deemed to have first accrued at, and & purchaser is not entitled to require from bim
and not before, the time at which such fraud shall, or evidence that the salo is one absolutely required. With
with reasonable diligence might, have been first known that difference he is in the same position as any other
or discovered.” Vice-Chancellor Malins allowed the detrustee. A trustee cannot bind the property of his
murrer, on the ground that the fraud, if any, might cestui que trust by an option of sale to be exercised at have been discovered long ago. a future time.”
The doctrine of equity is well known, that there is no The Master of the Rolls added, with reference to the limitation against. Prand. As Lord Co
limitation against fraud. As Lord Cottenham said in leasing power of an executor or administrator, that "an
Trevelyan v. Charter (4 L. J. Ch. 209), “It is fitting administrator is, in the view of the courts of equity, in that those who thus appropriate the property of others the same position as a trustee for sale of personal estate should be assured that in this court no time will assure to for the purpose of paying the intestate's debts. When
them the fruits of their disbonesty, but that their chilleaseholds become vested in an administrator he may in dren's children will be compelled to restore tho property some cases underlet, and that underlease will be sup of which their ancestors have fraudulently possessed ported; but it must not be forgotten that that is an themselves. Time is no bar, except the party having exceptional way of dealing with the assete. Ordinarily
full information of his injuries and rights allows time to the duty of an executor or administrator is to sell, and
elapse without seeking relief.” The 26th section of the those who accept an underlease accept it at some risk,
Statute of Limitations (3 & 4 Will. 4, c. 27), at first and ought, therefore, to take care to see that, under the
reading, seems to favour claims founded on a fraudulent circumstances of the case, a fair vecessity has arisen for
concealment, but the construction which has been put granting the underlease."
upon this section renders it exceedingly difficult to It will be seen that henceforth, not only must no under.
establish such a case. The question to be decided really lease containing an option to purchase be taken from an
comes simply to this: What is reasonable diligence ? or, executor or administrator, but that caution will be
Has reasonable diligence been used ? It is unfortunate necessary in taking any lease from an executor or adminis that such cases cannot be, or at least are not, tried before trator. The result, it appears to us, will be very greatly a jury. What is reasonable diligence is eminently & to restrict personal representatives in dealing to the best
question for a jury. Judges without juries are apt, as advantage with the testator's leaseholds.
Lord Justice Brett said recently, to decide questions of fact according to fixed principles; and the principle applicable to the question of reasonable diligence in the
discovery of concealed fraud seems to be that lapse of Mr. W. Blake Odgers has published a chapter from
time affords a presumption that reasonable diligence was his forthcoming “ Digest of the Law of Libel and
not exercised. In Chetham v. Hoare (L, R. 9 Eq. 571), Slander," relating to Seditious Words, in the hope, as
for instance, it appeared that great care had been taken he says in the preface, that it may prove of practical use
to conceal the fraud which broke the link in the claimant's to many at the present time. He adds that it was
title. More than a century after its perpetration the written many months ago, before the events in Ireland
claimant discovered the fraud by accident. There was no bad directed special attention to this subject. Although
evidence to show that the plaintiff's earlier predecessors we do not propose to forestall our notice of the work of
had any gronnd for suspecting that they had any right. wbich this chapter is to form part, we may say that it
Indeed, it might be said that the circumstances under contains a very full statement of the law relating to
which the plaintiff's discovery was made rather showed treasonable and seditious words.
