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PROBATE, DIVORCE, AND ADMIRALTY

DIVISION

PROBATE BUSINESS

In the Estate of GATES, A. (deceased).-Probate -Will-Construction

BLANCHARD, E. A. v. BLANCHARD, W. B.-Judicial separation-Husband's adultery.

HOUSE OF LORDS

MISSIONERS OF INLAND REVENUE.-RevenueExcess profits duty-Trade or business

THE LAW AND THE LAWYERS

Law Society's Report

We publish in another column (post, p. 544) the annual report of the Council of the Law Society intended to be presented to the general meeting of the members on the 6th July next. As usual, it evidences the large amount of valuable work that has been done by the council and its committees during the past twelve months. It will be noted that the Council of the Law Society dissent from the view held by the General Council of the Bar that the practice of barristers accepting briefs from non-solicitor clerks to local authorities is well established or recognised, although presumably both believe that the practice is undesirable. Both these representative bodies clearly intend not to allow the proposal for the introduction of legislation to assimilate legal proceedings between the Crown and the subject to that between subject and subject to be shelved. No doubt in certain Government departments it is hoped that the belated report of the departmental committee with its incorporated draft Bill will share the fate of share the fate of many other practical and useful reports, but rightly the Bar Council and the Law Society do not mean to permit such a matter of urgent public importance as the reform of the practice in proceedings by the subject against the Crown to be forgotten. We are glad to notice, too, that the council support the appointment of additional metropolitan stipendiary magistrates, a matter to which we have drawn attention in these columns for some time past.

Light and Air and Town Planning

FOR some years the law relating to the rights to light and air and to support from adjacent buildings, and the law relating to the dedication of highways

(2) That (subject to existing rights) the acquisition of easements of light and air under the Prescription Act, 1832, or under the common law fiction of a lost grant, should be abolished as from a fixed date.

(3) That as from that date such easements of light and air should be acquired only by express grant.

(4) That sects. 93 and 94 of the London Building Act, 1894, referring to the underpinning of adjoining buildings, should be made of general application whether a right of support does or does not exist.

(5) That in future the dedication of highways should not be presumed but should be evidenced only by written notice or direct documentary grant.

(6) That in any amendment of the law the question of rights of way and other easements should be more fully considered and dealt with on somewhat similar lines.

The attention of the council has also been directed to the necessity which exists for taking special care, in dealings with land and buildings, to ascertain before completion if and to what extent the property is affected by a town-planning scheme. The adequacy of the notices which are served upon those affected by such schemes has been open to question, and there is no doubt that personal service of notice of the first resolution upon owners and occupiers is essential. The work of the council with regard to all these matters has been both useful and thorough, and the amendment of the law in accordance with their recommendations seems generally desirable.

Maintenance and Divorce

By a majority of four to two the full Court of Appeal have held that where a deed of separation is entered into between spouses by which the wife covenants not to endeavour to compel the husband to allow her any alimony or maintenance in excess of the agreed sums contained in the deed, on a decree absolute for divorce being granted the wife is not bound by such covenant and is entitled to proceed under sect. 190 of the Judicature (Consolidation) Act 1925, and ask for an order from the court for permanent alimony. The division of opinion in the Court of Appeal is an interesting one, for the majority consisted of the four common-law Lords Justices, the dissentients being Lord Justice Lawrence and Lord Justice Russell, and the majority upheld the decisions of Lord Merrivale and Mr. Justice Hill. Apparently the view taken by the minority is that it is entirely contrary to equitable principles that a wife, after having accepted the benefits of a separation deed, should be allowed to repudiate her obligations under it, thus approbating and reprobating the deed, a proceeding against which Courts of Equity have always set their faces. As an abstract principle no doubt this is correct, but the Divorce Division in matrimonial causes is administering statutory provisions, and the one contained in sect. 190 gives the court power upon any decree for divorce to order due provision to be made for the wife. As Lord Hanworth pointed out, the court cannot forgo its duties, and it cannot be bound by an estoppel between the parties, and therefore no previous covenant can oust the jurisdiction of the court to make an order for permanent alimony under the section.

