The case of personal estate under the old law, it is suggested, could never be precisely analogous, because it could hardly happen that a testator could, at the time of his will, be without some personal estate. However, it is certain that under the old law a general bequest of personal estate would not operate as the exercise of a power of appointment of personal property, even where it was clear that at the date of the will the bequest in it could not be satisfied out of the testator's own personal estate. Parol evidence of that fact was not admissible: Jones v. Tucker, 2 Mer. 533, and Jones v. Curry, 1 Sw. 66.

In Nannock v. Horton, where the testator had power to appoint £4,000 stock by will, he, by his will, gave various sums of stock. Lord Eldon, in his judgment, contrasts the case of personal estate thus:-"Every gift of land, even a general residuary devise, is specific. Only that to which the party is entitled at the time can pass. But, as to personal estate, he may give that which he has not, or never may have, and, at all events, whatever he may happen to have at his death will pass. He might have had stock before he died, though he might have had none at the date of the codicil."

It is strange that the question should not have been determined, but counsel have not cited, nor can I find, any decision precisely in point. It is purely a question of intention. Did the testator intend to exercise his power ?-Bennett v. Aburrow, 8 Ves. 616; Denn v. Roake, 6 Bing. 475. The intention of a testator can only be inferred from the words of his will and the circumstances at the time of executing it which were known to him, and which the court, putting itself in his place, is bound to regard.

Here, at the date of his will, the testator had no real estate. By his will he, in general words, gives "all my real and personal estate." Power and property are completely distinguished, and if he had at that time any real estate it is clear the power would not have been exercised. The other principal facts bearing upon the question of his intention are these. The will contains a gift out of the bulk of the proceeds of his real and personal estate to his wife, who was not an object of the power, and a direction out of the same fund to pay funeral and testamentary expenses or debts, which could not be done out of the property subject to this special power. The provisions for issue of children are not confined to issue born in his lifetime, to whom alone, under the terms of the power, he could make a valid appointment. All these are indications which tend to prove that it was not his intention to exercise this special power. Doe v. Bird, 11 East. 49, shows that such indications ought to be regarded.

Besides, I must suppose him acquainted with the law which enabled him by a general devise to pass real estate he might acquire after the date of his will. In fact, most people, I suppose, are now aware of this. It is the

intention at the date of his will which must be con

sidered. If the power was exercised by this general devise, any real estate acquired by the testator afterwards would also pass, unless the general devise could be read as referring exclusively to the property subject to the power, which, since the Wills Act, seems impossible. But the cases under the old law show plainly that, if the devise did operate upon property belonging to the testator, general words such as these would not exercise a power. The reason for holding that such words did exercise the power was that otherwise they could not have any operation. Under the old law a general devise never both passed property of the testator and also exercised a power, unless that was shown to be the intention by some other indication.

The language of Alexander, C.B., in the House of Lords in Denn v. Roake, 8 Bing., at p. 478, is this: "I may venture to say that in no instance has a power or authority been considered as executed, unless by some

HIGH COURT.

reference to the power or authority, or to the property which was the subject of it, or unless the provision made by the person intrusted with the power would have been ineffectual-would have had nothing to operate upon, except it were considered an execution of such power or authority." Sir W. Grant, in Bennett v. Aburrow says that "the intention may be collected from other circumstances than an express reference to the power"-as that the will includes something the party had not otherwise than under the power of appointment; that "a part of the will would be wholly inoperative unless applied to the power." It is impossible to say that a general devise is wholly inoperative if it passes real estate acquired afterwards. And if it might have that operation when made, it is difficult to treat it as wholly ineffectual, because the testator at the date of his will had no real estate. Certainly it would, at least, be potentially operative. You could not say it would be wholly inoperative. A testator well advised, though he had no real estate at the time of making his will, and though he desired not to exercise a special power, might still wish to insert in his will a general devise of real estate.

