time as may be allowed to the executor to make the conversion directed by the will, the tenant for life should enjoy the interest actually accrued.' That is clearly a dictum in favour of the rule which I am recommending to your Lordships. Lord Lyndhurst in Dimes v. Scott, 4 Russ. 195., came to the same conclusion. I admit that this was at the end of an argument on another point, and therefore I do not give to his Lordship's opinion all the weight to which his decisions are so justly entitled; but he must have considered this to be the rule, and he acted on it. In the case of Taylor v. Clark, 1 Hare, 161., before Vice-Chancellor Wigram, his Honour went into a considerable comment on the cases, and, although a little embarrassed, he admitted the rule. Therefore, my Lords, I have no difficulty upon the authorities, as I think this point is now settled. But the difficulty which has arisen in the later cases is of a different nature; it is not whether the tenant for life is to be entitled from the death of the testator or not, but in what manner is he to have the benefit of that rule, as between himself and the person entitled in remainder. In a case like this before your Lordships, where the funds were invested in three per cent. consols, he would clearly take the interest without making any call on the capital, according to the rules of equity; but where, as in the case of Angerstein v. Martin, the fund stood in Russian stock, bearing a very large interest affecting the capital, a difficulty might arise. Lord Eldon gave the tenant for life even that large rate of interest. Judges have since supposed that his attention was not drawn to the point; and I incline to think so; for although you give the first year's income to the tenant for life, you must so do this as not to injure those in remainder. But I apprehend there will be no difficulty in dealing with those cases when they arise."

Will established against the Heir-at-Law at the Suit of a Devisee of the Legal Estate Origin of the Jurisdiction.

In this case it was held on demurrer by Sir W. P. Wood, V.C., that a bill can be maintained by a devisee of the legal estate in real property, who is in possession, for the purpose of establishing the will against the testator's heir-at-law, although the heir has brought no action of ejectment against the devisee. After an elaborate examination of the authorities, his Honour observed: Having looked at the case under all these different views, having

carefully considered what equity arises against the heir authorising this very strict and peremptory decree, which forbids his ever disputing the question again, from the circumstance of there being a devise in trust instead of an ordinary devise of the legal estate, I am unable to find a ground for any such special equity on that account. If I had found a current of authority upon that question, I must have followed it, although I should not have been able to discover the principle on which the particular relief had been so granted. But when I find, on the one hand, Lord Manners saying I will assist a person by way of issue to establish a will when there is only the difficulty of an outstanding legal estate, and the only proper remedy would be an ejectment after that difficulty had been removed; and when I find, on the other hand, the Vice Chancellor Knight Bruce and the Vice Chancellor Parker concurring in sanctioning such a decree on a bill which did not ask to carry any trusts into execution, but simply to establish the will against the heir, it seems to me impossible to say that the equity arises from the circumstance of there being a devise in trust. It is true that I have been unable to discover any case in which the party, who has actually instituted a proceeding of this kind, has been a mere devisee of the legal estate; and that, on the other hand, there have been several such cases of bills for perpetuating testimony; but this may be explained for reasons which I have already stated. I say, taking all these circumstances into consideration, it appears to me that the equity must arise entirely from the fact of the devise, and the jurisdiction assumed by this Court in cases of devise over the heir, although he has brought no action, and has done nothing which brings him within the ordinary jurisdiction of bills of peace, to enable the devisee to have his title once for all quieted in the special case of

a devise."

25. THE OFFICIAL MANAGER OF THE GRAND TRUNK, &c., RAILWAY COMPANY V. BRODIE. 3 De Gex, Mac. & Gord. 146.

Winding-up Acts — Official Manager - Payment of Costs by personally. An order was made by Wood, V. C., that "W. Turquand, official manager of the said Company," do pay costs. Held by the Lords Justices, first, that as there were no negative words in the Winding-up Acts excluding the jurisdiction of the Court, it had power to visit the official manager with costs personally, if the Court

thought that there was a proper case for so doing; secondly, that according to the fair import of the order, the costs in the first instance, at all events, were to be so paid by the official manager.

II. POINTS DETERMINED IN THE COURTS OF COMMON LAW.

(By ALEXANDER PULLING, Esq., Barrister-at-Law.)

COURTS.

