him to see his will, had devised his real estates to the use of him Charles Maynard for life, with remainders over, and after reciting the power of charging given to him by the said will, and that he was desirous of exercising the said power in manner thereinafter expressed, so as effectually to charge the said estates with such provision for his younger children as thereinafter mentioned in case he should survive his father, fully believing that in the event of his dying in his lifetime, whoever might become entitled to the estates under the will would feel in honour bound to give effect to that his wish and desire, did in exercise of the said power so given to him, and of every other power enabling him in that behalf, thereby limit and appoint to every child of his living at his decease (other than an eldest child), the clear annual sum of 4007. to be payable to him or her during his or her natural life, the same to be issuing out of and charged upon the estates of his father, which he was empowered to charge therewith, and to be recoverable in the same manner as rents in arrear are recoverable by landlords upon a common demise. Charles Maynard died on the 2nd of January, 1865, leaving two infant daughters, Frances Maynard and Blanche Maynard, who were still living, and no other children. Lord Maynard died on the 19th of May, 1865. The 33rd section of the Wills Act, 7 Will. 4. & 1 Vict. c. 26, is as follows: "And be it further enacted, that where any person, being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person, shall die in the lifetime of the testator leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will." Doubts had been suggested whether, under this section, the will of Charles Maynard did not operate as a valid execution in favour of Blanche Maynard of the power expressed to be given to him in NEW SERIES, 35.-CHANC. Johnson v. Johnson, 3 Hare, 157; s. c. 13 Law J. Rep. (N.S.) Chanc. 79. Jones v. Southall, 30 Beav. 187; s. c. 30 Law J. Rep. (N.S.) Chanc. 875. Mr. Rolt and Mr. Faber, Mr. Amphlett and Mr. Walford, Mr. Osborne and Mr. Briggs, Mr. Schomberg, Mr. Freeling and Mr. Everitt, for other parties. WOOD, V.C.-In Thomas v. Jones the power was contingent when the donee exercised it; that is a different case from the present, in which the power had not been created. The whole question turns upon the 33rd section of the Wills Act, a provision which does not seem peculiarly well framed for the purpose which the legislature had in view, since if a son of the testator were insolvent and died leaving issue who survived their grandfather, the son's creditors, not his children, would be the parties benefited. Now, I am not satisfied that the power in question falls under the designation of an estate or interest; but if it does, I am clearly of opinion that it is an estate or interest determinable at the death of the donee. I shall make a declaration that the annuity of 4007. a year is not effectually appointed. Solicitors-Messrs. F. H. & H. H. Walford, for petitioners; Messrs. Capron, Brabant & Dalton; Mr. A. H. Clapham; Messrs. Ellis & Ellis; Messrs. Hunter, Gwatkin & Hunter; Messrs. Walker & Jerwood, for parties served with petition and notice of decree. 3 N Power of Appointment-Bankruptcy Act, 1861-Trust-Deed for Benefit of Creditors -Subsequent Appointment to Debtor. In November, 1861, A, being one of the objects of a power of appointment of a fund, to a share of which he was also entitled in default of appointment, executed a deed in the form of Schedule D. of the Bankruptcy Act, 1861, conveying all his estate and effects to a trustee for the benefit of his creditors. The deed was duly registered. In 1864 the donee of the power made an appointment by will, in A.'s favour, of the same share of the fund as A. would have taken in default of appointment :-Held, that by virtue of the appointment A. was entitled to the share of the fund therein comprised as against the trustee of the deed of November, 1861. In November, 1861, Frederick Vizard, by a deed in the form comprised in Schedule D. of the Bankruptcy Act, 1861, conveyed all his estate and effects to E. P. Shute for the benefit of his creditors. The deed was afterwards duly registered. At the date of the deed F. Vizard was one of the objects of a power of appointment vested in his aunt of a fund under the will of her deceased husband, and he was also entitled under that will to a vested interest in one fifth part of a moiety of the same fund in default of appointment. In 1865 the aunt died, having, by will, dated in 1864, appointed, in F. Vizard's favour, one fifth part of a moiety of the fund, being the same share thereof as he would have taken under his uncle's will in default of appointment. The trustee under the will of the aunt had paid F. Vizard's share of the fund into court, under the Trustee Relief Act; and this was a petition by F. Vizard for the payment of that share to him. The question was, whether the petitioner, by virtue of the appointment, or the trustee of the deed, was entitled to the fund in court. of the filing and registration of the deed of November, 1861, was available to the petitioner as a protection in bankruptcy. Then, was this after - acquired property? At the date of the deed F. Vizard had a defeasible interest in the fund. That interest was divested by the appointment, and he thereby acquired a new interest. The case, however, was governed by Lee v. Olding, 25 Law J. Rep. (N.S.) Chanc. 580. They also referred to Ex parte Gibbins, 13 W. Rep. 1001; s. c. 34 Law J. Rep. (N.s.) Bankr. 