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in the same position as he would be if the land was situated in any probable that priority will be obtained by a subsequent purchaser other part of England and the conveyance was executed before from the defendant if such purchaser registers his assurance in the order was made, so that the land is not affected by the order. Yorkshire before the order is registered. But the plaintiff would, This conclusion is somewhat startling, but it appears to be justified in most cases, have registered the action as a lis pendens in the by the following considerations. We propose in this article to Central Office; and, if this be done, the purchaser appears to gain discuss the effect of such a conveyance.
no priority by prior registration in Yorkshire. Caveats.—A caveat may, by the amending Act of 1885, s. 3, It should be observed that even if, owing to the action not be registered with respect to any lands" by any person claiming having been registered as a lis pendens, the purchaser obtains to be entitled to any interest in such lands in favour of any person priority as against the order by the contract being made before named therein,” and any assurance made while the caveat remains the order is made or by the conveyance to him being registered in force by the person giving the caveat in favour of the person before the order is registered, yet the person obtaining the order in whose favour the caveat is given, his heirs, executors, adminis- will generally be able to maintain a fresh action against the trators, or assigns, and duly registered, shall have the same priority purchaser. as if it was registered at the date on which the caveat was Probably most of the above remarks as to orders in actions for registered.
the recovery of land apply to orders made in all actions directly Lis pendens.-It should be borne in mind that the doctrine of affecting specific property. lis pendens merely states that, as it is necessary to the administra Judgment.—A judgment (since 27 & 28 Vict. c. 112, ante, p. tion of justice that the decision of the court in an action should 37) does not affect land till the land has been actually delivered in be binding, not only on the litigant parties, but upon those who execution. As we shall point out, there are certain dificulties in derive title under them during the action, " pendente lite" every the construction of the Yorkshire Registries Act as applied to writs conveyance of the subject-matter of the action made by a litigant of execution, and therefore it may still sometimes be desirable, during the action is subject to the rights which are enforced in when land has been actually delivered in execution, to register the the action in favour of the other litigant. All that is effected by judgment in Yorkshire. The charge under 1 & 2 Vict. c. 13 2 & 3 Vict. c. 11 is to provide that where an action or other pro-|(ante, p. 21) cannot now arise till the land is delivered in execuceeding is not registered as a lis pendens a purchaser pendente lite tion ; but there appears no reason against registering the judgment without notice shall not be affected by the doctrine ; it follows in Yorkshire before execution, and it is possible that, on delivery that a lis pendens does not fall within the definition of "' assurance” in execution being made, and on the writ being registered under 27 & in the Yorkshire Registries Act, 1883, and accordingly cannot be 28 Vict. c. 112, the charge will have priority over the rights of a registered under that Act.
purchaser whose conveyance was made after the delivery in General remarks on registration of writs or orders.—The execution, but was registered before the registration of the writ in memorial of a writ or order must contain (Yorkshire Registries Yorkshire. It must, however, be remembered that, if the contract Act, 1884, s. 6), inter alia, “So much of the order as affects any is made before the delivery in execution, the purchaser is safe, as lands within the Riding, or describes or defines such lands," and the contract cannot be registered. it cannot be registered (section 8) “unless
But, it may be asked, what is the effect of the existence of a copy of such order
is produced to the registrar at the contract entered into before the registration of a writ or order ? time of such registration.” Without discussing the somewhat We have seen (ante, pp. 9, 11, 23, 24, 33, 39) that the general obscure question in how short a time after an order is made or principle of law is that a judgment creditor can take only that writ issued it is possible to obtain an office copy, it is evident that, which belongs to his debtor, and that his right is subject to that between the making or issuing and the registration of the order or of purchasers or incumbrancers who became such before the point writ, an interval of time will necessarily elapse sufficient to allow of time at which, as against them, the judgment creditor's right a conveyance of the land affected by the order or writ to be accrued. The question, therefore, is, whether that principle is to executed and registered before it is possible to register the order or be considered as applicable to cases within the Yorkshire Registries writ: The terms of the provisions as to careats do not seem to be Act, 1884, or whether that Act overrides it and makes the rights applicable to the case of orders or writs ; but, even if they are, one as between the contract and the order depend entirely upon the litigant would hardly ever give a caveat in favour of another. priority of registration, although, as we have remarked, it seems Three questions present themselves—
impossible to register a contract. It will surely be repugnant to (2) What is the effect of a conveyance executed after the justice that the Act should expose purchasers, for whose protecmaking of the order or issue of the writ' but registered before the tion it was framed, to a new danger without providing any means order or writ is registered, and before it is carried into effect ? whereby they may guard themselves against it. It is very difficult
(2). What is the effect of a conveyance executed or registered to escape from the words of the Act which make the priorities after the order or writ has been carried into effect but not regis- depend upon registration ; but it cannot be said that a purchaser
under a contract is left defenceless because he cannot register the (3) What is the effect of an order made after a contract for sale contract; for he may avail himself of the provision as to caveats. but registered before the conveyance is registered ?
