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will being good by Belgian law, was also good by the law of the Congo Free State, and was therefore well executed under 24 8; 25 Vict. c. 114. Hence it prevailed over the will of 1891.

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Two rather important matters in connection with the dproposed application of the Land Transfer Act, 1897, to Lon on have occurred during the past week. In the first place, it appears that, in consequence of Mr. Gr:non’s having called the attention of the Lord Chancellor to the breach of faith involved in sending the draft order to the London County Council before the lst of Januafiy last, Lord HALSBURY has intimated that “ the Privy Counc' will not carry any order into effect without the most careful consideration of any representation by the London County Council made within three months from the commencement of the Act, notwithstanding that, technically, the locus stamli of the Council will terminate on the 26th of February.” As the present county council are to come to a decision on the matter on the 15th of February, this is not much of a boon. It is not very likely that the new county council will reverse a decision of their predecessors, but the extension oi time may enable them to do so if they think fit.

The other matter is the report presented by the General Purposes Committee of the London County Council, which we print elsewhere in full. As we all know, the committee applied to the metropolitan vestries and district boards, and also to seventeen railway companies, the Incorporated Law Society, the Institute of Bankers, the Building Societies Association, the Ecclesiastical Commissioners, and two or three large estate owners in the metropolis, asking them to state their views on the question of the Land Transfer Act being applied to London. Out of the vestries and district boards who have replied, there are twelve in favour of the application of the Act, and twenty-one against it. Eight London building societies, and apparently Mr. B. G. Lam: and Mr. RtmnNs'rnm, have, on their own initative, sent in petitions and letters to the Council, and upon the whole of the communications received by them, the result is that only the twelve vestries and dstrict boards above mentioned and Mr. B. G. Lam: are in favour of the Act being applied to London, while no fewer than forty-four are against its application to London. The bodies dissenting comprize, as already stated, twenty-one vestries and district boards; also eight great railway companies, the Institute of Bankers, the Building Societies Association, the Auctioneers’ Institute, the Incorporated Law Society, eight land or building societies, and last, not least, the Ecclesiastical Commissioners. The weight of authority, as well as of numbers, was clearly against the application of the Act; and it would be ridiculous to pretend that all these dissentient bodies could be stimulated to opposition by solicitors. The Ecclesiastical Commissioners, for instance, can hardly be supposed to be a body very amenable to influence; yet they strongly deprecated the application of the Act to London on the grounds of the expense and delay which it would occasion, and of the impediments which compulsory registration would probably throw in the operation of many of the statutes administered by the Commissioners.

Here was, therefore, a ditficult problem for a committee which presumably wanted to report in favour of the application of the Act. They had asked advice, and had been favoured with an overwhelming expression of opinion against its application. What was to be done? The happy thought appears to have occurred to the committee to apply to the authorities to furnish them with a handle, in the shape of some concession, to enable them to decline to veto the application of the Act. They got a reply stating that the intention was that the order should be made to take efiect “ progressively according to a division of the county (i.a., the county of London) into convenient areas not less than four in number,” the first area to be selected with a view to the utilization of the existing Land Registry Ofiice in Lincoln’s-inn-fields as the land registry of the district. This, the council are solemnly assured, will afiord them “such an opportunity as the county council appear to desire of estimating the value of the work as it proceeds, and

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of watching generally the progress of the Act.” If this has any meaning, it would appear that the first Order in Council is to be restricted to the small district suggested, and that the county council are to have the opportunity of vetoing any further extension of the district. If this is so, there will be a fairly reasonable compromise. But it must be remembered that the Order in Council which has been submitted to the county council proposes to apply the Act to the whole of London, and that, if this order is not vetoed by the county council within the period prescribed, the Land Registry will be left ireeto extend its operations over the whole county of London when and as it likes, and whether such operations are successful or not.

The committee have declined to advise the council to veto the application of the Act to London, and have recommended that a meeting of the council should be fixed for the 15th of February to consider the question of the application of the Act to London. It is significant that, in adopting this recommendation, the oouncil directed a copy of the committee’s report to be forwarded to the Land Registry for observations, and a copy of the observations of the Land Registry to be placed on the agenda for the special meeting. Every effort should be now directed to securing that the progressive taking effect of the order shall be made a reality; the first order assented to by the London County Council being for the first of the four districts only. We are sorry to say, however, that we do not believe the Land Registry have the slightest intention of allowing their hands to be thus fettered unless they see there is no other way of getting hold of London.