that reasonable diligence, if it had been used, would
bave failed to discover the fraud. Certainly there was The Council of Legal Education has made the follow. nothing to show that reasonable diligence had been used, ing appointments for the year 1881:- Professors and but equally clearly there was nothing to show that it examiners (jurisprudence, international law, Roman law, had not, beyond the fact that the fraud remained unand constitutional law):--Joint professors—Frederic discovered. In that case the fraud consisted in the Harrison, Esq., and James Bryce, Esq., D.C.L.; Joint concealment of a marriage; the plaintiff discovered that
taminers-W. A. Hunter, Esq., M.A., and C. L. Shad. two pages of the index to the register had been stuck well, Esq., B.C.L. Equity :-Professor-Arthur Shelley together, and the page on which the marriage must Eddis, Esq., Q.C.; Examiner-W. H. G. Bagshawe, Esq., have been registered had been neatly removed from the Q.C. The law of real and personal property :-Profes- book. On separating the two pages of the index the for-Wm. Barber, Esq., Examiner-T. C. Wright, Esq. names were found, and a reference to the missing page, The common law :- Professor-John D. Mayne, Esq. ; | the absence of which had been further concealed by Lraminer-Hugh Cowie, Esq.
altering the paging of the leaves. This had been done
apparently early in the eighteenth century. There were One point in the judgment of the learned Vice-Channo other facts evidencing either the fraud or attempts cellor in illis v. Earl Howe is open to criticism. to discover it. Vice-Chancellor Malins, in deciding The alleged wrong-doer, one of the defendant's predeagainst the claimant, said that marriages were not only cessors, had been created an earl, and the Vice-Chancel. proved by registers; the registers in the eighteenth cen. lor said that, though he did not wish tɔ decide upon tury were notoriously imperfect, and there were other ways probabilities, yet it did seem most improbable, especially in which the concealment might have been found out bearing in mind that the peerage must have been granted besides the discovery of the tam pering with the register. partly on the strength of the possession of the large It must remain, to a great extent, a matter of
estates, that the first Earl Howe should have been an of opinion what was the proper inference to be drawn
impostor. Now, it is certainly not likely that he would from the circumstances. Clearly the fraud had been
have been made an earl if he had not had great posses. successful. The argument about the imperfection of
sions ; but it is hardly accurate to say that his claim registers and the other modes of proving a marriage
to an earldom must have been grounded on his title to cuts both ways. The altering of the register cannot
the estates. It might be said that the fact of his being have been the only fraud practised, for clearly the mar
created an earl only showed how well the fraud was riage was successfully concealed. And the fact that it
carried out, and how difficult it would have been for any was not discovered might be taken to show that the
reasonable diligence to discover the concealment. fraud was so clever that reasonable diligence could not discover it. The estates were of great value ; therefore either reasonable diligence was used without success, or, if it was not, that was because the fraud was so well
THE JUDICIAL STATISTICS. contrived that nothing could put the plaintiff's prede. cessors upon suspicion. At the same time it cannot be
CHANCERY Division. denied that the court was justified by the circumstances The returns from the courts of civil jurisdiction are for in forming an opinion that reasonable diligence might the year ending the 31st of October, 1879. The prohave discovered the fraud, and there was a very power. ceedinge in the Chancery Division are shown in the reful reason to make the court adopt this view. If claims turns from the several offices of the division. The numof this kind could be successful after a lapse of a cen ber of demurrers, actions for trial, motions for judgtury and half, what titles would be safe? That is to
ment, special cases, questions of law or fact, and further say, although time is no bar in a case of fraud, the court
considerations for hearing at the commencement of the will, if possible, resist a claim founded upon concealed year was 577 ; during the year 3,274 were set down, fraud, in order not to shake the security of titles.
2,247 were heard, and 802 otherwise disposed of, The case of Vane v. Vane (21 W. R. 66, L. R. 8 Ch.
W. R. 66, L. R. 8 Ch. | leaving 796 as remanets at the end of the year. In the 383), however, showed that there can be allegations
previous year there were 580 for hearing at the comsufficient at least to prevent a demurrer founded upon
mencement, and 2,649 were set down during the year ; the 26th section of the statute. There the fraud was
of this number 2,200 were heard, and 488 otherwise alleged to have been committed within living memory, disposed of, leaving 549 as remanets. This shows an and it was unnecessary to rely merely upon presumption increase in the work of the Chancery Division from 3,237 or opinion to decide the question of diligence. The
causes, &c., in 1878 to 3,845 in 1879. Besides the 2,247 allegations were distinct and minute. Vice-Chancellor
orders made on the hearing of causes, &c., during the Malins overruled the demurrer, and his decision was
year, there were 234 orders made on the hearing of peaffirmed by the Court of Appeal. Accordingly the
titions under the Companies Acts, 1,985 on other peti. defendant put in an answer, and ultimately the case came tions, 2,638 on special motions, 13,115 in chambers on to a hearing in 1876, when the decision was against the summons, 307 on summons adjourned into court, and plaintiff's claim.
