child, who becaine a necessary party to a suit pending, the Court ordered him to furnish the name within ten days: Edgeworth v. Elgeworth, 3 L. R. N. S. 134. In a process for seduction both the father and mother were named as plaintiffs; this was held on appeal to be wrong: M Veigh v. Jones, 2 Cr. & Dix. C. C. 116. A convicted felon cannot bring a Civil Bill process: Kearney v. Hayes, 11 Ir. L. T. R. 146 (Purcell, C.C.J.). In Duncan v. Couch, Ir. P. C. 575, it was held that an infant might sue in the County Court by his next friend; but contra in Carr v. Magill, 3 Cr. & Dix C. C. 5, it was considered doubtful whether or not an infant can sue by prochain ami in the Civil Bill Court; and it was there decided that neither the infant nor the prochain ami could be examined as competent wit

nesses.

Partners should sue and be sued in the name of the firm. Where a civil bill in assumpsit to recover the price of a threshing machine was brought by one of two co-partners, the debt being due to the co-partnership, it was held on appeal that the non-joinder of the second partner was not a technical error within the meaning of 6 & 7 Wm. IV., c. 75, s. 35, and that the suit was defective for the want of the other partner as a party, and the decree of the Court below was reversed, without prejudice: Pilsworth v. Sheridan, 2 C. & D. 204. The Court will not entertain process for administration of assets at the instance of a creditor whose sole debt is for funeral expenses. Where admittedly the suit was instituted for the protection of the executor, who was embarrassed in the administration of the assets, the case was adjourned for the purpose of joining some other creditor (Lefroy, C.C.J): Hughes v. M Mahon, 12 Ir. L. T. R. 160. See, also, Ledwidge v. Lynch, 11 Eq. 254. Or. I., r. 7 (1877), provides for trustees and executors suing or sued in their representative capacityit is to be noted that the representation by trustees is only created quoad the trusts for which the estate is vested in them; and the rule does not apply where the trustees and the persons beneficially interested claim by different instruments: M'Dermott v. Caldwell, Ir. R. 10 Eq. 372. If relief be sought in an equity suit against several trustees, they must be all made parties; but not so if it be only sought against one trustee : Norris v. Wright, 14 Beav. 310.

A party in a cause may be his own attorney and witness: Cobbett v Hudson, 1 D. & B. 11. A party to a suit may be called by his adversary as a witness: Boyle v. Wiseman, 10 Ex. 647. Where it did not appear that the defendant had any case to be made or sustained by the testimony of the plaintiff, the judge refused to compel the plaintiff's attendance in person for the purpose of being examined: Harrison v. Loughnan, 3 C. & D. C. C. 16. A party to the record, if examined as a witness, may be entitled to his expenses if it appears that he is a necessary and material witness: Howes v. Barber, 18 Q. B. 588. It is a principle in equity that a witness as such shall not be made a party: Mulock v. Malone, Wall. Rep. by Tyne 5. Therefore, if a solicitor or other person, who is properly a witness and not chargeable with any part of the relief sought, is made a party to

the suit for the purpose only of charging him with costs, the bill will, as against him, be dismissed with costs: Barnes v. Addy, L. R. 9 Ch. Ap. 244, 255; Hutchins v. Hutchins, Ir. R. 10 Eq. 453. Where a person is arrested when attending the County Court as a witness or as a suitor, after he has been tried, acquitted, and discharged under a criminal charge, the proper course is to apply to the Court out of which the civil process has been issued, and the County Court Judge should discharge him: Rex v. M'Loughlin, Al. & Nap. 130. Thus where a detainer was lodged against a prisoner in custody on a criminal charge, which was abandoned, but previously to his discharge from custody, a detainer in a civil action was lodged with the sheriff, it was held that under such circumstances he was not privileged from detainer and arrest: Buckmaster v. Cox, 2 Ir. L. R. 101. See also Fullon v. M'Naghton, 2 Ir. Jur. 40; Callans v. Sherry, Al. & Nap. 126. Where a witness, two hours after he had left Court, was arrested about a mile off, in the direct road to his house, and also a defendant who had attended his cause in the morning, went to a tavern near the Court in the afternoon to dine with his attorney and witnesses, they were both held privileged from arrest: 2 Tay. on Evid. and In re Fitzgerald, Ir. C. C. 690. Where a party attends under a recognizance to answer a criminal charge, and is acquitted and discharged, he is privileged from arrest while going to and returning from the Court where he is so bound to attend: Callans v. Sherry, supra. A prosecutor is privileged from arrest while attending Quarter Sessions or Assizes, even after the bill in which he is interested has been ignored: Graves v. M'Carthy, C. & D. N. C. 127; Re M Kane, Ir. C. C, 65.

