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informations, and must therefore be commenced within six months from the time when the costs and expenses were incurred.

One case, affecting county court qfiic./2's, must now be mentioned—naniely, R0 J)/'o.s-Ion, Ev parts Prudrlalt (45 \V. R. 576; 1897, 2 Q. B. 429). It was there held that, where a high bailiff seizes goods on any premises under a warrant of execution, and then seizes further goods on the same premises under a claim made by the landlord for distress, he is entitled to a separate set of fees in respect of each seizure. This decision seems to be clearly warranted by the language of section 160 of the County Courts Act, 1888 (-51 & 52 Vict. c. 43), which, in effect, treats the execution and the distres as difierent proceedings, and gives fees to the high bailiff in respect of each transaction

As regards rlifenccs to county court actions, it is prescribed by ord. 10, rr. 10, 1811, of the County Court Rules, 1889, that a defendant who intends to rely upon any “statutory; rlrfcncc ” must give notice thereof before trial pursuant to the above rules. It has, accordingly, now been held, in Conroy v. Peacock (~15 \V. R. 502; 1897, 2 Q. B. G), that in an action under the Employers’ Liability Act, 1880 (43 & 44 Vict. c. -H), the defendant cannot rely upon the defence that the notice of injury required by section 4 of that Act has not been given unless he has given notice under the above-mentioned rules that he intends to rely upon it as a statutory defence.

One case affecting the mode of trial of a county court admiralty action may here conveniently be mentioned. \Vo refer to T/zc T/icodora (l897,- P. 279), where it was held that, in an action in rem brought to recover freight in the county court under the Admiralty Jurisdiction Acts, 1868 and 1869, a defendant is not entitled to trial by a jury under section 101 of the County Courts Act, 1888 (51 & 52 Vict. c. 43). Having regard to the evident intention of the Legislature, as indicated by the terms of the County Court Admiralty Jurisdiction Acts, 1868 and 1869, that admiralty actions in the county court should he tried in the same way as admiralty actions in the High Court, it is scarcely conceivable that Parliament should have intended, by the use of such general language as is contained in section 101 of the County Courts Act, 1888, to effect a complete change in this respect. We therefore venture to think that, whatever the hardship occasioned to suitors may be, the case under consideration was rightly decided.

On the subject of county court appeals, one case only appears ti have been decided during the past legal year—namely, 1’/‘Ito/iett v. Poolc (VV. R. Dig, vol. 45, p. 42), where it was held that if it appears to the High Court that there is reasonable ground for an appeal from a county court, the High Court will not order the appellant to give security for the costs of the appeal merely on the ground that he has no visible means of paying the respondent's costs should the appeal fail. It had previously been stated, we may mention, by CAVE and SMITH, JJ., in Exparte Ayzotlzccarfca’ Society (38 W. R. 478) that the Divisional Court will not, as a rule, require security for the costs of an appeal from a county court where leave to appeal has been unconditionally given by the county court judge.

One case on that most important matter, Costs, must now be noticed-—that is to say, Pain v. Boicdm (45 W. R. 46), which decides that, in an administration action in the county court the costs of the administration are within the discretion of the registrar as discretionary “ fees or allowances ” under ord. 50a, r. 20, of the County Court Rules, 1889, and that, in disallowing certain costs, the registrar may take into consideration the fact that the estate is insolvent, in which case only such costs as are sfiictlyi necessary for the protection of the estate should be a owe .

\Vith regard to that final stage in a county court action— namely, e:rccutz'on—as reference has already been made, under another heading, to Ila Broster, Er: parte Pruzldah (supra), we need_now, in conclusion, only refer to the case of Goodloclc v. Cousins (45 W. 869; 1897, 1 Q. B. 558). It was there held that where, a claim having been made to goods taken in execution by the bailifi of n. county court, the claimant does not make the deposit or give the security required by section 156 of the C.unty Courts Act, 1888, and the bailiff sells the goods under the authority given by that section the sale ives the urchaser


. 1 g P a good title to the goods, although they were the property of

the claimant at the time of the seizure. This decision does not seem to call for any special comment, as it depends entirely upon the construction of section 156 of the County Courts Act, 1888. Suffice it, therefore, to state that it would seem to be a necessary implication, from the provisions thegein contained, that the purchaser to whom goods are sold by the bailiff is to be entitled to the goods sold in pursuance of that section.



A Selection of Leading Cases in Equity. With Notes. By FREDERICK THOMAS Wiiirs and QWEN DAVIES TUDOR. Seventh Edition. By THOMAS SNOW, M.A., Barrister-at-Law, assisted by W. F. PHILLPOTT8, M.A., and C. R.\i and It. B. PHILLPOTTS, B.A., Barristers-at-Law. Two Volumes. Sweet & Maxwell (Limited). Price £3 15s.

A Manual of the Principles of Equity. A Concise and Explanatory Treatiso, intended for the use of Students and the Profession. By JOHN INDERMAUR, Solicitor. Fourth Edition. Geo. Barber.

Sweet & Maxwell's Diary for Lawyers for 1898. Edited by FRANCIS A. STRINGER, of the Central Oflice, Royal Courts of Justice, and J . J OIINSTON, of the Central Oilice. Sweet & Maxwell (Limited).