139 on motions of course, making a grand total of The case of ITillis v. Earl Howe did not present 20,638 orders to be drawn up, passed, and entered by any serious difficulty. Here, again, the Vice-Chan the registrars. The certificates for sale or transfer of cellor said that to overrule the demurrer would be stocks and securities out of court numbered 3,713. In to make all titles unsafe. But, with that chief reason for the previous year the orders pronounced amounted to defeating the claim, it was still easy to find other grounds | 19,802, and the certificates to 4,112. for a decision. The person who was alleged to have been | During the course of the year the five judges of the illegitimate was, according to the plaintiff's allegations, | Chancery Division sat in the aggregate 780 days, as a wrong-doer. “Where a wrong-doer enters on land," against 887 in the previous year; but during that year said the ViceChancellor, " the true owner is bound to Vice-Chancelior Malins only sat 75 days, while the other know his own title, and when a person claiming adversely judges averaged 171 days each, and Lord Justice to him enters into possession, he is bound to ascertain Baggallay, who sat for Vice-Chancellor Malins, ouly did whether such person has a title or not, and to bring his so on 10 days. In the previous year the aggregate action within the statutory time." In his opinion the fact | number of days on which the judges of the Chancery that the alleged wrong-doer was allowed to take posses Division sat was 887, being 117 more. Of the 20,665 sion without inquiry, and by himself and his successors orders pronounced in court and at chambers to be drawn for generations to remain there, showed gross neglect. up by the registrars, 18,655 were actually drawn The 26th section of the Statute of Limitations must | up; and the fees collected thereon, and on the setting receive the strictest interpretation. That interpre- | down of causes and appeals, amounted to £12,950 178. tation was given in Chetham v. Hoare :-“A person In 1878 the number of orders drawn up was 18,598, and who comes . . . . seeking to deprive others of the fees £12,502 13s. 68. those rights, which they have enjoyed for a long time, In the chambers of the Master of the Rolls and the in the possession of land, should be bound to prove three Vice-Chancellors the number of summonses issued that he falls strictly and literally within the exception, was 39,533 in 1879 as against 37,495 in the previous the benefit of which is given to him by this statute." year. On these summonses 30,254 orders were made, “I think it of very great importance,” said Vice-Chan. of which 15,185 were of the class drawn up by the cellor Malins, "that this section, wbich, in its widest ex- registrars, and 15,069 of the class drawn up at chambers. tent, would give the right of recovering the possession of In the vear 1878 the total number of orders made at land at any time whatever in this case it is one cen. chambers was 28,253. There were brought into chamtury, and, upon the arguments I have heard, it might bers for prosecution 121 orders for winding up com. just as well have been after five centuries), should, panies and 3,149 other orders. The number of debts in the interests of society, receive the very strictest in- claimed was 18,687 and the amount of debts proved terpretation."
£3,383,883; in the previous year the debts numbered only 11,725, but their amount was £6,037,301. Under | Lancaster the number of suits and matters originated the orders made for winding up companies the calls was 599, as against 558 in the previous year. There were made during the year amounted to £928,406, and the 262 orders made on original hearing, and 86 on further amount of dividends ordered to be paid was £230,276, directions, 56 on petitions, and 408 on motion, besides and £100,869 was refunded to contributories. There 1,340 made on motions of course. Looking back to the were 749 estates sold, and they realized a total of year 1869 we find thero were then only 245 suits and £3,146,295 ; while 129 estates were purchased by order matters originated, so that the business in this respect of the court. The fee3 collected by stamps in chambers appears to have more than doubled in ten years. amounted to £15,136.
