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Advertisements must reach the Office not later than five o'clock on Thursday afternoon, and must be accompanied by a remittance. PARKER V. DUNCAN In the Goods of ODDY (deceased) Will-Undue influence - Direction to fury ....... Topics of the Week 642 The Decline of Our Judicial System Resulting Trusts ...... 152 152 Can a Director part with his Qualification Shares?... 153 GRUBB v. GRUBB and as Probate practice-Two wills-Later will not propounded-Revocation alleged and denied in pleadings 153 154 155 Will-Bequest of all property-Exercise of power of appointment-Marriage after date of will SUPREME COURT OF JUDICATURE. COURT OF APPEAL. Be DILLON; DUFFIN v. DUFFIN Donatio mortis causa-Deposit note with cheque indorsed-Validity AMERICAN BRAIDED WIRE COMPANY v. THOMPSON AND CO. ceedings against third party taken by leave of judge-Right of indemnity HIGH COURT OF JUSTICE.-CHANCER HART. COLLEY Re AMERICAN PASTORAL COMPANY Re THE CARDIFF SAVINGS BANK Savings bank-Winding-up-Liability Company-Registration-Injunction- QUEEN'S BENCH DIVISION, IN BANK- REED . NUTT R. O. Turner, Esq. R. Willan, Esq. J. H. Knight, Esq. N. Mercer, Esq. 164 166 166 166 169 169 170 170 170 170 170 R. Darlington, Esq. 633 C. T. Ellis, Esq. 170 G. Dagman, Esq 170 Assault-Complainant not appearing before magistrate-Charge dismissed -No evidence tak n on oath ............... 035 The Law and the Lawyers. 170 170 170 172 In the last digest of the Quarterly Review forty-seven cases are noted as being reported only in the LAW TIMES Reports. THE Government, we are told, have been carefully considering whether law officers should be debarred from private practice. The question is one which undoubtedly requires most careful consideration, because it is quite certain that, when that restriction is imposed, men in large practice will not accept the appointments. On the other hand, recent experience proves how seriously the private and public functions of a law officer may conflict. It would perhaps be better that men of minor position at the bar should be employed by Government, with the understanding that law officers shall not have any prescriptive right to vacancies on the bench. LOOKING through Mr. Justice STEPHEN'S Digest of the Criminal Law, we were struck by a passage which shows at what a prosaic pass we have arrived. He refers to the fact that in defending prisoners counsel never become eloquent. This must surely be since the day of the late Mr. RIBTON. But, says the Vol. LXXXIX.-No. 2465. author, "It is impossible to be eloquent in the sense of appealing to the feelings without more or less falsehood,"-Can this possibly be true? We doubt it extremely-"and an unsuccessful attempt at passionate eloquence is of all things the most contemptible and ludicrous, besides being usually vulgar;" which means, we suppose, "Never attempt to be eloquent, never let passion enter into your eloquence, because, if you fail, you will become contemptible and ludicrous, and possibly vulgar." Mr. Justice STEPHEN Would reduce everything to a code, and would limit eloquence at the bar to a tabular statement. This is the result of the " critical temper of the age." THE new Lunacy Act (53 Vict. c. 5) contains a valuable provision as to foreign lunatics detained as such in this country. It is provided by sect. 71, which reproduces the repealed sect. 44 of the amending Act of 1889, that "where an alien is detained as a lunatic and his family or friends desire that he should be removed to the country of which he is a subject," the Lunacy Commissioners may inquire into the case and report thereon to a Secretary of State. Thereupon the Secretary of State, "if satisfied that the person to whom the report relates is an alien and a lunatic, and that his removal is likely to be for his benefit, and that proper arrangements have been made for such removal and for his subsequent care and treatment, may by warrant direct the alien to be delivered to the person named in the warrant for the purpose of removal to the country of which he is a subject." The humanity and care with which this enactment has been drawn are beyond all praise. C. We have before us the Merchant Shipping Act 1890 (53 Vict. 9), one of the few statutes which have received the Royal assent in the present session. The Merchant Shipping Act 1876, by sects. 26 and 27, prescribed the making of a load-line, but left the position of such load-line to the discretion of the owner, who was directed to indicate the maximum load-line at which he intended to load the ship for each voyage. The present Act institutes a compulsory load-line to be fixed by the Board of Trade, on the recommendation of the" Committee of Lloyd's Register of British and Foreign Shipping." The Act is not to come into operation until six months after its passing, i.e., not until the 9th Dec. 1890. The number of Merchant Shipping Acts has grown very rapidly of late years. Between 1854 and 1876 sixteen Merchant Shipping Acts were passed. Between 1876 and 1880 six Acts, and between 1880 and 1890 inclusive thirteen Acts, in relation to merchant shipping were passed. Thus thirty-five Acts have been passed since the parent Act of 1854, of which more than half have been passed during the last fourteen years. MR. FINDLAY, the manager of the London and North-Western Railway, delivered an interesting speech, on the management of the railways of Great Britain in time of war, at the recent meeting of the Royal United Service Institution, at which Lord WOLSELEY presided. Mr. FINDLAY's view is that, whenever the railway companies should be called upon to suspend their ordinary traffic, in accordance with the provisions of the National Defence Act 1888, in order that the railways might be devoted, in priority, to military purposes, "the principal railway officials should become, for the time being, the servants of the State; and there seems to be no doubt that a transfer of the lines and plant without a transfer of the staff would be of little use. It is material to point ont, however, that the National Defence Act 1888 is not the only Act which the Government has to rely upon in time of danger. By the Regulation of the Forces Act 1871 (34 & 35 Vict. c. 86), s. 16, in any national "emergency" the Government may take possession of all the railroads and their plant; and it is also provided that "the directors, officers, and servants " of any railroad so taken possession of "shall obey the directions of the Secretary of State as to the user of such railroad or plant for HER MAJESTY'S service." THE Times in a leading article has suggested that, if