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IN spite of the greater certainty introduced into the system of the disclaimer of leaseholds by section 55 of the Bankruptcy Act, 1883, the subject is one in which questions of difficulty still from time to time arise. The general principles of the system as now established can be very shortly stated. Whenever any part of the property of a bankrupt consists of leaseholds burdened with onerous covenants, the trustee, notwithstanding that he has endeavoured to sell or has taken possession of the property, or exercised any act of ownership in relation to it, may within twelve months of his appointment disclaim_ the property by?vY-iting signed by him. The effect of the disclaimer is to determine as from its date the rights, interests, and liabilities of the bankrupt and his property in respect of the property disclaimed, and to discharge the trustee from all p6_1'sonal liability as from the date when the property vested 111 him; but, save for efiectuating these purposes, it does not affect the rights or liabilities of any other person. The trustee's right to disclaim is not, however, absolute. In generfll 11° must obtain the leave of the court, and this gives the court the opportunity of imposing such terms as it thinks just as B condition of granting the leave. Moreover, if any pe1'B_011 interested in the property calls upon the trustees to de§ld_° whether he will disclaim or no, the twelve months’ _l1r1{1t is abrogated, and the trustee must give his decision vgtlllll twenty-eight days, or such extended time as shall P0 allowed y the court. Failing this, his power to disclfllm is gone. The difficulty in disclaimer is that the lease 13 at an end as between the bankrupt and his trustee and the landlord, and yet there may remain a number of persons whose rights must be determined on the assumption that the lease 15 still subsisting. To put an end to this inconvenient state of things, the court is enabled to vest the disclaimed property 111 any person entitled thereto, but where such person isr an under‘ lessee or a mortgagee by sub-demise, he may be reguired_at the same time to take over the liabilities of the bankrupt in reap?“ if the property. A person injured by the disclaimer is desmod a creditor of the bankrupt to the extent of the injury, and ml)’ prove for the same as a debt under the bankruptcy. In 6°11‘ sidering the subject more in detail it will be convenient $0 arrange it under the following heads: (1) The position °f_ " trustee who does not disclaim; (2) the trustee’s right to dis

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claim ; (3) the effect of disclaimer upon the bankrupt and his estate and upon the trustee; (4) the effect of the disclaimer upon third persons; (5) leave to disclaim; (6) application to the trustee to decide as to disclaimer; (7) vesting orders; and (8) proof for injury done by the disclaimer.

1. Tfie position of o trustee who does not disclaim.--A trustee in bankruptcy has the power of disclaiming, but subject to this power the leaseholds of the bankrupt vest in him absolutely under section 55 of the Act of 1883, and this result does not in any way depend upon his election to take them (Wz'lson v. Wallani, 5 Ex. D. 155; Tfttertan v. Cooper, 9 Q. B. D. 473). Consequently the trustee, as an assign of the lease, is personally liable under the lease as from the date when the lease vests in him-—that is, as from the date of his appointment; and from that date he is liable for rent accruing due and for breaches of covenant, though not for rent accrued due or breaches committed before his appointment (Wilson v. Wallani; Tilterton v. Cooper). His liability can be terminated, however, as in the case of any other assignee, by assigning the premises over (see Wilkins v. Fry, 1 Mer. p. 265). And, provided the assignment is a real one, he may assign to a pauper for the express purpose of ridding himself of liability (lfoplineon v. Love-ring, 11 Q. B. D. 92; Onalow v. Corrie, 2 Madd. 330). It makes no difierencegthat the lease contains a covenant against _a'§"s1gnizig without licenc_e (Rel.T<271nson§'7lTl'JI“T."38T); “A release of the trustee under section 82 of the Act will secure him against any claim made by the lessor in the bankruptcy, but will, apparently, be no protection against claims prosecuted in any other jurisdiction (Ea: parts Carter, 8 Oh. D. 731). But the trustee is entitled to indemnity out of the estate of the bankrupt (Lowrey v. Ba/ricer, 5 Ex. D., p. 173).

2. The trustoe’a right to din-lafm——The trustee’s right to disclaim is not limited to such property of the bankrupt as is divisible among creditors under section 44. The word “property "in section 55 is to be taken in the wider sense given to it in the definition clause (section 168), and it includes, therefore, property of the bankrupt from which no benefit can accrue to him, as property which he has already contracted to sell. Hence leaseholds \ll_1_ich have been _so__sold can be disclaimed it the purchaser assentsB(Ré 1[5u_qfi}in,14 Q. B. D. 956), though, if he does not, it seems that the trustee must carry out the contract and assign to him upon his giving a proper indemnity (Ea: parts Edmomls, 48 L. T. 77). If the bankrupt has gilgnpd the property by way of mortgage, the trustee is not lra e on the covenants either by privity of contract or of estate ; consequently the equity of redemption is not “property burdened with onerous covenants” within section 55, and the trustee cannot disclaim it (Re Gee, 24 Q. B. D. 65; though see Re 7Vz'lson, 13 Eq. 186). The provisions of section 55 are “provisions relating to the remedies against the property of a debtor” within section 150, so as to be binding on the Crown, and hence the trustee can disclaim a Crown lease (Re T/zomas, 21 Q. B. D. 380). The trustee may disclaim, notwithstanding that the lease has been determined by expiration of time or by forfeiture between his appointment and the execution of the disclaimer, and, perhaps, also where it had been determined before his appointment (Er parto Dyke, 22 G. D. 410). The Bankruptcy Act, 1869, required that the trustee should disclaim “ by writing under his hand,” and upon this it was held that the disclaimer must be signed by the trustee personally (Wilson v. Wullrmf, supra). The Act of 1883 requires the disclaimer to be “ by writing signed by him,” and whatever may have been the case formerly, it seems clear that upon the latter words, since there is nothing in the section specially necessitating personal signature, si nature__b_Lag_a_gent will do (Re Whitley 1’arIno'rs, 32 Ch. D. 33l l. H__ ' V 3. I710 oflect of tile dzsclai/ner upon the b(t)lk)‘lt1)t and his estate and upon the trustee.—-By the express words of section 55 the disclaimer operates to determine, as from the date of the disclaimer, the rights, interests, and liabilities of the bankrupt and his property in or in respect of the property disclaimed, and it also discharges the trustee from all personal liability in respect of the pro erty disclaimed as from the date when the property vested in him. Under the disclaimer the trustee gives up to the lessor the entirety of the property comprised in the demise ; and hence, if land and chattels are leased at an entire rent, the

