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deserving, and in such manner as the trustees thought fit, and for such charitable uses and purposes as they should also think most proper and convenient, Sir Joseph Jekyll directed it to be divided, one-half to go to the next of kin exparte materná, and the other moiety to a charity, and directed a scheme. This decision was followed by V. C. Wood in the following case :-A testator gave personal estate to his wife for life, and at her decease to be divided, one moiety thereof to the testator's daughter for life, and the other moiety to be at the disposal of his said wife, therewith to apply a part to the foundation of a charity school, or such other charitable endowment for the benefit of the poor of O. as she might think proper, and the remainder to be at her disposal among his relations, in such proportions as she might be pleased to direct. On the death of the testator's widow without having made any disposition of the latter moiety: Held, that one-half was well bequeathed for charitable purposes, and the other belonged to the next of kin. Salusbury v. Denton, 26 Law Journ. Ch. 851.

DEVISE.-Fee upon a fee-Contingent remainder -Residuary clauses.-In the following case it was argued that the residuary clause in the will in question could not operate as a devise of the ultimate reversion in fee, because it would be in violation of the rule of law that a fee cannot be limited on a fee. As observed by Mr. Justice Williams, the question is, what is the meaning of that rule when applied to this description of devise; and his lordship added, that the meaning of it is, that when the fee passes and vests, all after that cannot be good by way of remainder, but it may operate by way of executory devise. The fee, having been given, and having passed by the devise, there is nothing further for the testator's power of devising to operate on. The fee being outstanding, what becomes of it? That has been decided ever since Purefoy v. Rogers (2 W. Saund. 380). The notion of the fee being in abeyance cannot be sustained, but it descends on the heir-at-law. In the following case it appeared that there was a devise of land to E. for life, and after her decease, amongst all and every, or such one or more of the children of E., at such time and times, and in such parts, shares and proportions, manner and form, as E. should appoint, and for want of such appointment, amongst all and every the child and children of E. who should be living at her decease, and the issue of such of them as should be then dead, and to their heirs and assigns for ever, and for want of such isse, unto P. and to her heirs and assigns for ever. There was a residuary clause giving all the residue and remainder of the testatrix's estate and effects, whatsoever and wheresoever not thereinbefore disposed of, unto the said E., her heirs and

assigns for ever. E. and P. survived the testatrix. E. entered into possession of the land and died unmarried. During her lifetime she, by indentures of lease and release, conveyed the land to J. in fee. It was held, that the vested reversion in fee passed by the residuary devise to E., and that by the conveyance to J., the life estate and reversion both became vested in J. That the life estate, which was the particular estate on which the contingent remainder to P. depended, merged in the reversion, and the contingent remainder to P. was therefore destroyed. Egerton v. Massey, 6 Week. Rep. 130.

DISCOVERY.-Compulsory arbitration-Common Law Procedure Act, 1854, ss. 3, 7 [vol. 1, p. 157].—A compulsory reference to arbitration under the 3rd section of the Common Law Procedure Act, 1854, is different from a reference by consent, and in such a case a bill of discovery, in aid of the proceedings before the arbitrator, will lie. The British Empire Shipping Company (Limited) v. Somes, 26 Law Journ. Ch. 759.

FEME COVERT.—Acknowledgment by married woman [vol. 3, pp. 210, 399]-Fines and Recoveries Act-Requisites of affidavit.-The Court of Common Pleas refused to allow a married woman living apart from her husband to convey certain property, taken under the will of her father, without the consent of her husband, the affidavit on which the application was made being defective in this-that it did not show that inquiries had been made to discover where the husband might be living. Re Vine, 30 Law Tim. Rep. 152.

