SEPARATE ESTATE.

THE decision recently pronounced by the Court of Appeal, in the case of Pike v. Fitzgibbon (noted ante, p. 407), may be taken to have settled the law, and to have carried the principle of protecting the property of married women to the furthest limit for which its advocates have contended. It is not likely that any attempt will be made to shake that decision. Nor is it likely that, if the attempt were made, it would be successful. It does not necessarily follow that we must regard the law as it is now settled as being the wisest and best possible; but we are quite disposed to think that change, if change be desirable, can now be effected only by legislation. Nor are we at all disposed to deny that, in coming to the conclusion at which they arrived, the Court of Appeal were more closely in accordance with the spirit of previous decisions than they would have been if they had decided differently.

At the same time it can hardly be denied that the English legal system, while nominally carrying marital rights over the wife's property to an extent which is startling to the eyes of a foreigner, does in fact provide methods by which such property can be tied up with far greater strictness than would be tolerated by any foreign code. The devices of the Court of Chancery, in this case as in some others, have ended by carrying the reformation of the law much further than any one would have proposed to carry it if it had been made a subject of positive legislation. The legislative attempts which have been made of late years to give married women a legal title to their property independently of settlements have no place in them for devices in restraint of anticipation; and it may confidently be predicted that, if the whole subject is ever comprehensively dealt with by the Legislature, the result will be to leave the property of married women much more easily open to the assaults of their creditors than it is at present.

There were in Pike v. Fitzgibbon two salient points for decision, both of great importance, and each quite distinct from the other. At the time when she contracted the obligation under which she was sued by Messrs. Pike & Howden, Lady Louisa Fitzgibbon was entitled to two separate properties, as to one of which she was entitled in possession, and as to other she was entitled only in expectation; but as to the former she was restrained from anticipation, while as to the latter she was not so restrained; and in respect of the former she was bound, if at all, only by a general covenant to pay the sums advanced with interest, while as to the latter she purported to have bound herself, not only by a general covenant, but by a direct charge or mortgage given upon the property. The action was commenced in 1878, during the lifetime of Lady Louisa's husband, when any attempt to affect the property restrained from anticipation was evidently hopeless. But the husband died pending the action, and Vice-Chancellor Malins, holding that his death had put an end for all purposes to the restraint, declared that the whole of Lady Louisa's property, including that as to which during coverture she was restrained from anticipation, was chargeable with the sums claimed (28 W. R. 667). The decision, it will be seen, involved two very distinct questions:-(1) Can the general covenant of a married woman affect her separate estate, to which she was entitled in possession, but with restraint from anticipation at the date of the covenant, and which she still retains at the date of the judgment, provided that the restraint has been relaxed by the death of her husband in the interval between those two dates? (2) Can the general covenant and also the express charge of a married woman affect her separate estate, to which she was entitled only in expectation, but without any restraint, at the date of contracting the obligation, and to which she is entitled in possession at the date of the judgment? Both these

questions have been answered in the negative, although it appears that only the former was raised by the notice of appeal. A restraint from anticipation, or a want of title in possession, at the time of contracting the obligation, are both equally fatal obstacles to the establishment of a claim against separate estate.

The language of Lord Eldon in Brandon v. Robinson (18 Ves. 429, at p. 434, where he tells us, for the fourth or fifth time, how Lord Thurlow invented the restraint clause to improve Miss Watson's marriage settlement, of which he was a trustee) displays very clearly his view of the theory upon which the whole doctrine of separate estate rested. It depended entirely upon the wife's power to give a sufficient discharge to the trustee by means of her separate receipt, and was exactly commensurate with that power. He thus explains both the power of the wife to bind her separate estate by a charge in cases where she was not restrained from anticipation, and also her powerlessness to contract any obligation in respect of it or to alienate it in cases where she was so restrained. In the former case, the court gave effect to the assignment, upon the principle that the assignee had a right, which the court would enforce, to call upon the wife to give effect to her assignment by releasing the trustee. In the latter case,

the fact that she could give no receipt by way of anticipation, but only in respect of income which had actually accrued, was the reason why no charge affecting to bind the restrained estate could take effect. If the law of separate estate, as built up by the Court of Chancery, is to be regarded as resting upon a definite principle instead of vague generalities, it would be difficult to lay down a principle more comprehensive and plausible than this. And it is difficult to see how the Court of Appeal, in Pike v. Fitzgibbon, could have come to any other conclusion without entirely repudiating Lord Eldon's reasoning.

