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(see per Lord SELBORNE in Coaks v. Boswell, 11 App. Cas. p. repealed and that the R. S.C., 1883, do not reproduce it. As, 235). The purchaser who takes upon himself to guide the however, the Court of Appeal held, in the case under consideravendor's judgment is debarred at once from suppression of the tion, order 26 of the existing rules covers everything which was truth and suggestion of_error. In the recent case of Dwis formerly matter of nonsuit. It provides, by rule 1, that after v. Ohrly, before BARNES, J., this rule appears to have been for defence " it shall not be competent for the plaintiff to withdraw gotten. A debt of £300 was due to the plaintiff from the estate the record or discontinue the action without leave of the court of a bankrupt who had died since the bankruptcy. The defend or a judge.”. Therefore, a plaintiff is clearly no longer dominus ant purchased it for £15, and it then transpired that the official litis in the old sense of the term, though he can still, it seems, receiver was entitled to property in the bankruptcy sufficient to be nonsuited with leave of the judge, where he makes his pay 20s. in the pound. There was a strong conflict of evidence as application for the purpose before the jury have given their to what was stated by the defendant to the plaintiff in the course verdict (Pinto v. Badman, 7 Times L. R. 317). of the negotiations for the purchase, but BARNES, J., came to the conclusion that the defendant had represented that the ostate could not pay more than 1s. in the pound. Upon this conclusion it was a matter of course for judgment to be given PROPOSED LEGISLATION AS TO MONEYLENDERS. setting the sale aside.

VALUABLE evidence was given last week by Sir GEORGE LEWIS before the Select Committee appointed to inquire into the

moneylending system. He has had exceptional opportunities of THE DECISION of the Court of Appeal in Ibbotson v. 1bbotson becoming acquainted with the subject, especially in what we Bros. I: Co. (Limited) shows, as did the decision of the House of may term its higher branches, and no doubt the committee will Lords in Bloomenthal v. Ford (45 W. R. 449), that there are attach very considerable weight both to his testimony as to limits to the injustice which can be perpetrated under section 25 facts, and to his suggestions as to alterations in the law. He of the Companies Act, 1867. Upon the sale of a private busi- proposes, in the first place, that all professional moneylenders ness to a company in 1872 it was arranged that the plaintiff, should be registered and compelled to take out a licence. No who was one of the vendors, should receive, as part of his share very great difficulty would probably be encountered in carrying of the purchase-money, 200 £100 shares to be issued as fully out such a law provided its scope can be limited to the class of paid up, and 250 £100 shares to be issued with £80 paid up, cases in view. Assuming this limitation can be made, such a together a nominal consideration of £40,000. Shares were licence should be granted to a person only in his own name, and issued accordingly, but no sufficient contract under section 25 it should be forbidden for anyone to carry on the business in was filed at the time, and a contract filed some months later did any other name or in more than one name. A penalty would not cure the defect. Meanwhile, although the company had have to be imposed upon any unlicensed person following this gone into possession and was carrying on the business, no con- calling, and it would be a question of fact to be decided in each voyance of the purchased property had been made, and when, case whether or not the person in question did or did not make in 1877, the matter was about to be completed, it was resolved a business of lending money. Besides the penalty, Sir GEORGE to alter the original arrangements for purchase so as to get rid LEWIS suggests that no person who acts so as to make himself of the risk as to the filed contract. À fresh agreement was liable to the penalty should be able to recover his loan in any accordingly made between the vendors and the company, and court of justice. Probably such a provision would be more instead of the consideration consisting, so far as the plaintiff efficacious in enforcing regulations for licensing and registration was concerned, of shares, it was to consist of cash. The pro- than the dread of the penalty. perty was accordingly conveyed, and the company paid the The next step would be to provide a means of punishing plaintiff £40,000 by cheque, while the plaintiff by cheque paid those moneylonders who induce persons to deal with them by back the_same amount in discharge of his liability on his specious and fraudulent advertisements and circulars.

