solely to the state in which matters stand at the time of the last of these acts at the time, in fact, when the transaction is complete. If, therefore, the deed in Griffiths v. Ricketts operated as a complete conversion, we should not be required to look beyond it. But the Vice-Chancellor, while progressing towards a conclusion, refuses to look beyond the date of delivery;-assuming therefore, that the deed does operate a complete conversion, which is assuming the whole question at issue, and another petitio principii in addition to that previously pointed out.

We have ventured thus boldly to impugn both the principles and the authorities upon which the Vice-Chancellor relies, because an exactly contrary decision appears in the reports in a case which does not appear to have been quoted either in the argument or judgment in Griffiths v. Ricketts, but in which exactly the same point was raised, the case of Wright v. Rose, before Sir John Leach.1

In that case there was a mortgage in fee, with power of sale, and there was a direction to pay the surplus sales-monies to the mortgagor, his executors, administrators or assigns. The mortgagor was illegitimate, and died without issue and intestate, but the crown withdrew its claim. After the death of the mortgagor a sale took place, and a bill being filed by the administrator against the mortgagee for the surplus monies, the judgment of the Vice-Chancellor, allowing a general demurrer for want of equity, was in these terms: "If the estate had been sold by the mortgagee in the lifetime of the mortgagor, then the surplus monies would have been personal estate of the mortgagor, and the plaintiffs would have been entitled. But the estate being unsold at the decease of the mortgagor, the equity of redemption descended to his heir, and he is now entitled to the surplus produce." This is the whole judgment as reported; nor is the statement of facts contained in many more words than we have made use of. The report states that it did not appear in the pleadings to whom the equity of redemption was reserved, but it was probably reserved to the heir, from the expressions used by the Vice-Chancellor; and yet, under the circumstance of there being no heir, those expressions do not seem very carefully chosen, so that we should be careful not to place too much weight upon them. The judgment is however quoted, as containing the rule of law on the subject, by Mr. Coote in his Treatise on Mortgages, p. 157, (edit. 1841,) and was quoted and relied on in Matson v. Swift (8 Beav. 368), and other cases. The case of Wright v. Rose has also been quoted by another

12 S. & S. 323.

text-book writer of very great authority, Mr. Hayes;1 and he only objects to the dictum in the first part of the judgment above quoted, that if the sale had taken place in the lifetime of the mortgagor, the surplus monies would have been personal

estate.

* * *

"This," says Mr. Hayes, "is a mere dictum. Upon principle, the effect of a power must be confined to the particular purpose for which the power is given, viz. that of merely letting in the debt and principal as a charge upon the land Nothing short of the concurrence of the mortgagor in a sale, or of a very express declaration of intention, should be allowed to operate as a sale in equity as between his real and personal representatives. Otherwise the destination of the surplus would rest with the mortgagee, and be exposed to accident, caprice, and even to collusion, contrary to every principle of equity. The power of sale is merely auxiliary to the mortgage, which in equity amounts only to a charge, leaving the surplus produce of the sale, not less than the unexhausted interest in the land, essentially real estate."

The principle here put forward, as containing the key to the proper meaning of the clause, can hardly be gainsaid,—at all events it seems unimpeachable when the author of the deed dies before any sale is made, although its application may be denied where the sale took place during his life. Even if these authorities should appear to contradict each other, and so far mutually destroy each other's credit, yet they deserved consideration in the case of Griffiths v. Ricketts, but they were not even quoted.

In Matson v. Swift the precise point arose; but there, the party seeking to enforce the conversion was the crown, demanding probate duty on the surplus. Lord Langdale held, that whatever were the equities between the parties claiming under the author of the deed, the crown had no right to ask the court to enforce those equities for its own purposes. This case was not cited in the argument on Griffiths v. Ricketts; and indeed, though the circumstances were similar, the position and rights of the parties claiming the interference of the court were so different, that the decision in one case could not govern the decision in the other. Yet several of his lordship's expressions in his elaborate judgment bear most clearly upon the case before Vice-Chancellor Wigram. As between the real and personal representatives, the question in what state the property is found, whether money or land, at the mortgagor's decease, matters nothing, as Sir James Wigram justly remarked (ante, p. 145). But as regards the payment of the probate duty, it matters every1 2 Conv. p. 144, n. 133, ed. 1840.

28 Beav. 368.

thing. "The probate," says Lord Langdale (8 Beav. 377), so far as it relates to the grant of administration, has regard only to the personal estate within the jurisdiction which the testator had whilst living and at the time of his death; and the probate duty is payable only upon the personal estate, i. e. upon the personal estate within the jurisdiction which he had while living and at the time of his death." But that Lord Langdale held no such principle as that involved in Sir James Wigram's decision appears clearly stated in so many words in a previous part of his observations.

66

"A conveyance by the owner of real estates upon trust to sell it for a particular purpose, as for payment of debts, with a direction to pay the surplus purchase-money to the owner, his executors, administrators and assigns" (which was almost in words the case as reported of Griffiths v. Ricketts), may have, and in some cases has" (not "necessarily must have in every case," the only mode of expression consistent with the decision in Griffiths v. Ricketts), "the effect of inducing this court to apply to the property, in whatever state it may be found, the rules of distribution which are commonly applicable to personal estate only."

