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It is not to be made in favour of an under-lessee or mortgagee by demise claiming under the bankrupt "except upon the terms of making such person subject to the same liabilities and obligations as the bankrupt was subject to under the lease in respect of the property at the date when the bankruptcy petition was filed." A mortgagee or under-lessee declining to accept an order upon these terms is to be excluded from all interest in and security upon the property. In this case the court may vest the lease in any person liable to perform the lessee's covenants either personally or in a representative character, freed and discharged from all incumbrances and interests created by the bankrupt. If there is no person so liable who takes a vesting order, it seems that the proceedings terminate with the refusal of the under-lessee or mortgagee to come in. They are quite excluded, and the lessor, without any vesting order, takes the property free from the lease and all interests under it created by the bankrupt.

If, however, the under-lessee or mortgagee chooses to take a vesting order, he can only do so upon the terms just stated. In Re Finley (supra) the question was raised, but not decided, whether the effect of the proviso was to make the person in whom the property was vested liable as an original lessee, or only as an assign (see 21 Q. B. D., p. 487). In order to remove the doubt and leave the court a free hand in the matter, it was enacted by section 13 of the Bankruptcy Act, 1890, that the court might modify the terms, so as to make the person in whose favour the vesting order is made subject only to the same liabilities and obligations as if the lease had been assigned to him at the date of the filing of the bankruptcy petition. It has been held, however, that this power is to be exercised only under special circumstances, and in general the vesting order should require the person in whose favour it is made to take upon himself the burdens of the unperformed obligations, both past and future, to which the bankrupt was liable (Re Walker, 72 L. T. 330). The mortgagee cannot escape liability either to take a vesting order or to be altogether excluded by assigning to a nominee who holds in trust for him (Re Smith, 25 Q. B. D. 536).

8. Proof for injury done by the disclaimer.-By sub-section (7) of section 55 any person injured by the operation of a disclaimer is to be deemed to be a creditor of the bankrupt to the extent of the injury, and may accordingly prove the same as a debt under the bankruptcy. The measure of the damages, so far as the rent is concerned, will be the difference between the rent due under the lease for the residue of the term and the rent now to be obtained (Re Llynvi Coal Co., 7 Ch. 28), and it will include also the sum required to leave the property in the same state as if the covenants had been properly performed. But where the lease is determinable at any of several periods, the damages will be assessed on the footing that it would have been determined at the earliest of such periods (Ex parte Blake, 11 Ch. D. 572). If the lease has been made to partners as joint tenants, and the partners are bankrupt, the lessor can prove against the separate estate of each partner, though it has been doubted whether he can prove against the joint estate (Ex parte Corbett, 14 Ch. D. 122).

REVIEWS.

BOOKS RECEIVED.

Company Law, based on Lectures Delivered in the Inner Temple Hall, at the Request of the Council of Legal Education, with an Appendix containing the Companies Acts, 1862 to 1893, and Rules, &c. By FRANCIS BEAUFORT PALMER, Barrister-at-Law. Stevens & Sons (Limited). Price 12s. 6d.

Stone's Justices' Manual, being the Yearly Justices' Practice for 1898. A Guide to the Ordinary Duties of a Justice of the Peace, with Table of Statutes, Table of Cases, Appendix of Forms, and Table of Punishments. Thirtieth Edition. Edited by GEORGE B. KENNETT, Esq., Solicitor, Town Clerk (late Clerk to the Justices of Norwich). Shaw & Sons; Butterworth & Co.

A Handbook of Public International Law. By T. J. LAWRENCE,
M.A., LL.D. Fourth Edition. Macmillan & Co. (Limited).
Old Age Pensions. By WILLIAM BIRKMYRE. Glasgow: Aird &
Coghill,

CORRESPONDENCE.

THE LAND TRANSFER ACT, 1897.

[To the Editor of the Solicitors' Journal.] Sir,-To some of us who for the last ten years have been fighting against the measure introduced year after year by successive Governments to compel recourse to the Land Registry on all future sales of land there is something positively comic in the list of public bodies, great companies, and eminent personages who have intimated to the London County Council their dislike to the application of the Act to London.

During the long and weary fight that has been waged against the various Land Transfer Bills, or rather against the compulsory clauses they contained, none of the great companies or personages who are now awaking to the consequences of the Act have given any assistance to the opponents of the measure, and the profession has been left to wage the battle almost unaided.

If Lord Portman and some members of the Ecclesiastical Commission would only have pointed out to the House of Lords those consequences of the introduction of compulsory registration which are now brought to the notice of the county council; if the Building Societies' Association and the great railway companies had used their influence to enlighten the House of Commons as to the objections entertained to the proposed legislation, compulsory registration of title would long since have disappeared from the programme of any party or section of a party. But, as is the case with so many other matters, it was impossible to get persons outside the profession to take any interest in the subject-they would declare it was a matter that did not concern them, and which they did not understand, nor did they want to understand.

The result, however, of the labours of the opponents of the measure has been the passing of an Act which we whose property is outside it cannot be put in force in more than one district unless asked for the metropolis can contemplate with perfect equanimity, seeing that by the county council of any county that may desire it, and I don't think we need greatly dread the action of the county councils throughout England; and as Middlesex or some part of it seems pretty certain to be the corpus vile selected for the experiment, we in these parts console ourselves with the belief that Middlesex property is so valuable and Middlesex landowners so rich that they will easily survive the experience, painful though it may be, of this costly and troublesome experiment at their expense.

