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third section, and in this respect at all events to demonstrate sec. 43 to be much wider than sec. 26. So it was decided, and so it is humbly considered the law will remain. How else in practical justice could the matter stand? Re Dickson is quite different, for, as has been said, there the intermediate income was during the infancy of the legatee given elsewhere, to another object. Re Bowlby was not so much a question of maintenance as of where the income which could have been employed in interim maintenance, not having been so employed, was to go to on the legatee attaining twenty-one, and it was held, conformably with the previous law, that it must follow the fate of the principal. The case of Boulter stands on a different plane. The income is not given away from the legatee during infancy; the fund vested in trustees yields its annual fruit and must remain either to increase it or go to the The mere person ultimately entitled to it. right to the corpus seems irrelevant. All that seems required to attract the section is property "held by trustees in trust for an infant for life . . contingently on his attaining twenty-one.' Clearly we have that in Re Boulter. We also have income flowing from that property as prescribed for in terms by the section-as to which nothing has been done by the testator to establish a contrary intention' within sub-section 3, as in the case of Dickson. That income, if not applied to maintenance, is being accumulated and on C. (in Boulter's case) attaining twenty-one would, as in Re Bowlby, be added as an accretion to the fund. But, as is clear in the case of Bowlby so of Boulter's case, maintenance can be given out of the income under sec. 43, and the fact that what has not been given goes as an accretion to the capital is quite beside the mark-it is another and different question. altogether. If our view be correct of the effect of the plain language of sec. 43, there seems little difficulty or doubt in the decision arrived at by Younger, J., and, indeed, the difficulties presented by the two cases already fully discussed lie not in the ratio decidendi of those cases, but in judicial commentaries in the course of delivering judgment, which, however respectful and eminent the Judge, are not binding, and frequently are dissented from when the time comes to give a decision on the identical point in a concrete case. It seems,

therefore, that the point may be regarded as quite settled under section 43, that where trustees hold property in trust to pay the income thereof to an infant for life contingently on his attaining twenty-one, that is within the section, and that the proposition that maintenance is not allowable under the section unless, on the contingency happening, the infant will be entitled not only to the past income but also to the corpus, is not tenable in the circumstances discussed.

Correspondence.

[Letters intended for insertion in these columns should be framed as shortly as possible, and must contain or be accompanied by the signature and address of the writer in every case, though not necessarily for publication. The right to abridge or publish extracts from any letter is reserved.

Under no circumstances are answers given by the General Editor of the Supplement.-ED.]

June 14th, 1918.

To the Editor of The Conveyancer. DEAR SIR,-A. agrees to sell property to B. and agrees to let him have a free conveyance.

They both go to a solicitor who prepares an agreement, but no mention is made therein as to a free conveyance.

The solicitor completes the conveyance, but on the purchaser asking for the conveyance the solicitor claims a lien for his costs. What is the position of the purchaser? If he pays the costs can he sue the vendor for money paid on behalf of the latter on an implied request, &c.? Yours truly,

EDWARD F. MAUD.

[It would appear from our correspondent's statement (though he is not quite clear on the point) that the instructions to the solicitor were given jointly by A. and B., and that no mention was made to him of the arrangement that B. was to have a free conveyance. If that is so, the solicitor would undoubtedly be entitled to look to B. for the costs of investigating the title and completing the purchase on his behalf. This would carry with it a lien on the conveyance for such costs. On the other hand, if the facts were the contrary, there could be no costs payable by B. and, therefore, no lien on the conveyance, which on completion of the purchase becomes the property of the purchaser. It is essential to the validity of a possessory lien that the goods in respect of which the lien is claimed shall be the property of the debtor. B.'s remedy would be against the solicitor for detinue.-ED.]

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Notes of Recent Cases.

The decision of Roche, J., in Upjohn v. Hitchens (noted in Vol. III., p. 50, Mag.), as to whether a covenant to insure against loss or damage by fire included aircraft risks, was affirmed on appeal, [1918] 2 K. B. 48).

Loveless, In re ([1918] 1 Ch. 223), a case on the construction of a gift of "a clear annuity (noted in Vol. III., Mag., p. 73) has been affirmed on appeal ([1918] 2 Ch. 1).

