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NORTH in Edwards v. Standard Rolling Stock Syndicate (1893, 1 Ch. 574), but the circumstances constituting jeopardy were different.

In 41 SOLICITOR'S JOURNAL p. 109) we stated that the case of Gaskill v. Gosling (1896, 1 Q. B. 669), would "probably go further," and remarked on the likeness which the facts of the case bore to those in Cox v. Hickman (8 H. L. Cas. 268). On appeal to the House of Lords, the decision of the Court of Appeal was reversed, the judgment of Lord Justice RIGBY, who dissented from his colleagues, being approved (Gosling v. Gaskill, 1897, A. C. 575). In the House of Lords the Lord Chancellor prefaces his judgment with the following observation: "In this case I am of opinion that it is covered by authority. The case of Cox v. Hickman in this House appears to me expressly (sic.) in point" (1897) A. C. 579. It was accordingly held that the trustees of the debenture trust deed who had appointed a receiver were not personally liable for debts contracted by him in carrying on the business of the company. The wording of the trust deed in this case should, therefore, be carefully borne in mind by company draftsmen. Probably some other recent decisions of the Court of Appeal as regards debenture-holders' receivers would not survive an appeal to the House of Lords.

Debenture-holders have, of course, the right to inspect the register of mortgages required to be kept by section 43 of the Companies Act, 1862, and Mr. Justice STIRLING has held that the right to inspect includes the right to take copies (Nelson v. Anglo-American Land Mortgage Agency Co., 45 W. R. 171; 1897, 1 Ch. 130).

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REVIEWS.

THE GAME LAWS.

OKE'S GAME LAWS: CONTAINING THE WHOLE LAW AS TO GAME
LICENCES AND CERTIFICATES, GUN LICENCES, POACHING PREVEN-
TION, TRESPASS, RABBITS, DEER, GROUND GAME, DOGS, BIRDS,
POISONED GRAIN, AND WILD BIRDS THROUGHOUT THE UNITED
KINGDOM. SYSTEMATICALLY ARRANGED, WITH THE ACTS, DE-
CISIONS, NOTES, AND FORMS. FOURTH EDITION. By J. W.
WILLIS BUND, M.A., LL.B., Barrister-at-Law. Butterworth & Co.

A new edition of this valuable work will be welcome to many, especially when brought out under the editorship of one whose wide knowledge of the subject is so well recognized. The third edition was published twenty years ago, but a few years after its appearance two Acts of Parliament were passed of such importance to the subject treated that it was found necessary in 1881 to print a supplement in order to bring the book up to date. These Acts were the Wild Birds Protection Act, 1880, and the Ground Game Act, 1880; and the supplement dealing with them was published bound up with the third edition, which became thenceforth a rather clumsy book. This is, of course, all changed in the fourth edition, which, besides being brought quite up to date, is much better arranged than its predecessor. In former editions the statutes and forms were mixed up with the text. Now we have them conveniently collected in the appendix without notes other than page references to the preceding parts of the book. The consequence of this is that, while being increased in utility, the book has lost in bulk. Besides the statutes dealt with in the supplement of 1881, several Acts have been passed since the publication of the third edition which have made great and remarkable changes in the law relating to birds. In fact, as the learned editor points out, the Game Laws proper have now become of less importance than the general law as to wild birds.

The

Section 25 of the Companies Act, 1867, and the question whether shares not wholly or at all paid up in cash are in By the Wild Birds Protection Act, 1880, all wild birds are procertain circumstances to be treated as fully paid, have lately tected to some extent, and certain birds mentioned in the schedule been prominent. Section 25 is a short one, and provides that are particularly protected during a defined part of the year. By Every share in any company shall be deemed and taken to the consent of a Secretary of State) to prohibit the taking or the amending Act of 1894 powers are given to county councils (with have been issued and to be held subject to the payment of destroying the eggs of any wild birds, and also to extend the prothe whole thereof in cash, unless the same shall have been other-visions of the principal Act by adding to the schedule thereof the wise determined by a contract duly made in writing and filed names of any other wild birds. By the amending Act of 1896 powers with the Registrar of Joint-Stock Companies at or before the issue are given to county councils (subject to the same consent) to extend of such shares." The section can only be ironically described as the protection afforded to certain birds by the principal Act, so as to a "pretty piece of drafting." "Issued" is a somewhat doubt-prohibit the taking or killing of such birds during the whole or any ful word, and no one seems to know what "the same " refers to. part of the year. It will at once be seen, therefore, that the law as There has always been considerable doubt as to what sort of a changes, and can only be discovered with certainty as to any county to wild birds may differ in every county. It is liable to constant "contract must be filed, and considerable light has been by obtaining copies of the orders made for that county. thrown on this part of the section by the Court of Appeal appendix contains a large number of orders already made by the in Re Kharaskhoma Exploring and Prospecting Syndicate (1897, 2 several county councils, the collection of which must have given the Ch. 451). There were two agreements. By one of them, dated editor a vast amount of trouble. Any practitioner, however, who has the 17th of August, 1892, the K. syndicate agreed, for a con- to deal with any question touching game or birds, provided he is in sideration which was not cash, to allot to the C. company shares in possession of any orders which may affect his case, will find everythe syndicate, the allotment to be protected by a filed agree-thing else he may require in this book. We have discovered a few ment. The second agreement was under seal, and dated the the insertion of two lines in section 12 of the Game Act, 1831, which misprints. Amongst these may be particularly noticed, on p. 266, 31st of August, 1892. It recited that by the agreement of the makes the section ambiguous as far as the penalty is concerned. 17th of August it was agreed, "for the considerations therein mentioned," that the syndicate should allot the shares to the company, and as to the filing of the agreement, and then proceeded to provide that the syndicate should file the second agreement and allot the shares to the company, which shares should be deemed to be fully paid. It was held (reversing Mr. Justice VAUGHAN WILLIAMS' decision) that the omission of the consideration prevented the document filed from being a sufficient contract, and that the allottees were liable to pay up the full amount of the shares. It was also laid down that the agreement was contained in the two documents, and that if both had been filed the allottees would have been protected. The allottees are taking the case to the House of Lords.