Fixed Easter

On Friday last week the Easter Bill, as amended by Standing Committee A, was read a third time and passed by the House of Commons. The operative clause provides :

Easter-day shall, in the calendar year next but one after -the commencement of this Act and in all subsequent years, be the first Sunday after the second Saturday in April, and section three of the Calendar (New Style) Act, 1750, the new calendar, tables and rules annexed to that Act, and section two of the Calendar Act, 1751, are hereby amended and shall be read and construed accordingly, and, in particular, the Calendar (New Style) Act, 1750, shall, as respects such calendar years as aforesaid, have effect as if in the "Rules to know when the Moveable Feasts and Holy Days begin contained in that Act, for the words "is always the first Sunday after the full moon which happens upon or next after the twenty-first day of March, and if the full moon happens upon a Sunday, Easter Day is the Sunday after,” there shall be substituted the words "is always the first Sunday after the second Saturday in April."

and by clause 2 the measure is not to come into operation until such date as may be fixed by Order of His Majesty in Council, and before such an Order is made resolutions are to be passed approving the draft Order by both Houses of Parliament. Again, an amendment was accepted on the third reading that before any draft Order is made regard must be had to any opinion officially expressed by the Church of England, the Roman Catholic Church, and any other Christian bodies. It is to be hoped that we are within a measurable distance of this very necessary reform in our calendar which has been sponsored for many years by Lord Desborough. The principles of the proposal have now been accepted by the House

IT was recently held by Mr. Justice Wright in Smith, Hogg, and Co. Limited v. Louis Bamberger and Sons that where a cargo of timber is discharged in the Port of London, part on the quay and part into lighters, as regards the part discharged on the quay the cargo is "alongside " when it is available for release from the ship's slings, or, if discharged by hand, when it is laid on the quay. As regards the part discharged into lighters the cargo is not “alongside" until the barge is loaded and trimmed in a seaworthy manner. That decision has now been considered by the Court of Appeal, and with regard to the discharge on the quay the learned judge's decision has been reversed. Mr. Justice Wright considered himself bound by the decision of the House of Lords in The Turid in 1922, where a custom inconsistent with the terms of the charter-party was held not to be good, but the Court of Appeal have held that the custom and practice of the Port of London by which shipowners in the case of timber are bound to unload and stack on the quay alongside the ship is applicable to the charter, and the shipowners are bound to do the work specified by the custom at their own expense. At any rate, the decision of the Court of Appeal has the merit of being consistent, and it upholds the method of discharge adopted in the Port of London for over twenty-five years without objection. So far as London is concerned it may therefore be taken that in the case of timber discharges, both on the quay and into lighters, they are to be made in the manner and at the expense as provided by the custom of the port.

Voluntary Allowances and Income Tax

A VOLUNTARY allowance or gift may become a profit or gain assessable to income tax if it is attached to an office, employment, or vocation, and examples of this are to be found in the case of Easter offerings and gratuities to servants, but a purely voluntary allowance or gift, such as a pension in respect of past services or a gift or allowance to a child or other person, is not so assessable. An example of this will be found in the case of Beynon v. Thorpe (post, p. 539), where after the retirement of the respondent from the position of managing director, a voluntary pension or allowance was made by the company to him pursuant to a custom to give such to members of its staff on their retirement. The case is interesting for the fact that for twenty years or more the company had been making payments of this kind and the inland revenue authorities had in every case refused to allow the deduction of those sums in the company's accounts because they were not expenses of the company's business, or, as Mr. Justice Rowlatt said, the payments were mere gifts. The revenue authorities then changed their attitude, saying that such sums were part of the expenses of the company and were assessable to income tax in the hands of the recipient. Such a change of attitude is not altogether unknown, and it hardly makes the payment of income tax any more popular with the taxpayer.