Perhaps the case which most nearly touches the point is Mattingley's Trusts, in which it was decided that, under the new law, a special power to appoint stock among children was not exercised by a gift of "my money in the funds," although the testator, at the time of the will, had no stock of his own, because, as the Vice-Chancellor said, if it were held that those words pointed to a specific fund, it would follow that they could not pass any after-acquired property of the description-that is to say, the words which are read as exercising the power in the case of personal estate must be such as refer to the property comprised in the power exclusively, and would not be operative upon after-acquired personal estate. This was precisely the reason why a general devise of real estate, under the old law, effected the execution of a power where the testator had no real estate at the time. The will was read as though it contained a specific devise of the real estate which was the subject of the power, and that specific devise, of course, could not, under any circumstances, pass any other estate. Speaking for myself, I have the strongest objection to anything like a general rule for discovering intentions. To say that wherever a testator, making a will since the Wills Act, has no real estate at the date of his will, that testator shall be taken to have intended, by a general devise, to exercise a special power over real estate, would, to my mind, be so unreasonable as to be irrational. I believe that such a rule would defeat the intention at least as often as it would effectuate it.

There being no such decision upon a will made since the Wills Act, the former authorities are not precisely in point, and I feel emancipated from any restriction they might put upon my judgment. The far better or safer rule, in my opinion, is in each case to consider and weigh the words of the particular will, and the surrounding circumstances at the date of it, amongst which the enlarged operation of a general devise is a most important one.

It has been suggested that the Wills Act shows all intention rather to extend the operation of wills in exercising powers, at least as to general powers, which, by section 27, are to be considered as exercised by a general devise or bequest, unless a contrary intention appear by the will, and that, therefore, a special power should be still treated as exercised in all cases where it I would have been under the old law. The argument involves a fallacy. If the reason for presuming the intention of the testator to exercise the special power is taken away by other provisions in the Act, the presump tion ceases, and the fact that general powers are specially provided for affords no indication that the Act intended

serve the presumption as to the exercise of special when it destroyed the reason for that presump

the best consideration I can give in this case to the of the will, and the circumstances of the testator time, I do not believe he intended to exercise this

al power. If not exercised, the property would 1 default, amongst all his children. It is reasonable ppose he desired not to disturb that provision. I ve either that he forget all about the power, or that datesired not to exercise it. If he forgot the power, but dnded to pass the property subject to it, possibly that ht be sufficient; but I cannot find anything to sfy me that this was his intention. The burden of of is on those who assert affirmatively that the power exercised. The court must be satisfied of this by Icient evidence. I am not so satisfied. The inclinaKC of my opinion is, the testator did not intend to rciss this special power.

olicitors, Cree & Son; W. H. Mills, Stockton-on; Watson, Newby, & Robson, Stockton-on-Tees.

HALLETT v. HASTINGS. (a.) Carried woman-Execution-Separate estate-Simple contract debt-Statute of Limitations (21 Jac. 1, c. 16), 8. 3.

The analogy of the Statute of Limitations applies to b: a simple contract claim against the separate estate of married woman.

Norton v. Turvill, 2 P. Wms. 144, explained.

Summons to vary the chief clerk's certificate, inter alia, that it found that Lady Hastings was not, at the ne of her death, indebted to her husband in any sum money which her separate estate was liable to pay. Ou April 1, 1875, the defendant Robert Heane the cond husband of Lady Hastings, paid to her account

400.

Lady Hastings died on the 30th of December, 1884, ithout, as to the £400, having paid any interest, or ade a part payment in respect of it, or given an acknowedgment of her liability to repay it.

Lady Hastings died possessed of separate estate, conisting of furniture and household effects, available for xecution in satisfaction of this debt, if established. Other portions of her property in settlement were not available, she being restrained from anticipation.

Evidence was given of Lady Hastings having verbally admitted the debt, and of her verbally agreeing to repay it, with interest at five per cent., and his lordship (as will be seen from the judgment) assumed, for the purpose of his decision, that the payment was a loan.

