MORTGAGEE IN POSSESSION.-AUCTIONEER HAVING A POWER OF SALE.

Matthison v. Clarke, 3 Drew, 3.

It was held, in Broughton v. Broughton, suprà, that the rule which prevents a trustee from making a profit out of the execution of his trust is not altered by the circumstance of the trustee being in partnership with another, and that the firm has acted for the trust estate. So it was in the present case, in which a mortgagee, with a power of sale, caused the mortgaged estate to be sold by a firm of auctioneers of which he was a member. The Vice-Chancellor Kindersley held, that the firm was not entitled to charge any commission, upon the ground that a mortgagee in possession is in the situation-in respect of the rents and profits—of a trustee. He is bound to account to the mortgagor for any surplus. So, if a mortgagee has a power of sale, and executes it, he places himself in a fiduciary character, because he sells upon trust that he will hold any surplus for the cestui que trust, and that he will account to him for such surplus.

DOMICILE.-ADMINISTRATION OF ASSETS.

Wilson v. Lord Dunsany, 18 Beav. 293.

The domicile of a testator regulates the priorities of creditors, though the personal assets may be situate and are administered in another country. In this case, the testator was domiciled in Ireland, and died, leaving personal assets both in that country and here, and also simple-contract debts, and debts upon which judgments had been obtained here. Sir John Romilly, M.R., was of opinion that he must treat the case in the same way as if he were administering the estate in Ireland, on the principle of the law of the domicile of the person whose estate was to be administered. It was also held, that a foreign judgment constitutes but a simple-contract debt.

COMMON LAW PROCEDURE ACT.

EVIDENCE BEFORE EXAMINER, 17 & 18 VICT. c. 125, s. 99. Buckley v. Cooke, 24 Law J. Chan. 24.

If a witness gives evidence before the examiner inconsistent with previous statements which have been made by him, and upon being examined as to such previous statements does not admit them, it is competent for the party producing him to bring forward evidence of such previous statements. The interpretation clause (section 99 of this Act) does not confine the word "judge," in those sections which are extended by section 103, to every court of civil judicature in England and Ireland, to a judge of a Common Law court. The Vice-Chancellor Wood said he hoped the examiners would take down questions as well as answers for the future.

STATEMENT OF GROUNDS OF RULE NISI, 17 & 18 VICT.
c. 125, s. 33.

Drayson v. Andrews, 24 Law J. Exch. 22.

A rule nisi, drawn up on reading an affidavit and deposition, called on defendant to show cause why a new trial should not be had, "on the grounds set forth in the said affidavit and depositions." This is no compliance with this section, which enacts that in every rule nisi for a new trial, &c., "the grounds upon which such rule shall have been granted shall be shortly stated therein."

The plaintiffs were allowed to amend; but it was held that the rule was imperative whether the defendants were misled or not.

SIGNING JUDGMENT UNDER 17 & 18 VICT. c. 125, s. 25.

Rogers v. Hunt, 24 Law J. Exch. 23.

Plaintiff cannot sign final judgment under section 25 of the Common Law Procedure Act, 1852, for want of appearance to a writ, specially indorsed, claiming (inter alia) the expense of noting and commission on a bill of exchange, the same being unliquidated damages.

POOR-LAW SETTLEMENT BY ESTATE.

Wendren v. Stithians, 24 Law J. Mag. Cas. 1.

Settlement by Estate.-A. in 1793 occupied, at a rent of 17. 11s. 6d., certain land, on which he subsequently erected a dwelling-house and other buildings, but did not expend 30%. In 1804 a lease for ninety-nine years was granted to him by the owner of the fee, in consideration of his paying the rent and performing the covenants, and "in consideration of his having erected a dwelling-house and half of a barn, to be for the joint benefit of the other part of the land demised to J. S.," the rent reserved by the lease being 17. 11s. 6d. The property was not of the annual value of 107. This is a purchase of the term for a pecuniary consideration less than 307., and conferred no settlement after actual residence, by virtue of 9 Geo. 1, c. 7, s. 5.

RATING SCIENTIFIC INSTITUTIONS, 6 & 7 VICT. c. 36. Purchas v. Holy Sepulchre, Cambridge, 24 Law J. Mag. Cas. 9. The exemption of literary societies from rateability under this Act applies only to buildings "instituted for the purposes of science, literature, or the fine arts exclusively." And inasmuch as the chief use made of the building was for a newsroom, the Court held that it was rateable, Lord Campbell maintaining that newspapers gave "political information." Be it so; but they, and the other periodicals on a news-room table, also contain a great deal of general literature; and is there not such a thing as political literature? And if so, is not the view taken, with great deference be it said, by the Court both narrow and incorrect? We trust that this decision will be overruled. We invite societies to try it again. Many are interested in it.