THE IRISH LAND BILL.

II.

WE described in our last article the process by which the ancient tenure by tanistry was, under the Norman colonists, gradually converted into a species of villenage, a difference, however, which was almost imperceptible to the clansmen, who found their practical "grip of the land" unaffected thereby, at any rate, for the worse. In the natural course of events this tenure would probably have ripened, as a similar condition of things had done in England, into a well-defined system of copyhold; and this would, in its turn, have probably been converted, by process of enfranchisement or otherwise, into a system of fee-farm holdings, as has actually taken place in the case of the nearest approach to customary tenure which was permitted to run its natural course in Ireland-the renewable leaseholds. (That the outcome of such a system must necessarily have been the creation, by contract, of agricultural tenancies for short terms or from year to year, does not affect the question: it may be admitted that this system is the most advantageousas it certainly is the most theoretically perfect-upon which land can be occupied for agricultural purposes, but the manner in which, as matter of history, it has been arrived at must always exercise a powerful influence over its fitness for the requirements of any particular society.) But two causes, very different in their nature, combined to prevent this result. In the first place, the English Government, shortly after the accession of Henry VII., wakened up to the fact that its suzerainty in Ireland, hitherto scarcely more than nominal, was in danger of disappearing altogether. Hence resulted a sudden access of centralization on the part of the Government, the weight of which was first felt by the turbulent Norman nobles who had beer accustomed

to undisputed irresponsible rule over their territories,* and thus provoked successive acts of "rebellion" which, beginning with the execution of the "six Geraldines in the reign of Henry VIII., and ending with the destruction of the Earldom of Desmond under Elizabeth, introduced, over the whole of the colonized territory, a new generation of settlers, who had nothing in common either with the early "conquerors” or the original inhabitants. And the suppression, at the end of the sixteenth century, of the last remaining vestige of independent authority, by the overthrow of the Earl of Tyrone, brought forcibly to the notice of the people a new, and entirely unsuspected, legal result of the peculiar conditions of their tenure. For while, on the one hand, the relation of lord and vassal, which subsisted between the Crown and the Earl, naturally involved the forfeiture of all his lands on the failure of his insurrection, the people were, on the other hand, deprived of the protection which the same feudal relation could have afforded them, by the fact that the immediate freehold of all the land was vested in the chieftain personally. In other words, had the tenure by tanistry been recognized in its entirety, the attainder of one chieftain would only have transferred the land to his successor, on behalf of the tribe; had the actual tenants been recognized as feudally "seised," they would have been entitled, on condition of attornment and fealty to the Crown as the new grantees, to remain in possession of their freeholds; as it was the forfeiture of the chief entailed the actual expulsion of the bulk of the people from their homes, and the settlement, on a vast extent of country, of an entirely new population. It is not material to our purpose to discuss the details of the settlement thus effected: roughly stated, "the six counties were granted by the Crown to certain "adventurers," principally military officers, and to a number of the great London companies, upon certain very stringent conditions as to settlement thereon of specified numbers of Scotch or English immigrants: and these latter were attracted in the requisite numbers by the offer of a new, and peculiarly complicated, interest in the land, in the shape of leases for lives containing a covenant for perpetual renewal. The holders of these leases were obviously the practical owners of the land, subject only to the payment of the rent and fines, and this tenure, which was in effect a 66 copyhold by contract has since been converted by Act of Parliament into a tenure in fee-farm, subject to a slightly enhanced rent to cover the loss of the fines upon renewal.