Fischer, Q.C., and J. G. Wood, for the summons, referred to Woodward v. Woodward, 11 W. R. 1007, 3 De G. J. & S. 672, where the court had to determine whether a payment by a wife to a husband, since deceased, was a loan or gift. In Hodgson v. Williamson, 28 W. R. 944, 15 Ch. D. 87, the court held that the analogy of the Statute of Limitations did not apply to bar such a claim as the present one, and followed Norton v. Turvill, 2 P. Wms. 144, saying that case had always been acted upon except in Vaughan v. Walker, 8 Ir. Ch. Rep. 458, where the court was divided. KAY, J., referred to Lillia v. Airey, 1 Ves. jun. 277.

(4.) Reported by HENRY T. Law, Esq., Barrister-at

Law.

HIGH COURT.

Hastings, Q.C., and Phipson Beale, contrà, referred to Pike v. Fitzgibbon, 29 W. R. 551, 17 Ch. D. 454; Johnson v. Gallagher, 9 W. R. 506, 3 De. G. F. & J. 494; Vaughan v. Walker.

KAY, J., referred to Heatley v. Thomas, 15 Ves. 596, and Sockett v. Wray, 4 Bro. C. C. 483. Colt, for the executors and trustees. Fischer, Q.C., replied.

KAY, J.-The question is of great interest, but, having formed a clear opinion, I will state it at once and as explicitly as possible, so as to give an opportunity, if I am wrong, for my decision being speedily reversed. I will assume, for the purpose of this part of the case, that the payment by the husband was a loan.

The question is, in the case of a claim in the nature of a simple contract against a married woman, Will a court of equity act by analogy to the Statute of Limitations ?

First, upon principle. After the statement of the law in Johnson v. Gallagher by Turner, L.J., it is plain that a creditor, with whom a married woman contracts what would have been called a simple contract debt," acquires no lien, but can merely obtain execution in a proceeding to which the married woman, or her executors, must be party, against the separate estate she had at the moment the debt was contracted. Why should the court treat the claim otherwise than it would treat a simple contract claim there is a difference, then the creditor of a married against a man or a person not under disability? If woman could obtain execution against the separate estate after the lapse of any number of years, without the analogy of the Statute of Limitations applying. If that is the law, it seems to me to be monstrous law and irreconcileablo with the application of the statute by analogy.

Now as to the authorities. The authority upon which it is said that the contrary doctrine is based is the case

of Norton v. Turvill. I have sent for the registrar's book, and I find that the facts of that case are stated in the appendix to the 8th volume of the Irish Chancery Appeals. It appears, stating the short result, that in that case the feme covert, who had separate property, gave a bond, and the time when she gave the bond was August, 1709. This is from the registrar's book: “The said Sarah Vernatty, in August, 1709, lent the said Edith £25, and took her bond of £50 penalty to pay

the £25, with interest, on the 27th of February, 1779." I think there must be a blunder there: she made her will in February, 1715, and she died about February, 1715. It would seem that she died, therefore, within six years from the date of the bond, and that even a simple contract debt would not have been barred at her death. She had, however, in that case, separate property which she had the power of appointing by deed or will, and the report of the case, which is very shortly given in 2 Peere Williams, states that, the Statute of Limitations being set up by way of answer, the defendant was entitled to the like benefit of it as if he had pleaded it. "But in this case "" (this is stated in the judgment of Jekyll, M.R., "all the separate estate of the feme covert was a trust estate for payment of debts, and a trust is not within the Statute of Limitations." Now, as far as I can gather from reading the report of this case in the registrar's book, there was no trust whatever for the payment of debts, except in this way, and I find that this сазе was explained afterwards by Sir R. Pepper Arden, afterwards Lord Alvanley, in the case of Sockett v. Wray, in these words (4 Bro. C. C. 486):-"In Norton v. Turvill the disposing power was not confined to being executed by a will; the question there was as to the execution by bond "-that

HIGH COURT.

