which the vendor claimed a right to rescind applied only to requisitions or objections as to matters of title, whereas that now in question was a matter of conveyance merely; and that, in any case, the vendor had waived his right (if any) to rescind, by calling upon the purchaser to complete after the requisition had been made. Kekewich, J., on the authority of the case of Bowman v. Hyland (26 W. R. 877, 8 Ca. D. 588), decided in favour of the purchaser, and the vendor appealed.

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

LINDLEY, M.R.—I do not think we need trouble you to reply, Mr. Hardy. This case seems to me to be a case which is really very free of serious difficulty. It is a case of vendor and purchaser; and the vendor is not in a position in which he has no title at all, in the strict sense of that word. This case, therefore, is not in the least like Bowman v. Hyland (ubi supra), where a man, having got a month's interest in some laud, purported to sell that land in fee. In that case, long before the time came for executing the conveyance, it was found out that the land belonged to somebody else, who in fact took possession of it and ejected the vendor. All that was decided, then, was that the vendor could not, in such circumstances, ride off under the condition, though certainly its words were very wide. I think that decision was quite right; but it does not govern this case. I treat this as a perfectly honest case; it seem reasonable to do so. We all know that titles to land in this country are very complicated, and that a person acting quite honestly may contract to give a title which in the end it turns out he has not got. Ordinarily that contract could be insisted upon. But in this case the vendor says that he has made it a condition that if any objection or requisition whatsoever shall be made by either purchaser (that is, by the purchaser of either of the two lots in which the property was sold) as to the title, particulars, conditions, or any other matter or thing relating or incident il to the sale, which the vendor shall be unable or unwilling to comply with, the vendor (notwithstanding any treaty, discussion, or litigation in reference thereto, or any attempt to remove or comply with the same) shall have full power to annul the sale, upon returning to such purchaser the amount of his deposit in full satisfaction of all his claims, and without payment of interest, costs, or compensation, and such purchaser shall thereupon return to the vendor the abstract of title and other papers which may have been delivered to him or his solicitor by the vendor; provided that such purchaser may within seven days from the time of the vendor giving notice of annulment elect to waive the objection or requisition and take the property subject thereto. Well, now, when the title to the land here in question was investigated it was found to be in an unsatisfactory state. There had been numerous dealings with it, which complicated it and made it very difficult for the vendor to make such a title as he was bound to make under the conditions subject to which the sale took place. Amongst other things, there was a difficulty about an outstanding interest in the official receiver of one William M. Baker. It is plain that the purchaser was quite right in wishing to get the concurrence of that official receiver, because there was some small interest in him. But the vendor takes the view that this requirement is a mere conveyancing technicality, and he says that he cannot obtain the concurrence of the official receiver. The purchaser still insists, and the vendor says he shall rescind. The seven days mentioned in the condition expire, and the purchaser does not waive her requisition. Why, thenregard being had to the very wide words of condition No. 6, which I have read-is the vendor not entitled to rescind? It is very true that the condition does not say in so many terms, "if the purchaser shall make and insist upon any objection to the conveyance"; but such an objection is plainly covered by the words which are used, "any other matter or thing relating or incidental to the sale." Those words certainly include the conveyance, which is perhaps one of the most important of those "matters or things." That is the appellant's case, and I can see no answer to it. I agree that it is rather unfortunate for the purchaserI do not say that it is hard, because she had notice of condition No. 6 and bought subject to it-that she has been put to expense which, unfortunately for her, she will not be able to recover from the vendor or anyone else. Mr. Warrington refers to certain correspondence which took place in 1896 (after the requisition as to the official receiver had been made), as evidencing a waiver of the vendor's right to rescind. In particular, in a letter of the 12th of October, 1896, the vendor says that he will take steps to enforce the contract. But then what happened after that? That letter was only a threat, and this case is not in the least covered by Gardom v. Lee (13 W. R. 719, 3 H. & C. 651), upon which Mr. Warrington relied. After the 12th of October, 1896, the parties still go on negotiating; and I think it is quite plain that nothing which had taken place was sufficient to preclude the vendor from insisting upon this right of rescission, if the purchaser insisted upon her objections. I think what I have said is quite sufficient to dispose of this case. The appeal must be allowed, with costs here and below. I do not think we ought to declare that the vendor has got a good title; that is not our function. It is enough for us to declare

that the vendor is in the circumstances entitled to rescind.

