HIGH COURT.

concurred in by her husband and acknowledged by the wife in the manner therein stated. (There is a proviso to the section, which I will consider later.) With all these requirements the deed of 1878 complies. The first question which arises on the enactment is whether a declaration of trust is a disposition. The words "* dispose and 66 disposition " in the Fines and Recoveries Act are not technical words, but ordinary English words of wide meaning. Where not limited by the context, those words are sufficient to extend to all acts by which a new interest (legal or equitable) in the property is effectually created. A declaration of trust on the part of a feme sole, whereby she effectually parts with the entire equitable interest in property of which she remains legal owner, certainly appears to me to be a disposition in equity of that property. This appears to have been the opinion of Lord Hatherley, L.C., in Pride v. Bubb.

It was said, however, that the contrary was decided in Green v. Paterson, which is a decision binding upon me. That case, as far as it is material to the present, related to copyholds of which a married woman was tenant in tail, and tenanciee in tail are expressly excluded from the operation of section 77 of the Fines and Recoveries Act, and depend on the prior sections 15 and 40. It is quite true that section 15, by which a tenant in tail was empowered to dispose of the lands entailed, uses the word "dispose," which is used again in section 77; but section 40 limits the mode of disposition by enacting that every disposition of lands under the Act by a tenant in tail thereof should be effected by some one of the assurances (not being a will) by which such tenant in tail could have made the disposition if his estate were an estate at law in fee simple absolute, and no disposition by a tenant in tail vesting only by contract should be of any force at law or in equity under the Act. The effect of that is that the mode of disposition to bar an estate tail is limited to such an instrument inter vivos as would be effectual to pass a legal estate in fee simple. A mere declaration of trust, of course, could not pass a legal estate, and consequently I entirely agree, if I may be allowed to say so, in the decision of the Court of Appeal in Green v. Paterson, that a mere

declaration of trust would not bar an estate tail. The language of Fry, L.J., might, no doubt, admit of a wider meaning, and that is what is relied upon. He says: "In the first place, the statute requires that the instrument to bar the estate tail shall be a disposition, and I find in this case nothing like a disposition. It is a mere declaration of trust by the lady." Those words, taken literally, would seem to indicate an opinion that a mere declaration of trust was not a sufficient disposition within the Fines and Recoveries Act, but I think that they ought to be read as applying only to the point then actually calling for decision, and rot as intended to affect the construction of section 77, which was not then under consideration by the court, and all the more so as I do not observe that Pride v. Bubb was cited to the court in the argument. In section 77 I find nothing which requires the disposition to be made by such an assurance as is required by section 40.

It is next contended on behalf of the heir

that the transaction falls within the concluding proviso of section 77, which is this: "Provided always that this Act shall not extend to lands held by copy of court roll of or to which a married woman, or she and her husband in her right, may be seised or entitled for an estate at law in any case in which any of the objects to be effected by this clause could, before the passing of the Act, have been effected by her in concurrence with

HIGH COURT.

her husband by surrender into the hands of the lord of the manor of which the lands may be parcel." In my opinion, the object intended to be effected by the deed of 1878 was that Mrs. Carter should declare herself a trustee of the legal estate in the copyholds then vested in her, or, in other words, to effect a disposition of the equitable interest without disturbing the legal title. I fail to see how this object could be effected by a surrender of that estate into the hands of the lord of the manor, for the effect of such a surrender would be to alter the legal title, and, therefore, the present case does not seem to me to come within the proviso.

In my opinion, therefore, the heir is bound by the trusts, and judgment must be given in favour of the plaintiffs. I declare that the heir is bound by the trusts of the deed, and that he is a trustee of the legal estate vested in him for the purposes of the deed, and I direct a proper assurance to be executed, with liberty to apply in chambers for a vesting order.

Solicitors, H. Sowton, for J. C. Buckwell, Brighton; Henshall Fereday; H. E. Griffith, for G. P. Holmes, Worthing.

Adjourned summons.

