after the commencement of the Act, without stipulating that this section shall not apply to any mortgage securing such advances. Also he will not be able to accept a transfer of any mortgage, made after the commencement of the Act, which does not contain a like stipulation. For he would otherwise lose the benefit of his existing right to consolidate his existing mortgages. We do not know whether it was any part of the design of Lord Cairns when he invented the forms of deeds contained in the schedules to the Act to encourage laymen to manage their conveyancing for themselves. Of these forms, the statutory transfers of mortgages seem to us more likely to be used in practice than the rest; and there is an engaging air of frankness about them, which may possibly persuade enterprising persons to act sometimes as their own lawyers. Our experience of the nature of lenders inclines us to believe that nothing will induce them to lend their money upon the security of short forms of mortgage. But the short forms of transfer are intrinsically more plausible, and proposed transferees are commonly less exacting than proposed mortgagees. These considerations suggest the possibility that some amateur lawyer may some day discover, to his dismay, that he has lost the benefit of his right to consolidate by unwarily taking a transfer of a mortgage under the circumstances suggested in our last paragraph. He will have fallen into a trap baited with more skill than is generally displayed by the Act.

We will now briefly consider sections 15 and 16:"15.--(1.) Where a mortgagor is entitled to redeem, he shall, by virtue of this Act, have power to require the mortgagee, instead of re-conveying, and on the terms on which he would be bound to re-convey, to assign the mortgage debt and convey the mortgaged property to any third person, as the mortgagor directs; and the mortgagee shall, by virtue of this Act, be bound to assign and convey accordingly.

"(2.) This section does not apply in the case of a mortgagee being or having been in possession.

“(3.) This section applies to mortgages made either before or after the commencement of this Act, and shall have effect notwithstanding any stipulation to the contrary.”

Against this provision in itself we have nothing to object; but we see little to be praised in the manner of making it. The reader will observe that no penalty is provided in case of a refusal. We suppose that the draftsman vaguely took it for granted that a refusal would, upon application to the court and an order made thereon, render the party liable to attachment. But we cannot think it a slight evil that the liberty of the subject should be invaded without legislative warrant, merely because people intrusted with the framing of a statute have taken the trouble neither to say plainly what they mean nor to display the small degree of ingenuity needed to avoid the necessity of saying it. This section applies to mortgages made before the commencement of the Act, thus distinctly altering the contract between the parties. A proposal to commit a man to prison for refusing to do something which he never bargained to do, upon the strength of an inference from a statute which does not condescend expressly to enact any penalty against him, is somewhat startling. Yet if the case we supposed should occur, the court may find itself in a manner compelled to take this course. And all this might so easily have been avoided by the simple device of enacting that, in case the mortgagee should refuse, he should be deemed to be a trustee for the proposed transferee, and the court should have power, by a vesting order, to effect the proposed transfer of the property.

The next section is as follows:

“16.-(1). A mortgagor, as long as his right to redeem subsists, shall, by virtue of this Act, be entitled from time to time, at reasonable times, on his request, and at his own cost, and on payment of the mortgagee's costs and expenses in this behalf, to inspect and make copies or abstracts of or extracts from the documents of title relating

Here, again, no penalty is provided in case of a refusal. And the language of this section lends itself less easily than the language of the previous one to the hypothesis that the penalty must necessarily be attachment. This remark gathers further weight from a comparison with the language of some other parts of the Act, for which we have no space here.

We should be sorry to undertake to guess what the framers of this Act suppose to be the meaning of the word "contrary," as used in these sections. In the present case, whatever may be meant by a "stipulation to the contrary," it must, if it is to mean what it says, mean that contrariety is to subsist between the matter of the stipulation and the matter of the section. But there would be no contrariety, nor any kind of logical incompatibility, between the matter of the section, and the matter of a covenant, on the part of the mortgagor to pay a huge sum to the mortgagee, by way of agreed costs, whenever he or anybody claiming under him should inspect or copy a document. Here, again, we suppose the draftsman will expect the court to help him out by declaring such a covenant void. But it would not be very difficult for a cautious mortgagee so to adjust the sum to the circumstances of the mortgagor as to make it practically prohibitive, while no court would venture to strain the case within the meaning of the section.