RIGBY, L.J.-I am of the same opinion. I will deal with the point as to which the difficulty appears to arise. The vendor agreed to sell this land in fee simple. Now, though there is no ground for saying that he was guilty of any fraud, all he had at the date of the contract was the residue of a term of years, and before the contract could be completed the term had run out and determined. Now, the question decided in Bowman v. Hyland (ubi supra) was simply whether the vendor could ride off-as the Master of the Rolls has said-on a condition for rescission which obviously was not framed with reference to any such case as that which arose there. I am assuming that Bowman v. Hyland was well decided; but in my opinion it has no reference to the question which arises in this case. entirely agree with all that has been said by the Master of the Rolls.

I

VAUGHAN WILLIAMS, L.J., concurred.-COUNSEL, Cozens-Hardy, QC., and Ashton Cross; Warrington, Q.C., and R. B. Yardley. SOLICITORS, Godfrey & Robertson; F. Shirley Turner.

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

High Court-Chancery Division.

Re WOODS AND LEWIS'S CONTRACT. Romer, J. 4th March.
VENDOR AND PURCHASER-INTEREST ON PURCHASE-MONEY-DEFAULT OF
VENDOR-DELAY DUE TO DEFECT IN VENDOR'S TITLE-IMPUTATION OF
KNOWLEDGE TO VENDOR.

tracted to sell and Lewis to purchase a leasehold house in Berkeley-
Summons. By agreement dated the 26th of July, 1897, Woods con-
square. By clause 9 the purchase-money was to be paid on the 31st of
August, 1897, and upon payment thereof the vendor and all other neces-
siry parties were to execute a proper assurance to the purchaser. By
clause 10, if from any cause whatever, other than the default of the
vendor, the purchase should not be completed on the said 31st of August,
the purchaser was to pay to the vendor interest at £4 per cent. per annum
on the purchase-money from that day until completion of the purchase.
What purported to be a conveyance of the property to the vendor was
made by indenture dated the 1st of June, 1897, between S. C. Thomson,
of the first part, three persous being directors of the Standard Life Assur-
ance Society, of the second part, and the vendor, of the third part. The
said S. C. Thomson thereby admitted himself to be a trustee of the
said society, and he purported to convey the property under the 11th
section of the Standard Life Assurance Co.'s Act (8 & 9 Vict. c. lxxv.).
By the 29th section of the Act it is, so far as material, enacted that a
general meeting of the company may from time to time appoint any
number of trustees not exceeding five, in whose names, or in any three or
favour of the company may (if desired) be taken, and the said trustees
more of whose names, any mortgage or other security to be granted in
shall be under the control of the ordinary directors of the company, and
shall from time to time make and execute such conveyances, surrenders,
assignments, and assurances, and do such other acts, matters, and things
as shall from time to time be directed or ordered by the said ordinary
directors, and the same shall to all intents and purposes be as valid as if
made and executed or done by all the proprietors for the time being in the
company. Instead of being made under the direction of the ordinary
directors of the said assurance company in pursuance of the said 29th
section, the said indenture of the 1st of June, 1897, purported to be
made with the concurrence of three of the ordinary directors of the
said assurance
company only, under the provisions of the 11th
section of the said Act, which enacts that all mortgages, charges,
wadset, and other securities whatsoever executed and given, or
to be executed and given, in favour of the company of or affecting
any property in England, Ireland, or elsewhere (save Scotland), shall
and may be released and discharged by the party in whom the same may
for the time being be vested with the privity or at the instance of any
three or more of the ordinary directors of the company or persons acting
as such. Inasmuch as the said indenture of the 1st of June, 1897, was
effected under the 11th section instead of under the 29th section of the
said Act of Parliament, it was objected for the purchaser that the convey-
ance to the vendor was defective, and that unless it had been in fact
authorized by a resolution of the directors a deed of confirmation was
necessary. No such resolution having been passed, a deed of confirmation
was required and eventually obtained, but the purchase was not com-
pleted until the 24th of November. The vendor claimed interest to that
date under the contract, but the purchaser objected that the delay was
occasioned by the vendor's default. This summons was taken out under
the Vendor and Purchaser Act, 1874, on behalf of the vendor for a declara-
tion that there had been no default on his part. The court found that the
defect was not known to the vendor at the date of the contract, and that
there was no undue delay on his part in complying with the purchaser's
requisition.