JUDGMENT [vol 1, pp, 339, 431; vol. 3, p. 40, 395].-Lien-Construction of statute-Warrant of attorney-Order of common law judge-Usury, bills of exchange, &c., charging lands [see vol. 2, p. 371].-The statute of Anne (stat. 2, c. 16, repealed by 17 & 18 Vic. c. 90; 1 Law Chron. 150), rendered void every loan of money at more than 5 per cent. interest; and then by the stat. 3 & 4 Will. 4, c. 58, s. 7, renewable bills and promissory notes, having not more than three months to run, were exempted from those laws; but by 7 Will. 4 and 1 Vic. c. 28, that exemption was extended to bills having not more than twelve months to run. That, however, was only a temporary act, and its place was afterwards supplied by 2 & 3 Vic. c. 37. s. 8, upon which the following case turned. The proviso in that act prevented a charge upon land being taken, as it might have been under the stat. of Will. 4 (see vol. 2, p. 371). Before the passing of. 1 Vic. c. 110, it was considered that a judgment was not a security on land, but since the passing of that statute it clearly was so. Before that statute a judgment was often spoken of as a general lien on the general property of the debtor, but this only meant that by the writ of elegit the

creditor could get possession of the land, and the debtor could not withdraw his land from the effect ot the writ. Before the stat. 1 & 2 Vic. c. 110, therefore, a judgment was not properly a security upon land; but that act gave a totally new quality and nature to a judgment. By the 13th section of that act a judgment was made a charge on all the lands of the debtor in the same way as if the debtor had, by writing under his hand, agreed to charge his lands (see vol. 2, p. 75-78.) A judgment, therefore, had not only retained its ancient quality, but also, by virtue of that statute, acquired the new quality of being a charge upon lands, and this effect was entirely independent of the intention of the parties. This view of the subject was confirmed by Lord St. Leonards, in the case of Rolleston v. Moreton (1 Con. and Laws. 252). There are several dicta of common law judges, in which a distinction is taken between judgment and a warrant of attorney to confess judgment, the latter not being thought by them to be a security upon land properly speaking. But take the case of an agreement to give an equitable charge by deposit of deeds which were in the hands of some third person, and we have an exactly analogous case; for a warrant of attorney is an agreement that the creditor may, by entering up judgment, obtain a charge upon lands. Therefore the warrant of attorney to confess judgment, taken as a security for the repayment of money advanced at a usurious interest, was a security or charge upon lands within the meaning of the stat. 2 & 3 Vic. c. 37, s. 8. This view of the subject was confirmed by several cases, such as Exparte Knight (1 Deac. 459); Exparte Warrington (3 De G. Mac. and Gor. 159); and James v. Rice (Kay, 231). The grounds of the judgment of the House of Lords in Lane v. IIorlock (5 Ho. Lds. Ca. 580), although at first sight apparently opposed to this decision, in reality, upon examination, will be found to confirm that view. Such is the language of V. C. Kindersley in the following case, where his Honour decided that, under the 1 & 2 Vic. c. 110, a judgment is a security upon land, just as if the debtor had by writing agreed to charge his lands, independent of the intention of the parties. Also that the warrant of attorney to confess judgment, taken as a security for the repayment of money advanced at usurious interest, is a security or charge upon lands within the meaning of 2 & 3 Vic. c. 37, 8. 8. Semble, before 1 & 2 Vic. c. 110, a judgment creditor by elegit could get possession of lands, and the debtor could not withdraw them, but a judgment was not properly a security upon land. Bell, 6 Week. Rep. 163.

Bond v.

JUDGMENT CREDITOR. Redemption of mortgage― Construction of 1 § 2 Vic. c. 110, s. 13. -By the 1 & 2 Vic. c. 110, s. 13, no judgment

creditor is entitled to proceed in equity to obtain the benefit of the charge conferred by his judgment until one year after the judgment has been entered up. In the following case, V. C. Stuart held, that the rule that no judgment creditor is to proceed in equity until one year after the judgment has been entered up, does not extend to the case of a bill by a tenant by elegit to redeem a mortgage. Barnes v. Thrupp, 30 Law Tim. Rep. 145.