THE DEATH OF MR, EDWARD SHIRLEY
TREVOR.

Ir is with deep regret we announce the death of Mr. Edward Shirley Trevor of the Irish Chancery Bar, which took place on Saturday last after a few days' illness. He had been attending to his professional work in Court in the earlier part of the week, and the sudden news of his death has come as a painful shock upon many friends.

A Rugby man of the famous Rugby days when the great Dr. Arnold was the Head-Master, he subsequently graduated in the University of Dublin. He was called to the Irish Bar some fifty years ago. A glance at our several successive series of Chancery reports shows that, during nearly the whole of that period, the legal professions are indebted to his gifted pen and unsparing industry for many of the best reports of the important decisions of a long array of our most eminent equity judges viz., of Plunket, L.C.; Sugden, L.C.; Î. B. C. Smith, M.R.; J. E. Walsh, M.R.; Sir E. Sullivan, MR.; and of the present Master of the Rolls. His last appearance at his post in the Rolls Court preceded his death by but a few days.

In 1844 he published, in conjunction with Mr. John S. Armstrong (an Irish barrister, who afterwards joined the Australian Bar), a report of the then recent trial of Daniel O'Connell, C. Gavan Duffy, John Gray, and others, for conspiracy, together with reports of the arguments and judgments on the preliminary motions connected therewith-a work of much interest and value. It is, however, in connection with his equity

practice, and more particularly as a reporter in our Equity Courts, that he is best known to us; for in those quiet walks of his profession most of his useful life was passed.

So early as the first volumes of the "Legal Reporter," which commenced in Michaelmas Term, 1840, he was a reporter in the Court of Chancery; subsequently, about 1844, he became associated with Mr. John Edward Walsh (afterwards Attorney-General for Ireland and Master of the Rolls) as reporter in that Court for the "Irish Equity Reports" (vol. 6); but after four years in that Court he exchanged places with Mr. John Francis Waller, at that time the reporter for the same periodical in the Rolls Court (vol. 10). From that period till now he has continued to be the chief reporter in the Rolls Court, contributing his reports to the Irish Equity Reports, the Irish Chancery Reports, and to the several series of reports published by the Irish Council of Law Reporting, in unbroken succession. Add to this, that during the first four years of the IRISH LAW TIMES, he was a frequent and valued contributor to our own pages, of Rolls Court decisions.

It will be thus seen that he has done more valuable legal reporting work, and work extending over a longer period, than any other Irish or, we believe, English barrister has done before. The outcome of his work will last and be valued so long as Irish legal reports are read. We shall, however, long miss his familiar figure and friendly, honest, face, and cherish the memory of the manliness and kind-heartedness that lay beneath.

THE PARNELL COMMISSION REPORT. The Report of the Special Commission is now issued, but we dare not discuss it. Politics are forbidden in these pages, and although in certain aspects the matter is not political, it so closely touches keen political controversy that we had better abstain from all appearance of evil, and say nothing about it. The country has got the verdict, but the puzzle is, How to apply it? Shall it be entered for the pursuers or for the defenders? As at Mars la Tour, both combatants claim the victory, aud the only thing about which there is unanimity is that there have been enormous losses on both sides. A satisfactory feature from the lawyer's point of view is that nobody comes so well out of the matter as do the judges. All unite in praising their impartiality; and those who abused Sir James Hannen and his colleagues as picked partisans, must, we think, now feel somewhat ash-but there! we had almost put our foot in it. -Journal of Jurisprudence.