Mr. WARMINGTON's Bill passes, everybody who lends his name in the formation of a company will know exactly where he stands." It has been suggested, however, by eminent authorities that that is just what everybody will not know. Indeed, there will be obvious difficulty in feeling assured that a prospectus might not in some particulars be considered by judge or jury to be "misleading." Sir HORACE DAVEY has offered strong opposition to the introduction of this word into the Bill, and, although members of the Commons appear disposed to give full scope to Mr. WARMINGTON's proposals, it remains to be seen whether the legal members of the House of Lords will take an equally favour able view of this new departure in company legislation. The Times, in dealing with this subject, suggests that it may happen that the solicitor who prepares the draft of a prospectus will find himself liable prima facie for the statements it contains Probably this anticipation is not well founded, but the mere suggestion shows the vagueness of the character of the Bill In some respects, of course, it might be very difficult to say who authorises or is responsible for this or that particular document; but it would certainly be highly inconvenient and unfair that the solicitor, if acting in a purely professional capacity, should find himself liable to untold damages by reason of his having settled a prospectus in just the same way that he settles any other document which has to be prepared with a view to legal requirements. This is a point to which the council of the chief law society and the executive of every other law society throughout the kingdom may with advantage direct attention. 66 Ir is not likely that, in the present political exigency, the Midwives Registration Bill will receive very serious consideration in Parliament, though it bears the names of Mr. FELL PEASE, Sir FREDERIC FITZWIGRAM, Sir ROPER LETHBRIDGE, Sir WALTER FOSTER, Dr. FARQUHARSON, and Mr. RATHBONE. But before the Bill is reintroduced it should be carefully reconsidered. It is difficult to see how unqualified midwives will be prevented from practising by an enactment that any person who is not registered and takes or uses the name of midwife shall be liable to a fine." It is suggested that the district boards of registration and examination, which are to be formed in seventeen large towns, shall have on them the medical officer of health for the county, county borough, or municipality. But, as a rule, medical officers of health are not interested in midwifery matters. Again, one of the qualifications for registration as a midwife is to be that the applicant shall not be under twenty-one. Would it not be well to give a maximum age, say fifty, as well as a minimum? The applicant must have a fair elementary education," and must have been a midwifery pupil for three months. Surely these standards are very low. The qualification clauses are very much neutralised by a proviso that all women who have for the last twelve months practised as midwives in England or Wales be placed on the register on production of (1) a certimay ficate of good moral character from some magistrate, or clergyman, or other minister of religion in the town, parish, or hamlet in which they live; and (2) of a diploma in midwifery from some existing examining body approved of by the General Council of Medical Education and Registration of the United Kingdom, established under the Medical Act 1858 (21 & 22 Vict. c. 90), or of a certificate of competence from two registered medical practitioners personally acquainted with them, on payment of five shillings for the expenses of registration. This will not prevent a large number of women now practising as midwives entering upon the register without any examination. It is well known how easy it is to get a certificate of character from a clergyman, and a certificate of competence from two medical practitioners will not be much more difficult to procure, when one remembers how loth people are to deprive others of their means of subsistence. The suggested proviso is an unwise concession to vested interests, which should be remodelled when the Midwives Registration Bill comes again into the crucible. In the position of public business it is of course impossible to say when the Public Trustee Bill-as it stands, or in a modified form-will become one of the laws of the realm. There appears, however, to be a general agreement that sooner or later the Bill will pass. General impressions, it is true, are sometimes misleading, and it would be possible to quote a great many instances in which promising legislative schemes have been mistakenly looked upon as certain to find an early place in the Statute-book. There may be greater cause for anticipating the acceptance of the Public Trustee Bill by the Legislature than has existed with respect to other proposals which could be mentioned, and, at all events, it is very desirable that the probable effect and the possible scope of the Bill should be fully understood by the public and the Profession. The Times, in a leading article, has dealt with the subject in a somewhat general and airy fashion. Theoretically, according to our contemporary, the individual trustee should be possessed of superhuman astuteness and zeal: “He must trust no one; his broker, whom he knew from a boy, is a prospective embezzler; his solicitor, though in practice nearly half a century, must be watched as if he were always on the point of quitting the country with the trust securities." In fact, according to the Times, the pains and penalties of trusteeship are altogether intolerable to all but those solicitors who themselves accept, a trust. It may be observed, however, that the position of the solicitor-trustee is by no means so agreeable as the Times would seem to suggest. His conduct with reference to the trust is certain to be closely scrutinised, in the event of litigation, and to be made to fit, or not to fit, with certain exacting rules of professional conduct. The solicitor who has undertaken to act as trustee, even though stipulating for remuneration for his professional services, has too often had cause to repent having accepted any such responsibility. It is believed that the Profession generally will welcome such an alteration of the law as would enable testators or settlors to nominate either a public trustee, or a trust company, to administer their affairs on behalf of beneficiaries. The special report drawn up by the Liverpool Law Society appears to favour the employment of trust companies rather than the devolution of trusts upon an official trustee, and there can be