LEGACY.-Ademption-Varied property-Stocks, bonds, &c.—A general gift, with a cumulative description, will include property which has been varied between the date of the will and the death of the testator. A bequest of bank stock was held to pass £3 per cent. annuities, no other stock being standing in the name of the testator, either when he made his will or at his death. A bequest of eight Russian bonds, purchased by L., his broker, was held to pass different Russian bonds, purchased through another broker. A bequest of" my property not in England, in the hands of my attorney abroad, W., consisting of Russian bonds," was held to pass bonds of the Hamburg Fire Company, which had been purchased with the produce of the Russian bonds by another agent abroad. Drake v. Martin, 26 Law Journ.

Ch. 786.

MORTGAGE.-Mortgage with power of sale— Sale under special contract-Part of purchase-money left on mortgage of the hereditaments sold.—A mortgagee with power of sale is not bound to wait till a more advantageous sale can be effected; neither is he bound to advertise before proceeding to a sale. Lands were mortgaged in fee, with power of sale by auction or private contract in case of default in payment of the mortgage money. The mortgagee sold part of the property by private contract, containing an agreement that more than half of the purchasemoney might remain on mortgage of the land sold, for four years, if interest should be regularly paid; and that if a stated sum were laid out on the land in the erection of houses within a specified time, the mortgage money might remain for a longer stated period. On a bill filed by the owner of the equity of redemption to redeem and set asid the sale: Held, that (there being no fraud nor inadequacy of price) the transaction could not be impeached, and the bill was dismissed with costs. Davey v. Durrant, 26 Law Journ. Ch. 830. PARTNERS. Stockbrokers Responsibility Customer.-A firm of stockbrokers purchasing on behalf of a customer foreign securities passing by delivery, which, in their usual course of dealing they retained in their own custody, are jointly and severally liable to make good the same if lost or misapplied. Where, therefore, one of the partners, who

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was a trustee of a marriage settlement, under instructions to the firm, not only bought the foreign securities, but also individually transacted all the business of the customer with the firm, and finally applied them for his own purposes, not wholly unconnected with the firm: Held, that the securities were in the custody of the firm, and not of the trustee; that the firm was responsible for them, whether lost or misapplied; and the, trustee having absconded and become bankrupt, that the remaining partners must replace the securities. The Marchioness de Ribeyre v. Barclay, 26 Law Journ. Ch. 747.

POWER OF SALE.-To trustees and heirsAssigns. A power of sale given to trustees and the survivors and survivor of them, his heirs and assigns, may be exercised by the devisees of the surviving trustee. Hall v. May, 26 Law Journ. Ch. 791.

PRINCIPAL AND SURETY [vol. 3, p. 202, 224, 262]-Compromise-Release,―The reason on which the rule of equity between principal and surety as to giving time to the principal being the discharge of the surety, was stated by Lord Eldon thus, in Samuel v. Howarth (3 Mer. 272, 278): "The rule is this, that if a creditor, without the consent of the surety, gives time to the principal debtor, by so doing he discharges the surety-that is, if time is given by virtue of positive contract between the creditor and the principal, not where the creditor is merely inactive. And in the case put, the surety is held to be discharged for this reason, because the creditor, by so giving time to the principal, has put it out of the power of the surety to consider whether he will have recourse to his remedy against the principal or not, and because he, in fact, cannot have the same remedy against the principal as he would have had under the original contract. But this rule does not apply where the surety has taken the debt on himself absolutely. In the following case, it appeared that a creditor obtained a judgment against the principal debtors, and sued out execution against them. They presented a petition of insolvency, and were discharged by the creditor, upon terms by which they abandoned the business ir which their liabilities were contracted: Held, that this would not discharge a party who, as surety for the debts, had been previously sued, and had entered into agreements for liquidating the demands against him, arising out of the liabilities of the firm. Reade v. Lowndes, 26 Law Journ. Ch. 793.