39. Sugden on Powers, 8th edit. 78. Mr. Malins, for the trustee of the deed. -The petitioner took no new interest under the appointment. The share which was appointed to him was the same as that which was given to him by his uncle's will in default of appointment. [STUART, V.C.-Can it be said that the appointee did not take under the appointment; that he did not thereby acquire a new title?] Mr. Malins.-If the donee of the power had appointed a different share from that which the petitioner would have taken in default of appointment, the petitioner would then have taken under the appointment; but as matters now stood he took under the limitation in default of appoint ment. Mr. Pearson, also for the trustee of the deed. The power of appointment was not a general power, but merely a power of distribution, and the appointment must be incorporated with and read as part of the will, according to the ordinary rules applicable to the construction of powers. Mr. Roxburgh, for the trustee of the will of the testator's widow. STUART, V.C.-I see no reason whatever for altering the view which I took of the law in Lee v. Olding. In the present case the argument lies in a very narrow compass. No doubt, some difficulty appears to exist from the fact that the appointment gives to the appointee neither more nor less than he would have taken in default of appointment. But the appointment was made by an instrument, duly executed according to the power, by a person having authority to execute it; and who by it purported to appoint the property, and did in fact appoint it, to persons who were the very objects of the testator's bounty. How, then, can the Court say that an instrument which is a proper exercise of a power by the donee thereof in favour of the objects of the power is inoperative merely because it gives those objects the same interest as they would have taken in default of appointment? The apparent difficulty of the case is to be solved by the reasoning found in Lee v. Olding, which I think contains a sound exposition of the law applicable to this case. There is no authority to justify me in saying that the instrument purporting to exercise the power of appointment given by the will of the testator, is not a valid exercise of that power; and I must, therefore, declare that the petitioner is entitled to the fund in court, and make an order for payment to him accordingly. The trustee of the will of the testator's widow must have his costs out of the fund in court. After the act passed, John Russell, by an agreement in writing duly signed, contracted with the company for the sale to them of the said pieces of land for 2,550. The purchase-money was paid, the company were let into possession and accepted the title; but before the conveyance was executed John Russell died intestate as to the land the subject of the agreement, leaving an infant heir-at-law. The company now presented a petition, alleging that John Russell was at the time of his death a trustee of the land in question, and praying that a person might be appointed to convey it to them under the Trustee Act, 1850. The petition was not served upon the heir-at-law. Mr. Taylor, for the petition, said that a similar order had been made in In re the Manchester and Southport Solicitor-Effect of Want of Certificate. A solicitor who has been duly admitted and enrolled, but who has neglected to take out his annual certificate in proper time, is nevertheless competent, while uncertificated, to bind a client ignorant of the want of the certificate as between such client and third persons. This was a summons, adjourned into Court, by which the plaintiff sought to set aside the appearance entered for the defendant, and all subsequent proceedings in the cause by Mr. Long, on the ground that at the time the appearance was entered Mr. Long had not taken out an annual certifi cate entitling him to practise as a solicitor of the Court. Mr. Long had been duly admitted, and had duly taken out a certificate for the year ending the 15th of November, 1865, and his name accordingly appeared in the Law List for 1865; but he did not get his certificate for the subsequent year stamped till the 30th of December, 1865. Certificates, if renewed before the 16th of December, are, by the 23 & 24 Vict. c. 127. s. 22, available as from the 16th of November; but, if not stamped before that day, avail only from the day of their date. The appearance was entered by Mr. Long, for the defendant, on the 7th of December, 1865, and the summons was taken out, by the plaintiff, on the 22nd of January, 1866. The Mr. Everitt, for the summons. appearance having been entered by a person not qualified to act as a solicitor of the Court is wholly void 6 & 7 Vict. c. 73. ss. 2, 21, 35. Hawkins v. Edwards, 4 Moo. 603. Mr. T. H. Roberts, for the defendant.The effect of an omission to renew the certificate is only to render the solicitor unable to recover his fees; but his acts, as agent for the client, are valid, unless the client was aware of the want of the certificate. Here it is not attempted to be shewn that the defendant knew of the defect; and, in fact, Mr. Long's name appears in the Law List for 1865, which, by the 23 & 24 Vict. c. 127. s. 22, is prima facie evidence.6 & 7 Vict. c. 73. s. 26. In re Hodgson, 3 Ad. & E. 224. Hodgkinson v. Mayer, 6 Ibid. 194; s. c. 6 Law J. Rep. (N.S.) K.B. 113. At all events, the proceedings subsequent to the 30th of December are valid. Mr. Everitt, in reply.-The cases cited for the defendant all occurred before the present Attornies' Act. WOOD, V.C.