l whole goes back to the lessor, and the trustee cannot retain the

chattels under the reputed ownership clause (Er pm-te Allen, 20 Ch. D. 341). Since the disclaimer puts an end to the lease so far as the bankrupt and his estate are concerned, it follows that the trustee cannot take advantage of any provisions relating to the determination of the tenancy (Ex parts D3/ke, 22 Oh. D. 410) ; thus if the lease provides for the removal of trade buildings and machinery, this provision is gone and the trustee cannot remove them (Ex parto Glegg, 19 O. D. 7). It has been held, however, that the trustee cannot rely upon the disclaimer as justifying acts which are forbidden by the tenancy; hence, where, in violation of the custom of the country, he removed hay from a farm and then disclaimed, the landlord recovered damages against him (Sr/tofielrl v. Hinclcs, 58 L. J. Q. B. 147). Apart from such special considerations, the disclaimer relieves the trustee of all liability (Ex parts Allen, 20 Ch. D. 341), and he is not liable to pay rent to the landlord in respect of his occupation prior to the disclaimer, either as assignee, or on an implied contract of tenancy, or as trespasser (Lowrey v. Bar/l-er, suprc,- Gabriel v. Blzmkonslern, 18 Q. B. D. 614). It may be mentioned that where a sum becomes due from the landlord to the tenant for allowances at the determination of the tenancy, the landlord cannot, as against the trustee, set off arrears of rent accrued due before the bankruptcy (Alloway v. flteore, 10 Q. B. D. 22; Expo;-te Dyke, 22 Oh. D. 410) ; unless, indeed, by the custom of the country, the landlord pays only the amount of the valuation less arrears of rent (Re Wilson, 62 L. J. Q. B. 628).

4. 1710 qfict of the diwlaimer upon tlze rights and l:'abilities of t/tirtl pers0ns.—-Under the Bankruptcy Act, 1869, no provision was made with regard to the effect of the disclaimer upon the interests and liabilities of third persons. Section 23 provided 1 that the lease should be deemed to have been surrendered at the date of the disclaimer, but the question of what relations were then to exist between the lessor and a sub-lessee of the bankrupt was left undetermined. In Smalley v. .Hardt'n_qe (29 W. R. 554, 7 Q. B. D. 524) the surrender was treated as an actual one. Hence it put an end to the rights of the lessor under it, though by 8 & 9 Vict. c. 106, s. 9, his reversion became the reversion expectant on the sub-lease, and he had the rights of the bankrupt against the sub-lessor. But in Ev parte Walton (17 Ch. D. 746) the Court of Appeal treated the surrender as merely fictitious, and limited its effect to the relief of the bankrupt and his estate and his trustee from liability in respect of the property comprised in the lease. Thus as between the lessor and the sub-lessee the lease was still subsisting, and the lessor was enabled to exercise any rights which did not depend upon privity of contract or of estate between him and the sub-lessee. He could therefore distrain for the rent reserved by the lease and take advantage of a power of re-entry for breach of covenant. The lessee, on the other hand, provided he paid the rent and observed the covenants, was entitled to remain in possession. Moreover, where the bankrupt was assignee of the lease, the original lessee remained liable on his covenants, notwithstanding the disclaimer (Hill v. East and West India Dock Co., 9 App. Gas. 4-18); and, similarly, the lessee retained his right of action against a surety for the assignee (lfarding v. Preaoa, 9 Q. B. D. 281). This view of the effect of the Act of 1869 has been incorporated in section 55 of the Act of 1883, which expressly provides that the disclaimer shall not, except so far as is necessary for the purpose of relieving the bankrupt and his property and the trustee from liability, ajjgg tlregrvights and li_abil_itigi o_f_a_n other person.

5. Leave to ililu-laz1n.—Before disclaiming tllie'trustee is, in . general, bound to get the leave of the court, and the court may impose such terms as a condition of granting such leave, and make such orders with respect to fixtures, tenant's improvements, and other matters arising out of the tenancy as the court thinks just. An exception is made by section 55 in any cases which may be prescribed by general rules, and in these the trustee may disclaim without leave. Such cases are defined by rule 320 of the Bankruptcy Rules, 1890, as (l) cases where the bankrupt has not sub-let or mortgaged and (a) the rent is less than £20, or (6) the estate is being administered under section 121 of the Act of 1883, or (e) the lessor does not, upon notice to disclaim

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the court; and (2) where the bankrupt has sub-let or mortgaged, and neither the lessor nor the sub-lessee or mortgagee, upon notice to disclaim being served upon them, requires the matter to be brought before the court. In these cases, since the trustee can disclaim without leave, there is no opportunity for terms to be imposed upon him, and hence he cannot be called upon to pay rent to the landlord, even though he has been in beneficial occupation of the premises for the purpose of the bankruptcy (Re Szmdwcll, 14 Q. B. D. 960). Where, however, the court grants leave to distrain and the trustee’s occupation has resulted in benefit to the bankrupt’s estate (Ex parts I:/11-(I, 23 G. D. 115; Ra Zappert, 1 Morr. 72; Re Brooke, l Morr. 82), or even where no actual benefit has resulted, if the occupation has been with a view to obtaining such benefit (Ea: parts bizarwood, 22 Ch. D., p. 395; Ex parto Arnel, 24 Ch. D. 26; E1: parte Good, 13 Q. B. D. 731), the trustee is required, as a condition of disclaiming, to pay rent in respect of the occupation.

