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PAYMENT INTO COURT.
summons in chambers to strike out the defence denying liability. If the The material facts in Dumbleton and others v. Williams and others, decided
Lords Justices could sit and hear the practice as it is now conducted in by the Court of Appeal on the 17th Feb., are few, but the decision is of
Queen's Bench chambers, their surprise would have been scarcely strong importance settling a point of practice with reference to payment into
enough to warrant expression court before defence. The plaintiffs sued as assignees of a bill of lading, claiming on the writ, dated the 22nd Dec. 1893, damages for short delivery on such bill of lading, amounting to £112 13s. The defendants duly entered an appearance to the writ, and on the 16th Jan. 1894 paid before
THE SALE OF A SOLICITOR'S PRACTICE. delivery of defence the sum of £74 78. into court accompanied by a notice ALTHOUGH in the forms generally 'adopted in the agreements for the under Order XXII., r. 6. The form used was the form given in Appendix B,
purchase of a solicitor's business the vendor purports to assign “the form 3, viz.: “
that the defendants have paid £74 7s. into court, goodwill and all benefits and advantage whatsoever thenceforth to arise and say that that sum is sufficient to satisfy the plaintiffs claim.
and be produced therefrom” (vide Moore's Practical Agreements, 3rd On the 16th Feb. 1894 the plaintiffs delivered a statement of claim, and edit., p. 69), the actual effect of the words seems to be very slight. on the 17th March 1894 the defendants delivered defence. The defence
Indeed, as a general rule it is sufficiently clear that in the case of the so delivered denied liability under the contract and also pleaded the prior professions the goodwill is a matter of personality, and there is nothing to payment into court.
convey within the ordinary acceptation of the term. The sentiment The amount of damages depended upon evidence which could only be which inclines a purchaser of ordinary wares to continue to buy them at a taken in New York upon commission, and on the 18th July 1894 the
given shop is supposed to have no influence in the case of professional defendants took out a summons in chambers that the question of liability men, whose business depends so much more on what is termed the personal be tried first before the question of amount. The master dismissed the
equation. How far this doctrine is really a true one, looking to the way in summons, and upon its dismissal the defendants agreed to an order for which the personal work of certain traders (as instanced a few years ago the commission to take the necessary evidence in New York as to the in the case of racquets) lends additional value to their goods, it is now too question of damage.
late to dispute. A long chain of cases, to be found in Allan on Goodwills, It was alleged by the plaintiffs that the master dismissed the application has decided that “personal ” goodwills are practically non-existent. At upon the ground that the payment into court admitted liability, and that one time grave doubts were felt as to the possibility of legally agreeing to the only remaining question was one of amount. The commission issued sell a solicitor's business at all. Thus in Bozon v. Farlow (1 Mer. 459) and the evidence was obtained. The case came on for trial before Mr. Grant, M.R. was by no means clear whether a court of equity could Justice Vaughan Williams. The plaintiffs said that, except upon the execute an agreement by which an attorney undertook to give up bis admission of the contract made by the payment into court, they were not business in consideration of a certain sum of money. The difficulty felt in a position to prove that the defendants were liable. The defendants by him was as to the means at his disposal to enforce the vendor's putting said that the plaintiffs bad joined issue with a defence denying liability, his purchaser in possession of his business. So also in Bunn v. Guy and that therefore the judge was bound to try all the issues raised in the (4 East, 190) the like question arose, but was answered by upholding the record. The judge thereupon decided that the defendants were entitled contract. The point did not turn, however, on the power of specifically to deny the contract, and the plaintiffs, being unable to prove the performing it, but on the existence of a legal consideration for certain of contract, he gave judgment for the defendants with costs. Upon a careful the conditions. Lord Eldon, in Candler v. Candler (Jac. 225), expressed perusal of Order XXII., rr. 1 to 7, apart from decisions, it would appear pleasure that this doubt had been removed, though unable himself to that payment into court is considered from three different standpoints : become reconciled to the doctrine. Lord Langdale, in Whittaker v. Howe (1) payment in before defence, (2) payment in with defence without (3 Beav. 383) acted upon the power, and restrained by injunction a solicitor denying liability, (3) payment in with defence denying liability. The who sold his business on certain terms, and afterwards sought to depart right to pay in is given by Order XXII., and does not exist independently from them. of the terms of that order. Now, with reference to (1) and (2), the first Although the goodwill in connection with a solicitor's business is part of rule 1 deals, and the second part deals exclusively, with (3). It theoretically non-existing, it is nevertheless for some purposes regarded as would appear, indeed, that the words of the first part of rule 1 are so a thing of some value. Thus in Candler v. Candler (sup.), a solicitor by plain as to be beyond doubt. It says that (1) and (2) shall be taken to testamentary disposition gave to his widow, whom he appointed admit the claim or cause of action in respect of which payment is made. executrix, all his realty and personalty. She, by deed, enabled a son In order that there might be no doubt as to what that exact admission to carry on the father's business on certain terms as to sharing the profits should be, rule 4 provides that a notice should be served specifying the between the said son, an admitted solicitor, and the mother. (Incidenclaim or cause of action, and the fact of the payment; rule 5 provides tally it may be remarked that an interesting question arose on these facts that the plaintiff is at liberty to take out money so paid into court, and, in connection with 22 Geo. 2, c. 46, s. 11, whereby admitted solicitors were by not prohibiting, inferentially allows him to proceed for the balance made liable to penalties for carrying on business for the benefit or profit claimed; and rule 7 provides that, if he takes it out in satisfaction, i.e., if of an unqualified person. It was decided that it was not illegal for an he does not wish to proceed for any balance, he may tax his costs attorney to pay a share of profits to a person not an attorney.) Soimmediately.
also the goodwill of a profession can be regarded as assets in the hands of The second part of rule 1 deals with money paid into court" with a an executor of a deceased gentleman. Small v. Graves (15 L. T. Rep. defence denying liability :" No. (3) above. Rule 2 provides that, in all 0. S. 179) was a caso where a surgeon-dentist's widow and executris cases of payment into court, the defence shall allocate the payment to agreed to sell the goodwill and the advantage of introduction to a purthe claim in respect of which it has been made. Rule 2 does not chaser. The evidence showed that the purchase money, to be spread over apparently alter the effect of the express enactmert in rule 4 as to money five years, was to benefit the executrix personally in return for the intropaid in before defence, except to say that the money so paid in shall be duction, but the court held that the money belonged to the testator's signified in the defence if and when delivered. Then rule 6 provides that estate. The principle involved here would presumably attach to the the plaintiff, if he takes money paid in with a denial, can only do so upon analogous business of a solicitor. & stay of proceedings, i.e., in full satisfaction, and gives him no right A very important point in connection with the sale of a solicitor's per se to tax his costs.