Notes on Pcrusing Titles, containing Observations on the Points most frequently arising on a Porusal of Titles to Real and Leasehold Property. With an Epitome of the Notes, arranged by way of Reminders. By LEWIS E. EMMET, Solicitor. Third Edition, with an Appendix on the Appointment of a Real Representative under the Land Transfer Act, 1897. Jordan & Sons (Limited).

The Compulsory Summons for Directions. A Practical Treatise on the New Rules of the Supreme Court as to Direction. By FRANCIS A. STRINGER, of the Central Otfice. Sweet & Maxwell (Limited).

The Student’s Guide to the Principles of the Common Law. By JOHN INDERMAUR, Solicitor. Fourth Edition. Geo. Barber. 5s.


THE DISADVANTAGES OF PARCHMENT. [T0 the Editor of the Solicitors’ Journal]

Sir,—Iteading Messrs. X. & Y.’s letter in your journal last weelr, put me in mind of an accideht that happened to the deeds and documents of a lady client of mine some years ago.

She placed her iron deed box (not a safe) in the cellar of her house at Surbiton. One day a great quantity of water flowed into the basement of the house from some spring or other source; the lady did not remove her deed-box, which was eventually covered with water, and when it subsided my client opened the deed-box and found that her parchment deeds were shrivelled and mostly illegible, whereas the paper documents were only stained, but perfectly le 'ble.

gblo in this case also parchment had its disadvantages.

42, Theobald’s-road, Gray's-inn, Nov. 6. F. TRUEFITT.

[To the Editor of the Solicitors’ Journal.)

Sir,—In connection with the letter of Messrs. X. & Y. in your issue of the 30th ult., there is another question. A great deal of the paper now used is made of old papers, instead, as formerly, of

rags. _ ' What is the effect of the change on the durability of the paper? Old letters and drafts may be wanted at any time. A. B. NE\V RULES.

[To the Editor of the Solicitors’ Journal.)

Sir,—Having regard to the ridiculous (and fortunately abortive) County Court Rules propounded last year, and to the confusion which has resulted from the recent alterations in order 30, I venture, with all deference, to suggest three points which might, I think, well be borne in mind before any further changes are introducedviz.:

1. An acquaintance with the existing practice.

2. An inquiry whether the proposed innovation is workable.

3. A consideration whether the proposed new iule is intelligible.

No doubt during the last few days many other solicitors have shared my experience, which may thus be described:


Attending to sign judgment in default of defence, when I was required to issue a summons under order 30.

Summons for leave to sign judgment, copy, and service.

Attending summons; same adjourned for the master to confer with the other masters as to the construction of the new rules.

Attending adjourned summons, when the master stated that a summons was unnecessary and that judgment could be signed without leave. No order as to costs.

I have put the items in the form of a bill of costs, but can I charge my client with it f and if so, what will he say ? PRACIICE.

Nov. 9.

THE LAND TRANSFER ACT, 1897. [To the Editor of the Solicitors’ JournaI.]

Sir, —That grandmotherly legislation is pushed to the extreme by the establishment of a compulsory registration of land transfer must be obvious. Land-owners, of all people in the world, know what is good for them, and do not want compulsion to accept benefits, if real benefits are offered. Compulsory registration of land transfer stands as a self-condemned folly. '

Happily, however, the Act just passed has an inherent feebleness which furnishes an opportunity of frustrating its foolishness. It is only, in the first instance, to be applied to one county, and if any particular county be fixed on by the Government for the experiment, the council of the county may effectually object thereto.

All this eccentric legislation is, we are now told, to be followed by a Government order selecting the County of London as the corpus vile for this experiment. Hereon Mr. Rnbcustein’s letter to the Estates Gazette, which you re-published last week, is very much in point. Every word he says on this matter is worthy of the best attention, and, as I venture to think, of entire acceptation. More may easily be added in condemnation of the mad idea of experimentalizing on London.

But the point I wish to emphasize is a practical one. The elections for the London County Council come on next spring. Now is the time for the land-owners of London to have a voice. My view is that the jangle of party cries and elections on “ party lines ” should (for this time, at least) be unheeded. Let the legal profession-—each one in his own sphere of infiuence—make the rejection of the proposed order a test question to every candidate at the ensuing London County Council election.

Permit me to add one example: A legal friend of mine, who is a Ruling Councillor of the Primrose League in London, received the other day nu application from the agent of the Moderate candidates for the assistance of his Habitation in promoting the election of those candidates at the County Council elections next spring. My friend's answer was that such help would be rendered conditionally on the candidates pledging themselves, if elected, to use every means in their power to prevent the County of London from being the area selected for experiment of the Land Transfer Act, 1897.

My suggestion is that one and all, without distinction of party—for this is not a party question at all-—should act likewise.

Nov. 8. Lmcoi.1v’s INN.

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Court of Appeal. STERN v. TEGNEB. No 2. 27m and sous Oct.

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Appeal from an order of Ridley, J. (sitting as Vacation Judge). On the 11th of August, 1897, Mr. Tegner executed a bill of sale in favour of the appellant, Mr. Smith, to secure £300 at 30 per cent. interest, repayable on the 11th of November next. In September the landlord distrained on the grantor of the bill of sale for rent, and on the 30th of September the sherifi seized the goods comprised in the bill of i-alc at the instance of Stern, who had obtained a judgment against Tegner. On the 1st of October, Smith, the claimant, sent in his claim under tho bill of sale, and shortly afterwards paid off tho landlord. On the 7th of October the sheriff issued an interplcader summons, and on the same day n receiving order was mndc against the debtor. On the 15th of October an adjudication in bankruptcy was made, and on '-the same day the Master in Chambers directed a sale on certain terms which were subsequently varied by the order of Ridley, J. The bill of sale holder, Smith, appealed on the ground that the order for sale was made without jurisdiction, and that there was no riglht to interfere with the legal mortgagee and order a sale by the sheriff w en the security was doubtful.