ROMER, J., adopted the definition of default in the judgment of Bowen,
L J., in Re Young and Harston's Contract (34 W. R. 81, 31 Ch. D. 168, 174).
His lordship considered that the imputation of default could only be
justified by holding that, for the purpose of the clause as to interest, the
vendor was bound, or must be taken to know every possible defect of his
title, and that did not appear to him to be reasonable. In his opinion
ignorance of such a defect of title as existed in the case before the court
did not amount to "default" on the vendor's part with the clause. His
lordship thought that the principle to be applied was to be found in
Williams v. Glenton (14 W. R. 294, L. R. 1 Ch. App. 200, 206), and that
Re Young and Harston's Contract, and Re Hetting and Merton's Contract (42
W. R. 19; 1893, 3 Ch. 269) was clearly distinguishable. He therefore
held that the vendor was entitled to interest.--COUNSEL, Farwell, Q.C.,
and J. Cave; Neville, Q.C., and Holmes. SOLICITORS, Hulberts, Hussey, §
Metcalfe; Ingle Holmes & Sons.
[Reported by J. F. WALEY, Barrister-at-Law.]

Winding-up Cases.

Re DRIFFIELD GAS LIGHT CO. Wright, J. 16th Feb. and 2nd March.
COMPANY-WINDING UP-DISTRIBUTION OF SURPLUS CAPITAL - FULLY PAID

AND PARTLY PAID SHARES-NOMINAL AMOUNT OF SHARES.

The company was formed in 1835 under a deed of settlement; it was registered under one of the Joint-Stock Companies Acts, and afterwards

urder Part VII. of the Companies Act, 1862, as an unlimited company.
The material clauses of the deed of settlement are as follows: (1) "That
the sums set opposite to the names of the parties hereto shall form the
capital or joint stock of the company, and the aggregate amount thereof
shall be £1,800." By clause 19 it was provided that losses should be
made good by the proprietors " in proportion to their respective shares,"
and clause 20 contained a provision that profits should be divided among
proprietors "according to the amount of their respective shares." Clause
32 also provided that in case of the company being wound up the residue
remaining should be "divided between the several proprietors for the
time being in proportion to their respective shares in the said under-
taking." The shares were £10 each. 1,200 further shares of £10 each
were afterwards issued. 600 of these were fully paid up; the remainder
were issued with only £6 103. paid up. Some of the shareholders of both
the fully paid-up and also of the partly paid shares had taken their shares
from the company at a premium. There were thus four different classes
of shareholders: (1) Fully paid-up shareholders who had taken their
shares at par; (2) fully paid-up shareholders who had taken their shares
at a premium; (3) partly paid-up shareholders who had taken their shares
at par; (4) partly paid-up shareholders who had paid a premium. The
undertaking of the company had been sold to the local authority, and the
company was being wound up by resolution of the shareholders. After
payment of all debts, liabilities, and costs of liquidation there was a large
Eum remaining for distribution among the shareholders. The court had
now to decide in what way this sum should be distributed among the
holders of fully paid and partly paid-up shares.
WRIGHT, J., held that effect must be given to the express provision of
the deed of settlement in clause 32, and that after equalization of the
capital account by a return of all the capital paid up, the surplus remain-
ing must, according to the language of the paragraph, be "divided
between the several proprietors for the time being in proportion to their
respective shares in the said undertaking "-that is, in proportion to the
nominal amounts of the shares-the contention that those who took
shares at a premium should be allowed to share in the surplus in
proportion to what they paid for the shares was plainly untenable.-
COUNSEL, G. R. Northcote; O. Leigh Clare; W. Brinton and H. Hurrell;
A. Dunham. SOLICITORS, Oldman, Clabburn, & Co., for Foster, Tonge, &
Botterill, Driffield; Chester & Co., for Pickering & Co., Hull.