In practice, therefore, unless and until it is decided that after conThe answer to these questions may depend upon the nature of tract a purchaser of lands in Yorkshire is safe, as he would þe in
the case of other lands, the vendor should be required to give a In discussing them it is important to remember that the existing caveat in favour of the purchaser, and in a private contract Yorkshire Registries Act is merely substituted for the old Acts, stipulation binding him to do so should be inserted. the object of which was to render purchasers and mortgagees secure, not to assist execution creditors or persons claiming under a bankruptcy. It must also be remembered that the word
priority” is generally used in legal documents to mean priority of effect not of date, though it may be used in the latter meaning;
WANTED, THE LEGAL ESTATE. it is probable, therefore, that the words in the Yorkshire Registrios « Every conveyance of an equitable interest,” said Lord Westbury the of 1884, s. 14–" shall have priority according to the date of in Phillips v. Phillips (8 Jur. N. S. 145)," is an innocent conthe registration thereof, and not according to the date of such veyance.
The law is not always happy in its choice of words, neerances or of the execution thereof "-merely mean that, where and it is curious that it should apply a term like this, directly heistration is necessary, then, for the purposes of determining implying moral qualities, to a transaction which is so frequently the priorities of effect "inter-se, assurances de registered, must attended by disaster to those who are really the innocent the Act does not defeat the operation of executions completed but to ascribe an equitable interest to one party who requires its proMorinature produces its effect as soon as it is pronouncea, edecept, legal estate sately out of the way and there is left a clear field for
Giorders made in an action for the recovery of land.–An order of another party equally deserving. We have indeed only to get the poglobine im a few cases where some furtheris proceeding - strene i equities to play hide and seek ing with results more favourable to registration pursuant to an area of me a fathene procedimentary such as perhaps than to rely other interest involved. Ta on excellent
the order or writ.
example of this was afforded by the recent case of In re Vernon, Lord Cairns said :—“My lords, that is a very serious proposition. Ewens, f. Co. (35 W. R. 225), while the opposite effect produced | It goes not merely to shares, but it goes to land, and to every other by the timely appearance of the legal estate is illustrated by Easton species of property; and it goes to say that, whereas there is a v. London Joint Stock Bank (35 W. R. 220).
large, well-known, recognized, and admitted system of trusts in The former was a case arising out of the bankruptcy of this country, that system of trusts is to be cut down and moulded Messrs. Parker, solicitors. A client had intrusted them with and reduced to this, that it is to be a system applicable only to £11,000 to invest. This they did by crediting him with infants, married women, or persons with limited interests. that amount in money already out mortgage.
The I find no authority for such a proposition, and I feel satisfied that mortgage was exchanged for a fresh one, and Messrs. Parker your lordships will not be disposed to introduce, for the first time, subsequently purchased the equity of red :mption in this that as a rule of law." Upon the above principles it was clear, last. The result of this was that, although the client never had then, that the client's equity was superior to that of the subsequent any mortgage directly to himself, yet Messrs. Parker became purchaser's, and that in placing implicit confidence in the solicitors trustees for him of their first mortgage to the extent of the money nothing had been done to forfeit it. This shows the course of advanced, and the equitable interest which he thus acquired was matters in the absence of the legal estate. transferred to the new mortgage and survived the purchase of the
The other case to which we have referred is equally instrucequity of redemption. As the legal estate was outstanding, the tive as to its presence.
A. wished to borrow money. To Messrs. Parker thus had an equitable estate subject to the equity enable him to do so B. executed and handed over to him, inter of their client. This estate they proceeded to transfer to a com- alia, transfers in blank of certain shares. These B. delivered to a pany which they themselves were instrumental in forming, and money-lender, C., in exchange for the loan, and C., in his turn, when, upon their bankruptcy, the client's administratrix sought to deposited them with other securities with a bank as security for enforce his equity against the land, the claim was resisted by the advances to himself. Clearly A.’s intention was that the shares company on the plea that they were purchasers for value without should only be liable for the sums actually advanced to B., but the notice. Considering the manner in which the Messrs. Parker had bank took them on the understanding that they should cover all been involved in bringing out the company it seems very doubtful sums due to them from C. The bank was wise enough to comwhether the absence of notice could have been established; but as plete it legal title by obtaining a transfer of the shares into the the legal estate had not been got in, the question did not really names of trustees. They were thus at liberty to set up against arise. It is curious that the importance attached to the legal estate A. the defence of purchasers for value without notice, and the should appear to be on the increase. In Penny v. Watts (2 De G. only question was whether they had notice of the purpose for & Sm. 501) it was considered by Knight-Bruce, V.C., that purchase which A. had delivered the shares. Into this it is not necessary for valuable consideration without notice would be a good defence for us to go. It was held ultimately that, in the ordinary course even in its absence, and Lord St. Leonards quotes this with ap- of business, the money-lender C. had power to dispose of securities proval while making a violent attack on Lord Westbury's judg- so as to raise loans to himself, although the whole of the loan on ment in Phillips v. Phillips referred to above (V. & P., 14th ed., any particular security might not go to its owner, and that the p. 796). The matter, however, has now passed out of the stage of bank had no notice of the special manner in which A. had been controversy, and in the case we are considering not a doubt was brought into the transaction. cast upon it. “ The case of the claimant has been put upon another
But in this case, as in the last, the central fact is one ground, which is a proper ground, that the company not having inseparable from the present complexities of business. Propobtained the legal estate, tħe claim of purchasers for value with erty is placed by the owner in the hands of another for out notice cannot alone avail them.” * Such was the opinion of special purposes, but in such a manner that that other can disLord Justice Lindley.
