the non-prerogative Writ of Mandamus is of very recent introduction, owing its origin to the C. L. P. Act, 1854; it is not very frequently applied for in consequence of the narrow construction put by the Courts on the provisions of the statute as to the kind of duty the performance of which is to be thereby enforced. (F. Bk. 257, 261; Com. Law Pract. pp. 306-308; see explanation in 3 Exam. Chron. 234). As to No. XII. (p. 133), it may be remarked that, in consequence of the difficulties attendant upon the making of a valid tender, it is not prudent to rely on it, but rather to plead payment of the money into Court (for, even on the plea of tender, the money must be paid into Court), and so prevent any failure on merely technical objections to the sufficiency of a tender (see further 2 Exam. Chron. 22, 77; Com. Law Pract. 1, 3, 135). As to No. XIII. (p. 133), let the reader bear in mind that arrests, though more usually had recourse to where a debt is sought to be recovered, is by no means confined to such a demand; for even in cases of unliquidated demands, such as for damages, an order for arrest may be applied for. The two chief things to be attended to in any application for a capias are-1, a claim to the extent of £20; 2, probable ground for believing that the defendant, unless arrested, will quit the jurisdiction (see Com. Law Pract. 79-83; Law Dict. 84). As to No. XV. (p. 134), though injunctions may be obtained at common law, and, it is said, at very much less expense than at equity, yet such is the force of habit, and such the prestige of old associations, that very few applications are made at common law, and recourse is still had to Courts of Equity. No doubt the latter Courts have formed a code of procedure, and adopted definite rules, which are known to practitioners, whilst Courts of Common Law are without any fixed rules of practice, and act too much on the principle that the jurisdiction is not to be extended beyond what the strict interpretation of the language of the legislature warrants-rather declining jurisdiction than seeking to extend it.

CONVEYANCING.-The questions and answers will be found ante, pp. 134--139. As to No. I. (p. 134), we suppose it is understood that, in the case of a vendor who purchased, for value, the covenants are (or ought to be) confined to the acts of himself and those claiming under him, whilst in the case of a vendor who did not so purchase, but acquired the property by descent, or by devise, or by settlement, the covenants extends to the acts of the ancestor, or devisor, or settlor (2 Crabb's Convey. 1258, by Shelford; 1 Davids. Convey. 101, et seq., 2 id. pp. 168, 172, 194, notes). With respect to No. II. (p. 134), it is presumed the reader is well acquainted with the doctrines that at law a chose in action (with certain statutable exceptions) is not assignable, and that to render an assignment of a chose in action effectual against third persons (that is, as against persons who are to pay, and who, without notice, do pay to the assignee, or as against

persons who subsequently take an assignment and give notice thereof to the debtor, or other party who is to pay), notice thereof should be given to the debtor, or other person liable to pay (see First Book, p.p. 197, 198). Nos. III. and IV. (p. 135) are of so unusual a character as not likely to be repeated. We, therefore, add nothing to the answers already given, except to give insertion to the following communication respecting No. IV. with which we have been favoured by a subscriber:-"I beg to submit, with great diffidence, that in the fourth answer to the Conveyancing questions in the EXAMINATION CHRONICLE for this month, there should be inserted, after habendum to him and his heirs- reddendum to grantor his heirs, and assigns,' and that after the covenants for payment should be those for title, in which is included the covenant for further assurance. I also submit that, where a rent charge is limited in use, it is unnecessary to interpose a trustee (see Davidson's Precedents, vol. ii., part 1, Precedent 53). The following answer would seem more correct. The lands charged are assured to the grantee and his heirs, to the use that the grantor, his heirs and assigns may receive the rent charge agreed on, and to the further use that if it be not paid within so many days, the grantor, his heirs and assigns, may distrain, and to the further use, in case of non-payment, for so many more days, the grantor, his heirs and assigns, may enter and hold possession till all arrears and expenses are paid, and subject to the rent charge, and to the powers and remedies for securing payment thereof, to the use of the grantee, his heirs and assigns, for ever." As to No. V. (p. 135), we supply a more ample form for the indemnity of a trustee against the acts, &c., of a co-trustee, being a form which is to be found in Mr. Badger's edition of Hayes and Jarman's Concise Forms of Wills, and which has been judicially approved as being sufficient to meet the object in view, and is, therefore, commonly inserted in settlements and wills. For a will the following (which can easily be altered for a settlement, and which we, in practice, make a point of inserting in drafts of wills and settlements) is a precedent :-" I declare that each trustee shall be answerable only for losses arising from his own defaults, and not for involuntary acts, or for the acts or defaults of his co-trustees or co-trustee, and particularly that any trustee who shall pay over to his co-trustees or co-trustee, or shall do or concur in any act enabling his co-trustees or co-trustee to receive any moneys or transfer any investment for the general purposes of my will, or for any definite purpose authorised by my will, shall not be obliged to see to the due application thereof, nor shall such trustee be subsequently rendered responsible by an express notice or intimation of the actual misapplication of the same moneys or investments; but this clause shall not restrict the power of any trustee to require from his co-trustees or co-trustee an account of the application of moneys and investments in their or his hands, or under their or his