Record and Writ Clerks.--The return hitherto made Queen's Bench, Common Pleas, AND Excheqrer Diviby the clerks of Records and Writs is now made by the
SIONS. masters of the Supreme Court of Judicature ; and this The Queen's Coroner and Attorney and the Master of is the last return from the office of the clerks of Records the Crown Office show in the present return that there and Writs. The present return shows that during the were during the year five persons convicted us against year 6,237 actions and original proceedings were in nine convicted and two acquitted in the previous year. In stituted in the Chancery Division, including 208 trans four of these cases fines were imposed, and in the remainferred from district registries and 6 from county courts. ing case no final judgment or sentence was pronounced. In the previous year the number of actions and original In the three common law divisions there was an proceedings was 5,487. Ten years ago the number aggregate number of 59,659 writs of summons issued, was only 3,344, not much more than half that of 1879. besides 196 removed from district registries. In the The total amount of fees collected in stamps was previous year there were 55,655 writs issued and 189 £18,992 10s. 4d.
cases removed from district registries. Appearances Report Office. -The returns from the Report Office were entered to 27,516 of these writs and 25,200 judgshow that 16,804 documents were filed in that office, ments entered, 16,660 of which were put to execution. and 28,591 copied and examined, and that the total fees The total amount of fees received was £63,958 18s. 1d, received amounted to £3,026.
18sociates' Return, — Among the causes entered for Examiners.-The number of witnesses examined was trial there were for trial in London and Westminster 171, as against 195 in 1878, and the fees amounted to 694 remanets from the previous year; 2,301 were £260, as against £289.
entered for trial at London and Westminster, and 1,243 Lord Chancellor's Principal Secretary. The number at Nisi Prius. Of all these cases there were only 883 of petitions presented was 1,013, as against 1,634 in the trials at Nisi Prius, and 1,100 at London and Westprevious year, and 1,638 in 1867. The fees collected minster, 109 of which latter were undefended, 956 were by means of stamps amounted to £874.
made remanets by order or for want of time to try, 1,104 Secretary of the Rolls. There were 1,156 petitions were withdrawn or struck, and 147 stood once either for presented at the Rolls, as against 616 in the previous judgment or for further consideration, year, and 593 in 1877. There were also 4,511 petitions | Masters' Returns.-In respect of the 25,200 judgfor orders of court. The fees amounted to £2,127 16s., ments before mentioned, 16,660 writs of execution were as against £1,629 138. in the previous year.
issued, of which 16,150 were writs of fieri facias, 362 Taxing Musters.-The returns presented by the taxing / writs of possession, and 148 of elegit. There were during mnasters of the Chancery Division show that there were i the course of the year 201 motions for new trials; carried into the office 4,815 orders and references seventy-two of which were refused and 129 rules nisi for taxation; that 9.469 bills were taxed, and that were granted, and of these 129 rules nisi, 59 were 4,299 certificates and allocaturs were made. In the made absolute, and 68 discharged. previous year the references were 4,653, the bills Judges' Chambers.-The returns of the chamber clerks taxed 9,138, and the certificates 4,083. The total show, among other things, that there were in the three amount of the bills taxed was £1,251,263, and the fees divisions 74,569 summonses taken out, and 62,886 orders
amounted to £35,093. These figures are also made as against 86,006, and 73,239 in 1878, and that an increase over those of the previous year.
there were 36,138 acknowledgements by married women Masters in Lunacy. The returns from the office of brought into the office as against 31,671 in 1878. the Masters in Lunacy show that there were during the | Official Referees.—There were 91 references sent to year 115 orders of inquiry in commissions of lunacy | the official referees, including remanets. Of this number executed by masters in lunacy, 248 reports made to the 23 were partly head, 8 were withdrawn, and 2 stood Lord Chancellor, and that the percentage on lunatics' | over, 46 were heard, and 12 remained. incomes amounted to £21,140.