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

defendants had a bonâ fide belief that they had rights over the land, that
would exonerate them although their belief was mistaken; and that the
chairman had misdirected the jury by telling them that the excess of
damage done by the defendants beyond what was necessary for the
assertion of the right was proof, and not merely evidence, of malice and
illegality. Perry v. Fitzhowe (8 Q. B. N. S. 757) was cited.
THE COURT (Lord RUSSELL OF KILLOWEN, C.J., and GRANTHAM, Wright,
BIGHAM, and DARLING, JJ.), without calling on counsel for the prosecu-
tion, affirmed the conviction.

Lord RUSSELL OF KILLOWEN, C.J., after referring to the statement in the case as to the rights said to have been formerly exercised over the land, said that some of their rights were profits à prendre-namely, rights to enter on the land of another and take therefrom a profit. These would not be general rights for a whole community, but only rights in respect of certain property. The right alleged of drying their nets on the ground might apply to the inhabitants of the place, as also might the claim of right of access for purposes of recreation. The case did not expressly state what rights were relied on by the defendants. The chairman thought there might be some evidence of right of access for purposes of recreation; but no details were given. It must, however, be assumed that the defendants went on the land in the assertion of some right. It could not be denied that the facts proved as to the destruction of the building were ample evidence that the defendants had unlawfully and maliciously damaged personal property to an amount exceeding £5, but it was contended that the jury had arrived at a verdict of guilty on a wrong direction of the chairman. The summing up, however, was in substance a proper summing up, though the precise language thereof might not be the same as he himself would have used. As appeared from the note of the summing up affixed to the case, the chairman said to the jury, "You have not got to decide whether a right exists or does not exist, but whether defendants, in acting as they did, acted in the bona fide belief that they were acting within their rightsrights that were known to the law and a right that can be legally a rightin removing this building. In the next place you will have to determine whether or not, assuming they acted bona fide in what they did, and that they removed an obstruction which they were justified in removing, whether they did excessive damage in so doing." And later on, in his summing up, he directed the jury-(1) first of all to decide whether or not in removing this building the defendants thought they were acting in the protection of a right, such right being a right known to the law, and if so (2) whether, in removing it, they did damage which was greater than they were bound to do in removing the obstruction. The jury answered the first question-We believe that the defendants acted in the belief that it was according to right in the first place. The chairman then said -Do you think they are guilty because they did more than was necessary to be done in asserting that right? The foreman.-Yes, by destroying it and throwing it over the cliff. The charge of the chairman did on the whole convey the points it was necessary for the jury to consider. The

conviction must therefore be affirmed.

GRANTHAM, WRIGHT, BIGHAM, and DARLING, JJ., concurred. Conviction affirmed.-COUNSEL, Duke; Bucknill, Q.C., and W. T. Lawrance. SOLICITORS, Carthew & Wheeler; Coode, Kingdon, & Cotton, for William Coode, St. Austell. [Reported by T. R. C. DILL, Barrister-at-Law.]

4th March.

LICENSING ACTS-NEW LICENCE-LICENCE, OBJECTION_TO-OBJECTOR
CLAIMED TO BE HEARD UNSWORN AS ONE OF THE PUBLIC-DISCRETIONARY
POWER OF JUSTICES TO REFUSE TO RECEIVE HIS EVIDENCE, EXCEPT ON
Олтн.

