paying interest on his purchase money in pursuance of his contract to pay interest in case of delay occasioned otherwise than "by default of the vendor." PROFIT COSTS-SOLICITOR TRUSTEE-WILL-POWER TO CHARGE COSTS LEGACY-INSOLVENT ESTATE. In re White, Pennell v. Franklin (1898) 2 Ch. 217. The Court of Appeal (Lindley, M.R., and Chitty and Collins, L.JJ.), here affirmed the judgment of Kekewich, J. (1898) I Ch. 297 (noted ante p. 308), to the effect that where a solicitor trustee is empowered to charge profit costs for professional services rendered to the estate, such a power is in the nature of a legacy, and cannot be asserted in competition with creditors of the estate. How far such a legacy would be considered in the nature of payment of a statutory obligation in Ontario, and on that ground entitled to stand on a different footing, may perhaps be open to question. The decision is based on the ground that a trustee is not by English law entitled to be paid for his services. HUSBAND AND WIFE-MARRIAGE SETTLEMENT-COVENANT BY HUSBAND THAT AFTER ACQUIRED PROPERTY OF WIFE SHALL BE SETTLED. In re Haden, Coling v. Haden (1898) 2 Ch. 220, appears at first blush to be a somewhat curious case. From the head note it appears that in a marriage settlement, executed by the husband and wife, the husband alone covenanted that the after acquired property of the wife should be settled on the same trusts as were declared by the marriage settlement, and that the Court held that the after acquired property of the wife was bound by the covenant. We are inclined to think that this is hardly a strictly accurate account of the actual decision of Sterling, J., who seems, as we understand the case, to hold that the existence of the covenant in a deed executed by the wife amounted to an agreement on her part that the property should be settled in accordance with the covenant; that we take it is what is meant by the concluding words of the judgment, "it is an agreement that all the real property of the wife shall be settled, and a person assenting to such covenant would be taken to mean that the covenant shall take effect accordingly. I hold that the property is bound by the settle. POWER OF SALE-MORTGAGE-VENDOR AND PURCHASER-DEFECTIVE EXER- Life Interests Corporation v. Hand-in-Hand Society (1898) 2 Ch. 230, is a decision of Stirling, J., which shows that, not withstanding the provision in the Conveyancing and Property Act, 1881, s. 21 (see R.S.O., c. 121, s. 21), to the effect that a sale in assumed exercise of a power in a mortgage shall not be impeached as against a purchaser by reason of the sale not being warranted by the power, or by reason of the irregular or defective exercise of the power, a purchaser at such a sale cannot be compelled specifically to perform the contract, if he can show affirmatively that the power has not been properly exercised. In other words he cannot be compelled to rely on the statutory indemnity. BUILDING SCHEME-RESTRICTIVE CONDITION-POSITIVE COVENANT-IN. PLIED NEGATIVE STIPULATION In Holford v. Acton (1898) 2 Ch. 240, the facts are as follows: Certain building land described as adapted for shops and business premises was put up for sale by auction, subject to a condition that the purchasers of certain specified lots should covenant with the vendors to erect within a specified time on such lots purchased by them a shop and dwelling house of a given minimum value. These lots all remained unsold, but the plaintiff purchased another lot included in the advertisement. The unsold lots subsequently became vested in the defendants, a municipal corporation, who prepared to erect thereon a fire engine station exceeding the aggregate value of the proposed shops and dwelling houses, and action was brought to restrain this erection as being a breach of an implied stipulation on the part of the vendors, that on the lots in question only shops and dwelling houses were to be erected. Stirling, J., dismissed the action; he held it to be quite clear on the authorities that the vendors could not the ་་་་ have been required to erect shops and dwellings houses on the lots in question; and that the stipulation for the erection of shops and dwelling houses did not involve any implied agreement on the part of the vendor that the land should not be used for the erection of any other kind of building. TRUSTEE-BREACH OF TRUST-UNAUTHORIZED INVESTMENT-RIGHT OF TRUS TEE TO DEFECTIVE SECURITY ON PAYING LOSS-RETIRING TRUSTEE, LIABILITY OF, FOR ACTS OF NEW TRUSTEES-SOLICITOR. In Head v. Gould (1898) 2 Ch. 250, two or three questions relating to the law of trusts are involved. The facts of the case are somewhat voluminous, extending as they do to over nine pages of the report, but the salient points may be briefly stated thus. Clapp and Houlditch were trustees, the plaintiff an infant, being one of the cestuis que trustent. The plaintiff's mother and sister were also cestuis que trustent. The mother was in pecuniary straits, and she and her daughter urgently pressed Clapp and Houlditch to advance the trust money to them. £1,500 was in consequence advanced by them to the mother on improper security, she and her daughter giving them a covenant of indemnity: and thereafter Clapp and Houlditch refused to make any further advances, and suggested their retirement as trustees; and acting upon this suggestion, one Gould, a solicitor, and Miss Head, the plaintiff's