An agreement for letting a set of offices in a large building at a yearly rent, with an additional rent for "cleaning the rooms by a housekeeper appointed for the time being by the landlord," was held to imply an obligation on the part of the landlord to supply the services of a housekeeper, but not necessarily a resident housekeeper; and that the implied obligation was one with reference to the subject-matter of the lease" within the meaning of sec. 11 of the C. A., 1881, and, therefore, ran with the reversion, if the agreement was under seal (Barnes v. City of London Real Property Co., [1918] 2 Ch. 18). It was not necessary under the circumstances of this case to decide whether the obligation would bind the reversionary interest if the agreement was not under seal.

In Boulter, In re ([1918] 2 Ch. 40), Younger, J., held that where a legacy was held VOL. 4.

in trust for an infant for life contingently on his attaining twenty-one, sub-section 1 of section 43 of the C. A., 1881, applied, and the trustees might under that section apply intermediate income for the infant's maintenance, notwithstanding that if not so applied it would never belong to the infant.

In a recent case of Cooper, In re (reported in [1917] W. N. 385), Sargant, J., decided that a sum payable every calendar month to a testator's wife during her life was an annual payment within the meaning of section 102 of the Income Tax Act, 1842, and section 40 of the Income Tax Act, 1853, so that the person who makes the payment is entitled to deduct the income tax. Astbury, J., following this decision, has applied it to the case of a fixed weekly payment on a fixed day in each week for a period possibly exceeding a year (Janes' Settlement, In re, [1918] 2 Ch. 54).

If a testator leave a legacy absolutely as regards his estate, but restricts the mode of the legatee's enjoyment of it to secure certain objects for the benefit of the legatee, upon failure of such objects the absolute trust prevails, per Lord Cottenham in Lassence v. Tierney (1 Mac. & G. 551). Younger, J., has held that this rule applies equally where a legacy is bequeathed to trustees in trust for a legatee as where it is bequeathed in the first instance directly to the legatee (Harrison, In re, [1918] 2 Ch. 59).

The Court has a control over the discretion of trustees, and will interfere where the special circumstances require it to do so. Thus, where one of two trustees refused to exercise a power of advancement, Neville, J., thinking that in the circumstances of the case it was the duty of the Court to interfere, ordered the advancement to be made (King v. King, [1918] 1 Ch. 67).

Where goods, coming within section 1 of the Carriers Act, 1830, are delivered to a railway company, or other carrier, for carriage partly by land and partly by sea and are lost in transit, the value and nature of the goods not having been declared in accordance with the requirement of such section, it is for the carrier seeking the protection of the Act to prove that the goods were lost on land. The onus on the

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part of the consignor is satisfied by proof that the goods were not delivered at their destination (Ashton & Co. v. L. & N.W. Railway Co., 87 L. J. K. B. 624).

A lease of the first and second floors of a house contained a covenant by the landlord to keep the outside of the demised premised and the roof, walls and drains thereof in good and tenantable condition. The landlord retained the rest of the house. Damage was done to the lessee's premises by the overflow of a choked gutter. It was held that the landlord was liable for a breach of the covenant, although the lessee had not given notice of the defect before action brought, as the rule as to notice being given did not apply to a case where the landlord retained the portion of the building

the defective condition of which caused the damage (Melles & Co. v. Holme, [1918] 2 K. B. 100).

The excess mineral rights duty imposed by the Finance (No. 2) Act, 1915, s. 43, sub-s. 1, is to be ascertained by applying the average prices governing the payment of rent for each of the selected years to the output of each of the accounting years and deducting the result from the rent, so far as variable according to the price, received for each of the accounting years, and then taking the statutory percentage of the difference (Murray v. I. R. Commissioners, [1918] A. C. 542).

An agreement between manufacturers, giving effect to the rules of an association formed for the regulation of prices and the taking of such action for the protection of the interests of the members as might from time to time be decided upon, is at common law invalid and incapable of being enforced if the restraint on trade is unreasonable in the interests of the parties. But if the association is a trade union within the Trade Union Acts, such an agreement is, by virtue of sections 3 and 4 of the Trade Union Act, 1871, a valid contract upon which a valid claim can arise, although that claim cannot be directly enforced. It can, however, be indirectly enforced if there be a means of doing so for example, on an account stated (Joseph Evans & Co., Lim. v. Heathcote, 87 L. J. K. B. 593). A condition subsequent in restraint of marriage is only prima facie void, and whether

it is so or not depends on the object of the condition. If it made "in terrorem and with a view to preventing marriage, then it is void. Where, for instance, as in Marples v. Bainbridge (1 Madd. 490), there is a bequest of personal property upon a condition subsequent that the legatee continues unmarried and no bequest over on breach of the condition, the condition is considered only in terrorem and is void (per Plumer, V.C.); but a gift to an unmarried woman, made in anticipation of the birth of a son, of an annuity of £1,200 reducible on her marriage to £800, when an annuity of £400 was to be payable for the benefit of the son, was held to be valid, the object being to make a provision for the son. The same rule applies both to wills and to deeds. Hewett, In re ([1918] 1 Ch. 458; 87 L. J. Ch. 209).