no doubt that the report in question points to certain perilous and inconvenient possibilities (professionally speaking), if the Bill as it stands should become law. These objectionable results might be due not so much to the working of such an Act of Parliament as to the enlargement of its effect by the rules and regulations which the Lord Chancellor is to be empowered from time to time to issue. If the apprehensions of the Liverpool Solicitors are well founded, it would certainly be advisable to somewhat narrow this power of rule making. Otherwise, at no distant date, the Public Trustee might become an official of far more compound character than is at present contemplated, even by the warmest advocates of the LORD CHANCELLOR'S Bill, or of the similar proposals of Mr. HOWARD VINCENT. THE effect of sect. 47 of the Judicature Act 1873 has received further consideration in Re Ashwin; Ex parte Ashwin, just decided by the Court of Appeal, the point raised being whether an order committing a bankrupt for contempt of court is to be regarded as made in a criminal matter, so that the above section would preclude an appeal. In arguing the question before the court, counsel for the bankrupt relied on sub-sect. 2 of sect. 104 of the Bankruptcy Act 1883, which provides that "Orders in bankruptcy matters shall at the instance of any person aggrieved be subject to appeal." The Court (Lord ESHER, M.R., and LINDLEY and LOPES, L.JJ.) unanimously held that the effect of this sub-section is that all orders in bankruptcy matters can be made the subject of appeal. This decision will doubtless meet with general approval, as it is undesirable that there should be a hard-and-fast line barring appeals in matters which after all are merely of a quasi-criminal character. "IT is an established rule, that remedial statutes are to be more liberally, and penal more strictly, construed" (Stephen's Blackstone, 9th edit., vol. i., p. 75). Of this excellent rule Crane v. Lawrence (ante, p. 137) is an example. An inspector under the Margarine Act of 1887 bought half-a-pound of margarine from the respondent. The half-pound was wrapped in a paper such as is required by the Act, when handed to the inspector, but was taken from a quantity of margarine behind a screen to which no label was attached. The Divisional Court have held that the magistrate was quite right in refusing to convict the vendor, as the margarine was "not exposed for sale" when behind the screen. Had the decision been different, it might have been a difficulty to know how soon a label must be affixed, when it is intended to sell the margarine. An inspector might see it in an earlier stage before it was exposed in a shop, and, the vendor having obliged him with some of it, he might repay the vendor's courtesy by charging him with an offence under the Act. In accordance with the same rule, the Divisional Court have held, in Davis v. Stephenson (62 L. T. Rep. N. S. 436; 24Q. B. Div. 529), that a landlord of licensed premises cannot be convicted of suffering his house to be used for betting purposes, when the bets are made on waste land outside, and the money received for the bets are deposited with the landlord on the licensed premises. WE noted last week, on p. 138, two cases of testamentary dispositions, which came before the President of the Probate Division. The first was the converse of the cases to which we referred in our article on the revocation of wills by cutting or erasure" (ante, p.76), and might be termed "non-revocation by cutting." The will was found with a piece cut out of the margin, and another piece cut off at the bottom below the attestation clause. The name of one witness had been cut through, but his Lordship held that, as the material parts of the will, including the testatrix's signature, remained intact, there was no intention to revoke the will, the mutilation of the witness's name being merely an accident (In the Goods of Mary Taylor, deceased). The second case (In the Goods of Crawford) was more complicated. The testator had a power of testamentary appointment under his marriage settlement. He was by birth a Scotchman, but subsequently acquired a domicile in New Zealand. In 1880 he paid a visit to Scotland, and executed his testamentary power, which on his return to New Zealand he confirmed by a will executed there. All his executors were resident in the latter country, and they took out probate there, which did not refer to the Scotch document. An exemplification was sent over, and was duly sealed in Scotland. The English court has, however, held that the executors should apply to revoke the probate in New Zea land, and to include in a fresh grant the Scotch document. This case may likewise be said to be the converse of the cases to which we referred on pp. 74, 75, ante, where the wills of property situate in one country were kept quite distinct from those of property situate in other countries. In the granting of English probates the rule appears to be, that "if a will contain a reference to any document of such a nature as to raise a question whether it ought or ought not to form a constituent part of the will, the production of the document is required with a view to ascertain whether it be entitled to probate; if not pro If the appeal brought in Re Palmer, a Solicitor, had been unsuccessful, sect. 8 of the Solicitors' Remuneration Act 1881 would have lost very much of its value. That section provides that, with respect to any business to which the Act relates, the solicitor may make an agreement with his client, providing for remuneration either by a gross sum, or by commission or percentage, or by salary or otherwise. This agreement must be in writing, signed by the person to be bound thereby, or by his agent; and it is further provided that, if under any order for taxation of costs such agreement is relied on by the solicitor, and should be objected to by the client as unfair or unreasonable, the taxing officer may be directed to inquire into the facts, and certify the same to the court. The court possesses ample jurisdiction to cancel the agreement, or to reduce the amount payable under it, when that course seems to be justified by the special circumstances of the case. It would appear, therefore, that the power to make an agreement of the kind referred to is sufficiently safeguarded by the other provisions contained in the statute. In Mr. PALMER'S case it was sought to upset a bargain entered into with him as a solicitor in consideration of his undertaking to procure a loan of £300 on specified security. The agreed remuneration was to be £20, exclusive of disbursements, and