The dinner of the Oxford Circuit to Mr. Justice Darling, in celebration of his recent elevation to the Bench, will take place at the Café Royal on Monday, January 17th. Mr. Jelf, Q.C., the leader of the Circuit, will preside. The annual social meeting in connection with the Royal Courts of Justice Temperance Society, of which Lord Herschell is president, was held, on the 10th inst., at Exeter Hall, Strand, when there was a very full attendance. The chair was taken by Sir Francis Jeune, who delivered a short address, in the course of which he said that the society endeavoured to afford aid, comfort, and pleasure to those among whom its members lived. Its real objects were summed up in the maxim, "To help to bear each other's burdens." During the evening an address and recitations were given by Mr. T. Harner Greenwood, of Toronto, and a programme of vocal and instrumental music was performed.

CRIMINAL LAW.

A SELECTION OF LEADING CASES IN THE CRIMINAL LAW (FOUNDED ON SHIRLEY'S LEADING CASES), WITH NOTES. BY HENRY WARBURTON, Barrister-at-Law. SECOND EDITION. Stevens & Sons. author's aim to make the work "a handbook for practitioners as well We are told in the preface to this edition that it has been the as for students." He may certainly be said to have succeeded in his object, for, while the book is undoubtedly valuable to the student, it is at the same time a useful book in practice. It may often be seen in the hands of counsel in criminal courts, and is especially welcome at assizes and quarter sessions in the country, where books of reference are not always easy to obtain "at a moment's notice." This edition contains some excellent new matter and a few additional leading cases. The most important of them are Reg. v. Silverlock (43 W. R. 14; 1894, 2 Q. B. 766), a valuable case on the indictment in false pretences; Reg. v. Lillyman (44 W. R. 654; 1896, 2 Q. B. 167), which decides that in cases of rape, &c., evidence is admissible of the matter of a complaint made by the female soon after the offence; Reg. v. Ring (17 Cox 491), which establishes the principle that a prisoner may be convicted of an attempt to commit larceny from the person without there being any necessity to prove that there was at the time of the attempt anything capable of being stolen upon the person of the individual against whom the attempt was made. As to the last-mentioned case, we do not think that the notes are quite adequate to the importance of the law as to attempt, nor do we

think they are up to the high level of the notes on the majority of the cases dealt with.

At the end of the notes on a case we very often find words to this effect, "Other cases on this subject are: " and then follows a long list of names of cases (in one instance, on p. 202, no less than thirtythree) without a word to indicate the nature of the decision in each Such a list cannot be of any real use, and might be very well omitted entirely. More time would be wasted in looking up these cases in the reports than by going to one of the larger works on criminal law, where the effect of each of these cases would probably be given.

case.

POLICE OFFICER'S GUIDE.

SNOWDEN'S POLICE OFFICER'S GUIDE. WITH AN EPITOME OF THE POLICE (ENGLAND) ACTS; THE POLICE ACT, 1890; THE CRIMINAL LAW CONSOLIDATION ACTS; THE LICENSING ACTS; THE SUMMARY JURISDICTION ACTS; AND DIGEST OF RECENT CIRCULARS OF SECRETARY OF STATE. TENTH EDITION. By T. O. HASTINGS LEES, Esq., M.A., Barrister-at-Law, Chief Constable of the Isle of Wight. Shaw & Sons; Butterworth & Co.

This book has now reached a tenth edition, and that fact alone shews that it has been found useful by the class for which, primarily, it is intended. This is the third edition for which Mr. Hastings Lees is responsible, and it would be hard to find any person whose career has better qualified him for such a task. He was once in the Royal Irish Constabulary; then he was Chief Constable of Northamptonshire; next he practised for several years on the Midland Circuit, and enjoyed a considerable amount of criminal business; and, finally, he returned to the police as Chief Constable of the Isle of Wight. The book is a very complete summary of all a policeman need know in order to regulate his dealings with members of the public, not only according to law, but also with discretion and humanity. Thus in dealing with breaches of the peace, the author says: "If the disturbance be of a serious nature, or if the offenders do not immediately desist, he should take them into custody but if the offenders desist, it is better to take their names and summons them. A constable should exhibit a great amount of forbearance before exercising his power of arrest.' Again, we read, "There is nothing recommends a policeman so much to the favourable notice of the public as kindness to the poor, to the helpless, and to children. Great forbearance should be shewn towards children who may be guilty of minor street offences. A policeman who knows his duty will reason with children committing minor offences, and point out to them that they are doing wrong.

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From lowest to highest we may divide police officers into three classes: first, there is the ordinary constable; next, the experienced superintendent or inspector, who, by his ability, has risen from the ranks; and, lastly, the chief constable, who is generally a man of superior education. The book may also be divided into three corresponding parts. The first part, on the powers and duties of constables, may be understood by the ordinary constable of intelligence, and it ought to be his duty to understand and know it; but the rest of the book is probably rather beyond him. The second part contains the law, in a summary form, on every subject that the officer is likely to have to deal with, and ought to be of great use to officers of superior rank. While the appendix, consisting as it does largely of statutes, will, in the main, recommend itself only to the highest class of officer.

