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Courts ought to be given to members of the Common Law Bar. We certainly agree in this, and Mr. AMPHLETT'S appointment would be regarded simply as a reward to a political supporter.

It is stated that the LORD CHANCELLOR does not intend to create the new batch of silks until after the spring circuits. His Lordship, we hear, was prepared to make an exception in favour of Mr. COHEN, but that learned gentleman declined to accept the invidious distinction.

The development of dramatic incidents in legal proceedings must be considered as somewhat alarming. Two matters are now before the public which are of great interest and importance -the Tichborne case and the Taunton petition, and in both the audience has forgotten itself, and the presiding judge has intimated that a court of law is not a theatre. But applause and immoderate laughter are contingencies which cannot always be provided against, and surprise would hardly be excited by both being indulged in at reasonable intervals. The licence accorded to the Tichborne defendant has, however, clearly demoralized him, for at the close of his counsel's address he delivered himself as follows:-"Doctor, I tender you my very sincere thanks for the very able manner in which you have defended me; and I hope I shall soon be able to clear off some of the 6001. I am still indebted to you." The learned counsel bowed his acknowledgments, but the extraordinary compliment thus publicly tendered was unhappily spoiled by the reference to pecuniary matters. The honoraria upon which a barrister is supposed to keep up a gentleman's establishment should never be paraded before the public eye in the prosaic form of £ s. d, and the defendant certainly shewed himself anything but a consummate actor. The incident is altogether shocking to professional feelings and to our sense of decorum, but we do not see our way to suggesting any plan for preventing the recurrence of similar manifestations. 700

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COURT OF PROBATE.
In the Goods of MATILDA YOCKEY-
Will-Unexecuted testamentary paper 699
ADAMSON r. ADAMSON AND HAMMOND-
Testamentary suit-Married woman's

will-Settlements-Costs.....

COURT OF ADMIRALTY.
THE PIEVE SUPERIORE-
Damage to cargo-Jurisdiction

LEADING ARTICLES, &c.

702

TO READERS AND CORRESPONDENTS ..... 191
LEADING ARTICLES:-

191
192

194

196

197

Mines excepted out of grant of surface -Right of owner of surface to subterranean water....

638

COURT OF APPEAL IN CHANCERY. SELBY . NETTLEFOLD

Right of way-Substituted way-Injunction

661

ROLLS COURT.

THE YSTALYFERA IRON COMPANY . THE
NEATH AND BRECON RAILWAY COM-
PANY-

Railway Company-Compulsory powers
-Notice to treat

662

V.C. BACON'S COURT.

Topics of the Week.

STEVENSON, MASSON

Domicil of origin-Abandonment of-
Will......

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193

Re ROYAL VICTORIA PALACE THEATRE
SYNDICATE—

Duties Payable by Renson of Death.

193

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The Liabilities of Husbands for Debts
Contracted by their Wives...

LAW LIBRARY

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RUMOURS affecting the law have been unusually prevalent during the week, and the most important turns out to have been unfounded. It was stated confidently that Mr. AMPHLETT, Q.C., of the Chancery Bar, had been appointed to the vacancy in the Court of Exchequer. Whether this may ultimately be the case it is impossible to conjecture, but we can say positively that the appointment had not been made when we went to press. Some surprise, and a little consternation was produced in Westminster Hall when this rumour spread, for, the Judicature Act notwithstanding, it is considered that Judgeships in the Common Law VOL. LVI.-No. 1607.

An important practical question was decided in Elmer v. Creasy (29 L. T. Rep. N. S. 632), in which it was held that a mortgagee in possession, defendant in a redemption suit, who admits himself to be redeemable, cannot decline answering interrogatories as to the state and particulars of the account. The LORD CHANCELLOR pointed out that the rule as settled by Lord ELDON was that a defendant, submitting to answer (even when he altogether denied the plaintiff's title) must answer fully even as to consequential matters of account. In Elmer v. Creasy one of the objects of the suit was to obtain accounts before the decree. Lord SELBORNE reviewed the authorities which seem to have thrown some haze over the prac tice, and said finally, "We are not now called upon to determine whether the defendant must, in answer to these interrogatories, set forth as full and detailed a statement of all the items of the account as he might be obliged to give under a decree of redemption. The court may be trusted to exercise a proper control over any attempt on the plaintiff's part to press for any such minuteness of account as would be either vexatious or unreasonable, as indeed, it can do in any case in which it is satisfied that any kind of discovery is required vexatiously or oppressively: (Reade v. Woodrooffe, 24 Beav. 425). But the present question is whether the defendant is entitled to refuse to answer at all, before decree, as to these matters. The VICE-CHANCELLOR has decided that he is not, and with that decision we agree."

THERE are unconscionable people who think that magistrates have already as large a jurisdiction as it is advisable to confer upon them, and indeed a certain section of the public is so wanting in appreciation of the gratuitous services of these judges that to a certain extent justices' justice has become a proverb. We can easily understand therefore that the proposition of a Somersetshire magistrate that magistrates should preside over Courts of Conciliation in aid of the County Courts will be regarded with a certain amount of consternation. One half of the business entered in a Somersetshire County Court is, it appears, settled out of court. For some incomprehensible reason, the Somersetshire magistrate considers that this is a serious evil. The proposal to deal with disputes by means of a paternal Court of Conciliation is thus put forward by the magistrate in a local paper: "People take their little disputes to the County Court, and, after having spent much hard-earned money and wasted much valuable time, after having publicly exposed their secret affairs, and given provocation to the gossip of friends, and the malice of the ill-natured, they learn to their mortification that there was really nothing to fight about. A few questions by an intelligent, patient, and sympathising magistrate, would, at the outset, before the difference had been deepened by long delays, and by exasperating formalities into a bitter quarrel, have thrown much needed light upon the difficulty, and perhaps facilitated a reconciliation on the spot." We thought from the first portion of the letter that the grievance was that so many cases were settled out of court. But it appears from the above that it is the public contention affording gossip to the neighbourhood which is the evil to be got rid of. In short, the proposal is to substitute Courts of Conciliation for the County