The defendant, Henry Clemens, sen., and 19 others were indicted under section 51 of the Malicious Damage Act, 1861, for that they on the 31st of August, in the parish of Newquay, Cornwall, unlawfully and maliciously did damage certain personal property-namely, a wooden structure, or office, of the Headland Hotel Co. (Limited), to an amount exceeding £5. The facts were as follows: In August, 1897, the Headland Hotel Co. having obtained a lease of some land at Newquay, forming REG v. SHARMAN AND OTHERS (JJ) Ex parte DENTON. Div. Court. portion of the Little Fistral meadow, had begun to excavate for the foundations of an hotel, and had erected thereon, a wooden building of the value of £14 for an office. On the 31st of August a number of persons, including the defendants, assembled at Newquay, and, headed by a brass band, proceeded to the meadow, fastened a rope to the wooden building, pulled it over, and broke it up. They then tied the rope to the two sides of the building, dragged them to the edge of the cliff, and threw them into the sea, which is distant 120 yards from the spot where the wooden building had been erected. They then returned, tied the rope to the remaining two sides, dragged them to the cliff, and likewise threw them into the sea. For the defence, evidence was given that, until about 60 years ago, the land was part of a large extent of unenclosed land called Towan Common, and the inhabitants of Newquay (which was then a village called Towan Blistra) were accustomed to dry and mend nets on Towan Common, take sand therefrom, cut the rushes growing thereon for fuel and for litter for cattle, and go upon the said land for purposes of recreation. About 60 years ago the then owner of the soil enclosed great part of the land, including Little Fistral meadow. At the time of the enclosure the inhabitants of Newquay protested and had a meeting with the owner, who agreed to put a stile in the eastern hedge of the Little Fistral meadow, for the purpose of giving to the inhabitants access to the land within the enclosure. The inhabitants and visitors have been accustomed to use the stile and to wander at pleasure over the enclosure. It was contended by the defendants that they were not guilty of the alleged offence, on the ground that the acts done by them had been done in good faith in assertion of rights over the said land which they believed to be possessed by the inhabitants of Newquay. The chairman directed the jury that it was for them to decide whether the defendants acted bond fide in the belief that they were within their rights; and, secondly, whether they did excessive damage; and that if, in the exercise of what they believed to be their rights to remove an obstruction, the defendants did more damage than was necessary the jury should find them guilty. The jury returned a general verdict of guilty, and in answer to questions stated that the defendants, acting in the bond fide belief that they were entitled to remove the building, did more damage than was necessary. A fine of 40s, was imposed on each defendant, and a case reserved by the chairman for this court. For the defendants it was argued that if the

This was a motion for a certiorari to quash the grant of a licence and also for a mandamus to the justices of the Wellingborough Division of the county of Northampton to compel the justices to rehear the case on the ground that they had excluded certain material evidence. The point of law raised was whether an objector to the grant of a new licence, who wished to state facts as one of the public residing in the neighbourhood and as such interested in the granting of the licence, could be compelled to make his statement on oath. The facts, so far as material, were as follow: Mr. George Denton, the objector, who is a boot and shoe manufacturer of Rushden, Northamptonshire, and a large employer of labour, desired to oppose the granting of a provisional full licence to new premises in that town applied for by one Knight. Accordingly, at the general annual licensing meeting for that division on the 23rd of August last, at the close of the case Mr. Denton rose and stated that he had certain facts to lay before the justices in opposition to the granting of the licence. It was objected that he ought not to act as an advocate, and that if he desired to make statements of fact he ought to do so upon oath and submit to cross-examination. He refused, however, to be sworn and the justices declined to hear him in opposition to the application, and granted the licence. Later on Mr. Denton attended the meeting of the county licensing committee to oppose the confirmation of the licence, and on that occasion the solicitor who supported the licence objected to his being heard as he had not opposed the licence before the justices. Again he refused to be sworn, and the committee affirmed the licence without hearing him. Counsel, in showing cause why the rule for a certiorari should not be made absolute, submitted that the justices had discretion, and that if they decided not to hear Mr. Denton unless he was sworn they were perfectly justified in coming to that decision. In support of the rule, counsel said it was immaterial for Mr. Denton's object whether a mandamus or certiorari was granted. He would not contend very seriously that a certiorari was the proper remedy. Mr. Denton claimed the right as one of the public to

visions of the Ballot Act, 1872, relating to a poll at a parliamentary election (including the provisions relating to the duties of the returning officer after the close of the poll), shall apply to a poll at an election of councillors." Section 1 of the Ballot Act, 1872, is divided into four paragraphs. The first three deal with the nomination of candidates. The fourth paragraph is as follows: "If after the adjournment of an election by the returning officer for the purpose of taking a poll, one of the candidates shall die before the poll has commenced, the returning officer shall upon being satisfied of the fact of such death, countermand notice of the poll, and all the proceedings with reference to the election shall be commenced afresh in all respects as if the writ had been received by the returning officer on the day on which proof was given to him of such death; provided that no fresh nomination shall be necessary in the case of a candidate who stood nominated at the time of the countermand of the poll." Section 2 deals with the conduct of the poll. The question was whether the last paragraph of section 1 was incorporated by section 58 of the Municipal Corporation Act, 1882. On behalf of the defendant it was contended that the paragraph referred to related to the nomination and not to the poll; and that, consequently, he was bound to proceed with the election not withstanding the death of one of the candidates.