This edition is well up to date, and contains references to quite recent cases. Amongst these may be noticed Powell v. Kempton Park Racecourse Co. (46 W. R. 8), which is cited on p. 90. On this page readers are referred to a summary of the judgment in the appendix. We are, however, quite unable to discover any such summary, or any

further reference to the case.

COLLISIONS AT SEA.

A TREATISE ON THE LAW OF COLLISIONS AT SEA. WITH AN APPENDIX CONTAINING EXTRACTS FROM THE MERCHANT SHIPPING ACT, 1894; THE REGULATIONS FOR PREVENTING COLLISIONS AT SEA; AND LOCAL RULES OF NAVIGATION FOR THE THAMES, MERSEY, AND ELSEWHERE. FOURTH EDITION. By R. G. MARSDEN, Barrister-at-Law. Stevens & Sons (Limited).

Since the last edition of Mr. Marsden's useful treatise the Merchant Shipping Acts have been consolidated by the Merchant Shipping Act, 1894, and a new set of rules for preventing collisions at sea have come into force. Besides bringing the old edition up to date, Mr. Marsden has inserted a chapter dealing with the history of the rule as to the division of loss in cases of collision. The extracts from the records of the High Court of Admiralty, upon which the author has spent so much useful labour in his edition of them for the Selden Society, shew clearly that those who first applied the rule were evidently at a loss to find in it either principle or reason. The rules

in force in other maritime countries are succinctly set out at the end of the chapter, and it is worthy of notice that countries whose interests are inimical have different rules. For example, in Germany if both ships are in fault, neither can recover; whilst in France the loss is apportioned according to the degree of fault in each ship. Holland and Belgium have different rules--Holland following the German rule, Belgium the French. The Spanish rule is different to the Portuguese. In Turkey the loss is divided according to the values of the ships, and in Russia neither vessel can recover.

In the appendix will be found the local rules of the road which are enforced in some of the ports round our coasts, and it is to be regretted that these have not been made complete by including the rules enforced within our dockyard ports.

Not only to lawyers will this carefully-prepared book prove invaluable, but seamen will find the explanations of the rules of the road of great assistance in helping them to more clearly understand the rules which so often govern the safety of life and property on the high seas.

CONVEYANCING.

THE STUDENT'S CONVEYANCING: BEING SPECIALLY INTENDED FOR THE USE OF CANDIDATES AT THE FINAL AND HONOURS EXAMINATION OF THE LAW SOCIETY. FIFTH EDITION. By ALBERT GIBSON and ARTHUR WELDON. The "Law Notes" Publishing Offices.

But if he uses it in

The preface to this edition states that the work, although originally written for students, is now largely used and relied on by practitioners, and we can quite understand that its sphere should have been thus extended. In a practical manner it goes through the leading points incident to the various transactions in which the conveyancer is engaged-sales, mortgages, leases, settlements, and wills and in each the matters which require attention are clearly explained. For the student to take full advantage of the book it is necessary that he should use it in the course of actual professional work. Apart from such assistance, the details, we should imagine, are too numerous to be successfully grappled with. this manner he will find it a reliable guide, and he will not be likely to bid farewell to it when he has passed his examination. The chapter on Abstracts of Title, in particular, is full of information on the points which are likely to arise in that connection, and under the head of Bills of Sale (pp. 314, 315) a convenient list is given of the special clauses and other matters which are permissible in these securities. On such points as constructive notice and assignments of equitable interests in trust funds, upon which Bailey v. Barnes (42 W. R. 66; 1894, 1 Ch. 25) and Ward v. Duncombe (42 W. R. 59; 1893, A. C. 369) are referred to as recent authorities, the cases are neatly grouped and their practical effect usefully stated. The editors have successfully brought the work up to date.

THE MERCHANT SHIPPING ACTS. THE MERCHANT SHIPPING ACTS, 1894-1897. WITH NOTES, APPENDICES, AND INDEX. SECOND EDITION. By JAMES DUNDAS WHITE, M.A., LL.M., Barrister-at-Law. Eyre & Spottiswoode. second edition of his book on the Merchant Shipping Acts shews That Mr. Dundas White, at this early date, has had to publish a that the book has proved of use not only to lawyers but also to the down to the end of August last. It includes much new matter, mercantile community. This new edition is revised and brought among which may be mentioned the Derelict Vessels (Report) Act, 1896. This Act makes it compulsory for commanders of ships to give to Lloyd's agents such information as they possess of the position of any floating derelict on the high seas. The volume also contains the Merchant Shipping Act, 1897, relating to the undermanning of ships, the new regulations for preventing collisions at sea, and many Orders in Council dealing with maritime matters. The book is carefully arranged and-what is so necessary in a work of this description-an ample index has been provided.

BOOKS RECEIVED.

The Practitioner's Probate Manual. Containing Instructions as to Procedure in obtaining Grants of Probate and Administration. With the Rules, Orders, and Fees, and Full Directions as to the Payment of Probate and Estate Duty. Seventh Edition. Waterlow & Sons (Limited).

Browne and Powles' Law and Practice in Divorce and Matrimonial

Causes. Sixth Edition. By L. D. POWLES, Esq., Barrister-at-Law. Sweet & Maxwell (Limited); Stevens & Sons (Limited).

Commentaries on the Law of Trusts and Trustees, as Administered in England and in the United States of America. By CHARLES FISK

BEACH, Counsellor-at-Law. In Two Volumes. R. James Berkinshaw.

they are entitled to exercise under the statute without any threat as to what may happen if they do not come to a conclusion acceptable to the Land Registry officials.