pose of it as his own. The injury which he can thus do to innoThe only chance, then, for the company was to shew that the cent parties is to be regarded as unavoidable, and the only means prior equity had been in some way forfeited, and at first sight there by which a person who has committed the first error of taking an seemed to be something in favour of such a contention. The equitable interest can retrieve his position is the old-fashioned client bad simply handed over his money to the Messrs. Parker, tabula in naufragio, the legal estate. and had then taken no further trouble, leaving it quite possible for them to deal with the resulting investment to the prejudice of third parties. This is not altogether unlike the cases in which a mortgagee parts with the deeds so as to enable the mortgagor
INCOME TAX CASES. to raise fresh money on them (Waldron v. Sloper, 1 Drew. 193), (Blake v. Lord Mayor of London, 35 W. R. 212; Partridge v. Mallanor a vendor with an equitable lien signs a receipt for the unpaid daine, 35 W. R. 276; Pommery v. Apthorpe, 35 W. R. 307.) purchase-money and hands it over to someone who is thus enabled In Blake v. Lord Mayor of London the question for decision was the to make a good title (Rice v. Rice, 2 W. R. 139, 2 Drew. 73). meaning of the words “ public school” in the Income Tax Act, 1845 But in such cases the mortgagee himself actually interferes in (5 & 6 Vict. c. 35), and whether the City of London School was a the business. In the one under consideration, on the other hand,
public school” within the meaning of the Act, so as to be exempt the owner of the equity placed confidence from the beginning in the from income tax by virtue of section 61, rule 6, There was little to Messrs. Parker, who were and he subsequently in no way took part in what they did. It tion made by the learned judge
The difficulty of putting a definite meaning upon the position of trustees toward him, guide the court,
the phrase “public school may be seen in the attempt at a definimay be said, of course, that, if he reposes this confidence wrongly, not to be construed here as words of art, but mean schools which are
-“The words 'public schools' are and so puts it in the power of a dishonest man to defraud a third in their nature public." Yet some negative results were reached, party, he is himself the one who ought to suffer, and on abstract which will narrow the issues in any future case of the kind. The grounds this is probably sound enough. But the system of trusts expression “ public school” in the Income Tax Acts is not limited to is fully established in this country and recognized by our law, and schools which are supported by charity funds or endowments; and to apply such a doctrine would be to level a deadly blow at it.
a school does not cease to be a
public school” because the scholars Thus it was said by Turner, L.J., in Cory v. Eyre (i De G. J. & pay something or because they have to be recommended” for Sm. 269, 12, W. R. Ch. Dig. 61) : -" The very first principle of admission. And the City of London School itself may henceforth bold trusts is, that the cestui que trust places confidence in his trustee, of Income Tax had decided that the school was a .“ public schopilom and, if it is to be held that a cestui que trust is to be postponed seems to have assisted the learned judge in arriving at his decision upon the mere ground that he did not inquire into the acts or of a question which he described as conduct of his trustee, that principle would, as it seems to me, be mixed with fact than of pure law."
perhaps rather one of law in a great measure, if not wholly, destroyed.” language was used by Lord Cairns in Shropshire Union Railways
Very similar We believe it has been the habit of the gentlemen who are known in
the racing world as "bookmakers" to consider that their gains, and Canal Co. v. The Queen (23 W. R. 709, L. R. 7 1. 1. 496) though often large, could escape the meshes of that net of the five was in the cestui que trust, he could no longer leave the conduc under the impression that the Paro Tooked askance at their vocations, It had been contended that, when the absolute beneficial interest schedules which Martin, B., once described as large enough to were partial, and that he was under an obligation to watch the trustee. lest it should seem to countenance the means by which they were
315 earned. The case of Partridge v. Mallandaine has vindicated the THE COURTS FOR THE YEAR 1886. Edited by ALFRED EMDEN, language of Martin, B., has dashed the hopes of the bookmakers, Esq., Barrister-at-Law. Compiled by HERBERT THOMPSON, Esq., while at the same time it has afforded them the satisfaction of know Barrister-at-Law. William Clowes & Sons (J.imited). ing that their calling is not an illegal one, and has put an end to the notion that disapproval of the means by which profits are earned will
The fourth annual issue of this digest calls for a few words of prevent the enforcement by the law of the Treasury's claim to tax recognition of its value to the practitioner. It contains not merely the those profits. The case is the stronger because we think we discern a interest to the English lawyer reported in the Irish and Scotch
reported cases in all the English courts, but also the decisions of difference in the views taken by the learned judges, who nevertheless concurred in their judgment. Denman, J., thought that bookmaking reports and a reference to cases of general interest in the American was a “vocation” within the meaning of the Income Tax Acts, and reports and Davis’s Supreme Court Reports. There is a table of that, even if the vocation were an illegal one, profits derived from it court, with references to the names of cases upon them and the
cases followed, overruled, or specially considered ; a table of rules of would be taxable, as if a man “carried on a systematic business of column of the digest where those cases are to be found ; and a similar receiving stolen goods and made by it £2,000 a year, the Income table of statutes. The arrangement of matter under the principal Tax Commissioners would be right in assessing him thereon.” headings is convenient, and the statements of cases we have Hawkins, J., holding that the vocation or calling of a professional examined are accurate. We can speak from frequent use of the bookmaker was an honest calling, could not see why his profits preceding issues of this digest to its practical value, and we hope should not be taxed.