Queen's Bench

Common Pleas

Exchequer

22 Law Journal, N. S. Common Law.

Tenants in Common

1. Action of Account Apportionment of Rent Form of Pleadings - Reasonable Account. 2. Attorney and Solicitors. Striking off the Rolls— Suspension from Practising — Bill of Costs under 6 & 7 Vict, c. 73. s. 37., stating Name of the Court. 3. Authority to pay Money When revocable. 4. Bankruptcy Assignment of Chose in Action before Bankruptcy of Assignee Action in Bankrupt's own Name as Trustee after his Bankruptcy - What is a Fraudulent Transfer Act of Bankruptcy. 5. Charter. Construction of- Evidence of Usage. 6. Contract for exclusive Personal Service - Statute of Labourers - Action for procuring a Breach of Contract. 7. Contract, Mercantile - Construction Sale of Cargo not in existence Condition Precedent - Implied Warranty of Title. 8. Copyright — What is a Publication. 9. Costs Small Debts Act - Plea of Tender. Felon Convict Assignment of Property before Conviction. 11. Fences Damage to Cattle through defect of · Action when maintainable - Railway Company-When liable. 12. Insurance Condition Precedent. Judgment of Colonial Court, how impeached. 14. Justice of the Peace Action when maintainable under 11 & 12 Vict. c. 44, s. 2. - Mandamus to hear Information. 15. Landlord and Tenant- Quiet Enjoyment - What Agreement implied from Parol Demise. 16. Libel- Evidence of Publication What a sufficient Plea of Justification. 17. Municipal Corporation Act — Payment of Officers' Salaries. Construction of s. 92. 18. Parent and Child - When Parent liable for Child's Debts. 19. Pleading - Accord and Satisfaction-Want of Consideration Readiness and Willingness. 20.

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Practice Habeas Corpus ad subjiciendum — Attesting Witness - Admission of Deed by Party called as a Witness. 21. Right of Way- How affected by Non-use for Twenty Years. 22. Scire facias to repeal a Charter, when issuable. 23. Shipping - Liability of Shipowners for Goods consumed by Fire. 24. Trust Funds - Remedy to compel Application of.

1. BEER v. BEER. 12 C. B. 60.

Tenants in Common — Apportionment of Rent Form of

Pleadings Reasonable Account.

Thomas Beer and the defendant, tenants in common fee, made a lease with a general covenant on the part of the lessee to pay the rent without saying to whom, on Michaelmas and Lady Day. Thomas Beer died, and on the following Lady Day the tenant paid half a year's rent to the defendant. The plaintiff, the heir-at-law of Thomas Beer, received 12s. 6d. from the defendant, but he claimed 67. 5s., the amount of half a year's rent, and this was an action of account, to make the defendant account for that sum.

Held by the Court of Common Pleas that the defendant was accountable to the plaintiff for what he had received above his share of the rent, that the Statute of Apportionment (4 W. IV. c. 42.) does not apply as between the executor and heir of a tenant in fee: that, as the demise purported to be a joint demise, by tenants in common with a general reddendum, not specifying to whom the rent was payable, the rent followed the reversion, and on the death of A, the reversion was split, and the plaintiff became entitled to his share of the rent.

It was held also that the declaration, which was in the usual form, was good, without any allegation that, after a request to account, a reasonable time had elapsed before the action was brought.

This case is worth perusing, as it affords some practical information on the nature of the action of account, and lays down the law of apportionment under the 2 W. IV. c. 22., and the right to recover rent by the heir of a tenant in common on a joint demise, with a general reddendum. The subject of the revival of the old form of action of account as a concurrent remedy, with that by Bill in Chancery for an account, has undergone some discussion of late years. See "Law Review," vol. ix. p. 178. Mr. Justice Maule observed in the present case, "that the effect of the statute of Anne was to place the defendant in the ordinary situation of an accountant, the allegation of a request and refusal or neglect to account being sufficient to charge him." With re

66

gard to the statute 4 W. IV. c. 22., Mr. Justice Maule observed, apportionment cannot take place between the executor and the heir of a tenant in fee. It could not have been made at the Common Law, and it appears to me the general scope and object of the statute did not interfere with the operation of the Common 'Law." This view of the law accords with that of Browne v. Amyot, 3 Hare 173. s. c. With regard to the last point, Mr.. Justice Maule observes, "the cases cited for the proposition show that where an indenture or other instrument does in its terms necessarily import jointure, the covenantor binds himself to the covenantees jointly, and in the event of death, the joint nature of the covenant does not disable the survivor from suing alone, and, in some cases, persons may choose to have joint covenants, although they have several interests. Wetherall v. Langston.

But those are quite beside the cases where covenants have been held joint or several, to the interest of the covenantees or the context of the indenture, and to be construed according to the intention of the parties, as it is to be collected from the nature of their interests. To apply those principles to the present case, the instrument purports to be a joint demise, and the lessors demise a joint property, but the right of the rent arises out of the reddendum, which is general "yielding and paying" so much. The persons to whom the rent is to be paid being studiously left unnamed, it is to be paid by those who are by law the proper persons. In other words, the reddendum gives the rent to him who is entitled to the reversion.

This is a right of action arising out of the nature of the party's interest in the land, and is distinguishable from the cases where the rent is payable by personal covenants to particular persons.

2. IN RE SMITH. 1 E. & B. 414.—Cook v. GILLARD. 1E. & B. 26. Attorney and Solicitor Striking off the Rolls · Suspension from Practising Bill of Costs under 6 & 7 Vict. c. 73. s. 37., stating Name of the Court.

Mr. Smith had acted as a Master Extraordinary of the High Court of Chancery without having been duly appointed to the office. The Lord Chancellor had, upon notice of the fact, ordered Mr. Smith's name to be struck off the roll of that Court. A rule had been obtained in the Court of Queen's Bench for the same purpose, founded upon the Lord Chancellor's order, but was enlarged to give Mr. Smith time for explanation. The Lord Chancellor, upon Mr. Smith's explanation, reversed his former order, and ordered