is, of course, the execution of the disposing power"The Master of the Rolls was of opinion that, though as a bond it was void, it was a good disposition against persons claiming under her will, and that, where a person having a disposing power gives a bond, it is binding on her personal property." Now, it is obvious that that construction of the decision in Norton v. Turvill makes it very intelligible. The bond was treated as though it had been an appointment of so much separate property, and then, of course, the trustee of the separate property became a trustee for the bondholder to the extent of that appointment, and that explains the words that are explained by the then Master of the Rolls in the way I have just read. Now it does not rest there alone, because that explanation was repeated by Sir William Grant in Heatley v. Thomas. He said, in the course of the argument, "the question is whether this "-that is, the property in that case— was separate property to all intents and purposes," and then he continues thus (15 Ves. 603):-"In Sockett v. Wray Lord Alvanley did not consider a married woman who had only a power of appointment by will"-that was the distinction between Sockett v. Wray and Norton v. Turvill-" as having separate property, distinguishing that case from Norton v. Turvill, where the creditor was allowed to resort to the separate property after the death of the wife, as she had a power of appointing either by deed or will. Upon the question in Sockett v. Wray whether the wife could not give the property to her husband, Lord Alvanley held that she could not; that she could not affect it in any way but by a revocable instrument; and the bond was an instrument not revocable." So that Sir William Grant adopts Lord Alvanley's explanation of Norton v. Turvill exactly. Well, I find that that is not all the authority on the subject, because, in the case of Johnson v. Gallagher, which I have already referred to, the matter was mentioned again, and Turner, L.J., says :"In Norton v. Turvill, as explained in Sockett v. Wray, the exercise of the power by the will of the married woman seems to have been held to let in a bond creditor against the appointees under the will" (3 De G. F. & J., at p. 517). This is scarcely a full explanation of Lord Alvanley's explanation. Lord Alvanley treats the bond as having been itself an appointment, which made the bond creditor an appointee under the will.

Now, I should have thought that would settle the matter completely, particularly when one remembers that the case of Johnson v. Gallagher has received the highest possible approbation, from the Privy Council in their judgment expressed by James, L.J., in the case of The London Chartered Bank of Australia v. Lemprière, 21 W. R. 513, L. R. 4 P. C. 572. There the property of the married woman was settled by an antenuptial settlement for her separate use for life, with remainder as she should by deed or will appoint, and in default of appointment to her executors or administrators. She executed the power by will, having a power by deed or will, and in that case James, L.J., reads the language of Turner, L.J., in Johnson v. Gallagher, and he says, "It is said, indeed, that Knight-Bruce, L.J., did not concur with his colleague, and that Lord St. Leonards has expressed an opinion that Knight-Bruce, L.J.'s, view was the more correct," and then he says further on, "" their lordships are not able to concur in that view of the authorities, and have arrived at the conclusion that Turner, L.J.'s, judgment is expressed with his ueual accuracy." And in this very case Sockett v. Wray is again referred to, and the observations of Sir William Grant in Heatley v. Thomas, which I have read, are read by the learned judge in giving judgment. So that there is a very considerable body of authority which has construed that decision in Norton v. Turvill, and has explained that these words which say that there was a trust are used, because at that date the understanding was that a married woman having a power of appoint

HIGH COURT.

ment over property by deed or will and giving a bond, by giving that bond exercised the power of appointment to that extent. But I conceive that in two other cases the decision has been differently understood, one in Vaughan v. Walker, where the Lord Chancellor of Ireland and the Lord Justice of Appeal differed, the Lord Justice thinking that the analogy of the Statute of Limitations did affect such a claim, and the Lord Chancellor that it did not, simply upon the authority of Norton v. Turvill. But in that case neither Sockett v. Wray nor Heatley v. Thomas was cited, and the explanation of Norton v. Turvill which, for so many years has been accepted, was never referred to. In Hodgson v. Williamson, again, Norton v. Turvill and Vaughan ▼. Walker seem to have been followed; but I cannot find that either Sockett v. Wray or Heatley v. Thomas was mentioned, or that this explanation of Norton v. Turvill was referred to, although London Chartered Bank of Australia v. Lemprière was.

I cannot reject that explanation of Norton v. Turvill. If it is the right explanation, as the doctrine is quite settled that a bond given by a married woman who has separate property is not an appointment out of her separate estate, it follows, as a matter of course, that a simple contract debt cannot be, and therefore, whatever the question may be as to a bond, there is no reason in the world for saying that a simple contract debt contracted by a married woman shall not be treated in equity barred by analogy to the Statute of Limitations.