Tiis Conar (Lmnnsv, M.R., and Cuirrx, L.J.) allowed the appeal.

Oct. 30.-—LI1\'DLBY, M.R., in the course of his judgment read section 11 of the Bankruptcy Act, 1890 : “ Where any goods of a debtor are taken in execution, and before the sale thereof, or the completion of the execution by the receipt or recovery of the full amount of the levy, notice is served on the sheriff that a receiving order has been made against the debtor, the sheriff shall, on request, deliver the goods and any money seized or received in part satisfaction of the execution to the oiiiciul receiver, but the costs of the execution shall be a first charge on the goods or money so delivered, and the oficial receiver or trustee may sell the goods, or an adequate part thereof, for the purpose of satisfying the charge,” and order 57, r. 12 : “ When goods or chattels have been seized in execution by a sheriff or other otficer charged with the execution of process of the High Court, and any claimant alleges that lie is entitled, under bill of salo or otherwise, to the goods or chattels by way of security for debt, the court or n. judgo may order the sale of tho whole or a part thereof, and direct the application of the proceeds of the sale in such manner and upon such terms as may he just." His lordship then continued : But ord. 57, r. 12, was not intended to deprive secured creditors o_§_t}ie_bgnefit of,the_ir security‘, and when this _will, or very likely will, bc the case t-he court ought not to direct the sale but ought to direct the

shcrilftbtvithdraw. There are three cases which arise in practice. First ' '. l d h th bill f sale

of all the case where the security is amp c an w ere e o holder or the execution credi or ries "assert his rights; he defeats the other creditors. That is the common case which section 13 of the Common Law Procedure Act, 1860, was passed to rectify. 'l'1'é‘ cannot st-and upon his rights when it is plain that he is defeating the other creditors, which of course involves the assumption that after paying off the other creditors there willbe something left. That is an easy case, Now, the next case is where the security is grimly deficient. Then, on the hypothesis that there is nothing for the execu ion creditor it follows that there will be a deficiency, and that even if there were a sale there would not be a surplus. Then it follows, as a matter of course, that the only proper course is to direct the sheriff t_o_ withdraw. \Vhat has the execution creditor got ti ~é'€ann6t'possmly get anything out of it? That is an easy case. The third case is somewhat more doubtful and more difllcult-. It is when there is a doubt whether tho security is sufficient to pay off the secured creditdl"l5'i‘ not. '1‘he proper course in such a case is for the court to say: “ Unless you, the execution creditor, will guarantee the secured creditor against lass by sale, we will not order the sale.” Here the execution creditor and the trustee have declined to redeem, and declined to give any guarantee at all against any loss. That has induced me to look more carefully than I did in court into the evidence, and upon the evidence 1 um perfectly satisfied that if these goods are sold by the sheriff it is extremely doubtful whether there will be enough to pay the bill of sale holder. As to there being a surplus for the execution creditor, of course I cannot say what the result of a sale might be, but the surplus might be nothing ; it might bo a shilling or sixpence, or a few shillings. Well, under those circumstances how can it be just to enforce a sale and deprive him of his security? That is to’ abuse the rulc, not to put. it into operation in a case to meet which it was passed. It is said that this view is opposed to a decision of this court in Forster v. Clowser (1897, 2 Q. B. 362 ; 45 W. R. Dig. 123). I do not think so at all. It appears to mo perfectly consistent with it. What the Court of Appeal did there was this: They were satisfied that there was enough to pay off the bill of sale holder that which they considered was tlio sum properly payable to him. ‘ 1 ' if ‘ ' the slate _of aymcnt

I ink the court went a___p_i_i wa in _an ici sting _ . ~infTFmTeatis%§i'tlicyiicvefpwould have deprived him of his security.“ ‘They were satisfied, in other words, that upon the sale and the payment to him in full of what they thought he was entitled to, there would be a surplus left for the execution creditor. That is quite a different case. Here I am satisfied that it is extremely doubtful whether there will be a shilling for the execution creditor. Tho conclusion which I have arrived at is that if there is an enforced sale by the sheriff, of the nature we are all acquainted with, there will not be twenty shillings in the pound for the secured creditor. Under those circumstances it appears


to me this appeal ought to succeed. The proper order will be that the sheriff is to withdraw, and there must be no action against him. The execution creditor must pay him his costs and charges. The execution creditor and the trustee in bankruptcy must pay the appellant hero and below his costs and must bear their own costs themselves; but the order is not to prejudice the right of the trustee to pay his costs out of the bankruptcy estate. We think it would be right, if we could do so, to give the execution creditor a second charge on these goods so that he may be reimbursed the expenses to which he will have to be put, because he has noted with the trustee and under his direction. 1 am assuming there is a surplus. I do not know that we have any jurisdiction to do that, but it would obviously be right if some arrangement could be made between the trustee and the execution creditor to reimburse the execution creditor the costs which he will have to pay.

