Horsell, where the question arose as to the meaning of the word" adjoining." In that case a lease was granted to the plaintiff of a shop, being one of a terrace of six, and he covenanted only to carry on a certain trade thereat, and the landlord covenanted that he would not let any of the adjoining shops for the purpose of a like trade. In breach of that covenant, as it was alleged, the landlord let another shop in that terrace, and in the subsequent action which was brought it was contended that the word adjoining" must be confined to the shops immediately contiguous to that of the plaintiff. Mr. Justice PHILLIMORE was of opinion that under the circumstances the meaning was not so confined and that a breach of the covenant had been committed,, and in this he has been upheld by Lord Justice FLETCHER MOULTON and Lord Justice BUCKLEY, Lord Justice VAUGHAN WILLIAMS taking a contrary view, considering that in dealings with land the word "adjoining" should have a fixed and settled meaning. While in no way desiring to controvert the convenience which would result from the adoption of the opinion of the dissenting Lord Justice, we agree with Lord Justice FLETCHER MOULTON that the surrounding circumstances must be borne in mind and the words of the lease must be construed as a whole. Those words in

the lease in question were" any of the adjoining shops" and not "either of the adjoining shops," and to have held otherwise than as now declared to be the law would have entirely destroyed the benefit of the covenant as clearly intended to be given to the tenant.

Annual Licence Value.

THE difficulty of construing enactments relating to the revenue, and particularly those of recent years, has again been demonstrated by the case Re The Eagle, in which the question arose as to the basis upon which the annual licence value of licensed premises should be ascertained. Mr. Justice HAMILTON was of opinion that the annual licence value should be ascertained in accordance with the mode of calculating the amount to be paid as compensation under sect. 2 of the Licensing Act 1904 (now sect. 20 of the Licensing Consolidation Act 1910) and that the provisions of sect. 44 (2) of the Finance (1909-10) Act 1910 had not been affected by sect. 8 of the Revenue Act 1911, and on this point all the members of the Court of Appeal apparently agreed with him. He held, however, that, in arriving at the annual licence value, so much only of the value arising from the sale of commodities other than intoxicating liquors as arose from profits which might have been made upon the premises if they had not been licensed should be taken into consideration. This was acquiesced in by Lord Justice KENNEDY; but the Master of the Rolls and Lord Justice FARWELL considered that, having regard to the words of sect. 44 (2), which provides :

In estimating for that purpose the value as licensed premises of hotels or other premises used for purposes other than the sale of intoxicating liquor, no increased value arising from profits not derived from the sale of intoxicating liquor shall be taken into consideration,

Mr. Justice HAMILTON was wrong upon this second point. Lord Justice FARWELL pointed out that the Legislature intended to avoid difficulties of assessing items, and directed the valuers that in estimating the value they

were

on no account to take into consideration any increased value arising from profits not derived from the sale of intoxicating liquors, and both he and the Master of the Rolls came to the conclusion that the true construction of the section was its natural meaning. It is

a difficult and important case, and, owing to its farreaching effects, we have little doubt that it will be taken to the House of Lords.

NEGLIGENCE CLAUSES IN CONTRACTS OF
AFFREIGHTMENT.

In the preface to one of the leading text-books dealing with maritime matters, written over twenty years ago, the learned author remarked that "shipowners also have gradually protected themselves by exceptions in their bill of lading against every risk of liability for damage to the goods they carry, until the bill of lading contains fifty or sixty lines of closely printed conditions and exceptions, and there appears to be no duty imposed on the fortunate shipowners but that of receiving the freight." This somewhat caustic observation serves to illustrate the nature of modern bills of lading, the print being, as the author suggests, in tiny type which alone has often been adversely commented on by judges.