In the result of the case of Pommery v. Apthorpe we see the failure that its success will be commensurate to the labour which has of another attempt to evade payment of income tax upon profits
evidently been bestowed upon it. made in England on the ground that the bosiness was carried on abroad. The points by which it was attempted to distinguish the present case from Tischler y. Apthorpe (33 W. R. 548) were, that here the principal did not regularly spend some months of the year in this country and personally take orders, and that payments were made
CORRESPONDENCE. to the firm abroad. In other respects the circumstances were similar PRELIMINARY EXAMINATION-DISPENSING ORDERS. to those in Tischler v. Apthorpe, and the court held that the cases
[To the Editor of the Solicitors' Journal.] were practicably undistinguishable.
Sir,- May I ask the reason for the existence of this dispensing power? Is it not essential in the interests of the profession and
of the public that solicitors should be men of education and gentleREVIEWS.
If this is so, everyone seeking to become a solicitor should be
obliged, before he enters into articles, to undergo some educational ALLOTMENTS.
test. Most of us will admit that a man who is unable to pass the THE LAW OF ALLOTMENTS. By T. HALL HALL, Barrister-at-Law. Preliminary Examination would be unfit to become a solicitor. Why Longmans, Green, & Co.
should men of no social position-men who, not having received a This is a very careful work upon a subject which has grown much good general education, never could have passed the preliminary or in importance of late years. The author gives the whole history of any similar examination–be allowed to avoid this most necessary legislation and attempted legislation upon his subject from the tin e educational test ? Surely these are the cases where it is most of Queen Elizabeth downwards, and points out that a statute of obvious that the test should be applied. Elizabeth (31 Eliz. c. 7), enacting that no cottage in country districts
H, OUGHTERSON HAYMEN. should be built or maintained “ without four acres of ground, at least, assigned to be continually occupied tberewith,” remained on the Statute Book till 1774, when an Act (15 Geo. 3, c. 32) was passed solely to repeal it. The Act of 1882 is carefully commented on, both in the text and appendix, where it is printed with full intersectional
CASES OF THE WEEK. notes, not unsuccessfully attempting to solve its difficulties of con- PIOKER v. LONDON AND COUNTY BANKING CO. (LIM.) —C. A. struction. Other statutes printed are Sturges Bourne's Act,” 59
No. 1, 7th March. Geo. 3, c. 12, “Weyland's Act,” 2 Will. 4, c. 32, the Inclosure Act, 1845, and the Commons Act, 1876. There is a copious collection of
NEGOTIABLE INSTRUMENTS-Bonds OF FOREIGN State. rules for letting allotments, and other forms. There are frequent Observations upon the general practice, not only of allotment trustees, which he subsequently overdrew. As security for the overdraft he depo? relation to allotments, and much sensible advice is offered to mastees. bankrupt and absconded, and on inquiry it was found that the bonds had We are not surprised to read that “where compulsion has been tried theft, however, the coupons answering to the bonds had not been taken against trustees, the whole machinery of the Act of 1882 has broken but remained in the plaintiff's possession. In an action by the plaintiff down.” We can cordially recommend the book to all interested in its for the recovery of the bonds, it was proved that by Prussian law such subject.
bonds, without the coupons, were negotiable in Prussia, but it was also in
evidence that they were not negotiable, in fact, on either the Prussian or THE LICENSING LAWS.
English Stock Exchange without the coupons. A. L. Smith, J., held
that, inasmuch as by the custom of the English Stock Exchange such A MANUAL OF THE LAW CONCERNING THE RETAILING OF Intoxi- bonds without the coupons did not pass by delivery, they were not nego
By CHRISTOPHER PAGE DEANE, Solicitor. tiable instruments. legislation and of case law” upon the subject of licensing which are elor Deane's plan is "first to marshal in sections all the units of L.JJ.) now upheld this decision. They said that,'even assuming that these
bouds were negotiable in Prussia in the fullest possible sense, that in no supceptible of grouping, and to explain their general effect," and, Liable in this country it was necessary that it should either be expressly
way made them negotiable here. In order to make an instrument negoAlcats, to speak for themselves, with the aid of such few footnotes as always treated as a negotiable instrument. Neither of these requirements onay be useful.” The first part of the book, which constitutes the had been fulfilled, and the mere fact that it was a negotiable instrument treatise, is very carefully written, though there is here and there, in da bereight state recreated ne negotiability in the contemplation of perhaps, too much popularity of style, as where we read of and there ine Englishna wa fecourse, Charles, o.o., and”. R. Francis Bigham, less applicant," and the cross references are too scanty.