Courts. Such a proposition cannot be listened to. We venture to think that "little disputes" in County Courts do not involve the expenditure of "much hard-earned money" or "much valuable time.' The tribunals are cheap and speedy, and we should be very sorry to see the great unpaid substituted for our County Court Judges. Magistrates would do wisely in attending to the work given them by the Legislature, without endeavouring to find new fields of labour.

THE administration of the law has lost a very faithful and most able servant in Mr. GEORGE C. OKE, the Chief Clerk to the LORD MAYOR. The office which he filled is one of considerable responsibility and difficulty, because every year the chief clerk at the Mansion House has to guide a new chief magistrate. Mr, OKE was in effect, the legal assessor of the Mansion House, and was probably as powerful on matters of law as Her MAJESTY'S Judges sitting with aldermen at the Old Bailey. Probably also he was not surpassed by any living lawyer in his knowledge of criminal law and the practice of magistrates courts. He long since made a literary reputation by his "Magisterial Synopsis," the eleventh edition of which was published in 1872. His "Magisterial Formulist" has reached a fourth edition, and in addition to these works, he published treatises on the Laws of Turnpike Roads, the Game and Fishery Laws-both of which are in their second edition-and on the Licensing of Inns, &c. Mr. ОKE must have led a life of severe labour, and he died at a comparatively early age. We estimate his works so highly that we considered we owed to his memory something more than the ordinary tribute of our obituary column. The office vacated by Mr. OKE will doubtless be the object of severe competition. Among the first to announce his candidature is Mr. THOMAS COUSINS, at present magistrates' clerk at Portsmouth, a gentleman admitted in 1854, and who, judging from contributions which he has furnished to these columns, has a very extensive knowledge of criminal law and practice.

LORD ROMILLY held another sitting in the European Assurance Arbitration last week. One of the cases heard belonged to a class in which there has been some conflict of authority-namely, the validity of the transfer of shares to a pauper transferee. The transferce was found by a share-broker, and due notice was given of the intention to transfer to "GEORGE GILBERT, gentleman," and the consideration was stated as £29 10s. paid to the transferee. The transferee was approved of by the directors, and the transfer registered. It turned but that GILBERT was a pauper coach-driver, and that he had received £7 only, the remainder of the £29 10s. going partly to a transfer clerk of the company and partly to the sharebroker. Lord ROMILLY indicated his intention of placing the transferor on the list of contributories in the winding-up, on the ground, it would seem, that the directors were not aware that the whole of the consideration was not actually received by the transferee. In the Anglo-Australian Company's case his Lordship has decided that the covenant to indemnify given by the British Provident Life and Fire Assurance Society to the Anglo-Australian and Universal Family Life Assurance Company, on the amalgamation of the two companies, is not limited to the subscribed capital of the society. The grounds of two previous decisions were relied on-viz,, one of Lord CAIRNS in the Albert Arbitration (Re Indemnity Claims, Reilly's Alb. Rep. p. 17) and one of Lord WESTBURY in the European Arbitration (Re British Nation Indemnity Claims, L. T. European Rep. p. 4), but a different result was arrived at. The sitting is now adjourned until the end of this term.

SIR CHARLES DILKE has mounted a hobby which, for the sake of his reputation, he must ride to death. The reduction of the Civil Service estimates is a subject to which he appears to have devoted an amount of attention which ought to qualify him to inaugurate reforms. He began with the Royal Family, and he has at length reached-sublime consummation!-judges' clerks. Referring to the evidence given before the Select Committee, Sir CHARLES said, "In the course of the examination it was shown that the higher clerks of the judges are paid at so extravagant a rate for duties almost non-existent, that the practical effect was to enable men high up at the Bar to have their work done for them in the anticipation of those sinecures at a lower rate than they would otherwise have it done for, on the assumption that the leading men at the Bar would subsequently be Judges, and that therefore those clerks would be paid out of the public pocket." Has Sir CHARLES DILKE any notion of the manner in which barristers' clerks are paid? When we inform him that before their employers are made Judges, clerks are paid out of the public pocket quite as much, and sometimes more than they get from their" sinecures" as Judges' clerks, he may possibly be surprised. A barrister" high up in his profession" does not pay his clerk anything, and certainly no bargain is made between them with a view to the possibility-remote in all cases save those of the law officers of the Crown-of the barrister being promoted to the Bench. The suitor pays the clerk's fee independently of the

fee to the barrister, and thus it will be seen that Sir CHARLES DILKE'S quibble is based upon a mistaken hypothesis. The hon. baronet is altogether wrong in supposing that Judges' clerks have nothing to do, and the excuse for any outcry is completely taken away by the Judicature Act, which has revised the remuneration to be given to officials connected with the Judges. The leading journal has described Sir CHARLES DILKE as ransacking the contents of a forgotten chest discovered in a neglected hay loft. Not only so, but it would seem that he has no leisure to discover that the abuses which he embellishes and holds up to our eyes, are either in course of abolition or of no public moment or interest whatever.