66

Practically every bill of lading and charter-party contains what is known as a negligence clause, usually of a very compre hensive character, as appears from the following, which is a form commonly used by a railway company in connection with their steamer service, and which exempts them from liability for all accidents occasioned by "any act, neglect, error, misfeasance, or default whatsoever of the master, officers, engineers, crew, stevedores, servants, or agents of the shipowners, or other persons whomsoever in the management, loading, stowing, and transmitting the cargo, or in navigating the ship or otherwise. Generally speaking, negligence clauses are construed strongly s against the shipowner. In the well-known case of Price v. Union Lighterage Company (88 L. T. Rep. 428; (1903) 1 K. B. 750) Mr. Justice Walton said: " An exemption in general words, not expressly relating to negligence, even though the words are wide enough to include loss by the negligence or default of the carrier's servants, must be construed as limiting the liability of the carrier as assurer, and not as relieving him from the duty of exercising reasonable skill and care. If the carrier desires to relieve himself from the duty of using by him. self and his servants reasonable skill and care in the carriage of the goods, he must do so in plain language and explicitly, and not by general words." In that particular case the defendant, a barge owner, was exempted from liability for any loss or damage to goods which can be covered by insurance," and it was argued on his behalf that, as negligence on the part of his servants could be insured against, he was not liable, but Mr. Justice Walton, applying the principle laid down above, held that he was liable. In The Pearlmoor (90 L. T. Rep. 319; (1904) P. 286) the bill of lading contained the following marginal clause: "In no case is the steamship to be held liable for heating or any other damage accruing to the within-mentioned goods, nor for insufficient strength of bagging," and in the body of the bill of lading there was an exception, relied upon by the owners of the steamer, with respect to loss or injury occasioned by "any act or omission, negligence, default, or error in judgment of stevedores or other persons in the service of the shipowners." There, Mr. Justice Gorell Barnes, following Price v. Union Lighterage Company (sup.). held that the shipowners were not relieved from liability for damage arising from heating occasioned by the negligence of the defendants' servants in improperly stowing the goods. The learned judge pointed out the marginal clause only occurred in a bill of lading which dealt with negligence in certain specific cases, and negligence being thus dealt with in certain specific cases, and general words being used elsewhere, led to the conclusion that if in such a marginal clause the negligence of the shipowner or his servants was to be excluded, the language should expressly refer to that

exclusion.

In Nelson Line (Liverpool) Limited v. J. Nelson and Sons Limited (97 L. T. Rep. 812; (1908) A. C. 16) the shipowners were protected by an exception in the charter-party in respect of unseaworthiness or unfitness of the ship, "provided all reasonable means have been taken to provide against unseaworthiness"; negligence on the part of their servants; and also "for any damage or detriment to the goods which is capable of being covered by insurance or which has been wholly or in part paid for by insurance." The goods in this case were seriously damaged through a defect in the refrigerating apparatus, and it was found as a fact that through the neglect of the defendants

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reasonable means had not been taken to prevent such unfitness. The plaintiffs were partially covered by insurance, and had in fact been paid the insured proportion of the loss. Mr. Justice Bray and the Court of Appeal, following Price v. Union the Lighterage Company (sup.), held that the shipowners were liable, notwithstanding the fact that the damage had been partially paid for by insurance, as they were not exempted from liability for damages arising from their obligation to provide a seaworthy ship, having failed to take reasonable means to provide against ler its unfitness, and these decisions were affirmed by the House of eceivi Lords.

to

meing.

In the case of Rosin and Turpentine Import Company Limited v. Jacob (101 L. T. Rep. 56) the defendants agreed to lighter of goods on the terms of the following clause which was printed on their invoices and memoranda : "The rates charged by B. Jacob and Sons Limited are for conveyance only, and every reasonable precaution is taken for the safety of the goods whilst in craft; they will not be liable for any loss or damage, including negligence, which can be covered by insurance, and the shipper in taking out a policy should effect same 'without recourse to fighterman,' as B. Jacob and Sons Limited do not accept Mr. Justice Bray and Tesponsibility for insurable risks." the Cozens-Hardy, M.R. in construing this clause took the view that the language of the words “ every reasonable precaution is taken for the safety of the goods whilst in craft was inconsistent with the subsequent clause that the defendants "will not be liable for any loss or damage, including negligence, 1K which can be covered by insurance," and that the language used on in by the defendants was not so clear and unambiguous as to leave no doubt in the mind of the shipper as to the extent of the advantage which he was to get by the contract. Lords Justices Farwell and Kennedy took the opposite view, which relie was subsequently affirmed by the House of Lords, Lord Collins dissenting. Lord Loreburn, L.C. in giving judgment read the clause as meaning: "You must not suppose that we are careless people, but we will not accept liability; you must insure if you wish to be protected both from our own and our servants' negligence." Lord Collins differed on the ground that the language was ambiguous, and that the lightermen were liable on the principles laid down in Elderslie Steamship Company v. Borthwick (92 L. T. Rep. 274; (1905) A. C. 93) and Nelson Line (Liverut Mr pool) Limited v. J. Nelson and Sons Limited (sup.).