THE ABOLITION OF ADVOCATES. With reference to the proposal for the "abolition of advocates," M. Maurice Faure explains that he merely wants to obtain the right for everybody to plead his cause before the Civil and Criminal Courts, whether he be a legal practitioner or not. This principle, M. Faure contends, was admitted by the Revolution, but Napoleon the First, for autocratic and political purposes, established the Order of Advocates of the old régime. M. Faure does not want to do away with this ancient, honourable, and learned body, but simply to enable and empower every man to become his own lawyer. At the present time a prisoner going before the Assize-Court is free to select a layman as his defender, but M. Faure points out that this privilege is only tolerated and not established. He intends to aim more at the agréés, or "barrister-solicitors," rather than at the avocats, or barristers pure and simple." The agréé is allowed to draft briefs, get up cases, and plead before the Tribunal of Commerce, and thus reaps the double profits of the aroué, or "solicitor," and the advocate. M. Faure, however, cannot help admitting that the establishment of the privilege for every citizen to do his own pleading would lead to abuses in Paris and the large towns. A

race of pettifoggers and sham lawyers, thinking of nothing but "bleeding" their clients, would spring up. This would not happen in the country, and in any case people would always act as they do now, that is to sav, they would entrust their cases to known and hononra le men of the legal profession. The "double-barrelled" jurists who enter into competition with the avocats are therefore those with whom M. Faure intends principally to deal. It is intelligible enough that he may be able to damage the position of the agréés, but his project for giving everybody a right to plead would, if passedwhich is hardly probable-take a long time before it grew in favour with the litigants of the commercial clas at least.

CONVICT EXHIBITIONS.

Barnum has gone, or is about to go, and the "Greatest Show on Earth," with its human monstrosities and its fine shed of elephants, soon leaves our shores, at all events for a time. A report, however, which comes by telegraph from across the Atlantic will serve to keep the British public in mind that America is still the place for the successful organising of new and startling exhibitions, of the character which is usually described as "whipping creation." The rumour to which we allude is of such an inherently remarkable nature that it may be permissible to doubt its authenticity until indubitable proofs of its correctness are furnished. If the tale is true, American justice has discovered a perfectly novel method of making convicts pay for their keep. Possibly the particulars of the late trial of the murderers of Dr. Cronin, of Chicago, are yet fresh in the public memory; it will be recollected how the ring. leaders somehow or other escaped the death penalty, and how a man called Kunze was held to be a les guilty participator in the tragedy. In Kunze's case an appeal has been allowed, and those best acquainted with American criminal procedure will be able to estimate how many additional chances have thus been given to this particular prisoner of escaping punishment altogether. Naturally enough, Mr. Kunze desired, while awaiting his new trial, to be let out on bail. In the case of a man originally accused of murder the request is a little audacious; but this is not the most peculiar feature of the story. American justice required of Kunze the sum of a thousand pounds before he could be liberated; and, as that sum was not forthcoming out of any resources possessed by either Kunze or his friends, it is stated that the man is to be allowed to make it up by exhibiting himself at a museum, for entrance to which the modest fee of a dime or the tenth of a dollar will be exacted. In other words, the prisoner, convicted by a jury of having taken part in the proceedings leading to Dr. Crouin's murder, pays the court the sum of one thousand pounds, and, for a time at all events, is a free man. There is a certain amount of humour about this new development of criminal procedure. It somewhat resembles the ancient Celtic law which prescribed a money fine as the penalty for a murder." On the other hand, it is distinctively modern in its attempt to turn even convicts to some utilitarian purpose. The question of what can be done with society's "failures" is a difficult one in every civilised country; for, if they are transported, distant lands have ceased to bail them with rapture, and, if retained at home and taught to work, they undersell honest labour. The burden of their maintenance generally falls on the taxpayer; but, if the American museum plan turns out a success, it is possible that in the future convicts, as well as prisoners awaiting trial, will be made entirely self-supporting. All that has to be done is to allow them to accept an engagement for so many nights at some place of popular entertainment, for a stipulated sum. The money so received forms a valuable nucleus out of which most of the charges involved in detaining the criminal cau be disbursed. This is a fresh example of the modern science of "the utilisation of waste products."