business arises with regard to the papers. The question as to whether an It would appear, therefore, that upon the plain meaning of rules 1 and 4,
assignment of the goodwill carried with it the right to the custody of the a sum paid into court before defence in respect of a specified cause of client's
's papers was mentioned, but not decided, in James v. James (59 L. T. action is an admission against the party so paying, in that he is liable on Rep. 569; 23 Q. B. Div. 12). In Moore's Practical Agreements (sup.) the that cause of action up to that amount. The rule, in fact, embodies the form provides for the vendor's delivering and placing in the purchaser's old practice. A plea to a declaration on a special contract paying in custody all deeds, documents, papers, drafts, and the like acquired or kept money was an admission of that contract, of the breach alleged, and of by the vendor, whether relating to pending business or not, without damage to the amount paid in. A plea to a declaration on the ordinary prejudice, however, to any liens. Although such forms avoid any money counts was an admission that that sum was due and nothing more. doubt as to the intention to hand over the papers under the general It allowed the defendant to put in issue any item in the declaration : (Archer terms, it is doubtful whether they are of much force. In Arundell v. Bell v. English, 1 M. & G. 873). The Court of Appeal, as might have been (49 L. T. Rep. 345; 52 L. J. 537, Ch.) Jessel, M.R. said : “ Then you anticipated, decided that the action must be tried again on the question cannot sell the client's papers, which are the most valuable things of all. A of amount, holding that the payment into court before defence operated, man often does get the papers of another solicitor, but it is illegal. When a “under the circumstances," as an admission of the contract, the breach solicitor is in possession of papers, he must take care of them for the client and liability thereon to the amount so paid in. The present case is clearly who has intrusted them to his custody. Therefore they cannot be sold. different from Hennell v. Davies (68 L. T. Rep. 220; (1893) 1 Q. B. 367), It may be quite true that, if a solicitor does do so, and hands over the where, in action for work and labour, the Divisional Court followed the
papers, although it is illegal, the purchaser may get something by it; but old practice and decided that, a general payment into court to money that of course would not justify the act.” From this it appears that a counts was only an admission pro tanto of liability, leaving the defendant sale of the papers is not possible unless the clients, to whose business they to raise any defence as to the residue.
relate, are agreeable : they dissent, the vendor is, of course, bound to The present case was where the plaintiff sued on a specific contract deliver them up. Allan on Goodwills, at p. 83, shows that when one of two which under the old system would have required a special declaration. partners becomes bankrupt, the solvent partner has no claim on the firm's
The consideration of these cases also throws light upon the meaning of papers without the client's consent. Order XXII., r. 2, which is not otherwise very plain. It is clear now that Generally speaking, every step to be surmounted in the sale of a where, as in the present case, there has been a payment in before defence personal business, such as that of a solicitor or a non-dispensing doctor, to a claim on a specific contract, it is not open to the defendant to signify where no particular value is attached to the locale, is beset with diffisuch payment in his defence by a plea denying liability. There would no culty, and, as a rule, the courts will not enforce their specific perfordoubt be jurisdiction which would be exercised to allow the defendant to mance (May v. Thomson, 47 L. T. Rep. 295; 20 Ch. Div. 705), although withdraw the notice given at the time of payment in if the plaintiff had an exception is made if portion of the contract has been executed, even not in the meantime altered his position. The Court of Appeal expressed although the courts could not have enforced the plaintiff's part: (Bryson F. surprise that the plaintiff had not in the present case taken out a Whitehead, 1 Sim. & Stu. 74). With regard, therefore, to the enforcement
of agreements for the sale of solicitors' practices, the authorities are far from clear, and each case will be narrowly scanned as it arises, the bias of the court tending, it would seem, against assisting the parties to such agreements.
would seem to be hardly counterbalanced by the right which, if effectual; it is supposed to give to the mortgagee of recovering immediate possession under Order III., rule 6."
ATTORNMENT CLAUSES IN MORTGAGE DEEDS. Is it desirable to insert an attornment clause in an ordinary mortgage deed ? The chief and indeed the only advantages to be derived from making the mortgagor attorn tenant to the mortgagee are, to give a remedy by distress, for recovery of interest or other payments in arrear, when the mortgagor himself in possession, and to give the mortgagee the short remedy provided by Order III., rule 6 (F.), and Order XIV. On the other hand, there arises the serious doubt whether such clause is a bill of sale under the Bills of Sale Act 1878 (41 & 42 Vict. c. 31), s. 6, the material words of which are as follow : “Every attornment whereby a power of distress is given or agreed to be given by any person to any other person by way of security for any present, future, or contingent debt or advance, and whereby any rent is reserved or made payable as a mode of providing for the payment of interest on such debt or advance, or otherwise for the purpose of such security only, shall be deemed to be a bill of sale, within the meaning of this Act, of any personal chattels which may be seized or taken under such power of distress. Provided, that nothing in this section shall extend to any mortgage of any estate or interest in any land, tenement, or hereditament which the mortgagee, being in possession, shall have demised to the mortgagor as his tenant at a fair and reasonable rent." A further danger which it was at one time thought might be incurred was removed by the decision in Stanley v. Grundy (48 L. T. Rep. 106 ; 22 Ch. Div. 478), in 1883. It was contended that the attornment clause itself put the mortgagee in the position of a mortgagee in possession. The transferees of a first mortgage bronght an action against a second mortgagee and the owner of the equity of redemption, and claimed an account of what was due for principal, interest, and costs, and foreclosure. The mortgage deed contained an attornment clause, but possession had not been actually taken under that clause by the first mortgagee. It was held by Vice-Chancellor Bacon that the first mortgagee was not liable to account in respect of the rent reserved by the attornment clause, on the footing of being a mortgagee in possession, simply because his mortgage deed contained an attornment clause. The Vice-Chancellor was of opinion that an attornment clause was merely an additional security for the mortgagee.