SERVED "-PROCEEDINGS IN BANKRUPTCY-CRIMINAL PROCEEDINGS -SOLI-
CITORS ACT, 1860 (23 & 24 VICT. c. 127), s. 28.

citors, from the decision of the Divisional Court (Wright and Kennedy,
Appeal by Messrs. Lloyd-George and William George, a firm of soli-
JJ.) reversing an order of the county court judge of Carnarvonshire
(ante, p. 83). The facts are sufficiently stated in the judgment.

THE COURT (A. L. SMITH, CHITTY, and COLLINS, L.JJ.) having taken time to consider, dismissed the appeal.

CHITTY, L.J., read the judgment of the court as follows: This is an appeal from the order of the Divisional Court discharging an order dated the 10th of November, 1896, made by the county court of Carnarvonobtained the order in the county court. It was made on their petition shire sitting in bankruptcy. The applicants are a firm of solicitors who Act, 1860. The order declared that the sum of £813 mentioned in the for a charging order under the provisions of section 28 of the Solicitors petition had been recovered and preserved for the bankrupt's estate through the instrumentality of proceedings instituted by the petitioners on behalf of the trustee in bankruptcy, and ordered that the costs, charges, and expenses of the petitioners of and incidental to the recovery and preservation of the £813, including the costs and expenses of the THE COURT (GRANTHAM and WRIGHT, JJ.) held that the last paragraph and expenses of the proceedings taken before the justices prelimpetitioners in procuring the arrest of the bankrupt and the costs of section 1 of the Ballot Act was incorporated by section 58 of the inary to and consequent on such arrest, and of the petition and the Municipal Corporations Act, 1882, and granted a prerogative writ of parties properly appearing thereon, should be taxed and paid out of the mandamus to issue peremptorily. They said that the prerogative writ was the proper remedy, and not an injunction. The only other remedy would dealer, had absconded to Australia, taking with him the sum of £813, the £813 recovered and preserved as aforesaid. The bankrupt, a horse be a petition after the election, which would be both expensive and proceeds of the sale of his horses, and the property of his creditors under inconvenient. There being no other convenient remedy, it was right the the bankruptcy. Two criminal charges were made against him. The first mandamus should go. Section 58 did not simply incorporate the provisions was for forgery, and in this matter the appellants acted as solicitors for his of the Ballot Act relating to the poll, but enacted that the poll should be conducted as in a parliamentary election. Countermanding or post-account for proceedings on this charge, the appellants do not now seek to father. Although they introduced charges against the trustee in their cash poning the poll were no part of the nomination but were part of the conduct of the poll. The reference to the writ in section 1 of the Ballot charge was for offences against the Debtors Act, 1869. In respect of have these charges paid out of the bankrupt's estate. The other criminal Act was a difficulty, but, when the provision was applied to municipal this charge the county court judge, on an application made by the and county council elections, the notice of the election required by section appellants on behalf of the trustee, whose solicitors they then were, 51 of the Municipal Corporations Act, 1882, must be substituted.COUNSEL, Dickens, Q.C., S. H. Day, and Kenrick; Macmorran, Q.C., and 1895. To this order section 166 of the Bankruptcy Act, 1883, applied, directed the trustee to prosecute the bankrupt by order made in April, Avory. SOLICITORS, Grover Humphreys & Son; Blaxland. and thereupon it became the duty of the Director of Public Prosecutions to institute and carry on the prosecution. The object of the enactment

[Reported by C. G. WILBRAHAM, Barrister-at-Law.}

SALT UNION (LIMITED) v. THE NORTHWICH SALT COMPENSATION appears to be to save the bankrupt's estate from the costs of the prose

BOARD. Div. Court. 4th March.