Denominational Schools in Canada

LAST week Lord Haldane delivered a judgment of far-reaching effect, being a decision of the Judicial Committee of the Privy Council relating to the interpretation of the constitution of Canada in regard to the separate schools of a large part of the Roman Catholic population and to the character of the rights conferred on them by the legislative settlement made at the time of the confederation under the British North America Act 1867 (Board of Trustees of the Roman Catholic Separate Schools, &c. v. The King). He rightly described it as an appeal among the most important that have come before the Board from Canada in recent years, and the question for determination has given rise to great differences of opinion amongst the judges of the Canadian courts. The tribunals of Ontario before whom the question came in the first instance decided unanimously against the appellants' claim; in the Supreme Court the judges were evenly divided; and now the Judicial Committee on the purely legal interpretation of the provisions of the constitution of Canada have held that the appellants' claim was not well founded. The case well illustrates the elasticity afforded by the Act of 1867, at any rate so far as religious education is concerned, for the Board, although they were of opinion that the Acts and Regulations of the province of Ontario passed and made since the date of confederation were intra vires, also point out that if hardship arises power exists for ameliorating the position by administrative action. For under subsect. (3) of sect. 93 of the British North America Act it is provided :

Where in any province a system of separate or dissentient schools exist by law at the Union or is thereafter established by the Legislature of the Province, an appeal shall lie to the Governor-General in Council from any Act or decision of any Provincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education. And in the judgment delivered the opinion is expressed that where the head of the executive in council in Canada is satisfied that injustice has been done by taking away a right or privilege which is other than a legal one from the Protestant or Roman Catholic minority in relation to education he may interfere, and the judgment goes on to say: "The step is one from mere legality to administrative propriety, a totally different matter. But it may be that those who had to find a new Constitution for Canada when the British North America Act was passed in 1867, came to the conclusion that a very difficult situation could be met in no other way than by transferring the question from the region of legality to that of administrative fairness." The Judicial Committee have stated the strict law, and it remains for the Dominion itself by administrative action to ameliorate the strictly legal position.

he had previously enjoyed of applying for a writ of habeas corpus successively to the Court of Chancery and to each of the common law courts, and to limit him in future to one application to the High Court of Justice. It is quite clear that under the common law in this country, and in those portions of the Empire to which this common law applies, it is the right of every imprisoned person to apply successively to every tribunal competent to issue a writ of habeas corpus, and that each tribunal must determine such an application upon its merits unfettered by the decision of any other tribunal of co-ordinate jurisdiction even if the grounds urged are exactly the same. It is certainly rather startling that more than fifty years after the passing of the Judicature Act the contention should be raised that a limitation was placed by the Act of 1873 upon the common-law right of application for this writ to judges and courts, although it was admitted that in vacation the application could be made to successive judges of the same court. The decision of the Judicial Committee makes it plain that the rights of applicants for a writ of habeas corpus are the same as they were before the statute of 1873, and, as Lord Hailsham points out, although by the Judicature Act the courts have been combined in the one High Court of Justice, each judge of that court still has jurisdiction to entertain an application for a writ of habeas corpus in term time or in vacation, and he is bound to hear and determine such an application on its merits notwithstanding that some other judge has already refused a similar application. This principle equally applies both to this country and to the overseas dominions.

EFFECT OF AGREEMENT AS TO COSTS ON AWARD OF ARBITRATOR THE important question whether an agreement as to costs entered into between a tenant and a landlord prior to arbitration proceedings under the Agricultural Holdings Act 1923 would oust the jurisdiction of the arbitrator on the question of costs was considered by a Divisional Court in Mansfield v. Robinson (ante, p. 396). In that case a dispute arose between the tenant and the landlord as to the respective rights of the parties under sect. 12 of the Agricultural Holdings Act 1923, and before the arbitration the parties by their respective solicitors entered into an agreement that the party proving to be successful in the arbitration should be entitled to costs on the High Court scale. The arbitrator gave an award on the High Court scale, but he directed that each party should bear his own costs and should pay one-half of the arbitrator's costs of the award, the fact of the above agreement not having been mentioned to him. The tenant subsequently disputed the agreement as to costs, that had been entered into prior to the arbitration, and contended that the position was governed by the award that had been made by the arbitrator.