sister, were appointed new trustees, the latter having recently attained twenty-one, and known to be under the influence of her mother, and Gould, being a friend of Mrs. Head, and a person of no substance. Under the management of Gould and Miss Head the rest of the trust fund, including the securities on which the £1,500 had been advanced, were dissipated. The action was brought against Clapp, Houlditch, Mrs. and Miss Head and Gould, to compel them to make good the plaintiff's share of the trust estate, it being claimed that Clapp and Houlditch were not only liable for the £1,500, but also for the defaults of the new trustees. Clapp and Houlditch claimed indemnity from Mrs. and Miss Head in respect of the £1,500, but contended that they could not be made liable therefor, because on payment of the amount they were entitled to the defective securities, which could not be handed to them, because they had been dissipated by the new trustees. Miss Head also claimed indemnity against Gould on the ground that he was a solicitor, and she had acted by his advice. With regard to this latter claim Kekewich, J., was of opinion that no case for relief was made on the evidence, which showed that Miss Head had been an active participator in the breaches of trust committed by herself and her co-trustee, and did not show that she had concurred therein, merely by the advice or under the control of the solicitor. As regards the claim of Clapp and Houlditch in regard to the securities on which the £1,500 had been improperly invested, he was of opinion that notwithstanding the fact that those securities had been dissipated by the new trustees, Clapp and Houlditch were liable to make good the loss to the plaintiff, who had never assented to the improper investment, or done anything to put it out of the power of Clapp and Houlditch to obtain the benefit of the investment on making good the loss. On the question of their liability for the acts and defaults of the new trustees the case is important, as very little authority on the point is to be found in the books; but on the evidence the learned judge came to the conclusion that it did not warrant him in finding that Clapp and Houlditch had contemplated the commission of a breach of trust by the new trustees, when they were appointed, or that they were unreasonably negligent in assenting to the appointment of Miss Head and Gould as the new trustees. In order to make them liable, he holds that it is necessary to show "that they were guilty as accessories before the fact of the impropriety actually perpetrated." On this branch of the case therefore the plaintiff failed. Clapp and Houlditch's claim for indemnity against Mrs. and Miss Head was allowed. Possibly the learned judge's view in regard to the liability of Clapp and Houlditch may to some extent have been influenced by the fact that what they had done had been at the urgent solicitation of Mrs. and Miss Head, and that for yielding to their importunities they were now attacked in the name of the infant plaintiff, "but really no doubt at the instigation of those whom they honestly, though unwisely, endeavored to assist," but that is not an uncommon experience of trustees. EVIDENCE-ADMISSIBILITY OF EVIDENCE TO CONTRADICT WITNESS AS TO IMMATERIAL POINT. In re Haggenmachers' Patents (1898) 2 Ch. 280, was a petition presented to revoke a patent on the ground of prior user at a particular place. The petitioner's witness proved the prior user at the place named in the petition, and in cross-examination stated that he had also seen the invention used on other occasions prior to the patent. The respondent tendered evidence to contradict the witness as to the alleged user on such other occasions, but Romer, J., held it to be inadmissible, as not being material to the issue raised by the petition. VENDOR AND PURCHASER-CONDITION AS TO RESCISSION-RESCISSION AFTER ACTION COMMENCED-COSTS. In Isaacs v. Towell (1898) 2 Ch. 285, the plaintiff had purchased land subject to a condition that if any requisition were made which the vendor should be unable to remove, "notwithstanding any intermediate negotiation," the vendor should be entitled to rescind, and the purchaser to get back his deposit. Nothing was said in the condition as to litigation. The plaintiff objected that the defendant had misrepresented that the property was freehold, when in fact title was only shown to a term under an under lease, and on this ground the action. was commenced for rescission, and return of the deposit, and payment of expenses for investigating the title. Before entering an appearance the defendant gave notice rescinding the contract and that he had authorized the auctioneer to return the deposit, which the plaintiff refused to accept. An appearance was then entered and the plaintiff proceeded with the action. Byrne, J., held that, notwithstanding the commencement of the action, the defendant was entitled to rescind the contract, the alleged misrepresentation not being established. Under the circumstances the plaintiff was held entitled to the deposit, and the costs up to the notice of rescission, and was ordered to pay the plaintiff's costs of the action subsequent to the notice. JOINT CONTRACTORS-JUDGMENT BY CONSENT AGAINST ONE JOINT CONTRACTOR - RELEASE OF JOINT CONTRACTOR. McLeod v. Power (1898) 2 Ch. 295, is an important case to be remembered in actions against joint contractors, inasmuch |