Conveyancing Costs (Rubinstein's). The Solicitors' Remuneration Act, 1881 (44 & 45 Vict. c. 44), and the General Order made in For fully thirty years I have been able to deal with my own freehold pursuance thereof. Being a Complete Guide to the Scale of Charges. properties North and South of the Thames, as well as with the proBy WALTER PERKS, Solicitor of the Supreme Court; assisted by perties of others, in all matters relating to the conveyance thereof J. F. C. BENNETT and F. P. CHARLES, Solicitors of the Supreme with ease and celerity. I confess I view, in common with many others, Court. Eighth Edition. Revised and Corrected up to date. Water-will necessarily arise when I am handed over to the tender mercies with grave apprehension the delays, difficulties, and expense which low Bros. & Layton (Limited). of the officers of the Land Registry. 2, Soho-square, Dec. 15.

The Bills of Sale Acts, with an Epitome of the Law as Affected by the Acts. By HERBERT REED, Q.C. Eleventh Edition. Waterlow Bros. & Layton (Limited).

W. J. FRASER.

CORRESPONDENCE.

THE LAND TRANSFER ACT.

[To the Editor of the Solicitors' Journal.]

Sir, The article which appeared in the Times of Monday last was no doubt inspired in view of the not unnatural objections which are necessarily being raised to the application of this measure to the whole administrative county of London. The details, moreover, were never discussed in either House of Parliament, simply because neither House was prepared to go into details, but had to trust to the representations which were made on the subject by those who were interested in procuring the passage of the measure through Parliament.

Now that the measure has become law, those authorities to whom has been entrusted the power of determining whether they will have it or not are being threatened with the universal application of the measure all over the country if they do not forego the exercise of the powers expressly conferred upon them by the statute, and accept the trial of the experiment in the form in which the authorities require it to be put in force. What was the use of giving county councils the opportunity of saying that they do not consider compulsory registration of title to be desirable, unless they are to

deal with the matter on its merits?

But the measure having been passed, although this power has been conferred, it is now proposed to coerce the local authorities by telling them that, if they do not waive their right to consider the question on its merits except they agree to a trial-then, whether they like it or no, compulsory registration shall be made universal.

Mr. B. G. Lake, in his paper read at the recent provincial meeting, insists that the area for the trial experiment should not be too large, and assumes that the whole county of London is not to be selected. As the matter is presented to the authorities, the proposal is to try the experiment in the whole of the administrative county of London. There is not the slightest reliable or trustworthy guarantee that the trial of the experiment will be confined within reasonable limits, supposing a trial to be decided upon.

I do not pretend to say whether the London County Council will or will not resolve that compulsory legislation is undesirable, but I do earnestly trust and pray that the trial of the experiment may be confined to a reasonable area, which unquestionably the whole of the administrative county of London is not; and I venture energetically to protest against the authorities holding the threat over landowners and others that unless the London County Council agrees to the trial, legislative efforts will be made to make the Bill compulsory throughout the whole of the country.

If the Legislature had not intended the county councils to exercise an intelligent and independent consideration of the question, why was the power to do so conferred upon them? Have the authorities so little confidence in the real merits of the question that they must thus early resort to threats? Surely the measure will bear dispassionate consideration. It is true that one of the most enlightened of the vestries of the metropolis is not in favour of granting the measure & trial. But if the vestry is wrong, the London County Council may be trusted to assert their right and to deal wisely with the question.

This is neither the time nor place to refer to the political aspect of the question, but those who happen to be for the time in office should remember that some consideration is due to those who helped to place them in power, and that an unwise and indiscreet exercise of the r power may be likely to have a disastrous result when the time for the renewal of the trust comes round.

A special responsibility rests upon Mr. B. G. Lake. It is to be hoped that the authorities, having made all the use of him that they wanted to since the passing of the Act, are not now going entirely to throw him over and to reject his counsel. He is not generally deficient in determination, and I heartily trust that, as he considers a trial of the experiment to be desirable, he will use bis best exertions to confine the experiment within reasonable limits, and to secure to the London County Council that freedom of action which

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material.

These were appeals from two orders, the one made by Ridley, J., as Vacation Judge, on the 14th of October, 1897, and the other, a consequential order, made by North, J., at chambers, on the 15th of November, 1897. The action was brought by a debenture-holder in the Maskelyne British Typewriter (Limited), suing on behalf of himself and all other holders of debentures of the same series (except the London and Northern Debenture Corporation), and was for the purpose of enforcing the security. Mr. J. M. Maclean, M.P., was chairman of the company, and also of the London and Northern Corporation. The debentures contained certain conditions, of which the following were The principal moneys were to become payable if a distress were levied on demand of payment by the registered holder. At any time after the any of the property of the company and not promptly satisfied, and on principal moneys had become due the registered holder might, as if he were a mortgagee within the meaning of the Conveyancing Act, 1881, appoint a receiver or receivers, who should have power to take possession and to carry on the business of the company. The plaintiff was the holder of debentures to the amount of £1,870. In October, 1897, a distress was levied and not satisfied, and before the end of the month the company passed and confirmed a resolution for a voluntary winding up, Akers, the secretary of the company, being appointed liquidator. În October, also, the plaintiff and the corporation demanded payment of their debentures. Payment not being made, the plaintiff commenced debentures, appointed a receiver, Akers the secretary, who went into this action; and, subsequently, the corporation, under the power in their possession. Stuart moved for the appointment of a receiver in the action, and Ridley, J., appointed Akers receiver in the usual way on giving security. Akers, however, did not consent to this order, but relied upon his appointment by the corporation, and he continued in possession without giving security. On the 16th of October Maclean wrote as follows to the company's solicitors: "We were reluctant to use our authority as debentureholders until we were forced to do so by Mr. Stuart, and have only interfered in order to protect our interests as the largest shareholders in the company. These interests are the same as those of the whole body of shareholders. I hope it may still be possible for us to save the concern." the supervision of the court, and another liquidator was appointed. On In November, 1897, an order was made to continue the winding up under the 15th of November, Akers not having given security, North, J., on a summons taken out by the plaintiff, appointed one W. F. Marreco receiver and manager on giving security. The corporation appealed against the orders made by Ridley J., and North, J.