66

It might, not unreasonably, have been anticipated that such a land system as this would have covered the country with a 'peasant proprietory" of the most satisfactory nature, holding the original allotments, unaltered or but slightly modified in extent, and in the numbers fixed by the Ordinance of James I. as sufficient for the entire population of the district. The action of natural economical laws is not, however, so easily set aside, and the ownership of the land subject to these leases became slowly but steadily concentrated, sometimes by purchase by the reversioner, oftener by the ordinary course of the market, sometimes, but very rarely, by forfeiture for breach of condition; so that the existing fee-farm tenants, instead of being the actual cultivators of the soil, belong, with rare exceptions, to the "landlord" class, of whom indeed they form, in the counties in question, the most numerous part.

Throughout the rest of Ireland the process was somewhat different, but the ultimate outcome was the same: the grantees of the forfeited lands let them upon long leases-originally generally for ninety-nine years, but afterwards more usually for "thirty-one years and three lives"-to "middle-men," who, in their turn, sub-let to

The character of this rule is well illustrated by the story told of the Earl of Ormond (the most consistently loyal of all Norman familie-), who hanged the King's judges from the window of the courthouse in Clonmel for daring "to bring the King's writ into" his Palatinate.

the actual occupiers: throughout the south and west, however, these last were ordinarily the original inhabitants (not, as in the north, the descendants of new settlers), and to these men the changes in their legal relation to the land were res inter alios actæ, the one thing ever present to their minds being the fact that they were still in occupation (not indeed of the same lauds, but) of farms in the same district in which their fathers had from time immemorial been located, and on very much the same terms, so far as they were able to appreciate them.

The other cause which, as remarked above, tended to prevent the establishment of a customary tenancy in Ireland, was the astounding discovery made by the courts of law early in the eighteenth century, that, inasmuch as all existing tenancy in Ireland had admittedly originated after the commencement of legal memory (which had commenced before the introduction of English law into the island), therefore, no custom connected with the tenure of land could by any possibility have a legal origin capable of enforcement. The necessary result of this doctrine was to prevent the natural growth of those modifications in the incidents of tenure which would have adapted the law to the genius of the people and the requirements of the time, or, at least, when such modifications naturally arose, to leave the party-whichever it might be-who desired to rely upon them, absolutely dependent on the good faith and good feeling of the other.

The course of events described had so far proceeded by the middle of the eighteenth century, that, while the ultimate freehold of the land of Ireland was concentrated in comparatively few hands, their immediate tenants were a numerous, but steadily diminishing, body of leaseholders, either for long terms, or, practically, for ever, beneath whom, again, came the actual cultivators of the soil, even then in inconveniently large numbers (relatively to the productive power of the land), with a tenure legally of the most precarious nature, actually, in most cases, one on sufferance merely (for few, if any, of them could ever have paid the arrears of rent due from them, if demanded), and yet practically in continuous, almost hereditary, occupation. The course of political events, however, about that time, made it the interest of the landowners to encourage the multiplication of freehold tenancies, and at the same time, as far as possible, preserve their ascendancy over the tenantry thus created, with results which will be shortly mentioned in our next article.

DISCLAIMER OF LEASES UNDER THE BANKRUPTCY BILL.

I.

THE new disclaimer clause is, no doubt, a great improvement upon that in the Act of 1869. It is no longer pro. vided that upon the execution of the disclaimer the property disclaimed shall, if the same is a lease, be deemed to have been surrendered, but the property “if a lease, shall be deemed to have determined at the same date [ie, the order of adjudication], so far as regards the interest of the bankrupt therein, and the liability of himself and his property, and the trustee, to the porformance of the covenants and conditions thereof, . and shall (unless the court otherwise order) pass to the person (if any) entitled thereto on the determination of the estate interest of the bankrupt therein, but in no case

or

shall any estate or interest or liability therein or thereunder remain in the bankrupt.” The disclaimer is not to prejudice any act "previously done in good faith by the trustee in reference to the disclaimed property." The provision of section 24 of the present Act, as to notice to the trustee to disclaim, is repeated. The effect of Reed v. Harvey (28 W. R. 423) is done away with by providing in the Bill, instead of by rules, that "a trustee shall not be entitled