though the solicitor fulfilled his part of the agreement, the client afterwards took out a summons requiring him to deliver a bill of costs in detail, contending that the letter in which he had requested Mr. PALMER to raise the loan did not constitute an agreement under the Act. Mr. Justice NORTH held, however, that the agreement was sufficient in terms, that it was a retainer to the solicitor to act for the mortgagor, and contract to pay him a specified amount for costs. The view taken of the facts by Mr. Justice NORTH was unanimously adopted by the Court of Appeal, Lord Justice BowEN observing that the appeal ought never to have been brought. We would add, that the summons for taxation ought never to have been taken out. an OUR recent remarks with reference to the serious responsibilities incurred by a solicitor who accepts the office of trustee are fully confirmed by what has taken place in the Court of Appeal in the case of Mr. HOPPER, a solicitor practising in the north of England. Mr. HOPPER filled the double capacity of solicitor and trustee, but, in considering his appeal from order made by a divisional court suspending him from practice for three years, the Court of Appeal declined to draw a distinction between conduct for which he might be amenable as a solicitor and misfeasance in the capacity of trustee. It was urged on Mr. HOPPER's behalf, that the fact that he had made use of trust funds for his own purposes did not constitute the sort of misappropriation which the courts have been in the habit of visiting with summary punishment. The MASTER of the ROLLS, however, seemed to consider that the solicitor had been guilty of misconduct in both capacities, and notwithstanding Re Blake, (30 L. J. 32, Q. B.), and Re Sparkes (17 C. B. N. S. 729), and also the contention that in the several charges there was no evidence of fraud or concealment, the Court confirmed the decision of Mr. Justice GRANTHAM and Mr. Justice CHARLES with respect to the solicitor's suspension. Seeing that the Committee of the Incorporated Law Society arrived at a conclusion which has been adopted by a divisional court and by the Court of Appeal, it is of course impossible to question the justice of the decision arrived at. On the other hand, it may be a matter of regret that clearer evidence was not submitted on behalf of the solicitor. The judges admitted a letter in which the beneficiaries said that the funds had been used by the solicitor with their consent; but the Court concluded that the solicitor had persuaded the beneficiaries to take his part, and that there was, in fact, no truth in the suggestion that the irregularities with respect to the trust funds had taken place with their full knowledge. It may be that their sworn evidence would have removed the impression which the MASTER of the ROLLS SO strongly entertained on this point. At the same time it is regrettable that so little importance was attached to the memorial, signed by no less than fiftyfour practising solicitors, who testified that they still held Mr. HOPPER in esteem, and considered him a fit and proper person to practise. The fact that this certificate was drawn up in Mr. HOPPER'S office scarcely seems to justify the inference that it was of no value at all as a testimonial to character; for it would be rash to assume that so large a number of solicitors would have consented to sign the memorial if they were not well acquainted with the appellant's general character and satisfied in their own minds that he was not an unfit person to continue to practise in their midst. A CASE of considerable interest to Anglo-Indians and others connected with our Indian Empire was decided by the President of the Probate and Divorce Division on Tuesday last. The case was Warter v. Warter (noted post). It was a probate suit in which the plaintiff and defendant were sister and brother, by blood, and they, by their respective guardians ad litem severally claimed a grant of letters of administration to the estate of their late father, Colonel DE GREY WARTER. The facts were shortly these: Mrs. WARTER'S first husband was an Anglo-Indian, T., who on the 27th Nov. 1879 obtained in India a decree absolute dissolving his marriage on the ground of his wife's adultery with Colonel WARTER. The lady came to England immediately after the divorce, and was married in this country to Colonel WARTER, an officer in HER MAJESTY'S service, on the 3rd Feb. 1880. On the 6th Feb. 1880 the will in question was duly executed by him. The plaintiff, a daughter, was born on the 17th Oct. in the same year. The testator was subsequently advised by counsel that his marriage was invalid, by reason of its having been contracted within six months of the decree absolute, the Indian Divorce Act 1869, s. 57, precluding either of the parties to the divorce proceedings from marrying again within the stated period. Colonel and Mrs. WARTER, in consequence of that advice, went through a second ceremony of marriage in this country on the 2nd April 1881, and the defendant was born on the 20th of the same month. Colonel WARTER never re-executed his will, and died in 1889. The present proceedings were thereupon instituted, but before they could be brought to a hearing Mrs. WARTER also died. It was contended for the plaintiff, who asked for a grant with the will, annexed, that the case was precisely identical with the case of Scott v. The Attorney-General, in which a marriage in this country, between a co-respondent and a woman who had been divorced in the Cape Colony on account of her adultery, was held good, notwithstanding the absolute invalidity of such a marriage by the Roman-Dutch law. In the present case, counsel for the defendant succeeded, however, in distinguishing Scott v. The Attorney-General, on the ground that the prohibition in that case was penal, and, as such, attached only to the guilty parties; whereas the innocent spouse was entitled to marry again forthwith, if he was so minded. The six months' limitation prescribed by the Indian Divorce Act was, on the other hand, not penal; but probably was intended to admit of an appeal being made, if thought desirable, to the Privy Council. The lady was therefore held bound by the terms of the Indian Act, and her marriage within the six months was illegal; the result being that the will was revoked by the subsequent marriage, and the defendant was entitled to administration as upon an intestacy. The case is, undoubtedly, one of great hardship to the plaintiff, who is practically bastardised by the decision. By the considered judgment of the Court, consisting of Justices DENMAN and CHARLES, in Hume