The real and substantial danger is well exemplified by the case of Re Willis ; Ex parte Kennedy (58 L. T. Rep. 892; 59 L. T. Rep. 749; 21 Q. B. Div. 384), in 1888, where Mr. Justice Cave was upheld by Lords Justices Lindley and Lopes, Lord Esher, M.R., dubitante. W. had mortgaged to E. by way of sub-demise for £20,000. By the deed he attorned to E. at a yearly rent of £2000, payable quarterly, the first payment to become due after any interest should become in arrear. A petition in bankruptcy was filed against W., E. distrained, and after that W. was adjudicated bankrupt. The trustee in bankruptcy claimed from E. the amount distrained, on the ground that the attornment clause was void as a bill of sale under sect. 6. It was held that the clause was void, and was not protected by the proviso. Cave, J. said the proviso can only apply to a case where the mortgagee has taken actual possession under his mortgage deed, and has subsequently demised to the mortgagor, and not to a case where there has been an actual taking of possession, and the demise has been created by the mortgage deed itself.” This decision was followed two years later by Mumford v. Collier (25 Q. B. Div. 279), in 1890, when Lord Coleridge, C.J. and Wills, J., affirming Lawrance, J., at chambers, held that the section did not render void the ordinary attornment clause found in mortgages of real property so as to destroy the relation of landlord and tenant created by it between the mortgagee and mortgagor, but only avoided it in so far as it gives power to distrain personal chattels. Lord Coleridge said: “I am of opinion that, where no personal chattels are seized or taken, sect. 6 does not affect the operation of the attornment clause in so far as it creates the relation of landlord and tenant between mortgagee and mortgagor. It has no application where no personal chattels are seized or taken.” And Mr. Justice Wills said : “An attornment clause, to my mind, consists of two things perfectly severable. It creates the relation of landlord and tenant between mortgagee and mortgagor, and it gives the mortgagor a power of distress as a right incident to that relation. In so far as it creates the relation of landlord and tenant, it is a matter affecting the real estate. In so far as it gives power to distrain personal chattels, it is a bill of sale, and in that respect void by the operation of the Bills of Sale Acts.”
It seems, therefore, that the only advantage to be gained from the inser. tion of an attornment clause is the power of special indorsement under Order III., rule 6 (F.), and of the subsequent procedure under Order XIV. It may be well to quote the opinions of some of the leading text-writers on the point. In Bythwood and Jarman, edit. 1886, by Robbins, we find (p. 983): “ Their insertion in mortgage deeds is of too doubtful validity to be recommended.” Messrs. Key and Elphinstone, in their edition of 1897, at p. 50, n. (a), say, that although such a clause would be void as to personal chattels, “yet for the purpose of facilitating the mortgagee's remedies the attornment clause should, it is conceived, still be inserted." And: “It would be better, in order to prevent any question as to its effect on the covenant for payment” (the validity of which might be endangered if the attornment clause was a bill of sale)," that the attornment should be made by a separate instrument, which need not of course be under seal.” And see the devices for securing to the mortgagee his remedies by distress suggested in this note. On the other hand, we find in Davidson's Concise Precedents, 16th edit., 1894, p. 266, n. (c.): “ The law on the subject is still in a very uncertain state, and the risk of inserting such a clause
Mr. Justice Vaughan Williams will resume the hearing of winding-up petitions on the 3rd March.
The Revenue Paper will be taken on Monday, the 15th March next, and following days.
Admiralty Appeals will be commenced on Tuesday and continued until finished.
Mr. Justice Romer was indisposed on Wednesday and Thursday, and was unable to sit in court on those days.
Mr. Kennedy, police magistrate, sitting at Greenwich and Woolwich, has left London for a tour through the Holy Land.
According to the New York World there are 15,000 cases waiting to be heard in the State of New York.
Mr. Justice Collins has consented to preside at the sixty-fifth Anniversary Festival of the United Law Clerks' Society, which will be held at the King's Hall, Holborn Restaurant, on Tuesday, the 18th May.
In the House of Lords, on the 19th inst., the Lord Chancellor presented a Bill, which was read a first time, to amend the Land Transfer Act of 1875.
“Mr. Inderwick, Q.C.” is the title of the eighteenth of a series of articles on Our Judges and Famous Lawyers now appearing in Lloyd's Weekly Newspaper.
Colonel Hay, the new American Ambassador to England, is a barrister by profession, but he abandoned his practice in the Supreme Court of Illinois to accompany Mr. Lincoln to Washington in 1861.
Mr. Chandos Leigh, Q.C., counsel to the Speaker, has again consented to officiate as judge in the Parliamentary Point-to-Point Steeplechase. The date is to be the 20th March.
Sir Albert Rollit, M.P., gave a reception last Tuesday at his residence in Belgrave-square to the members of the Commission for the forth. coming Brussels Exhibition. Several members of the Government were present.
The Inns of Court Orchestral Society will give a ladies' concert in the Hall of the Middle Temple, on Monday evening, the 1st March, at 8.30 p.m. The Lord Chancellor is the president of this society, and the hon. secretary is Mr. W. H. Griffith, No. 4, Brick.court, Temple.
The Solicitors' Managing Clerks' Association is to be congratulated upon securing on their council the services of Mr. W. G. Andrews, the able and experienced common law manager of Messrs. Hollams, Son, Coward, and Hawksley.
Sir John Bridge is indisposed and has gone abroad to recruit his health, but it is hoped and believed by his medical advisers and others well qualified to judge that he will resume his duties at Bow-street within a few weeks. In the meantime the magisterial duties at Bow-street are being fulfilled by Sir John Bridge's colleagues-Mr. Vaughan and Mr. Lushington.
The will, which bears date the 4th Feb. 1896, of Mr. William Frederic Bourne Brandreth, solicitor, of the firm of Hedges and Brandreth, 9, Red Lion-square, who died on the 24th Dec. last, aged fifty-seven years, leaving personal estate of the value of £14,995 16s. 11d. has been proved by his widow, Mrs. Caroline Bridgewater Brandreth, of Park Side, Wimbledon, and his son, the Rev. Francis William Brandreth, of Buckland Newton, Dorset. The late Mr. Brandreth left all his real and personal estate in trust for Mrs. Brandreth.
The Official Receiver of the Leicester Court of Bankruptcy has just issued his statement of the affairs of George Fowler Brown, residing at Newtown, Unthank, Leicestershire, and carrying on business as a solicitor and leather merchant at Ashby-de-la-Zouch under the style of Brown and Love. The gross liabilities are estimated at £40,844 13s. 11d., of which £21,907 9s. 9d. is expected to rank for dividend, while the assets as estimated by the debtor amount to £3627 12s. 11d., leaving a deficiency of £18,273 16s. 10d. No deficiency account has been lodged, and there will be no offer of composition.