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WHEN the Judicature Act was, as a Bill, passing through the House of Commons, we predicted determined opposition to sects. 64 and 65. They are what we termed the "district registry' clauses of the measure, and they transfer to offices scattered over the face of the country a large amount of business which has hitherto been done in London in connection more particularly with common law actions. Why action was not taken to amend or expunge these sections when they were only clauses in a Bill we do not understand-we urged it strenuously enough. We thought it more particularly to the interest of London agents that the transfer of preliminary steps in common law actions to the country should not take place, but it will appear by a circular, which we reproduce elsewhere, that country solicitors see that the operation of the Act will be very inconvenient. The signitaries of that circular dislike the prospect of being compelled to employ casual agents in cases where their clients are defendants. They would much prefer to employ their well-known London agents, and if the work is to be done at a distance they would prefer that it should be done in London. The proposal made is that the operation of sect. 64 should be so modified that a defendant residing three miles from the district registry, who swears that he has a good defence, may, as of course, transfer the proceedings to the principal registry. Under the Act such transfer can only be made upon the order of a Judge. There is a rumour that the operation of the Judicature Act will be postponed for twelve months. Defects are showing themselves which seem to render this desirable, apart from the probability that the rules could not be prepared with thoroughness in the limited time now at the disposal of the draftsmen.

A SOMEWHAT important question with reference to the operation of the bankruptcy of a prisoner upon an order of a criminal court for the payment out of the prisoner's moneys of the costs of the prosecution, was raised in Reg v. Roberts before the Queen's Bench last Michaelmas Term, and reported by us to-day. A fraudulent stockbroker having become bankrupt, all his property, of course, became vested in his trustee. The bankruptcy took place between the date of his apprehension and conviction. Sect. 3 of the Act to abolish forfeitures for treason and felony (33 & 34 Vict. c. 23), provides that it shall be lawful for any court by which judgment shall be pronounced or recorded upon the conviction of any person for treason or felony in addition to such sentence as may otherwise by law be passed to condemn such person to the payment of the whole or any part of the costs or expenses incurred in or about the prosecution and conviction for the offence of which he shall be convicted. The order was rightly made, and the question was whether the trustee under the bankruptcy was entitled to the money in the possession of the prisonor at the time of his arrest. The court intimated that if the bankruptcy had taken place before the apprehension, there might be some doubt; but as it took place afterwards, the order of the court. operated upon the money in the prisoner's possession at the time of his arrest. Mr. Justice BLACKBURN, however, was careful to guard himself against saying that money not the prisoner's own found in his possession would be affected by such an order. He said, "I wish to guard against being supposed to say that simply because money is found on the person of a prisoner at the time of his apprehension, the Criminal Court may make an order for the payment of the costs of the prosecution out of it. I am inclined to think that if moneys belonging to someone else are found in his possession, e.g., if the person arrested is a banker's clerk carrying a bag of gold to the bank, the banker who is the owner of the money would have a right to interfere in such a case against any order being made. I also wish to guard myself against being supposed to decide that if the prisoner was adjudicated bankrupt by reason of an act of bankruptcy committed before his arrest, the trustee might not have a right to intervene. Nothing appears in the present case to raise this point. So far as appears the prisoner at the time of his arrest was in possession of moneys which he might have disposed of in any way he pleased."

SALES BY TRUSTEES.

THE question what protection trustees are entitled to claim from their character as such in acting as vendors of property, is one of general importance, which is usefully illustrated by a recent case in which Vice-Chancellor Malins and the Lords Justices differed in their views-as unfortunately too frequently happens. In the

court below the case of Dance v. Goldingham is reported 28 L. T. Rep. N. S. 391, and in the Lords Justices Court, 29 L. T. Rep. N. S. 166. We may mention that the case is additionally interesting by reason of some observations of Lord Justice James on the costs incurred in consequence of reckless allegations of fraud which were made but abandoned.

There was a sale of land by trustees, and amongst the conditions of sale were the following: "(4.) All recitals and statements in abstracted instruments, and in the particulars of sale shall be accepted as conclusive evidence of the matters recited, stated, or referred to. (5.) The title to the several lots shall commence with an indenture dated the 12th March 1858, under which the premises became vested in the vendors as trustees for sale, and no earlier or other title shall be called for or required except at the purchaser's expense in all things, and as the vendors are trustees for sale, they shall not be called upon to enter into any other covenant than that they have done no act to encumber."

In the indenture of 1858 a settlement of 1819 was recited which conveyed a certain estate to trustees for the term of 500 years upon trust in the events which happened to raise the sum of 30001. for the portions of the children of the marriage as therein mentioned and subject thereto the estate stood limited to the use of the husband and wife for their respective lives, with remainder to their first and other sons in tail. The trustees were unable to discover this settlement of 1819, and therefore inserted the fifth condition in the conditions of sale. By the deed of 1858, in the events which happened, the plaintiff in the suit became entitled to one thirty-fifth share of a residue of the proceeds of the estate, which was a very small amount. A person became the purchaser of the estate who knew of the existence of the deed of 1819.

The principal ground relied upon by the bill was that the fifth condition of sale was unnecessarily depreciatory, as a good marketable title could be deduced by the vendors from a date anterior to the year 1858, and that the conditions had materially prejudiced the sale, and prevented various persons from bidding, and that in consequence the property had been sold at less than its market value. The sale was also impugned on the ground of fraud, and also on the ground of insufficient advertisements, but neither of these grounds was sustained.