v. Somerton, it has now been held that the practice of the masters in allowing writs of summons, issued before the coming into operation of the Judicature Acts, to be renewed without an order of a court or judge, is a wrong practice and one for which there is no statutory authority. The practice masters, acting no doubt on the words of Order LXXII., r. 2, which provides that "where no other provision is made by the Acts or rules, the present procedure and practice remain in force," have for some years past, in dealing with renewals of old writs, allowed such old writs to be renewed without an order; and this rule is so laid down in the Practice Masters' Rules (5), at page 1161 of the Annual Practice. The question is not only an important one, but it is an intricate one, as it involves the consideration of several rules and statutes bearing on the point. Before the coming into operation of the Judicature Act and Rules, the renewal of writs was dealt with by sect. 11 of the Common Law Procedure Act 1852, under which section a writ of summons remained in force for six months only, but could as a matter of right be renewed from time to time for another six months without any leave of a court or a judge. and there was no limit to the number of such renewals. In the present case of Hume v. Somerton, which was a motion to set aside the service of a writ, the writ was issued so far back as 1861, and it had duly been renewed from time to time down to the beginning of the present year when it was served on the defendant. It was admitted that, if the case came within the operation of the Common Law Procedure Act, the writ had been properly renewed; but then it was said that, although the writ was issued before the coming into operation of the Judicature Acts, the rules as to its renewal were those laid down in Order VIII., r. 1, and that therefore the writ had not been properly renewed, as the leave of a court or judge had not been obtained for such renewals as required by that rule. Now the Common Law Procedure Act 1852, which allowed renewals without any leave, was repealed by the Statute Law Revision and Civil Procedure Act 1883 (46 & 47 Vict. c. 49), which came into operation contemporaneously with the Rules of 1883, and sect. 5 of that Act provided that the repeal should not affect "anything done or suffered before the passing of the Act under any enactment repealed by the Act, or any jurisdiction or right or privilege acquired." These words and the words of Order LXXII., r. 2, already referred to, were the words which caused the difficulty in the case, because it was said that that saving clause in sect. 5 kept the Common Law Procedure Act alive so far as regards writs issued before the coming into operation of the Judicature Acts. The Court, however, came to a different conclusion on that view of the case, as they said they were unable to hold that, notwithstanding the repeal of the Act of 1852, the plaintiff could still act in a matter of civil procedure under its provisions, and that moreover the right in this case was not a "right or privilege acquired" within the saving clause of sect. 5 of the Act of 1883. They were also of opinion that the words in Order LXXII., r. 2, were not sufficient to keep alive any practice or procedure contained in a statute which had been expressly repealed, as the Act of 1852 had been. But it was on the words of Order VIII., r. 1, that they decided the question; for they held that, since the repeal of the Act of 1852, the rules as to renewal as given in Order VIII., r. 1, form a complete code on the subject of the renewal of writs, whether the writs were issued prior to or after the Judicature Acts, and that the words of that rule are to he read as applicable to all writs of summons, whether issued before or after the Judicature Act. It follows therefore from this decision that the practice of the masters as to such renewals is wrong. THE DECLINE OF OUR JUDICIAL SYSTEM. AT the present moment, apparently, individual members of the Profession are indisposed to give expression to the feelings which they all undoubtedly entertain concerning the transaction of legal business. A single City solicitor writes: "I shall be glad to join in the protest against the continued scandalous block in the business of the common law courts." That is all. Consequently, in order that the Government may know the truth, and that before it is too late something may be done to restore public confidence in the courts, there appears to be but one course open-the appointment of a Royal Commission. There are some prominent facts about which there is no dispute. (1.) Notwithstanding the large number of substantial actions which are now remitted to the County Courts, the High Court is unable to keep pace with its work. (2.) The expense of litigation in the High Court has increased from 25 to.50 per cent. since the passing of the Judicature Acts. (3.) Commercial litigation has almost entirely left the legal tribunals. (4.) Interlocutory proceedings, and particularly appeals on interlocutory matters, vastly increase expense and delay, absorbing unnecessarily a very considerable portion of the time of the judges both of the High Court and the Court of Appeal. (5.) One of the principal objects of the Judicature Acts, i.e., to secure continuous sittings in Middlesex, has been absolutely defeated by judicial arrangements for holding assizes. We might add a sixth head, which is the extraordinary conflict of judicial opinion and the absolute uncertainty which attaches to every form of judicial decision. County Court judges are very often reversed by divisional courts; High Court judges are frequently reversed by the Court of Appeal; whilst the Court of Appeal has of late years too often had its decrees upset in the House of Lords. Now obviously a Royal Commission could have nothing to say to this sixth head. As the Lord Chancellor said the other day, judges spend a great deal of their time in differing from one another, and no more wonderful instance of how human minds can take sides on matters of mere opinion and with reference to uncontested facts could be furnished than is to be found in the litigation just terminated between Mr. Eno and Mr. Dunn. That difficulty must therefore continue to exist so long as humanity is what it is. All the other matters are deserving of the most patient inquiry at the hands of a Royal Commission. If the High Court cannot keep pace with its work, the causes must be ascertainable; the judges must be too few, or their arrangements must be defective. In either case the Legislature ought to interfere. The expenses of