THE COURT (LINDLEY, M.R., and CHITTY and VAUGHAN WILLIAMS, L.JJ.) dismissed the appeal.

LINDLEY, M.R., said: In this case it appears to me that the whole question turns upon the admissibility in evidence of the letter of the 16th of October, 1897, and upon the true inference to be drawn from that. It is necessary, therefore, to say a few words about what I will call the bargain between the parties, by which term I mean the debenture-holders themselves as well as the mortgagor company. The mortgagor company wished to borrow money, and for that purpose issued debentures to (amongst others) the London and Northern Corporation. By the terms of the debentures the corporation has now the right to appoint a receiver, and as between the corporation and the mortgagor there is nothing more to be said. But we have also to consider on whose behalf the power of appointing ought to be exercised. That power was not conferred for their own exclusive benefit, for it is part of the bargain between the parties that the whole issue shall rank pari passu. Therefore the right for which themselves and the other debenture-holders, to exercise for the benefit of the corporation stipulated is a right which they are bound, as between the whole of the debenture-holders. They were trustees for themselves and the other debenture-holders. That is the peculiarity of this case-that there is a quarrel between the corporation and the other debentureholders. The plaintiff is the holder of some debentures, and he says that although the corporation have a right to appoint a receiver-a right which it would be extremely difficult for the mortgagors to control-yet they

must exercise that right for the benefit of all the debenture-holders, and
not for the benefit of the mortgagor company, or for their own benefit as
holders of shares in that company. That case, I think, is unanswerable
in point of law. If the plaintiff makes out his allegations he can call
upon the court to interfere, for in a controversy like this the court, beyond
all question, has jurisdiction. What we are asked to do is not contrary
to the bargain between the parties; quite the reverse. It is enforcing
that bargain. The plaintiff is justified, if he can make out that case, in
coming to the court and asking it to control the corporation in the
exercise of their power of appointing a receiver so as to secure the carrying
out of the bargain between him and the other debenture-holders, on whose
behalf he sues, and the corporation. The plaintiff alleges that the cor-
poration is really presided over by Maclean, who, he says, is their chair-
man, and their manager and agent in these litigations. I think there is
evidence of that if you read Maclean's two affidavits together. I find that
he is the person who is acting for the corporation in these proceedings and
giving instructions on their behalf. He is, therefore, their agent for such
purposes. Now, we find Maclean writing to the solicitors of the company
a very extraordinary letter, dated the 16th of October, 1897, two days
after the corporation had, pursuant to the power conferred by the deben-
tures, appointed Akers receiver. The meaning of that letter clearly is
that the corporation had made the appointment, not to protect their co-
debenture-holders, but to protect their own interests as the largest share-
holders. The language convinces me that it had been done, not in the
interest of the debenture-holders at all, but in the hope that it might still
be possible to save the company. Now, I regret that Mr. Maclean, who
is abroad, has not had an opportunity of commenting upon that letter.
We can only act upon the evidence before us, and on that evidence I think
the plaintiff's allegation is absolutely made out. If so, it is not only
within our jurisdiction, but it is certainly right and proper for us to hold
that, since the corporation have exercised their power, not for the pur-
pose of protecting the interest of the debenture-holders, but for a purpose
adverse to that interest, it is competent for the plaintiff to apply for the
appointment of another receiver. I think this is a case in which it is
proper for the court to exercise its jurisdiction and protect the plaintiff by
appointing the receiver so asked for.
CHITTY and VAUGHAN WILLIAMS, L.JJ., delivered judgment to the same
effect.-COUNSEL, Vernon Smith, Q.C., and W. F. Hamilton; Swinfen Eady,
Q.C., and F. Whinney. SOLICITORS, Baker, Blaker, & Hawes; Chester & Co.
[Reported by R. C. MACKENZIE, Barrister-at-Law.!

Re STEVENS, COOKE v. STEVENS. No. 2.

9th Dec.