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It should be remembered that railway companies running a service of steamers stand in a different and less favourable position than the ordinary shipowner with regard to negligence clauses. The Railway and Canal Traffic Act 1854, s. 7, provides (inter alia) that railway companies shall be liable for any loss or injury to goods occasioned by the neglect or default of the company or its servants, "notwithstanding any notice, condition, or declaration made and given by such company contrary thereto, or in anywise limiting such liability, every such notice, condition, or declaration being hereby declared to be null and void," with the saving provision that nothing in the section should be construed to prevent the companies making such contracts as should be adjudged by a court or judge to be just and reasonable. There. fore in every case where a railway company is relying on a negligence clause the court has to determine whether under the circumstances the clause is reasonable. illustration of how this works in' practice, reference may be made to the case of Riggall v. Great Central Railway Company (101 L. T. Rep. 392; 14 Com. Cas. 259), where a railway company were relying on a negligence clause in one of their bills of lading which had been inserted during the previous thirtyfive years. It was held in this case that as there was no bonâ fide alternative rate of freight such a contract was not "just and reasonable" within the meaning of the section (and see also Jenkins v. Great Central Railway Company, 106 L. T. Rep. 565).

e

LEGAL EDUCATION.

THE work for the year 1911-1912 of those responsible for legal education in England may be said to have come to an end at the annual meeting of the Society of Public Teachers of Law on Friday, the 5th July. That meeting was held in the Parliament Chambers of the Middle Temple; and one of the matters considered at it was a communication from the Council of the Law Society discussing and largely adopting recommendations made by a special committee of the society in respect of the education of articled clerks. After the meeting the members of the society were entertained at dinner by the Treasurer and Benchers of the Middle Temple in the ancient hall of the Inn.

The action of the Council of the Law Society and of the Treasurer and Benchers of the Middle Temple may be regarded as a notable recognition by the ". practical lawyers of both branches of the Profession of the status of the professional teacher of law. It is strange that any such recognition should be notable at this time of day. Centuries ago the teaching of law by lecture, moot, and class was held to be the most important duty of the Inns of Court. Each of these provided Inns of Chancery where every student underwent preliminary training before being admitted to an Inn of Court. After he was admitted he pursued a long course of study under the direction of Readers appointed by his Inn; and it was only when he satisfied these Readers that he had acquired a sound knowledge of law that he was permitted to be called to the Bar. But during the eighteenth century, which in many ways was an age of stagnation and sinecure, this whole system of education was allowed to become obsolete. The Readers continued to be appointed by the Inns, but they ceased to teach. The Inns of Chancery continued to exist, but they became the private property of the Ancients" who controlled them. The same state of things prevailed at both the universities. As Professor Goudy pointed out in his introductory address as president of the Society of Public Teachers of Law, before 1852 there were only two chairs of law in Oxford-the Regius Chair of Civil Law and the Vinerian Chair of Common Law-and the common characteristic of both was that nobody expected their occupants to do anything. The Regius Professor was a prebend of Salisbury, where he usually resided. The Vinerian Professor was not infrequently an Indian or colonial judge visiting the university once in ten or twenty years.

Shortly, during the whole of the eighteenth century and the first half of the nineteenth, so far as the universities and the Inns of Court were concerned, the law student was allowed to pick up his knowledge of law wherever he could find it. He usually found it in barristers' chambers or solicitors' offices. He went to a pupils' room where he fought with lions. If he succeeded in learning anything it was by dint of persistent industry-no doubt a quality pretty sure to bring its owner, sooner or later, success in the practice of the law.

But the drudgery necessary to learn the first elements of law had two very evil effects. In the first place, it disgusted and alienated some of the finest intellects which came to its study. Both Mr. Gladstone and Lord Beaconsfield commenced as students of Lincoln's-inn] and both retired before qualified for call, and both to the end of their days entertained a profound contempt for the "science of law, and also-rather unreasonably-for its professors. Lord Bowen himself was saved from the same fate as by fire. He spent the first and worst part of his study of law in a conveyancer's chambers, and until his death he remembered his experiences there with such bitterness that in going home he used to make a detour in order to avoid passing a place which recalled those depressing days to his memory.

The other evil was that, the law not being scientifically considered or arranged, it remained a turbid ocean of technicalities and absurdities in which its essentially sensible principles were totally submerged. This the "practical" lawyers of the time could not 'for the life of them see. They continued telling about English law being the perfection of human reason while the unfortunate litigant was raging over the delays, the expenses, and the pitfalls which made a lawsuit spell ruin.

