THE LAW AND THE LAWYERS

The Budget and the Rates

For the first time for many years the Budget proposals put forward by a Chancellor of the Exchequer contain really constructive suggestions. They form the first step to be taken for the relief of manufactures and agriculture from the intolerable burden of local rates, and this is to be effected by a measure of full reform of our existing rating methods. It cannot be disputed that our system of local rating, dating from the sixteenth century, is wholly inapplicable to modern industrial production; for in industry the burden is cumulative, and at every stage in the progress of basic products the rates add to the price, and that unequally and irregularly. The creation of wider areas for certain purposes of local government has long been urgent, and amongst these must be placed the poor law and the maintenance of highways. . The declared policy of the Government is to proceed in three main stages. First, the money must be collected necessary for the relief of the rates upon the producers; that is to be provided for by the Finance Bill. Next, the scope and direction in which the relief is to be applied is to be defined by a Valuation (Ascertainment) Bill. Then how the local authorities are to be reimbursed for their loss in rateable value is to be dealt with by a Local Government Bill, which will carry out other reforms in that form of administration. Rating relief will be afforded directly to the manufacturer and agriculturist by the reduction of rates upon premises used for the purposes of production to the extent of seventy-five per cent of the rates now paid;

and in the case of farm buildings and lands, there will be complete remission of rates. A reduction of the rate burden on freight-carrying railways, canals, docks, and harbours, will also afford indirectly relief to producing industries, but these reductions are conditional upon equivalent reductions in charges. It is a great scheme, and no reason exists why it should not prove successful. Much will depend upon the legislative proposals to follow the Finance Bill. Reform of local government must include a strict delimitation of the powers of local authorities to raise and spend money, for otherwise real danger may materialise, and the more prudent distribution. of the contributions of the country will be destroyed by extravagance in other directions.

Courts of Appeal and the Public

A CURIOUS situation has arisen by reason of the decision of the Court of Appeal in Hardie and Lane v. Chilton and others (ante, p. 327), for in that case the Court of Appeal expressed the opinion that the decision of the Court of Criminal Appeal in Rex v. Denyer was wrong. Last Monday the Lord Chief Justice at the sitting of the Court of Criminal Appeal made the following statement :

Since the last sitting of this court a situation has arisen, affecting the jurisdiction of the court, which calls for some comment.

By the Criminal Appeal Act 1907 this court is constituted the final Court of Appeal in criminal cases, subject only to an appeal to the House of Lords on the certificate of the Attorney-General.

On the 22nd March 1926 this court affirmed the conviction of one Denyer, who had been convicted by a jury of the offence of demanding money by menaces, contrary to sect. 29 of the Larceny Act 1916.

At the end of last sittings judgment was given in Appeal Court II. in the case of Hardie and Lane Limited v. Chilton and others, in which a claim had been made to recover money alleged to have been paid under duress in circumstances similar to those in Rex v. Denyer.

The Lord Justice who delivered the leading judgment in the Court of Appeal is reported to have said, in the course of it, that in his opinion the case of Rex v. Denyer was wrongly decided. It may be well, therefore, to make it clear, for the purposes of the administration of the criminal law, that, unless and until the decision in Rex v. Denyer in this court is reversed by the only competent tribunal, it is binding upon and will be enforced by this court against any person or persons offending in like manner.