It is

to disclaim a lease without the leave of the court." also provided that" the court may, on application by any person claiming any interest in any disclaimed leasehold property, make an order for payment, either by the trustee personally, or out of the bankrupt's property, of such sum as it thinks fit, in respect of the breach of any covenant relating to the leasehold property and running with the land, provided that the breach has -occurred with the knowledge of the trustee and before the date of the disclaimer." And sub-clause (8) provides that "the court may, on application by any person claiming any interest in any disclaimed property, and on hearing such persons as it thinks fit, make an order for the vesting of the property or delivery thereof (with any deeds or documents relating thereto) to any person entitled thereto, or a trustee for him, and on such terms as the court thinks just; and on any such vesting order being made, the property comprised therein shall vest accordingly in the person therein named on that behalf, without any con. veyance or assignment for the purpose, and any such vesting order shall not be liable to stamp duty.' finally, the clause of the present Act as to proof by And, persons injured by the disclaimer is repeated.

66

The effect of these provisions will, so far as we can see, be this :-Upon the disclaimer of a lease by a trustee all interest and liability of the bankrupt and trustee under the lease will cease, and the 'property disclaimed " [the draftsman's English in sub-clause (d) is peculiar, but this must be the meaning] will (unless the court otherwise orders) pass to the person entitled thereto on the determination of the estate or interest of the bank

rupt therein." The "property disclaimed" is the estate and interest of the bankrupt in the lease; the person entitled to the estate and interest of the bankrupt on the determination of his lease must be the lessor. On

CORRESPONDENCE.

CALL OF SOLICITORS TO THE BAR.

[To the Editor of the Solicitors' Journal.] Sir, I should be glad if you would kindly publish the following correspondence, and thus enable me publicly to answer the numerous inquiries constantly being made of me as to the position of this question, in which such great interest is taken. Gray's-inn, April 26. J. PERRY GODFREY.

[The following is the correspondence referred to :Gray's-inn, March 12, 1881. To John M. Clabon, Esq., President of the Incorporated Law Society.

Sir, From correspondence and interviews I have had with many members of the junior branch of the legal profession, and inquiries made of me, I venture to predict that if the regulations of the Inns of Court are only altered as suggested by those societies, such alteration would not be favourably received, and it is hoped that the council of the Law Society will reject the proposition, and accept such terms only as give to solicitors corresponding advantages to those enjoyed by barristers desirous of changing from one branch to the other. It were better that we took no concession from the Inns of Court than that we should accept an unsatisfactory proposition, as in so doing we should be only weakening our hands in presently applying for legislative enactannual meeting of the Incorporated Law Society, and ment upon the subject, as determined upon at the last also at the annual provincial meeting of the same society held at Sheffield last year.

To compel a solicitor after many years' practice, and

on

the estate and interest of the bankrupt in the lease will pass to the lessor. If there is no sub-lease, there will be an end of the matter. If there is a sub-lease, the sub. lessee may apply to the court for an order vesting the property in him as "a person entitled thereto " equitable terms. If he does so apply, and the court makes an order, there is again an end of the matter. But suppose the sub-lessee-a mortgagee, or a person holding a sub-lease at a peppercorn rent, says, "I will not apply to the court; I will stand on my legal rights," what then is to be done? The clause appears to contain nothing to interfere with his legal rights, for, as we have seen, it is only the "interest" of the bankrupt which is to cease and to pass (in the absence of any order of the court) to the lessor. Moreover, after the merger of the bankrupt lessee's reversion on the sub-lease in the reversion of the lessor, the provision of 8 & 9 Vict. c. 106, s. 9, would seem to apply, and, the reversion expectant on the sub-lease having merged, the estate of the lessor will," to the extent and for the purpose of preserving such incidents to, and obligations on, the same reversion, as, but for the merger thereof, would have subsisted, be deemed the reversion expectant" on the sub-lease.