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Appeal from an order of Kekewich, J . The action was brought for the rescission of a contract between the plaintiff and defendant for t_he_ purchase of some shares in the Gresham Gold Exploring Syndicate (Limited). The plaintifi alleged that the defendant, who was at that time a director of the said company, on or about the 2nd of December, 1895, made certain false representations to him in respect of the position of the company, by which he was induced to buy the said shares. The particular representation was that the company had at its bankers a sum of £87,000 cash undivided. The defendant by his defence denied that he ever made any of the representations alleged, and asserted that the statement as to the undivided sum of £87,000 was true. The pleadings having been closed, Kekewich, J ., made an order on summons, efore the action had been set down for trial, that the plaintiff, the applicant, be at hberty upon three clear days’ notice in writing to Messrs. Smith, Payne, & Smith, bankers, to inspect and take copies of or extracts from any accounts in the books of the bankers in the name of the Gresham Gold Exploring Syndicate (Limited), pursuant to the provisions of the Bankers’ Books Evidence Act, 1879, but such inspection was to be limited to showing the balances of the said company in the books oi the said bankers on the 2nd of December, 1895. Section 7 of the Bankers’ Books Evidence Act, 1879, is as follows : “ On the application of any party to a legal proceeding a court_ or judge may order that such party be at liberty to inspect and take copies of_ any entries in n banker's book for any of the purposes of such proceedings. An order under this section may be made either with or without summoning the bank or any other party, and shall be served on the bank three clear days before the same is to be obeyed, unless the court or judge otherwise directs." The defendant appealed, and urged that, apart from the Act, entries in bankers’ books would not be evidence against third parties.

Tl-[B Coimr (LINDLEY, liI.R., and Ciirrrr, L.J.) allowed the appeal.

LINDLIY, M.R , said that the case was one of enormous importance to the public and to the commercial community. He thought the order made was absolutely contrary to every principle of law and to the settled practice of the courts. It was said that it could be done under section 7 of the Act. The Act was passed for a very definite purpose, to protect bankers from the very great inconvenience of having to produce all their books, &c., on subpcena. Section 7 had nothing to do with protecting bankers from that inconvenience, it had to do with litigants. If the section were read literally, it would mean that any party to a proceeding might take copies of entries of the banking account of a third party. Such an interpretation would be simply monstrous, and his lordship would not be a party to any such decision. It obviously meant copies of any entries of parties to the litigation, and no other. It might be that at the trial the court might make an order on a person who could be subpamzwd to bring copies of the account. But that was not the present case. They wanted to see the credit which was standing to the company's account at a particular dale. They would be able to overhaul the whole account, and would see all the particulars to which the figures related; in short, they would have a roving inspection of the whole account. The order must be discharged altogether with costs, and the plaintifi must be left to do what he could at tho trial, and the bankers must be left to the protection of the Acts. It would be far too mischievous and oppressive.

Cl~lIT1‘Y, L.J.—The Act of 1879 was divided into two portions : sections 3-0 were intended to relieve bankers, and section 7 was diiferent. This was an attempt to obtain inspection of the account of a third party by means of section 7. In such a case the court must exercise the greatest caution. The inspection must run over at least five months in order to ascertain the balance on 2nd of December, and the plaintiff would have the right to see the account from the 30th of June to the date, he would be entitled to look not merely at the figures but the names, and would ransack the account and obtain particulars of what he had no right to look at. In his lordship’s opinion the 7th section was not intended to be used for any such purpose, and would inflict greatinj ustice on a third party if any such order were made. Appeal allowed.—CouivsiiL, Romer ; A. J. Walter; Ernest Pollock. Souciroas, Clinton Q Sons ; Wilson, B1-mow, 5Uarpmael; H. F. Pollock.

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Appeal of the respondent from an order of Barnes, J . The wife presented a petition for a divorce from her husband, and a decree nisi was granted. After the decree had been made absolute an order was made on the respondent that he should secure by deed to his former wife an annuity of £90 out of his interest in some property to which he was entitled under two wills, by way of permanent alimony ; the terms of the deed, in ca ze the parties differed, to be settled by one of the conveyancing counsel to the Chancery Division. The former wife, contemplating a second marriage, agreed to accept a lump sum of £100 in lieu of the annuity. This having been paid, she afterwards applied to Barnes, J ., for an order that the alimony should be again paid to her. Barnes, J ., being of opinion that permanent alimony was inalienable, made the order. The respondent appealed.

THE COURT (LINDLEY, M.R., and Cairrr, L.J.) allowed the appeal.

LINDLBY, M.R., said that the important part of the order was that the court might authorize the annuity to be secured: it was a charge on property and became a security. The moment the order was made the wife had a charge which could be enforced at once. Could she assign or release what she had got? The case of Harrison v. Ha1'1'ison (36 XV. R. 748, L. R. 13 Pro. D. 180) shewed that she could, and Watkins v. Watkins (44 W. R. 677; 1896, P. 222) shewed the distinction between sums of money paid under the Act of 1857 and that of 1866. The court could not take the view that it was not competent for the parties to deprive the court of its control over the order. If that was the view of Barnes, J., it was not sound. Why was the lady not bound by the deed of 1895, by which she released her rights? Their lordshi s had thought there might be some equitable ground for setting it aside, gut they could not see any. There was no fraud or misrepresentation in the case. His lordship could not think that she could upset this deed in Chancery; and if that were so Barnes, J ., was wrong, and ought to have held that that was a sufficient answer to the lady. The appeal must succeed and be allowed with costs.