But, after all, why has it been so readily assumed that the principal sufferers by the system of compulsory registration of title, and of transfer by entry on the register, will be the solicitors? That the scheme is wrong and mischievous I hold as strongly as ever I did, and I believe it is opposed to the best interests of the profession; but I think so only because I maintain, and always have maintained, that the interests of the general public are identical with those of country the persons who would be the principal losers would be the their lawyers. If the Act were generally adopted throughout the landowners, especially the small holders of land, for whom a simple and inexpensive system of transferring land is almost a necessity:

The old-fashioned costs of conveyancing are gone with the ancient forms, and no scales of remuneration will prevent ordinary instruments such as conveyances and mortgages being prepared at very nominal charges.

In these days when joint-stock banks keep their own forms in stock and the manager prepares the great majority of the simpler securities that are taken, and when it has become so much the practice, in some districts at all events, for the vendor's solicitor, on a sale by auction, to offer to prepare the purchaser's conveyance for a fixed and very trifling fee, that one of the recent collections of precedents contains a form of condition embodying such an offer, solicitors cannot expect the same income from the preparation of instruments dealing with the transfer of land that they earned in the days when titles covered hundreds of sheets of abstract, and conveyances and mortgages were of the length dear to the draftsmen of the olden time. I myself believe that the actual remuneration of a solicitor ten or twenty years hence for the conveyance of landed property will be found to be larger where the title is registered than where it is not, and I don't think it will be found any easier to dispense with the services of a trained lawyer when dealing with registered than when disposing of unregistered realty. The cost of the conveyance will of course be largely increased, and the sufferers will be the vendor and purchaser, indirectly also, to some extent, the solicitor, as the costs will tend to lessen the number of transactions.

But apart from this, if compulsory registration of title ever becomes general, it will open up a fresh field for the conveyancers of lawyer who told me he had had a large experience in practical con the next generation. I had a conversation recently with an American veyancing in many States of the Union where registration of titles to real estate was in full operation, and that it is the existence of that system that enables the lawyers to live. The titles get encumbered

with clouds, and the clearing of these clouds is exceedingly remunerative to the practitioner, if costly and tiresome to the landowner, and my informant added that he had been somewhat surprised to learn that in England the establishment of a complete system of registration had been so vigorously opposed by the profession. His information confirms my own little experience of dealings with land in America, and there is no doubt that the same thing would happen in England. Charges on land will get registered, and when paid off will not be properly discharged, inhibitions and restrictions will cloud the title, and all kinds of disputes and questions will arise from time to time as to the proper persons to be registered on the devolution of the property, the proper form of the restrictions and inhibitions, and numerous other matters of the same sort. Perhaps I ought hardly to occupy your space with remarks such as these, but it is well that those of us who, infaddition to our professional interest in the matter, have some concern in it as owners of land, should keep in mind the troubles that are in store in the districts on which the compulsory clauses may be inflicted, and the litigation, delay, and expense that will be occasioned, especially where, as will too frequently be the case, the registry is ignored and equitable interests grow up around a title, giving rise to all kinds of questions of priority, and when fees are raised, as they most certainly will be by statute, if necessary to make the registries pay. Hereford, Jan. 31.

H.

[To the Editor of the Solicitors' Journal.] Sir,--The opponents of this Act object to it mainly on the ground that the expense and delay of transferring land on a sale will be increased rather than diminished by the Act. Whether these objections are well founded or not seems to me to depend in some measure, and probably in no small measure, upon the general rules to be made in pursuance of section 22 under section 106 of the Land Transfer Act, 1875. These rules have not yet been published, although the Act received the Royal Assent on the 6th of August last, and although notice was given of the intention to apply the Act to the county of London on the 19th of November last. The delay in this respect leads one to fear that officialism is not about to belie its character for tardiness, while at the same time the non-publication of rules will render it impossible for the members of the county council to decide the important question of the application of the Act to the county of London, or a part of it, with full knowledge of

all that their decision will involve.

I have been requested by the directors of one of the principal banks in the City of London (whom I have the honour of advising) to make a report to them in regard to the effect of the Land Transfer Act upon that portion of their business which consists in advancing money on deposit of title deeds, and feeling, as I do, that the rules are a material adjunct to the Act, I have postponed my report now for some months in the expectation that the rules would be published.

It seems to me now not unlikely that the Act may come into operation in a county in which many of the properties on which my clients make advances are situated before I am in a position to tell them what course, in my opinion, they should adopt, and what alterations should be made in the documents of charge which they are in the habit of using. J. H. W. N. Jan. 31.

THE LONDON COUNTY COUNCIL AND COMPULSORY REGISTRATION OF LAND.

[To the Editor of the Solicitors' Journal.] Sir,-The report of the General Purposes Committee of the London County Council, issued last week, has been a revelation to many who assumed, without inquiry, that the Land Transfer Act, 1897, would cheapen and simplify the transfer of property.

The council deserves every credit for obtaining the views of bodies and classes interested before deciding on the proposal to experimentally adopt compulsory registration of title in the county of London. It was hardly foreseen, however, that the result would have shewn such a decisive consensus of opinion against the proposal. The council received in all fifty-seven communications. Of this number only thirteen favour the application of the Act to London,

whilst the number against amounts to forty-four. The full significance of these numbers can, however, only be realized when the character of the replies and the bodies sending them are considered.