control, or to insist on their or his replacing moneys or investments misapplied or improperly made by them or him." With respect to No. VI. (p. 136), the reader will bear in mind that there are other provisions, making the receipts of trustees and mortgagees valid, or purporting to do, especially s. 23 of the Law of Property and Trustees' Act (the 22 & 23 Vict. c. 35), by which "the bona fide payment to and receipt of any person to whom any purchase or mortgage money shall be payable upon any express or implied trust shall effectually discharge the person paying the same from seeing to the application or being answerable for the misapplication thereof, unless the contrary shall be expressly declared by the instrument creating the trust or security." On this provision Mr. Hunter, in his edition of the Act, says "The person making the payment must ascertain, at his peril, that he makes it to the proper person. Thus, in the case of the repayment of mortgage money after the decease of the mortgagee, the executor or administrator will be the person to whom it is payable. When the receipt is tendered by persons claiming to be trustees of a settlement appointed under a power contained in the settlement, care must be taken to ascertain that the power has arisen, and has been duly exercised, otherwise the persons claiming the money will not be those to whom it is payable, and this section will give no effect to their receipt, see further note (4). It should be observed that this section gives validity to all receipts given after the passing of the Act (August 13, 1859), without regard to any intention to the contrary which may be implied in the instrument, or which might be gathered from its silence when taken in connection with the state of the law at the time of its execution. The receipt is to discharge the person paying the money from seeing to the application or being answerable for the misapplication thereof, and for this only. The ordinary receipt clause in mortgages has a further effect, and discharges the purchaser from seeing whether the events have occurred in which alone the power of sale arises, see Matthie v. Edwards (16 Law Journ. Ch. 405, N.S.; 11 Jur. 761), and Ford v. Healy (4 Jur., N.S., 1116). It will, therefore, be still necessary to insert an express clause to this effect, whenever such is the intention of the parties. The intention of the testator, settlor, or mortgagor will still govern the question as to the validity of trustees' receipts whenever that intention is expressly declared. No attention will be paid to merely implied intentions." The reader is referred for further information on this subject to 2 Exam. Chron. pp. 31, 32, 78, 133, 167, at which pages a reference should be made to this statement. As to No. X. (p. 137) the disadvantage of a second mortgage in the event of a foreclosure or sale is that in the former case the second mortgagee may lose the estate if he be not able and willing to pay off the first mortgagee, and in the second case, he may find that the property has been sacrificed by a sale, and little, if