litigation again ought not to have increased, and the questions how, and why, they have increased, can only be answered by the process of a commission of inquiry. That there is no justification for such increase is perfectly certain, and no time should be lost in restricting the cost of litigation within the limits which existed before 1873. An inquiry into (3) would probably reveal all the abuses of our legal system. The evidence of some of the members of the City firms of solicitors, whose business has been almost exclusively among commercial men, would furnish a very formidable indictment of our judicial system. Cost, delay and uncertainty, but principally we believe delay, would be alleged as reasons for leaving the constituted tribunals of the country to resort to the unsatisfactory private arbitration. If we look backwards to the days of the sittings in term and after term at Guildhall we realise at once why in those days long lists of commercial causes occupied the courts, and why so few occupy them now. A most lamentable consequence of this will be a decline, we may say a decay, in the knowledge of mercantile law possessed by our judges. A gossip in an evening paper lately observed that Mr. Justice Mathew had not had much experience in breach of promise cases. He was a great, commercial lawyer. But, if he were relieved from trying breach of promise and similar actions (we don't know why he should, for he does it admirably) and were left to deal only with commercial causes, we doubt whether he would find his time fully occupied. Another most important question which might fitly be inquired into at the same time, is the relation existing between the Chancery and the Queen's Bench Divisions. It is said, and we believe truly, that very many purely common law actions are now tried in Chancery. This being so, what is the reason? Is it because the scale of costs is more liberal in the former than in the latter? And is another reason that in Chancery there are no Divisional Courts, no juries, no misdirection, and only one appeal? Unquestionably there should be one central taxing office in which costs in all divisions should be taxed upon one common principle and one common scale. And in each division an action should be limited to one trial with the right of appeal. All these are matters pressing for inquiry and reform. The Profession, it is clear, will not move. Possibly some patriotic lawyer not afraid of professional or judicial criticism will see his way to bring them before the House of Commons. RESULTING TRUSTS. THE decision of Mr. Justice Kekewich, that there is no resulting trust in favour of settlors who have conveyed all the business, stock-in-trade, &c., of the firm in which they were partners to trustees upon trust either to carry on the business or sell it, and out of the profits or proceeds of sale to pay costs and to pay and divide the residue among all the creditors (Cooke v. Smith, 62 L. T. Rep. N. S. 456), has been reversed by the Court of Appeal (ante, p. 136). Mr. Lewin in his treatise on the Law of Trusts, says (8th edit., p. 143): "The general rule is, that wherever, upon a conveyance, devise, or bequest, it appears that the grantee, devisee, or legatee was intended to take the legal estate merely, the equitable interest, or so much of it as is left undisposed of, will result, if arising out of the settlor's realty, to himself or his heir, and, if out of personal estate, to himself or his executor." Mr. Justice Kekewich was of opinion that the partnership property had been conveyed to the trustees absolutely for the creditors, and not merely as a security for their debts. The Court of Appeal, applying a similar train of thought to that which caused equity judges to regard the absolute conveyance in a mortgage as merely a redeemable security, held that the assignment was merely a security for payment of the debts of the creditors in full, so that whatever was left over after such payment resulted to the settlors. If a person attempts to make a conveyance which is contrary to the law, it would not be accurate to say that there is a resulting trust, as nothing having passed there is nothing to result, and the would-be conveyor remains entitled under his former interest. Such was the case of Churcher v. Martin (61 L. T. Rep. N. S. 113; 42 Ch. Div. 312), where a man conveyed certain property to three trustees upon charitable trusts. The conveyance was not enrolled under the Mortmain Act (9 Geo. 2, c. 36), and the settlor remained in possession until his death in Nov. 1868. By his will he left all his property to W., one of the charitable trustees, absolutely, and appointed them all three his execu tors. After his death the charitable trustees entered into possession of the property, selling parts of it from time to time, and applying the proceeds of sale in accordance with the terms of the trust deed. W. died, and more than twelve years after the trustees had been in posses. sion his executors brought this action claiming a declaration that the charitable trusts were void, and a conveyance and transfer of the trust property. They urged that the trust, having failed in regard to the charities, must be held to have resulted to the settlor and those claim. ing under him. The defendants pleaded the Statute of Limitations. Mr. Justice Kekewich was of opinion that no trust arose, as in the words of Mr. Justice Bayley, in Doe v. Wrighte (2 B. & Ald. 710, at p. 721), "the statute makes void not merely the trust but also the legal estate given." Mr. Justice Bayley proceeds to show that, "if that were not so, a person might consider himself bound in honour, though not in law, to convey the estate to the uses prohibited." The whole grant therefore being void, the trustees should have been ejected by W., but, as they had been in undisturbed possession for over twelve years, they could successfully plead the Statute of Limitations. Mr. Justice Kekewich further pointed out that the theory of a resulting trust would not assist the executors, as, being implied by law, it was not an express trust within the meaning of the enactment which prevented time running in favour of an express trustee. His Lordship distinguished Salter v. Cavanagh (1 Dr. & W. 668), where a testator devised his freeholds to C. for ninety-nine years upon certain trusts which did not exhaust the rents. The Lord Chancellor of Ireland (Lord Plunket) held, that the trustee could not be allowed to enjoy the surplus rents himself, but must hold them in trust for the heir-at-law of the testator. "I consider," said his Lordship, "the law as quite settled, that the resulting trust for the heir is not to be defeated either by the gift of an express legacy, or by words purporting to exclude him, unless the interest, of which he is sought to be disappointed, or from which he is sought to be excluded, is not only intended to be, but actually is, given to some other person." The 25th section of the statute 3 & 4 Will. 4, c. 27, prevented time from running in favour of C., as he was named an express trustee by the will. It is true that in Churcher v. Martin the trustees were named trustees in the deed; but then the executors were claiming against the deed, and not under its trusts. Formerly, where the trust did not exhaust the whole of the property, and there was no one in whose favour it could result, the unexhausted personalty went to the Crown, and the unexhausted lands became the absolute property of the trustees : (Underhill's Law of Trusts and Trustees, 3rd edit., p. 224; Lewin, p. 282.) But by the Intestates' Estates Act 1884 (47 & 48 Vict. c. 71), 8. 