The Vice-Chancellor came to the conclusion that by the exercise of ordinary diligence the deed of 1819 might have been found, and disapproved of the condition inserted in the conditions of sale. But going thus far he hesitated to decide that the sale was to be set aside as against an innocent purchaser. "With regard to the duties of trustees," his Honour said, "there is very considerable difficulty in this case; because, although there may be a remedy against the trustees, a man who attends a public auction bids for property under certain conditions to which he is not party or privy, the motive for introducing which he knows nothing of, and it is very difficult to say, that if the conditions are unduly restrictive, the purchaser who attends the auction must necessarily lose the advantage of his purchase. I do not think the doctrines of this court go to that extent."

The Vice-Chancellor fully recognised that where the purchaser had been mixed up with the irregularity of the trustees he could not receive the benefit of his purchase; but he held that the fact of his knowledge of the existence of the deed of 1819-knowledge which others might have acquired by due diligence-did not affect his purchase. The right of the cestui que trust to file a bill in such a case was clearly upheld by the Judges in both courts; and the Lords Justices were particularly emphatic in saying that, however small the interest of the cestui que trust, the right would still exist. Consequently, the point was reduced to this was the sale so conducted as to bind the cestui que trust?

As we have said already, the Vice-Chancellor recognised the negligence of the trustees in not discovering the deed of 1819, but he considered that the condition of sale objected to was not so prejudicial to the property as to call for the exercise of the power of the court to deprive an innocent purchaser of his purchase. Some cardinal doctrines were laid down in the judgment of Lord Justice James which should be carefully considered (1) The cestuis que trust have a right to have their property sold without anything being done which is calculated to depreciate it. (2) The purchaser under a mere contract of purchase is not entitled to insist upon a transaction being completed which, as between the cestui que trust and the trustees, is a breach of trust. If, the Lord Justice reasoned, the contract of purchase was one which could not be enforced against the purchaser as having its origin in a breach of trust, neither could he claim the performance of it.

The Lords Justices were most particular in the protection which they threw around the plaintiff, holding that it would be pessimi exempli to say that where a breach of trust has been committed against a cestui que trust interested in a very small share of the trust property, the loss sustained by him by reason of the breach of trust is so small that it is not sufficient to justify a Chancery suit. Upon this point there can hardly fail to be general concurrence; but the position of a purchaser under such circumstances seems to be one of considerable hardship. True, he was reminded that he had a remedy against the trustees, but what remedy the court did not proceed to say.

TRUSTEES AND THE COMMUTATION OF EAST INDIA STOCK.

HALF or nearly half of the City article of the Times of the 14th inst. consists of criticisms and correspondence in relation to the conditions offered by the India Office to the proprietors of East India Stock for the commutation of their holdings. This stock, amounting to £6,000,000, bears, under the 3 & 4 Will. 4, c. 85, a ten and a half per cent. dividend, and is made liable to redemption at the rate of £200 sterling for £100 stock on or after the 30th April 1874, on twelve months' notice in writing signified by the Speaker of the House of Commons by the order of the House given to the East India Company. Such notice having, as we presume, been duly given for the 30th April next, the Secretary of State for India, acting, or assuming to act, under the powers conferred by the 36 Vict. c. 17, by a circular or advertisement of the 3rd inst. offered in lieu of £2,350,000 of the said stock £3,000,000 Reduced £3 per cent. Annuities at the rate of £220 Reduced £3 per cent. Annuities for £100 East India Stock, and £2,000,000 India Four per Cent. Stock redeemable in 1888 at par, being at the rate of £200 of such stock for £100 East India Stock. It was announced in the same circular that the applications of proprietors for either of the above stocks would receive attention in the order in which such applications should be received at the India Office; and that so much of the East India Stock as exceeded the £2,350,000, and so much of that amount as did not come in for commutation under the circular, would be paid off in cash on the 30th April. The 31st of the present month was fixed as the last day for receiving assents.

East India Stock being one of the stocks in which trustees have been by law empowered to invest, the issuing of the circular would in many cases put trustees on an inquiry whether they would be safe in accepting it. There can be no question that both the stocks offered by way of commutation are stocks which trustees (unless expressly forbidden by the language of their trusts) might have purchased in the open market with funds under their control. In the case of the India £4 per Cent. Stock the point is expressly provided for by 36 Vict. c. 32, s. 16. Purchase, however, differs from commutation, and the 36 Vict. c. 17, s. 12, expressly requires a trustee, executor, or administrator to obtain the direction of a Judge of the Court of Chancery in England or Ireland, or of the Court of Session in Scotland, before assenting to a commutation in cases where all persons beneficially interested, do not consent in writing, or are under legal disability, or if the trust be such that persons yet unborn may become interested. As has been pointed out in the money article of the Times, this section will operate as a trap for unwary trustees; and as to cautious trustees desirous of commuting, but unwilling to do so without the sanction of the court, the delay incident to an application to the court, even if an order should be obtainable before the end of the present month, will so far prejudice them in the race for priority that the sanction of the court after all the trouble and cost of obtaining it, will probably be altogether nugatory. To what extent however is a trustee who disregards the requirements of the 12th section and commutes without the direction of a Judge liable as for a breach of trust? The answer to this question we apprehend must depend on the price of the stock accepted in commutation on the 30th April next. If the stock so accepted be then less in amount than the redemption value of the East India Stock (£200 per centum) would suffice to purchase in the market, for the difference in value a trustee would, we think, be clearly accountable. If, however, at that date the difference in value were in favour of the stock accepted in commutation, but the price of the stock afterwards fell, and the difference were the other way, the question of the liability of the trustee would, it might fairly be argued, depend on whether the fact of the stock accepted in commutation being a stock which a trustee would be justified in purchasing and holding would exonerate him from a fall in price occurring subsequent to the 30th April. Unless on the ground that the original breach of trust had not been purged, we think a trustee would not be liable for a fall in price; and we think also that the doctrine of non-purgation of a breach of trust would be carried to an extreme and unreasonable extent, if applied to such a case.