District Registries.-The returns from the 74 district Registrars in Lunacy.-There were 253 petitions registries show that, during the year 1878-9 39,834 presented for hearing, and 179 petitions for orders for writs of summons were issued as against 36,809 in the inquiry, and 119 orders for inquiry made, besides 523 i previous year. There were 10,799 judgments as against other orders. The cash directed to be paid into court 11,857 in 1878. The fees received in the registries amounted to £81,413, and the stock directed to be trans- amounted to £29,764; in the previous year the sum ferred into court to £144,439; the money paid out of was £23,496. court was £31,701, and the stock transferred out Sittings in Banco.—The proceedings at the sittings £325,925.
in Banco of the Exchequer Division relating to business Chancery Paymaster.-During the year 1979 the total on the revenue side of the court, and other proceedings amount of cash and securities paid and transferred into are shown in the returns of the Queen's Remembrancer. court was £12,485,864, and that paid and transferred | Under this procedure there were 5 cases touching appeals out of court was $12,648,033. The number of cheques | as to income tax and inhabited house duty, 1 case stated signed was 55,862, and the accounts open were 31,767. by the Commissioners of Inland Revenue as to stamp Fees collected by stamps amounted to £1,113. The duty, 67 motions for attachment on matters concerning total amount of the suitors' funds appearing in the legacy and succession duty, and 7 motions on various several accounts was £69,083,526 stocks and securities, other matters. and £5,029,454 cash, making a nominal total of Suitors' Fund.—The total amount of the suitors' 274,212,980. In the previous year the total amount of fund in the three divisions on the 1st of November 1878, the suitors' funds was £74,112,980, and in 1869 amounted to £86,730 19s. 100.; during the year the £63,835,946.
amount paid in was £258,442 4s, 3d., and the amount
paid out was £231,068 0s. 9d., leaving a balance on the Cotxty PALATINE OE LANCASTER CHANCERY COURT. ! 31st of October 1879, of £114, 105 33. 4d. In the Court of Chancery of the County Palatine of The total amount of receipts in the three common
of taxation amounted
law divisions, the Court of Bankruptcy, and in the Land Registry for the year ending the 31st of March,
A TREATISE ON THE LAW OF MERCHANT SHIPPING. By By the return from the Probate Division it appears David MACLACHLAN, Barrister-at-Law. Third Edition. that during the year ending the 31st of October, 1879,
William Maxwell & Son. there were 12,536 probates and 6,153 administrations
From the brief statement in the preface, that a new granted out of the principal registry as against 11,544 and 5,675 in the previous year. Also during the year
edition of this work is “demanded,” we presume that 1879 there were 79 probates and administrations granted
the last edition has met with a success which it deserved. on the hearing of actions, 261 on motions, and 34 on
But from the rest of the preface it might be surmised that summons. The total amount of fees of court in conten.
the author's main object in issuing the new edition was tious business was £2,398 as against £1,902 in 1878, and
to expose the ignorance displayed alike by counsel and the taxed costs £19,798 as against £42,764. The total
learned lords in the recent decision of Lohre v. Aitchison amount of probate and administration stamps issued
| (L, R. 4 App. 755). To this end the learned author in London was £2,109,281, of which £1,224,381 was for
has composed an excursus in several pages of small use in the principal registry and £884,900 for the district
| print, which we think might have been advantageously registries. The value of the effects was sworn under
curtailed to eight lines instead of eight pages. With £80,326,190; the amount in the previous year was
this exception the supplementary matter added to £68,998,655. The fees levied in the principal registry
the present edition does not occupy much space. anounted to £70,930 in 1879 and £65,910 in 1878. In
Only five years have elapsed since the last edition was 1879 the expenditure in the principal registry consisted
published; but the cases which have been decided of £46,376 for salaries ; £6,656 for registering and
in the interval have, so far as we are able to copying clerks; and £428 for incidental expenses.
judge, been carefully and industriously noted. Gabarron In the district registries of the Probate Division
v. Kreeft (24 W. R. 146, L. R. 10 Ex. 274) is hardly an 20,582 probates were granted, and 9,401 administrations,
authority for the proposition for which it is cited on p.