Elizabeth Caroline Darling made her will, dated the 13th of May, 1871, in the following terms:-“I, Elizabeth Caroline Darling, desire that at my death all of which I may die possessed with the exception of the few legacies and gifts I may hereafter make, shall go to the poor and the service of God." The testatrix then, after directing a sale of her effects and appointing executors of her will, specified certain charitable, &c., institutions intended to be benefited by her bequest.

By a codicil to her will, dated the 13th of May, 1891, the testatrix directed an annuity to be purchased for the benefit of her coachman and bequeathed a legacy to her cousin.

The testatrix died on the 10th of February, 1895, and her will and codicil were proved on the 9th of March, 1895.

This was a summons by the executors asking what were the several charitable institutions meant and intended by the testatrix in the bequests given by her will to several charitable institutions nominatim, and for an order that the executors might be at liberty to distribute the ultimate residue of the testatrix's personal estate in certain proportions among certain named charitable institutions. The question arose whether the bequest to the poor and the service of God was a good charitable gift.

Phipson Beale, Q.C., and Dundas Gardiner, in support of the summons.

Graham Hastings, Q.C., and Onslow, for the next of kin.-This is not a good charitable gift: Budget v. Hulford, W. N., [1873] 175; Townsend v. Carus, 3 Hare, 257.

Ingle Joyce, for the Attorney-General.-This is a (x.) Reported by ARTHUR MORTON, Esq., Barrister

at-Law.

good charitable purpose: Tudor's Charitable Trusts, p. 10; Powerscourt v. Powerscourt, 1 Moll. 616; In re Sutton, Stone v. Attorney-General, 28 Ch. D. 464, 33 W. R. Dig. 243. In the latter part of the will there is a good gift to charities even if you strike out the earlier part. The fact that legacies are given is sufficient to pass the whole residue.

Dibdin, for one of the charities named in the will. STIRLING, J.-In this case the testatrix commences her will as follows:-[His lordship read the clause set out above, and continued :-] The question is whether that is or is not a good charitable gift. When it is said that it is not good, the meaning is that it includes under it objects which are not recognized by the laws of charity. There can be no question that a gift for the benefit of the poor is good, but it is said that one for the "service of God" is not. It is said that the "service of God" includes much that is not religious, and in a sense that is true. There is an ancient document where the congregation is desired to pray for the welfare of those who serve God in Church and State. A distinction is drawn, therefore, between Church and State, but equally the persons prayed for are to serve God. Hence in a certain sense acts which are not religious are said to be in the service of God. But I have to construe this according to the plain and ordinary meaning of words used by English testators, so that when the service of God is referred to, it must be taken to mean service in a religious sense, similar to such services as are referred to in the document I have mentioned when service in the Church is spoken of. Therefore, I come to the conclusion, even if the point were unaffected by authority, that a gift to the poor or for a religious purpose is good. But the point is not without authority. The same or a similar question came before Manners, L.C., in Ireland in a case of Powerscourt v. Powerscourt. There there was a devise to lay out, at their discretion, £2,000 per annum until the testator's son came of age, "in the service of My Lord and Master, and, I trust, Redeemer." This was held a good charitable devise. The judgment of the Lord Chancellor is this: After referring to certain Statutes of Elizabeth, "These cases prove that pious uses are a branch of charity, and as such are recognized and and carried into effect in this court. of opinion that a bequest to pious uses sufficiently designate a specific object, and that this cannot be distinguished from a bequest to pious uses." It has not been disputed before me that a bequest for religions purposes is a good charitable bequest, and, on the authority of the case to which I have referred, I hold that the whole estate is well given to charity. Solicitors, H. W. Lyall; Bell, Steward, May & Snow; Solicitors to the Treasury; Bridges & Co.

he

says:

Chan. Div. Kekewich, J.)

I am

Aug. 7, 1895.

WILLIAMS v. QUEBRADA RAILWAY, &c., Co.
(LIMITED). (a.)

Practice Discovery - Privileged communications Production - Fraud-Inspection by judge—R. S. C., ord. 31, r. 19a, sub-rule 2.

Communications between a solicitor and his client as

to the subject-matter of an alleged fraud are not privi

(a.) Reported by F. T. DUKA, Esq., Barrister-atLaw.

leged from production in an action where fraud is charged.