Sir shares. Having regard to the stringency of section 25, such a GEORGE has drafted a clause with this object, in the following transaction, however good it might have been at the outset, was words: “Whosoever being a professional moneylender, or his attended with considerable risk, and after the lapse of twenty manager, clerk, or agent, shall circulate or publish, or concur years the company have mot a claim made upon them by the in the circulation or publishing, any writton statement that he plaintiff with a counter-claim for £80 on each of the 250 should know to be false, with intent to deceive or injure or shares, and for a declaration that the 200 are subject to a defraud any person who may enter into any contract for the liability to pay for them in full. The peculiarity of the case is loan of money, shall be guilty of misdemeanour.” Subject to that no fault has been found with the original purchase, nor is the limitation already suggested, fow persons, probably, will be the company in liquidation. On the contrary, it has all the found to raise any serious objection to these proposed changes time carried on the business successfully. It was apparently no in the law. The evil is admitted and is widespread, and a sufficient answer to the claim that the company, since it had not remedy is urgently demanded. It seems impossible that such registered a contract, had failed to carry out its part of the changes could injure trade, or oppress the poor, or hurt any one bargain, and to issue shares fully paid or partly paid, as person except those whom it is intended to restrain. The arranged. A company which wishes to take advantage of sec- proposed legislation would put an end to the “private gentle tion 25 is not to be prevented by any such commonplace con who is ready to lend money “at a low rate of interest sideration. Where, however, the company is still a going from motives which (according to his advertisements) approach concern, it is sometimes possible to effect the same result by a philanthropy. It would also destroy the bogus “bank, rectification of the register. In the present case the Court of More difference of opinion will, however, be excited by the Appeal got over the difficulty by holding that the new contract proposals of Sir GEORGE LEWIS to give judges power to interof 1877 for payment in cash was valid, and hence the liability tere with the amount of interest a borrower contracts to pay; of the plaintiff on the shares had been duly discharged.

It is no doubt a serious thing to meddle with freedom of contract : but it must be remembered that the Legislature not

infrequently interferes with contracts in order to protect THE RIGHT of a plaintiff to claim a nonsuit was unsuccessfully persons who are for various reasons unable to fully protect asserted in the recent case of Fox v. The Star Newspaper Co., themselves. This by the Ground Game Act, 1886, agreements which was an action for libel brought by a county court registrar. by tenant farmers not to kill rabbits and hares, even when made Before the Judicature Acts, the plaintiff, as dominus litis, could for very good consideration, are void as against them. And undoubtedly avail himself of this privilege in order to avoid again, by the Workmen's Compensation Act of last year, except having judgment recorded against him barring his right of in certain prescribed cases, any bargain which a workman may action. The hardship which such a practice often entailed on a make not to take advantage of the Act is void. It may be said defendant was mitigated, if not altogether obviated, by ord. 41, that a poor borrower who has once got into the clutches of a r. 6, of the R. 8. Č., 1875, which converted a nonsuit into a moneylonder, it much less able to protect himself against his judgment for the defendant and prohibited a fresh action being oppressor than the farmer is against his landlord or the work, brought without leave. It is true that this order has since been man against his master. Equity, too, has for centuries relieved

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against unconscionable bargains made with expectant heirs and class of cases which Mr. Justice HAWKINS and Sir GeoRGE roversioners, and continues to do so in spite of the repeal of the LEWIs both have in mind. But it was patent to the members usury laws and of the laws restricting dealing with reversions. of the committee that any proposals dealing with moneylonding Moreover, it is not in the case of expectant heirs alone that as such would go beyond the necessities of the case and might equity will interfere, though other cases of interference are not produce disastrous results. Banks are the great moneylenders, common. One instance is reported in Nevill v. Snelling (29 W. R. and it is admitted that banks must be excluded. The securities, 375, 15 Ch. D. 679), where the plaintiff was a younger son, and however, on which banks will make advances are limited. had no property of any kind in possession or reversion, being Traders who require money the return of which must depend on entirely dependent on his father. The defendant, a money. speculative, though not necessarily on hazardous, risks, have to lender, held promissory notes of the plaintiff for a considerable go elsewhere, and there is plenty of business done at rates conamount more than he had over lent, but the court in this case siderably over what a bank would charge, and yet such as the made a declaration that the notes should only stand as security borrowers are perfectly willing and, as a rule, are able to pay. It for the amount actually advanced, with interest at the rate of was suggested in the committee to draw a distinction between five per cent. The case was tried by DENMAN, J., sitting as a commercial and non-commercial loans, but the possibility of so judge of the Chancery Division, and no appeal was over brought doing is not clear, and even as to loans which are admittedly against his decision. In the course of his judgment, in which non-commercial, difficulties would arise. There is plenty of he carefully reviewed the cases on the subject, he said: "I can borrowing which would then fall within the proposed law find no case which decides that the interference of the court is although not at all in the same category as the cases which have limited to cases in which the dealings have been with expectant been before the committee. It is of no great use to say that in heirs or reversioners, or to cases in which the dealing has been such transactions the court would never interfere. Doubtless it one in relation to the expectancy.