The replies in favour are confined to twelve vestries or local bodies and one individual. The forty-four replies against include twentyone vestries or local bodies, the Institute of Bankers, the Building Societies' Association, the Ecclesiastical Commissioners, the Auctioneers' Institute, seven railway companies, amongst them the London and North-Western, the Midland, the Great Western, and the Great Central, and also eight building and land societies,

including the Birkbeck and the British Land Societies, who sent in replies on their own initiative.

The reasons given for the respective decisions come to are almost entirely one-sided. Two only of the vestries who favour the experiment give a reason for their decision, but the reasons given on the other side are many and various. It would make too great a demand on your space to set the arguments out at length, but the opponents of compulsion are almost unanimous in urging that the proposed system would add seriously to the difficulty, expense, and delay of dealing with property, and that the county of London is not a suitable county for a doubtful experiment, having regard to the vast number of properties that would be affected and the value, complexity, and importance of the interests involved. The only plea on which a claim to apply compulsion can be founded is that compulsion is called for by and in the interests of the public and of property owners. In the face of the replies sent in to the council it is hardly conceivable that any member, Moderate or Progressive, would care to incur the responsibility of allowing the Act to come into operation. Londoners will watch with unusual interest the proceedings at the special meeting to be held on the 15th of February. The vital importance of every member being in his place on that day will be understood when it is realized that the Act is so framed that if one-third of the members should for any reason not be present the meeting cannot be held, and in that case compulsory registration of title will take effect in London on the 1st of July next. J. S. RUBINSTEIN.

5, Raymond Buildings, Gray's-inn, W.C., Jan. 31.

THE FINANCE ACT, 1894.

[To the Editor of the Solicitors' Journal.] Sir, I should be glad to know whether any of your correspondents can throw light on the following point:

If duty on a death has been carefully agreed, assessed, and paid in respect of real estate (the office not employing a valuer, as it might), can payment of further duty be required after a sale at considerably higher prices than the values adopted?

The Act appears to provide for the office refunding duty if too much appears to have been paid, but it does not seem to contain any provision for paying further duty in case of undervaluation. Does not this shew that a death duty account honestly settled is not to be re-opened in favour of the office? If otherwise, parties would be liable to prove rise in value since the passing of the account, and be involved by accidental or unusual favourable circumstances. This would be particularly awkward to trustees who may have distributed their estate or part of it, supposing they had settled the question of duty. The office sets up that their form of account states that the duty is paid "on the basis of this account and subject to rectification if found necessary," but this should surely refer to a possible mistake other it means to apply such a qualification to values, the question arises, than a question of valuation. The office is bound by the law, and if Is it entitled to do so and during what period? "necessary " mean?

What does

H.

[To the Editor of the Solicitors' Journal.] Sir,-A. dies since the Finance Act leaving all his estate (realty and personalty) to his only son, who is also sole executor.

On his death A.'s widow (not the mother of the son, she being a second wife) confronts the son with a marriage settlement which, in the events that have happened, settles upon her £2,000 at the testator's death.

The will does not refer to the settlement, and the son knew nothing of it. There were several years' arrears of interest. In acting for the son in proving the will, I deducted the above sum and the interest, treating it as a debt due from the estate.

The controller says such deduction was wrong and the son must pay estate duty upon it, and on looking at section 7 of the Act it looks so. The son can surely make the widow bear this additional duty notwithstanding section 14.

It is wrong that a man should pay duty on an outgoing from It is a the estate. Can you or any one of your readers help me? gross case. Feb. 1.

A SUBSCRIBER.

Mr. Justice Bigham will preside at the 66th annual dinner of the United Law Clerks' Society, which will take place at the King's Hall, Holborn Restaurant, on Monday, the 23rd of May.

Lieutenant-Colonel Coltman (late of the Inns of Court Volunteers) has been installed Worshipful Master of the Northern Bar Lodge of Freemasons.

NEW ORDERS, &c.

TRANSFER OF ACTIONS.

ORDER OF COURT.

Monday, the 31st of January, 1898.

CASES OF THE WEEK.
Court of Appeal.

MONTGOMERY, JONES, & CO. v. LIEBENTHAL & CO. No. 1. 1st.
Feb.

MENT THAT SERVICE AT AN ADDRESS WITHIN THE JURISDICTION SHALL BE.
DERMED GOOD SERVICE-ORD. 9, R. 2; ORD. 11, R. 1 (E).

Whereas, the Honourable Mr. Justice Gorell Barnes has at my PRACTICE-WRIT-SERVICE-DEFENDANT DOMICILED IN SCOTLAND-AGREE request consented to sit and act as an additional judge of the Chancery Division from the 2nd day of February, 1898, up to the 16th day of February, 1898, both inclusive. And, whereas, it is expedient that the following causes and matters assigned to Mr. Justice North, Mr. Justice Kekewich, and Mr. Justice Romer, should for the purpose only of hearing or of trial be heard or tried before such additional judge. name. Now I, the Right Honourable Hardinge Stanley, Earl of Halsbury, Lord High Chancellor of Great Britain (with the consent of the President of the Probate, Divorce, and Admiralty Division), do hereby orier that the several causes and matters set forth in the schedules hereto be accordingly transferred from the said Mr. Justice North, Mr. Justice Kekewich, and Mr. Justice Romer, to Mr. Justice Gorell Barnes (as such additional judge of the Chancery Division) for the purpose only of hearing or of trial, and be marked in the Cause Books accordingly. And I do also order that such of the said causes and matters as remain undisposed of at the close of such sitting be re-transferred (without further order) to the said Mr. Justice North, Mr. Justice Kekewich, and Mr. Justice Romer. And this order is to be drawn up by the registrar and set up in the several offices of the Chancery Division of the High Court of Justice.