Now sect. 16 (1) of the Agricultural Holdings Act 1923 provides that questions or differences arising, inter alia, out of any claim by the tenant of a holding against the landlord shall be determined, notwithstanding any agreement under the contract of tenancy or otherwise providing for a different method of arbitration, by a single arbitrator in accordance with the provisions set out in the Second Schedule to the Act; and under rule 15 of the Second Schedule to the Act it is provided that: "The costs of and incidental to the arbitration and award shall be in the discretion of the arbitrator, who may direct to and by whom and in what manner these costs or any part thereof are to be paid, and the costs shall be subject to taxation by the registrar of the County Court on the application of either party, but that taxation shall be subject to review by the judge of the County Court."

It should further be noted that by sub-sect. (5) of sect. 16 of the Agricultural Holdings Act 1923, it is expressly provided that the Arbitration Act 1889 shall not apply to any arbitration under the Agricultural Holdings Act 1923.

The question in issue, therefore, in Mansfield v. Robinson, was whether the liability as to costs was to be determined in accordance with the direction which the arbitrator had purported to give in pursuance of the powers conferred on him by rule 15 of Sched. II. of the Agricultural Holdings Act 1923, or whether on the other hand such liability was to be determined in accordance with the terms of the agreement which the parties themselves had entered into prior to the arbitration.

Some light is thrown on the question that was in issue in Mansfield v. Robinson by the decision of Mr. Justice Lawrence in Prince v. Haworth (92 L. T. Rep. 773; (1905) 2 K. B. 768).

In that case the plaintiff was seeking to establish the validity of a will as a residuary legatee, and the defendant on the other hand was seeking to establish the validity of an earlier will, as executor and trustee of an infant beneficiary. During the course of the probate proceedings a contract was entered into between the plaintiff of the one part and the defendant and the infant beneficiary of the other, whereby it was agreed that, whichever will was upheld in the probate proceedings, the costs as between solicitor and client, both of the plaintiff and the defendant, should be paid out of the estate, whether the court so ordered or not. The court eventually pronounced in favour of the earlier will, but ordered the plaintiff to pay the costs of the defendant and the infant, the court refusing to sanction the agreement as to costs that had been made between the parties. The plaintiff subsequently brought an action to recover his costs as between solicitor and client, founding his action on the agreement.

Mr. Justice Lawrence held that the contract was good, and that it was not illegal as being against public policy, and that accordingly the defendant was liable to pay out of the estate the costs as between solicitor and client which had been incurred in the probate proceedings, and that, too, notwithstanding Order LXV., r. 14A, which provides that "the costs occasioned by any unsuccessful claim or unsuccessful resistance to any claim to any property shall not be paid out of the estate, unless the judge shall otherwise direct. The ratio decidendi of Prince v. Haworth will be found well stated in the judgment of Mr. Justice Lawrence.

"There

is a broad distinction," said the learned judge, "between an agreement which tends to divert the course of justice and prevent it from reaching its proper goal, and an agreement which merely regulates the rights of the parties after the course of justice has reached its proper goal. It is clear that an agreement of the latter kind is not, merely as such, void; if it were, every judgment of a court of justice would operate as a restraint or alienation of the property recovered. Then is there any special prohibition against a successful claimant to a fund or estate agreeing to pay out of the fund or estate, if and when recovered by him, the costs of the unsuccessful claimant ? It is said that Order LXV., r. 14A, makes such an agreement invalid. But that is merely a rule of practice, indicating what order shall, under ordinary circumstances, be made in proceedings before the court; it does not in any way affect the conduct of the parties after the order of the court has been made. In other words, it is quite consistent with the judge's order directing the costs to be paid by the parties that one party shall agree to pay the other party his costs and pay them out of what fund he pleases. I come, therefore, to the conclusion that if the parties to this agreement were all of age, there would be nothing to prevent them from making this agreement." And the same principles will equally apply to agreements as to costs in reference to arbitrations under the Agricultural Holdings Act 1923. Such an agreement, in the first place, is clearly not illegal as being against public policy, because to adopt the language of Mr. Justice Lawrence, it is "an agreement which merely regulates the rights of the parties after the course of justice has reached its proper goal."