When the system is set fairly on fo t it will be interesting to have some record of the class of persons who

are willing to pay a "dime" to see a notorions criminal. It is abundantly certain that, if it had been possible to exhibit the late Mr. Peace in the heyday of his fame on some Metropolitan stage, the attraction would bave drawn crowded if not enthusiastic audiences. The same may be said if Lefroy, or Dr. Lamson, or any other noted murderer could have been induced to exhibit himself for the delectation of a horror-stricken moh. It is difficult, however, to see exactly what performance any such individual might be expected to go through when he did actually appear before the footlights--perhaps he might go through a mock execution. Only in rare cases does a criminal happen also to be a master of the conjuring art, or a skilful gymnast, or a performer on the filving trapeze, though he would be delighted to do the "vanishing gentleman "if permitted. It would never do to ask him to make speeches, for there would be no telling beforehand what he might say, or how audiences would take his oratory. In the case of men convicted of some piece of unlawful manual cleverness it would no doubt be attractive to let the culprit show exactly how he accomplished the act for which he is in gaol. Thus the forger might give his hearers an object lesson in the imitation of hand. writings, and the pickpocket could spend an hour or so in extracting the silk handkerchief or purse from a dummy in full view of the audience. Even these performances would have a tendency after a time to pall on the public taste, to say nothing of the fact that it would be impossible to keep the criminal performer up to the mark. What would he gain by exhibiting himself or his skill? The gain would be to the authorities who would pocket his salary. Obviously, if the method were tried at all, it wonld be necessary to give the convict a share in the proceeds, or some inducement to do bis best on the stage. For example, he might earn a remission of one day of his sentence by each night of his performance. Kunze, it will be seen, has the very strong motive for making himself an attraction to sightseers of being promised his freedom on bail if he accumulates the thousand pounds. Otherwise, the only safe plan would be to keep the prisoner in a cage, and exbibit him as if he were some wild animal in a Zoological Garden. The police already have museums, but hitherto the idea of adding the prisoners to the collection has not occurred to anybody. At Scotland-vard, we believe, may be seen the poisonous capsules of Dr. Lam. son, Peace's ladder, and other curiosities In the future we may get quite accustomed to announcements such as "The learned magistrate sentenced the prisoner to Pix months' hard labour, and twenty-one nights' exhibition of himself at the music-halls at the end of his time in order to recoup his prison expenses."

There are, of course, other difficulties in the way of the new departure which America has introduced, but in the noble cause of gaining or saving money for the Imperial revenue difficulties only exist in order to be overcome. Probably Kunze is not a convict of the objectionable type which smashes up furniture in its cell and bores holes in police-vans on the way to gaol. We have always to recollect that the first thought of most gaol-birds relates to the possibility of a successful escape from justice. Once secure in great establishments like Portland or the Princetown Gaol on Dartmoor, they probably, in the majority of instances, abandon the hope of being able to effect an unperceived exit. Yet even in convict prisous such events have been heard of as a spirited attempt, rarely if ever successful, of some individual prisoner, or sometimes a batch of prisoners, to break away. Opportunities occur during exercise in the open air, during the tasks of building piers or harbours, or cultivating the fields, or whatever other manual labour the gangs are put to. Sudden sea mists colue up and envelop convicts and warders alike; then a peculiarly hardy criminal may take it into his head to run for it, cbancing the prospect of death at the hands of the warder with his loaded carbine. The difficulties in the way of escape would, however, be reduced to a very appreciable extent were the convict museum s stem to come into general vogue. How, for example, would it be possible