Cnirrr, J ., agreed. He said that the Act of 1857 enabled the court to secure to a divorced wife such gross or annual sum as should seem reasonable. Under that section (32) his lordship questioned whether the court had any jurisdiction to order that such sum should be inalienable. The answer was that there was no precedent for it. \Vhen the order was once made between husband and wife who were divorced, and were sui juris, that seemed to his lordship to determine at, once the jurisdiction of the court except as to carrying out the terms of its own order. Harrison v. Harrison (ubi supra) governed this case under section 32 of the Act of 1857. That was a clear decision that whatever came to a divorced wife was property, and consequently she could assign it. The lady would only be slpending her money in vain if she tried on equitable grounds toupset this

ecision. The mere improvidence of the bargain and inadequacy of the consideration would not justify the court in setting the deed aside. Had there been any overreaching or anything approaching to fraud it would have been a different matter. Appeal allowed.-Coimssi., llzclerwick, Q.C., and Grwcebrook ; Lambert Boml. Sonicirons, A. Scott Lawson, for Phillips 4Rtmdle Ford, Windsor; C. E. Newnham.

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Appeal from a decision of Day, J ., at chambers, remitting an award in this arbitration to the directors of the Liverpool Corn Trade Association (Limited), the arbitrators, for reconsideration, and ordering them to state acase for the opinion of the court on ii certain question of law. The appeal was argued on the 26th of October, when judgment was reserved.

T1-is Counr (LINDLBY, M.R., and CHITTY, L.J.) slightly varied the order of Day, J ., but dismissed the appeal.

LINDLEY, M.R., said: In this case the dispute arises between the ultimate buyer and the seller of a cargo of corn. The contract between the buyer and the seller contains some clauses which are material for understanding the nature of the dispute and what has been done. Palmer is the buyer and Polkinghorn the seller. The buyer bought the cargo in a ship called The Port Douglas, loaded at San Francisco or thereabouts, and agreed to pay 33s. per 100lbs. gross, including insurance. Then there were provisions about the discharge of the cargo and so on. The quantity shipped in bags was to be paid for as wheat. The wheat was to be weighed m drafts of not less than 250lbs., or, at the buyer's option, at even weights smaller than that. Then there is an arbitration clause. The provision is to the effect that the sellers should put ina provisional invoice according to the amounts shipped as per bill of lading. If in the result it turned out that less was delivered they would have to pay for the deficiency, and if more the price wouldbe altered accordingly. This provisional invoice is important. What afterwards haptpened was this. The ship arrived, and the buyers, Palmer & Co., took elivery, as they say, according to the contract, which gave them the option of taking delivery of even weights of less than 250lbs.


In point of fact the delivery was made in even weights of 2*_101bs. That


was assented to by everybody, and is not now complained of. Palmer & Co. paid, under the provisional invoice clause, £16,505, which was calculated on the bill of lading quantities. They say that the quantity they received ex ship was a large number of bags short, and that the deficiency reduced to money comes to about £442; and they claim to recover back that sum from their sellers upon the terms of the contract, contending that there was over-payment to that extent. That is the nature of the dispute which was referred to arbitration. The first arbitrators found that there was no deficiency. Palmer & Co. then appealed, under the arbitration clause in the contract, to the court of directors of the Liverpool Corn Trade Association (Limited), and the directors have confirmed that award. But before the award was made Palmer & Go. asked the directors in writing to state a special case raising a certain point of law. The point of law which the learned judge's order directs them to raise is this. It is ordered that the award in the arbitration and the matters referred to in the arbitration be remitted to the reconsideration of the directors, and that the directors shall state in the form of n case for the opinion of the court the following question of law : Whether Palmer & Co were entitled to be refunded by Hosken & Co. (Limited) in respect of the actual deficiency in the cargo of wheat below the bill of lading quantity, notwithstanding that the cargo was shipped in the hold and rebagged and weighed at even weights of less than 250lbs. per draft, contrary to the terms of the contract. It appears that when the captain of the ship found that Palmer & Co. were taking delivery in this form, by even drafts of 240lbs., he objected, and said that as they had. not chosen to pursue their contract the ship would not be responsible. Palmer & Co.’s view of that is that they have nothing to do with the ship, that they are not going to enter into any quarrel about the ship, but that by reason of the contract Hosken & Co. (Limited) are liable. A question may, of course, arise between the first buyer of the wheat and the ship. Therefore Palmer 8: Co.’s object was to get the arbitrators to state a case as to Hosken & Co.’s liability, and they now ask this court to say. in substance, that the arbitrators have nothing to do with any controversy as to the ship. That is the short substance of the dispute. The directors not only declined to state a case to enable Palmer 8: Co. to raise this controversy, but also declined to adjourn to give Palmer & Co. an opportunity of applying to the court for a direction that they should, as arbitrators, state a case. The reason why that refusal was made appears from the affidavit of Mr. Anderson Taylor, who was the chairman of the directors. He says (paragraph 3) that on the consideration of the appeal and the application to state a case for the opinion of the court, he and his co-directors were of opinion that the award should be confirmed, and that they were competent to do that, and that there was no ground for seeking the assistance of the court. That statement is consistent with more views of the facts than one. It may be that the directors had come to the conclusion that there was no deficiency; they may have been at least not satisfied that there had been any over-payment. That view has occurred to Messrs. Palmer 8: Co. as possible, and they have laid before us evidence that the fact of the deficiency was not really in controversy. The reason given for not granting the application to state a case, or adjourning that Palmer & Co. might a ply to the court for a direction to state one, is also consistent with the dgectors having taken another view—that, in point of law, in consequence of the course taken by Palmer & Co., they could not make any claim in respect of any deficiency there might be; and that is the view which Palmer & Co. say has prevailed, and which they contend is wrong in point of law. Having regard to the terms of the contract, and especially to the option given to them by their sellers, the question arises -and it is an important one—whether the court has jurisdiction to make the order which Day, J ., has made. That question turns upon three sections of the Arbitration Act, l889—viz., sections 10, 11, and 19. I will read section 19 first: “Any referee, arbitrator, or umpire may, at any stage of the proceedings under a reference, and shall, if so directed by the court or a judg e, state in the form of a special case for the opinion of the court any ql1€B!i)I1 of law arising in the course of the reference.” Section 10 applies, as I have said, only before the award is made. It runs thus : “ (1) In all cases of reference to arbitration the court or a judge may from time to time remit the matters referred, or any of them, to the reconsideration of the arbitrators or umpire.” Section 11 contains this provision: “ (2) Where an arbitrator or umpire has misconducted himself, or an arbitration or award has been improperly procured, the court may set the award aside.” Those are the sections which are material. TheArbitration Act, 1889, s. 19, gives the court very extensive powers over arbitrators beyond any which the court previously possessed. It impliedly confers on the parties to an arbitration the right to apply to the court for an order directing the arbitrator to state in the form of a special case for the 0 inion of the court any question of law arising in the course of the rcgerence. The right thus conferred must be respected by the arbitrator; and if a party to an arbitration, acting bomijide, requests an arbitrator either to state a special case raising a question of law arising in the course of the reference and material for consideration, or to delay his award until the party can apply to the court for an order directing a special case, and the arbitrator refuses to comply with either of such requests, the arbitrator is, primri facie at all events, guilty of a breach of duty towards such party. Such a breach of duty is primd facie misconduct on the arbitrator's part within the meaning of section 11 of the statute, and justifies the court in setting aside the award under that section, or in remitting it for further consideration under section 10. Even in such a case as that sup osed there may possibly be some grounds for justifying the refusal oi) the arbitrator, although it is not easy to imagine any. But it is obvious that, if an application for a s cial case is frivolous, and is made merely for delay, an arbitrator will g perfectly right to refuse it, and will be upheld b the Oourt in so doing. This view of the law is quite consistent with