A testatrix, domiciled in England, disposed of her realty in Paraguay upon trust for charitable purposes. Under the law of Paraguay this disposition was valid only to the extent of one-fifth of the property, the other four-fifths passing to the obligatory heirs of the testatrix as their portions. The testatrix by her will gave to these "heirs benefits out of her property in England, and it was held by Younger, J., that they were put to their election between what they took under the Paraguayan law and benefits given to them by the will. Ogilvie, In re ([1918] 1 Ch. 492).

The Library.

The seventh edition of Elphinstone's Introduction to Conveyancing, "E.I.C.," recently issued by Sweet & Maxwell, Ltd., under the editorship of Frederick Trentham Maw, B.A., LL.B., will be welcomed by law student and practitioner alike. Though primarily intended as a students' book-and who of us is not a student?-it is a work of recognised value to all conveyancing draftsmen, being, indeed, an almost indispensable companion to the various books of Precedents, the notes and explanations in which are necessarily compressed and incomplete. In one respect in particular the utility of the work is now enhanced. The practice under the Conveyancing Act, 1881, being now definitely settled, it has become possible to evolve from the method adopted in previous editions, during the transition period, and give a more connected and complete description of the various assurances dealt with in their latest forms. The chapter on Partnership Deeds also has been entirely re-written with reference especially to the Limited Partnership Act, 1907, and the Index considerably enlarged.

Mortgagees and the Courts (Emergency Powers) Act, 1914.

The position of mortgagees who are desirous of enforcing their security against defaulting mortgagors and the considerations and conditions to be regarded and applied between mortgagor and mortgagee in cases where the mortgagor has no other resources available for paying off the mortgage debt was very fully described and classified in an important judgment delivered in January last by Mr. Justice Eve in the case of Jobson's Application, In re; Chapman's Mortgage (87 L. J. Ch. 251). In the case before the Court, the mortgagors had, in 1906, mortgaged certain premises to secure payment of £12,500 and interest at 4 per cent., raised for the purposes of their business. The The mortgagees were trustees of a will, under which a beneficiary was entitled to the benefit of the mortgage debt on his attaining the age of twenty-five years, and it was stated that the money was called in with a view to paying it over to the beneficiary. The interest had been punctually paid by mortgagors, who had also reduced the principal by £4,000. On behalf of the mortgagors it was stated that, although the value of the property was considerably in excess of the mortgage debt, it would be impossible to arrange for an advance on the property to pay off the amount owing except upon such terms as would inflict great loss and hardship upon the mortgagors.

By section 1, sub-section 1 (b) of the Courts (Emergency Powers) Act, 1914, the right of the creditor to resort to his legal remedies for enforcing payment is, in cases to which the Act applies, restricted to this extent, that it forbids the exercise of any such remedy until after an application has been made to the Court for leave to exercise it. Then by sub-section 2 the Court is given absolute discretion in dealing with the application, subject to the limitation that the discretion is only to be exercised in favour of a defaulting debtor if the Court is of opinion that time should be given to him on the ground that he is unable immediately to make the payment by reason of circumstances attributable, directly or indirectly, to the war. When the Court is satisfied on this point, it

has the power to suspend the question of any remedy for such time and subject to such con. ditions as it thinks fit.

Under the circumstances of the particular case, on the mortgagors undertaking to increase the interest to 5 per cent. as from September 25, 1917, and to repay £500 on account of principal on September 25, 1918 (that is, within about eight months after the delivery of the judgment), the Court deferred the operation of the mortgagees' remedies for one year, if the war so long continued, with liberty to apply in the event of the mortgagors failing to keep their undertaking, and generally.