to allow a prisoner such as Mr. Whittam, of Lambeth, supposing that he were convicted of the crime for which be is now kept in durance, to exhibit himself at a Lou don music-hall nightly? Not only chances of escape would be multiplied, but opportunities for obliging friends to organise a rescue party would abound. On some night the management of the place of entertain ment would be highly gratified to find every seat in the body of the hall and in the galleries filled; but on further examination it would certainly seem to be a little odd that the audience contained so many speci. mens of the undiluted London rough, and such a very great scarcity of the female element. The explanation would be furnished when the performing convict came upon the stage attended, we may suppose, by at least a couple of warders. Before the criminal could be put through one of his performauces, pit and gallery and every part of the "house" would "rise" at the convict, make a sudden rush for the stage, overpower the warders, turn out the lights, and be off with their prize into the slums of London in a twinkling. In fact, the system would be found impracticable without such precautions being exercised as would go a long way to eat up all profits which the exhibition of the convict might be expected to produce. We add nothing on the subject of the possible moral deterioration among audiences which the method might occasion, because, if financi ally unsound, it has very little chance of being tried at all. But it would be strange indeed if, after abolishing public executions and processions to Tyburn, we were to inaugurate an era of convict hero-worship, where a noted and desperate burglar would be the cynosure of thousands of admiring eyes, and where he would be ex. pected to go the round of the music-balls each evening, like the most celebrated "lion comique of the period. There would be something piquant, no doubt, in seeing bouquets thrown to a handcuffed gaol-bird arrayed in the broad-arrow "suiting"; but piquancy and picturesqueness would be the sole merits of such an exbibition.-Daily Telegraph.

JUDICIAL APPOINTMENTS.

66

Experience teaches that no prophecies are more often falsified than those which pretend to forecast the success or failure of a judicial career. It would be easy to point to cases in which selections condemned at the time have been by the event proved to be wise. It would be equally easy to point to more than one case in which the judge, to use the words of Tacitus, was consensu omnium capax imperii nisi imperâsset." The fact is, that so many qualities go to make a good judge, it is not enough for a man to be a learned lawyer or a powerful advocate. He may be either or both of these without having the virtues of good temper, patience, discretion, fairness of mind, knowledge of the world, and industry-all of which are most desirable in a judge. Law Journal.

NEW ZEALAND AND THE FIRST OFFENDERS' PROBATION ACT.

New Zealand has followed the example of Massachusetts in passing an Act for the conditional liberty of first offenders, as a means of obviating imprisonment for minor breaches of the law. This Act came into operation in October, 1886, so that the colony anticipated, by about a year, the similar legislation adopted in Great Britain. Au official return has been published of the results of this measure in New Zealand during the year 1886-7, by which it appears that in that period 121 persous were placed under "probation" in lieu of imprisonment. Of these 58 had been already liberated from any further supervision, having satisfied all the conditions imposed upon them; 53 were still undergoing supervision at the date of the collection of local returns on this subject, and nine bad failed to satisfy such conditions. One only bad succeeded in withdrawing himself from oversight. The expenses involved by this system are stated to have been about one-tenth of the

amount which the infliction of imprisonment would probably have cost the colony. The probation officers have proved efficient in the performance of their duties and have received the willing co-operation of the police. Of the 101 persons thus granted conditional liberty, 44 were youths between the ages of 15 and 20, 16 were children under 15 years of age, the ages of 18 ranged from 20 to 30, and those of 24 from 30 to 60 years. Only One person of older age was "probated." Queensland bas passed a similar Act, and New South Wales and Victoria appear likely to follow in the same direction.

