conveyed to D., and C. joined in the conveyance as a releasing party! D. has since sold his estate, and the purchaser now refuses to complete in consequence of B.'s having conveyed to D. instead of C. Can a specific performance be enforced?

N. L.

No. 14.-Legacies-Deficiency of undisposed of personalty.

A. B., by his will, dated 9th June, 1848, made the following disposition:"I give and bequeath unto C. D. all my freehold and chattel property upon trust for the following purposes; firstly, that he suffer my wife to take and have for her own use and maintenance the rents and uses thereof for the term of her natural life, and after her decease and after all my just debts and testamentary expenses are liquidated, then I give and bequeath all that my dwelling house where I now live, and the garden and orchard belonging thereto, unto my nephew E. F., to him and to his heirs for ever. I give and bequeath unto my nieces G. H. and J. J. my orchard called Withey Trees, to be held by them (share and share alike) and their heirs for ever. I give and bequeath to each of the three children of William W., viz., F., S., and L., the sum of five pounds, together with any interest which may accumulate thereon after my wife's death, to be paid to them on their respectively attaining the age of twenty-one years," and then appointed the said C. D. executor. The cottage,

&c., and also the Withey orchard are both long leasehold. The widow has lately died, and the executor has converted the furniture into money, which only realised between £4 and £5. The funeral expenses of the testator were about that amount, which, I apprehend, the executor was justified in paying out of the proceeds of the sale of the furniture, &c. There was a charge of about £20 on the property. There being no fund out of which to pay the three legacies of £5 each, have the legatees any claim on the leasehold property given to the nephew and nieces? And had the proceeds of the furniture, &c., realised been more than sufficient to pay the funeral expenses, would not the three pecuniary legatees have had the first claim? as the " just debts and testamentary expenses" were, I apprehend, a charge on the leaseholds.

ANSWERS TO MOOT POINTS.

No. 177.-Mortgagee's Title-Quietus-Specific Performance (vol. v.. p.).

I am of opinion that it is a valid reason for non-completion, be

cause, primd facie, the estate is vested in the Crown, and the vendor is bound to get a quietus entered, and, until that incumbrance is satisfied, there can be no legal estate conveyed.

The practice to get a quietus is to send a statement of facts in the form of a petition to the Attorney-General, and pay him a fee of £10. 10s., upon which he gives an authority for the judgment office to enter a quietus. G. G. NORRIS.

No. 123.-Set-off (vol. v., pp. 572, 641, 643, 699).

Cary v. Webster, Str. 480; Cox v. Prentice, 3 Maule and Selw. 344 and Buller v. Harrison, Cowp. 565, cited by Mr. Cordes, at page 699, are cases where money was paid to the agents by mistake, or where the money was paid to the agents under such circumstances that the party paying it might recover it back from them.

In the case mooted by Mr. Richards there can be no doubt but that the tenants paying the rent to A. knew that he was clerk to the attorney, and that the attorney was the only proper party, as the agent authorised by B., to receive their rents.

It is stated in Brown v. Husband (4 Barn. and Ad. 611), that an action cannot be maintained by the party paying the money "against a clerk or an attorney who, without paying it over, received it expressly under the authority, and for and in the name of his employer." Again, the receipt of the clerk, if one were given, would undoubtedly be signed by him on behalf of his master, and this would be tanta mount to naming his principal. In ex parte Hartop (12 Ves. jun 352) it was decided " that an agent is not responsible, if he names his principals as the person to be responsible." I, therefore, conclude that A. would not be liable in any action that might be brought by the tenants to refund the amount received from them.

Restricting myself to the point at issue, whether B. be entitled to recover from A., I would remark that in the case mooted, it does not appear B. authorised A. to receive any rents for him; indeed, B. may not have been aware of the existence of such a person as A. A. receives the rent for his employer (the attorney), who was the agent of B., and it is laid down in Cartwright v. Hately (1 Ves. jun. 292) that an inferior agent is only accountable to his immediate employer, and not to the principal." Indeed, it is an established rule that a master is liable for the acts of his agents or sub-agents, however remote, provided the act be done in the course of their employ, and it he not a wilful tort (6 T. R. 411; see 1 B. and P. 404; 4 M. and S. 27).

46

The relation of principal and agent can (I apprehend) only take place where one person authorises another to do acts or make engagements in his name; I must, therefore, confess I see no connection between A. and B., so as to make A. responsible to B.

I have been at some trouble in endeavouring to find a case analogous to the case mooted, where the point at issue bore a resemblance to the point in discussion, and where the decision would lead me to a different conclusion from that I before expressed at page 641, but I have been hitherto unsuccessful, and I therefore must adhere to my former opinion that A. would only be accountable to his master, and that B. could have no remedy but against the attorney.

A. H. OWEN.

No. 178.-Stamp-Receipt in full (vol. v., p. 707).

In schedule 1 to 55 George III. c. 184, I find the following:"And where any sum of money whatever shall be therein expressed or acknowledged to be received in full of all demands, 10s.”

I cannot find in the late stamp act (16 & 17 Vic. c. 59) any words that repeal this, and therefore I think a penny stamp would not be sufficient. JUNIUS (Huddersfield).

No. 164.-Marriage of Feme Sole Trustee-Breach of Trust-Liability of Husband (vol. v. p. 692).