Nor is there any statutory provision which expressly or impliedly forbids the making of such agreements. It is true that rule 15 of the Second Schedule to the Agricultural Holdings Act 1923 does provide that the costs in connection with the arbitration proceedings shall be in the discretion of the arbitrator, but this rule would appear to be just as much a rule of practice, which does not in any way affect the conduct of the parties after the order of the court has been made, as rule 14A of Order LXV. was held to be in Prince v. Haworth; again, in Simpson v. Batey (131 L. T. Rep. 724; (1924) 2 K. B. 667), a case in which the court declined to stay, under sect. 16, an action of ejectment against tenants under an expired notice to quit, who alleged that the notice to quit

had been waived, it was pointed out by Lord Justice Scrutton that sect. 16 was only a procedure section prescribing the method of arbitration (cf. per Lord Justice Scrutton in Lowther v. Clifford (135 L. T. Rep. 200; (1927) 1 K. B., at p. 145). The court accordingly held in Mansfield v. Robinson, that the agreement as to costs which had been entered into prior to the arbitration was binding on the parties notwithstanding the award of the arbitrator.

Before concluding it may be useful to refer to the case of Walter v. Bewick (90 L. T. Rep. 409). There, during the progress of an action, several orders were made upon interlocutory applications to the effect that the costs of the applications should be the defendant's "in any event." Subsequently the action was settled on terms endorsed on counsel's brief, the endorsement being as follows: "Record withdrawn. No costs on either side," the question of the costs of the interlocutory proceedings, however, being overlooked. The plaintiff subsequently claimed to recover the costs of the interlocutory applications, the costs of which had been awarded to him in any event, and it was held that the plaintiff, notwithstanding the settlement, was entitled to the costs of these applications.

If the judgments of Collins, M.R. and Lord Justice Mathew are examined, however, it will be seen that Walter v. Bewick in no way militates against the principle laid down in Mansfield v. Robinson, since those judgments clearly recognise that the orders made on the interocutory applications in question might have been varied by the parties by express agreement. Thus Collins, M.R. is reported as having said: "Those orders cannot be got rid of unless the parties have clearly agreed that those costs shall not be paid." Similarly, Lord Justice Mathew said: “ According to the old practice, when an order was made dismissing an application with costs, the successful party might tax his costs at once, and it could not be said that a subsequent settlement could, apart from express agreement, affect the right to such costs."

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All, therefore, that Walter v. Bewick decides, is that where an interlocutory application has been dismissed, awarding one party costs in any event, a subsequent settlement of the action cannot affect such order as to costs, unless the question of such costs as well is expressly made the subject of the settlement.

COMMENTS ON CASES

Statutes of Limitation and the Crown

THE case of Re Mason (ante, p. 514), apart from the popular interest stimulated by its unusual nature, involves an interesting question as to the effect of the Statutes of Limitation in connection with legal proceedings to which the Crown is a party. In that case the claim of the petitioner was, in substance, to recover from the Crown, on the basis of facts which had recently become established, money which had been granted by the Crown to certain persons as bona vacantia, during the reign of King George III. Mr. Justice Romer's decision that the petition was barred by the Limitation Act 1623, and therefore failed, was upheld by the Court of Appeal. Such a result appears to be the natural outcome of the provisions of sect. 3 of the Intestates' Estates Act 1884, as reenacted and amended by sect. 30 of the Administration of Estates Act 1925, which has the effect of placing the Crown and its subjects upon the same footing as regards legal proceedings in respect of the real and personal estate of any deceased person; Rustomjee v. The Queen (1876, 36 L. T. Rep. 190; L. Rep. 1 Q. B. 487), which was cited as an authority for the proposition that the Crown cannot set up the Statute of Limitations as a defence to a petition of right, does not appear to have caused the court any difficulty in coming to their decision, in Re Mason (sup.), that the proceedings were statutebarred. Rustomjee v. The Queen (sup.) cannot be regarded as a satisfactory case, for the point relating to the Statutes of Limitation was dealt with by the court very summarily during the argument, and does not appear to have been material to the actual decision. That case was referred to recently in Cayzer, Irvine, and Co. v. Board of Trade (136 L. T. Rep. 7; (1927) 1 K. B. 269) in relation to arbitration proceedings. One paragraph of the headnote is as follows: Quare whether the Crown is entitled to plead against a subject a Statute of Limitations in which it is not named, and by which it is not bound." In Robertson's Civil Proceedings by and against the Crown (published in 1908) the following comment is