THE POSITION OF PECUNIARY LEGACIES IN THE ADMINISTRATION OF ASSETS. "What contradictions, what changes of mind, what vexation and expense bave arisen in relation to the law of assets! Nearly every point has been decided both ways, and between the Legislature and the lawyers what is its present state? A matted heap of complications. Can it not be simplified? We see a distinction pretty plainly drawn after long contest and confusion between legal and equitable assets. But why this distinction? If equality be not equity, why is equality ever enforced? But if equality be equity, why is the law ever inequitable? Why? No answer can be given. We can show how it became to be so, and that is all," Our attention has been recalled to the above most just remarks of the late Mr. Joshua Williams, which will be found pp. 120 and 121 of his Valuable little treatise on Real Assets, by a case of Re Bate; Bate v. Bate, decided by Mr. Justice Kay on the 16th ult., and as yet only briefly reported in the Weekly Notes of the 1st inst. The facts were simple enough. A testator, after directing his debts and funeral expenses to be paid, made specific devises and gave pecuniary legacies, and on his death the personalty was inadequate to the payment of debts and funeral expenses without trenching on the legacies.

The question was, whether the personalty should be exhausted before the real estate devised was resorted to. Mr. Justice Kay, in spite of a somewhat misleading statement in Seton on Decrees, pp. 989. 990, 4th edit., and which is also to he found in 2 Jarm. Wills, 622, 4th edit., and other text-books, that lands devised subject to a charge of debts are to be applied before pecuniary legacies, held that the personal estate must be exhausted before the devised lands, which the learned judge held to have been charged by the general direction for payment of debts and funeral expenses, could he resorted to. This is of course unimpeachable; and it is equally clear that it is a mistake to include, in a list specifying the various entities applicable as assets for payment of debts and the order of their applica tion, pecuniary legacies which are for the purposes of administration not assets or entities at all, but mere claims upon the estate subordinate to debts. It is only in the event of a case of marshalling arising in their favour that pecuniary legatees, disappointed through creditors having been satisfied out of the personal estate, have a right to stand in the place of such satisfied creditors against land devised for payment of debts, or land descended, or land devised subject to debts.

Obviously, executors could not defend themselves from a creditor's claim by alleging that pecuniary lega. tees would ultimately be eu titled to marshal against the real estate. It seems equally clear that the real estate having been charged by the testator with debts, the pecuniary legatees would be entitled to have the assets marshalled as against the devisees of the land. In principle both these points were the subject of decision by the Court of Appeal in Paterson v. Scott (1 De G. M. & G. 531), a case the due consideration of which, and of the authorities there cited with the more recent cases of Rickard v. Barrett (3 K. & Johnson, 289), and Surtees v. Parkin (19 Beav. 406), would probably have kept Bate v. Bate out of the court. It seems to be the better opinion that the right of a pecuniary legatee to marshal the assets does not necessarily depend ou the testator

having expressly charged his real estate with debts, but exists independently from the effect of the 3 & 4 Will. 4, o. 104, which makes real estate liable to simple contract debts, and so gives the creditor a double fund to resort to. See remarks of Sir J. Knight-Bruce, L.J., in Paterson v. Scott (ubi sup).

The law which at present regulates the rights of a pecuniary legatee as against the real representative of a deceased person cannot be regarded as satisfactory. The law should give effect to the presumable intention of a testator. Can it be doubted that, where a testator gives pecuniary legacies, and makes no dis position of the real estate, he intends the legacies to be paid, after his debts and funeral and testamentary expenses, out of the personal estate (if any) not speci fically disposed of, but, in so far as his personal estate may be deficient, out of real estate as to which he has expressed no testamentary wishes?

In such a case a pecuniary legatee has, as we conceive, no legal claim as against the heir-at-law, and the legacy must abate or fail altogether unless the peca. niary legatee can invoke the doctrine of marshalling in bis favour so as to stand in the place of some creditor or other claimant on the real estate of the testator, in which case and by which means, as we have previously shown, the legatee's claim may prevail not only as against land descended to the heir, but even as against land devised, where the testator has expressly or by implication charged his real estate with his debts, and probably also by the operation of the 3 & 4 Will. 4, 0. 104, where he has not done so.

LIEN FOR MONEYS ADVANCED TO KEEP UP LIFE POLICIES.