The managing clerk of a firm of solicitors is never permitted in these days to assume the rôle of the advocate, and if he did so attempt would be cried down at once. Why, then, are the clerks of the Public Prosecutor indulged with this privilege, asks Modern Society. It is useless to allege that damnum absque injuria does not apply in their case ; and, beside, it must be a matter of great annoyance to the Profession. It takes a large sum of money to become a practising solicitor, yet a paid Government clerk can play the part for nothing, and such men as Sir George Lewis may sometimes find an ex-tipstaff his rival in diplomacy.
A characteristic advertisement of (American) Rice's Law of Real Property has appeared. The work is said to be “Not ancient history, but the living modern law. Not the author's theories, but the deliberate opinions of our own courts. Not a droning statement of what the law was, but a crisp expression of what the law is. Not an exhibition of skill in padding,-'a rivulet of text through a meadow of margin,'--but nine hundred and sixty solid octavo pages of text, with innumerable fine type foot-notes and references and an elaborate index of over fifty pages." In fact, all Rice and no jam.
A receiving order having been made on the 4th August last against George Bradley, described as a solicitor, accounts have at length been submitted showing gross liabilities £39,492, of which £37,533 are fully secured and £1940 unsecured, and there is an estimated surplus in assets of £3976. From the observations of the Senior Official Receiver (Mr. E. Leadham Hough) and the statements of the debtor it appears that he was admitted a solicitor in 1853, and practised for many years at Castleford, Yorkshire, but in 1890, in consequence of his business having fallen off, he discontinued it. Previously to 1890 he also made large purchases of estates, manorial rights, and real property in the counties of York, Lincoln, Rutland, Essex, Suffolk, and Somerset, some of which properties had previously to the receiving order been resold and the others taken possession of by mortgagees whose interest the debtor had allowed to fall into arrear. Daring the past five years he has been mainly engaged in the construction of a dock at Brightlingsea, Essex, which is now approaching completion, and upon which he has spent from £5000 to £6000. He denies that he is insolvent, and attributes his present position to his inability to realise the properties held by creditors regarded as fully secured, the more valuable of which are manors, manorial rights, and real estates in Essex, Yorkshire, Lincolnshire, Suffolk, Hants, and Ratland. Although in respect of these properties an estimated surplus of £26,191 is shown on the statement of affairs, it is not there treated as an available asset, because not presently realisable. The debtor makes no proposal, and has been adjudged bankrupt, and a trustee has been appointed.
Chief Justice Andrews of the Supreme Court of Errors of Connecticut, in a case instituted by the Fairfield County Bar, to debar one Taylor for unprofessional conduct, concluded his judgment as follows: “It is not enough for an attorney that he be honest. He must be that and more. He must be believed to be honest. It is absolutely essential to the useful. ness of an attorney that he be entitled to the confidence of the community wherein he practises. If he so conducts himself in his profession that he does not deserve that confidence, he is no longer an aid to the court, nor a guide to his clients. A lawyer needs, indeed, to be learned. It would be well if he could be learned in all the learning of the schools. There is nothing to which the ingenuity of man has been turned that may not become the subject of his inquiries. Then, of course, he must be especially skilled, in books and the rules of his own profession. He must have prudence and tact to use his learning, and foresight and industry, and courage. But all, these may exist in a moderate degree, and yet he may be a creditable and useful member of the Profession, so long as the practice is to him a clean and honest function. But possessing all these faculties, if once the practice becomes to him a mere ' brawl for hire,' or a system of legal plunder where craft and not conscience is the rule, and where falsehood and truth are the means by which to gain his ends, then he forfeits all right to be an officer in any court of justice, or to be numbered among the members of an honourable profession.
The Hon. Mr. Justice Jardine, of the Bombay High Court, has retired
er a connection of thirty-three years with the Civil Service in the Bombay Presidency. He went out in 1864, and received the appointment which he is now relinquishing in Oct. 1865. A month previously he was chosen as Vice-Chancellor of the Bombay University. He has all through life closely identified himself with educational progress in India ; and the Senate found in him an ardent educationist of broad views on all matters affecting the freedom and independence of the University. While residing in Barmah as judicial commissioner, be published a valuable series of "Notes on Buddhist Law," and several other works.
Apropos of a reference last week to the burdens of the office of High Sheriff, says Truth of the 18th inst., a useful hint is conveyed to those functionaries by what has just occurred in the county of Dorset. In that county the High Sheriff has always been charged a fixed sum of £18 for the attendance of police and trumpeters at each of the three assizes in the year. It has just been found that the cost to the county has averaged only £10 (including £3 for the trumpeters) for each assize, so that the county has been making an annual profit out of the sheriff of £24. The Dorset standing Joint Committee has decided henceforth to charge the Sheriff the actual cost only; and, probably, there would be a corresponding reduction in the expenses of the office if the same course were followed in other counties.
The Benchers of Gray's-inn have resolved, says the Daily Telegraph, to remove the unsightly stucco from the interior of their fine old hall and restore it to the condition it was in when Francis Bacon was its treasurer and lived in his chambers hard by. The work is already in progress, and soon it will appear as it did to Queen Elizabeth when she visited its masques, and presented the magnificent oak screen, with its rich carvings, which remains one of the chief characteristics of the Inn, The grateful members still give the portrait of the virgin Queen the .hief position in the hall, and on grand night in each term every barrister, student, and guest solemnly drinks “ to the glorious, pious, and immortal memory of good Queen Bess.” The present building dates from the year 1556, and in removing the disfiguring cement the Benchers are but adopting a recommendation made to them with much vigour by Sylvanus Vrbicus nearly a century ago. - In the Derby County Court, on the 18th inst., his Honour Judge Smyly gave judgment in the case of Heny v. Spencer. His Honour said that this was an action brought by Mr. Alfred Heny, solicitor, of Derby and Duffield, against George Spencer, for services rendered by Mr. Heny in advising the wife of the defendant in reference to her position, and with reference to a claim she made against her husband for a separation order under the new Act by proceeding before justices accompanied with sufficient allowance for her maintenance. The claim, so far as the figures went, was not disputed, but it was disputed on the question of principle, and it was contended that nothing was due to Mr. Heny on the ground that the services he had rendered the wife were not necessaries for which she was entitled to pledge her husband's credit. His Honour referred to a number of cases decided in other courts, and incidentally mentioned that the wife applied for a separation order against her husband, and claimed 88. a week. After carefully investigating the law on the question, he (the judge) had come to the conclusion that the solicitor proceeded reasonably in the matter, and was therefore entitled to recover the full amount-£3 3s. 6d.