PUBLIC COMPANY:-Railway Clauses Consolidation Act, 8 & 9 Vic. c. 20, s. 68-Lands Clauses Consolidation Act, 8 & 9 Vic. c. 18, ss. 93, 94—Construction Accommodation works-Small portions of intersected land-Land "situate in a town, or built

upon." The 68th section of the Railway Clauses Consolidation Act, 1845, irrespective of the claim for compensation, gives a proprietor whose lands have been divided, a right to such bridge, or other means of communication, as may be necessary for the purpose of making good any interruption caused by the railway to the use of the land through which it is made. A railway intersects the land of M., such land coming under the alternative of being either "land situate within a town," or "land built upon;" one portion is less than half a statute acre. M. can compel the company to make a communication between the intersected portions of his land, such a case falling under the provisions of 8 & 9 Vic. c. 20, s. 68 (Railway Clauses Consolidation Act), and not being affected by 8 & 9 Vic. c. 18, ss. 93, 94 (Lands Clauses Consolidation Act). The words "such land," in s. 94 of 8 & 9 Vic. c. 18, refer to "land not being situate in a town or built upon," in s. 93 in the same act, and not to "small portions of intersected land" generally mentioned in the short preamble to these two sections. Marriage v. The Eastern Counties and London and Blackwall Railway Company, 6 Week. Rep. 131.

SOLICITOR AND CLIENT.—Power of attorney to compromise a suit-Acquiescence.-The following is a fuller statement of the decision of the Master of the Rolls as to the authority of a solicitor to compromise a suit (ante, p. 211). A solicitor employed to conduct a cause has implied authority to do everything that is necessary in the conduct and management of the cause; but he has no implied authority to compromise it. A compromise is nothing more than a sale of the subject-matter of the suit by one party to the other; and as a solicitor, acting within the scope of his authority, has no power to sell the subject-matter of the suit to a stranger, so he has no power to sell it to the other side. How far the subsequent acts of the client amounted, in the case presently referred to, to acquiescence considered, principles upon which the court acts in consent cases stated. Swinfen v. Swinfen, 3 Jur. N. S. 1109.


PURCHASE SUBJECT TO MORTGAGE.— Notice of mortgages prior to completing-Redemption of mortgage-Sale of mortgaged estate subject to charges -Completion of purchase-Notice.-The following decision shows the effect of a notice of incumbrances to a purchaser prior to the payment of his purchasemoney-T. being possessed of a leasehold messuage and premises, on which he had created several charges, contracted to sell the same to O.; and by a deed, dated 4th August, 1855, the premises were assigned to O. for the residue of the term, subject to a mortgage thereon to L. Besides L.'s mortgage, there were equitable charges in the hands of a second and third incumbrancer. On the same day,

Saturday, 4th August, O. handed to T. a cheque, drawn by the firm of which he was partner, upon their private bankers, for the amount of the purchase. Afterwards, fearing that the insurance might not have been paid, or that interest on L.'s mortgage might be in arrear, O. stopped payment of the cheque before the following Monday morning. On the 8th August, however, O. was induced to withdraw his countermand, and the money was paid on the same day. On the day before the 7th, O. had been made acquainted with "the existence of the second and third incumbrances." The bill was filed by the third incumbrancer, praying to be allowed to redeem the first and second, and that O. might redeem him. The plaintiff contended that the purchase was not completed on the 4th August by delivery of the cheque, and that before the 8th August, O. had notice of the second and third charges., O. contended that the purchase was complete on the 4th August, and asserted his right to redeem L. in priority to the plaintiff: Held, that the purchase was not completed on the 4th August by delivery of the cheque, considering the circumstances that took place afterwards, and decree made in conformity with the prayer of the bill. Tildesley v. Lodge, 30 Law Tim. Rep. 29.


COSTS. Further answer unnecessarily required.The costs of a further answer, which had been vexatiously required, ordered, at the first hearing of a foreclosure suit, to be paid by the plaintiff: the defendant having taken the objection, and asked for his costs, upon the face of his further answer. Similar costs of another defendant, who had not raised the objection in his second answer, not ordered to be so paid. Cocks v. Stanley, 6 Week. Rep. 45.