433, and the decisions in Glyn, Mills, & Co. v. East and as against 18,860 probates, and 8,686 administrations in the previous year. The total fees received amounted
West India Docks Company (L. R. 5 Q. B. D. 129), and to £80,318, the amount in 1878 having been £74,412.
Porteous v. Watney (27 W. R. 30, L. R. 3 Q. B. D. 534), The total amount of property under these probates and
deserved a little more notice than they have received. The administrations was sworn under £56,581,761, which
latter case in particular is of importance, as deciding the being added to the amount in the principal registry
point mooted in the well-known conflict of opinion makes a total of £136,907,951, upon which probate or
between Lord Mansfield and Lord Tenterden on the administration duty was paid; in the previous year this
subject of demurrage; and in his judgment Brett, L.J., total was £119,895,619.
takes especial notice of, though he does not adopt, an
ingenious theory on the subject which. Mr. Maclachlan DIVORCE AND MATRIMONIAL Causes.
propounded in a former edition of this work, but The number of petitions filed in the Divorce Division
which has been excised sub silentio from the present in the year ending the 31st of October, 1879, was 915,
edition. of which 441 were dissolution of marriage, and 114 for
Again, in considering the question whether the term judicial separation. In the previous year there were
“act of God” is confined to that which is irresistible, & 997 petitions, of which 516 were for dissolution of
question which Mr. Maclachlan discusses with some marriage, and 116 for judicial separation. In 1879
elaboration on pp. 536, 537, he might usefulle have there were 358 decrees absolute for dissolution, and 38
referred to Nichols v. Marsland (25 W. R. 173, L. R. 2 for separation. The fees received during the year
Ex. D. 1), and Nitrophosphate Company v. St. Katherine
Dock Company (27 W. R. 267, L. R. 9 Ch, D. 503). It is amounted to £5,410.
true that in neither of those cases is the term used with ADMIRALTY.
reference to a shipping contract, but Mr. Maclachlan There were in the year ending the 3180 of October, seems to think that this is immaterial in considering the 1879, 388 actions instituted in the Admiralty Division, meaning of the expression, for he characteristically including 33 transferred to that division. There were says that “it is a phrase of that excellent and also 8 appeals from county courts. The money value of solitary nature that does not admit of modi. the claims in all these actions was £983,944. In the cation or colour, as other phrases may be previous year the money value of the 413 actions was interpreted a sociis.” However, it is of course easy to £1,217,113. Final judgment was given in 174 cases.
suggest improvements of this kind. On the whole, the References to the registrar assisted by merchants were
alterations and additions seem to be well and carefully made in 95 cases. The bills submitted to taxation were made; the recent statutes on the subject are added to 267, and the total amount of the costs reported due was the appendix, and the work is a very complete text-book £27,135. The court sat on 149 days, and the registrar
on the subject with which it deals. with merchants on 79 days. The references to the
We may, perhaps, venture to express a hope that, in any registrar are continually on the increase ; in 1874 there future edition, the author's style may be a little more were only 53 and the number has been gradually in
subdued. The affectation—for we can call it by no other creasing to 95 since that date.
name-in which Mr. Maclachlan here and there indulges, The amount of naval prize money paid in was £11,471 and of which our last quotation is an example, is a and £8,851 were ordered for distribntion. The balance serious disfigurement to the book, and a sore trial to the of suitors' and other money in admiralty cases was
patience of his readers. Why, for instance, for the sake $45,463 at the commencement of the year; £150,928
of supposed grammatical precision, does he insist upon were received during the year, and £165,236 paid out, substituting “lie-days" for the well-known “lay-days "? leaving a balance at the end of the year of £31,154. Does he seriously suppose that a phrase thoroughly The amount of fees received in judicature stamps was
established in law and commerce is to be corrected by €7,034, and in cash £1,585.