Since writing the above we observe that it has been notified by the India Office that applications for the full amount of £2,000,000 India Four per Cent. Stock have already been received.

DUTIES PAYABLE BY REASON OF DEATH.
(Continued from p. 158.)

THE fifth case to which we shall refer, viz., The Executors of Perry v. The Queen, relates to probate duty, and the facts of which were as follows:-R. P., by his will made in 1857, in effect gave all his real and personal property to his son, C. P., and appointed him sole executor. C. P., by his will made in 1864, gave all his real and personal estates to the suppliants and another upon certain trusts for the benefit of his children and others, and the suppliants were appointed executors. C. P. died in 1864 and R. P. in January 1865, and at the death of the latter the children of C. P. were all living. The suppliants proved the will of C. P. in March 1865, swearing the value of the personal estate under 60,000l., and they

paid a stamp duty of 7501. The suppliants also obtained a grant of letters of administration with the will annexed to the estate of R. P., swearing his estate under 70,000l., and they paid a stamp duty of 9001. It was subsequently, however, ascertained that the estate of R. P. was under the value of 60,000l. The personal estate proper of C. P. was of the value of 9001. only, and his debts exceeded that sum. The suppliants had, however, treated the residuary personal estate of R. P. as part of the estate of C. P., but afterwards considering they had improperly included it in their estimate for probate as it was not the property of C. P. at the time of his death, they presented a petition for a return of the duty.

The case turned upon the construction of the 33rd section of the Wills Act (1 Vict. c. 26), which enacts that where any person, being a child or other issue of the testator, to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person, shall die in the lifetime of the testator, leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise and bequest shall not lapse, but shall take effect as if the death of the such person had happened immediately after the death of the testator, unless a contrary intention appear by the will.

The court considered that the bequest to C. P. was to take effect as if he had survived his father, and that if he had actually survived probate duty would have been payable, and therefore it was payable.

Although perhaps the decision of the court is legally and technically correct, it cannot for a moment be assumed that the framers of the Act contemplated such a liability when they framed the section. Previously to the passing of the Wills Act if a legatee or devisee died in the testator's lifetime, the gift to such legatee or devisee absolutely lapsed. It was, however, considered hard that grandchildren should not take the interest given to their parents by their grandfather's will, and the clause in question was inserted in the Wills Act. Upon its face it bears evidence that it was drawn with a view of benefiting the children of the deceased child, and the children alone, for the legacy is only to take effect in the double event of the children surviving the testator as well as their parent. We presume at the time it was considered best to leave the mode of distribution to the child, but whether wisely or not is doubtful. The effect of the section is to give a deceased child, who leaves a child who survives his grandfather, absolute power of disposition over the property, so that it not only becomes liable to the payment of his debts, but may be left by his will so that his child may never obtain any part of it, and it appears from the case under consideration that others besides the children were beneficially interested under the will. It appears to us that it would have been better to have provided that the issue who survived the child should take the benefits intended for him.

So far as regards the question of duty the effect of the section appears preposterous, as it causes probate and legacy duties, and probably succession duty to be payable in respect of property to no interest in which a man was entitled at the time of his death. Let us suppose a simple case: A. has two sons, B. and C., equally between whom he leaves the whole of his property. B. dies intestate in his father's lifetime, leaving an only son, D., who survives A. But for the Wills Act, D., as the son of the eldest son of B., and consequently A.'s heir-at-law, would have taken the share of the realty given to B., and D. would also have taken one-fourth of A.'s personal estate. Probate duty would have been payable under A.'s will, and D. would have paid succession and legacy duty at one per cent., upon the real and personal property passing to him. By the operation, however, of the Wills Act, D. takes onehalf of the real and personal estate of A., subject however to the payment of the following duties, viz., probate duty under A.'s will, and legacy duty at 1 per cent., under A's will, and succession duty at 1 per cent., calculated upon the basis of the age at which B. would then have been, the fiction making B. survive the testator, and sect. 21 of the Succession Duty Act by the aid of the fiction making the duty payable as if B. had been in existence, and if he had then been in existence his death would not have caused a cesser of the duty so all the instalments must be paid. In addition to which there would be probate duty, and legacy, and succession duties under the intestacy of B.

Doubtless the proposed effect of sect. 33 was a boon to a portion of the public, but why should they pay so dearly for it? Why should the public in doing what was simply an act of natural justice fetter the gift with such heavy conditions? We think the matter only requires to be properly stated and an alteration will take place in the law. As the issue of the deceased child are the only objects considered worthy of notice, it seems to us that the desired end would best be attained by providing that where any person, being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person shall die in the lifetime of the testator leaving issue, and any such issue of such person shall be living at the death of the testator, the lapse of such devise or bequest shall operate in favour of such surviving issue in such and the same manner as it would have done had such issue been the only lineal issue of the testator, unless a contrary intention appear by the will.