The Attorney-General was on safe ground yesterday when he refused Mr. Atherley-Jones another Royal Commission to investigate the mistakes of our legal system, says the St. James's Gazette, These Royal Commissions are not in good odour, and a Royal Commission on Law might drag on for five years, while nothing could be done in the way of reform in the interval. But there is no doubt whatever that Mr. Atherley-Jones represents the public and a large part of the Bar in asking for reform. We regret that he should have raised such irrelevant questions as the cost of the Appeal Judges and Law Lords. You must pay highly for the best
It is not that to which the public objects. It is not the taxpayer who complains, but the litigants, for whom justice is so slow and costly. The Attorney-General defended the circuit system yesterday. But it is in the circuit system that reform must come. There is something absurd in the fact that the judges of the High Court sit, on an average, 115 days in London and 200 on circuit. A cynical explanation is that they get £7 10s., in addition to their £5000 a year, for every day on circuit. Pay the judges a good salary, by all means, but not for staying out of London when they are so badly wanted there.
The seventy-third annual general meeting of the Law Life Assurance Society was held on the 19th inst. at the society's office, 187, Fleet-street, E.C., the
A. E. Gathorne Hardy in the chair. The report showed that 476 new life policies were effected during the year 1896, assuring the sum of £602,400. After deducting reassurances the net new business amounted to £545,887 at annual premiums of £14,468, and single premiums of £5218. The net claims by death for the year amounted (including bonuses) to £309,718, being about £70,000 less than the expected amount. The expenses of management, including commission, were in the ratio of £11 2s. 20. per cent. to the total net premium income, while the rate of interest yielded by the society's funds, without deduction of income tax, was £4 18. 10d. per cent. per annum. The total funds at the end of the year amounted to £4,809,928, showing an increase during the year of £41,573. Previous to the annual general meeting, a special general meeting was held at which a special resolution, passed at a previous meeting, was duly confirmed. The effect is that the proprietary of the society is no longer restricted to members of the Legal Profession, and that with profit policies effected subsequently to she 31st Dec. 1896 will participate in 90 per cent of the surplus, instead of 80 per cent, as hitherto.
NOTES OF RECENT DECISIONS NOT
HOUSE OF LORDS. Company--Contributory-Certificate that Shares are fully paid up
Estoppel.--The appellant lent £1600 to a limited company upon two promissory notes, on the terms that he should have as a collateral security 16,000 fully paid-up preference shares. Certificates for 16,000 shares were accordingly handed to him, and it was stated on the face of the certificates that the shares were fully paid up. and that he was the registered holder of them. They were, in fact, newly issued shares upon which nothing had been paid. The company sold some of the shares, and the appellant, in accordance with the terms of his agreement, executed transfers of the shares sold, and received a proportionate part of the purchase money in reduction of his debt. His name remained on the register for the remainder, when an order was made to wind-up the company. Held, that his name should be struck out of the list of contributories on the ground that the company were estopped by the certificates from denying that the shares were fully paid up. Judgment of the Court of Appeal (74 L. T. Rep. 670; (1896) 2 Ch. 525) reversed.
[Bloomenthal v. Ford. H. of L. Feb. 23.-Counsel : Sir R. Reid, Q.C., Astbury, Q.C., Romer; Eve, Q.C., Martelli. Solicitors : Romer and
Haslam; Gush, Phillips, Walters, and Williams.] Revenue - Policy of Insurance-Assignee-Succession Duty-Account
Duty.-F. insured bis life and paid the premiums on the policy for many years. Seven years before his death he assigned the policy absolutely to his daughter the respondent, who after the date of the assignment paid the premiums on the policy out of her own moneys up to the death of F. The assignment was gratuitous. Held, (1) that the assignment of the policy did not create a "succession " within the meaning of the Succession Duty Act 1853 (16 & 17 Vict. c. 61), S. 2; (2) that the respondent was not liable to account duty under the Customs and Inland Revenue Act 1889 (52 Vict. c. 7), s. 11. Judgment of the Court of Session in Scotland (22 Ct. Sess. Cas. 4th series, 568) affirmed.
[Lord Advocate v. Robertson H. of L. Feb. 18.-Connsel : Graham Murray, Q.C. (L.-A.), Sir R. Finlay, Q.C. (S.-G.), Charteris ; Shaw, Q.C., H. Anderson (the two latter of the Scotch Bar). Solicitors : F.C. Gore, for P. J. Hamilton Grierson (Solicitor of Inland Revenue for Scotland); Keeping and Gloag, for Wm. Gunn, Edinburgh.]
COURT OF APPEAL. Company-Liquidation- Property situate Abroad-Proceedings in foreign
Court-Judgment in rem-Sale of Ship by order of foreign Court, Right to retain Proceeds against Liquidator.--In May 1892 the ship Minna Craig, owned by the plaintiff company, was at Bombay, shipping cargo. The master was induced by fraudulent misrepresentation to give bills of lading for goods which in fact were never taken on board, and these bills of lading were subsequently indorsed for value to the defendant banking company. On the 11th Aug. the ship arrived at Hamburg, at which port the goods mentioned in the bills of lading held by the defendants were to be delivered. The defendants had in the meantime discovered the fraud that had been committed. By the law of Germany non-delivery of the goods mentioned in a bill of lading entitles the holder of the bill to a lien on the ship. Immediately on her arrival at Hamburg the Minna Craig was arrested by an order of a competent court there, in an action instituted by agents of the defendants to enforce their lien. In this action the Hamburg court declared the defendants entitled to a lien, and on the 7th Dec. 1892 the ship was sold by order of the court. Out of the proceeds of the sale the court directed that £10,944 should be paid over to the present defendants to satisfy their lien on the ship. In the meantime on the 20th July 1892 a petition had been filed for the winding-up of the plaintiff company, which was duly advertised, and, on the 11th Aug, a winding-up order was made. On the 13th Aug. 1894 the present action was commenced by the plaintiff company in the liquidation, claiming that the said sum of £10,944 should be handed over by the defendants to the liquidator for distribution among the body of creditors of the plaintiff company. The action was tried before Collins, J. without a jury, and is reported in 75 L. T. Rep. 354 ; (1896) 1 Q. B. 55). Collins, J. held that the judgment of the Hamburg court was a judgment in rem, and that the money received by the defendants under it was theirs absolutely free from any claim of the liquidator for the benefit of the creditors of the plaintiff company. The plaintiff company appealed. Held, that the judgment of Collins, J. was right. Appeal dismissed.