It must, therefore, be taken that at the present moment an act that the Court of Appeal has held to be innocent will be held by the criminal courts to be an offence, and an offence which under the statute is punishable by a maximum sentence of penal servitude for life. Such a position can hardly be tolerated. No doubt if there is an appeal to the House of Lords in Hardie and Lane's case the question can be set at rest by the decision of the ultimate court of appeal from both tribunals without recourse to legislation. It is not the first time that a ruling by an appellate court in a criminal matter has been questioned in the civil Court of Appeal, for, although on appeals from justices the decision of a Divisional Court of the King's Bench Division is final, questions of law have been raised in civil proceedings so as to obtain a review of the decision by the Court of Appeal. But a ruling of the Court of Criminal Appeal, although that court is identical in personnel with the King's Bench Division, is under the Criminal Appeal Act 1907 in a somewhat different position, for, as Lord Hewart points out, its determination is final and no appeal lies from it to any other court, save on a certificate of the Attorney-General, when a further appeal can be taken to the House of Lords. But whatever may be the true relationship of the two tribunals the public have a right, where the criminal law is concerned, to have the matter cleared up one way or the other, and in this they will be strongly supported by professional opinion. Both Rex v. Dymond and Rex v. Denyer have laid it down that there must be reasonable and probable cause for making the demand, and belief that reasonable and probable cause exists for making it is not sufficient. And further, that if such cause does not exist in fact an offence is committed under sect. 29 of the Larceny Act 1916. Hardie and Lane Limited v. Chilton shows that where you have a legal right to do an act that constitutes reasonable and probable cause for doing it.

Revenue Authorities and Appeals

IF anyone doubts the accuracy of certain letters that have appeared in the Press as to the pressure brought to bear upon successful appellants before the Special and General Commissioners to submit to the demands of the taxing authorities by threats of further appeal, they will find much corroboration in the proceedings in Inland Revenue Commissioners v. Wilson, judgment in which was delivered by the House of Lords on Tuesday last. In that case the sum in dispute was £11 11s. 9d. The General Commissioners decided in favour of the taxpayer and this was unanimously confirmed by the First Division of the Court of Session in Scotland. Thereupon the unfortunate taxpayer was taken to the House of Lords, the Crown being represented by the Lord Advocate, the

Solicitor-General for Scotland, the Junior Counsel for Inland Revenue in England, and another Scottish advocate. Lord Haldane, in delivering judgment dismissing the appeal, pointed out that in certain circumstances a question of principle might have arisen, but in that particular case no such question was involved. The only bright spot in the proceedings, so far as the individual taxpayer was concerned, was that the Crown had undertaken to pay the respondent's costs of the appeal as between agent and client, but why the country should be saddled with waste of money of this description it is difficult to understand. Other persons are not so fortunate as Mr. Wilson in ensuring that their expenses will be fully met under all circumstances, and some means ought to be devised to protect the ordinary taxpayer from being dragged from court to court by the Crown where the amount involved is small and he has been held by the commissioners to be right.

Judges and the Rating and Valuation Bill

LORD MERRIVALE, in the House of Lords this week, called attention to the position of the judges under clause 4 of the Rating and Valuation Bill, which provides :

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(1) If on the representation of the Central Valuation Committee it is made to appear to the Minister of Health that a substantial question of law has arisen in relation to the valuation of hereditaments or of any class of hereditaments for the purposes of rating and that, unless that question is authoritatively determined, want of uniformity or inequality in valuation may result, the Minister may submit the question to the High Court for its opinion thereon, and the High Court, after hearing such parties as it thinks proper, shall give its opinion on the question.

(2) The Central Valuation Committee may appear as parties on the hearing of any such case for the purpose of supporting any contention with respect to the question at issue and may, if they think fit so to do, contribute such amount as they think proper towards the costs of any persons appearing on the hearing for the purpose of supporting the contrary contention.

We have always been very insistent that the judicial and executive functions should be kept entirely separate, but we think that in this case the learned President has not quite appreciated the position created by clause 4. He referred to "the responsibility of giving advisory opinions at the instance of Ministers of the Crown in the manner proposed by the Rating and Valuation Bill, clause 4," and he described it as a "fundamental and constitutional change in judicial administration in this country." He also referred to a resolution he had formulated that it was not fair to place upon His Majesty's judges a task of this description, which would be mischievous as regards the general administration of justice, and that "it is not consistent with the due administration of justice that a Minister who has obtained in advance an advisory opinion from a judge shall afterwards bind His Majesty's subjects by that opinion, although they were not parties to it." But it will be noted that under the clause the High Court can hear any parties it thinks proper, and it is not likely that any court would proceed to judgment until it had heard all the interests concerned. To us the clause seems a useful one, as it provides for decisions on doubtful points of law for the purpose of obtaining uniformity, and it ensures subjects having their law decided by the courts rather than by officials in the obscurity of some office. It is not a question of referring abstract questions of

law but only substantial questions of law that have actually arisen, and it merely gives assistance in rating matters such as is already given in National Insurance. Again, all litigants are bound by previous legal decisions on points of law although not parties thereto.