BRINE PUMPING ACT-RATE" PRECEDING TWELVE MONTHS"-BRINE
PUMPING (COMPENSATION FOR SUBSIDENCE) ACT, 1891 (54 & 55 VICT. c. 40),
s. 38.
This was a case stated by the Cheshire Quarter Sessions to obtain the
opinion of the court upon the proper construction of section 33 of the
Brine Pumping (Compensation for Subsidence) Act, 1891 (51 & 55 Vict. c.
40). The Act provided for the formation of districts, so that the persons
suffering damage by subsidence in any district should be compensated by
the brine pumpers in that district. Compensation boards were to be
created who were empowered to make rates upon the brice pumpers.
Section 38 provides: "The rate or rates to be made by a board on the
brine pumpers within their district shall not, in the aggregate in any
period of twelve months exceed the sum of threepence per one thousand
gallons of brine pumped or raised in the district by each of such brine
pumpers during the preceding twelve months." The respondents, who
were the board appointed to act in the district of Northwich, on 25th of
March, 1897, made a rate upon the brine pumped in the district during
the year ended the 31st of December, 1896. The appellants, who were
large brine pumpers in the district, appealed against the rate to the
quarter sessions upon the ground, among others, that the rate was made
upon the wrong period, and that it ought to have been made upon the
period of twelve months ended the 24th of March, 1897. The quarter
sessions dismissed the appeal, stating this case for the opinion of the High
Court. It was contended on behalf of the appellants that the "preceding
twelve months" mentioned in section 38 referred to the period of twelve
months immediately preceding the rate. On behalf of the respondents it
was contended that two periods of twelve months were contemplated by
the Act, the one immediately following the other. The one was the
period of twelve months within which the rate was made, and the other
the period of twelve months, preceding the other period, over which the
rate was to be made. The rate being made within the period of twelve
months ended the 31st of December, 1897, was properly made over the
period ended the 31st of December, 1896.

THE COURT (WRIGHT and DARLING, JJ.) allowed the appeal.
WRIGHT, J., said that according to the natural meaning of the words
the term "preceding twelve months" meant the twelve months preceding
the making of the rate. The board had no power make a rate on any
day reckoning back a period of twelve months from that day-which
exceeded 3d. per thousand gallons of brine pumped during that period.-
COUNSEL, Freeman, Q C., and C. G. Wilbraham; Honoratus Lloyd.
SOLICITORS, Williamson, Hill, & Co., for Trafford & Cook, Northwich; 4. &
J. E. Fletcher, Northwich.

[Reported by C. G. WILERAHAM, Barrister-at-Law.]

Solicitors' Cases.

Re HUMPHREYS, Ex parte LLOYD-GEORGE AND WILLIAM GEORGE.
C. A. No. I. 3rd March.
SOLICITOR COSTS-CHARGING ORDER-"PROPERTY RECOVERED OR PRE-

made.

served.