I decide the case on this point, without entering into the question of whether there is sufficient evidence that this is a loan, so that, if it is expedient, the Court of Appeal may decide the point without delay. [His lordship eventually dismissed the summons, with costs.]

Solicitors for M. V. Heane, W. & J. Flower & Nussey, for R. N. Heane, Newport, Salop.

Solicitors for a defendant, Steavenson & Couldwell. Solicitors for the executors and trustees, Torr, Janeways, Gribble, & Oddie.

HARGRAVE V. KETTLEWELL. (a.) Practice-Petition-Fund in court-Payment outCarrying over to separate account-Title of account. Where it is proposed, upon a petition for payment out of part of a fund in court, to carry over a share in such fund to the separate account of the person entitled, the account should be in the name of such person and not in the name of such person or his incumbrancers-8.B., "the account of A. B.," not "the account of A. B. or his incumbrancers."

A petition was presented for payment out of part of a fund in court, and the petititioner proposed to carry account, to be entitled, "The share of A. B. or his over the share of one of the beneficiaries to a separate

incumbrancers." The share was not incumbered.

Godefroi, for the petitioner.

Warrington, for the respondent.

}

pg that there was no incumbrances effected by the iary.

citors, Wilkins, Blythe, & Dutton; Valpy & Co.

n. Div.

}

tty, J. J

Dec. 3.

WELCH V. NATIONAL CYCLE WORKS Co. (a.) eclosure-Debentures charging property of company -Appointment of receiver-Balance in receiver's ands-Corpus-Foreclosure absolute.

There a receiver was appointed after a judgment for closure and there was a balance in his hands esenting corpus of the mortgaged property the plainwas entitled to have the foreclosure judgment made lute.

he plaintiff was the holder of a number of atures issued by the National Cycle Works Co. ited), and upon default being made in the payment of moneys secured by the debentures he brought an n against the company and subsequent incumcers, claiming (amongst other relief) foreclosure or of the property charged by the debentures. The perty of the company charged by the debentures "its undertaking and all its property both present 1 future."

The plaintiff's action was commenced in 1885, and, on his application, on the 24th of April, 1885, a eiver and manager was appointed.

On the 17th of May, 1886, an order was made for emption within six months, and, in default thereof, eclosure. The debenture debts amounted to about

000, and the plaintiff, not having been redeemed, ved on the 3rd of December, 1886, for the foresure to be made absolute.

It appeared from the affidavit made by the receiver d manager that since his appointment he had received ,679 10s., and spent £1,367 88. 5d., leaving in his nds a balance of £312 58. 7d. It also appeared that t of the £1,679 10s., the amount of £973 49. 6d., was ceived in respect of calls made upon shareholders of e company, and that the remainder of the £1,679 10s. as received in respect of book-debts, and in the dinary course of business.

Solomon, for the plaintiff.-The balance in the eceiver's hands is corpus, so the case of Jenner-Fust v. Veedham, 34 W. R. 409, 709, 31 Ch. D. 500, 32 Ch. D. 82, does not apply, and the plaintiff is entitled to have

the foreclosure made absolute.

He also referred to Coleman v. Llewellyn, 31 SOLICITORS' JOURNAL, p. 75.

Marcy, for debenture-holders with a second charge,

appeared and consented.

Chan. Div. Keke wich, J.

HIGH COURT.

HILL & Co. v. HILL. (a.)

Dec. 3.

Injunction-Breach of covenant not to carry on tradeCovenant not to " engage in or be in any way concerned" in a business-Acting as an employéCompany-Companies Act, 1862, s. 18-Certificate of registration.

T., as trustee on behalf of a company about to be formed, purchased from the trustee in liquidation of H.'s affairs the business carried on by the latter, and by an agreement made between T., H., and the trustee, H. agreed with T., both personally and on behalf of the proposed company, that so long as the company carried on the business H. would not "engage in or be in any way concerned or interested in any similar business within ten miles of the Royal Exchange, London." The company subsequently formed was alleged to consist only of T. and six nominees. While the company was still carrying on its business A. became an employé of B. & Co. (Limited), who were carrying on a similar business in London.