has been diminished by the amount of interest which would have been saved if the security had been realized sooner. The security was a policy for £676 on the testator's life; he had deposited it with other documents of value with his bankers, and at his death there was due to them on those securities £1,700 odd. The policy was pledged for much more than it was worth. If the executors had in their hands assets sufficient to pay the debts of the deceased, including the debt due to the bankers, the executors ought to have paid the bankers off; and if, instead of doing this, they kept assets in their hands and allowed interest to run up against the estate, and ultimately had to pay more than they would have had to pay if they had not delayed paying the bankers the amount due to them, the executors would have been guilty of a devastavit, and would be disallowed the interest thus unnecessarily paid by them. The policy was not assigned to the bankers, and they could not give a valid receipt for the policy moneys without the concurrence of the executors. Moreover, the insurance office which had to pay the policy would not pay the bankers, even with the concurrence of the executors, until the testator's will had been proved. For some reason or other the executors did not wish to prove it, and although eventually one of them did prove the will, the other has not proved it yet. As soon as the will was proved the bankers, or, rather, a person to whom they had assigned their debt and their policy, obtained the policy moneys, with the assistance of the executor who had proved, and the debt was reduced by the amount received from the insurance office. It must not be overlooked that although the executors' accounts have not yet been certified, they have been fully investigated, and there is no proof even now that the executors did wrong in not paying off the bankers and so reducing the policy and getting in the asset which it represented. In the absence, however, of such evidence I am unable to see how a case of wilful default can be established. If debts are paid in the wrong order to the detriment of the creditor the executor is of course answerable. The payment would be disallowed in taking the account of the receipts and payments. But the payment of debts even in a wrong order is not a wrong entitling a legatee to relief, nor does such payment amount to wilful default; and it is wilful default which we have to consider here. It is urged that it is the duty of an executor to prevent any loss to his testator's estate which it is in his power to prevent. But this proposition is far too wide, as is shown inter alia by Turner v. Turner (1 Jac. & W. 39), in which it was held that an executor's right of paying one creditor before another justified him as against a legatee in paying even a simple contract debt not bearing interest in preference to a specialty debt bearing interest, although the estate was diminished by the additional interest which had ultimately to be borne. A wrongful payment is one thing, and can be set right by disallowing it when the executor brings in his account. But if it is sought to charge him with loss attributable to some other breach of duty, call it wilful default or by any other name, such breach of duty must be proved, and if no sufficient proof or even prima facie evidence of it is given it is not right to insert in the judgment any declaration of liability, or even an inquiry as to liability based upon such supposed breach of duty. In the present case no evidence of any such breach of duty has been given, and the attempt to charge the executors with more than they have received has failed. Whether any payment, by which the executors seek to discharge themselves, ought or ought not to be disallowed must be decided hereafter. That question is not before us now. This appeal fails, and must be dismissed with costs. I have preferred to base my judgment on the above ground rather than to investigate the question whether executors who delay proving their testator's will can be rendered liable for losses which they could have avoided if they had proved it earlier. In the present case the will has been proved by one of the defendants, and the acourt, therefore, has the probate before it. The probate shows that both defendants are appointed executors by the will, and it is proved that both of them have accepted the office of executor by acting in the administration of the testator's estate. Under these circumstances I fail to see upon what principle they can derive any benefit from delaying to obtain probate. It appears to me that, having accepted office, they ought to be treated as executors as from that time, and not simply as executors de son tort, as their counsel contended. It is unnecessary, however, to pursue this inquiry. The appeal must be dismissed with costs.

9th, 10th, 11th Nov.; EXECUTOR-ACTING BEFORE PROBATE-DELAY IN PROVING WILL

RECOVERING OUTSTANDING ASSETS-WILFUL DEFAULT.

Appeal from a decision of North, J. (reported 45 W. R. 284; 1897, 1 Ch. 422). Gardner Christopher Stevens made his will on the 12th of February, 1880, and appointed Charles Frederick Stevens, Matthew Sallitt Emerson, and John Sewell executors. The testator died on the 23rd of December, 1882, and the will was proved by C. F. Stevens alone on the 15th of October, 1889. The testator was entitled to a policy of £676 in the Scottish Widows' Assurance Office payable on the 21st of March, 1883. This sum was paid on the 18th of November, 1889, with £45 18. 4d. interest at the rate of 1 per cent. from the 21st of March, 1883, to the 21st of November, 1889. The policy was mortgaged to the testator's bankers, Messrs. Gurney, as security, and was in their possession at the time of his death. Meanwhile interest at the rate of 5 per cent. was paid upon the mortgage debt due by the testator, and the difference in interest thus paid and received was £157 14s. 8d. Emerson was solicitor and denied that he had acted as an executor, but he had acted as solicitor for Stevens, who subsequently proved the will with regard to certain actions against the estate of the testator. All the three executors named in the will wrote a letter to the Scottish Widows' Assurance Society on the 28th of July, 1883, requesting that the policy moneys might be paid to Messrs. Gurney, being creditors of the testator, but the society declined to make the payment until probate was taken out. The action was brought by one of the residuary legatees asking for an administration decree against both Stevens and Emerson upon the footing of wilful default. North, J., directed the ordinary accounts to be taken against both the defendant executors, but declined to make any order on the footing of wilful default. The residuary legatee appealed. THE COURT (LINDLEY, M.R., and CHITTY, and VAUGHAN WILLIAMS, L.JJ.) dismissed the appeal.

Dec. 9.-LINDLEY, M.R.-In this case a residuary legatee has brought an action against his testator's executors seeking not only the ordinary accounts of their receipts and payments, but also an account against them on the footing of wilful default. So far as the plaintiff seeks to charge them with wilful default the action has been dismissed with costs, and from this decision the plaintiff has appealed. The testator's assets got in by the executors are said not to be sufficient to pay his debts. Hence the importance of the case to the plaintiff. Two acts of wilful default are relied upon and have to be considered. The first is that the executors omitted to get in a debt alleged to have been due to the testator at his death from a person named Clarke. The facts as to this are complicated and the pleadings are somewhat embarrassing. But, having regard to the mode in which this part of the case was dealt with in the court below, it would be unjust to the defendants to treat the pleadings as admitting that there was such a debt, and so far as evidence goes no such debt was proved either before North, J., or before us. The next act of wilful default charged was the omission on the part of the executors to enable a secured creditor of the testator to realize his security sooner than he did. The consequence of this omission was that the testator's estate