If we are right in this view, (which, it will be understood, we merely state as a query, since it is difficult to suppose that the framers of the Bill can have overlooked the effect of the Act of 8 & 9 Vict.), the result will be that, if no order is made by the court, the lessor may be saddled with a sub-lease for all the term, less one day, at no rent, and with no covenants. It is no answer to say that the landlord may apply to the court for ar order vesting the property in the sub-lessee at the original rent and subject to the original covenants; as the clause stands, there appears to be nothing to prevent the sub-lessee from refusing to accept the property vested in him by the order of the court. This is an agreeable prospect for the lessor. How the clause should be amended we shall consider next week.

April 2.

any provisions thereinbefore contained with respect to winding up companies by the court, and there is a proviso that "an unregistered company shall not, except in the event of its being wound up, be deemed to be a company under this Act." In the present case the defendant company was not registered under the Act of 1862. The action was brought by the mortgagee of a policy which had been granted by the company on the life of a person who was dead. The mortgagor was made a co-defendant. The company ultimately abandoned their defence to the action, and consented to the policy-money, which had been paid into court, being paid out to the plaintiff. An order was also made for payment of the plaintiff's costs by the company. This was on the 6th of August. The mortgagor had taken out a aummons for the payment of his costs. This was resisted by the company, on the ground that the mortgagor was not a necessary party, and the hearing of the summons was adjourned till after the long vacation. At the end of October a petition was presented for the winding up of the company, and a winding-up order was made by Hall, V.C., on the 19th of November. On the 24th of November this order was discharged by the Court of Appeal, and the petition was ordered to stand over, with a view to the arrangement of the company's affairs under section 22 of the Life Assurance Companies Act of 1870. On the 3rd of December the mortgagor's summons was heard by Bacon, V. C., and an order was made that the plaintiff should pay the mortgagor's costs, and should recover them from the company. The plaintiff paid these costs, and then, not having been repaid by the company, issued execution against them for the amount. The company then applied to Bacon, V.C., to stay the execution. The Vice-Chancellor refused the application, on the ground that, by virtue of the proviso at the end of section 204, the provisions of the Act, and of section 85 in particular, did not extend to an unregistered company until an order had been made to wind it up, because such a company was not to be deemed a company under the Act, except in the event of its being wound up. The Court of Appeal (JESSEL, M.R., and BAGGALLAY and Lush, L.JJ.) differed from the Vice-Chancellor on this point, JESSEL, M.R., said that the Vice-Chancellor read the words "being wound up" in section 204 as if they had been "having been wound up." This construction would make the Act hopelessly unworkable; an unregistered company could not be wound up under it at all. What was meant was that an unregistered company should not be deemed to be a company under the Act except for the purpose of proceedings to wind it up, and the jurisdiction under section 85 must apply to an unregistered company, as well as to a registered company. But the Vice-Chancellor's decision was affirmed on a different ground. JESSEL, M.R., said that the company might, on the hearing of the mortgagor's summons, have taken the objection that the pendency of the winding-up petition was an answer to the application, or they might have applied themselves to stay the proceedings. They did not do this, but they allowed the order to be made, and the result of it was that the plaintiff's position had been materially changed, and by the act of the company. The order made her liable to pay the mortgagor's costs, but on the terms of getting them back from the company. If she could not enforce her execution, she would only get a dividend on the costs which she had paid to the mortgagor, and this would be very unjust to her. The court had a discretion under section 65, and ought to exercise it in favour of the plaintiff by allowing her to enforce her execution. JESSEL, M.R., also took the opportunity of stating that, in the opinion of himself and the Lords Justices, the proper practice now, since the Judicature Act, in a case where costs are to be given to a formal co-defendant, which it is intended shall be ultimately paid by the principal defendant, is not, as was done under the old practice of the Court of Chancery, to order the plaintiff to pay the costs, and giving him a right to recover them from the principal defendant, but to make a direct order for the payment of the costs by the principal defendant. Otherwise, if the principal defendant happened to be insolvent, the plaintiff would have to pay the codefendant's costs, and would lose them altogether. SOLICITORS, Greenfield & Abbott ; Prideaux & Son.