The first awakening came with Blackstone and Bentham. Blackstone for a moment stirred the stagnancy of Oxford by his

lectures on English law. These were afterwards known to fame as his Commentaries. It is a strange fact, but true, that before their appearance the only attempt to produce an institutional work on English law for some hundreds of years was the incomplete treatise of Coke, the better part of which is now known as Coke on Littleton, published in the reign of Charles I. (1628). Bentham attacked Blackstone's book bitterly; but unconsciously they were both working to the same end. One was trying to put the chaotic law of England into some semblance of order; the other was attempting to clarify it by removing its technicalities and basing its administration on principles of utility and common

sense.

The efforts of both really began to operate strongly about the middle of the nineteenth century. So far as the study of the law is concerned, the year;1852 is celebrated for the first great reform of the universities and for the establishment of the Council of Legal Education.

For a long time the attempt to teach law by lectures and classes was regarded by "practical" lawyers with scant favour. It was at first set up as an alternative merely to reading in chambers. I believe call to the Bar by reading in chambers was ultimately crushed through the innocent reply of a distinguished junior, who had certified that a candidate for call had read for two years with him. A member of the Council of Legal Education happened to ask him about the young gentleman; and he upon reflection said that he thought he remembered meeting the youth once at the Derby. Since then candidates for the Bar have found passing an examination an indespensable preliminary to call.

It is not strange that the students shared this feeling of disdain with which their seniors regarded the new system of law teaching. But gradually it made its way. The number of law teachers at the universities and at the Inns of Court and Law Society were steadily increased until now the Society of Public Teachers of Law numbers over 100 members, and that does not include all the public teachers of law in England. At the same time, the numbers of students attending their lectures and classes has increased in even greater proportion. The Honour School of Jurisprudence is now one of the most flourishing at Oxford, as the Law Tripos is at Cambridge. Though attendance at the law lectures at the Inns of Court and the Law Society is entirely voluntary, the difficulty at the Inns of Court now is not to attract the students, but to provide accommodation for those who wish to attend; and only last year the Law Society found it necessary to add to its buildings additional rooms for the admirable school which the energy of Mr. Jenks and his assistants has established there.

Coming to the school with which I am most intimately acquainted-that of the Inns of Court-the classes last year exceeded in size anything hitherto attained. My own-and I believe they are much the same as the classes of the other Readers and Assistant Readers-not infrequently came up to close upon 150 men. And these men were of all ages and of all countries-Indians and Burmese, Dutchmen from South Africa, Frenchmen from Canada and the Mauritius, Spaniards from Gibraltar, Greeks from Cyprus and Egypt, Chinamen from HongKong and Singapore, besides our own people and colonials of our

own

race. Many of them were officials who had held high positions in the public service, civil or military; many more were vakils or pleaders who had seen years of practice in India or Burmah. Indeed, in many respects the law school of the Inns of Court is now, in the strictest sense of the words, an Imperial school of law; and it must be added that the Council of Legal Education have recognised this, and have done all in their power to provide for the wants of students from all parts of the Empire.

This much further is to be remarked about the students. It is now the most promising men who attend the lectures. Those who merely want to scrape through the final examination trust to private coaches; those who wish to do more are constant in attending the lectures. That what they learn there is not merely useful for the Bar examinations is proved by this, that when they enter for examinations in other places their success is remarkable. For instance, only some three or four Bar students sat for

the London LL.B. last year, and of those two obtained first honours, being, if I remember rightly, second and third in that class. Their success at the B.C.L. of Oxford was equally marked.

There are one or two suggestions I should like to make with regard to the law school of the Inns of Court for the considera tion of the Council, who have always shown an anxious care to provide for the wants of the students and the Empire.

In the first place, it is in my opinion highly desirable that permanent home should be provided for the school. At present the lectures are distributed between the Inner Temple, Lincoln's inn, and Gray's-inn; the rooms in the Middle Temple not being sufficiently large, no lectures are now delivered there. Some of the rooms in the other Inns are also not sufficiently large. This, however, may before long right itself, as the influx of Indian students is not now so great as it was a year or two ago. But, independently of this, it is very desirable that the law school should have a physical embodiment which would bring it existence home to the students of the Inns of Court.