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Appeal from the judgment of Mathew, J ., at the trial of the action without a jury: 2 Com. Gas. 228. The action was brought to recover £5,000 damages for the loss of a box of 5,000 sovereigns shipped by the plaintiffs, under a bill of lading, on the defendants’ steamship Oceana from Port Jackson to be delivered in London. The bill of lading contained exceptions of (inter alia) loss by robbers or thieves by sea or laud, defects latent or otherwise in hull or its appurtenances, or from any act, neglect, or default whatsoever of the pilot, master, mariners, or other servants, or of the agents, of the company. The box in question was placed by the defendants in the bullion-room in The Oceana. The bullion-room was broken open during the voyage and the box was stolen. The plaintiffs, in the statement of claim, alleged that there was an implied warranty that The Oceano had such a bullion-room as made her a safe and flt vessel for the carriage of bullion, and that the construction of the bullion-room was so defective that she was not a safe and fit vessel for the carriage of bullion. It was ordered that the question whether there was any warranty by the defendants rmder the bill of ladiug that the room in which the bullion was stowed was so constructed as to be reasonably fit to resist thieves should be tried before the trial of the action. It was assumed for the purpose of the argument that the bullion-room was defective, and Mathew, J ., in his judgment, said: “ I assume, for the purpose of my decision, that the vessel in question, The Oeeana, like others of her class, was furnished with a receptacle for bullion and valuables, usually called the specie-room; and that the contract in the bill of lading was entered into with the, knowledge and upon the footing that this receptacle had been provided for the safe carnage of the gold mentioned in .the bill of lading." Mathew, J., hold that there was an implied warranty that the bullion-room was so constructed as to be reasonably fit to resist thieves. The defendants appealed.

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REG. v. THORNTON AND OTHERS (Justices), E1 pom LACOR dz C0. No. r. 19th Jan.

Lrcsivsrne Ac'rs—Oa1>sa Sarvcrrorurxe Rnnrovar. or Lrcsxcs-Garxr or Lrcanca on Oonnrrrox or SURBBNDBRING Orrrsrr Lrca'.\'cs—Lrcas'srso Aer, 1872, s. 50.

This was an appeal from a j udggient of a Divisional Court (Cave and ltidley, JJ.). An order niri had en obtained for a writ of oortiorori to bring up and quash an order made by the licensing justices for the Wandsworth Division, granting a licence to G. G. Laceby in respect of No. 2, Abercrombie-street, Battersea, for the sale of beer, wine, and spirits, to be consumed off the premises. Laceby was at the time of the order the holder of a similar licence in respect of the Five Alls publichouse, which adjoined No. 2, Abercrombie-street. In 1890 the then holder of the licence for the Five Alls had taken a lease of the cellar of N 0. 2, Abercrombie-street, and had obtained an off-licence in respect of the cellar. In 1897 Laceby gave notice of his intention to apply fora new licence for the whole of No. 2, Abercrombie-street. By the order appealed from, such licence was granted to him subject to the condition of his giving up the licence which he had just had renewed for the Five Alls. Messrs. Lacon 6: Co., the reversioners of the Five Alls, obtained the order nisi on the ground that the justices had no jurisdiction to make the order granting such licence, inasmuch as it was in efiectanorder sanctioning the removal of a licence within section 50 of the Licensing Act, 1872, and the requirements of that section had not been complied with. The Divisional Court made the order absolute. Laeeby appealed.

'l‘nrr Corar (A. L. Srrrrn, Crrrrrr, and COLLINS, LJJ.) were of opinion that this was in substance a case of a removal of a licence, and dismissed the appeal.—-Cormsst, Bosanquet, Q.C., and J. (7. Earle: Lawson Walton, Q.C., Foote, Q.C., Bodkin, and Travers .Htlm})/H'0_1/I,‘ Avery and Edwarda Jones. Soucrroas, W. W. Young Q Son; Wellington Taylor ; Comllia, rllonop, §- Barney.

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Emma Drinkwater, on the 22nd of February, 1894, made her will in the following terms, “This is the last will and testament of mo the undersigned Emma Drinkwater. I do hereby give, bequeath, and devise the whole of my real and personal estate to my daughter Esther Field for her life, and at her death I desire that it shall be equally divided among her surviving cliildren, save and except the sum of £200 (two hundred pounds) which I desire to be given from my estate to my nephew Walter Drinkwater." The testatrix died on the Sth of March, 1894, and the summons now adjourned into court raised the question whether the legacy to Walter Driukwater was payable immediately or only upon the death of Est-hcr Field, the tenant for life.

N earn, J.—If the £200 legacy had been given first there would be I10 question, there would simply be a gift of £200 and a gift of residue subject to the legacy. The same result would follow if the estate was given expressly subject to the legacy. I do not say that the conclusionl have come to is equally clear, but in my opinion the legacy is payable immediately. First there is a gift of the estate, and then there is a gift of a sum out of the estate ; in each case she refers to her “ estate." I think that is the true meaning of the way in which the testatrix uses the word. If the money had only been payable upon the death of the tenant for life, some direction such as the words “save and except .6200," would have been added before the direction for the division among the children of Esther Field.—Ooor~'snL, Stanbury-Eardley ; Rowdan. Soucrroas, T. HP/iilpots, for Laacrofl, Birmingham ; Peacock §~ Goddard, for Barman g- Riobtyi B“ ' h .

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This was an action by the plaintiffs, who were piano manufacturers in London, to restrain the defendant, who was a furnishing contractor at Manchester, from advertising the plaintiffs’ pianos for sale without in fact having any of them in his possession. The plaintiffs, in the early part °l 1805, supplied the defendant? with certain pianos, among which were two of a class called in their price lists Britannia Models, and supplied to the trade at it cost price of 15 guineas, and one of what was called Class 6 A, and described as “an upright grand, iron frame, check action. trichord," and was supplied to the trade at a price of £23 10s. In 1896 the defendant published in the Manchester Evminy News an advertisement of a great sale of pianos. The advertisement gave particulars of severfll pianos and continued: " New instruments at Worsley's, a flue uprigllli grand by Ajello, iron frame, ‘check action, trichord, price 15 guineas, 01' 15s. per month.” Similar advertisements were also issued in other papers. The plaintiffs contended that these advertisements applied to their pianos of the Class 6 A, and the object of the action was to restram the continuance of the advertisements. It was proved at the trial that the advertisements had injured the plaintiffs’ trade, and also that the defendant began to advertise in this way at a time when he had a piano of the plaintiffs’, though not of the class advertised but of the Britanntl Model class, in stock, but that he continued to advertise long after ill“ piano had been sold, and when he had no pianos of the plaintiffs’ manufacture in stock.

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Srrarnsc, J .-—It is obvious that the owner of any property is entitled to dispose of it as he may see fit, and either at a profit or loss, and the motive of the owner so acting cannot be inquired into : Allen v. Flood (ants, p. 1-19). I further am of opinion that as a general rule any person may sell or offer for sale at any price whatsoever goods of which he is not the owner but which he expects to acquire. Section 5 of the Sale of Goods Act, 1893, expressly provides that “future goods,” i.e., goods to be manufactured or acquired by the seller after the making of the contract, may form the subject-matter of a contract. If a seller can contract to sell future goods, he must be at liberty to offer them for sale, and the oifer may be made by advertisement or in any other lawful way. Again, he is entitled to make the offer at any price he pleases, whether remunerative or not. In all this, however, I assume that the seller is acting honestly. If what he does is tainted with fraud he may be guilty of an actionable wrong: see Richardson v. Sylvesler (22 \V. R. 74, L. R. 9 Q. B. 34). In the present case the plaintiffs in the autumn of 1895 refused to supply the defendant with any of their pianos, and they continued their refusal down to the commencement of this action. The defendant could not, therefore, have obtained directly from the plaintiffs any new pianos, but he might have done so indirectly upon terms which would have enabled him to sell them, not indeed at a profit, but without ruinous loss. If, therefore, the defendant had advertised that he was prepared to supply new pianos of tho plaintiffs‘ manufacture of the Britannia Model class he would have been within hisrights. It is said, however, that the advertisements contained two misrepresentations—first, that the pianos to which they related were wrongly described; and secondly, that they were in the defendants’ possession at the several dates at which the advertisements appeared. As to the first, I have already said that I do not think that the description was inaccurate. As to the second, on which most stress was laid in argument, this misrepresentation does not, in my judgment, make the advertisement fraudulent; and in order that a misrepresentation may be actionable it must not only be fraudulent but must cause damage to the person complaining of it. Is, then, the damage caused to the plaintiffs by the advertisements attributable to the misrepresentation of fact contained in them? In my opinion this question must be answered in the negative, for an advertisement such as the defendant might legally have issued would have been followed by the same consequences and produced precisely the same damaging results. No decision m support of such an action as the present has been cited. The plaintiffs ma y relied on a passage from the judgment of Lord Bowen in the Court of Appeal in Hogul Sleamrhip Co. v. 1llcG1egor (37 W. R. 756, 23 Q. B. D. 598). I do not think it necessary to inquire whether the view there expressed is in any way limited or qualified by Allen v. Flood, because,in my opinion, the present case does not fall within those in which damage was caused by misrepresentation within the meaning of Lord Bowen. He probably had in his mind the class of cases of which Ralclifa v. Evans (40 W. R. 578; 1892, 2 Q. B. 524) is an example—viz., where the defendant had intentionally published an untrue statement regarding the plaintiff’s business, and thereby caused damage to the plaintiff. Here the untrue statement relates to the defendant's own business, and, further, it cannot be said to affect the plaintifis exclusively. I think, for the reasons already given, that the damage was not caused by the misrepresentation contained in the advertisement, and that the action must be dismissed.COUNSEL, Graham Hmtings, Q,.C., and John Cutler, Q,.C. ; Growenor Woods, Q.C., and Hon. 0. Jllamaghten, Q.O. Sonrcrrons, Pritohard, Englq/ield, g Co. ,' Ralph Raphael.

[Reported by J . I. Srranrrzo, Barrister-at-Iaw.]