the censure of a text.writer? And what is the exact meaning of the expression, at p. 369, “ The popular oddity
of " Carr v. Wallachian Petroleum Company? The Agaize Commissioners are Mr. Joseph Brown, Q.C., and Mr. Marpby, Q.C.
and hypothetically to the possibility of charging with comPROBATE PRACTICE.
pound interest a trustee who, in disregard of the express THE CONTENTIOUS PRACTICE OF THE High COURT OF terms of his trust, keeps trust funds uninrested, immediately JUSTICE IN RESPECT OF GRANTS OF PROBATES AND AD:
adds—'Of that I say n«thing.' Can this fairly be called MINISTRATIONS ; WITH THE PRACTICE AS TO MOTIONS AND
a recognition' of Jones v. Foxall ? On the other SUMMOXSES IN NON-CONTENTIOUS BUSINESS. By THOMAS
hand, the question of compound interest came formally HUTCHINSON TRISTRAN, D.C.L., Advocate, of Doctors'
before a strong court in Burdick v. Garrick (in which
Jones v. Foxall amongst many otber cases was Commons. Butterworths.
cited), and the question was expressly decided in terms wbicb, This work will supply a want, since none of the I submit, are accurately summed up in the head-note aboveexisting treatises upon contentious probate business mentioned. Moreover, on referring to Jones v. Foxall (15 bave entirely satisfied the requirements of the profession, Beav. 392). you will find that the Master of the Rolls in while the Judicature Acts have considerably modified a terms limits the cases in which compound interest will be system in which the practice under the Act of 1857 had
charged against a trustee to cases where trust money has been blended with the old practice of the ecclesiastical
been employed by him'in trade or speculation for bis own
benefit and advantage.' coorts. Dr. Tristram possesses exceptional qualifications
"2. It is said I was 'misled' once more by that onhappy for the task which he has undertaken, both from his
head-note to Burdick v. Garrick, and so did not call attenexperience under the old and the new practice,
tion (as I ought to have done) to the fact, or supposed fact, and also as one of the framers of the Judicature Act that ihe rate of interest fixed in that case had express refera Rules and Forms. A glance at the table of contents ence to the employment of the trust funds in trade ; and it will be sufficient to show how much assistance the lis hinted that I ought to have gone for my facts to the practitioner will derive from the work. The practice as | report of counsels' arguments. Fir my facts I looked, Sir, to motions and summonses is first explained, and then to more autbentic sources, and I found (p. 255, L. R.) that the procedure in a probate suit, from caveat to entry of the defendants swore (and it was not denied) that the money judgment, is set forth; the provisions of the rules and had not been in any way employed by them in business, orders under the Ju licature Acts, as well as those of the
except tbat is was paid into the banking account of a firm Probate Act, being incorporated in the text. There is
of solicitors in which the defendant M. was a partner; and
I found on the same page that the Vice-Chancellor in the also a chapter upon Appeals, which sets forth the prac
court below had been of opinion, not that the money had tice, not only in the Court of Appeal, but in the House
been employed in trade, but simply that the defendant M. of Lords. The Married Women's Property Act, 1870,
bad 'mixed the money with his own'; while on p. 242 I is given in extenso in the appendix, and its effect upon
found Lord Hatherley, in determining the interest payable the wills of married women is fully referred to in the by M., expressly distinguishing for this purpose the business text.