Short Notes of New Books.

[*** All Law Books and works of interest to the Legal Profession, forwarded to the Editor of the LAW MAGAZINE, will henceforth be noticedeither shortly, or at length-in its pages.]

The Law of Contracts. By John William Smith, Esq., late of the Inner Temple, Barrister, and author of "Leading Cases," "A Treatise on Mercantile Law," &c. Second edition. By John George Malcolm, Esq., of the Inner Temple, Barrister-at-Law. WE hail with great satisfaction a new edition of Smith's Lectures on the Law of Contracts. Ever since they were first published, these lectures have been most popular with all branches of the profession. To the student they have furnished a pleasing introduction to the study, and a ready guide to the mastery of this branch of law; and to the practitioner, also, they have been of essential service.

Perhaps, of all the legal writings of the late talented author, none excel them in point of lucid arrangement, aptness of illustration, and gracefulness and simplicity of style. That a work, so happy both in plan and execution, should have been rendered permanently imperfect or useless, through the progress or changes of the law, would have been a calamity to the profession; whilst to embrace in the design and illustrate in the style of the author, the accumulating judicial and legislative contributions to the law of contracts, preserving at the same time the elementary character of the work, is a task not easy of performance.

This, however, is precisely what Mr. Malcolm (already favourably known as an editor of Starkie on Evidence) has accomplished in the work before us. Rejecting the system of foot-notes, and thus relieving us of the wearying task of reading, as it were, two books at once, he has boldly incorporated his emendations with the text, from which he has distinguished them, together with such notes of the late editor as he has retained, by inclosing them between brackets. He has thus interwoven with the original matter all the important additions to and qualifications of the law of contracts, which have grown up since the publication of the lectures; and in doing so, has entered most happily into the style and spirit of the author. He has filled up, with care and accuracy, the outline originally given of the law with respect to estoppel, merger, patent and latent ambiguities, and the construction generally of contracts; and has collected and commented upon the recent cases relating to the sufficiency of the consideration, and to the construction and effect of contracts in restraint of trade. The meaning and effect of what is known as the policy of the law," are likewise ably discussed, and the changes in

the law of usury and gaming are noticed. He has also introduced the very important cases relating to joint-stock companies, in which the rights and liabilities of parties connected with abortive companies, and of shareholders and purchasers, in the event of a call or upon a transfer, or devolution of shares, &c., are determined. There are some valuable pages with respect to the law of contracts, effected through the medium of factors and brokers; and upon the subject of remedies, the changes introduced by the Common Law Procedure Acts are fully detailed. These lectures thus constitute in this edition a complete though necessarily general sketch of the law of contracts as at present existing, and may be justly deemed one of the most valuable works which we possess upon this subject.

Cornish's Treatise on Purchase-deeds of Freehold Estates, and incidentally of Leasehold Property, with Precedents and Practical Notes. A new edition. By George Horsey, Esq., of Gray's Inn, Barrister-at-Law, &c. London: Shaw and Sons, 1855.

IN many respects this is a remarkable work. Originally published in 1829, it was the precursor of the modern forms of conveyancing, in respect to brevity and conciseness. Certainly it is most highly creditable to the sagacity of the author, and demonstrates the soundness of his acquaintance with principles, to find that so little advance has been made ahead of the principles which being then in a miserable minority, he so many years ago advocated, and so little improvement effected in the framework in which he embodied his views. But the book is not only remarkable: it is in the highest degree adapted for use. To the country practitioner, whose business requires that he should have at hand, ready for instant use, collections of reliable precedents, it will be found invaluable, for it supplies that requirement; and the ample notes, which are really what they are called, "practical notes," giving reasons and explanations of the text, and pointing out in what manner alterations may be made, so as to adapt the different forms to the different combinations of facts and circumstances, make it as easy to handle and as safe a guide as can be recommended to an attorney's clerk. Nor do we know where the student will be able to meet with 250 pages containing an equal quantity of valuable information with these on the subjects of which they treat; indeed, it would be no surprise to find the novice who had thoroughly mastered them, a match for not a few of his seniors. This work having been given to the world at a time when the public was not prepared for innovation, and had not acquired the now reigning tastes for brevity, despatch, and economy of time, labour, and expense, attracted but little attention, and has never been as well known as it deserved to be. Mr. Horsey, however, the editor of the new edition, by careful additions and improvements, has brought up the work to the standard of the present day, and supplied all and removed everything that modern legislation has rendered necessary to be supplied or removed in respect of a work of the kind. It is with