DECREE [vol. 3, pp. 192, 257].-VacatingInrolment Abatement-Haste.-In a suit against several defendants one died, and, before revivor against his executor, another defendant obtained, on May 8, an order to dismiss for want of prosecution, and inrolled it on June 30. The Court refused to vacate the inrolment on the ground of the abatement of the suit at the date of the order, or on the ground of the haste with which the inrolment had been made. Williams v. Page, 26 Law Journ. Ch. 813.

DECREE [vol. 3, pp. 192, 257].--Vacating Inrolment―Misleading party.—If the conduct of the party inrolling a decree has been such, as reasonably to mislead the other party into the belief that he would not inrol, even though there may be no mala fides, the court will vacate the inrolment. Backhouse v. Wylde, 26 Law Journ. Ch. 812.

DISMISSAL OF BILL.-For want of prosecution-Delay-Injunction ordered to stand over, plaintiff bringing action.-After a delay of twelve months, in which no step has been taken by the plaintiff, notwithstanding an admission by the defendant's answer that he is using the article complained of by the plaintiff, and after notice, on Aug. 1, by the defendant, that he would move to dismiss in Michaelmas Term for want of prosecution, and still no steps taken, the bill was dismissed, with costs, for want of prosecution accordingly. An interlocutory order, on motion for an injunction directing the motion to stand over, the plaintiff to bring an action with liberty to apply, is not an order which, like a decretal order, will prevent time running so as to affect the defendant's right to move to dismiss for want of prosecution. Baker v. M'Clellan, 3 Jur. N. S. 1169. NEXT FRIEND [vol. 3, p. 390]. — Married woman- Co-defendant - Suspicion of insolvency.— Facts amounting to suspicion of insolvency of a next friend for a married woman will not, in opposition to his own oath, as to his solvency, disqualify him from acting as next friend. A co-defendant with a married woman may act as her next friend on an appeal by her. Elliott v. Ince, 26 Law Journ.

Ch. 821.

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PETITION OF RIGHT [First Book, p. 53].— In the place of the usual commission issued on a petition of right, the court, with the assent of the Attorney-General, issued, a formal commission, the return to which was to be made on the oath of the petitioner. Exparte Carl Robert v. Frantzins, 26 Law Journ. Ch. 797.

PUBLIC COMPANY.-Winding-up Amendment Act of 1857-Action with leave of judge in equity.— The 7th section of the 20 & 21 Vic. c. 78 (ordinarily termed the British Bank Compromise Act), provides that when any company shall have been adjudicated bankrupt, then after the appointment of assignees, or if not, then after the judge or master shall have advertised for creditors to appoint a representative, no action shall be brought, or execution or scire facias issued or proceeded with, against the person, property, or effects of any member of such company, except by leave of the Court of Bankruptcy, or of the said master or judge before whom such order shall have been made. Where it is necessary, under the 7th section of 20 & 21 Vic. c. 78, to obtain leave to issue a scire facias, the application must be to the judge in chambers. A motion in court for such leave refused. Powis v. Butler, 6 Week. Rep. 34.


ATTORNEY AND CLIENT.-Gounsel's opinion -How far it justifies-Fraudulent representationForm of action-Special count on indebitatus-Damage,