In the second place, the classes are now so large that it has become impossible, under the present system, for the teacher to be in personal touch with the bulk of his students. As I have said, possibly before long the numbers attending may decrease; but for my own part I think that any falling off in Indian students will probably be largely made up by increased attendance of Englishmen. At any rate, there is no apparent chance of the classes becoming so small that the teacher will be able to give his students anything in the nature of individual instruction in them. Yet individual instruction really is at least as important as lectures. One has only to note how many students crowd round the teacher after his lecture has finished to submit to him difficulties they have encountered in their reading to realise this. Often many of these, after waiting patiently for half an hour, go away either despairing of their turn ever coming or ashamed to keep the lecturer answering their questions long after his work should be over. Now, in this connection I would venture to suggest that an arrangement might be made under which one of the Readers or Assistant Readers in, at any rate, real property and equity-which are the subjects in which students need the most assistance should be at his chambers between certain hours during the edu cational terms for the purpose of seeing students who wish to have his assistance in their work. Such an arrangement has already been made with the Director of Legal Studies (Mr. Blake Odgers, K.C.), and everyone interested in the matter knows what an advantage this has proved to all Bar students, especially to those studying common law and procedure. I suggest that this arrangement should be extended so far as to have one teacher to assist students of real property and equity, and also, if possible, another to assist those studying Roman law and constitutional

law.

A third suggestion arises out of a complaint made to me by one of the most distinguished of what newspapers call our proconsuls. He said that one of the greatest wants of the Empire at the present moment was a school where a special training in elementary law might be given to members of the Crown Colonial Civil Service. Many of such members, though brought up as military or medical men, are placed in positions where they have to act as magistrates over immense populations. He had found from experience how much more satisfactorily these men performed their duties when they happened to have had even a slight training in law. Personally, I doubt whether this matter comes within the duties of the Council of Legal Education, who are, after all, charged merely with the education of students of the Inns of Court. But that some such training should be provided by someone seems to me beyond doubt.

However, whatever suggestions of improvement may be made, the Council of Legal Education have this to their credit, that they have contrived to establish the greatest school of law in the Empire, and that an entirely voluntary school. No doubt the instruction given in it needs supplementing by some practical work in chambers; but so far as law can be taught by lectures and classes, it is now well taught in the Inns of Court.

J. ANDREW STRAHAN.

ght

COMMENTS ON CASES.

Administration of Charities under Schemes.

SCHEMES innumerable have been framed by the Charity - Commissioners, under the power conferred upon them by sect. 2 of the Charitable Trusts Act 1860 (23 & 24 Vict. c. 136). Charities of sundry descriptions have thereby been efficiently administered, schemes being usually established for the purpose of applying charitable funds cy-près. But the curious combination of circumstances that occurred in the recent case of Re Faraker; Faraker v. Durell (noted ante, p. 279), in which a scheme played so prominent a part, has not apparently ever previously y come before the courts. From our note it will be seen what those nud unwonted circumstances happened to be. The facts of main two importance were that a testatrix bequeathed a small legacy to an the ancient endowed charity in a certain parish-naming it approxiwould mately correctly-which charity had three years antecedently rt been made the subject of a scheme by the Charity Commissioners, arge and was consolidated with thirteen others, whereto the title of the the "Consolidated Charities" was applied. The charity intended ents to be enriched by the testatrix was founded with the sole object myof benefiting poor widows resident in the particular parish referred g of ito by her. Not only did the scheme destroy altogether the aseddentity of that charity, but no special or preferential proat chrision in favour of widows was thereby made. Widows be able were not actually excluded from the scheme. They simply lintecame members of a larger class of poor and necessi