Two recent cases, Re Earl of Winchelsea's Policy Trusts L. R. 39 Chanc. Div. 168, before Mr. Justice North, and Strutt v. Tippett, before the Court of Appeal on January 30, show how dangerous it is for a stranger to advance moneys for keeping up a life-policy in the expectation of obtaining a lien there ou for his advance, unless it is made upon the request (express or implied) of the beneficial owner of the policy.

In re Leslie; Leslie v. French, L. R. 23 Chanc. Div. 552, in a judgment of Lord Justice Fry (written after he had been appointed a Lord Justice of Appeal, but which Mr. Justice Pearson adopted as his own), it is said, page 560: "In my opinion a lien may be created upon the moneys secured by a policy by payment of premiums in the following cases: First, by contract with a beneficial owner of the policy; secondly, by reason of the right of trustees to an indemnity out of their trust property for money expended by them in its preservation; thirdly, by subrogation to this right of trustees of some person who may at their request have advanced money for the preservation of the property; fourthly, by reason of the right vested in mortgagees or other persons having a charge upon the policy to add to their charge any moneys which have been paid by them to preserve the property." In The Earl of Winchelsea's Policy Trusts, L. R. 39 Chanc. Div. 172, Mr. Justice North observed: "The principles enunciated by Lord Justice Fry in Re Leslie were in substance adopted by the Court of Appeal in Falcke v. The Scottish Imperial Insurance Company, L. R. 34 Chauc. Div. 234, and I think the Court in tended to lay down exhaustively all the cases in which a person not the sole beneficial owner of a policy, who pays a premium in respect of it, is entitled to a lien upon the proceeds of the policy for the amount which he has paid." But in Strutt v. Tippett, although the Court held that the strauger who had there paid

premiums had not any lien (a decision which seems to have beeen founded mainly on a special agreement), it would seem that Lord Justice Lindley was of opinion that the list of cases in Re Leslie in which a lien could be obtained was not necessarily exhaustive.

In The Earl of Winchelsea's Case policies on his life (and apparently in his name) were assigned by way of mortgage, the equity of redemption being reserved to the earl. A term in real estate was vested in trustees in trust, among other matters, out of the income, to keep down the interest and the premiums on the policies. The earl became bankrupt and some time afterwards died. Meanwhile, the rents being insuffi. cient to provide for payment of a premium, the trustee of the term had advanced the requisite amount to save the policy from lapse. It did not appear that this advance was made at the request either of the mortgagees or of the trustee in bankruptcy (it is not stated whether it was made with the knowledge of the latter). The trustee of the term claimed the application of a fund in Court, representing the balance of the policy moneys which remained after satisfying the mortgage, towards repayment of the premium. Mr. Justice North held that the case was not within the second rule in Re Leslie. The trustee of the term had no trust and no duty in respect of the policy moneys." And the trustee in bankruptcy was declared entitled to the fund.

It would seem that notice of an intended payment of a premium might be important, as in West v. Reid, 2 Hare, 249, where, the mortgage of a policy being con. tested by the assignees in bankruptcy of the mortgagor, the solicitors of the mortgagees offered to pay a premium then coming due, if authorised to do so by the assignees; they, however, declined to interfere The premiums were, in fact, paid by the mortgagees till the life dropped, and it was held that the mortgagees, though not entitled to the policy itself, had a lien for the premiums so paid, with interest. Lord Justice Cotton (L. R. 34 Chanc. Div. 244), referring to the case, thinks "it might well be held that there were circum. stances from which the law would imply a request or a contract to pay these premiums if the policy ultimately turned out to belong to the assignees and not to the party making the payment"; and Lord Justice Bowen observes (p. 249): "Wherever you find that the owner of the property saved knew of the service being performed, you will have to ask yourself (and the question will become one of fact) whether under all the circumstances there was either what the law calls an implied contract for repayment or a contract which would give rise to a lien." Lord Justice Fry, in Re Leslie, L. R. 23 Chanc. Div. 561, refers to the law relating to "confusion:" "If I pour my gold into your heap, or put my silver into your melting-pot, or turn my corn iuto that in your granary, I have no right to an account or any relief against you;" but in Colwill v. Reeves, 2 Campbell 576, Lord Ellenborough assigns as a reason, because "it is impossible to distinguish what was mine from what was yours;" but such a reason seems in. applicable to a premium, where the amount must be known. And according to 2 Blackstone 405 (Kerr's ed. vol. ii. p. 358), "if the mixture be by consent, both proprietors have, according to the English as well as the civil law, an interest in common in proportion to their respective shares."