Summons.

This was a debenture-holder's action for enforcing their securities.

By the statement of claim it was alleged that the company entered into an agreement shortly before the commencement of the action with its agents, Messrs. Matheson & Co., the sole consignees for the sale of the company's ores, by which, without disclosing the existing charges, the company purported to charge all its property with a large sum alleged to be due from it to their agents, Matheson & Co.; that the company was at the time insolvent and its stoppage imminent, and that the charge was only given to defeat and delay the holders of the debentures. Matheson & Co. were defendants with the company, and it was asked that the agreement might be set aside.

The company shortly after went into liquidation, and the liquidators filed an affidavit of documents in this action claiming privilege for portion of the minute and agenda books as containing copies of or extracts from counsels' opinions and solicitors advice on matters on which the company required and obtained advice.

The plaintiff now applied for production.

A. R. Kirby, for plaintiff.—The statement of claim charges the defendant company with fraud, and so privilege cannot be claimed: R. v. Cox, 33 W. R. 396, 14 Q. B. D. 153.

Rowden, for defendant company.-All communications between a party and his solicitor are privileged : Minet v. Morgan, 21 W. R. 467, L. R. 8 Ch. App. 361. R.v. Cox and R. v. Orton cited in R. v. Cox were both criminal cases: Follett v. Jefferyes, 1 Sim. N. S. 3; In re Postlethwaite, Postlethwaite v. Rickmer, 35 W. R. 563, 35 Ch. D. 722.] His lordship suggested that he should see the documents, to which both parties consented.]

KEKEWICH, J., said.—It is essential to the proper administration of justice that the privilege of protection from production to an opponent of those communications which pass between a litigant or an expectant one and his solicitor should be upheld. It is said that this case, being one of fraud, is taken out of the ordinary rule, and that no protection can be What are the claimed on the ground of privilege. facts? The plaintiff and others are holders of debentures and debenture stock of the defendant companya first charge-which, it is said, is obstructed by another charge given by the defendant company in favour of their agents with the intention of defeating and delaying their security. It is also said the company was insolvent and the charge was given to prevent for a time the inevitable stoppage. It is difficult to say that that is not a charge of fraud. The liquidators make an affidavit of documents claiming protection for the copies or extracts from the opinions of counsel and advice of the sompany's solicitors with reference to this charge contained in the minute books. Are they entitled to it? In R. v. Cox it was held that where there is a charge of fraud the protection of confidential communications between a client and his solicitor on the ground of privilege is not allowed. But it is said that was a criminal case, and that in civil cases something more is necessary; but R. v. Cox is based on general principles and does not draw any distinction between crime and civil fraud, and is

applicable to both civil and criminal cases.

Ord. 31, r. 19a, sub-rule 2, provides that: "Where on an application for an order for inspection privilege is claimed for any document it shall be lawful for the

court or a judge to inspect the document for the purpose of deciding as to the validity of the claim of privilege." My difficulty here was whether I could insist on seeing the documents in question, because the rule says for the purpose of deciding as to the validity of the claim of privilege, and I had already made up my mind that the claim of privilege was invalid. I wished to see them because I wished to stop if I could the production of useless documents. Counsel assented to my seeing them, and I have come to the conclusion that the plaintiff's counsel must have the opportunity of seeing them. They are certainly relevant, but whether they support the plaintiff's charge of fraud I do not say.

Order for production. Defendants to pay costs in any event.

Solicitors, Ashurst, Morris, Crisp, & Co.; Henry

Kimber & Co.

Oct. 29.

Passing

best

ROOKE v. DAWSON. (a.) Scholarship Education Award examination ·Number of marks examiner.

HIGH COURT.

should remain vacant until the next June and should then be offered at a public examination as aforesaid. At an examination held in September, 1893, at which four boys competed, the plaintiff obtained the third place. The successful candidate, however, did not comply with the conditions, and the scholarship in consequence was not awarded to him. The second candidate subsequently by deed poll disclaimed all interest in the scholarship. The trustees, however, did not award the scholarship, but in June, 1894, held a second examination at which the candidates were the plaintiff and another boy, H. M. Spicer.