We may also point out that section 15 might be regularly evaded by the mortgagee going into possession pro forma and immediately going out again. A stipu lation to facilitate this might be made a common form in every mortgage; and, whatever it might be, it would not be a "stipulation to the contrary"; on the contrary, it would be in closest accordance with sub-section (2).

We shall confine our further remarks upon the practical effect of the sub-division of the Act to the questions, whether and why it is likely that mortgagees will in future consent to deprive themselves of the advantages given them by the right to consolidate; whether, if proposed mortgagees should insist upon retaining those advantages, there is any prospect that proposing mortgagors will be able to make them give way; and (which is, perhaps, the most interesting and important question of all), whether it will not be the duty of every solicitor advising a proposed mortgagee, after the commencement of the Act, to take care that the right of consolidation is retained for the benefit of his client. We believe that our first two questions answer themselves. We see no reason to suppose that the passing of this Act has effected a radical alteration in the nature of lenders of money, of which a prominent characteristic is the disposition to insist upon having every possible security. Nor can it be denied that the right to consolidate is of great practical importance, and has often saved those who had it from severe loss. And we see less reason than ever to suppose that mortgagors, at all events of land, will, for a long time to come, be able to resist any demand which mortgagees may make. These considerations also go far to answer our question about the duty of solicitors in the future, for in such a case as the present the expectation of the client measures the duty of the solicitor, and lays down for him a rule from which he cannot depart without grave personal risk. And we must further point out that, even as regards his legal liability (which is, of course, in practice the least part of what he has to fear in case of mishap) a solicitor, so far as we can see, receives no protection from the provisions of this Act. Section 66 does indeed protect him from all liability, "by reason of his omitting, in good faith, to negative the giving, inclusion, implication, or application" of any of the powers given by this Act to any person, and

the covenants, provisions, stipulations, and words which under this Act are to be deemed [to be] included or implied in any instrument, or are by this Act made applicable to any contract for sale or other transaction." But the case we are considering has nothing to do with negativing the giving of powers, or the inclusion of covenants, &c. This provision of section 66 refers to a different part of the Act; and manifestly has no bearing upon the neglect to insert an express stipulation that a proposed mortgagee shall retain the right of consolidation. If by reason of such neglect any future mortgagee shall suffer loss, we cannot promise his solicitor that he will be free even from legal liability.

AND TITLE BY OCCUPANCY. AN estate for life may be created either by the act of a grantor, or by the operation of law; of which latter case tenant by the curtesy and tenant in dower are examples. In either case, if the tenant for life grants over his estate to another, the grantee has an estate pur autre vie; and this estate is an estate of freehold, like the estate for life which it represents; but is regarded by the law as being a less estate, and is commonly said to be the least estate of freehold known to the law. As a determinable estate which would, if not sooner determined, endure for a life (as, for example, an estate durante viduitate) was, in contemplation of the law, an estate for life and an estate of freehold, and as there is no reason why such an estate might not be granted over, we may perhaps regard the estate pur autre vie representing such a determinable estate for life as being the minimum visibile of freehold. When an estate for life was cast upon another by the act of the law (as upon the king by attainder of the tenant), it is doubtful whether it gave rise to an estate of freehold. And doubts have been entertained whether an estate pur autre vie, on its passing to the executor by force of the Statute of Frauds, was in his hands a freehold or a chattel interest.

If a tenant for life granted over his estate to another simply, without mentioning the grantee's heirs, and the grantee died, living the cestui que vie, it followed, under the old law, that nobody had a legal title to the lands during the interval between the death of the tenant pur autre vie and the death of the cestui que vie; for, as we shall presently see more clearly, the estate pur autre vie was not, properly speaking, descendible, and did not descend to the heir of the tenant pur autre vie; and the cestui que vie, having purported to grant away his whole estate, was debarred from setting up any claim. No person being able, during this interval, to make out a legal title to the lands, anybody who got quiet possession of them might lawfully keep them until the death of the cestui que vie; because his title by mere possession was good against a mere stranger, and everybody else in the world, until the death of the cestui que vie let in the right of the remainderman, was in the position of a mere stranger to the lands. This title was called a title by general occupancy. No doubt it was a title which might easily take effect, and sometimes did take effect, in practice; not, as has been absurdly imagined by some authors of text-books, by a general scramble taking place for the lands on the death of the tenant pur autre vie, but by reason of a tenant at will being in possession of the lands at the time of the death, who, by the law of general occupancy, found his tenaucy at will suddenly changed to an estate of freehold.