cution. The bankrupt was arrested in Australia on the criminal charges
and brought to this country; he was afterwards discharged by the justices
on the charge of forgery, and was tried and acquitted on the charge under
the Debtors Act, 1869. At the time of his arrest he had on him the sum
of £813, which was taken from him by the police authorities. The
balance of this sum, amounting to upwards of £700, was remitted to the
appellants by virture of a power of attorney prepared by them on behalf
of the trustee in bankruptcy. The appellants have retained in their own
account, in which they sought to deduct large sums in respect of the
hands the money thus received. They delivered to the trustee a cash
costs of the prosecutions and other matters, some of which it is admitted
they are not entitled to claim. The account shewed a balance of £323 4s.,
payable to the trustee. Although they had been requested to deliver a
bill of costs to the trustee in September, 1896, they had not done so
before the charging order was made. In fact they have not now delivered
their bill of costs. It was contended on behalf of the appellants that they
were entitled to retain the money on two grounds-first, by virtue of the
charging order; and, secondly, by virtue of a lien they claimed as
solicitors. As to the charging order, I think it ought not to have been
Section 28 of the Solicitors Act, 1860, is to the effect
that in every case in which a solicitor is employed to prosecute or defend
any suit, matter, or proceeding in any court of justice, it shall
be lawful for the court or a judge before whom any such suit,
matter, or proceeding has been heard or shall be depending to declare
such sclicitor entitled to a charge upon the property recovered or pre-
"Property recovered or preserved means property recovered or
preserved in any suit, matter, or proceeding in any court of justice.
Obviously the proceeding must be in a civil court of justice. The enact-
instituted as it is for the punishment of the offender, no property is re-
ment does not extend to criminal proceedings. In a criminal proceeding,
covered or preserved. The only possible exception which occurs to us is
an order made after conviction by the judge for restitution of the property
to the owner under the provisions of the Acts relating to larceny and other
similar offences (24 & 25 Vict. c. 96, s. 100; 35 & 36 Vict. c. 93, s. 30).
If that be an exception-a point on which it is not necessary to express
any opinion-the only costs for which a solicitor could obtain a charging
In the
order would be the costs of obtaining the order for restitution.
case before us the money received by the appellants was not recovered or
It was received
preserved in any civil proceeding in a court of justice.
merely by virtue of the power of attorney. It was contended that it
was recovered in the proceedings in the bankruptcy. The answer is, it
was not. The only colour for the argument was the order directing the
prosecution. This point is covered by what we have said as to criminal
proceedings, coupled with the fact that the money was not recovered by
virtue of that order, although the order may have led indirectly to
the recovery.
To these reasons against the charging order we may add
the following. The jurisdiction under section 28 of the Act of 1860 is
discretionary. We entirely agree with the opinion expressed by Bowen,
LJ., in Greer v. Young (24 Ch. D. 545, at p. 557), where he said that
absolute right to the charge, but only power to ask the court in the
"the Act gives a discretionary power to the court; the solicitor has no
exercise of its discretion to make the charge." Without going so far as
to say that the Bankruptcy Court ought never to make a charging order

circumstance that the first steps in an action in the superior courts cost; less than those in the county court, If the county courts become merged in the High Court, it will not be tolerated that a plaintiff in the inferior branch of the court should, on entering his plaint for £20, have to pay £1 18. as a court fee, while his neighbour will only pay 5s. [now 103.] for his writ for £2,000 in the superior branch of the court. We recommend that this anomaly should cease, and that scales of fees to be taken by authority be framed applicable to all proceedings in both branches of the High Court; the fees in the inferior branch of the court being lower than those in the superior branch." The fees at present charged in the county court are as follows: Issuing, 1s. in the £, and in actions above £2 an additional 1s. for service; hearing fee, 23. in the £; execution, 1s. 6d. in the £; so that in an action for £20 the county court fees will be: Issuing, £1 1s.; hearing, £2; execution, about £1 15s. The fees charged in the county court are proportionately far in excess of those similarly charged in the High Court, as well as of those charged in the Mayor's Court (London). A writ in the High Court, whatever the amount sued for, only bears the stamp of 103. The hearing is £2, paid on setting down, and two further sums of £1 each on the order and judgment. The fee on a plaint in the Mayor's Court (London) does not exceed 5s., and the maximum fee on setting down for trial and hearing is a similar sum. Jury fees in all courts are additional. Further fees have usually to be paid in the county court on the issue and hearing of a judgment summons. The judgment summons fees are altogether too high. A comparative statement of judgment summons fees in the county court, High Court, and Mayor's Court are set out in Appendix A to this report. The total fees paid in county court proceedings sometimes exceed 45 per cent. of the debt. The charges allowed a solicitor by the county court scale are comparatively far below the amount of the court fees. For instance, in the case of a default summons for £20, the solicitor has to write a preliminary letter, to prepare an affidavit, attend his client to swear the same, prepare particulars with two copies, fill up instructions or præcipe, attend at the court to issue the summons, and afterwards serve it. For this the solicitor gets £1 33. 10d. The court does nothing beyond sealing and filing the papers, and for this receives £1. Your committee have compared the total fees received in the High Court and county courts, with the respective cost of such courts to the country. Summarized for the year 1894-95 these appear to be as follows: