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and non-Christian States, are entitled to have actions brought against them tried before the Consul of their nation is illsuited to communities engaged in trades which are cosmopolitan in character. The Consular Courts have compulsory powers only over the subjects of their own nation, and where the parties to an action are nationals of different States and do not consent to submit to a single jurisdiction, different parts of the dispute may fall to be determined by different tribunals, and the execution of the judgments may be defeated altogether. The difficulties of justice involved in the old system led Nubar Pasha in 1879 to establish in Egypt the Mixed Courts, composed of Judges of a number of European States, which were destined to be a powerful machine for securing payment from the Egyptian Government for foreign creditors. In spite of defects of procedure it is generally recognised that the Mixed Courts have been a vast improvement on the old anarchical system, and their organisation will presumably form the model on which the representatives of the Powers will design the proposed international Courts at Tangier. It should be possible, however, to improve considerably on the original. The jealousies of the States concerned with the modification of the Capitulary rights in Egypt led, on the one hand, to the reservation of the criminal jurisdiction for the Consular Courts, and, on the other hand, to an insistence on the presence of fifteen and five Judges respectively in the Court of Appeal and of First Instance. To-day we are more accustomed to the idea of an international judiciary, and there is greater confidence in its working, so that it is reasonable to expect that the Mixed Court of Tangier will be endowed with a larger jurisdiction than those of Egypt, and will also be less wasteful of judicial power in its composition. In the development of mixed European judicial tribunals in Oriental countries, there is an indication of the growing recognition of common legal interests and a common basis to legal systems which must lead, in time, to the consummation of a single commercial law for civilised peoples.
PLEDGE BY EXECUTOR of TESTATOR'S CHATTELs. – An executor, or one of several executors, may validly pledge any part of the testator's personal estate, whether cleared of debts or not, at any distance of time from the testator's death. And the pledgee, acting in good faith, is under no obligation to inquire into whether the pledge is or is not required for the purpose of administration. That proposition is so well settled and recognised as to render scarcely needful the citation of any authority in support thereof. But the statement of Sir John Leach, V.C., in Watkins v. Cheek (2 Sim. & Stu. 199) was referred to by the Master of the Rolls (Cozens-Hardy) in the recent case of Solomon v. George Attenborough and Son (106 L. T. Rep. 87; affirmed by the House of Lords, noted ante, p. 83) as accurately and tersely expressing the rule of law on the subject. The rule, however, has no application to a case like that one, in which the executor had not acted nor in any way purported to act in his capacity of executor. That appears from what was decided by the Court of Appeal and lately approved by the House of Lords. The whole question is whether the pledgee was dealing with an executor acting in virtue of his powers or not. It was shewn there that the pledge of certain chattels that formed part of the testator's estate was not required for any of the purposes of the administration; and that the chattels were, at the time, held by the pledgor as a trustee and not as an executor. There was not the slightest blame to be attached to the pledgees in the transaction. They took the chattels in good faith under a contract of pledge in the usual form, and in the ordinary way of their business as pawnbrokers. They were perfectly unconscious of any fraud, and they were not open to any imputation in the matter. No notice that the chattels were not the absolute property of the pledgor was given to them. Nevertheless, they were held to be disentitled to retain the chattels because of that single circumstance: The executor had neither acted, nor professed to be acting, as such. For that reason, the authorities upon which Mr. Justice Joyce had based his decision in the Court of first instance—namely, Re Whistler and Richardson (57 L. T. Rep. 77 : 35 Ch. Div. 561) and Re Venn and Furze's Contract (70 L. T. Rep. 312; (1894), 2 Ch. 101)—were considered by the Court of Appeal to be distinguishable. Where an executor deals as executor with another person, the latter is justified in assuming that the executor is discharging the duties of the position which he professes to hold. So it was in the two cases which Mr. Justice Joyce regarded as authorities in point; and likewise in Re Tanqueray-Willaume and Landau (46 L. T. Rep. 542; 20 Ch. Div. 465). The vendor was known by the purchaser to be an executor, and purported to be dealing in that capacity. No authority was able to be cited that places on the same footing a transaction in which the vendor or pledgor does not purport to deal as executor. The purchaser or pledgee has no right then to rely on the fact that he has been dealing with a person who really is an executor. In the present case, the Lord Chancellor (Lord Haldane), who delivered the judgment of the House of Lords, pointed out that an executor, by virtue of his office, has vested in him the plenum dominium over his testator's chattels. But when the owner of a chattel pledges it to a pawnbroker he is not parting with the plenum dominium over it, or with anything in the nature of a title to the pawnbroker. The pledgor in the present case had no property in the chattels as executor at the time he delivered them to the pawnbroker. There was, therefore, no question of an executor acting within his powers. The dishonesty of persons who pledge is one of the risks that pawnbrokers have to guard against in so far as lies in their power. And any other decision than the present would have involved gross injustice to the true owners of the chattels.