Of things which (before the 8 & 9 Vict. c. 106) lay in grant, and of which there could therefore be no possession (as a rent), there could be no general occupancy.

Although an estate pur autre vie was not, strictly speaking, descendible, yet, if the estate was granted to the tenant and his heirs, it passed, on his death, living the cestui que vie, to the heir, who was then styled the

special occupant. But that the estate was not descendible is very prominently shown by the fact that, if the heir, so holding as special occupant, had been sued on the bond of his ancestor specifying the heirs, he could, notwithstanding his possession of the ancestor's estate pur autre vie for the residue of its duration, plead riens per descent, and avoid all liability. This shows conclusively that the heir took the estate, not as heir by descent, but as a mere nominee or appointee of the grautor. Hence arises the question whether the grantor could name other persons, besides the heir of the grantee, to be special occupants on the death of the grantee living the grantor. And in particular the question arose, and was at one time keenly debated, whether the executor of the tenant pur autre vie, if named in the grant, could be a special occupant.

Our own opinion is that, according to the true analogy of the law and the true explanation of the old cases, the executor could not be a special occupant. Nor do we believe that the contrary opinion was ever maintained until the Statute of Frauds had deprived the question of nearly all its importance, by giving the lands, in the absence of a special occupant, to the executor to be held by him as assets. After that time it became not unusual to limit an estate pur autre vie to the grantee and his executors, instead of to the grantee and his heirs, and as in such a case the executor would take the lands, either (if he could be a special occupant) as special occupant, or else (if he could not be a special occupant) by force of the statute, there was seldom much temptation to moot the point. It is true that this was one of the points mooted in Ripley v. Waterworth (7 Ves. 419), but, for the reasons above given, it was quite irrelevant to the result; and we have always permitted ourselves to wonder why Lord Eldon, after showing that the point could have no bearing upon his decision, nevertheless spent a good many pages in discussing it. He seems to have thought that the executor might be a special occupant.

The grounds upon which we hesitate to come to that conclusion are as follows:-Although there could not be a general occupant of a rent, yet the heir, if named, might be special occupant. But it was clearly decided in Salter's case (Cro. Eliz. 901, Noy. 46), which is of great authority, that the administrator, though named in the grant, could not be special occupant of a rent. But if the administrator could not be special occupant, this seems enough to prove that the executor could not. And if the executor could not be special occupant of a rent, we can see nothing to put him in a more favourable position as regards lands. Indeed, his position as regards lands is far less favourable.

Those who most distinctly maintained that the executor might be special occupant have relied upon the fact that the heir, when special occupant, takes, not by descent, but as the nominee of the grantor; and hence they inferred that there is no reason why the grantor might not nominate the executor. But we humbly submit that there is a great difference between the two cases -one of those differences which now counts for nothing, but which, before the 12 Car. 2, c. 24, counted for everything. An estate pur autre vie, being freehold, carried the seisin with it; and if it passed to the heir there was no abeyance of the seisin, because the heir was ascertained inmediately upon the death of the tenant. But if the estate had passed to the executor, it would have been in his power, by delaying probate, to reserve to himself during an indefinite interval the right to accept or refuse the estate; and in the meantime the seisin would have been in abeyance, and the lord would have had no tenant to answer to him for the services. To allow the executor to be named as special occupant would have been as inconsistent with the fundamental laws of tenure as to allow an estate in futuro to be created by feoffment.

These considerations, however, are now not only thought to be of little weight, but are scarcely remem

pany, L. R. 4 Ex. D. 302). This provision, if widely used, may cause some commotion amongst the manufacturers of chemical manure and other substances which do not smell of violets.