general or special-Bona fides.-The following is an important case, with reference to an attorney's duty in laying cases, instructions, or other documents before counsel, and obtaining and acting on opinions obtained on incorrect statements, it having been held, that in an action against an attorney, or any other party, for a malicious or fraudulent proceeding, it is not enough to excuse the defendant that he acted on counsel's opinion, unless he also shows a case fairly stated and advice obtained bonâ fide and properly pursued; and in an action against an attorney for fraudulently obtaining, on behalf of a third party pretending to be plaintiff's partner, debts due to the plaintiff, it was held no answer on the part of the defendant to show that he had, upon oral statements, suppressing material facts known to himself, obtained counsel's opinion that there was a partnership, and that the proper course was to write to the customers on behalf of the firm, warning them not to pay the plaintiff, he having written letters to them on behalf of the plaintiff and the pretended partner requesting payment. It was also held, that the right question for the jury was, whether the letters were fairly written in consequence of counsel's opinion that the defendant might legally use the plaintiff's name, or whether they were written really in order to induce the customers to believe that the plaintiff actually authorised the defendant to write such letters and to receive payment. And the jury having found the latter to be the case, it was held, that the evidence warranted their finding, and sustained a verdict for the plaintiff on a special count, for falsely and fraudulently obtaining, by the use of the plaintiff's name, payment of debts due to him, or on an indebitatus count for money had and received, the defendant being clearly liable in some form of action to repay to the plaintiff the moneys so received. And the judge having so directed the jury, and told them that they might, under one count or the other, give a verdict for the plaintiff to the amount of the moneys received, this was held no misdirection. Quare, however, as to the precise form in which the moneys were recoverable, whether as special or general damage under the special count, or as money received to the plaintiff's use. Semble, per Pollock, C. B., under the latter count; per Martin, B., as general damage; per Bramwell, B., as special damage under the special count. Andrew v. Hawley, 26 Law Journ. Ex. 323.

ATTORNEY AND CLIENT.-Liability of attorney-Trial-Skilled witness.-An attorney, being in the position of an agent for his client, is not liable for the charges or expenses of a skilled witness, retained by him, in pursuance of his general instructions, to make surveys, researches, calculations, or experiments, with a view to examination as a witness

in his client's cause. The client, in such a case, is primâ facie liable; and although it is competent to the attorney to make himself personally liable to pay the charges, there must be evidence of an express undertaking on his part so to do; and the mere fact that the attorney has employed the witness in such a way, and that in the course and conduct of the case he has had communications with the skilled witness, that being in the course of his business as the attorney, is no evidence of such an undertaking. Lee v. Everest, 26 Law Journ. Ex. 334.

BILL OF EXCHANGE.-Foreign-stamp-Statute 17 & 18 Vic. c. 83, s. 5 [stated 1 Law Chron., pp. 150, 151].-The statute 17 & 18 Vic. c. 83, s. 5, enacts that the holder of an unstamped bill of exchange drawn out of the United Kingdom shall affix an adhesive stamp before he shall present the same for payment, or indorse, transfer, or in any manner negotiate such bill; and further provides, that " no person who shall take or receive from any other person any such bill as aforesaid, either in payment or as a security, or by purchase or otherwise, shall be entitled to recover thereon, or to make the same available for any purpose whatever, unless at the time when he shall so take or receive such bill, there shall be such stamp as aforesaid affixed thereon," does not apply to a bill of exchange or note indorsed abroad and sent by the payee to his agent in England for the purpose of being presented for acceptance, nor to such presentment for acceptance; and therefore, on the non-acceptance and protest of such bill, an action may be maintained by the indorsee against the drawer without a stamp being affixed. Quare, whether on issues on pleas only denying the presentment for acceptance and notice of dishonour, the plaintiff is bound to produce the bill of exchange. Sharples v. Rickard, 26 Law Journ. Ex. 302.

CHEQUES CROSSED.—19 & 20 Vic. c. 25 [see vol. 2, p. 269; 3 Id. 25, 100, 210].—It had been thought that the 19 & 20 Vic. (3 Law Chron. 25) had put an end to all difficulties arising out of the custom of crossing cheques, but the following case shows that this is not the case, the Court of Common Pleas having held that the crossing on the cheque forins no part of the instrument; and, if obliterated before presentment to the banker, the latter is safe though he pay the money to a person not being a banker. A subscription has been made for the purpose of enabling the plaintiff to carry the case to a court of error. The court considered that the enactment in the statute to the effect that the addition, in that statute mentioned, across the face of a draft on a banker, shall have the force of a direction to the bankers that the same is to be paid only to or through some banker, &c., does not apply to the time when the draught is issued, but to the time

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