of a solicitor from trade. Once more, then, I submit that The decisions reported in two of the current series of neither the head-note to Burdick v. Garrick, nor my use of reports appear to be, in general, carefully collected, al. it, was inaccurate. though we cannot discover any reference to the recent “3. Your reviewer's next charge of inaccuracy is based case of Smee v. Smee (L. R. 4 P. D. 84), although it is upon my following the head-note to Blogg v. Johnson (L. R. stated that Sir J. Hannen wa3 a party to the judgment
2 Ch. 225), and saying that the court will not charge an in Banks v. Goodfellow (L. R. 5 Q. B. 549), “and adheres
executor who has been guilty of delay in accounting with into it in the Probate Court." Dr. Tristram appears to
terest on arrears of income unpaid by bim'; and your re. have somewhat arbitrarily passed over without notice all
viewer refers me to a passage in Lord Chelmsford's judgment
in that case to prove an alleged blunder in the note. Io that cases which are not reported in the Law Reports
judgment I also find the following passages: • There can be or the Law Journal. This has led to the omission of
no doubt, if this had been merely an application for interest some decisions of importance, such as Wells v. Brook (25
upon the arrears of income due to the tenant for life), that W. R. 463), which is an important case upon the question not only the consent order would have been an answer to it, of passing over a widow in making a grant of administra but that without any such order it must have been refused, tion, and the more recent case of In the Goods of Gatti upon the principle wbich has been long established by the (27 W. R. 323), which involved the construction of two numerous authorities referred to in the course of the arguof the Naturalization Acts. On the other hand, we ment. . . . If then the plaintiff were seeking to obtain should mention that the author has referred to all such interest upon the arrears of income due to his testatrix, the
authorities oited would be a conclusive answer to his claim.' recent cases, in the other divisions of the High Court, as have any direct bearing upon probate practice.
His lordsbip then goes on to say that, if improper delay had been proved against the defendant, the court would, in tbe circumstances of the case, have ordered payment by him of
interest on the sum found due from him, as on a capital EXECUTORS AND ADMINISTRATORS.
sum due to the estate of the tenant for life then deceased, a We last week received from Mr. W. Gregory Walker | very different matter. It was to this very different matter a long letter on the subject of the review which ap- ] that the passage quoted by your critic bad 'reference, peared in this journal some weeks ago (ante, p. 69) of " 4. But it seems I have been guilty of worse faults,'ir his book on Exccutors and Administrators, calling in that, while treating of the commission allowed here to question the accuracy of some of our reviewer's statements executors on assets collected by them in India, I made no of the law. We shall, first of all, print Mr. Walker's reference to an Indian Act of 1874. I will candidly allow, statement of his objections, and then proceed to consider
Sir, that I was ignorant of the Act; and I am very glad to bow far the statements in our review were correct. Mr.
have had my attention called to it, because I admit that it
has an important bearing on the subject in question. The Walker says:
point is ought I to have known of the Act? In your ** 1. Your critic objects to my inaccuracy' in adopting article on p. 3 of your 23rd volume (1878), in which I now the head-note (L. R.) of Burdick v. Garrick as a sufficient | know tbat you called attention to the enactment (not, be expression of the rule as to charging an execator with com- it observed, till four years after it had come into operation), poond interest, on the grounds, as I understand, that (a) the you speak forcibly of the exceeding difficulty, almost head-note does not represent the judgment; (b) that that case amounting to impossibility, there is in acquiring any inmust be taken in connection with the “cases recognized” by formation as to Indian Acts. I am not aware that this Lord Selborne in Vyse y. Foster (L. R. 7 H. L. 346). As to difficulty is less in 1880 than it was in 1878. True, in the the first of these grounds of objection, I am in no way con particular case-though, so far as I know, not one of the cemed to defend the Law Reports from any strictures you | text-books contained any reference to the Act in questionmay pass upon them, but I have re-read Burdick v. Garrick | the SOLICITORS' JOURNAL bad overcome tbe difficulty ; but in those reports, and cannot see that the head-note in ques- was I to know this? If the profession are bound to make them tion is not a correct note of the decision. As to the second selves acquainted with all that appears in your valuable journal hround of objection, the case (not cases') mentioned by the obligation extends equally, it is plain, to the contents of the Lord Selborne at the page to which I am referred is Jones vi Law Journalagd the Law Times, and possibly of other papers. Fuzail. Now, Lord Selborne, after alluding extrajudicially i Of course, a legal writer cannot justily limself is de igvores