Dinn v. Blake (L. R. 10 C. P. 388) and Re An Arbitration between Kai!/blag, Maxstcd, 4- Uo. and Bryan, Durant, 4- Go. (41 W. R. 437; 1893, 1 Q. B. 405). Section 19 has imposed new duties on arbitrators, and has consequently made a breach of such duties by them misconduct on their part, although before such duties existed their conduct could not be so regarded. In the present case the question of law raised by the buyer is material if there is a deficiency, and is raised bond jide and not at all for delay. On the evidence before us a considerable deficiency seems established; but the parties are not agreed about the matter, and the court does not know what the arbitrator's decision on this question really is. If they find there is no deficiency, no question of law arises; but if there is a deficiency, the question of law raised by the buyer becomes all-important. Under these circumstances the order appealed from should be slightly varied in its terms, so as to direct the arbitratorsto reconsider their award and to state whether there is a deficiency or not, and, if there is, then to state the special case. In substance, however, the order is right, and the appeal must be dismissed.

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The operation of the Preferential Payments in Bankruptcy Act, 1888, is to give in the administration of the estate of a person who died intestate after the commencement of that Act priority over all his other debtsto debts in respect of poor and other rates due from the intestate. This case raised an important question as to the effect of the Preferential Payments in Bankruptcy Act, 1888, in regard to the priority of certain rates in the administration of the estate of a person who died intestate and insolvent. On the 29th of March, 1897, the usual order was made at the instance of creditors for the administration of the estate of the intestate John Heywood deceased, who died on the 6th of January, 1896. That order was duly prosecuted, and it appeared that the estate was insufficient for the payment in full of the intestate’s debts and liabilities, and the question which was to be decided was whether certain rates, including poor rates, general districts rates, and highways rates, due at the date of the intestate’s death, were to be paid in priority to the other debts. The point was raised upon a summons by the creditors in respect of the abovementioned rates, seeking the opinion of the court whether their claims were entitled to priority over all the other debts of the intestate, and the learned judge held that they were entitled to such priority.