CHITTY, L.J.-North, J., has dismissed the action so far as it claims relief, on the footing of wilful default, and has made against both the defendants, Stevens and Emerson, as executors, the common decree under which they have to account for assets received. The will was not proved until 1889, nearly seven years after the testator's death, when probate was obtained by Stevens alone. The probate shews that Emerson also was appointed executor. North, J., has held that he accepted the office by intermeddling with the assets in 1883. There is no appeal from this part of the judgment. The statement of claim raised several cases of devastavit or of wilful default against the executors; but the appeal is confined to two. The first is the case of Clarke, an alleged debtor, which may be disposed of in a few words. The plaintiff, who is one of several residuary legatees, failed to prove that there was any debt owing by Clarke. Proof of the debt is the foundation of a wilful default decree. When the debt is proved the burden is thrown on the executor to shew why he did not get it in: Styles v. Guy (1 Mac. & G. 422) and Re Brogden, Billing v. Brogden (37 W. R. 84, 38 Ch. D. 546). I am satisfied by the judge's notes and the statements of counsel that, although the £4,000 promissory notes given by Clarke to the testator were mentioned, the only substantial contest before North, J., was confined to the £395. The evidence put in, consisting of the agreement and the valuation, coupled with the admission that notes for £4,000 only were taken, and the fact that Clarke was in court and could have been called by the plaintiff, all went to shew that the £395 was not owing at the testator's death. The inference was that that sum had been paid or satisfied in the testator's lifetime.

that any of the residuary legatees could have cited them to take or refuse
probate. It would seem that this is the only remedy against executors
for not taking out probate.
VAUGHAN WILLIAMS, L.J., gave judgment to the same effect. Appeal
dismissed.-COUNSEL, Butcher, Q.C., and Methold; Swinfen Eady, Q.C.,
and Christopher James. SOLICITORS, S. S. Seal, for Steavenson, Darlington;
White & Co., for Emerson, Norwich.
[Reported by W. SHALLCROSS GODDARD, Barrister-at-Law.]

High Court-Chancery Division.
BOORD v. AFRICAN CONSOLIDATED LAND CO. North, J. 10th Dec.
COMPANY-REGISTER-INSPECTION-COMPANIES ACT, 1862 (25 & 26 VICT. c.

89), s. 32.

This was a motion by two shareholders in the defendant company asking for an injunction restraining the company from refusing to allow them to inspect the register and take copies of it. The plaintiff's shares had been forfeited by the company. The names of shareholders whose shares purported to be forfeited had a red line drawn through them, but the company contended that the name, although still able to be read, did not form part of the register. Holland v. Dixon (37 Ch. D. 669), Mutter v. Eastern and Midland Railway Co. (38 Ch. D. 92), and Nelson v. AngloAmerican Land Mortgage Co. (1897, 1 Ch. 130) were cited in support of the plaintiffs' application. The company denied the right of the plaintiffs to take copies, and said that, as their shares had been forfeited, they had ceased to be shareholders.

NORTH, J.-The present application is that the company may be restrained by injunction from preventing the plaintiffs at reasonable times inspecting and taking extracts from the register. The case is, in my opinion, covered by authority. Where there is power to inspect the register there is power to take copies. Holland v. Dixon and Mutter v. Eastern and Midland Railway Co. are clear authorities, unless there is a distinction, because this is an application section 32 of the Companies Act, 1862. It is said as the plaintiff's can have a copy if they pay the company for it, their right to take copies is excluded. In my opinion the power to call on the company to give copies is an additional privilege, the plaintiffs can take notes as well as call on the company to give them copies, and the right to inspection is clear. The plaintiffs must have the costs of the motion in any event. COUNSEL, Swinfen Eady, Q.C.; Stewart Smith; Vernon Smith, Q.C.; W. Higgins. SOLICITORS, Wyatt, Digby, & Co.; Burgoyne, Watts, & Co.

[Reported by G. B. HAMILTON, Barrister-at-Law.]