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H Clark & Son v Petrocokino 1896 C 3,184 April 9

Petrocokino v H Clark 1896 P 2,648 April 9

This was an appeal from the refusal of Phillimore, J., to set aside the service of a writ of summons. The plaintiffs were corn merchants carrying on business at Liverpool. The defendant was a corn merchant residing at Leith, in Scotland, and carrying on business there under a firm By a contract in writing made at Leith the defendant agreed to sell to the plaintiffs a cargo of 14,000 units of Northern Spring wheat at adopted by the London Corn Trade Association, contained the following 27s. 6d. per 480lbs. shipped. The contract, which was in the form terms-viz., that the buyer and seller agreed that, for the purpose of proceedings, either legal or by arbitration, the contract should be deemed to have been made in England and to be performed there, and any dispute which might arise under the contract should be settled according to the law of England, whatever the domicil, residence, or place of business of the parties might be or become, and that any party residing or carrying on business in Scotland or Ireland should be considered as ordinarily resident or carrying on business at the office of the London Corn Trade Association, and that service of proceedings upon such party the same at the office of the London Corn by leaving Trade Association, such proceedings to the address in Scotland or Ireland of such 8 together with the posting of copy of party, should be deemed good service, any rule of law or equity to the contrary notwithstanding. The contract also contained, among the conditions endorsed thereon, a clause providing that disputes should be referred to arbitration, and that an award of an arbitrator or arbitrators should be final, subject to an appeal to the Committee of Appeal of the London Corn Trade Association. A dispute having arisen between the parties in consequence of the defendant's failure to deliver a cargo in accordance with the contract, the matter was referred to arbitration, and in the result an award was made by the Committee of Appeal adjudging that the sum of £7,371 83. 10d. was payable by the defendant to the plain. tiffs. The plaintiffs issued the writ in this action on the 1st of January, 1898, claiming payment of the above sum. The writ, which was an ordinary writ of summons for service within the jurisdiction, was served on the 3rd of January by being delivered to the secretary of the London Corn Trade Association at the office of the association in the city of London. On the 1st of January the plaintiffs' solicitors wrote a letter to the defendant, directed to his address in Scotland, saying that they were instructed to commence proceedings, and that, in accordance with the terms of the contract, the writ would be served upon the defendant by leaving the same at the office of the London Corn Trade Association. Phillimore, J., having refused to set the service aside, the defendant appealed. It was contended on his behalf that by virtue of ord. 9, r. 2, service of a writ within the jurisdiction could only be effected either by personal service or by substituted service in accordance with an order of the court or a judge. The parties had no power by agreement between themselves to alter the rules as to service of a writ: British Wagon Co. V. Gray (44 W. R. 113; 1896, 1 Q. B. 35). Ord. 11, r. 1 (c) was clearly intended to prohibit anyone from bringing an action for breach of contract in the English court against a defendant domiciled or ordinarily resident in Scotland or Ireland.

THE COURT (A. L. SMITH, CHITTY, and COLLINS, L.JJ.) dismissed the appeal. The plaintiffs, in order to bring the defendant, who was a domi.

Curtice v General Press Cutting Assoc ld 1896 C 3,266 April 10 ciled Scotchman, iuto court, served him with a writ in the manner in

Brown v Thorn Thorn v Brown 1897 T 262 April 10

Adams v Page 1896 A 1,341 April 14

Armstrong v Lamb 1895 A 1,481 April 14

Lee v Gordon, jun 1896 L 697 April 15

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The Dublin correspondent of the Times says that in the Chancery Division of the Irish High Court a peculiar question arose in the matter of Agnes Sinclair Cranston, deceased, which came before the Master of the Rolls for the opinion of the court on the effect of certain bequests in the will of the deceased lady to the London and Manchester Vegetarian Societies. The trustees had been advised that the vegetarian societies were not charities in point of law, and that the gift to them was invalid. The plaintiffs desired to have the opinion of the court as to the bequests to the vegetarian societies. The Master of the Rolls held that the societies were charitable societies, and that the bequest to them was valid.

which the defendant had agreed with the plaintiffs that he should be
served. The question was whether the parties could lawfully make such
an agreement. The case of Tharsis Sulphur and Copper Co. v. Société Indus-
trielle et Commerciale des Metaux (38 W. R. 78, 60 L. T. N. S. 924) was an
authority shewing that such an agreement might properly be made so long
as it did not involve asking the court to do something which the rules
expressly prohibited the court from doing. In British Wagon Co. v. Gray
the court was asked to make an order for service of a writ out of the juris-
diction in a case in which ord. 11, r. 1 (e), said that such an order could
not be made. Here the court was not asked to make any order. The
service of the writ in this case had been effected in the way in which the
parties had by their agreement provided that it should be made.
was no rule prohibiting such an agreement.-COUNSEL, Me Call, Q.C., and
Tindal Atkinson; Joseph Walton, Q.C., and L. Sanderson. SOLICITORS,
Murray, Hutchins, & Stirling; Burton, Yeates, & Hart, for Tyrer, Kenion,
Tyrer, & Simpson, Liverpool.

There

[Reported by F. G. RUCKER, Barrister-at-Law.]
HOCKEY v. WESTERN. No. 2. 1st Feb.
MORTGAGE-EQUITABLE INTERest-Trustee-DUTY TO PAY TO MORTGAGEE
-RIGHT TO REQUIRE INDEMNITY FROM MORTGAGEE-ACTION BY MORT
GAGEE-LIABILITY OF TRUSTEES TO PAY COSTS-CONVEYANCING AND
LAW OF PROPERTY ACT, 1881 (44 & 45 VICг. c. 41), s. 22, SUB-
SECTION 1.

This was an appeal from Kekewich, J., who, on the defendants' undertaking to pay into court two sum of £300 and £50, had dismissed the plaintiff's action to have those sums paid to him. The plaintiff and one Oliver Hay (deceased before action brought) were at one time members of the Southwark Freehold Land and House Property Association, established

by a deed of the 1st of March, 1882, for the purchase of land in England. The defendants were the present trustees of the association. By two mortgages dated in 1889 Hay assigned to the plaintiff, by way of mortgage to secure the sum of £600 and interest thereon, (inter alia) all the money paid by Hay into the association and then standing to his credit therein, and the value of his share and all other (if any) his right, title, and interest in the association, and the benefit, advantages, and emoluments arising from the same. In December, 1896, Hay died intestate. No legal personal representative was ever appointed. In January, 1897, the defendants furnished to the plaintiff a cash statement showing that the sum of £300 was due to Hay from the association, and subsequently it appeared that a further sum of £50 was due to him. By a resolution of the members of the association the defendants were authorized to pay to each member the sums due to him on the signature by him of a receipt in a certain form. The defendants alleged that they had notice that Hay's estate was being wound up by his son: that the plaintiff, notwithstanding repeated requests, had refused to produce to them for perusal the mortgage deed, and had alɛo refused to furnish them with any account of the moneys still owing in respect of the mortgage; and that they, the defendants, were willing and had offered to the plaintiff to pay him so much of the sums owing to Hay's estate as, upon taking the accounts between mortgagor and mortgagee, might be found to be due to the plaintiff, and upon receiving from him a proper covenant of indemnity against any claims which might arise or be made upon them in respect of the said sums, or in respect of the association. The plaintiff, contending that under section 22 of the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), the defendants were not concerned to inquire whether any morey remained due under the mortgages, but were bound to pay over the mortgaged property to the plaintiff, brought an action claiming payment accordingly, and sought to make the defendants pay the coste. Kekewich, J., decided, on the authority of Re Bell, Jeffery v. Sayles (44 W. R 99; 1896, 1 Ch. 1), that the defendants were entitled to refuse to pay the money to the plaintiff until they should be furnished with an accouut as between mortgagor and mortgagee. His lordship therefore, on an undertaking by the defendants to pay the money into court, dismissed the plaintiff's action. The plaintiff appealed.

THE COURT (LINDLEY, M.R., and RIGBY and VAUGHAN WILLIAMS, L.JJ.) dismissed the appeal. LINDLEY, M.R., said: I do not think we need trouble you, Mr. Renshaw. This case is one of considerable importance to trustees and to mortgagees of equitable interests. But it strikes me that we should be going a great deal too far if we were to say that these trustees acted so unreasonably in declining to accede to the plaintiff's claim that they ought to be ordered to pay the costs of the proceedings instituted to enforce it. I take the law to be as it is laid down by the Court of Appeal in Re Bell, Jeffery v. Sayles (ubi supra). I think that that statement of the law is absolutely right; and therefore the only question of real importance which we have now to consider is this: What is the effect of section 22, sub-section 1, of the Conveyancing and Law of Property Act, 1881 ? That sub-section contains words which go a little farther than I quite had in my recollection. I will read it: "The receipt in writing of a mortgagee shall be a sufficient discharge for any money arising under the power of sale conferred by this Act, or for any money or securities comprised in his mortgage, or arising thereunder; and a person paying or transferring the same to the mortgagee shall not be concerned to inquire whether any money remains due under the mortgage." Well, then, speaking generally and shortly, that is now a statutory substitute for the power to give receipts which, before the Act of 1881, was commonly introduced into mortgages; and the effect of that enactment must not be cut down. I take it it is quite plain that after that sub-section was enacted trustees of funds which are in mortgage are perfectly safe in paying the funds over to a mortgagee, and are not concerned to inquire whether anything remains due on the mortgage. Certainly they are safe in doing that, if they act honestly and have no notice of anything wrong. But is it misconduct if their suspicions are aroused by the circumstances, and if they say that they are not satisfied they ought to pay to the mortgagee, even though there may be a strong probability, or even a certainty, of getting a proper discharge? It is no answer to them simply to say that they must not seek the protection of the court-must not pay the money into court under the Trustee Relief Act-but must pay to the mortgagee. If that were so it would be a revolution in the law relating to trustees. That revolution has not yet taken place. It appears to me that the plaintiff's case is gone the moment that is admitted, or decided, which Kekewich, J., did decide, and so far as I can judge very properly. He says: "I cannot see that there was any obligation on them (the trustees) to do it, and they would have been well advised that they should pay the money into court under the Trustee Act if there were any circumstances which made it reasonable for them to decline to be satisfied." I think that is an end of this case. We have not gone into the facts closely, but it appears to me that it is unnecessary to do more than state the position these gentlemen, the trustees, were in. The mortgagor was dead, and there was no legal personal representative; and the trustees knew perfectly well that some controversy was raised by those who were interested in his estate. They were therefore justified in saying that if they chose to pay to the mortgagee they thould get a good discharge, but that, having regard to all the circumstances of the particular case, they did not intend to pay to the mortgagee, and preferred to have the protection of the court. The position taken up by the mortgagee, on the other hand, is that it was nothing to the trustees whether there was money due on the mortgage or not. The mortgagee, in short, claimed to stand upon his strict legal rights under the Conveyancing Act. It would be going a great deal too far to say that the trustees were bound to admit that contention. There is nothing to justify

the court in holding them to be in the wrong because they did not do
that. The appeal must therefore be dismissed, and dismissed with
costs.
RIGBY and VAUGHAN WILLIAMS, L JJ., delivered judgment to the same
effect.-COUNSEL, Warrington, Q.C., and A. Beddall; Renshaw, Q.C., and
R. H. Spearman. SOLICITORS, R. Chapman; A. H. Procter.
[Reported by R. C. MACKENZIE, Barrister-at-Law.]

MASON v. KEAYS. No. 2. 28th Jan.

PARTITION-SALE IN LIEU OF PARTITION-PRACTICE-PARTIES-TENANT OF
UNDIVIDED MOIETY JOINED AS DEFENDANT-PROPER AND NECESSARY
DEFENDANTS-PARTITION ACT, 1868 (31 & 32 VICT. c. 40), s. 4.

This was an appeal from a decision of Kekewich, J., who had dismissed the plaintiffs' action for a sale, in lieu of partition, of certain leasehold land on the ground that the proper and necessary parties had not been made defendants. The plaintiffs were the owners of one undivided moiety of the land in question, and the defendants were Frederick Lovell Keays, a solicitor, and one Emile Ravett. It was alleged in the statement of claim that Keays had originally been owner of the other undivided moiety of the premises, but that he had become bankrupt; and that Ravett alleged that Keays had granted him a lease of one undivided moiety of the premises. The action was brought under the Partition Acts, 1868 and 1876, and claimed a sale of the premises, and other relief. Kekewich, J, held that the necessary parties had not been brought before him as defendants, and dismissed the action. The plaintiffs appealed. Section 4 of the Partition Act, 1868, upon which the question turned, enacts that "in a suit for partition, where, if this Act had not been passed, a decree for partition might have been made, then if the party or parties interested, individually or collectively, to the extent of one moiety or upwards in the property to which the suit relates," request a sale, "the court shall, unless it sees good reason to the contrary, direct a sale."

THE COURT (RIGBY, CHITTY, and VAUGHAN WILLIAMS, L.JJ.) allowed the appeal.

RIGBY, L.J., said: In this case an action is brought asking for the certain land. The plaintiffs appear to be the owners of one moiety of the usual order for enquiries with a view to a sale instead of partition of leasehold premises which they wish to have sold; and certainly they make a prima facie case for a sale unless it can be displaced. As one of the defendants to the action they have the tenant of one undivided moiety of these leasehold premises for the unexpired term of seven years. First of all, then, is that tenant of an undivided moiety a proper defendant to a partition action? I think undoubtedly he is. Upon the allegations in affected by partition. In place of being tenant of an undivided moiety the statement of claim his interest would be legally and materially he would become by the partition a tenant of a divided moiety. Therefore I think the usual partition order should have been made without any further evidence than is supplied by the pleadings. effect.-COUNSEL, Warrington, Q.C., and G. J. Wheeler; H. Terrell, Q.C.2 CHITTY and VAUGHAN WILLIAMS, L.JJ., delivered judgment to the same and C. H. L. Keays; Cannot and R. O. B. Lane. SOLICITORS, Joseph Gibson; M. S. Rubinstein; W. B. Glasier.

[Reported by R. C. MACKENZIE, Barrister-at-Law.!

High Court-Chancery Division.

SOUTH HETTON COAL CO. (LIM.) v. HASWELL, SHOLTON, AND
EASINGTON COAL AND COKE CO. North, J. 21st Jan.
PRACTICE-REASONABLE CAUSE OF ACTION-RULES OF SUPREME COURT-
ORDER XXV. R. 4—STRIKING OUT Statement of CLAIM.
These were two motions brought by two defendants to strike out the
statement of claim as disclosing no reasonable cause of action. The action
was brought for specific performance of an alleged contract by the defen-
dant company (which was in liquidation) by its liquidator for the sale of
the Easington and Undersea royalties. The defendant company was also
lessee of the Pespool royalties. The defendants were the company, the
liquidator, and Mr. Barwick, a rival purchaser. The liquidator was in
negotiation both with the plaintiff company and Mr. Barwick, and pro-
posed that sealed tenders should be sent in to be opened in the presence
of the chairman and directors of the defendant company, and concluded:
"And the highest net tender I receive, all other things being equal and
satisfactory, I will at once accept." Mr. Barwick's tender was as follows:
"I hereby offer you the sum of £31,000 for the company's interest in the
Easington and Undersea royalties, and in addition I agree to indemnify
you and the company against all claims and liabilities under the Pespool
lease, taking an assignment of the same as from May, 1896, and repaying
the £1,000 already paid by the Messrs. Lamb." The tender by the
plaintiffs' agents was, Referring to previous negotiations, we, on behalf
of the South Hetton Co., offer for these royalties such a sum as will exceed
by £200 the amount to-day offered for them by the other intending
purchaser, coupled with a transfer of the Pespool lease, if the other offer
be on that footing." The liquidator accepted Mr. Barwick's offer.
NORTH, J., said that even if the plaintiffs' tender could be said to be
the "highest money tender," it did not fulfil the condition "all other
things being equal and satisfactory." The tender of the plaintiffs
included an offer to take an assignment of the Pespool lease, but Mr.
Barwick offered an indemnity dating back eighteen months and to pay the
£1,000 paid by Messrs. Lamb. Being satisfied that the plaintiff could not
succeed at the hearing he would strike the claim out, although it was not
frivolous or vexatious.-COUNSEL, Vernon Smith, Q.C.; Micklem; R.

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Younger; Swinfen Eady, QC.; Clare. SOLICITORS, Crossman, Prichard, both Gray v. Smith and Pearson v. Pearson. It was to be observed that Prichard, & Block; Botterell & Roche; Flux & Leadbitter.

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

JENNINGS v. JENNINGS. Stirling, J. 28th Jan. PARTNERSHIP-DISSOLUTION-SALE BY ONE PARTNER OF THE ASSETS TO THE OTHER-GOODWILL-INJUNCTION TO RESTRAIN CANVASSING. This case raised an important question as to the rights and liabilities, after a dissolution of a partnership, of the former partners; the question being whether a partner who continued to carry on the firm's business was entitled to restrain his former partner from canvassing the customers of the old firm. The partnership was entered into under articles dated the 25th of January, 1896. In February, 1897, the present defendant commenced an action against the present plaintiff in the Queen's Bench Division, claiming a rescission of the partnership and damages on the ground of misrepresentation made by the present plaintiff to the present defendant. That action came on to be tried on the 22nd of November, 1897, but was at once compromised upon the terms stated in the following certificate: "By consent, the judge directed that judgment should be entered for the plaintiff for £1,200, to include costs, on the following All charges of fraud withdrawn. The plaintiff to be indemnified as to all debts of partnership, and the partnership to be dissolved, the defendant retaining the assets and allowing the plaintiff fourteen days to remove from the premises. The other action to be dropped. This in full settlement of all disputes." Subsequently, the defendant issued a circular to the old customers stating that he intended to commence business and asking for orders. Thereupon the present action was brought, and this was a motion to restrain the defendant from canvassing the customers of the former business.

terms:

STIRLING, J., said that the injunction was claimed upon the authority of Trego v. Hunt (44 W. R. 225), in which it was decided that where the goodwill of a business was sold the vendor, although he might set up a rival business, was not entitled to canvass the customers of the old business, and might be restrained from soliciting any person who was such a customer to continue to deal with the vendor, or not to deal with the purchaser. The obligation to refrain from canvassing the customers arose out of the relation of vendor and purchaser. The first inquiry, therefore, must be whether the relationship of vendor and purchaser existed between the plaintiff and defendant, and in his lordship's judgment that question must be answered in the affirmative. The judgment was one by consent upon terms agreed and stated by the certificate. The cise was not one of a dissolution and sale by the court, but of a dissolution by mutual consent, one of the terms being in substance a sale by the plaintiff of all his interest in the assets of the partnership for £1,200, and indeed this was not disputed by the defendant. Next, was the defendant the vendor of the goodwill? He sold all his interest in the "assets "of the partnership. Goodwill was not expressly mentioned. It was not disputed that the word" assets" included goodwill so far as it constituted property, but it was contended that the defendant was not such a vendor as to give rise to the obligation on which the plaintiff's title to an injunction rested. The word " assets" was a compendious expression for the aggregate of the several items of property belonging to the partnership. An agreement for the sale of such assets would in most cases bear the same construction and have the same effect as if the several items of property were specifically enumerated either in the body of the agreement or in a schedule annexed to it. There were, however, two cases binding on his lordship which were said to establish that this was not always so. His lordship then referred to the cases of Gray v. Smith (38 W. R. 310) and Pearson v. Pearson (32 W. R. 1006), and said that as to the point for decision neither of those cases covered the present. Gray v. Smith did not, for it related to the use of the trade name and not to the canvassing of customers. It was, however, an authority in favour of the defendant to this extent, that it decided that a contract for the sale of "assets" generally did not always confer on a purchaser the same rights as one in which goodwill was specifically mentioned. Neither, again, did Pearson v. Pearson, for all the learned judges relied on the terms of a clause, no equivalent to which was found in the agreement with which his lordship had here to deal. It appeared, however, to be an authority in favour of the plaintiff s› far as it contained expression of opinion by the majority of the Court of Appeal that, under a clause not substantially differing from the agreement now before the court, the defendant was not entitled to canvass customers: while the third member of the court (Cotton, L.J.) apparently was not of that opinion. It appearing, therefore, that in some cases a contract for sale of assets did not confer on a purchaser the same rights as if the items of which the assets consisted, and in particular the goodwill, were specifically enumerated, it became necessary to inquire in what cases this happened. On a sale of property the parties did not in general contemplate the possibility of personal liabilities on the part of either contracting party arising otherwise than out of the contract itself. If then the purchaser tried to use some part of the purchased property (such as the trade name) in such a way as to throw on the vendor a liability not directly arising from the relation of vendor and purchaser, it might well be that he should not be allowed to do so unless he could point to something in the contract which justified his act over and above the mere description of the subject matter of the sale in general terms such as "assets," "interest,' property," and the like On the other hand, if a vendor sought to exonerate himself from a liability which would be the ordinary consequence of a sale of property comprised in the contract, his lordship thought that he ought not to be allowed to do so unless he could point to some express stipulation in the contract for sale enabling him in that behalf. This view appeared to be consistent with

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the obligation enforced in Trego v. Hunt was not confined to goodwill, but extended to other kinds of property. If, for example, the assets sold by the defendant to the plaintiff had included a house which adjoined land belonging to the defendant, he could not, after the sale, build on his own land so as obstruct the access of light to the house which he had sold. It was true that if the house commanded a sea view the defendant could not be restrained from building so as to shut out from the house the view of the sea; but the reason was that the law did not recognize any property in such a view, although it did recognize a right to the access of light to a window. As the law recognized a property in goodwill, his lordship thought that the defendant by selling it came under an obligation not to do any act which would injure it, and amongst such acts was included canvassing of the old customers. His lordship then dealt with a further contention on behalf of the defendant-viz., that the word "assets" ought not to be held to include more than would be ordered to be sold if the court were directing a sale for the purpose of winding up the partnership-but expressed no opinion upon the points to which it gave rise, and said that his present decision rested upon the following findings-viz., that the sale with which he had to deal was not a compulsory one made by the court, but was the subject of a voluntary agreement containing no express stipulation reserving to the defendant any right to carry on business. His lordship thought, therefore, that the defendant was subject to the ordinary obligations of a vendor, and that an injunction ought to be granted.-COUNSEL, Rashleigh; Butcher, Q.C., and Daniel Jones. SOLICITORS, Rashleigh, Son, & Hall; Boyce & Son. [Reported by W. SCOTT THOMPSON, Barrister-at-Law.]

Winding-up Cases.

Re NEW BRITISH IRON CO. (LIM ), Ex parte BECKWITH. Wright, J. 27th Jan.

COMPANY-WINDING UP-CREDITORS-FEES DUE TO DIRECTORS-ARTICLES OF ASSOCIATION-FIXED REMUNERATION-COMPANIES ACT (25 & 26 VICT. C. 89), s. 38, SUB-SECTION 7.

The question which arose in this case was whether the directors of a company were entitled to rank as ordinary creditors in the winding up for unpaid fees due to them at the date of the commencement of the liquidation, or whether these fees were a debt which was postponed to those of outside creditors under section 38, sub-section 7, of the Companies Act, 1862. The articles of association of the company required directors to possess a share qualification, the question of their remuneration being dealt with in article 62, which was as follows: "The remuneration of the board shall be an annual sum of £1,000, to be paid out of funds of the company, which sum shall be divided in such manner as the board shall from to time time determine." It was argued on behalf of the directors that Re Leicester Club and County Racecourse, Ex parte Cannon (34 W. R. 14, 30 Ch. D. 629), was distinguishable, as in that case no remuneration was fixed, while here a distinct and fixed sum was mentioned. WRIGHT, J., held that Ex parte Cannon (supra) was distinguishable, as the directors, having been appointed and having accepted their office on the terms of article 62, they obtained thereby a contractual right to an annual sum of £1,000 as remuneration, and that this case was within the principle of Re Dale & Plant (38 W. R. 409, 43 Ch. D. 255), the sum being due to them, not as members of the company, but under a separate and distinct contract; they were therefore not within section 38, sub-section 7, of the Act of 1862.-COUNSEL, Dighton Pollock; Howard Wright. SOLICI TORS, J. Beckwith; Freshfields & Williams.

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[Reported by C. W. MEAD, Barrister-at-Law.]

High Court-Queen's Bench Division.

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66

ROGERS v. MANCHESTER PACKING CO. Div. Court. 27th Jan. FACTORY ACTS-DEFINITION FACTORY" BLEACHING AND DYEING WORKS"-FACTORY AND WORKSHOP ACT, 1878, s. 93. This was a case stated by the stipendiary magistrate of Manchester. The respondents were charged on an information with employing a young person in their factory after 8 p.m., contrary to the provisions of the Factory Acts. The magistrate held the respondents' premises were not a "factory" within the definition in section 93 of the Factory and Workshop Act, 1878, and on that ground dismissed the information subject to this case. Section 93 provides that the expression "factory" includes both textile and non-textile factories, but that bleaching and dyeing works shall not be deemed to be textile factories. The expression non-textile factory means (1) any works, warehouses, or places named in part 1 of the fourth schedule to this Act. The fourth schedule, part 1, is as follows: "Bleaching or dyeing works-that is to say, any premises in which the processes of bleaching, beetling, dyeing, calendaring, furnishing, hooking, lapping, and making up, and packing any yarn or cloth of any material, or the dressing or finishing of lace, or any one or more of such processes, or any process incidental thereto, are or is carried out." The facts as to the respondents' premises were as follows: The respondents carried on at their premises the business of makers up and packers, which consisted exclusively of the hooking, lapping, making up, and packing of cloth for exportation. In the course of their business the respondents received cloth from their employers, the shipping merchants, in the finished condition in which it was received from the manufacturers. The respondents measured and cut the cloth into lengths, and the lengths

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