Srrauxo, J ., referred to the provisions of the Preferential Payments in Bankruptcy Act, 1888, and proceeded as follows : That Act came into operation on the lst of January, 1889, and it has therefore been in operation eight years. I have thought it right to make inquiry as to what has been the practice inchambers during that period. The result of those inquiries is that I find there is really no fixed practice. Throughout the whole of that period one master appears to have adopted one course and another the opposite, and I cannot find that the question has ever been brought before a judge of this division personally even in chambers, and certainly there has been no adjudication on the subject. Now, in the year 1895 there was decided by the Court of Appeal the case of R0 Lang (1895, 1 Ch. 652). This case seems to me to be decided on the principle expressly stated by the present Master-{of the Rolls, at p. 657 of his judgment, that “ the rules in bankruptcy as to debts and liabilities proveable must now, I think, include all rules as to priorities expressly enacted by any statute and made applicable in the event of bankruptcy.” It is contended on behalf of the creditors for rates that this principle ought to be applied in the present case. It s not disputed on the other side that that priority could be imported into the administration of insolvent estates by courts of equity if section l of the Act of 1888 stood alone ; but it is said that section 3 expressly limits the operation of the Act to receiving orders, orders under section 125 of the Bankruptcy Act, 1883, and the winding up of companies. If this latter contention is to prevail, the effect of section 3 will be to operate as a repeal of the statutory provision of the Judicature Act, 1875, as interpreted by the Court of Appeal in Ra Long, so far as relates to the administration of insolvent estates of deceased persons in courts of equity. In my judgment this is not the true effect of section 3. Section 3 appears to me to provide that not every administration in bankruptcy or winding up is to be affected by the Act, but only those where an order has been made after the period fixed for the commencement of the Act, and I do not think it was intended by the Legislature to exclude the operation and application of section 10 of the Judicature Act, 1875. By the combined effect of section 1, sub-section 6, and section 10 of the Judicature Act, 1875, the limitation imposed by section 3 of the Act of 1888 has been imported into the administration of estates by courts of equity—that is to say, the rule introduced into bankruptcy by the Act of 1888 will apply only when the death (bysection 1, sub-section 6, substituted for a receiving order) occurs after the commencement of the Act.-—Counssr., G. lfumphry ; Curlis Price. Soucrroas, Torr, Gribble, Oddie, 6- Sinclair, for A. Roberts, Barnstaple ; 6'. W. J H. B. Taylor.

[Reported by W. Bcorr Taoxrsos, Barrister-at-IAw.]

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This was an application by the respondent that the appellant should be ordered to find security for costs. The facts were these : C. G. Shaw, a solicitor practising at Beading, sued the defendant, A. E. Lutman, a butcher of Frimley, Surrey, to recover possession of premises in the defendant’s occupation. The action was heard at the Farnham County Courtin November, 1896, by His Honour Judge Vernon Lushington. The plaintiff sued as mortgagee and claimed possession of the premises in question under two mortgages, each for £400. He also claimed £33 10s. as meene profits. The mortgages were created by William Lutman, the father of the defendant, who had become a bankrupt in 1891, and his son then took over and continued to carry on his father’s business. The learned judge stopped the case so soon as the mere facts had been stated and directed judgment to be entered for the plaintiff. Counsel for the defendant thereupon asked his lordship to take a note. This his honour refused to do on the ground that the application was too late. The appeal from this judgment was heard on the 21st of January, and the court (Wright and Bruce, JJ.) held that the learned county court judge was wrong in refusing to take a note. In the result the Divisional Court directed a new trial. The case then again came on for re -trial before his honour at the county court at Farnham in July, this time with a jury, and a verdict and judgment was entered for the plaintiff. From the verdict and judgment on the new trial the defendant lodged an appeal, and it was in respect of this appeal now pending that the mortgagee made an application on the 2nd of November for security to be given for costs. In support of the application, counsel contended that, as the defendant was a bankrupt, he having filed his petition early in 1896, such an order ought to be made. Counsel who appeared to oppose the application submitted that his client was the tenant in law of these premises, and as such entitled to six months’ notice, and he pleaded that there were special circumstances and that where such circumstances existed the court would not make an order. He referred to Usil v. Brmrlcy (3 C. P. D. 206), where it was held that an appellant wouldbe ordered to give security for costs of the appeal who was in insolvent circumstances and also was vexatiously and unreasonably prosecuting the appeal. Cockburn, C.J., in his judgment, said : " I think that in considering the question we are justifled in taking into account not merely the pecuniary position of the appellant but also the other circumstances of the case. If the court were of opinion that the appellant had any reasonable ground for going on with his action they should not allow mere poverty to stand in the way of his appeal.” In the case of 1fom"lra v. The White Mon Colliery Co. (1 C. P. D. 556) the Court of Appeal refused to require an insolvent appellant to give security for costs of the appeal where the question at issue had not been previously considered in a court of error. The points raised by th_e facts and admitted at the two trials before the learned county court judge, counsel now contended, involved questions of law which had never been argued before a Divisional Court. The facts in the present case were similar to those in Whittaker v. Hales (7 Bing. 322). The appellant, therefore, had a reasonable ground for going on with his action, and brought himself within the rule in Uail v. Brearley (ante). At the conclusion of the argument,

Tris Couar (\Vaioii-r and Kimssnv, JJ.) said they were of opinion that the appellant must give £10 security. The costs of this application to be costs of the appcnl.—Counsar., Spokes ,- Grimwood llears. SOLICITORS, J. 0 B. Halo, for 0. 0. Shaw, Reading; J. Tickle.