Irish Civil Servants

THE discussion in the House of Lords, at the instigation of Lord Carson, with reference to the decision of the Judicial Committee of the Privy Council in Wigg v. Attorney-General of the Irish Free State, which caused a rather lamentable display of feeling on the part of the learned Lord of Appeal in Ordinary, is welcome. For it shows that both the Government of this country and of the Irish Free State have no intention of introducing legislation to interfere with the vested rights held by established civil servants upon their retirement in consequence of the change of government in Southern Ireland. Both Lord Haldane and Lord Dunedin, who were members of the Board when the case was heard, made it plain that there were two questions for consideration, namely, first, whether there was a legal right to compensation and an obligation on the part of the Free State Government to pay that benefit; and, secondly, as to what the individual civil servant was entitled to. It is true that the opinion of the Board delivered by the late Lord Cave deals with both points, and it is now admitted, and by the late Lord Cave also, that an error was made in dealing with the last-mentioned question. definitely stated by Lord Birkenhead, who replied for the Government, that the Government of the Irish Free State has never expressed any intention of depriving these civil servants of their rightful pensions and emoluments. In the abstract it is an undesirable thing that it should be necessary for any judge to give an explanation of a decision which he has given as a judge, but this was a case in which some explanation was imperatively necessary. Retrospective legislation is always bad, as we have always pointed out, but here, if we read the debate aright, the legislation is not to interfere in any way with vested rights but merely to declare what those vested rights are in fact.

Administration of Justice

It was

THE Administration of Justice Bill was read a second time in the House of Lords on Tuesday last, and is to be considered in committee next week. We are glad to note that Lord Hailsham announced that provision has already been made by the Indian Legislature that in the event of the Bill being passed into law the Indian Revenue will provide a further and equal salary of £2000 a year for the two additional Indian judges who are to form part of the Judicial Committee of the Privy Council, so that the total remuneration will amount to £4000 a year, and thus the only objection to this very necessary provision is removed. Probably when the Bill goes into committee some further explanation will be given of the powers sought to be obtained under clause 6 of the Bill to which we have already referred (ante, p. 322), for at present its effect is somewhat obscure. We think that there will be general agreement with Lord Haldane that the supreme appellate tribunals of the Empire are undermanned. No doubt the addition of the two extra judges for the purpose of dealing with

Indian appeals to the Judicial Committee will afford some relief, and the withdrawal of the limit on the number of Dominion judges will also help. But the services of at least fifteen judges ought to be relied upon if the work is to be carried out efficiently and expeditiously, for no division of the Judicial Committee or any sitting of the House of Lords should be composed of fewer than five judges.

Juries and Insurance Companies

It is now clear from the decision of the Divisional Court, consisting of Mr. Justice Salter and Mr. Justice Talbot, in Grinham v. Davies that a judge has a discretion to discharge a jury and order the case to be tried by a fresh jury when they have been informed on behalf of the plaintiff that the defendant is insured. There is no doubt that there is an established rule of practice that in an accident case the jury ought not to be told that the defendant is insured, and, as Mr. Justice Salter pointed out, it is obviously a fair rule, because it is well known that in these cases the jury are naturally much more prone to find for a plaintiff if they know that the amount of their verdict will be paid by an insurance company and not by an independent person. As a matter of fact there is no reported decision where a judge has discharged a jury for this reason, but in Gowar v. Hales (137 L. T. Rep. 580) it was approved that nondisclosure of the fact of insurance was a practice that judges should enforce. That fact can only be introduced for one purpose, namely, prejudice, and, as Lord Hanworth pointed out in the case to which we have referred, it is of importance that the real issue between the parties should be decided upon the merits of that issue, without a supervening and prejudicial circumstance not really material being introduced, namely, that the defendant might have recourse under a policy against a large and in many cases wealthy corporation.