4, which received the Royal assent on the 14th Aug. of that year, this benefit to trustees was for the future taken from them, as it was enacted that, "from and after the passing of this Act, where a person dies without an heir and intestate in respect of any real estate consisting of any estate or interest, whether legal or equitable, in any incorporeal hereditament, or of any equitable estate or interest in any corporeal hereditament, whether devised or not devised to trustees by the will of such person, the law of escheat shall apply in the same manner as if the estate or interest above mentioned were a legal estate in corporeal hereditaments." CAN A DIRECTOR PART WITH HIS QUALIFICATION SHARES? THIS is a question which has never been definitely settled. It is still debateable ground. Of course it would be difficult to contend that a director can part with his qualification shares and continue to be a director of the company. But can he make a valid transfer of his quali fication shares? Is it a fraud upon the company to transfer them, say, to avoid a liability, or for any other reason? This is a question which is nowhere directly decided, though it is not devoid of authority. In Re National Provincial Marine Insurance Company, better known as Gilbert's case (33 L. T. Rep. N. S. 34; 5 Ch. App. 539), Gilbert was a director of the company and the holder of 245 shares of £25 each, on which £2 10s. had been paid. It does not appear, either in this case or in another case arising out of the affairs of the same company (Ex parte Parker, 2 Ch. App. 685), what was the number of qualification shares which a director was required to hold. Gilbert parted with half his shares in order to avoid an impending call, and the transfer and registration were declared void. Lord Romilly, M.R. said that he did not at all mean to dispute the cases which have been decided, that a person who has a certain number of shares in a company which he thinks is turning out ill may get rid of those shares by selling them to anybody whom he can get to take them, provided that there is no fraud committed: "Whether a director can do that is a question which has never yet been determined, and I apprehend that he cannot. His situation is that of trustee for the shareholders, and therefore he is not at liberty to do things which he does not think for the benefit of all the shareholders of the company. Still less may he do so to obtain pecuniary advantage to himself." The case went on appeal to Lord Justice Giffard, and he also declared Gilbert's transfers to be void. In his eyes there was no inherent power in the directors, apart from the provisions of the articles, to refuse to register a proper and valid transfer, if that proper and valid transfer is submitted to them. "I quite agree that because a man is a director he is not necessarily a trustee of the shares he holds for the general body of shareholders; and in a vast variety of circumstances he is just as free to deal with his shares-except perhaps his qualification, which he cannot deal with without giving up his directorship-as any other person." These judgments were referred to and approved by Mr. Justice Kay in the recent case of Re South London Fish Market Company (59 L. T. Rep. N. S. 210; 39 Ch. Div. 324; on appeal, 60 L. T. Rep. N. S. 68). There a company was incorporated by special Act of Parliament, eight persons being the first members. The company was not registered under the Companies Act 1862 (25 & 26 Vict. c. 89), and never held an ordinary meeting. A vestry had recovered judgment for an action for penalties against the company for not having completed certain works by a stipulated time. While this action was pending the eight first directors held meetings, at which they allotted to themselves their qualifying shares, paid a call thereon, and applied the money in payment to one of them of preliminary expenses which he had paid and was liable to pay. Five of them then transferred their shares to a nominee, in consideration of money paid to the transferee. Judgment was given against the company in the action for penalties. No other shares in the company beyond the directors' qualification shares were ever subscribed for. The plaintiffs in the action presented a petition for the winding-up of the company, and Mr. Justice Kay held that the transfers by the directors of their qualification shares, for the purpose of escaping liability, were fraudulent and void, that therefore there were in fact eight members of the company, and that the court had jurisdiction to make a winding-up order. The company appealed, but in vain. The Court of Appeal held that the special Act imposed upon the eight persons incorporated thereby the statutory obligation of continuing directors and members of the company until the first ordinary meeting, and no such meeting having been held, that such eight persons still continued members of the company. Consequently the court had jurisdiction to make a winding-up order. It will be seen that the Court of Appeal decided the question upon grounds different from those taken by Mr. Justice Kay. True, Lord Justice Cotton referred, but only obiter, to the point which we have now in view, saying that it might be the proper construction of a section in the company's private Act, as it was in Portal v. Emmens (35 L. T. Rep. N. S. 882; 1 C. P. Div. 664), that there was a parliamentary fetter upon the directors, obliging them to continue to hold their shares. But the Court of Appeal did not make this the basis of their decision, as did Mr. Justice Kay. It should also be noted that the judge treated the whole of the 245 shares in