-This is a summons taken out to vacate the appearance entered for the defendant on the ground that at the time when it was entered his solicitor was not duly certificated. I have looked through the cases cited, and they amount to this, that although a person in this position will have great difficulty in obtaining his fees, yet his acts as solicitor will, as against third persons, be valid and binding. It would be exceedingly mischievous if persons were held liable in respect of the status of their advisers, when they had no means of knowing it exactly, and especially would this be so with regard to the renewal of certificates. I find, therefore, that in some cases even a person who was no solicitor at all was considered competent to bind his client as between him and third parties. The present case is even stronger than those to which I have referred. For this person's name was on the rolls, was in the Law List for 1865, and there was nothing to suggest to the defendant the want of the certificate. If, therefore, I hold his acts as the defendant's solicitor to be void, I shall put every one to the trouble of going to Somerset House to see whether his opponent's solicitor has taken out his certificate in proper time. "The I apprehend, however, that the defendant is clearly bound by the acts of Mr. Long as his solicitor, and for reasons which I cannot better express than by adopting the language of the learned Judge who decided the case of Holdgate v. Slight (1). statute 6 & 7 Vict. c. 73. s. 2. enacts, that no person shall act as an attorney unless admitted and enrolled and otherwise duly qualified. Admission and enrolment are considered conditions precedent to the power of acting as an attorney. But when we come to section 26, the clause relating to the effect of the want of a certificate, we find the provision, that no person who as an attorney shall sue, prosecute, or carry on any action, suit, or other proceeding without having previously obtained a stamped certificate, shall be capable of (1) 21 Law J. Rep. (N.S.) Q.B. 74, 75. maintaining any action for his fees for carrying on such business. It seems to me, therefore, that an attorney, though uncertificated, may do acts in his capacity of attorney which shall be valid, but that the result will be that he will in such case lose his fees." These remarks seem to me to contain very sound sense. What could the plaintiff do in such a case? The solicitor's name in the Law List is prima facie evidence of his holding a certificate. That, it is true, is displaced in the present case; but I agree with the argument addressed to the Judges of the Court of Queen's Bench that a solicitor who has not taken out his certificate is under the new law in a different position from that which he was in under the old law, since it is not now requisite that he should be re-admitted. I shall be injuring all plaintiffs and defendants if I hold that every one must go and see whether his opponent's solicitor has taken out his certificate in proper time. The summons must, therefore, be dismissed, and as at the time it was taken out Mr. Long had obtained his certificate, with costs. Interpleader Suit-Sheriff-Claim withdrawn-Costs. A sheriff, who, under a fi. fa. against a railway company, had levied execution on certain goods upon the premises of the company, was served with a notice by a third party that he claimed the goods, and thereupon the sheriff, without giving any notice of this claim to the creditors at whose instance the writ had been sued out, filed a bill of interpleader:-Held, that the plaintiff had acted too hastily, and on the proceedings being stayed, must pay the costs of the suit. This was a motion in an interpleader suit instituted by the sheriff of Southampton, that the proceedings in the suit might be stayed, and for the payment to the plaintiff of his costs. The plaintiff, who had seized certain locomotives, rails, plant and other chattels on the premises of the Hayling Railway Company, under a writ of fi. fa., sued out of the Court of Chancery against the company by the defendants Darrell, Grant and Crookall, was, on the 9th of March, 1864, served with a notice from the defendant Furniss, who was the contractor to the line, that the goods seized belonged to him and not to the company, and requiring the plaintiff to give up possession. The plaintiff gave no notice whatever of this claim of Furniss to the other defendants, the judgment creditors, and they, on the 16th of March, obtained an order upon him to make his return upon the 17th of March. Thereupon, on the 19th of March, he filed this bill against Furniss and the judgment creditors praying that they might interplead, and that the defendant Furniss might be restrained from taking any proceedings at law for the recovery of the goods seized. The motion for an injunction came on upon the 22nd of March, and it was then agreed that it should stand over till the 2nd seal in Easter Term, until certain other interpleader summonses taken out at common law in respect of the same goods should have been disposed of. The execution creditors, when served with notice of motion and the bill, gave to the plaintiff no intimation that they meant to withdraw their claim; but the next day, the 23rd of March, they gave him notice of having withdrawn it. Under the above circumstances the plaintiff made this application. Mr. Gardiner, in support of the motion, relied on Symes v. Magnay, 20 Beav. 47. Hale v. the Saloon Omnibus Company, 4 Drew. 492, 500; s. c. 28 Law J. Rep. (N.S.) Chanc. 777. Mason v. Hamilton, 5 Sim. 19. Mr. Roberts, for the defendant Furniss, and Mr. Speed, for the execution creditors, disputed the plaintiff's right to file such a bill as this.-In this case there was no question as to whom the goods belonged to. The sheriff had obtained possession of them improperly, and no interpleader would lie— Slingsby v. Boulton, 1 Ves. & B. 334. |