The remaining new enactment is that of section 28, by which, "where a nuisance arising from any noxious or offensive gas is wholly or partially caused by the acts or defaults of several persons, any person injured by such nuisance may proceed against any one or more of such persons, and may recover damages from each person made a defendant in proportion to the extent of the contribution of such defendant to the nuisance, notwithstanding that the act or default of such defendaut would not separately have caused a nuisance."

So much for the new portions of the Alkali Act, 1881, which deserve a more careful study from lawyers generally than they are likely to meet with. With regard to the purely consolidating part of the Act, we may as well remind our readers that the Act of 1863, the first measure on the subject, was originally temporary, and was not made perpetual until 1868. As will be seen from the title, the whole of the old law is contained in the Acts of 1863 and 1874. One curious incident of the Act of 1863, repeated with scarcely any variation in this consolidating Act, is that the fines for offences under the Act are recoverable, not before a justice of the peace, but by action "in the county court having jurisdiction in the district in which the offence is alleged to have been committed." This is, we believe, peculiar to alkali.

WILD BIRDS.

CAP. 51.-AN ACT TO EXPLAIN THE WILD BIRDS' PROTECTION ACT, 1880.

This is the fifth Act which has been passed relating to. wild birds and sea-fowl. It owes its origin to the excitement occasioned by the provision in the Act of last year, which throws on every person who during the close season exposes or offers for sale, or has in his control or possession, any wild bird recently killed or taken, the onus of proving that such wild bird was either killed or taken, or bought or received during the period in which such wild bird could be legally killed or taken, or from some person residing out of the United Kingdom. It is now made sufficient to show that "the killing of the wild bird, if in some place to which the Act of 1880 extends, was lawful at the time when and by the person by whom it was killed." That is to say, it will be sufficient to show that the wild bird is not within the schedule to the Act of 1880, and was killed or taken by the owner or occupier of land, or some person authorized by him, on his land. It will also be sufficient to show that the wild bird was killed in a place to which the Act of 1880 does not extend, and proof that the wild bird was imported from such place is to be primâ facie evidence that it was killed in some place to which the Act does not extend. The Lords inserted in the Bill a provision, which is now section 2, adding larks to the schedule of wild birds in the Act of 1880.

CORRESPONDENCE.

SHERIFFS' OFFICERS.

[To the Editor of the Solicitors' Journal.] Sir,-If "A Constant Reader" will inquire among common law managing clerks he will find his is by no means an isolated case, and particularly that the officers in two or three counties are notorious for their default of duty.

The profession are the sufferers both in the time taken in hunting up, ruling, &c., such officers, and in the complaints expressed by clients who won't conceive that any officials with proper process would dare so to defeat the ends of justice.

COMPANY VOLUNTARY WINDING UP STATUTORY MAJORITY OF CREDITORS AND SHAREHOLDERS-OPPOSING CREDITOR-LEAVE TO APPLY FOR COMPULSORY WINDING UP ON PROOF OF MALA FIDES.-In a case of In re The Northern Counties Bank (Limited), before Kay, J., on the 28th ult, two petitions were presented, one by H. J. Robson, a director and shareholder and creditor for £20, asking that the bank might be wound up under the supervision of the court, and the other by J. Summerfield, a creditor for upwards of £1,100, asking for a compulsory winding up. It appeared that the bank had been formed with a capital of £50,000 in 1,000 shares of £50 each, and that 723 shares, upon which £30 had been paid up, had been issued, making the whole paid-up capital £21,690. On the 13th ult. the bank stopped payment, and on the same day circulars were issued to its creditors and shareholders, begging them to work in harmony with the directors, and promising a further com. munication as soon as the affairs of the bank had been fully gone into. On the next day Mr. Robson's petition was presented, as also one by Messrs. Lambton & Co., of Newcastle, which was, upon payment of the debt claimed by that firm, subsequently withdrawn. On the 16th ult. a notice was issued calling meetings of the shareholders and creditors for the 26th, in order to ascertain their wishes in respect of the winding up. Before such meetings were held, Mr. Summerfield presented his petition for a compulsory winding up. At the meetings, resolutions were passed in favour of a voluntary liquidation, with Mr. Edmund Nichols, a public accountant, as liquidator, and an extraordinary resolution for a voluntary winding up was passed by the statutory majority of the shareholders and creditors. Counsel on behalf of Mr. Summerfield, in reply to a question of his lordship as the relative advantages of a compulsory or supervision order, stated that, although the latter might be apparently the more advantageous course, yet by adopting it creditors would not have the same security for the proper administration of the assets nor the same facility for the investigation and discovery of abuses and the actual position of affairs. KAY, J., said that he was bound to consider the wishes of the creditors, and made an order on Mr. Robson's petition continuing the voluntary winding up of the bank under the supervision of the court, and reserving liberty to Mr. Summerfield te apply next Wednesday for an order for compulsory winding up if he could prove to the satisfaction of the court that the wishes of the creditors were not properly ascertained at the meetings held.-SOLICITORS, Nash & Field, for W. M. Pybus, Newcastle-upon-Tyne; Rossiter, for J. G. Joel, Newcastle-upon-Tyne; Gregory & Co.