Held, that H. had committed a breach of his covenant, and that a company, duly certified, is a valid company under the Companies Acts until the certificate is hel·l void.

Trial of action.

The trustee in liquidation of the defendant Hill, who carried on the business of a shipping and export butcher in the City of London, in July, 1883, sold the business to one Tatham, and by an agreement dated the 6th of October, 1883, and made between the trustee of the first part, the defendant of the second part, and Tatham as trustee for the plaintiff company then about to be formed, of the third part, the business of the defendant was assigned to the said Tatham on behalf of the company; and by another agreement dated the 8th of October, 1883, and made between the same parties, the defendant agreed with Tatham, both personally and on behalf of the company, that so long as the plaintiff company should carry on the business the defendant would not " engage in, or be in any way concerned or interested in, any similar business within ten miles of the Royal Exchange, London." The plaintiff company consisted of seven members, six of whom were alleged to be the mere nominees of Tatham, who was himself the seventh, and in consequence the company was alleged to be illegal. In the year 1885 the defendant entered, as an employé, the service of Brooke & Co. (Limited), carrying on a similar business to that of the plaintiff company in Gracechurchstreet, in the City of London.

This was an action to restrain the defendant, his servants and agents, from committing or continuing to commit any breach of the agreement of the 8th of October, 1883.

Hemming, Q.C., and Buckley, Q.C., for the plaintiffs. The defendant has committed a breach of his covenant: Baxter v. Lewis, 30 SOLICITORS' JOURNAL, p. 754; Newlin v. Dobell, 38 L. J. Ch. 111, 17 W. R. Ch. Dig. 37; Jones v. Heavens, 25 W. R. 460, 4 Ch. D. 636; Rolfe v. Rolfe, 15 Sim. 88.

Farwell, for the defendant.-There is no breach of Covenant. The defendant is not concerned in the business, but simply employed. He takes his salary only. Covenants of this nature are not to be extended: Ward V. Byrne, 5 M. & W. 548; Clarke v. Watkins, 11 W. R. 319, 1 N. R. 342; Allen v. Taylor, 18 W. R. 888, on

(a.) Reported by F. T. DUKA, Esq., Barrister-at-Law.

HIGH COURT.

HIGH COURT.

appeal, 19 W. R. 35. The company is not a company in accordance with the covenant. It is improperly formed under the Companies Act: In re Northumberland and Durham District Banking Co., 6 W. R. 527, 2 De G. & J. 357.

Buckley, Q.C., in reply, cited In re Nassau Phosphate Co., 24 W. R. 692, 2 Ch. D. 610; Glover v. Giles, 29 W. R. 603, 18 Ch. D. 173.

KEKEWICH, J.-The last point raised by the defence in this case as to whether a company consisting of seven persons, six of whom are the nominees of the seventh, who is the substantial owner of the company, is a valid company under the Companies Act, and able to sue on this covenant, is of importance. In support of the contention that such a company could not sue, the case of In re Northumberland and Durham District Banking Co. was cited, in which, no doubt, Turner, L.J., said that the certificate of the incorporation of a company is not conclusive evidence of its validity, but his words must be read with a view to the case he was examining, and for the purposes of the present case the opinion is not material. The point was raised in the case of In re Nassau Phosphate Co., where Hall, V.C., held that the registration of the company made it a valid company, though the certificate had been improperly obtained. In Glover . Giles it was held that the court has no power to declare the certificate of incorporation of a building society given by the registrar under the provisions of the Building Societies Act, 1874, void, on the ground that it has been obtained irregularly. Now the 18th section of the Companies Act, 1862, says of what a certificate of incorporation of a company is to be conclusive evidence: if all the requisitions have been complied with, you have tho seven members competent to form a company. There may be some particular fraud in particular cases, so that the certificate of incorporation may be set aside. Here there is the certificate, and I am asked to say thecom. pany cannot sue. Until it has been decided that the company is an illegal one I shall not hold it so, and I am, therefore, of opinion that there is in this case a proper plaintiff.