As Lord Justice Cotton observes, L. R. 34 Chanc. Div. 241, a man who "does work upon a house without request gets no lien on the house for the work done." But in that case the house remains in existence, and to give such a lien would be to allow the stranger "to improve the owner out of his property." As to a policy, however, unless the premium is paid, the policy drops, and it would seem to be on this ground that claims for "salvage" have been urged. "It is said to be contrary to natural equity that one person should gain by another man's loss" (L. R. 23 Chanc. Div. 562), and possibly the maxim, "Qui sentit commodum sentire debet et onus' may give one reason why the question of lien has been so often mooted. Lord Justice Fry, L. R. 34 Chanc, Div. 254 (like Vice-Chancellor Kindersley in Aylwin v.

Witty, 30 Law J. Rep. Chanc. 860), doubts whether the term salvage cau with propriety be applied to cases of this description. At all events, a person entitled to an interest in an equity of redemption cannot claim a lien for payment of premiums as against his mortgagee (Falcke v. The Scottish Imperial Insurance Company, L. R. 34 Chane. Div. 243), for "it would be strange indeed if a mortgagor, expending money on the mortgaged property, could establish a charge in respect of that expenditure in priority to the mortgage "—compare Otter v. Lord Vaux, 6 D. M. G. 638.-Law Journal.

NOTES OF ENGLISH CASES. [From the Law Journal.]

SUPREME COURT OF JUDICATURE.
COURT OF APPEAL.

(Before LORD COLERIDGE, C.J.. LORD ESHER, M.R., and FRY, L.J.)

COLES V. VIBART.

Feb. 13.-Creditor's action-Executor and administrator_ Simple contract debt-Payment of one creditor after action commenced by another creditor—Conflict of rules of law and equity.

Appeal from a judgment of Bowen, L.J., at the trial without a jury.

This was an action brought by the plaintiff for money lent against the administratrix of the deceased debtor. After the present action was brought another creditor brought an action in respect of a simple contract debt against the defendant as administratrix, in which she consented to judgment, but the judgment was not filed as required by the Debtors Act, 1869 (32 & 33 Vict. c. 62), s. 27. The defendant paid the amount recovered under that judgment, and then relied on a plea of plene administravit as a defence to the present action.

Bowen, L.J., gave judgment for the defendant.
Jelf, Q.C., and H. Tindal Atkinson for the plaintiff.
Finlay, Q.C., and Forman for the defendant.

Their LORDSHIPS dismissed the appeal, being of opinion that, although the judgment in the second action was void by reason of its not having been filed, yet as there was a conflict between the rules of common law and equity, the rule of equity laid down in In re Radcliffe ; The European Assurance Society v. Radcliffe, L. R. 7 Chanc. Div. 733, must prevail-uamely, that where an executor or administrator, after the commencement of a creditor's action and before judgment, has voluntarily paid any creditor in full, he will be held to have made a good payment.

CHANCERY DIVISION.

(Before NORTH, J.)

Appeal dismissed.

A testator, by his will dated March 21, 1874, gave the residue of his real and personal estate to trustees upon trust to convert and to invest the proceeds and pay the income thereof to his sister, Mary Wormald, for her life for her separate use without power of anticipation, and after the decease of his said sister, or "on her anticipating" the same income, the trustees were to stand possessed of the trust property upon trust for her children in equal shares.

The testator died on March 24, 1874. His sister, Mary Wormald, whose real naine was Mary Elizabeth Mozeen, was, at the date of his death, the wife of William Muzeen, to whom she was married in 1867. There was one child only of this marriage--namely, a SOD, G. E. B. Muzeen-who was born in 1868,