to

PRACTICE-COMPANY-WINDING UP-APPOINTMENT OF SPECIAL EXAMINER-COMPANIES ACT, 1862, s. 115.-In a case of In re The Great Wheal Polgooth Mining Company, also before Kay, J., on the 28th ult., being the case of a limited company now being wound up under a compulsory order made by Bacon, V.C., on the 3rd of August, an ez parte application was made on behalf of the liquidator of the company, under the Companies Act, 1862, s. 115, for the appointment of a special examiner and leave to summoa witnesses. It was stated that the company was formed in March last, and that there had been a bond fide subscription of some £27,000 paid-up capital, of which it was alleged that £15,000 had gone into the pockets of the directors. The official liquidator was desirous of examining the directors and secretary, as it was believed that a large portion of the £15,000 might be recovered. KAY, J., suggested that an examination before the chief clerk was the more proper and cheaper course. Counsel however stated that expedition was desirable, and cited in support of the present application: In re Contract Corporation (19 W. R. 337, L. R. 13 Eq. 27) ;

Massey v. Allen (26 W. R. 908, L. R. 9 Ch. D. 164). KAY, J., granted the order asked for.-SOLICITORS, Snell & Greenip.

COMPANY-VOLUNTARY WINDING UP-DISSOLUTION OF COMPANY-COMPANIES ACT, 1862, ss. 142, 143.-In a case of In re The General Iron Screw Collier Company (Limited), also before Kay. J., on the 28th ult., a petition was presented by M. Louis Bertin, an incumbrancer under a judgment or decree of the Court of Appeal at Rouen, for some 27,000 francs, asking that the company, which is now being wound up voluntarily, might be wound up by the court, or that the voluntary winding up might be continued under the supervision of the court. It appeared that, in pursuance of the 142nd section of the Companies Act, 1862, the final meeting in the voluntary winding up was duly held on the 23rd of June of this year, and in pursuance of the 143rd section the return to the registrar of such meeting was duly filed on the 2nd of July following, and that the three months under the latter section would accordingly expire on the 1st of October next, and the company be finally dissolved on that day. KAY, J., said that it was clear that, as the winding up was still going on, he could make any order which might seem proper, and he accordingly made an order restraining the company from dissolving until after the first petition day in the November sittings, and for the adjournment of the present petition until that day.-SOLICITORS, Lyne & Holman; Hollams, Sons, & Coward.

mortgagor. Such trustees could recover from the trust estate no more than they would be allowed to recover against the mortgagor. The present difficulty had arisen from the extraordinary depression existing at the present time in agricultural matters. Under ordinary circumstances there would have been no difficulty, and a tenant would easily have been found. Nothing could help the trustees except a private Act of Parliament, and his lordship was not able to give the directions asked for. It was ordered that costs of all parties should be paid out of the estate.-SOLICITORS, James Taylor, Mason, & Taylor; T. W. Nelson.