The sixth case to which we shall refer, viz., Attorney-General v. Lemas, has also reference to probate duty. We have not yet received our report of this case, but we gather from that given by the Times of the 21st Nov. last that the facts were as follows: B. by will devised and bequeathed his real and personal estates upon trust for conversion and investment of the proceeds to be held upon trust, after payment of certain legacies and annuities, for B.'s children on their attaining the age of twenty-one years with a gift over in case of their all dying under that age. B. left an only child, a daughter, C., who died, unmarried, under twenty-one, and the gift over failed to take effect as, we presume, at the death of B., so that at B.'s death C was, as his heiress-at-law and next of kin, absolutely entitled to his real and personal estate, subject to the payment of debts, and the legacies and annuities. At the death of C. the real estate had not been sold, but the Crown claimed probate duty upon its value upon the ground that the direction for sale had caused an absolute conversion in equity for all purposes, and that view was entirely adopted by the court.

As we before remarked, there is at least one instance in which a direction to sell real estate does not effect an out and out conversion even as regards the beneficiaries themselves. The instance to which we refer is in case one of such beneficiaries is a married woman. It is perfectly well known that where a married woman is entitled, under wills and other instruments, dated previously to 1857, to a reversionary interest in personal property, she cannot in any manner (except by fraud: Lush's Trusts, L. Rep. 4 Ch. App. 591) dispose of such interest so as to deprive herself of her equity to a settlement out of the fund upon its falling into possession, or of her right to the fund in case she survive her husband. If, how ever, the reversionary property consist of realty directed to be sold, a married woman can, with her husband's concurrence, and by deed acknowledged by her, effectually dispose of her interest in the money to arise by the sale: (Briggs v. Chamberlaine, 23 L. J., N. S., 635, Ch., decided by Lord Hatherley, then Wood, V.C.; and Tuer v. Turner, 24 L. J., N. S., 663, Ch., decided by Lord Romilly.)

The true principle of conversion seems to us to have been stated by Lord Cranworth in Taylor v. Taylor (22 L. J., N. S., 743, Ch.), where, after dissenting from the decision in Phillips v. Phillips, he said: "The result of the authorites is, that where there is a direction to sell real estate, and that the proceeds shall form part of the personal estate, the true construction is that the conversion takes effect so far as is necessary to carry out the objects and intentions of the testator, but when the object fails the direction does not take effect. In case of lapse the personal estate goes to the next of kin, not because the testator intended it, but because the law carries it to them. So as to the real estate, the law gives it to the heir, and the law would do the same if the testator said that his real estate should not go to his heir but omitted to make a valid devise of it." In that case Lord Cranworth decided by reason of the death in the testator's lifetime of one of the legatees of a mixed fund, arising from the conversion of the real and personal estate, that the share of such legatee in the proceeds of the real estate of the testator was to be deemed real estate, and had lapsed for the benefit of the co-heiresses of the testator.

In the case before us, C. obtained the real estate, because she was B.'s heiress at law, and as she could not, being an infant, alter the actual state of the property when it passed to her, and as it was in fact real estate at the time of her death it must, we should think, pass in its actual condition. The conversion did not affect the real nature of C.'s estate, although the trust for sale would, had it been exercised in C.'s lifetime, have changed the property coming to her from realty to personalty. however, no change had taken place at her death, the property would pass as real estate to the person who would then be the heir at law of B. if he were the last purchaser.

(To be continued.)

THE LIABILITIES OF HUSBANDS FOR DEBTS
CONTRACTED BY THEIR WIVES.

THE subject of a husband's liability for debts contracted by his wife, having recently attracted much attention, we reproduce a portion of a pamphlet published two years ago by Mr. Falconer, a Judge of Welsh County Courts. This pamphlet contains his Honour's exposition of the law applicable to the case then before him. He said:

The law presumes that contracts made by the wife for the supply of articles necessary for the use of the family are made with the authority of the husband, that is, that they are made by her as his agent. As a rule, other contracts made by her must be shown to be made by his express authority; that is, his authority is not implied, and his assent must be distinctly given or obtained. So far back as the year 1703, in the case, Etherington v. Parrot (Raymond's Reports, 1006), Lord Chief Justice Holt said: "If a husband turn away his wife (that is, without sufficient cause) he gives her credit wherever she goes, and must pay for necessaries for her; but if she run away from him he shall not be liable to any of her contracts, for it is the cohabitation that is the evidence of the husband's assents to contracts made with his wife for necessaries. But if the husband has solemnly declared his dissent that she shall not be trusted, any person that has notice of this dissent trusts her at his peril after, for the husband is only liable upon account of his own assent to the contracts of his wife, of which assent, cohabitation causes a presumption -for the wife has no power originally to charge her husband, but is