Tying up Property

Re Villar (post, p. 376) shows that despite the Thellusson Act and the provisions of the Law of Property Act 1925, power still exists to tie up property for an unconscionable and unreasonably long period. For it can be settled for the life of any person living and ascertained at the date of the settlement and for twenty-one years thereafter, and in the case of a will that period would begin to run from the death of the testator. Mr. T. Cyprian Williams contributes an excellent letter to The Times, in which he points out the absurdity of the whole matter, especially as illustrated by the case of Re Villar, and he makes the following very sensible suggestions, with which we think there will be general agreement :

It is quite in accordance with general public opinion to allow property to be put into settlement for the lives of living persons (as of persons about to marry), who are to take under the settlement, and for a further term of twentyone years, corresponding with the minority of some child, to become entitled under the settlement. But it is really ridiculous to allow property to be tied up for the life of the longest liver of any number of ascertained persons, entirely unconnected with those who are to take under the settlement, and for the further term of twenty-one years afterwards. The result is that if the settlor is lucky enough to select, as one of the lives, a child who will enjoy an unusually long life, the property may be tied up for over 100 years; whilst, if the lives taken are all prematurely cut off, the time of settlement will be reduced accordingly.

I think that the present law should be preserved to the extent of allowing settlement during the lives of existing persons, being either themselves beneficiaries under the settlement or the parents, grandparents, or relations in loco parentis of such beneficiaries, and a further term corresponding with the minority of any child or children to become entitled under the settlement. But if any other term is to be allowed within which settlement may be permitted, I submit that it would be much better to prescribe some definite term of years from the date of the settlement. suggest that, having regard to the present law, seventy-five years would be an ample allowance. Sixty years might be thought quite sufficient.

Election Expenses

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IN committee on the Representation of the People (Equal Franchise) Bill on Monday last a determination was reached by the House of Commons as to the maximum scale of election expenses to be allowed on the basis of each elector in counties and in the boroughs. At the present time candidates in the counties are allowed 7d. for each elector and in boroughs 5d., but with the large increase of voters that is bound to accrue to the register when the present legislative proposals are passed into law it was necessary that something should be done to deal with this question of expenses. By a very substantial majority the House in committee decided that in the case of the counties, 7d. should be reduced to 6d., and by a narrow majority of eight it was decided to leave the figure for the boroughs at 5d. These will be sufficiently formidable figures for candidates.

CONTRACTS IN PERPETUITY

IT is seldom that a question arises whether the obligations imposed on the parties to a contract may be of a perpetual character, and unlimited as to time, and the proposition itself seems somewhat startling. Such a question, however, recently arose in the case of Crediton Gas Company v. Crediton District Council (ante, p. 223).

There the plaintiff company entered into a contract with the defendant council, whereby they undertook to light all the public lamps in Crediton "from and after the first day of September in every year up to the following first day of May inclusive," the rates of payment under the above contract being subsequently varied by a supplemental agreement. Neither agreement, however, contained any provision as to whether or how or at what time either party might determine the contract. The defendant council eventually purported to terminate the contract, whereupon the plaintiff company contended that the contract was perpetual and could not be terminated except by mutual consent.

Contracts generally provide for some method of termination apart from mutual consent, e.g., by notice, or on the happening or non-happening of other events; and there are, moreover, special classes of contract, e.g., employment or tenancy contracts, where the law itself will imply a power vested in each of the contracting parties to terminate the contract by notice.

Where there is no such express provision, however, in an ordinary contract, it would seem that the law will imply that the contract is not revocable or determinable, and will cast the onus on the person seeking to determine the contract to show that there is some express or implied provision in the contract entitling him to determine the same at his option.