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Case stated by justices for the county of Carnarvon. An information was preferred against the appellant, Clara Pain Williams under section 19 of the Waterworks Clauses Act, 1863, for that she had affixed a certain stop-tap to n certain water-pipe, being n scrvice- ipc belonging to her use for the conveyance of water to a house in Churcg Walks, Llandudno, without having first obtained the consent of the urban district council. The justices convicted the appellant, and fined her one shilling and costs. The case stated that the lady was in the habit of leaving her house locked up during the winter months, and that she had had this stop-tap fitted to the pipe in question to enable her to turn off the supply and thus prevent damage to her house and furniture in the event of the pipes bursting during a frost. Section 19 of the Waterworks Clauses Act, 1863, is one of a group of sections headed “Protection of Water " which are introduced in the Act by these words: "And with regard to the waste of water and misuse of tho water supplied by or belonging to the undertakers, be it enacted, &c.” The material part of the section is as follows: “ It shall not be lawful for the owner or occupier of any

premises to uflix or cause or permit to be affixed any pipe or apparatus ,

to a pipe belonging to the undertakers or to a communication or service pipe, or to make any alteration in any such communication or service pipe,

without the consent in every such case of the undertaken.” For the,


lady it was contended that no waste or misuse of water could ensue from the addition of the stop-tap to the pipe. During two consecutive winters the pipe had burst, and it was, therefore, greatly to the advantage of the water company that this alteration should be made, but, apart from that fact, it was argued that the undertakers had no power to object because the sections under which they purported to proceed were governed by the introductory words, which clearly shewed that they, as the authority, could only interfere to prevent any “ waste or misuse ” of water supplied by them under powers given by section 57 of the Public Health (Water) Act, 1878. Further, it was contended that a stop-tap was not an “apparatus” or “alteration” within the meaning of section 19 of the Act of 1863.

Tris Couar (\Varoiir and Ksnrvsnr, JJ.), without hearing counsel for the respondents, dismissed the appeal. In their opinion the words of the Act were too clear to permit of argument. It was obviously necesary that the water authority of a district should be informed before any alteration was made in the ipes which supplied the water to their customers; otherwise they might have no means of knowing or controlling what was being done. The magistrates were right in the decision they had come to, and the appeal must be dismissed. Conviction accordingly aillrmcd.—Coi'>1sizi., English H/11'ri.r0n,' Temple Franks. Somorrons, Bell, Brorlriclr, § Gray, for W. D. llendorson, Llaududuo ; Bel/‘rag: Q 00., for (Jhamberlain 5- Johnson, Llandudno.

[Reported by Easiusrr Rain, Barrister-at-Lawfl

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This was a motion for judgment under ord. 27, r. 11. The action was for damages for conspiracy, for the delivery up of certain documents, and for an injunction. No appearance was entered. A statement of claim was filed, but no defence was delivered. According to the statement of claim, the defendant Pcuntney was, from the 2nd of December, 1895, to the 5th of June, 1896, in the employ of the plaintiff, who was a stock and share merchant, as clerk upon the terms that he should treat as confidential such information as he obtained from the plaintiff's books and papers. Pountney afterwards entered the service of the other defendants, and the statement of claim alleged that Pountney, in collusion with the other defendants, made use of information obtained while in the plaintiffs’ employ. The statement of claim claimed, among other remedies, an injunction to restrain the defendants from making use of the nformation obtained by Pountney.

THE Counr (Wnronr and Ksrmnnr, JJ.) ordered the motion to stand over till trial. They said that before the statement of claim the plaintiff was not necessarily entitled to an injunction.—Cou.\'-inn, R. E. Moon-. Souciroas, Godwin §- Choter.

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This was a motion by tho sheriff of Staifordshire for an order commanding tho district registrar of the High Court to tax certain costs of an execution. A writ of _/F. fn. was handed to the sheriff on the 5th of June, 1897. The sheriff seized the goods of the defendant in the action, which were more than sufllcient to satisfy the judgment debt and costs ; but on the 11th of June the solicitor of the execution creditor telegraphed to the sheriff to stop the execution, which was accordingly withdi awn. The sheriff sent in his bill to tho execution creditor as upon a fructuous execution. The district registrar, in taxing the bill, refused to allow pouudage on the ground that the sheriff never actually handled any sum of money. The present motion was for an order to the-district registrar to tax the costs in respect of poundage. The sheriffs claim to poundage was based upon’ the Sheriffs Act, 1887 (50 & 51 Vict. c. 55), s. 20, which

rovides that the amount shall be fixed from time to time by the Lord Chancellor and the judges, with the concurrence of the Treasury. The sheriff's fees for executing writs of _/i fix. are fixed by an order made on the 31st of August, 1888. N 0. ll in the table of fees deals with sheriffs poundage, which is fixed at the same amount as before the making of tho order—that is to say, one shilling in the pound for the first £l00 and sixpence in the pound for every pound above £100, “that he shall levy or extend and deliver in execution.” The following note is appended to the table: “ The foregoing fees, numbered 2, 3, 4, 5, 6, 8, 9, 10, 11, shall be levied in every casein which an execution is completed by sale, as fees payable to sheriffs were levied before the making of this order. In every case where an execution is withdrawn, satisfied, or stopped, the fees under this order shall be paid by the person issuing the execution, or the person at whose instance the sale is stopped, as the case may be ; and the amount of any costs and charges payable under this scale shall be taxed by a master of the Supreme Court or district registrar of the High Court (as the case may be). in case the sheriff and the party liable to pay such costs and charges differ as to the amount thereof." It was contended on behalf of the execution creditor that there was no appeal from the docision of the taxing-master or district registrar. Townend v. Shari] of Yorkshire ('24 Q. B. D. 621) was citsd

Tun Couar (Warour and Ksrmsnv, JJ.) made the order prayed for.

\Varon-r, J ., said that Townemi v. Sherif of 1'orI:.ihii-v did not dz."-ide the

resent point. In that case it was not intended to say that where a whole head of fees was struck out there was no appeal. It was clcar from the Sheriffs Act and the order made thereunder that where tho execution was

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