Mr. Q.C., and Herbert Reed. Solicitors, Harries, Wilkinson, & Raikes ; Goldberg Deane, however, has frequently given sensible opinions upon points & Langdon. ostatected (with references to all the current reports avec ma ceweketely uuLL, BARNSLEY, AND WEST RIDING RAILWAY CO. «. YORKstated. The appendix contains a collection of statutes, with foo/notes,
SHIRE AND DERBYSHIRE COAL C0.-C. A. No. 1, 2nd and 4th but the absence of cross references here also renders the book less useful than it would otherwise have been, especially to readers
CARRIERS-UNDUE PREFERENCE-AGREEMENT FOR THROUGH TRAFFIC. approaching the difficult subject of licensing for the first time.
In this case the plaintiffs sued for unpaid tolls, and the defendants preference in favour of certain traffic brought by the Midland Railway.
There had been competition between the plaintiffs and the Midland EMDEN'S ANNUAL DIGEST.
Railway for the carriage of coals to Hull, and eventually rates were THE COMPLETE ANNUAL DIGEST OF EVERY REPORTED CASE IN ALL
assimilated for a group of collieries in connection with the two railways at 2s. 10d. a ton, and an agreement was come to, under section 87 of the Rail
At the time of the
short, but, considering its brevity, very good.
way Clauses Consolidation Act, 1845, for the carriage of through traffic upou lant intend to rely on now ? He said that the limitations of which he comthat basis. The plaintiffs, under that agreement, received less for the plained were introduced into the deed by a fraud practised on Sir Charles carriage of coals to Hull from a station adjoining the defendants' colliery, Goring by the solicitor, in concert with Sir H. D. Goring's second wife, Sir and in connection also with the Midland Railway system, than they Charles having been induced to execute the deed in the belief that he was demanded from the defendants for carriage from their colliery to Hull. thereby settling the estates to accompany the baronetcy. But for the
The Court (Lord Esher, M.R., Bowen and Fry, L JJ.) held that, by omission of any limitations in his favour in the resettlement and the the words of the statute, agreements for through traffic come to by railway insertion of other limitations, the appellant would have got the estates companies under sections 87 and 88 of the Railway Clauses Act of 1845 with the title. In his lordship's opinion, the case made was not against were excluded from the provisions as to undue preference contained in the solicitor as principal, but it was that Lady Goring by his means section 90.- COUNSBL, Charles, Q C., Barker, and Gould ; Forbes, Q.O., and induced Sir Charles to execute the settlement. The allegations in the Sutton. SOLICITORS, Geare, Son, f Pease, for Wake f Sons, Sheffield; A. R. statement of claim in Goring v. Goring came to this—that Lady Goring, by Oldman, for Lowe, Moss, $ Co., Kingston-upon-Hull.
fraud, and with the assistance of the solicitor, induced Sir Charles to exe.
cute the resettlement in ignorance of its effect. That was really the GORING v. LLOYD–C. A. No. 2, 9th March.
same thing as that which was alleged now. Any evidence in support of
the present allegation would have been admissible in support of the claim EsTOPPEL-RES JUDICATA-JUDGMENT BY CONSENT IN FORMER ACTION.
made in Goring v. Goring. There was no allegation against the solicitor The question in this case was whether the appellant was, by reason of as a principal. If the question was one of estoppel or res judicata it would a judgment, to which he had consented, dismissing a former action be wrong to allow the appellant now to institute any fresh proceeding to brought by him to set aside a settlement of certain estates executed in set aside the settlement of 1850. The rule stated by Lord Cairns in February, 1850, estepped from bringing an action of ejectment to recover The Phosphate Sewage Co. v. Molleson (4 App. Cas. 801), applied-viz., that those estates. The appeal was against the refusal by Kay, J., of a motion an unsuccessful party could not be allowed to reopen the litigation by by Sir Craven Goring that, notwithstanding an order made in this action merely saying that since the former litigation there was another fact appointing a receiver of the rents and profits of the estates comprised in going exactly in the same direction with the facts stated before, and the settlement, he might be at liberty to continue an action of ejectment leading up to the same relief which he had asked before. The only way in the Queen's Bench Division which he had commenced to recover the in which that could be admitted would be if the litigant could shew that estates. The estates were in 1828 limited in strict settlement to Sir C. F. the new fact entirely changed the aspect of the case, and that it had not Goring for life, with remainder to his son H. D. Goring for life, with re- and could not by reasonable diligence have been ascertained by him mainder to his first and other sons successively in tail male, with remainder before. But the present case did not rest there. The appellant had in to the Rev. Charles Goring (another son of Sir C. F. Goring) for life, with the former action every opportunity of investigating the matter, and he remainder to his first and other sons successively in tail male, with divers then submitted not to prosecute his action, if the defendants would remainders over. Sir C. F. Goring died in 1844, and was succeeded in relieve him from the payment of costs, and by consent a judgment was the baronetcy by his son H. D. Goring. Sir H. D. Goring had one son,
taken as at the trial of the action. In his lordship's opinion a Charles Goring, and on February 1, 1850, on the occasion of his marriage, consent order stood on the same footing as a release. If, after they executed a disentailing deed, and on February 9 a resettlement, executing a release, a person discovered matters which were whereby the estates were limited to Sir H. D. Goring and his son Charles entirely unknown to him before, he might be able to set up a successively for life, with remainder to the first and other sons of Charles fresh claim. But the appellant did not say that he had discovered any successively in tail male, with remainder to the daughters of Sir H. D. new fact since he consented to the judgment, and it might well be that all Goring and his son Charles equally in tail, with cross remainders between the facts were known to him then. He ought to satisfy the court, not them in tail.