THE EFFECT of BANKRUPTCY of A PURCHASER of LAND BEFoRE CoMPLETION of THE PURCHASE-The position of a vendor of land who, after the contract has been entered into and before completion, gets notice of an act of bankruptcy by the purchaser is not as clear as it might be. Bankruptcy does not of itself put an end to a contract: (see Valpy v. Oakley, 17 L. T. Rep. O. S. 124; and Dart's Vendors and Purchasers, vol. 1, p. 294, 7th edit.) If the vendor have notice of such an act of bankruptcy he cannot safely proceed with the contract until it has been ascertained whether or not adjudication in bankruptcy ensues; for any money paid to him by the purchaser might be recovered back by the trustee under a consequent adjudication of bankruptcy against the purchaser: (see Ponsford, Baker, and Co. v. Union of London and Smiths Bank Limited, 95 L. T. Rep. 333; (1906), 2 Ch. 444; and Mr. T. Cyprian Williams’ work on Vendor and Purchaser, p. 552, 2nd edit.). On the other hand, a purchaser who has committed an act of bankruptcy available for adjudication cannot enforce specific performance of the contract against the vendor: (Franklin v. Lord Brownlow, 14 Ves, 559). One remedy which seems open to the vendor if the day fixed for completion has passed, and either time is of the essence of the contract, or a reasonable time has elapsed for its completion, is to treat the contract as broken, and forfeit the deposit: (see Collins v. Stimson, 48 L. T. Rep. 828; 11 Q. B. Div. 142). Another course would be to make a written application to the trustee in bankruptcy requiring him to decide whether he will disclaim the contract or not, and if he does not disclaim within twentyeight days, or withing such further period as may be allowed by the Court, he will be deemed to have adopted the contract. The precise effect of these last words is doubtful. It would appear that they render the trustee liable to complete the contract so far as he can do so with the assets of the bankrupt, but they do not make the trustee personally liable on the contract. It is submitted in Williams on Bankruptcy Practice, p. 295, 9th edit., that they only effect a novation by which the trustee, as representing the body of creditors, is substituted as the party liable for the trustee as representing the old bankrupt contractor: (see Re Sneezum, 35 I. T. Rep. 389; 3 Ch. Div. 463). Although the Bankruptcy Act 1883 gives numerous powers to the trustee, it gives no express power to perform the bankrupt’s contracts generally. Express power, however, is given to the trustee with the permission of the committee of inspection to bring actions relating to the property of the bankrupt; and also to make such compromise or other arrangement as may be thought expedient with respect to any claim arising out of or incidental to the property of the bankrupt made or capable of being made on the trustee by any person or by the trustee on any person. Therefore it is submitted that with the sanction of the committee of inspection the trustee may carry out the contract, or may make some other arrangement with reference thereto. Specific performance, however, cannot be decreed against the trustee in bankruptcy of the purchaser without his consent (see Holloway v. York, 25 W. R. 627), for the Court will not assist one creditor at the expense of the others to get 20s. in the pound, though the contract may be enforced against the trustee in bankruptcy of a vendor: (see Pearce v. Bastable's Trustee in Bankruptcy, 84 L. T. Rep. 525; (1901), 2 Ch. 122). If the trustee disclaims the contract, the vendor may retain the deposit even without express stipu
lation for that purpose: (see Er parte Barrell; Re Parnell, 33 L. T. Rep. 115; L. Rep. 10 Ch. 512). Another remedy open to the vendor for what it is worth is to apply to the Court under sec. 55 (5) of the Act for an order rescinding the contract on such terms as to payment by or to either party of damages for the non-performance of the contract or otherwise as to the Court may seem equitable, and any damages payable under the order to any such person may be proved by him as a debt under the bankruptcy.
SATISFACTION.—It is well settled that when a father or person in loco parent is has covenanted to pay a portion to a child, and afterwards gives a legacy of the same or a larger amount to that child, the legacy is prima facie a satisfaction of the portion, and, if the legacy is of smaller amount, it is a satisfaction pro tanto (Theobald on Wills, 7th edit., p. 7.59); but a point which is not quite so clearly present to the mind of practitioners is that that doctrine has no application to the case where the advance is made before the date of the will. In such a case the will does not operate as an ademption in the absence of a special agreement that it shall. Upton v. Prince (Cas. t. Tal. 71) is an old authority on this point. There the testator had two sons, William and Peter, and four daughters, and in his lifetime he gave his two sons £1,500 apiece, for which he took their receipts acknowledging that such sums were to be on account and in part payment of what the father should give them by will. Then by his will the testator recited that he had advanced to three of his children, naming them, £1,500 each, omitting any mention of Peter, to whom he had also advanced £1,500; and he thereby gave to his three other children, including Peter, £1,500 apiece, and then gave the residue equally among all his children. It was argued on behalf of Peter that the omission of his name by the father in the recital of advancement shewed that he plainly intended a difference between his sons, the receipts given by both and the case of both being the same. The decree was that the £1,500 received by Peter in his father's lifetime was a satisfaction for what the father had given him by his will, and that he should not have another £1,500. In Taylor v. Cartwright (26 L. T. Rep. 571; L. Rep. 14 Eq. 167) the facts, so far as material, were shortly as follows: A testatrix died in 1848 having by