st as mous persons resident in the parish in question, who

Appeal (see ante, p. 280). It followed that the conclusion based thereon could readily be shown to be likewise erroneous. The misapprehension into which the learned judge fell was apparently created by confounding the provisions of sect. 5 of the Matrimonial Causes Act 1859 (22 & 23 Vict. c. 61) with those of sect. 45 of the principal Act of 1857 (20 & 21 Vict.' c. 85). The latter empowers the court to order a settlement to be made of any property to which a wife, who is found guilty of adultery, is entitled, either in possession or reversion. By the former, power is given to the court, after a final decree of nullity of marriage or dissolution of marriage, to inquire in to the existence of antenuptial or post-nuptial settlements, and to make orders with reference to the application of the whole or a portion of the property settled. It is seen, therefore, that the power of variation relates solely to such settlements as may have been executed either before or after marriage, and made by the husband and wife themselves. But a life interest given to the wife by a will, as in the present case, would not be governed by sect. 5 of the Act of 1859. Under that section Constantinidi v. Constantinidi and Lance (91 L. T. Rep. 273; (1904) P. 306) arose. It was really no authority in the present case, though supposed to be so. The same remark applies to Churchward v. Churchward (102 L. T. Rep. 862; (1910) P. 195). It could not be said, therefore, that a clause in restraint of anticipation did not oust the jurisdiction of the court to put into operation sect. 45 of the Act of 1857. And it was because of the existence of such a clause, and the disregard thereof by Sir S. T. Evans, that the Court of Appeal came to a conclusion contrary to that arrived at by him. As to Milne v. Milne and Fowler (25 L. T. Rep. 274; L. Rep. 2 P. & M. 295), which Sir S. T. Evans viewed as an instance of an order having been made similar to that which he was asked to make, and, consequently, an authority directly in point, that case appears to be distinguishable. A clause for forfeiture on alienation was contained in the will in question there. But seemingly a clause against anticipation was absent from it. The decision of the Court of Appeal in Midwinter v. Midwinter and Edwards (65 L. T. Rep. 438; (1892) P. 28) was not cited to Sir S. T. Evans. Had it been so, his Lordship might conceivably have hesitated long before pronouncing the judgment that he did. For in that case Lord Justice Kay, in the clearest possible terms, gave it as his opinion that a life interest which a guilty wife had under the will of her father, and as to which she was restrained from anticipation, could not be interfered with. The court had no power, the learned judge said, to make a settlement, or to compel the wife to do so, of that property. With the assistance derived from that opinion, and on general principles, the Court of Appeal decided as they did in the present case,

studenvere to derive advantage from the scheme being formulated. o subUnder these circumstances, the contention was-and it prevailed ding with the learned judge in the court of first instance, Mr. Justice ntly freville—that the charity meant to be the object of the testatrix's ever county was extinct as the result of the scheme; and that, contions equently, the legacy had lapsed. That contention was based on ection doctrine which is perfectly well settled: Where no general haritable intention is shown by a testator, but merely a desire to Readerenefit a particular specified institution, there is a lapse of a e the egacy thereto if the institution has ceased to exist. For "when ces gift is made by will to a charity which has expired, it is as tach a lapse as a gift to an individual who has expired": (per The Vice-Chancellor Page-Wood in Fisk v. Attorney-General, 17 L. T. Trangle p. 27; L. Rep. 4 Eq. 521, citing Clark v. Taylor, 1 Dr. 642, and dies Russell v. Kellett, 3 Sm. & G. 264. See, further, Re Ovey; Broadtterbent v. Barrow, 52 L. T. Rep. 849; 29 Ch. Div. 560, at p. 564; and to, espele Joy; Purday v. Johnson, 60 L. T. Rep. 175). But that is uggest precisely where, in the opinion of the Court of Appeal, the con

e one

8

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tention broke down. The charity designated by the testatrix was also, if not extinct, and could not be. It existed just as much as it did cons when originally founded, notwithstanding the peculiar nature of the scheme whereby it was affected. As was laid down by made Mr. Justice Swinfen Eady in Re Betton's Charity (98 L. T. Rep. ars call:35; (1908) 1 Ch. 205), a scheme of the Charity Commissioners

s of the does not in any way .restrict or alter the objects of a charity.

thought

positions

population

His Lordship applied the decision of the House of Lords in Re Button Coldfield Grammar School (45 L. T. Rep. 631; 7 App. Cas. 91) in regard to the making of a future scheme being practicable. That the Court of Appeal, in the conclusion at which they arrived, have pronounced a right decision there does not appear isfactor to be much room for doubt. No authority can be cited in which

I doubt

ned to an endowed charity has been treated as extinguished merely

because of a scheme. Yet the metamorphosis of the charity in

Council the present case was of so extensive a character as to lead to some

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Settlement of Divorced Wife's Property.

THE CONVEYANCER.

Vendor and Purchaser-Signature of Purchaser's Name by Auctioneer.