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made on Rustomjee v. The Queen (sup.) at p. 393: "Text writers have objected to this decision and the advisers of the Crown have also expressed dissatisfaction with it, apparently on the principle that the Crown can claim the benefit of any statute in which it is not mentioned, although it is not adversely bound by it. But this criticism seems to rest on a misapprehension, at least so far as the decision applies to petitions of right. The Statute of James, s. 3, only applies to 'actions' and a petition of right is not an 'action.' The learned author adds, however (p. 394): A particular class of petitions of right are limited by the Intestates' Estates Act 1884." Lord Justice Scrutton, in his judgment in Cayzer, Irvine, and Co. v. Board of Trade (sup.) indicates that reference to the various text-books shows that the general question has been left in a very unsatisfactory position. He points out that an examination of them was not necessary for the decision of that case, but that the history of the statements in the textbooks would need to be carefully looked into when the question became material to be decided.

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THE CONVEYANCER

Settled Land-Joint Tenancy-Charge

THE decision of Mr. Justice Clauson in Re Gaul and Houlston's Contract (ante, pp. 164, 184) has been affirmed by the Court of Appeal (ante, p. 515). It was a case in which it was held that sect. 36 of the Law of Property Act 1925 relating to joint tenants did not apply to settled land, which therefore is not subject to a trust for sale.

Money-What it includes in a Will

THE recent case of Re the Estate of Alfred Gates (deceased) (ante, pp. 166, 254) has taken a curious turn. It appearing that further property was found to form part of the estate, the exact nature of which had not been ascertained so as to allow of a decision as to whether it would pass to A. G. C. under the will, or go as on an intestacy, when the case came before the Court of Appeal (ante, p. 515) that Court, by consent of the parties, ordered that so much of the decision of the Probate Division as applied to the construction of the words "all my money " in the will should be deleted so as to make the order colourless, except that A. G. C. was not entitled to a grant of administration, and that the parties should agree on two or more of the next of kin to be the persons to obtain administration of the estate, when the matter of the construction of the will could be brought de novo by originating summons before the Chancery Division of the court. There is no doubt that that is the best tribunal for determining the construction of wills.

Law of Property Act 1925-Sched. I., Part IV.— Undivided Shares-Settled Land-Trusts for Sale

HAVING regard to the recent case of Re Robins; Holland v. Gillam (post, p. 538) and the previous decisions in Re Flint (137 L. T. Rep. 178; (1927) 1 Ch. 570) and Re Higgs and May's Contract (137 L. T. Rep. 803 ; (1927) 2 Ch. 249) and Re Dawson's Settled Estates (ante, p. 165; (1928) 1 Ch. 421), one point must be taken as fairly well settled, viz., that where immediately before the 1st Jan. 1926 land is held in undivided shares vested in possession sub-pars. 1 and 3, of par. 1, of Part IV., of the First Schedule to the Law of Property Act 1925 apply although the interests of the tenants in common are only life interests. Another point arose in Re Robins, viz., whether the cost of certain repairs ought to be borne by capital or income, there being a tenant for life still alive. It was decided by Mr. Justice Tomlin, following Re Hotchkys (55 L. T. Rep. 110; 32 Ch. Div. 408), and that class of cases, that the repairs ought to be paid for out of corpus. His Lordship distinguished the case from Re Gray (136 L. T. Rep. 401; (1927) 1 Ch. 242), because there the repairs had been done and paid for by the trustees out of income, whereas in Re Robins the trustees declined to exercise their discretion, and asked the court to tell them how the expense ought to be borne between the parties. When the cost of repairs is paid for out of capital,

the tenant for life contributes towards it by reason of his corresponding loss of income.