anything, left for him, as a first mortgagee seldom looks beyond his own interests, and does not take such care as a beneficial owner of the estate would to realise the full value. In fact, all the first mortgagee looks to is to be recouped his principal, interest, and costs. Besides this, a dishonest first mortgagee might, if realising sufficient to pay himself and the second mortgagee, refuse to pay over the balance after satisfying his demand, and in such case the second mortgagee would merely have the personal security of such second mortgagee. As to No. XI. (p. 137) respecting the accumulations of rents and produce of real or personal estate, it is very common to confound the period allowed therefor, with the period allowed for the suspension of springing uses or executory devises, but in reality there is a very great difference, though, where a trust for accumulation exceeds the limits fixed by the general principle of law for avoiding perpetuities (that is to say, a life or lives, in being and 21 years afterwards), such trust fails altogether, whereas, if it does not exceed such limit, but does exceed the limit prescribed by the Accumulation Act, the trust is not altogether void but is only bad as to the excess; the part within the terms of the statute is valid just as if the accumulation had been directed for that period only (Griffiths v. Vere, 9 Ves. 127; Southampton v. Hertford, 2 Ves. and Beam. 54; Marshall v. Holloway, 2 Swanst. 432). The reader will, therefore, understand that trusts for the accumulation of the rents and profits of land might formerly be made commensurate in duration with the utmost period allowed for the suspension of any springing use or executory devise by which an estate in fee simple could be defeated. But this liberty having in one instance (the Thelusson will case) been strangely abused, certain limits were prescribed to it by the 39 and 40 G. 3, c. 99, which prohibits the settlement or disposition of any real or personal property so and in such manner that the rents, issues, profits, or produce thereof shall be wholly or partially accumulated for any longer term than the life or lives of any such grantor or grantors, settlor or settlors, or the term of 21 years from the death of any such grantor, settlor, devisor, or testator, or during the minority or respective minorities of any person or persons who shall be living or in ventre sa mère at the time of the death of such grantor, devisor, or testator, or during the minority or respective minorities only of any person or persons who under the uses or trusts of the deed, surrender, will, or other assurances directing such accumulations would, for the time being, if of full age, be entitled unto the rents, issues and profits, or the interests, dividends, or annual produce so directed to be accumulated. And in every case, where any accumulation shall be directed otherwise than as aforesaid, such direction shall be null and void, and the rents, issues, profits, and produce of such property so directed to be accumulated shall, so long as the same shall be directed to be accu

mulated contrary to the provisions of this Act, go to and be recovered by such person or persons as would have been entitled thereto if such accumulation had not been directed. But by s. 2, the Act does not extend to any provision for payment of debts of any grantor, settlor, or devisor, or other person or persons, or to any provisions for raising portions for any child or children of any grantor, settlor, or devisor, or any child or children of any person taking any interest under any such conveyance, settlement, or devise, or to any direction touching the produce of timber or wood upon any lands or tenements. As to No. XIV. (p. 138), it is presumed it is understood by all that independently of the Act, called after its originator, Mr. Malins, a married woman cannot effectually dispose of her interest in pure personalty not in possession and not settled to her separate use, and it makes no difference whether her interest be an immediate or present one, or one in reversion, though it is very common to speak of the interest of the married woman as being reversionary, that being generally the case. It is also to be borne in mind that the case is very different as to the wife's interest in chattels real or leasehold, provided by possibility it might vest in the wife in possession during the coverture (Duberley v. Day, 16 Beav. 33), and the same where the wife's interest is charged on real estate (Briggs v. Chamberlain, 11 Hare, 69; Tuer v. Turner, 3 Week. Rep. 585; Will. Pers. Prop. 308). The leading principle as to pure personalty is thus stated by Lord Coke (1 Inst. 351, b): "Marriage is an absolute gift of all chattels personal in possession in the wife's own right, whether the husband survive the wife or no ; but if they be in action, as debts by obligation, contract, or otherwise, the husband shall not have them, unless he and his wife recover them." And this rule applies to equitable choses in action, such as legacies, residuary personal estate of testators, and moneys in the funds, as well as to legal choses in action; and it also applies to the interest in a sum of money, and to arrears of income of property belonging to the wife, which was not reduced into possession; and it binds both the general and particular assignees of the husband as much as the husband himself (Grey v. Kentish, 1 Atk. 280; S. C. 1 P. Wms. 459, note to 6th edit.; Gayer v. Wilkinson, 1 Bro. C. C. 50, n. ; 2 Dick. 492; Mitford v. Mitford, 9 Ves. 87; Hornsby v. Lee, 2 Mad. 16; Wilkinson v. Charlesworth, 10 Beav. 324). Therefore, should a husband die in his wife's lifetime without having reduced into possession her choses in action, they will at his death survive to her, notwithstanding any assignment of them which may have been made by him, or even by him and his wife (Purdew v. Jackson, 1 Russ. 1; Honner v. Morton, 3 Russ. 65; Watson v. Dennis, 3 Russ. 90; Stamper v. Parker, 5 Mad. 157; Hutchins v. Smith, 9 Sim. 137; Crosby v. Church, 3 Beav. 485; Scott v. Spashett, 3 Mac. and G. 599; Carter v. Taggart, 5 De G. and S. 45). But if the husband survive the wife,