In this examination the plaintiff obtained 570 and Spicer 496 marks. The examiner, however, reported that neither candidate, in his opinion, deserved the scholarship, and that the plaintiff did not show sufficient knowledge of the subjects in which he was examined to justify an award to him. If awarded at all he suggested that the scholarship should be divided between the two boys, either equally or proportionately to the number of marks obtained by

them.

When a scholarship under a trust is to be awarded to such candidate as shall have passed the best examination in subjects to be determined by an examiner, such scholarship may be refused to the candidate who has obtained the highest number of marks if, in the opinion of the examiner, he has not passed a satisfactory examination.

This was an action brought by the plaintiff as an infant, suing by his father as next friend, for a declaration against the trustees of an indenture dated the 31st of October, 1854, establishing a scholarship known as "the Bousfield Scholarship," at Mill Hill Nonconformist Grammar School, Hendon, Middlesex, for a declaration that he, the plaintiff, was entitled to be put in possession of a scholarship which the defendants refused to award to him.

The facts of the case were as follows.

Under the indenture above mentioned it was declared that the trustees of the scholarship in question should stand possessed of the sum of £1,000, and of the investments for the time being representing the same, as a scholarship at the Protestant Dissenters' school at Hendon aforesaid to be held at one of the two colleges therein named, one of which was University College, London, and tenable for three years. It was provided in the deed that after the avoidance of the scholarship by the founder's grandsons, who were therein named as scholars without examination (which avoidance had long since occurred), and every subsequent avoidance thereof, except such avoidances as were mentioned in rule 8

of the said indenture, that the scholarship should be awarded to the pupil leaving school and going to such colleges as aforesaid who should pass the best examination in subjects to be determined upon from time to time by the examiners, and who should have been at Mill Hill School for the time and age therein prescribed.

Condition 8 provided that in the event of the avoidance of the scholarship by any means within three years from the date of the last avoidance of the scholarship, if no half-yearly payment should have been made, the next highest boy at the examination who was duly qualified should succeed, otherwise it

(a.) Reported by J. ARTHUR PRICE, Esq., Barristerat-Law.

In the course of the argument In re Nettle's Charity, 20 W. R. 965, L. R. 14 Eq. 434, was referred to.

ROMER, J.-I am of opinion that the plaintiff's action fails, and on this ground, that on the words of the deed no boy is entitled to the scholarship who does not pass a satisfactory examination in the subjects to be determined on from time to time by the clear that the examiner is entitled to say that no boy examiner. If no boy passes such examination, it is has passed a satisfactory and proper examination for so valuable a scholarship. The examiner has decided that no boy deserved the scholarship, and that the The trustees have plaintiff is not entitled to it. taken a proper course in refusing to award it, and the plaintiff's action fails, and must be dismissed, with costs.

Solicitors, Rooke & Sons, Penningtor & Sons.

made with regard to both these sections is, that they do not profess to give a qualification. Therefore it seems to me that, for the purpose of this question, the effect of them is that if she has the necessary qualification for being on the local government register or the parliamentary register, then the fact of her being a married woman shall not take that qualification away.

Counsel referred also to section 44 (6) (b). That section was provided for a class of cases in which, under an antecedent state of the law, certain names appearing on the list of voters would have been erased by the revising barrister. The names, instead of being erased, are now to be differently dealt with. But the section does not apply to married women at all, because, under the antecedent state of the law referred to, their names could not appear on the register at all.

GRANTHAM, J.-I am of the same opinion. The sections of the Act of 1894 are somewhat conflicting, and I had some doubt on this question until I recognized the distinction between section 3 (2) and section 43. The former says that neither sex nor marriage shall disqualify, while the latter is confined to removing the disqualification of marriage. But, as neither married nor unmarried women can get on the parliamentary register, the sections do not touch women with an ownership qualification only.

VAUGHAN WILLIAMS, J.-The appellant is not disqualified because of her sex, but because she has not got the statutory qualification. She has neither the local government qualification nor the parliamentary qualification. It may be that it is because of her sex that she has not the parliamentary franchise; still, she is without it, and it is the absence of that franchise, and not her sex, that is the disqualification. Appeal dismissed; leave to appeal granted. Solicitor for the appellant, H. W. Parker, Blandford.