Ir seems now to be settled law that where there is a sale by public auction, and the property is knocked down by the auctioneer to the highest bidder, the auctioneer is not only the agent of the vendor, but he is also the agent of the purchaser, and that he is entitled to sign in the name and on behalf of the purchaser a memorandum sufficient to satisfy the provisions of the Statute of Frauds, stating the particulars of the contract: (see Sims v. Landray, 70 L. T. Rep. 530; (1894) 2 Ch. 318). The principle of that case was followed in Brooks v. Billingham (133 L. T. Jour. 8). The question also arose under somewhat special circumstances in the recent case of Dewar v. Mintoft (106 L. T. Rep. 763; (1912) 2 K. B. 373), a case which should be a warning to persons attending auction sales not to give the auctioneer a bid by way of a friendly start unless they are prepared to accept the property if it is knocked down to them. That case is instructive on several points of the law of vendor and purchaser. The facts are very shortly as follows: The particulars, conditions, and memorandum of agreement formed one document, as they usually do. The auctioneer, finding some difficulty in obtaining a bid, with an astuteness which does credit to his knowledge of human

So convincingly did the learned President of the Divorce Division succeed, as it appeared to us (see ante, p. 202), in presenting the reasons for his decision in the recent case of Loraine v. Loraine and Murphy (106 L. T. Rep. 644) that in our opinion, we confess, there seemed no great probability of an appeal therefrom being able to be maintained. In that assumption, however, it turns out we were mistaken. The grounds upon which his Lord ship proceeded were held to be wrong by the Court of

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nature, asked if any gentleman would start him at £1500, that being £500 above the reserve price. The defendant replied, Yes, I will," and the farm was knocked down to him. The defendant had no intention of buying. On knocking down the farm to the defendant, the auctioneer wrote on the particulars, opposite the particulars of the outgoings, Mintoft, £1500." The conditions of sale contained a provision for forfeiture of the deposit and for resale if the purchaser failed to comply with any of the conditions. Other property was offered for sale at the same auction, and, before the sale of such other property was over, the defendant's solicitor told the auctioneer that the defendant had not intended to bid as a purchaser, and requested the auctioneer to put up the farm again, which he refused to do. A correspondence ensued between the defendant and the plaintiff and his solicitors in which the defendant, while repudiating the contract, admitted that the property was knocked down to him. The deposit, which was to be 1 per cent. on the purchase money and on the valuation of the timber, was never paid, and the defendant did not sign any document. The property was afterwards resold for £1470, and the statement of claim claimed £164 17s. 11d., being £150 as deposit on the £1500 and £14 7s. 11d. for the deposit on the valuation of the timber. The action was tried before Mr. Justice Horridge at the Oxford Winter Assizes 1912, when the jury found that the defendant had made a bid upon which both parties could act. The question reserved for further consideration was whether there was a sufficient memorandum in writing to satisfy sect. 4 of the Statute of Frauds, and the judge held that, the jury having found the verbal contract, the letters, particulars, and conditions constituted a sufficient memorandum. The judge thought, however, that the mere insertion by the auctioneer of the words "Mr. Mintoft, £1500 " on the particulars of sale was not a sufficient signature within the meaning of sect. 4 of the Statute of Frauds, as it did not appear thereby that the name was that of the purchaser of the land. The case of Newell v. Radford (17 L. T. Rep. 118; L. Rep. 3 C. P. 52) apparently was not cited. In that case on a purchase of flour J. W., a duly authorised agent of the defendant, made the following entry in a book belonging to Newell the plaintiff: "Mr. Newell, thirty-two sacks culasses at 398., 2801b., to await orders. June 8. -John William.' The plaintiff was a baker and the defendant a flour dealer. A correspondence took place subsequently to the purchase between the plaintiff and defendant as to delivery of the flour. The defendant refused to deliver it. A verdict was found for the plaintiff subject to the question of the Statute of Frauds, and it was held by the Court of Common Pleas that the aforesaid entry was sufficient to satisfy the Statute of Frauds. That case no doubt turned largely on the fact that the defendant was a person who sold flour and the plaintiff a person who would require to purchase it for the purpose of his trade. But it was also held that the correspondence showed which was the buyer and which the seller. In Dewar v. Mintoft it was admitted in argument that the auctioneer had authority to bind the defendant, but he had not signed the defendant's name as purchaser. It was also decided that, though no deposit had in fact been paid, the vendor was entitled to recover the amount thereof, and not merely the actual damage suffered by the vendor, as the defendant could not put himself in a better position by refusing to pay the deposit than if the deposit had in fact been paid. The authority of an auctioneer to sign a memorandum of the contract as agent for the purchaser does not extend to the auctioneer's clerk, unless the purchaser has, by word, sign, or otherwise, authorised the clerk to sign as his agent. Further, the auctioneer must sign at the time and as part of the transaction of sale: (see Bell v. Balls, 76 L. T. Rep. 254; (1897) 1 Ch. 672). It would seem that the authority of the auctioneer to sign cannot be revoked by either vendor or purchaser after the fall of the hammer (see Day v. Wells, 30 B. 220), but, as before appears, such authority may cease: (see Bell v. Balls, sup.). Legacies Payable Out of a Mixed Fund-Costs of

Administration.