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absolutely under his power and government, and must be content with what he provides. Here were sufficient necessaries provided, and also the husband had forbidden anyone trusting her, and the notice to the defendant's servant, usually employed by him in his trade, was a good notice to his master the plaintiff and he, the plaintiff, cannot charge the defendant." In that case the wife was described to be an extravagant woman, who used to pawn her clothes to buy drink, and used to be drunk, and the husband gave notice to the defendant's servant to trust her no more. On that occasion, also, Chief Justice Holt added, what may show the necessity of giving notice to the husband of the dealings of the wifethat if a wife take up silks and pawn them, before they are made into clothes, the husband shall not be liable for the silks, because they never the and treme wife buy necessary apparel for herself, the assent of the husband shall generally be intended, but, in these days, a tradesman is only safe when he informs the husband that the wife proposes to charge his credit. Lord Abinger, in the case of Emmett v. Norton (8 C. & P. 510), said, "Where the wife is living with the husband, and in the ordinary arrangement of her husband's household she gives orders to tradesmen for the benefit of her husband and family, and these orders are proper and not extravagant, it is presumed she has the authority of the husband for so doing. This rule is founded on common sense, for a wife would be of little use to her husband in domestic arrangements if she could not order such things as are proper for the use of a house, and for her own use, without the interference of the husband." In another case, Freestone v. Butcher (9 C. & P. 643), that learned Judge said, "The general rule is that the wife cannot bind her husband by her contract, except as his agent. There are, however, cases in which the juries may infer such agency. In the case of orders given by the wife in those departments of her husband's household which she has under her control, the jury may infer that the wife was the agent of her husband until the contrary appear. So for such articles as are necessary for the wife-such as clothes-if the order is given by the wife, and she is living with her husband, and nothing appear to the contrary, the jury do right to infer agency; but if the order is excessive in point of extent, or, if when the husband has a small income, the wife gives extravagant orders, these are circumstances from which the jury will infer there was no agency on the part of the wife. The tradesman who supplies the goods takes the risk; and, if the bill is of an extravagant nature, such as the husband would never have authorised, that alone would be sufficient to repel the inference of agency. Where a gentleman of the legal profes. sion had a limited income, and his wife incurred debts for millinery to an extravagant amount, the jury found, and they were quite right in so finding, there was no authority on the part of the wife to contract the debt."

The plaintiff in such cases has the burden of proof cast on him, and he is bound to prove that the goods were supplied on the credit and by the authority of the husband. If the thing is out of the ordinary course the jury ought to insist on strict proof. In this last case the jury found for the defendant, under the direction of the Judge. The fact of the husband having sold some of the goods supplied to the wife and received money for them, did not in itself, in point of law, make the husband liable for them -it was only a circumstance for consideration in determining the question, whether, in buying the goods the wife were acting by the authority of the husband or not. The question is, whether the goods were supplied on the credit of the husband, and if the wife were acting as the agent of her husband in the purchase of such things which were necessary for herself and family, her implied authority as such agent being unchecked by the act of the husband.

The inference of non-agency may be presumed when the circumstances under which the debt was contracted are such as the assent of the husband to the contract cannot be presumed: (Montague v. Benedict, 3 B. & C. 631; Seaton v. Benedict, 5 Bingh. 28.) In Montague v. Espinasse (1 C. & P. 359), Lord Chief Justice Abbot said: "Persons parting with goods ought to take some care-tor if tradesmen are allowed to trust rashly, any man may be ruined. If the tradesman who wishes to run no risk on the question, whether the purchase is made by the authority of the husband or not, it is his duty, in all eases where the order is large, to ask the husband before the goods are supplied-whether the order was given by his authority or not? In short, the question is, were the goods supplied by the authority of the husband or not? If they were, then, and then only, is the plaintiff entitled to a verdict." In another case (1 C. & P. 505), against the same defendant, that most eminent Judge, Sir J. Holroyd, said: "I am clearly of opinion that a husband can only be liable even for necessaries furnished to his wife when the wife is not supplied by him; and, therefore, if a tradesman supplies her, without first ascertaining that she is not supplied by her husband, or that she has authority from her husband, such tradesman supplies the goods at his own risk. If she is supplied with necessaries by her husband, a tradesman can only recover for such goods as he supplied to her with her husband's assent; and, that the husband did assent must be proved, on the part of the plaintiff, in every action founded on such supply of goods. And to charge the husband, it is not enough that the wife should have asserted that she had her husband's authority; for, if it were, a wife might go to many tradesmen and pretend she had her husband's authority for the orders she gave, and any man might be utterly ruined in a few days by the imprudence of his wife. And Lord Tenterden added, that their decision in this case would be sometimes beneficial to husbands, fathers, and friends; but it would be most beneficial to those who have goods to sell, as it will make them more cautious of letting their goods go from their hands without knowing who will pay for them; and, he added, that the experience of courts of justice shows us, that persons very frequently indeed have sold their goods without the slightest chance of ever getting paid the price for them.'

In the case of Atkins v. Curwood (7 C. & P. 756), it was held that if a married lady, who has sufficient clothes, go contrary to her husband's wish to a watering-place, and go to balls, and for that purpose orders dresses, some of them of an expensive kind, and unsuitable to her husband's circumstances, the husband is not bound to pay for any of them, and in an action for the price of the dresses it is immaterial whether the plaintiff knew these facts or not, and whether the clothes the lady had before were paid for or not, and the fact that the husband afterwards saw some of the dresses does not vary the case, if it be shown that he disapproved of the conduct of his wife in ordering them. Lord Abinger told the jury, "It was the duty of the wife to have lived with the greatest economy, instead of that she ordered expensive dresses to go to balls. If you believe on your oaths these things were necessary for this lady, considering the situation and circumstances of her husband, and that she had no supply from any other place, give your verdict for such amount as you think proper; but, if I were in your place, I should not hold out such an example-an example, the consequence of which may be that any man may be consigned to a prison by the extravagance of his wife." Again,

in the case of Spreadman v. Chapman (8 C. & P. 371) Lord Denman said: "The defendant in this case is only liable on an implied contract, and it is not for him to prove having given notice to the plaintiff not to supply goods to his wife, but for the plaintiff to satisfy you that the defendant's wife contracted this debt by the authority of her husband." And in the case of Mizen v. Pick (8 C. & P. 373) Alderson, B., said, "The question does not turn on want of notice, but the agency of the wife. Did the wife contract the debt by the authority of her husband?" "If the husband leaves the wife without support, the law says, he gives to her authority within reasonable limits to pledge his credit for things necessary for her support. If he makes her a reasonable allowance, she has no authority to contract debts in his name at all; but that the plaintiff had notice of the reasonable allowance is immaterial. He trusts a married woman at his own risk." When a husband living with his wife makes her sufficient allowance for dress, he is not liable for dresses which have been supplied to her without necessity, and without his knowledge, and the fact of the wife having, within a particular period, purchased various articles of dress from different tradesmen, is admissible in evidence to rebut the presumption of implied authority which arises from the marriage: (Renaur v. Teakle, 8 Ex. 680.) The proper question for the jury, even when the husband is living with his wife, is not merely whether the goods, in respect of which the action was brought, were necessaries suitable to her station, but whether upon the facts proved she had any authority, express or implied, to bind her husband by the contract, and when the former question alone was put, the court granted a new trial: (Reid v. Teakle, 13 C. B. 627; 2 Smith's L. C. 422.)

The logical conclusion from these cases is well expressed in the decision of the well-known case of Jolly v. Rees (33 L. J. 177; 15 C. B. 628) made in the month of February 1864. It was argued in that case, that, unless notice to the contrary were given, the wife, during cohabitation, was the accredited agent of her husband, and had a right to pledge his credit for necessaries, though he ordered her not to do so, and although he had not supplied her with an adequate sum of money in order to purchase necessaries. The defendant (Rees), prior to the year 1861, had told his wife not to pledge his credit with anyone, and desired her, if she wanted any necessaries, to come to him, and he would give her an order on a tradesman for them, and he would supply her with money. All the household affairs were managed by the defendant, and he gave orders to the tradesmen for things required in the house, but the goods in question were supplied to the wife without his knowledge. The goods supplied consisted of drapery and millinery goods suitable for persons in the position of Mrs. Rees, and the prices were fair and reasonable. The defendant allowed £50 a year to his wife to dress herself and daughters, but this sum was not paid with regularity. The defendant did not know of these goods, some of which had been ordered by letter-others by orders given to the plaintiff's traveller-and finally, a large order having been given by the wife, the plaintiff very properly wrote to the defendant and asked "if it had his concurrence.' The defendant replied that it had not, and that he did not intend to be answerable for the goods already supplied. Chief Justice Erle said the plaintiff raised a presumption of the defendant's liability, by showing that the goods were ordered by defendant's wife for the use of herself and children, while living with him. The defendant rebutted this presumption by showing that he had forbidden his wife to take goods on his credit, and had told her if she wanted money to buy goods she was to apply to him for it, and there was no evidence that she had so applied and had been refused. The plaintiff proved in reply that the goods were necessaries suitable to the estate and degree of the defendant; that the wife had £65 a-year, and that the defendant had promised to allow £50 a year in addition, but had not paid it regularly, and had not supplied her with such necessaries, or with money sufficient for the purchase thereof. The plaintiff also showed that he had received no notice of the defendant's prohibition to his wife to take up goods on his credit. These facts were in effect found by the jury, and the question was raised: Whether the wife had authority to make a contract binding on the husband for necessaries suitable to his estate and degree, against his will, and contrary to his order to her, although without notice of such order to the tradesmen? My answer, said the Chief Justice, is in the negative. The wife cannot make a contract binding on the husband unless he gives her anthority, as his agent, to do so. Taking the law, he said, to be that the power of the wife to charge the husband is in the capacity of being his agent, it is a solecism in reasoning to say that she derived her authority from his will, and at the same time to say, that the relation of the wife creates the authority against his will, by a presumptio juris et de jure from marriage; and, if it be expedient that the wife should have greater rights, it is certainly inexpedient that she should have to exercise them by a process tending to disunion at home and pecuniary distress from without. The husband sustains the liability for all debts; he should, therefore, have the power to regulate the expenditure for which he is to be responsible, by his own discretion, and according to his own means; but if the wife, taking up goods from a tradesman, can make her husband's liability depend on the estimate by a jury of his estate and degree, the law would, practically, regulate his expenses by a standard to be set up by that jury-a standard depending upon appearances-perhaps assumed for a temporary purpose with intention of change. Moreover, if the law is clear, that the husband is protected from the debts incurred by the wife without his authority, not only in the ranks where wealth abounds would speculations on the imprudence of a thoughtless wife be less frequent than they are, because less profitable-but also in the ranks where the support of the household is from the labour of the man, and where the home must be habitually left in the care of the wife during his absence at his work-more painful evils from debts which the husband never intended to contract, would be avoided. Mr. Justice Byles did not agree with the majority of the court. "The husband," he said, "seems to me to represent her to tradesmen as being, within certain limits, his domestic manager, and, therefore, responsible for her contracts within the margin of the apparent authority. No private reservation of authority, or private agreement between husband and wife, not communicated to a tradesman honestly dealing with the wife by supplying necessaries for the family, in the ordinary course of domestic affairs, can affect the tradesman's right to rely upon the apparent authority of the wife."

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Ruddock v. Marsh (1 H. & N. 601; 28 L. T. Rep. 290) was a casewhere an action was brought to recover £10 for groceries. The defendant was an engine-fitter, and his business frequently took him away from home for a fortnight or three weeks, and sometimes for a month at a time. By arrangement, his master paid his wife, during his absence, 258. per week. This was paid regularly, but the wife, nevertheless, incurred the debt of £10 for grocery, which was sued for. Chief Baron Pollock delivered the judgment of the Court of Exchequer (Nov. 1856) and said: "That the wife was the agent of the husband to bind him with respect to those matters

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