In re SMITH AND HARTOGS. Ex parte OFFICIAL RECEIVER v. LEVERSON. (a.) Bankruptcy-Landlord and tenant-Distress "Rent accrued due prior to date of order of adjudication Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 42 (1). A landlord let premises at £200 a year, but agreed to take £100 a year for the first two years, and £250 a year for the succeeding two years of the term. The tenants became bankrupt before the first two years had expired, and the landlord distrained for rent at the rate

of £200 a year.

Held, that he was entitled to distrain for rent at that rate, for the agreement had not altered the rent, but only the mode of paying it, and was not such that the tenant could claim to enforce it if he were in default in the

payments thereunder.

Motion by the official receiver for an order that the respondent should pay over to him £78 10s.. forming part of a sum of £103 10s., the proceeds of a distress levied by the respondent, upon the premises occupied by the bankrupts, after the date of the receiving order.

In the month of October, 1890, the respondent, Mr. Leverson, let the premises to one

(a.) Reported by P. M. FRANCKE, Esq., Barrister

at-Law.

HIGH COURT.

Flatau, for twenty-one years, at the rent of £150 per annum for the first two years of such term, and £200 per annum for the remainder. In 1893, when the rent payable was £200 per annum, Flatau assigned the lease to Smith & Hartogs, the bankrupts. They were unwilling to pay rent at the rate of £200 per annum to begin with, so Mr. Leverson agreed to allow them to pay £100 per annum for the first two years of their occupationviz., from the 29th of September, 1893, to the 29th of September, 1895-and £250 per annum for the next two years, and after that £200 per annum for the remainder of the term assigned to them by Flatau. Smith & Hartogs having gone into occupation on the 29th of September, 1893, pail one instalment of £25 on account of rent on the 31st of January, 1894, a a second instalment of £25 on the 30th of April, but defaulted in payment at the Midsummer quarter, and Mr. Leverson distrained upon their premises for £25 in August.

Upon the 29th of September a receiving order was made against Smith & Hartogs, whereupon Mr. Leverson distrained upon the premises for £100, proportion of rent due at the rate of £200 per an

num.

Muir Mackenzie, for the official receiver.-The rent was only at the rate of £100 per annum, and all that was due at the date of the receiving order was £25 in respect of the quarter from the 24th of June to the 29th of September. The agreement by the landlord to accept £100 per annum has altered the rent. He cited Fitzgerald v. Portarlington, 1 Jones 431. [VAUGHAN WILLIAMS, J.-The rent was not altered at all, merely the manner of paying it. In the case of Fitzgerald v. Portarlington, the tenant was ready and willing to pay his rent at the reduced rate, in this case he was not, and the landlord might have distrained for rent at the rate of £200 per annum, when he levied the distress in August.]

Leverson, for the respondent.-Not only was the rent not altered, but there was no consideration for the agreement to accept payment at the rate of £100 per annum for two years, and it was therefore nudum pactum.

Muir Mackenzie, replied.

the

VAUGHAN WILLIAMS, J.-In my opinion agreement in this case was merely an agreement by the landlord not to enforce his remedies for the recovery of rent in the event of the instalments agreed upon being duly paid. It being admitted that the terms of the agreement were not carried out by the tenant, it appears to me that the rent originally reserved became payable. Putting the case in the most favourable way for the official receiver, it can only be said that if the tenant paid the rent by certain instalments, the landlord could not enforce his rights to the higher rent. It seems to me that the agreement is not one which the tenant could insist contention is not right that there was no consideration for the agreement, but that it was a mere voluntary statement by the landlord that he would accept the rent in this way. But even if there was consideration, the agreement was not such that the tenant could claim to enforce it if he were in default in the payments agreed upon.

upon

if he were in default.

Application dismissed.

I am not sure that the

Solicitors for the official receiver, Adams & Adams. Solicitors for the respondent, Campbell, Reeves, & Hooper.