The case of Llanelly Railway and Dock Company v. London and North-Western Railway (29 L. T. Rep. 357; 32 L. T. Rep. 575; L. Rep. 8 Ch. 949; L. Rep. 7 H. L. 550) affords an interesting illustration of a contract that was held to be undeterminable. There the plaintiff company in consideration of a loan by the defendant company, entered into an agreement giving the latter company running powers over its own lines. Although there were provisions in the agreement providing that any differences that might arise thereunder should be referred to arbitration, no mention was made of any time for which the agreement was to endure or how it might be terminated. The House of Lords held on a construction of the agreement as a whole, that it was of a

permanent character, and that accordingly it could not be terminated (cf. also Great Northern Railway Company v. Manchester, Sheffield, and Lincolnshire Railway Company, 5 De G. & Sm. 138, where also running powers were given interchangeably between the two companies, and it was held that they were given in perpetuity).

The principle of law will be found well expressed in the judgment of Lord Justice James (29 L. T. Rep. 357; L. Rep. 8 Ch. 949), where the learned Lord Justice said: “I start with the proposition that prima facie every contract is permanent and irrevocable, and that it lies upon a person who says that it is revocable or determinable to show either some expression in the contract itself, or something in the nature of the contract, from which it is reasonably to be implied that it was not intended to be permanent and perpetual but was to be in some way or other subject to determination. No doubt there are a great many contracts of that kind; a contract of partnership, a contract of master and servant, a contract of principal and agent, a contract of employer and employed in various modes— all these are instances of contracts in which, from the nature of the case, we are obliged to consider that they were intended to be determinable. All the contracts, however, in which this has been held are, as far as I know, contracts which involve more or less of trust and confidence, more or less of delegation of authority, more or less of the necessity of being mutually satisfied with each other's conduct, more or less of personal relations between the parties." The learned Lord Justice then went on to point out that the agreement in question was in the nature of a grant or an agreement to grant a wayleave, and that in such a class of contract it would be unreasonable to imply any power of terminating the same. The actual decision in Llanelly Railway and Dock Company v. London and NorthWestern Railway (sup.), however, appears to be based on the fact that there were clauses in the agreement (as, for example, with regard to the staffing of the plaintiff company's stations with the servants of the defendant company, the determination by arbitration of the rates to be fixed, in the event of the exercise of the running powers granted by the agreement, &c.), which tended to show that the agreement was of a permanent character.

Whether a contract for the supply of gas is generally to be regarded as a contract which would not be determinable by implication does not appear to have been decided as an abstract question in Crediton Gas Company v. Crediton District Council, but the Court of Appeal came to the conclusion that the inference to be drawn from the terms of the agreement in this case was that it was in fact determinable, the court laying stress on the following matters as pointing to the conclusion that the contract was not to be perpetual, viz.: the fact that the defendant company was not obliged to take any specific quantity of gas, and that they could have accordingly discontinued the use of as many street lamps as they desired; that the rentals in the contract referred to an earlier agreement which was to remain in force until the [defendant] council should determine the same; and the existence of a clause in the supplemental contract, that the property in any new lamps was to vest in the defendant council if the agreement continued for fifteen years.

It will have been observed that the cases cited above in which the question of the perpetual character of the contract was raised, were cases in which both parties to the agreement were corporations, i.e., persons vested in the eyes of the law with a perpetual existence, themselves, and the above principles, therefore, as to perpetuity might have to be applied with considerable modification where either or both of the contracting parties happened to be an individual or individuals not enjoying, like a corporation, perpetual succession, in the eyes of the law.