Şir H. D. Goring died in 1859, and his son Charles then only that he did not know the facts then, but that he could not by the use became Sir Charles Goring He died on November 3, 1884, without issue, of reasonable diligence have discovered them. LINDLEY, L.J., said that and was succeeded in the title by Sir Craven Goring, the eldest son of the the effect of the consent judgment was that the appellant consented to Rev. Charles Goring, who had died in August, 1859. On November 7, treat the deed of 1850 as unimpeachable. His case for upsetting that 1884, one of the five daughters of Sir H. D. Goring, three of them being deed was now precisely the same as it was then, with a slight variation, by a second wife, brought an action against her four sisters for the execu and there was no ground for allowing him to reopen the matter. To do so tion of the provisions of the settlement of 1850, and on November 10, would be contrary to all principle and to good faith. Lopes, L.J., said 1884, an order was made appointing a receiver, In February, 1885, Sir that in both the proceedings it was alleged that a fraud was committed by Craven Goring, who, by the resettlement in 1850, had lost the right, given the same persons, upon the same persons, for the same purpose, and with to him by the settlement of 1828, of succession to the estates, brought an the same result. The only difference was that the solicitor was now more action (Goring v. Goring) against his cousins, the daughters of Sir H. D. pointedly indicated than in the former action, but this was only a fresh Goring, and their trustees, to set aside the settlement of 1850, on the ingredient tending to prove the same fraud which was alleged in the ground that Sir H. D. Goring was at the time of its execution in a feeble former action. His lordship was satisfied to rest his judgment on the condition of mind, and that he and his son were induced to execute the question of estoppel, without expressing an opinion on any other point.deed through the undue influence of Sir H. D. Goring's second wife, COUNSEL, Sir E. Clarke, S.G., Cookson, Q.O., Dr. Tristram, and S. Hall ; whom he married in 1842. On January 30, 1886, an order was Sir H. Davey, Q.C., Horton Smith, Q.C., and Ingle Joyce. SOLICITORS, made in this action by consent, on a motion treated as the trial Brooks, Jenkins, & Co.; Gregory, Rowcliffes, f Co. of the action, dismissing the action without costs. In December, 1886, Sir Craven Goring commenced the action of ejectment against the persons
Re GREY, ACASON v. GREENWOOD—0. A. No. 2, 8th March. interested in the estates under the resettlement of 1850 and the tenants Will-CONSTRUCTION–MARRIED WOMAN-RESTRAINT ON ANTICIPATION. of the estates. That action was brougbt in ignorance of the fact that a receiver had been appointed in Goring v. Lloyd. Afterwards Sir Craven
This was an appeal from the decision of North, J. (ante, p. 28, 34 Ch. Charles Goring moved in the latter action for leave to continue the eject- D: 85). The question was as to the construction of an appointment by ment action. Kay, J., refused the motion, upon the ground that the will to a married woman, which purported to be subject to a restraint issues raised by the action of ejectment were identical with those raised
on anticipation. The testator had, under a settlement, a power to by Goring v. Goring. After the hearing by Kay, J., Sir Craven Goring appoint by will certain funds among his children. He had four children. filed an affidavit, in which he said that the fraud on which he relied in the By his will he, in exercise of the power, directed that £1,500, part of the ejectment action was that the provisions in the resettlement of 1850, by funds, should be paid to bis daugher F. absolutely, for her sole and which the estates were limited to the sisters and half-sisters of Sir Charles separate use, and without power of anticipation during any coverture. Goring were introduced into that deed by a fraud practised on him by his daughter s., the wife of M., absolutely. And he directed that all and the solicitor (since dead) who prepared it, in co by the solicitor to execute the deed in the belief that he was thereby absolutely, for her sole and separate use, and without power of antica (also, since dead) of Sir H. D. Goring, Sir Charles having been induced every the residue of the funds should go and be held upon the following appeal it was urged that Goring v. Goring was not founded on fraud, and pation during any coverture. The daughter F. afterwards married. G.
In Gering v. Gering the fraud alleged was one practised on Sir H. D. Goring the un, paid to her on Her separate receipt. It was urged that for by his second wife ; in the ejectment the fraud alleged was practised by words "without power of anticipation
one-fourth share of the residue, which was appointed in her favour by the solicitor upon Sir Charles Goring.
The Court of Appeal (Corton, Lindley, and Lopes, L.JJ.) affirmed F. “absolutely.". North, J., was of opinion that there was no such rethe decision: Corton, L.J., said that Goring v. Goring was brought on the pugnancy, the direction being that the one-fourth share was to be held on deed of 1850, and that that deed ought to be set aside wholly or in part. the income to her as it accrued due for her separate use. footing that there had been no valid resettlement of the estates by the trust for the daughter, which, he said, meant that the trustees were to
retain the share during the time she was under coverture, and only pay The object of the ejectment action was to set aside the settlement of 1850,
The Court of APPEAL (Cotton, LINDLEY, and Lopes, L.JJ.) affirmed the was not founded upon fraud. No doubt the word “fraud” was not used in the pleadings, but the case made was essentially one of fraud_that testator had indicated an intention that only the income was to be paid knowing what it contained, and that Sir Charles, the tenant in tamil, also will. --Counsel, Sladen ; Vaughan Hawkins; Bramley. SOLICITORS, S. K. executed it without knowing what it contained-i.e., not knowing that in Langham; Wright & Pilley. a certain event it would carry the estates in a different way from the title.