The other case relates to the policy for £676, which became payable in March, 1883. This policy was mortgaged by the testator with other securities for an amount far exceeding the sum recoverable under the policy. The mortgage, which was held by the testator's bankers, was effected by a deposit of the policy and a memorandum. As there was no assignment of the policy within the Policies of Insurance Act, 1867, the bankers could not sue the insurance office. The right of action at law remained vested in the executors. But inasmuch as the policy was equitably mortgaged for an amount in excess of its value, the executors, assuming they had proved the will, could not have sued for or recovered the policy moneys or any part of them. They were not entitled to receive the moneys without the consent of the mortgagees, and there is no evidence or even suggestion that the mortgagees would have consented to the receipt of the moneys by the executors. The only proceedings which they could have taken against the bankers or their assignees, Mann, was an action to redeem in which they might have joined the insurance office as defendants. The result appears to be this; the executors could not be charged under what is termed a wilful default decree. Under such a decree the executors are charged with what they have received or might have received but for their wilful default or neglect. But the case does not rest here. If on the facts proved a case of devastavit by negligence is established other than what is technically termed wilful default, the court ought to make the proper declaration against the executors. The loss alleged is the difference between the interest allowed by the insurance office and the interest which the mortgage debt carried, a difference of 4 per cent. The charge made by the plaintiff's pleading is not merely for wilful default, it is also for a devastavit. I pause for a moment to say that on taking the common account of their receipts, executors can properly be and are often charged with a devastavit arising on the accounts themselves. On taking the account they stand charged with their receipts; and if they seek to discharge themselves by unlawful payments their discharge is disallowed. Further, if on taking the accounts it appears that the executors have improperly retained balances in their own hands, they are liable to be charged interest on the balances, although no such charge is raised on the pleadings. For this purpose an additional inquiry is generally directed. The charge of interest, when it is made by the court, rests upon the foundation of a devastavit. Where a charge of the nature now under consideration is made by the pleadings, the general rule is that it ought to be disposed of at the trial (see Smith v. Armitage, 24 Ch. D. 727, 31 W. R. Dig. 78). But the rule is not universal, and there may be, and are, cases where it would be proper to direct an inquiry. The plaintiffs' counsel on this appeal ask for a declaration of liability, or, in the alternative, for an inquiry. Now, in this case there is the fact that an order for administration against Stevens alone had been made at the instance of another residuary legatee. The accounts had been taken and were ready for the chief clerk's certificate, but no certificate had been made. North, J., stayed all further proceedings under that order with liberty to adopt the proceedings under it in this action. It is plain that the numerons charges in the plaintiff's pleadings in this action are in great measure founded upon a knowledge of the accounts in the former action. The charge against the executors resolves itself into a charge that they were answerable to the plaintiff and other the residuary legatees for loss arising from their negligence in not paying off sooner than they did the interest-bearing debt secured by the mortgage. This charge does not appear to me to rest upon the question whether it was their duty to have proved the will sooner than they did. I will assume that they cannot set up their delay in proving the will as a defence, and that they stand in the same position as if they had both proved the will in 1883, when, by inter-house and furniture and monetary residue for the remainder of your life." meddling, they accepted the office. But to make good the proposition that the executors are liable for not paying off the mortgage, or in other words for not redeeming it, it is incumbent on the plaintiff to shew that the executors had assets which they were bound to apply in redemption of the mortgage. I say "bound to apply" advisedly, because here there comes in the right of an executor to prefer one creditor to another of the same degree at any time before a decree for administration is made by a court of equity. Some few years ago an attempt was made to interfere with this right by appointing a receiver; but it is now established that a receiver ought not to be appointed merely for the purpose of depriving the executor of his right of preference. It suffices to refer on this point to Stirling, J.'s, decision in Re Wells, Molony v. Brooke (39 W. R. 139, 45 Ch. D. 569), where the authorities are cited and dealt with. Where an executor has assets in his hands which he ought to apply in payment of an interest-bearing debt he is liable for the loss to the estate occasioned by his unjustifiable neglect and delay in paying the debt (see Seaman v. Dee, Administrator of Everad, 2 Lev. 40). But he is not liable for loss accruing to the estate by reason of his paying, in exercise of his right to prefer, a non-interest-bearing debt before an interest-bearing debt. This is established by Turner v. Turner (1 J. & W. 39) and by Robinson v. Cumming (2 Atk. 409), where the executor's claim for fifteen years' interest on his own interest-bearing debt was allowed. The plaintiff has not proved or attempted to prove that the executors had at any time before the actual payment of the mortgage debt assets in hand sufficient for its payment, much less that they had assets which they were bound so to apply. There is not even an allegation to any such effect in the plaintiffs' statement of claim. For these reasons I think that no declaration of the executors' liability ought to be made, and on the facts that no sufficient ground has been shewn for granting an enquiry. It will be observed that I have not rested my judgment on any supposed duty of the executors to obtain probate. It may be that their delay in obtaining probate would not afford any defence to a charge of wilful default or of negligence for which otherwise they were accountable. My opinion is that it would not. It is plain that the mortgagees, being creditors, and

Re TOMLINSON, TOMLINSON v. ANDREW. Kekewich, J. 14th Dec.
WILL-LEASEHOLDS-LEGAL TENANT FOR LIFE-LIABILITY FOR RENT AND

REPAIRS-TENANT FOR LIFE AND REMAINDERMAN.

By his will dated the 19th of January, 1891, Charles Tomlinson gave and bequeathed to his niece Mary Tomlinson (inter alia) the house in which he then resided, being No. 7, North-road, Highgate, for the term of her natural life" and after her death to go to George Andrew and his wife, my niece, Mary Andrew, for their benefit and that of their family of children." In a letter to the said Mary Tomlinson dated the 20th of June, 1894, which was admitted to probate as a codicil to the said will, the testater wrote as follows: "I leave you in absolute possession of the The house referred to was a leasehold house held by the testator under an indenture of lease dated the 28th of December, 1867, for the term of ninety years from the 25th of December, 1867, at a yearly rent of £10. The lease contained the usual covenants by the lessee to pay the rent, rates, and taxes, to insure, keep in repair, and paint, and to deliver up at the end of the term in good and substantial repair. Neither the will nor codicil contained any provisions relating to the house other than those above stated. The testator did not appoint trustees of his will. The testator died on the 15th of February, 1897, and his will and codicil were duly proved. This was a summons taken out by his executrix, the said Mary Tomlinson, for the determination (inter alia) of the following question-viz., whether upon the true construction of the will and codicil the plaintiff Mary Tomlinson was liable to pay the rent reserved by, and perform the covenants by the lessee contained in, the said lease under which the said house was held, or by whom the same ought to be paid and performed. On behalf of the plaintiff it was argued that the tenant for life was entitled to enjoy the house free from liability on the covenants, and the following cases were referred to: Re Courtier (35 W. R. 85, 34 Ch. D. 136), Re Baring (41 W. R. 87; 1893, 1 Ch. 61), and Re Redding (45 W. R. 457; 1897, 1 Ch. 876); Hickling v. Boyer (3 Mac. & G. 635), and Re Hotchkys (34 W. R. 569, 32 Ch. D. 408).

KEKEWICH, J.-This case differs from the cases cited in that here we have a direct gift to the beneficiary. It has been argued that this being a direct gift must be a gift cum onere, and all the more so because there are no trustees. The answer to that is, to my mind, that this being a lease of the testator's, he is liable to perform the covenants of the lease, and this liability is a burden on his estate, and his executors are bound to discharge it and to see that it is discharged. The executors would be liable in an action on the covenants, and if they are, there is no substance in the argument that they cannot enter upon the property to do the repairs; they are entitled to say to the tenant for life that they must come on to the property to do them. I think I am bound to adhere to the view I took in Re Baring of Re Courtier, and to decide this question on the general law. A case before Lord Truro has been referred to, but I do

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