COMMENTS ON CASES

Rent Restriction Appeals

UNDER the Rent Restriction Acts when a landlord or tenant makes an application to the County Court judge as to the amount of the increase of rent which is to be allowed to be charged that judge's decision is "final and conclusive." That is the effect of the Increase of Rent, &c., Act 1920, s. 2, sub-s. 6, as regards questions arising under sub-sects. 1, 2, or 3 of that section, which deals with "permitted increases." But this provision is only in point where there is an "application" upon a question of administration. According to Strickland

v. Palmer (131 L. T. Rep. 648 ; (1924) 2 K. B. 572) the decision is not "final and conclusive" where there is no "application" and the proceedings are brought by action, whether by the landlord for non-payment of rent, or by the tenant for recovery of rent overpaid. In such cases the general jurisdiction of the court is not excluded, and an appeal will lie. In Strickland v. Palmer (sup.) the landlord claimed arrears of rent from the tenant and issued a summons in the County Court for the purpose. The County Court judge found for the tenant, and it was held that the landlord was entitled to appeal from this decision. In Elvington Tenants v. Hutton (ante, p. 328) an application was made to the County Court to determine whether a notice of increase was valid, and whether the landlord was responsible for repairs under the tenancy agreement. The County Court judge decided in favour of the landlord, and upon appeal the Divisional Court held that this decision was final under sect. 2, sub-sect. 6, even though questions of law, as well as of fact, might be involved. It might be thought that the intention of the Legislature was plain from the words of the section, but so much doubt has arisen in connection with this Act that it is useful to have a clear decision of the High Court upon the point.

THE CONVEYANCER

Public Health Act-Town Planning Acts-Charge

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THE recent case of Paddington Borough Council v. Finucane (post, p. 375; (1928) W. N. 100) is interesting in two respects, viz., one as showing what a succession of underleases may exist upon one property at the same time, and the other as showing what property or persons are or may be liable to the statutory charge for repairs done by a local authority to houses for the purpose of making them reasonably fit for human habitation, under the Housing, Town Planning, &c., Act 1919 (9 & 10 Geo. 5, c. 35) as amended by the Housing Act 1925 (15 Geo. 5, c. 14). The various persons interested in the property the subject of the aforesaid case appear to have been as follows: (1) the Ecclesiastical Commissioners as freeholders; (2) the Paddington Estate Trustees as lessees for a term of 2000 years; (3) the Grand Junction Canal Company as sub-lessees for 2000 years less one day; (4) one Winstonley as a sub-lessee under the Grand Junction Canal Company; (5) his mortgagee; (6) the defendant Finucane-who appears to have been the owner" within the meaning of the Public Health Act 1875 as the person entitled to receive the rack rent—and his mortgagee. The plaintiffs, as the local authority within the meaning of the Housing, Town Planning, &c., Act 1919, claimed against the defendant Finucane, as owner of certain premises in Paddington, a declaration that the plaintiffs were entitled under sect. 28, sub-sect. (3), of the last-mentioned Act, as amended by sect. 3, sub-sect. (3) of the Housing Act 1925, to a charge upon the premises for the amount of the expenses incurred by them in executing certain repairs thereto; and that such charge had priority over any other charge on the property; and that (if necessary) an inquiry might be directed as to incumbrances; and that for the purpose of enforcing the charge the property might be sold. The plaintiffs served a notice under sect. 28, sub-sect. (1), of the Housing, Town Planning, &c., Act 1919 on the agent of Finucane's mortgagee requiring certain work to be done to the premises to make them reasonably fit for human habitation. That notice was not complied with. The main question for decision was whether the charge asked for was a charge upon all interests in the property, or only upon the interest of the person entitled to the rack rent. In Tendring Union, Guardians of, v. Dowton (65 L. T. Rep. 434; (1891) 3 Ch. 265) it was held that the words " charge upon the premises" in sect. 257 of the Public Health Act 1875 (a provision analogous to sect. 28 of the Town Planning, &c., Act 1919) meant a charge on the land and on all the interests of the owners of the land. That dictum followed the actual decision in Corporation of Birmingham v. Baker (17 Ch. Div. 782), where Jessel, M.R., in the course of his judgment said: I am of opinion that the plaintiffs are entitled to a charge on the premises,' which by the definition clause (sect. 4) includes messuages and buildings.' That is the literal meaning of the 257th section; and not only is there no context to control the literal meaning, but the good sense of the thing is entirely with the literal meaning. Even irrespective of good sense, this being an Act of Parliament, I should have held myself bound in the absence of any Second Sheet