After such a conveyance," his lordship proceeds, "an equity in the lands remains in the owner, and after satisfying the pecuniary claims which he has rendered obligatory, either out of the land itself or by other means, he may require the trustees to reconvey to him either the whole estate or any surplus of it; or may by declarations, which have been called 'slight,' take from the property the personal character which has been impressed upon it. If he do not intervene, and no sale is made in his lifetime, then at the time of his decease this court has jurisdiction to give effect to his apparent intention, and will for that purpose consider the person in whom the legal estate is vested (whether trustee created by the deed or heir entitled by descent), as a trustee for that purpose, but not for any other purpose; so that if there be not by the deed, by devise, or otherwise, an apparent intent to take the surplus from the heir, the heir will in equity be held entitled to the surplus, though it may have actually been converted into money by the trustees in making sales in pursuance of the trusts, and for the purposes of answering the intention actually appearing."

Certainly, it could not have been in the mind of the learned judge who uttered these words, that the supposed deed, the effect of which he was pointing out, did in itself contain an irresistible declaration of intention to take the surplus from the heir, and to bestow it on the next of kin, as Sir James Wigram held in Griffiths v. Ricketts; the circumstances in which were, in fact, exactly the same as in the case contemplated by Lord Langdale in the foregoing extract from his judgment.

The earlier authorities on the subject we shall not think it important to examine here; although authorities are, in fact,

not very numerous on the point, as may be seen by the ViceChancellor only referring to two. The earlier decisions are examined and summed up in Van v. Barnett, which, though relied upon by the Vice-Chancellor, we claim as making in favour of the heir; or rather, we lay aside as arising upon quite different circumstances. Biggs v. Andrews, the only other authority relied upon, we have shown to contain expressions which put the intention of the parties beyond a doubt; and to assume (before arriving at a decision in Griffiths v. Ricketts) that the expressions in the one case are the exact equivalent of the expressions in the other case, is a direct petitio principii. We have adduced one decided case directly contrary to this part of the judgment in Griffiths v. Ricketts; and we adduce the respectable authorities of Mr. Fonblanque, Mr. Hayes, Mr. Coote, Mr. Davidson,1 and others, supporting, acquiescing in, or going beyond, the decision in Wright v. Rose, besides the clear opinion of Lord Langdale in Matson v. Swift, in the same sense. But, dangerous as it would be to follow Griffiths v. Ricketts, it is extremely hazardous to disregard it, and it would be very desirable to have the point set at rest by a competent authority. Probably a middle term might be found, giving some effect to the express nomination of the executors and administrators of the mortgagor, by understanding these words to give the executors, &c. . the right to receive the money, but to hold it in trust for the heir, as before suggested. Whereas the case of Wright v. Rose, in which a general demurrer for want of equity was allowed, seems to deny all force whatever to this expression.

B.

13 Martin's Conv. 477, and n. Mr. Lewin (Trusts, 542) disapproves of it, but gives no reasons, and one very inadequate authority. The unanimity of two careful writers like Mr. Hayes and Mr. Davidson in such a case, a pure conveyancing question, is very important. Mr. Sweet professes to state and approve of the doctrine in Wright v. Rose, but apparently without being aware of the point decided or the facts upon which it arose. Mr. Fonblanque's view is very clear, quoting and relying upon Lord Thurlow's expressions in Rashley v. Masters, 1 Ves. jun. 201. The Court has sometimes gone too far, insisting that after the uses and possession are united in the same person, they shall yet go to the heir, unless there is some instrument or intention declared that it is to be considered personalty. But here the uses and possession were never together; therefore this is to be considered as land." See 1 Fonbl. b. 1, c. 6, § 9; 2 Fonbl. b. 1, c. 4, § 2.

ART. II.-LAW REFORM-JUSTICE TO SCOTLAND.

IN

N our last Number we took occasion to offer a practical review of the New Code of Civil Procedure of New York, and we now propose to extend our remarks to a more general consideration of the subject of law reform, as entertained in this country, and accomplished by the legislature of the chief American state. Nor shall we omit to pay a just tribute to the lawyers of Scotland, whose legal system has so remarkable a bearing on the changes proposed among us, but which has hitherto been so strangely overlooked. Law reform is still the great, the engrossing topic. The reflections to which it gives rise seem exhaustless; and the evil, the corruption, and abuse against which it is directed, are so manifest and so universally acknowledged, that intellectual inquiry is almost enervated by its very independence. Justice is at last putting English law on its trial-thoughts are free, and first principles are let loose on antiquated invention. But we would not speak without our book, nor allow that which some may not scruple to call a popular conceit to invert the fair order of presumptions. We would be wise in our generation, and put a check on the rashness of reforming judgment.

In a country like England, where the authority of the laws and constitution is so firmly established, it may be dangerous, and is at all times unwise to regard, without the cautions of hesitation and doubt, any suggested innovation. More especially ought such to be the reflection of honest allegiance when the proposed change is of a fundamental nature, and where administrative principle, and not mere administrative form, is in question. We believe it may be so predicated of the subject of this article. One more important, or more needing the guidance of the sound and well-informed judgment, could not occupy public attention. The movement, indeed, is such as in several of its features to appear to review with some severity not a few of the pages of English history. There is a demand for a change in our system of justice, uttered in such a tone, as, critical in the beginning and sceptical in the end, would make free with the pompous peculiarities of our traditional law. It is clear that had the recusant barons of England lived at the present day, their nollumus leges Anglia mutari would not have been enough, but they would have had to argue the question. Lord Mansfield would now be the most popular of judges, and Junius would be regarded as a dull and malignant empiric. The laity,