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This was a motion to discharge an order which had been made for service of the writ on the defendant Ebbeke out of the jurisdiction. The writ which had been served was issued by the plaintiffs against two gentlemen named Paul and Farish, who were resi ent in England, and the defendant Ebbeke, who was resident in Bremen. The writ claimed a declaration that the plaintifis were entitled to charge for £6,022 6s. 2d., and interest on six policies of assurance, and also asked for foreclosure and further relief. The action arose in the following way: The firm of Messrs. Jellings, Blow, 6: Co., who carried on business in London, applied to the plaintiffs for a credit by a letter of the lst of May, 1890, which contained the terms of the credit. On this letter the plaintiffs -advanced Messrs. Jellings, Blow, & Co. £6,022 6s. '2d., and the policies in - uestion were deposited with them by way of security for this sum. On are 21st of August, 1894, Messrs. Jellings, Blow, & Co. charged the policies in favour of the defendant Ebbeke, subject to the prior charge. Subsequently by deed of the 14th of December, 1894, the same firm conveyed all their property to a Mr. Jackson as a trustee for the benefit of their creditors. On the 5th of J une, 1897, the plaintiffs issued a writ against Jackson and the defendant Ebbeke claiming the same relief as was asked for in the present action. This writ was never served on Ebbeke, but was served on Jackson, and an arrangement was made by which the bank became purchasers of all interest which Jackson had in the policies as trustee, and the equity of redemption, subject to the defendant Ebbeke’s claim, was conveyed to the defendants Paul and Farish as trustees for and by the direction of the plaintiffs. That action was then drcépped and the writ was issued in the present action against Paul, Farish, an Ebbeke, and leave was obtained for service out of the jurisdiction. This leavewas obtained on an affidavit which did not disclose the fact that the defendants Paul and Farish were simply trustees for tho plaintiffs.

Srrauno, J'.—I assume that under the Judicature Act, 1893, s. 25 (6), the legal right to sue was vested in the defendants Paul and Farish. It is admitted that these defendants are simply trustees for the plaintiffs, and have not refused to become co-plaintiffs in the action. To justify service out of the jurisdiction the case must be brought within ord. 11, r. 1 (see Rs Eager, 31 W. R. 33, 22 Ch. D. 36; Rs Oliflr, 43 W. R. 436; 1895, 2 Ch. 21). I will first deal with clause (a) of that rule. Now, the object of the writ, so far as s ecific relief is thereby sought, is to com l the defendant Ebbeke to recihem the plaintiffs by paying off what is (‘life to them, and in default to become absolute owner of the policies. Under the claim for general relief the plaintiffs would also, I apprehend, be entitled to ask, if foreclosure were refused, to have the policies sold and the proceeds applied in ayment of their debt. In my opinion an action so framed is not foundeg on a breach of contract within the meaning of ord. ll, r. 1 (e). The plaintifis’ title to a charge may possibly have arisen by reason of a breach of contract, but the action is not founded on any breach of contract whatever, but on the existence of a charge constituting a security for the debt due to the plaintiffs. I think, therefore. that this case does not fall within rule 1 (a). Then, coming to rule 1 (51), the question is whether the action is properly brought against Paul and Farish. The practice of the court requires that in a foreclosure action all persons interested in the equity of redemption should be parties, and I certainly think that Paul an Farish are proper, if not necessary, parties to this action. But the rule would be satisfied if those gentlemen had been made plaintiffs: and I think that they ought more properly to have been made plaintiffs, in this sense, that any extra costs occasioned by making them defendants might, on a proper application for the purpose, be ordered to be borne by the plaintiffs. Now, Paul and Farish are made parties simply to comply with this rule of practice. No relief is sought and no rightfclaimed to be enforced against them. No reason is given why they should be plaintiffs rather than defendants. If the plaintiffs had taken an assignment to themselves instead of to these defendants the action would not have fallen with ord. 11, r. 1, at all. I do not think it is necessary for me to come to the conclusion that the assignment to them as trustees was a mere device to enable this action to be brought, but in my judgment the action is not properly brought against them within the meaning of the rule. The order for service out of the jurisdiction must therefore be discharged. Cousssn, Grosvenor Woods, Q.C., and G. P. Lawrmca; Butcher, Q,.O , and Kirby. Soucrroas, Druces §- Atllss ; Norton, Rosa, ,9 Co.

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A question of costs arose upon the trial of this action. The facts were as follows : The trustee in bankruptcy brought the action claiming a declaration that he was entitled to the life interest of the bankrupt under a voluntary settlement executed by the bankrupt. Originally the trustees of the settlement were made sole defendants to the act-ion, but in consequence of their submitting in their defence that the beneficiaries under the settlement (the baukrupt's wife and infant child, who were entitled under a discretionary trust arising on the settlor's bankruptcy) should be made parties to the action, the plaintiff obtained leave to add them as parties. The plaintiff succeeded in the action. Upon the question of costs the following cases were referred to : Er parts Barter (32 W. R. 839, 26 Ch. D. 510), Er pm-to Russell (30 W. R. 584, 19 Ch. D. 588), Ra Holden (36 W. R. 189, 20 Q. B. D. 43), and Dalton V. Thompson (31 W. R. 596, 23 Oh. D. 278).