absurdity, or any context to control it, to give effect to the literal meaning; but, as I said before, the good sense of the thing is with it. The works in question are an improvement to the property, not to the interest of any particular owner of the property, but of every owner of the house; and, consequently, there is no good reason in the world why there should not be a charge on the property, that is, upon the respective interests of every owner of the property according to the value of his ownership." It was accordingly held by Mr. Justice Russell (now Lord Justice Russell) that the plaintiffs were entitled to a charge upon the entirety of the interests in the premises. His Lordship also held (1) that it was sufficient in the first instance to bring before the court the rack rent owner, but when the court was asked to enforce the charge it would (if necessary) direct further steps to be taken to ascertain who were the persons entitled to be represented and would give directions for them to be served; and (2) that if a person, other than the rack rent owner, was brought before the court, under the Housing Act of 1925 it would not be open to such person to take objections which the rack rent owner might have taken but did not take. His Lordship thought that when once the rack rent owner had been served, and there had been no appeal, the notice became binding and conclusive for all purposes under sub-sect. (7) of sect. 3 of the last-mentioned Act.

Originating Summons-Law of Property Acts

THE procedure by originating summons is so often resorted to in conveyancing matters that a short note on the subject may be useful. It goes without saying that the new Law of Property Acts will necessitate slight alterations in the forms of originating summons, and some new forms may be required. The titles of them in various cases will require alteration. For instance, in future a summons will not, as a rule, be intituled In the Matter of the Trustee Act 1893; or of the Settled Land Acts 1882-1890; or the Conveyancing Act 1881, as those Acts have been repealed; but the body of the summons (except where a new statute is referred to) will be substantially the same as before. Here it may be mentioned that in Re Carvarvon's (Earl) Chesterfield Settled Estates (136 L. T. Rep. 241; (1927) 1 Chr. 138) attention was called to Order LV., r. 14A (3), which provides as follows: "Every such summons shall be intituled In the Matter of the Act or Acts under which the application is made, and in the Matter of the Will, Settlement, Trust or Property, as the case may be, to which the summons relates." Mr. Justice Romer said that in his view it could not have been intended to alter the invariable practice of setting out the title of the material statute or statutes beneath the statement of the subject-matter of the application.

Vendor and Purchaser-Sales by ExecutorsImplied Assent

HOUSES and land are frequently offered for sale by executors, as such, some years after the death of their testator and after a tenant for life, or some other beneficiary, has been in possession for several years. The danger of that course is well illustrated by the case of Wise v. Whitburn (130 L. T. Rep. 655; (1924) 1 Ch. 460). There in 1922 executors, as such, agreed to sell a leasehold house No. 16, Ennismoregardens, to the plaintiffs. The probate of the testator's will was produced, which showed that the property was specifically bequeathed to the executors on trust to permit the widow to occupy during her life, she observing and performing the covenants in the lease, and after her decease upon trust for the benefit of a son, C. W., one of the executors, and his children and other issue as therein declared of the son's share in the residuary estate. On the testator's death the executors permitted the widow to live in the house for ten years, but there was no actual assent to the legacy. The debts had long since been paid. The tenant for life had died in 1921. In 1923 the purchasers proposed to sell and assign part of the premises by way of underlease, and objection was taken by the assignee that the executors could not sell as they had assented to the legacy. The action was then commenced claiming damages for breach of the implied covenants for title. It was held by Mr. Justice Eve that there had been an assent to the legacy, and that the executors had lost their right of property, and had become trustees (Attenborough v. Solomon, 107 L. T. Rep. 833; (1913) A. C. 76); that in the circumstances it could not be said that the plaintiffs were