A necessary word of warning was issued by his Lordship to the effect that evidence merely as to the absence of other resources was not in itself sufficient to bring the case within the sub-section. In the absence of other resources available for payment of the debt, the inability to pay by the only other means by means of which payment would be made-that is, by realisation of the security or by transferarose as soon as the security became deficient, and in cases where it is admitted or proved that the mortgagor has, and had when the war broke out, no resources outside the mortgaged property wherewith to pay the debt, and that the security is insufficient, the Court ought not to hold the mortgagor has brought himself within the sub-section unless satisfied that the

insufficiency of the security did not exist before, and is attributable to, the war.

Without attempting to enumerate all the factors which have to be regarded in determining whether, and upon what conditions, the rights of the mortgagee are to be suspended, his Lordship suggested the following as furnishing good working rules, indicating the considerations and conditions which can fairly be regarded and applied in ordinary cases-that is, where the relationship of mortgagor and mortgagee subsists without any complication arising out of contractual relations between the parties, or because of the position of either party being exceptional:

(a) If the security is sufficient, and if the covenants and conditions of the mortgage deed -other than the covenant to repay the principal moneys-have been performed and observed, the mortgagor ought to be given a reasonable time within which to find the money pay the debt.

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(b) The reasonable time so given may be extended if, in cases where the interest reserved is less than 5 per cent., the mortgagor is willing to pay interest at the rate of 5 per cent., and still further extended if, in addition, he is willing to pay over to the mortgagee on account of principal the difference between the net rents received from the mortgaged property and the interest at 5 per cent. (c) In a like case, if the mortgagor is in occupation and the proper occupation rent is in excess of 5 per cent. interest on the debt, he ought to attorn tenant to the mortgagee at the proper occupation rent, and pay to the mortgagee interest at 5 per cent. and the excess of such rent over the 5 per cent. interest on account of capital.

(d) If the security is insufficient, but

interest has been paid up to date, and the other covenants and conditions in the mortgage deed have been performed and observed, the mortgagee should not be exposed to further loss, and time should be given to the mortgagor on the terms that interest at 5 per cent. is paid, and that the mortgagee may renew the application if and when any further depreciation in the security takes place.

(e) If the security is insufficient and there are arrears of interest, but not to a serious amount, the mortgagor should be required to clear off such arrears in addition to complying with the terms set out in (d).

(f) If in either of the last two cases the rent of the mortgaged property or a proper occupa tion rent therefor exceeds the interest, the mortgagee should be allowed, if he so desires, to appoint a receiver, but in the event of his so doing in a case falling under (e), the stipulation requiring the mortgagor to pay off the arrears of interest may have to be modified by giving him a reasonable time within which to clear them off.

(g) In cases where there are substantial arrears of interest, or where the covenants to keep down ground rents and other outgoings or to keep in repair or insure are broken, the mortgagee should not be restrained from exercising his powers, in the absence of very special circumstances, unless the mortgagor is prepared to make good all such breaches forthwith and to continue under conditions similar to those enumerated under (d), (e), and (f).

Vendors and Their Incum-
brancers.

Conveyancers will doubtless welcome the judicial solution of a troublesome problem that is not of infrequent occurrence in practice. For although in multifarious cases questions relating to vendors and their incumbrancers have arisen for the consideration of the Courts, yet the one which we now propose to discuss, of wide importance that it is, does not appear to have ever been precisely determined in any case previous to that of Re Daniel; Daniel v. Vassall ([1917] 2 Ch. 405) (noted on page 43 of Vol. III. of The Conveyancer), which came recently before Mr. Justice Sargant:

What is the position of a vendor who, through lack of pecuniary means, has become unable to obtain a release by a mortgagee of real estate which has been agreed to be bought by a purchaser, and thus has failed to perform

his contract to sell that real estate?

Circumstances of the Case.

The circumstances in which that question arose for decision in the present case were, briefly stated, as follows:-In November, 1912, a contract was entered into between the owner of certain real estate which was in mortgage, and an intending purchaser for the sale of the property to him, and the deposit was duly paid by him. The benefit of the contract was subsequently transferred by the purchaser to a company. In December, 1912, shortly before the date for which completion was fixed, the vendor died. The vendor's title had not been approved at the date of his death. But in May, 1913, the company accepted the title and agreed the form of conveyance and the matter was ready for completion. It then transpired, however, that in consequence of the requirements of the mortgagees-who refused to join in the conveyance to the company excepting with certain variations and stipulations therein which the company were not bound to, and did not, accept-the completion could not take place. And the mortgagees declined to release the property. Thereupon the company gave notice to the executors of the deceased vendor terminating the con