Kai-rxwrcr-r, J .—The plaintiff represents the creditors of the settlor, and those creditors ought not to bear any part of the costs of this litigation further than what the court can make them bear. The plaintiff has succeeded in getting that which the defendants said he should not have. The plaintiff has not incurred excessive costs, he has not asked for anything more in his statement of claim than that to which he was entitled. The defendant trustees said that some of the beneficiaries should be made parties, and that was done. Ought not those beneficiaries, then, to have their costs out of this fund which goes to the creditors? I cannot say that the trustees were wrong in suggesting that the beneficiaries should be made parties. The trustees have a very difficult position to fill. It has been said that I sanctioned the addition of the beneficiaries as parties. I was asked for leave to add them and I gave that leave, but in so doing I did not adjudicate upon the question whether they were necessary or proper parties to the action. The old cases go to show the distinction between unnecessary and improper parties. Now, these defendant bencflciaries were uénecessary; t ey were not, however, improper, far from it. They were qui ‘proper parties, but being unsuccessful I do not think that they ought to get their costs. TEHTI ‘think it is only fair for the trustees to have their costs out of the fund before it is paid over, and I think they ought to have their costs as between solicitor and client.Couusnn, Worrington, Q.C., Mulligan, Q.C., and 0. Gm-don ,- Bramwell Davis, Q.C., and C. L. Cools; Renshaw, Q.O., and A. B. Shaw. Sotrcrroas, G. L. B. Ualcoll ,' W oodcoc/1', Rylanrl, §- Parker.

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debentures to the amount of £28,000, each debenture purporting to charge all the property of the company whatsoever and wheresoever, both present and future, including its uncalled capital for the time being. One Oiille cgnditipns indorsed was to the effect that the charge was to be a floatmg secTr'ity:]mt so that the company was not to be at liberty to crei_t_e_apy moi-tQ1ge_ or charge upon its freehold or leasehold heredifiments in priority to the debentures. No legal mortgage of the freehold or leasehold property of the company was ever made to the debenture-holders, and the title deeds remained in the possession and control of the company. The debenture-holders, therefore, were the first equitable incumbrancers in point of date. The second was the Union Bank, who in 1892 had allowed the company an overdraft on their depositing the title deeds of their leasehold property. This overdraft was paid, but in 1895 a further overdraft was allowed, on the company giving a memorandum of equitable charge on the deeds, and undertaking to execute a legal mortgage. The interest on the debentures being in default, the above action was instituted by the debenture-holders, and in July, 1896, the usual judgment was made for the appointment of a receiver and directing inquiries as to the charges and their priorities. In April, 1896, the company passed resolutions for voluntary liquidation, and in June, 1897, an order was made for the continuation of the liquidation under the supervision of the court. In February, 1897, the bank was served with notice of judgment in the action. At that date the overdraft at the bank amounted to some £220. The bank stated that, until served with notice of the judgment, they had not had any notice of the company having issued any debentures, or that it had created any charge upon the property comprised in the deeds deposited with the bank. The company being stated to be insolvent, the bank claimed to have a prior charge for £220 and interest, andto retain the deeds until their debt was paid.

Roman, J ., said the question was one of priority between two equitable incumbrancers. The Union Bank, though subsequent in date, claimed priority, because at the date of its charges it had no notice of the prior debentures. It was settled that where the equities of equitable incumbrances were in other respects equal, the first in time was entitled to priority. The question was whether the bank had not the better equity, and in cases of the kind the possession of the deeds had always been treated as a matter of great importance in determining priority. In his lordship’s opinion, however, the observations of Kindersley, V.O., in Rice v. Rice (2 Drew, at p. 81), and Pearson, J., in Lloyd’; Banking Co. V. Jonas (33 W. R. 781, 29 Ch. D., p. 229), on that point, if taken without restriction, went too far, for he did not think t at a prior equitable incumbrancer would lose priority where, through no fault of his, the deeds had come into the hands of a subseqgent incumbrancer. In the present case there did not seem to have en any negligence on the part of the bank. Finding the deeds in the possession of the company it was reasonable that they should rely on obtaining a charge free from incumbrance. There were no grounds for saying that the bank ought to have assumed that debentures had been issued, any more than there were for saying that a mortgagee who found a mortgagor in possession of deeds showing him to be owner ought to make inquiries on the footing that he had previously mortgaged. Further, there appeared to be an obvious reason why the company retained possession of the deeds notwithstanding the issue of the debentures. The debentures only gave a floating charge, leaving the company power so long as it was a going concern to deal with its property as absolute owner, and his lordship inferred that it was on this account that the company were allowed to retain possession of the deeds. No doubt there was a restriction that the company was not to be at liberty to create any mortgage or charge upon its freehold and leasehold hersditaments in priority to the debentures, but the debenture-holders cgild not rely on this restriction as against the b_ap_k_ takin without notice. The case came within the principle acted uponin Perry Heriiék v. Allwoorl (2 De G. & J. 21) and Brigys v. Jones (L. R. 10 Eq. 92), which was that if a first mortgagee, cvcn though he had the legal estate, authorized the mortgagor to retain the deeds in order that the mortgagor might thereby, as ostensible owner of the property, be able to deal with it, though only to a limited extent, yet if the mortgagor took advantage of the deeds so left with him to deal with the property to an extent beyond what was authorized, then the mortgagee could not set up his charge as against a purchaser for value without notice who claimed under the unauthorized dealing and relied on the di-eds and the apparent ability of the owner to deal with the property fre-. from incumbrances. These cases were between prior legal mortgagees and subsequent equitable incumbrancers, anda fortioré the principle applied where the first mortgage was only equitable. In his ordship’s opinion, therefore, the bank had a stronger equity and was entitled to priority. His lordship further observed that the conduct of the debenture-holders would seem to come within the cases which have decided, that a first mortgagee, even a legal one, who negligently leaves the deeds in the hands of the mortgagor, is postponed to a subsequent mortgagee who obtains the deeds without