Gilbert's case (ubi sup.) as having been the director's qualification shares-a fact which is not so stated in the reports-and considered himself as having in that case the authority of two eminent judges that a director cannot deal with his qualification shares as freely as he may with other shares: "Looking at the doctrine of this court, that a voluntary transfer to escape liability in some cases is a fraud, I cannot doubt," said the judge, "that a director voluntarily transferring his qualification shares in order to escape liability is committing a fraud." These two decisions, it will be observed, leave untouched the question whether a director can validly transfer his qualification shares when he does so without any design of escaping liability. Is the transfer which he executes, purporting to vest his qualification shares in a transferee, valid? Under sect. 22 of the Companies Act 1862 (25 & 26 Vict. c. 89) the right to transfer his shares is incident to every shareholder; and therefore a director shareholder has as much right as any ordinary shareholder to transfer his shares and to have his transfer registered, unless he falls within a provision in the company's articles of association enabling the directors to refuse registration where the shareholder seeking to transfer is "indebted to the company in respect of calls or otherwise." The point as to qualification shares was not raised in the recent case of Re Cawley and Co. (61 L. T. Rep. N. S. 601; 42 Ch. Div. 409), in which the Court of Appeal threw a great deal of much needed light upon the legal requisites for a valid call, upon the discretion of directors to take their business agenda in any order they may think proper, and upon the limited discretion of directors to refuse registration It is somewhat curious that the point was not touched in Re Cawley and Co., for the case went very near it. And the very recent cases of Bainbridge v. Smith (60 L. T. Rep. N. S. 879; 41 Ch. Div. 462) and Re Bainbridge; Reeves v. Bainbridge (Weekly Notes, 1889, p. 228) have gone near the point, but have not trenched upon it except by laying down, as Mr. Justice North did in the latter case, that the mortgagor of shares holds them in his own right for the purpose of a director's qualification. It is clear law now that a director does not lose his qualification by mortgaging his qualification shares; and he may be qualified by shares to which he is entitled as trustee, and not in his own right, and even by shares of which he is trustee for the company. Mr. Buckley, in his well-known work on Companies (5th edit., 1887, p. 25), is fairly explicit upon this point. He says this: "In the matter of dealing with his shares, a director is in general as free as any other shareholder. He is not a trustee for the general body of shareholders, so as to be unable to deal with his shares in a manner prejudicial to the interest of his cestuis que trust, but in a vast variety of circumstances is just as free to deal with his shares-except, perhaps, his qualification, which he cannot deal with without giving up his directorship-as any other person." Doubtless the "perhaps" which Mr. Buckley gives in the words italicised is due to the fact that the point has never been directly decided. Agreed that the director who transfers his qualifications shares gives up his seat on the board; cannot he make a perfectly valid transfer of his shares ? As between him and the company he is no longer under the slightest obligation to retain the shares. Parting with his directorate, the shares no longer qualify him for anything, for no qualification is needed by him. He can surely transfer them as fully and as freely as can any shareholder in the company. It is curious that the point should never have been decided within seven-and-twenty years during which sects. 22 and 23 of the Companies Act 1862 have been law. But it is submitted to be tolerably clear which way the decision should be when the precise question comes before the court. COUNTY COURTS ACT (1888) AMENDMENT BILL. By sect. 25 of the County Courts Act 1888 it is provided that a registrar of those courts "shall be a solicitor of at least five years' standing," and further that in certain cases he "shall not practise as a solicitor or notary." By sect. 41 of the same Act it is provided that no registrar or other officer of any such court shall be in any way engaged as solicitor or agent for any party in any proceeding in the said court," under a penalty of fifty pounds for every offence. When the statutes were passed which these sections re-enact, the possibility of a registrar or other officer becoming a barrister subsequently to his appointment was, as is obvious, never contemplated. But it seems that the possibility is now an accomplished fact, and the result, in the opinion of some high authorities, is that a registrar called to the bar may, in the court in which he has judicial functions to perform, freely practise as counsel, and do the very acts which, if he had remained a solicitor, would subject him to very heavy penalties. This Bill, introduced by Mr. Milvain, proposes to enact (1.) That where in any County Court the number of plaints for the preceding year has exceeded eight thousand, the Lord Chancellor may make it a condition of the appointment of any person to be registrar of such court that such person shall not while holding the office of registrar practise as a barrister. (2.) That no registrar, treasurer, high bailiff, or other officer of any County Court or of the City of London Court shall be directly or indirectly engaged as a barrister on behalf of any party in any proceeding in such court. And any such officer in any way so offending shall for every such offence forfeit and pay the sum of fifty pounds to any person who shall sue him for the same. THE ECCENTRICITIES OF FOREIGN PATENT LAW. (Continued from page 134.) 3. PRELIMINARY EXAMINATION AS TO NOVELTY. There are at present in the world three rival views of which France, England, and America are respectively the leading representatives-as to the preliminary examination of applications for letters patent. Under the French system (law of 5th July 1844, articles 11 and 33) not only are patents issued without any preliminary examination whatsoever, but the patentee is required, if he mention his title at all, to add the words, or (in practice) the initial letters of the words, sans garantie du Gouvernement. English patent law goes a little further; but except upon one point, viz., whether the specifications include more than one principal invention, its preliminary examination is restricted to the formal |