By the death of the wife the suit abates, and supposing no bill had been filed or other proceedings taken during the wife's lifetime, the husband would not have been liable after her decease.

G. G. N. (Nottingham),

No. 146. Statute of Limitations (vol. v. p. 636).

I think that an advertisement in the public papers as in this case does not take a debt out of the statute. As I view the case A. B. acknowledges no particular debt. The party here claiming is in the same position as to his account as if he never had an account against A. B. The latter advertises for his creditors to send in their accounts, and his answer to this claimant would be that he owed him nothing. As to what is a sufficient writing to rebut the statute of limitations see Spong v. Wright, 9 Mee. and W. 629; Cripps v. Davis, 12 Mee. and W. 159; Hart v. Prendergast, 14 Mee. and W. 741; Walter v. Lacy, 1. Man. and Gr. 54; Bayley v. Ashton, 12 Ad. and El. 493; Gardner v. M'Mahon, 3 Q. B. 561. LECHLANAR.

No. 166.-Power to raise Money-Lapse (vol. v., p. 693).

If A.'s will bears a date in or subsequent to the year 1838, which, as no date is mentioned in the question, I will assume to be the case, B. took an estate in fee in the land subject to a power vested in the trustees to raise £1,000 by mortgage or otherwise. Suppose that the power was exercised by the trustees by a mortgage in their names, they would have a legal estate in the money raised upon trust

to pay over the interest to C. for his life, and after his death to his issue for ever. C., therefore, had an equitable interest in the money for his life, and his issue (if he had had any) would have taken an absolute interest, also equitable in the £1,000, on the death of their ancestor. If the property in question had been realty, C. would undoubtedly have been entitled to an estate tail therein; and it is a rule that where personalty is limited in words, which, if applied to realty, would confer upon the taker an estate tail, the devisee of such personalty shall take an absolute interest therein (Chandless v. Price, 3 Ves. 99; At. Gen. v. Bright, 2 Keen 57). Applying this rule to the present case C. takes an absolute equitable interest in the £1,000, which on his death would devolve upon his executors, unaffected by the circumstance that he died leaving no issue. As, in my opinion, no lapse occurred, it is unnecessary to discuss the point as to what would have become of the money raised in the event of a lapse. W. T. P.

No. 170.-Devise of Trust Estates (vol. v., p. 624).

There can be no possible doubt upon this point, but in order to satisfy the mooter I quote from the judgment of V. C. Shadwell in Lindsell v. Thacker a passage which may never have been brought under his notice:"I take the rule to be as laid down in Lord Braybrooke v. Inskip, namely, that a trust estate will pass by general words in a will unless it can be collected either from the expressions in the will or from the purposes or objects of the testator that he did not mean that the legal estate should pass; as, for instance, where the devise is to a trustee in trust to sell and receive the proceeds, or where the estates are given to one for life with remainder There the object of the devise in the one case and the mode of limitation in the other are inconsistent with the intention to pass a dry legal estate (12 Sim. 162). W. T. P.

over.

No. 162.-Accidental Injury—Woman run over by Dog-cart (vol. v.,

N.S. 692).

I agree with the mooter that the woman has no remedy against the driver, because he was doing a lawful act without negligence. Aston v. Heaven is a somewhat similar case; there a coach was upset by the horses taking fright, and it was holden that there being no negligence the injured passengers could not recover (2 Esp. N. P. C. 533).

E. J. H.

WORKS FOR LAW STUDENTS.

We are sorry to be compelled to announce that no material progress has been made towards the commencement of the LAW STUDENTS' LIBRARY, the plan of which was sketched in the last number (p. 11—13). The only obstacle is the want of subscribers, for, strange as it may appear, it is yet true that we have received as yet but comparatively few orders for the work. We are sorry for this, as, believing the plan to be a very excellent one, we are anxious to make a commencement, but prudence prevents our doing so under present circumstances. We have little doubt that eventually the work will be commenced, and that makes it the more annoying, for it is evident to us that many are keeping back in order to see if the work will be really brought out. These persons are certainly taking effectual steps to realise their doubts, and yet we have so much faith in the undertaking that we feel they are only delaying its commencement, and not defeating it altogether. We speak in this frank manner because our experience of articled clerks enables us to form a pretty accurate opinion of them as a body: had we not such experience we should certainly despair of ever establishing the "LIBRARY."

་་

We ought in fairness to mention that some of our subscribers have objected to the works chosen, on the ground that they are too difficult and abstruse for students. We give these gentlemen full credit for the good intentions, which, as they state, and we do not doubt, actuated them in making this objection, and we feel, indeed, greatly indebted to them for the trouble they have taken. We think there may be something in the names of Littleton and Coke suggestive to the student of exceeding abstruseness, and it must be admitted that their works do require some care and diligence in their perusal in order to be understood, and that much obsolete and even irrelevant matter is to be found therein. But then we thought we had pretty clearly announced our intention not to load our volumes with this undesirable matter, and that being done, we should conceive that the remaining matter would be found not too difficult even for the youngest student, who must prepare himself for difficulties at some period of his career, and which it certainly is desirable he should overcome as early as possible. Having done this, all his subsequent reading will be comparatively easy; without it he will be always groping in the dark.

With respect to the choice of the works, we may observe that there can be no doubt as to their utility. Of Littleton, Ch. Just. Montague is reported to have said: The Tenures contain the most true and sure register of the foundations and principles of our law."

66