FENNESSY v. RABBITS & SONS-Kay, J., 4th March. a way that, though a plea of non est factum could not be pleaded as to Practice–Right to Trial by Jury_DISCRETION or Court—R. 8. C., either the tenant for life or the tenant in tail, there were equitable grounds for ketting it aside either wholly or in part. What did the appel
1883, XXXVI., 4, 6. This case raised a question as to the right of a plaintiff, who has
brought the action in the Chancery Division, to have it transferred to the KAY, J., held that the defence, though commendably brief, did not in Queen's Bench Division and tried with a jury. The action was brought any way object to, or put in issue, the allegation in the statement of to restrain the defendants, their servants and agents, from selling any claim as to the registration. The meaning of section 16 was clear, and if articles, not made by the plaintiff, as if they were of the plaintiff's make, he were to allow the defendant to rely on his objection the plaintiff might or holding out to the public that articles sold by them were the same complain of having been surprised—but for this, that in the affidavit of article as “Brown's Satin Polish,” of which the plaintiff was manu the defendant, filed before the date of the statement of claim, the objec. facturer, and claimed an account of profits or damages at the option of tion was suggested. Now the case of Finnegan v. James (23 W. R. 373, the plaintiff. The defendants submitted to a perpetual injunction as claimed, 19 Eq. 72) decided that, if the objection were stated in the defence, the and paid into court £100 by way of satisfaction of the claim for an account notice in writing was unnecessary. So that, if it were not so stated, a or damages. The plaintiff did not consider this sum sufficient, and he now notice given at about the same time would suffice. But he did not conmoved for an order that the action should be tried by a jury, and that it sider the affidavit as a sufficient notice under section 16. Still the case might, for that purpose, be transferred to the Queen's Bench Division. was one where the court ought to enable the defendant, by amending his His coupsel waived at the bar the claim for an account. In opposition to defence, to raise the objection; but, as the effect of the amendent might the motion it was contended that the case did not come under ord. 36, r. be to make the plaintiff's case fail on technical grounds, the indulgence 6, so as to give the plaintiff an absolute right to a trial by a jury, but that ought to be granted on the terms that the defendant was not to raise any the court had a discretion, and that, under the circumstances of the case, objection to the plaintiff proving the registration of his copyright made the motion ought to be refused. Rule 6 began with the words, “In any since action brought, nor raise any objection on the ground that such other cause or matter," and in the case of The Temple Bar (34 W. R. 68, 11 registration was not made before action.-COUNSEL, Aston, Q C., and CarpP. D. 6) those words had been held to exclude from the operation of rule mael; Marten, Q.C.. and Statham. SOLICITORS, Wilson, Bristowes, $ Carp6 the causes or matters referred to in rules 4 and 5. And the question of mael; J. C. F. Barfield. damages, which was all that remained to be tried in the present action, came within rule 4, for it was a question or issue of fact arising Re COUNTESS OF DUDLEY'S AND LONDON AND NORTH. in a cause or matter which, previously to the passing of the Judicature
WESTERN RAILWAY CO.'S CONTRACT—Chitty, J., 9th March. Act could, without any consent of the parties, have been tried without a jury. That the present action could, previously to the Judicature Act, SETTLED LAND Act, 1882, s. 2, SUB-SECTION 8; s. 38; s. 45; s. 60 — have been so tried, was shewn by the cases of West v. White (25 W. R.
INFANT TENANT FOR LIFE" TRUSTEES OF THE SETTLEMENT.” 342, 4 Ch. D. 631) and Bordier v. Burrell (25 W. R. 801, 5 Ch. D. 512). In this case, being a summons under the Vendor and Purchaser Act, The damages could be easily assessed in the chambers of the Chancery 1874, the question arose as to whether, in the case of an order by the Division.