WHEN, as is often the case, a testator devises and bequeaths his residuary real and personal estate to trustees upon trust for

sale and conversion, and directs that they shall out of the moneys to arise therefrom pay his funeral and testamentary expenses and debts and legacies, the legacies are payable out of the mixed fund, and, therefore, pro rata out of the real and personal estate This being so, it was decided by Mr. Justice Swinfen Eady in Re Spencer Cooper; Poë v. Spencer Cooper (98 L. T. Rep. 344; (1908) 1 Ch. 130) that so far as the legacies are payable out of the portion attributable to realty they are real estate, and must bar their own estate duty, notwithstanding the direction "to testamentary expenses out of the mixed fund. Having regard to that decision, it seems advisable to insert an express direction in the will that the legacies and the duty on any bequeathed free of duty shall be paid primarily out of the personal estate. In connection with this subject, the question of the costs of the administration of real estate may be usefully referred to. It has been settled ever since Patching v. Barnett (1873), a report of which will be found in a note at (1907) 2 Ch. 154, and Re Middleton; Thompson v. Harris (46 L. T. Rep. 359; 19 Ch. Div. 552 that the costs of an administration action, so far as they have been increased by the administration of the real estate, are to be borne by the real estate. And that rule has not been altered or affected by the Land Transfer Act 1897: (Re Jones; Elgood v. Kinderley, 85 L. T. Rep. 608; (1902) 1 Ch. 92). The same case decided that the costs of probate or of letters of administration are still to be borne by the personal estate. As pointed out by Lord Justice Buckley (then Mr. Justice Buckley) in that case, although by sect. 2, sub-sect. 3, of the Land Transfer Act 1897. in the administration of the assets of a person dying after the commencement of the Act, his real estate is to be administered in the same manner and subject to the same liabilities for debts costs, and expenses as if it were personal estate, the same section provides that nothing in the Act contained is to alter or affect the order in which real and personal assets were then applicable in the payment of funeral and testamentary expenses, debts, or legacies, or the liability of real estate to be charged with the payment of legacies. That case was followed in Re Betts; L Doughty v. Walker (96 L. T. Rep. 875; (1907) 2 Ch. 149), in which it was held that, although the effect of the Land Transfer Act 1897 has been to make the costs of administering real estate testamentary expenses, the ordinary practice of the Chancery Division is nevertheless still applicable, and accordingly the costs of an inquiry as to the heir-at-law of a testatrix who had died intestate as to her real estate must be borne by the realty, notwithstanding a direction in her will that her testamentary expenses should be paid out of her personal estate.

If, therefore, a testator intends that the costs of administering his real estate shall be borne by his personal estate, the will must contain specific direction to that effect. The foregoing cases no doubt relate principally to costs in an action or suit, but it is submitted that by analogy the same principles apply to costs of proceedings out of court, as to which there appears to be a remarkable absence of authority.

Voluntary Assurances of Land to Charitable Uses.

As is well known, it was provided by sect. 4 of the Mortmain and Charitable Uses Act 1888 (51 & 52 Vict. c. 42) that an assur ance of land to or for the benefit of any charitable uses and of personal estate (not being stock in the public funds), unless made in good faith for full and valuable consideration, must be made at least twelve months before the death of the assuror, including in those twelve months the days of the making of the assurance and of the death. And assurances of land or personal estate (other than stock in the public funds) must within six months after the execution thereof be enrolled in the Central Office of the Supreme Court of Judicature, unless in the case of an assurance of land to or for the benefit of charitable uses those uses are declared by a separate instrument, in which case that separate instrument must be so enrolled within six months after the making of the assurance of the land. This being so, when a person makes voluntary conveyance by deed to a charity it seems desirable that he should at the same time make a contingent will or codicil confirming such deed-that is, a will or codicil only to take effect if he should die within twelve calendar months after the date thereof. The following is a precedent of such a

codicil.