In the case of In re Ames' Settlement, before Kay, J., Vacation Judge, on the 28th ult., the facts were that the surviving trustees of a marriage settlement invested in September, 1874, a sum of £8,000 out of some £24,000 comprised in the settlement upon a mortgage at £5 per cent. of a farm in Kent. Shortly after the execution of the mortgage the mortgagor sold the equity of redemption for £8,000, and the purchaser paid the interest on the mortgage debt up to the year 1878. The purchaser then became bankrupt, and the trustees, being no longer able to obtain their interest, entered into possession, and, in May, 1879, in exercise of a power of leasing contained in the mortgage deed, leased the farm to a relation of the former owner for a term of years at a yearly rent of £400. In 1880,

the tenant became embarrassed in circumstances, and his affairs were liquidated by arrangement, and by the consent of the trustees, being the mortgagees in possession, the creditors arranged to hold the farm until the 29th of Sep. tember of the present year. It appeared that the farm in question, which contained some 210 acres of hop and meadow land, was doubtless in 1874 an ample security for the mortgage of £8,000, and in fact that this mortgage was in part substitution of one made by the settlor himself in 1871 on the same farm for a larger sum, but at the present time, by reason of the depression which exists in the value of agricultural land, the trustees of the settlement were unable either to sell or let the property without loss, and although on two occasions they had recently caused the property to be put up to auction, at an upset price, not more than sufficient to cover their principal, interest, and costs, they had been unable to obtain a single bidding. Under these circumstances the trustees, being advised that if the farm went out of cultivation it would greatly deteriorate in value, and become entirely impossible to let or sell, except at a great sacrifice to the trust estate, presented a petition to the court, asking for directions as to the appointment of a manager or receiver of the trust estate, with power for him when appointed to appoint such person or persons as might be necessary for the cultivation of the farm, and also asking, that if the profits should be insufficient to cover the expenses of working the farm, for the payment of the deficiency out of the capital or income of the other funds comprised in the settlement. KAY, J., declined to give the trustees any special protection, or to enable them to take other trust funds for the purpose of cultivating the farm, or of providing against any deficiency which might arise by taking the farm into their own hands. Trustees, he said, who had taken possession of a mortgaged property had only power to do all such acts as an ordinary mortgagee in possession could do as between himself and his

the payment of the legacies for not exceeding two years from the death of the testator's wife, and the testator appointed his wife and his son, T. B. T. Willaume, his executrix and executor. In June, 1881, the testator's wife and son, as executors and devisees in trust, offered a portion of the testator's real estate for sale by auction, Difficulties having arisen as to the title, the purchaser took and the property was purchased by Mr. H. Landau. out the present summons, asking for declarations-(1) whether the testator had by his will charged his real estate with the payment of his debts; (2) whether, in chaser's requisitions whether there were any debts of the such case, the vendors were bound to answer the purtestator still owing, which latter question the vendors had declined to answer. It was contended on behalf of

the purchaser that no charge on the realty was created, as the whole tenor of the will was against such a construction, and that the rule that a testator who directed payment of his debts by his executors, and also devised to them his real estates created a charge thereon, could not be extended to a case where the executors also took beneficial interests which were of unequal quantity. On the second point it was contended that, notwithstanding the decision of Lord Romilly in Sabin v. Heape (8 W. R. 120, 27 Beav. 553), the vendors were bound to say whether there were any debts unpaid, for after ten years from the testator's death, it was only reasonable to assume that all debts had been paid, debts, could not sell the property. and that in that case the executors, even with a charge of It was contended on

raise the first question, as he had made no requisition on the other hand by the vendors, that the purchaser could not the point within the time limited by the conditions of sale. The purchaser, in reply, cited Want v. Stallibrass (21 W. R. 685, L. R. 8 Ex. 175), where it was held that a purchaser was not bound by such a condition where the vendors had no title at all. KAY, J., said that, although the case was one of considerable doubt, he would give his opinion on it at once. The general rule was, that where a testator directed his executors to pay his debts, and devised his real estate to such executors, he was to be held to have created a charge of the debts on his real estate. But no case had been cited to show that such rule applied where the devise had not either been made to them in trust for other persons or to such executors equally for their own benefit. Lord Hatherley in Harris v. Watkins (Kay, 438, 448), laid it down distinctly that when the direction was that the debts should be paid by the executors, which would imply an equal liability, and unequal gifts were made to them, the rule did not apply. In the present case he was not