[The Minna Craig Steamship Company v. The Chartered Mercantile Bank of India, London, and China. Ct. of App. ; Lord Esher, M.R., Lopes and Chitty, L.JJ. Feb. 19 and 23.--Counsel: for the plaintiffs, Joseph Walton, Q.C.and Boyd, Q.C. ; for the defendants, Sir R. T. Reid, Q.C. and English Harrison. Solicitors : for the plaintiffs, Botterell and Roche: for the defendants, Clarke, Rawlins,
and Co.] Company-Winding-up-Just and equitable Cause for Winding-up
Substratum of Business gone-Fraudulent Purpose - Companies Act 1862 (25 & 26 Vict. c. 89), s. 79, sub-sect. 5.-One T. E. B. with his two sons, and another workman, who had all been in the employment of the old-established firm of John B. and Sons, pianoforte manufacturers, started a rival business, and finally formed a company of T. E. B. and Sons Limited, with the deliberate intention (as shown by cogent evidence) of getting as much of the old firm's trade into their own hands as they possibly could by using this name. The company was incorporated in July 1896, its principal object, as stated in the memorandum of association, being to acquire and take over the business of pianoforte manufacturers carried on by T. E. B., E. G. S. B., and S. W. B., under the style of “T. E. B. and Sons.". The aniount of the purchase money to be paid by the company for the business was £76,000. The company had been restrained by North, J. (affirmed by the Court of Appeal) from using the name of T. E. B. and Sons Limited or the name of B., in connection with the manufacture for sale or hire of pianos, without adding thereto an express statement that the new company was distinct from and had po connection with the old firm of J. B. and Sons. There was evidence that the company was doing a considerable business, and at a meeting of shareholders held by order of the court a majority of those present desired that the business should be continued, and that the company should not be compulsorily wound-up. A petition was presented by a shareholder, though it was also obviously presented in the interest of the old firm of J. B. and Sons, to wind-up the company compulsorily under sect. 79 (5) of the Act of 1862, on the main grounds that the substratum of the business which this company was incorporated to carry on had become impossible; and that this was a bubble company. It was also urged that, it being impossible for the company to use its corporate name, either altogether or as a trade name, after the injunction that had been granted, the business defined by the memorandum of association had become impossible ; and that it being proved that the company was formed in fact for a fraudulent purpose, it was just and equitable that it should be wound-up. Further, that a primâ facie case of fraud having been made out, a winding-up order would afford the best means of making the vendors disgorge the large amount of cash paid to them for purchase money, for the benefit of shareholders who should make out their right to repudiate on the ground that they were induced to take shares by fraud in the prospectus. It was decided by Williams, J. (75 L. T. Rep 585), upon a consideration of all the facts, that a very material part of the substratum of the company's business was gone, and that, there being clearly a state of things which would justify the court, in the exercise of its discretion, in making a windingup order, the balance of the facts showed that such an order ooght to be made. On appeal : Held, tbat, although the words “just and equitable," in sub-sect. 5 of sect. 79 of the Companies Act 1862, had had a narrow construction put upon them in various decided cases, yet they had never been con- strued so narrowly as to exclude such a case as this ; that, if ever there was a case in which it was just and equitable that a company should be woand-up by the court, it could not be doubted that that case was this case ; and that therefore
the appeal should be dismissed with costs. Decision of Williams, J. affirmed.
[Re Thomas Edward Brinsmead and Sons Limited. Ct. of App. No. 2: Lindley, Smith and Rigby, L.JJ. Feb. 11, 12, and 20.—Counsel : for the appellants, Sir R. T. Reid, Q.C. ; Eve, Q.C., and Romer; for the respondent, Warmington, Q C., Swinfen Eady, Q.C., and C. Lyttelton Chubb; P. S. Stokes ; Duka. Solicitors : for the appellants, Thomson and Co.; for the respondents, W. Maskell ; Pownall and Co.; J. H.
Moggridge.] Innkeeper-Liabilities--Obligation to permit Guest to remain-Guest
ceasing to bear that Character.--This action was brought to recover damages for refusing to permit the plaintiff to remain as a guest at a hotel. The plaintiff went to the Hotel Metropole at Brighton, and was received as a traveller and guest. She remained there for ten months, when she was requested by the manager, acting under the order of the directors, to leave the hotel. She refused to leave and said, in effect, that she would stay there as long as she pleased. Thereupon reasonable notice was given to her to leave, and, as she did not leave, her goods were packed up and removed, and she was excluded from the hotel. The action was brought in the County Court, and was founded upon the common law liability of innkeepers. The County Court judge found that the hotel was an inn, that the plaintiff had been received as a traveller and guest at the inn, and that there was no good reason for refusing to permit her to remain, assuming that she had a legal right to do so.
The judge, however, held that she had ceased to be a traveller and guest at the time when she was requested to leave the hotel, and that the manager was justified in refusing to permit her to remain after a reasonable notice had been given. The plaintiff appealed, and the Divisional Court (Wright and Bruce, JJ. dismissed the appeal. The plaintiff appealed with leave. Held (affirming the decision of the Queen's Bench Division), that an innkeeper is bound to permit a traveller and guest to remain at the inn only 80 long as he bears that character, and that the judge was justified in deciding that the plaintiff had ceased to be a traveller and guest.
[Lamond v. Richard. Ct. of App. : Lord Esher, M.R., Lopes and Chitty, L.JJ. Feb. 22.-Counsel : for the appellant, Carson, Q.C. and P. Rose Innes ; for the respondent, Asquith, Q.C. and S. H. DaySolicitors: for the appellant, R. E. Campbell; for the respondent,
Stanley, Woodhouse, and Hedderwick.] Poor Law--Loan to Guardians of the Poor-Mortgage with Proviso tkat
Lenders, if willing to do so, might accept Repayment at any time before Day fixed by Deed-Guardians entitled to redeem without Consent of Lenders-Poor Law Loans Act 1871 (34 Vict. c. 11), s. 2.-Subsequently to the date of the Poor Law Loans Act 1871 the guardians of a poor law union, acting under their statutory powers, borrowed large sums of money from a life insurance society and also from a provident institution, the loans being repayable by annual instalments each of principal and interest combined, extending over periods none of whick exceeded thirty years. Each of the instruments executed for the purpose of securing the loans was in the form contained in the Union Loans Act 1869, and contained a proviso at the end thereof, enabling the lenders, “ if willing to do so,” to accept payment at any time before the day fixed for the payment of the last instalment, and in the recitals thereof reference was made to the Poor Law Amendment Acts 1834 and 1837, and the several Acts incorporated therewith, and also to the Union Loans Act 1869, and to the Divided Parishes and Poor Law Amendment Act 1882, and all other Acts enabling them in that behalf; but not to the Poor Law Loans Act 1871. Sect. 2 of that Act provides that: “ If any guardians or managers having borrowed, or hereafter borrowing money under the authority of the Acts referred to shall be able at any time to obtain a loan at a lower rate of interest than that secured by the charge previously made by them, they may apply to the Poor Law Board for an order to enable them to redeem the balance of the loan, and to borrow so much money as may be necessary for that purpose ; and if the said board shall issae their order in that behalf, the said guardians or managers may borrow the requisite amount to redeem such balance, and charge the fund to which the original loan was charged with the repayment of this additional loan in so many instalments as shall be outstanding at the time when the loan is redeemed, but not more : Provided that in the event of any loan outstanding at the time of the passing of this Act, no such redemption shall take place without the consent of the person or persons to whom the loan shall be owing." The guardians, acting under this section, obtained the necessary order from the Local Government Board, but the lenders refused to accept the repayment of the loans before the date fixed for such repayment by the instruments securing the same, on the ground that under the terms of their contract with the guardians they were not obliged to de so against their will. Upon a special case stated for the opinion of the court: It was decided by North, J. (75 L. T. Rep. 412) that the guardians had power to pay off the loans, and redeem without the consent of the lenders. On appeal : Held (dissentiente Smith, L.J.), that there was nothing in the Act which expressly or by necessary inference required the court to decide that, if poor law guardians thought proper to borrow money on the express terms of paying & fixed rate of interest, and of paying off the loan by instalments, they could, nevertheless, require the lenders to take back the unpaid principal at any moment and without previous notice ; that if the Legislature really meant that all loans to guardians made after 1871 should be subject to such a condition they had not said so; and that the court could not infer from the language used a direction that for the future the borrowing powers conferred by the Act could only be exercised for the purpose of making such very one-sided bargains.
Held, therefore, that the appeal must be allowed with costs. Decision of North, J. reversed.
[The Guardians of the Poor of the West Derby Union v. The Metropolitan Life Assurance Society; The Same v. Priestman. Ct. of App. No. 2: Lindley, Smith, and Rigby, L.JJ. Feb. 8 and 20.—Counsel: Sir R. T. Reid, Q.C. and Danckwerts ; Sir R. T. Reid, Q.C. and Charles Crawley; CozensHardy, Q.C., Swinfen Eady, Q.C., R. J. Parker, and W. E. Cleaver. Solicitors : Travers Smith, Braithwaite, and Robinson ; Evans, Foster, and Wadham, agents for J. and J. R. W. Thompson, Bradford ; Sharpe Parker, Pritchards, and Barham, agents for Cleaver, Holden, Garnett,
and Cleaver, Liverpool.] Practice-Payment of Money into Court before Defence--Defence denying
Liability-Joinder of Issue-Order XXII., rr. 1, 4, 6, and 7.- The plaintiff was indorsee for value of a bill of lading for 803 bales of hay shipped on board the steamship Mobile, at New York, for carriage to London. Th bill of lading was given by the New York Shipping Company. The defendants were London agents for the New York Shipping Company. The action was commenced in Dec. 1893, to recover damages for short delivery. On the 16th Jan. 1894 the defendants paid £74 into court, and at the same time served on the plaintiff a notice in the Form No. 3, in Appendix B. of the Rules of the Supreme Court, alleging that the money paid in was enough to satisfy the plaintiff's claim. On the 16th Feb. the plaintiff delivered his statement of claim. On the 17th March the defendants delivered their statement of defence, in which they denied liability, and also alleged that the £74 they had previously paid into court was enough to satisfy the plaintiff's claim. Upon this defence the plaintiff joined issue. The money remained in court, and the action proceeded to trial. At the trial before Williams, J., without a jury, the learned judge held that he had to try an issue whether or not the defendants were under any liability on the bill of lading. On this issue he held that, as they were not parties to the bill which was the only piece of evidence adduced by the plaintiff besides the alleged admission in consequence of the pay. ment into court, the plaintiff had failed to show any cause of action, and he gave judgment for the defendants. The plaintiff appealed. Rules 1, 4, 6, and 7, of Order XXII., were referred to, and Re The Earl of Stamford and Warrington (53 L. T. Rep. 511) and Hennell v. Davies (68 L. T. Rep. 220 ; (1893) 1 Q. B. 367) were cited. Held, that the plea denying, liability and the joinder of issue ought not to have been upon the record, and must be treated as struck out. Liability had been admitted by the payment into court, and the only question to be decided was therefore the amount of the damages, for which purpose there must be a new trial. Appeal allowed.
[Dumbelton v. Williams, Torrey, and Field Limited. Ct. of App.: Lord Esher, M.R., Lopes and Chitty, L.JJ. Feb. 17.--Counsel : for the plaintiff, McCall, Q.C. and C. A. Russell, Q.C.; for the defendants, Robson, Q.C. and Kilburn. Solicitors : for the plaintiff, Ray and Miers ;
for the defendants, Downing, Holman, and Co.] Public Health-Vacant Land-Nuisance--Removal of Refuse-Vestry
Owner--Injunction Public Health (London) Act 1891 (54 8. 55 Vict, c. 76), ss. 13, 35. and 138.--An action was brought by the AttorneyGeneral, at the relation of the vestry of a parish, for an injunction to restrain the defendant from allowing a vacant piece of land in the parish to be and remain in such a state as to be a nuisance or injurious to health. It appeared from the plaintiffs' evidence that the piece of land in question was unbuilt on and surrounded by a hoarding which was out of repair, and that dead cats and dogs, offal, filth, and refuse were thrown upon the land, and that persons getting through the hoarding used the land for other objectionable purposes. Under sect. 13 of the Public Health (London) Act 1891 the sanitary authority was empowered to take proceedings in the High Court to enforce the abatement or prohibition of a nuisance. And by sect. 35 notice might be served upon the owner of the premises on which obnoxious matter was, requiring hiin to remove the same, and if the notice was not complied with, the sanitary authority might remove the matter and recover the expenses of so doing from the owner. The plaintiffs contended that an injunction to restrain the defendant "fror allowing the land to be and remain in such a state as to be a nuisance or injurious to health” was the sole possible remedy under the circumstances. On the 11th Jan. 1896 the agent of the defendant wrote to the solicitor to the vestry, pointing out that it was impossible for the owner of the land, unless he was also occupier, to prevent people from throwing refuse over the hoarding, or breaking it up, and suggesting that the vestry should send their dustman to visit the land periodically, and keep it clean : also that they should use their influence with the police to stop the damage to the hoarding and the deposit of filthy matter. It was decided by Kekewich, J. (75 L. T. Rep. 452) that there was an imperative duty cast upon the owner of the land not to use his property so that it should be injurious to bis neighbours; but that, having regard to the powers conferred upon the vestry by sects. 13 and 35 of the Act referred to, and also considering the very serious outlay and difficulty that would be occasioned to the defendant if an injunction were granted in the terms asked for, his Lordship, in his judicial discretion, declined to grant it. The plaintiffs appealed. Held, that it was a common law duty of the owner of a vacant piece of land to prevent that land from being a public nuisance (Hawkins's Pleas of the Crown, p. 629); that it was of no use for the defendant to say that he had not put the refuse complained of on the land, his duty being to prevent it from becoming a public nuisance; and that the mere fact that the injunction would put the defendant to expense in the removal of the refuse and rubbish was no excuse. Accordingly the Court made the following order : Discharge the order appealed from, and allow the appeal. Declare that the defendant was legally bound to prevent the piece of land in question from continuing
to be a public naisance, and that the Attorney-General was entitled to an injunction to enforce the performance by him of such duty. Liberty for the Attorney-General to apply to the judge for such an injunction if necessary. The defendant to pay the costs of the action so far as it was dismissed against the defendant without costs, and also to pay the costs of the appeal.
[Attorney-General v. Tod Heatly. Ct. of App. No. 2 : Lindley, Smith, and Rigby, L.JJ. Feb. 18.--Counsel : for the appellant, Warrington, Q.C. and Morton Smith ; for the respondents, Renshaw, Q.C. and Ingpen. Solicitors : for the appellant, J. C. F. Warrington Rogers,
for the respondents, Last and Sons.] Trust-Words of Request—Construction-Precatory Trust.-In 1831 the
second Viscount Hill was married, and on the occasion of the marriage his mother Mrs. Hill gave his wife a diamond necklace and other jewels. In 1890 his widow, then the Dowager Ann Viscountess Hill, sent a document to her solicitor, in which she stated that “when I married she (Mrs. Hill) gave them (the jewels) to me for my life, with the request that at my death they might be left as heirlooms." In 1891 the Dowager Ann died, and by her will made in that year she bequeathed the jewels to her son (the third Viscount) for life, and after his death to each and every of the persons who should in turn succeed to the title and dignity of Viscount Hill, severally and successively as they should in turn succeed to such title and interest. The third Viscount died in 1895, leaving a son, the fourth Viscount, who was born in 1863. This action was brought by the fourth Viscount against the Dowager Viscountess Hill, his stepmother and widow of the third Viscount, to recover possession of the jewels above mentioned. At the trial of the action before Collins, J., without a jury, the learned judge held that the document of 1890 showed that the jewels had been given by Mrs. Hill in 1831 to the Dowager Ann for life only, with a precatory trust that by her will she should as far as possible constitute them as heirlooms to go with the title. He also held that under the rule against perpetuities the third Viscount Hill took the jewels absolutely, and that he had given them to his wife, the present defendant, who was therefore entitled to them. The learned judge therefore gave judgment for the defendant. The plaintiff appealed, and contended that no precatory trust had been created by Mrs. Hill in 1831, and that the property in the jewels had vested absolutely in the Dowager Ann, and that under her will he was entitled to them. Lambe v. Eames (25 L. T. Rep. 175; L. Rep. 6 Ch. 597); Re Adams and The Kensington Vestry (51 L. T. Rep. 382; 27 Ch. Div. 394); Shelley v. Shelley (6 Eq. 540); Re Johnston (52 L. T. Rep. 44 ; 26 Ch. Div. 538); Re Hamilton; Trench v. Hamilton (72 L. T. Rep. 748 ; (1895) 2 Ch. 370) were referred to. The Court took time to consider its judgment. Held, that there was nothing in the case to show that the words used by Mrs. Hill in 1831, at her gift of the jewels to the Dowager Ann, ought to be construed as having anything more than their ordinary meaning; that in their ordinary meaning the gift was an absolute one with a mere request as to their subsequent disposition, and that no precatory trust had been created. The jewels therefore belonged to the plaintiff.
Appeal allowed. [Hill v. Hill. Ct. of App. : Lord Esher, M.R., Lopes and Chitty, L.JJ. Jan. 20 and Feb. 19.--Counsel : for the plaintiff, Cozens-Hardy, Q.C. ; Jelf, Q.C. and K. J. Rowlands ; for the defendant, Warmington, Q.C. and Arthur Powell. Solicitors : for the plaintiff, Stibbard, Gibson, and Co., for Rowlands and Co., Birmingham; for the defendant,
Dunkerton and Son, for Picton, Jones, aud Roberts, Pwllheli.] Will — Tenant for Life and Remaindermen-Absolute Trust for Sale
Discretionary Power to postpone-Trustees not agreed-Operation of absolute Trust. -A testator by his will, after giving his wife all his household furniture, &c., gave all the rest and residue of his estate and effects to two trustees therein named, upon trust to sell his real estate, and such part of his residuary personal estate as should consist of leasehold lands or tenements, either together or in parcels, and either by public auction or by private contract, with power to insert any special or other stipulations in any contract or conditions of sale, as to title or otherwise, as they or he might think proper, and to call in and to convert into money the remainder of his personal estate. And then, after ordering the moneys to be invested, and an annuity to be paid to J. L. for his life, he declared they should hold the rest of the trust funds upon trust to pay the annual income to his widow during her natural life for her sole and separate use and benefit, and independently of any husband with whom she might intermarry, and from and after her decease, in case he died leaving lawful issue who should be living at the decease of his said wife, he gave and bequeathed the stocks, funds, and securities upon which the moneys were invested, unto and equally between such issue if more than one, and if but one to such only child, but if there should be no such issue, then equally between certain persons therein named. And, after other usual clauses, the testator continued : “And I hereby declare that it shall be lawful for my trustees or trustee, with the consent of my said wife during her life, to allow any part or parts of my said residuary estate to remain in their actual state of investment at the time of my decease, and that it shall not be necessary for them to sell my real or leasehold estates, or any part thereof, during the life of my said wife, unless she shall in writing request them so to do.” The trustees were not agreed as to a sale, but the remaindermen desired it. The testator's widow had not made any request in writing. The question was whether or not the testator had created an absolute trust for conversion of his real estate, or whether it was only & trust to be exercised with the consent of the widow. It was decided by Stirling, J. (75 L. T. Rep. 387) that the above clause amounted to a discretionary power to postpone conversion ; and that, the trustees not agreeing, the absolute trust for sale took effect. On appeal: Held, that