Stock Mortgages

A STOCK mortgage is one to secure the replacement of stock, such as Consols, sold out in order that it may be advanced to the mortgagor on the terms that it shall be replaced, with interest in the meantime, either of an amount equal to the dividends on the stock, or as may be agreed: (see a Form in Key and Elphinstone's Precedents, 12th edit., vol. 2, part 1, p. 142). When the price of stock was so low as to yield more than 5 per cent. interest, mortgages of the kind were of frequent occurrence, but of late years they are rare. It appears that mortgages of the kind are not proper for trustees, unless expressly authorised. In Pell v. De Winton (2 De G. & J. 13) 6. If Lord Cranworth, in the course of his judgment, said: this had been a case in which the infant children of Charles Claude Clifton had become entitled under the will of Thomas Young to a sum of stock, and the executors had lent that sum on real security on the terms that the mortgagor should replace the stock, and should in the meantime pay interest equal to the amount of the dividends, I should have been disposed to hold that such loan, being a transaction by which a less perfect security was substituted for a more perfect one, without any pecuniary benefit to the cestuis que trust, would have been a breach of trust." Again, in Whitney v. Smith (20 L. T. Rep. 468; L. Rep. 4 Ch 513) it was decided that under the usual power to vary securities a loan upon a mortgage of stock was unauthorised. By sect. 205 (1) (xvi.) of the Law of Property Act 1925 mortgage includes any charge or lien on any property for securing money or money's worth." Therefore, the statutory powers given to mortgagees by that Act apply to stock mortgages.

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Stamps on Equitable Mortgages

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It will be remembered that the stamp on an equitable mortgage is 1s. per cent. on the principal money secured. An equitable mortgage is defined by the Stamp Act 1891 (54 & 55 Vict. c. 39) for purposes of that Act as an agreement or memorandum under hand only relating to the deposit of any title deeds or instruments constituting or being evidence of the title to any property whatever (other than stock or marketable security) or creating a charge on such property." That definition is construed by the inland revenue authorities to denote only the simplest form of equitable mortgage containing little, if anything, more than a memorandum of the deposit of the title deeds, an undertaking to pay principal and interest, and an undertaking to execute a legal mortgage, if called upon. An equitable mortgage, though under hand, framed with the object of placing the equitable mortgagee in as good, or nearly as good, a position as if he had taken a legal mortgage-e.g., by giving him a power of sale, power to enter into receipt of rents and profits, or declaring that he is to have the powers conferred on mortgagees by sects. 19 to 24, and sect. 67 of the Conveyancing Act 1881 (now by the Law of Property Act 1925)-is required to be stamped with the duty of 2s. 6d. per £100 in the same manner as a legal mortgage.

Searches

It is now no longer proper in most cases for an abstract to disclose the equitable and beneficial title to real estate. One consequence flowing from the change in this respect introduced by the new legislation is that a purchaser, taking title from trustees for sale, does not know, and is not called on to inquire whether the vendors are trustees simply or are in fact beneficially interested in the property. Their position does not concern him, once he has ascertained that they have the legal estate, but for his protection he should, as is well pointed out in the last edition of Wolstenholme and Cherry's Conveyancing Statutes, vol. 1, p. 604, extend his searches to meet the new position. Prior to 1926 it was not usual to search against the names of trustees for writs and orders, but as now the abstract does not disclose equitable interests, and many persons selling as trustees are in fact beneficial owners, searches should extend to all estate owners as if they were beneficial owners regardless of the character in which they sell. The rule should be followed not only in the case of trustees for sale, but also in the case of personal representatives and mortgagees selling under their power of sale who may have acquired a title free from the equity of redemption.