WILL-GIFT OF BUSINESS AND STOCK-IN-TRADE-BargeBUILDER.—In an action of Re Richardson, Richardson v.

Pilliner, before Vice-Chancellor Hall, on the 27th inst., a question was raised as to the meaning and extent of the words "stock-in-trade' as applied to the business of a barge-builder. James Richardson, by his will, specifically bequeathed to the plaintiff his business of a barge-builder, carried on at Chiswick, "together with all and singular his stock-in-trade as a barge-builder, and also all his tools and utensils belonging to such trade." He directed that no barge in process of building at his yard at the time of his death should be considered as stock-in-trade, but that the same should form part of his residuary personal estate, which he bequeathed to the defendant upon certain trusts. In the present action, which was for the administration of the testator's estate, the chief clerk had found that five old barges which belonged to the testator at his death did not form part of the "stock-in-trade" of the business, but belonged to the residue, and an adjourned summons to vary his certificate in this respect was now before the court. Evidence was given to the effect that in the business of a barge-builder it is the custom for the builder, if so required, If to take an old barge in part payment for a new one. possible, the old barge is repaired, and let out by the builder on weekly hire to lightermen and others. This course was adopted in the testator's business, and the rents were treated as part of the income of the business, but the defendant contended that the old barges so acquired by him did not become part of the stock-in-trade of the building business any more than a house or any other specific article which might be taken in payment would become so, and that, at the most, they were part of the stock of a barge-owner as HALL, V.C., allowed the distinguished from a builder. summons, saying that the barges in question were comprised within the business in the same way that old carriages taken by a coach-builder in part payment for a new carriage were properly part of his stock-in-trade.-SOLICITORS, Jones & Starling; Woodbridge & Sons.

*RE FENCOTT, DECEASED, FENCOTT V. PROUDFOOT. -We have received the following note from Mr. H. A. Patience, of No. 17, Gracechurch-street, E.C., with reference to the report of this case, which appeared ante, p. 392-"Your reporter has misconceived the point, which the Master of the Rolls stated was an important one to solicitors. The facts are shortly as follows:-The defendants, Joseph Vaughan and wife, were represented by Mr. John Cotton in the action until a short time before the settlement thereof. Messrs. Merediths & Co. then obtained the usual order to change solicitors, and they then acted as solicitors or agents for defendants Vaughan and wife in place of Mr. Cotton. The order for settlement of action directed plaintiff to pay the costs of defendants Vaughan and wife, and add the amount thereof to his costs, which were to be paid by the defendants other than the defendants Vaughan and wife. Mr. Cotton carried in his costs, prior to change of solicitors, for taxation, and Messrs. Merediths & Co. theirs subsequent to such change, and both bills were taxed. Mr. Cotton gave me notice that he had received no money on account of his costs from defendants Vaughan and wife, and that he required payment of the amount of his taxed costs to be made to him, and not to defendants Vaughan and wife, or their then solicitors or agents. I thereupon paid the amount claimed to Mr. Cotton. Messrs. Merediths & Co. claimed to have this sum paid to defendants Vaughan and wife personally, or to themselves on their clients' order. I paid to Messrs. Merediths & Co. the amount of their costs subsequent to change, and declined to pay over again the amount paid to Mr. Cotton; on this Messrs. Merediths threatened to issue execution on a separate certificate obtained by them from the taxing master ex parte, and I thereupon served the notice of motion for injunction, &c., which resulted in the decision of the Master of the Rolls that, notwithstanding the order directed payment of the costs direct to the client, Mr. Cotton had a lien, and was entitled to enforce the same, and this, although he was not then acting as solicitor in the proceedings; and plaintiff was entitled to have satisfaction entered upon the taxing master's certificate and costs of motion."