notice: Clarke v. Palmer (21 Ch. D. 125) and Northern Counties of England

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trespass and for £2 damages and for an injunction. The learned county court judge gave judgment’ for the plaintiff with 6d. damages, and granted the injunction prayed. The preliminary point was taken, on behalf of the plaintiff, that no appeal lay, the action being an action of tort where the damages claimed did not exceed £20, and no leave to appeal having been given by the learned county court judge. The County Courts Act, 1888, s. 120, provides : “ If any party in any action or matter shall be dissatisfied with the determination or direction of the judge in point oi law or equity . . . the party aggrieved by the judgment, dircciif.-n, decision, or order of tho judge may appeal from the same to thc_ High Court . . . ; provided always that there shall be no appeal in any action of contract or tort . . . where the debt or damage cli_ime_d does not exceed twenty pounds . . . unless the judge shall thmkit reasonable and proper that such appeal should be allowed, and grant leave to appeal." It was contended that the injunction was not a separate cause of action, but was onlyaremedy for the tort, which was the cause of action: zllarzin v. Bannister (-1 Q. B. D. 491). On behalf of the defendant it was contended that the claim for an inj unction was an equitable matter and that section 120 gave a right of appeal in every case of n point in equity, the proviso being limited to common law actions where debt or damages only were claimed. The appeal was only brought sgsinit the injunction. _

Tiia Couar (Dar and LAWRANCB, JJ.) disallowed the objection. _

Dav, J ., said that as the defendant was only appealing against th_s injunction, and not against the damages, he might proceed with his 8pp6&l.—COUNBEL, Hmcland Roberts ; Duke. Somciroiis, Tag/sr_§' H'0rd¢fli for W. 0'. Vallanve, Ottery St. Mary ; Torr <3 Co., for Every, Honiton

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This was an appeal by the plaintiff from a decision of his Honour Judge Parry, sitting at the county court at Manchester. The facts were these: In 1895 Mr. Wells decided to dispose of his collection of orchids, and instructed Messrs. Protheroe & Morris to sell them. Among the 10¢! was one described as a Cattle;/a Acklandia: Alba, which the plaintiff purchased for twenty guineas. He cultivated the plant for two years, when it bloomed, and produced, instead of a white, a purple flower. The plaintiif thereupon rought an action to recover damages for breach of warranty, and at the trial several orchid growers were called, and gave evidence to the effect that a white Gattleya was such a rare flower thatits value would probably be from £60 to £150, but that the orchid in question was merely the common variety of the Oallleya, worth some Ts. (31. The county court judge, while being of opinion that if the orchid in question had in fact been an Alba it would have been at the time of sale worth more than £50, held that until the plant had shewn its real nature no orchid grower (on the evidence given by the witnesses called) would have paid more than twenty guineas for it. As the defendant had paid that sum into court, he entered judgment for him with costs. Hence the plaintiff’s appeal. For the appellant, counsel contended that on his own findings the county court judge ought to have entered judgment for the plaintiff for £50 with costs; and section 53 (2) of the Sale of Goods Act, 1893, was referred to, and Randle v. Raper (E. B. & E. 84) and .Pe'ternn v. Eyre (13 C. B. 3% were cited and discussed. The damages ought not to have been coniin to the bare value of the plant at the time of sale._ If the orchid had been divided and sold to other persons the damages might have been materially increased. The claim was reduccdto £50 in orderto give the county court jurisdiction to deal with the case. For the defendant it was submitted that the measure of damages awarded by the county court judge was right, and that his judgment ought to be afllrmed. The claim for damages above that sum was based on _mer@ speculation. A white Oattleya was so rare, if, indeed, it really existed. that the price realized for this supposed specimen was the only standard of what its market value really was. The plaintiff was perfectly satisfied with his purchase until it flowered, and then, although the defendant had ofife red him his money back and two guineas more, he refused to be saltwfied, and claimed excessive damages. Counsel cited, on the measure of damages, Clare v. Maynard (6 A. & E. 519, but see footnote there to C01 v. Walker, p. 523) and Williams v. Reynolds (6 B. & S., 495).

Dar, J ., in giving judgment, said that very reluctantly, and not without somc hesitation, he had come to the conclusion that the county 0001'? judge had erred in the matter of law, and therefore the case must 30 back to him for a new trial. He was not in a position to say what a whlfifi Cattleya would be worth if it were discovered ; it was impossible_to ii; tho value of a thing which had never been known to exist. In his 0pl!11°11 the plaintiff was entitled to recover, not only the money he had paid for the orchid, but interest on that sum, and something more for the trouble and expense which he had incurred in looking after it for two years. The defendant admitted that he had warranted the orchid to be while. although he had never seen it in bloom, and the warranty was false. If he had been ordered to pay the costs of the action he could not have col}! plained ; but because he had paid a sum into court the successful plamtlff had had to suffer the expense of bringing the action. The appeal would be allowed with costs, and the case remitted.

LAWRANCE, J., said he did not disagree with Day, J ., in sending l’-11° case buck, although he thought they had sufflcient evidence of value to decide the case themselves. The true measure of damages was not the difference between the auction price realized for the orchid and the pI'1¢_>° at which it would sell now. The damages ought to be the difference 1!!

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the value of a defective thing sold with a warranty and the value of the

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