Now, as to the other point raised, the plaintiff company sue on a covenant that, so long as they should carry on the business, the defendant will not "engage in or be in any way concerned or interested in any similar business within ten miles of the Royal Exchange, London." The defence is that the defendant is only a servant in, and is, therefore, not engaged or concerned or interested in a similar business. But it is not necessary to say that he is "engaged" or "interested," "interested" meaning, in commercial language, entitled to profits, but I am of opinion that the word "concerned" was intended to cover this very case, and I must regard it as meaning having something to do with a similar business, and, if he has, I think he is con

cerned in a similar business. I entirely follow the sug

gestion that these covenants ought not to be extended. If Stirling, J., had not hesitated in the case of Baxter v. Lewis I should not have felt any doubt. I am bound by the decided cases not the less that they coincide with my own opinion.

Judgment for plaintiffs, with costs.

Q. B. Div. (Mathew and A. L. Smith, JJ.) June 28. MUNTON v. LORD TRURO. (a.)

Deeds

- Registration Middlesex Registry- Fees fo registering memorial, &c.—7 Anne, c. 20. The fees claimed for registering a memorial of a des of 199 words in the Middlesex Registry, under 7 An c. 20, were as follows:-18. for entry of the memori under section 11 of the Act; 18. 6d. for "administeria the oath" of the signing and delivery of the memori under section 5; 18. for "indorsing a certificate of ti said oath upon the memorial and signing the same under section 5; 18. for the " certificate indorsed up the deed to the effect that it had been registered, with t day and hour upon which the memorial was entered o registered" under section 6.

Held, that these fees were lawful under the Act.

This was an appeal from the Clerkenwell County Court, where the action was brought to test the validity of certain fees claimed by the defendant as registrar of The fees claimed were as follows:-1s. for entry of a deeds in the County of Middlesex under 7 Aune c. 20. memorial of a deed containing less than 200 words; 18. 6d. for administering the oath of the signing and delivery of the memorial; 1s. for indorsing a certifi cate of the said oath upon the memorial and signing of the same; 1s. for the certificate indorsed upon the deed to the effect that it had been registered, with the day and hour on which the memorial was entered or regis tered. The county court judge held that the fees were good, and gave judgment for the defendant.

April 8, 13.-Reid, Q.C., and William Murray, for the plaintiff.-The only fee to which the registrar was entitled was the fee of 1s. for " entering or registering" the memorial as provided by section of the Act. All the other charges are made for duties imposed upon the officers of the Middlesex Registry by the Act, for which no fees have been specifically provided.

They referred to Jones v. Mayor of Carmarthen, 8 M. & W. 605, and the Acts dealing with the registration of deeds in Yorkshire, 2 & 3 Anne c. 4, s. 13; 6 Anne, c. 20, s. 21; and 8 Geo. 2, c. 6, s. 26.

Channell, Q.C., for the defendant, contended that all statute. the fees charged were reasonable and warranted by the

He cited Veale v. Priour, Hardrer, 351; Fleetwood v. Finch, 2 H. Bl. 220; Warberton v. Loveland d. Ivie, 1 Hudson & Br. 623.

Cur, adv. vult.

June 28.-The judgment of the court (Mathews and A. L. Smith, L.JJ.) was delivered by

A. L. SMITH, J.-This is an action brought to test the validity of certain claims made by the defendant, the registrar of deeds in the county of Middlesex, on behalf of himself and the Treasury, to fees amounting in all to 4s. 6d., for administering the oath and registering the memorial of a deed of 199 words in the registry of the said county. It was tried before the learned judge of the Clerkenwell County Court, who, with the excep tion of a 6d. claim, gave judgment in favour of the defendant, allowing the claims. The facts are as fol

Savery.

containing 199 words to be registered pursuant to Anne, c. 20. Therefor the defendant demanded the following fees:-1s. 6d. for the entry of the deed [it was conceded by both sides, and so held by the judges, that the proper fee for this was 1s., and not 18. 6d., as demanded; the extra 6d. may, therefore, be dismissed from further consideration in this case]; 18. 6d. for ad(a.) Reported by CECIL CHAPMAN, Esq., Barrister-at

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