court under the Settled Land Act, 1882, s. 60, appointing persons on KAY, J., said he had no doubt in the matter. It was argued that behalf of an infant tenant for life to exercise the powers of a tenant for the court had a discretion, the case being within rule 4, but he could not life under the Act, it is necessary that trustees for the purposes of the assent to that. The rule was merely a repetition of ord. 36, r. 26, of the Act, under section 38, should also be appointed to receive notices, &c., Rules of 1875, under which it was decided, in the case of Re Martin, Hunt under section 45, and the Amendment Act, 1884, s. 5. It appeared that 1. Chambers (30 W. R. 527, 20 Ch. D. 365), that, in a cause not specially the present Earl of Dudley, who was an infant, was tenant in tail in assigned to the Chancery Division, a party has the right, without giving possession of certain settled estates, and that, under the settlement, in any reason, to have his case tried before a jury. It was said that the the events which had occurred, there were no trustees with power of sale. case of The Temple Bar decided otherwise. But that was an action in rem, An order had been obtained, under section 60, appointing the guardians and no doubt was within rule 4, as a case which it had been the prac of the infant to exercise, on his behalf, the powers of a tenant for life tice of the Admiralty Court, without the consent of the parties, to try under the Settled Land Acts, 1882-84, in relation to a sale of part of the without a jury. It was now sought. by means of that decision, to bring settled land to the London and North-Western Railway Co. at a price within rule 4 any case in which there was an issue of fact or law which specified in the order, and giving the guardians liberty to receive, in the could, without the consent of the parties, have been tried before the first instance, the purchase-money; and the order proceeded to give the Judicature Act without a jury. That would give the court a discretion in guardians generally powers of acting for the infant under the Act, subject every imaginable case. His lordship did not so read rule 4. He read it, to the sanction of the judge. It was admitted by the parties that the as he believed it had always been read, as applying to a case where there order was wrong in not directing the purchase-money to be paid into was an issue separately ordered to be tried in the action, in which case the court; and it was also submitted that a sale could not be validly made court had power to direct how that issue should be tried. Therefore, as under the order unless trustees under section 38 were also appointed. at present advised, he did not think that this was a case in wbich the CHITTY, J., said that, in ordinary cases under the Act, the giving of court had a discretion. But if it had, he was equally of opinion, on the notice to the trustees of the settlement was a condition precedent to the facts, that as it was a question of damages only, a jury was the better exercise of powers under the Act. That was so in the cases of the exercise tribunal for deciding it, and he accordingly ordered the action to be of powers by a married woman tenant for life (section 61) or committee transferred to the Queen's Bench Division.--COUNSEL, Moulton, Q.O., and of a lunatic tenant for life (section 62). It was to be observed that section Roger Wallace ; Solomon (Murphy, Q.O., with him). 'SOLICITORS, Burn 60, which dealt with the case of an infant tenant for life, was incorporated Berridge; Turner & Low.
in the same division of the Act (xiv.) as sections 61 and 62, dealing re
spectively with married women and lunatic tenants for life. Section 60 HAYWARD v. LELY-Kay, J., 8th March.
provided that in the case of a tenant for life an infant, the powers might COPYRIGHT— PRACTICE–INFRINGEMENT-NOTICE BY DEPENDANT OF OBJEC be exercised on his behalf by the trustees of the settlement, and, if there TION TO REGISTRATION-5 & 6 Vict. c. 45, s. 16.
were none, then by such person and in such manner as the court, on the
application of the infant's guardian or next friend, either generally or in In this case, which was an action to restrain the infringement of copy- a particular instance, ordered. In his opinion the words in section 60, right in an illustrated catalogue registered at Stationers' Hall on the 13th “Trustees of the settlement," must be held to be larger than those con. of October, 1885, the question was raised as to what notice by the tained in the definition clause, section 2, sub-section 8, or, in other words, defendant of objections to the registration is suficient, under section 16 that they included trustees for the purposes of the Act" mentioned in sec. of 5 & 6 Vict. c. 45, to enable him to rely thereon at the trial. The writ tion 38. The result was that it was not necessary in the present case that any balas issued on the 28th of April, 1886, and on the 14th of May the trustees should be appointed under section 38, and, having regard to the plaintiff moved for and obtained an interlocutory injunction. On this terms of the order conferring a power of sale as to the particular part of mention the defendant filed an affidavit in which he stated that, when pre- the settled estate, it was not necessary that any notice should be given. printers, he had before him an illustrated catalogue of the plaintiff's were appointed under section 38, the powers of such trustees would, under published in 1880, and another published in 1882, and he denied that his the first part of section 60, override or supersede the powers conferred on catalogue was an imitation of that of the plaintiff registered in 1885, but the guardians by the order. That particular difficulty might be got over those contained in the catalogues of 1880 and 1882. The statement of claim, delivered on the 20th of May, alleged that the defendant had in to the particular lands. He, however, held that no appointment of 0.0mm of which was made in the book of registry of the Stationers Bund. SOLICITORS, C. H. Mason ; 'Benbow, Saltwell, & Tryon. May, alleged (1) that the plaintiff was not the author of the illustrated Re PAYNE, REA v. ASHMEAD-North, J., 24th February. platined the copyright therein. I mat the hearing the descendants heed the WILL CONSTRUCTION–Errect or Restovary Gipr–Codicil–Revocation plaintiff had proved the registration of his catalogue, the defendant pro
-Gift VoID FOR UNCERTAINTY. posed to shew by cross-examination that the plaintiff had published a A testatrix, by her will, after making some specific bequests and to make the registration bad (Thomas v. Turner, 35 W. R. 177, 33 Ch. D. 22. This was objected to by the plaintift” on the ground that the following legacies.
executors will receive £900 from N., and then my executors can pay the
She then bequeathed legacies amounting to £1,375, maeneo which requires that, in any action against any person for infringe the grandchildren of M." ment of copyright, the defendant, on pleading thereto, shall give the
At the date of the will the testatrix was the
owner in fee simple of a freehold house called L, and she had entered en la provides that otherwise the detention that he the intende tot el mes generals and the agreement provided that he should purchase the fee simple of the recomencetment of on, here pleintier headli di cince the theaters to happen at this agreement were not carried out, and after it het
fallen through the testatrix made a codicil, in which she stated that, not