The real question would not, but the possibility of interference would excite great in every case seems to me to be the same as that which arose in opposition to the proposed legislation, and this will be evident the case of expectant heirs and reversioners before the special as soon as the above proposals take practical shape. The ovidoctrine in their favour was established—that is to say, whether dence before the committee has shown the necessity for legisthe dealings have been fair, and whether undue advantage has lative interference, but proposals aimed at moneylending in been taken by the moneylender of the weakness or necessities general will not be found to be practicable. A means must be of the person raising the money. Sometimes extreme old age devised of confining the remedy to the actual evils. has been unduly taken advantage of, and the transaction set aside. Sometimes great distress. I cannot help thinking that the present case is one in which equity ought equally to interfere.

The defendant never intended to deal with the plaintiff as a real matter of business between him and the

COVENANTS RUNNING WITH THE REVERSION. plaintiff, looking to his means, present or future. The defendant throughout intended to work upon the weakness of the An interesting question upon the extent to which the burden of plaintiff and the fear of those belonging to him, his main a lessor's covenant runs with the reversion arose before the reliance being upon the power or hope of extorting money Privy Council in the recent case of Eccles v. Mills on appeal from from the plaintiff's father as soon as the plaintiff broke New Zealand, and was dealt with in an elaborate judgment down in the payment of cont. per cent. or more.

I delivered by Lord MACNAGHTEN. The common law, it is well cannot think that such transactions as those disclosed in the known, refused to recognize the possibility of either the benefit present case, mischievous as they are to society, and accom or the burden of the covenants entered into by the lessor running panied with such features of unfairness and extortion, ought to with the reversion, except apparently that the assignee of the be allowed to result in exorbitant gains to Mr. SNELLING or to reversion was entitled to enforce covenants for the payment of any other moneylender ; nor do I entertain any doubt that, rent or for the rendering of services in the nature of rent; but upon the general principles of equity, which lay it down that the law was altered by 32 Hen. 8, c. 34, and the principle of unfair and unconscionable dealings with a person whose position that statute has been extended by the Conveyancing Act, 1881. renders him too weak to resist rapacity, and avarice, and unfair Under the statute of Henry 8 the assignees of the reversion dealing are within the jurisdiction of the court, and ought to be have the same remedies against the lessee upon the covenants in repressed, I ought to make the decree prayed for in the state the lease as the lessor himself had, and similarly, the lessee has ment of claim."

the same remedies against the assignees of the reversion as When the court has already gone so far as this, it is not against the lessor. To take advantage of these provisions it unnatural to suggest that power should be given generally in was necessary that the covenant should be made with a lessor actions for money lent, to fix a fair rate of interest in all cases

who had the legal estate, and that the assignee should take the where there is anything unfair or oppressive in the bargain, or

same estate (800 Earl of Derby v. Taylor, 1 East 502), and hence any undue advantage taken of ignorance, age, or distress. It arose a difficulty in cases where the lease was granted_by, and would not follow that a judge would reduce the interest in every covenants entered into, with a mortgagor (Webb v. Russell, 3 case which came before him, in which it was extremely high. 10 and 11 of the Conveyancing Act, under which both the

This is now avoided by the provisions of sections To do so would be to check borrowing unduly. There are many cases in which money is lent at very great risk, and con- benefit and the burden of the covenants in the lease are annexed sequently at very large interest, where no sort of advantage is to the reversionary, estate in the land, and are capable of being taken of the borrower. The only object of such a power is to enforced by or against the person for the time being entitled to enable the court to interfere where there has been actual the rent reserved by the lease. But even when it is clear that oppression, and the practical difficulty will be to exclude from the the burden of a covenant on the part of the lessor runs with the proposed jurisdiction cases where the transactions between the reversion, so as to be enforceable against the reversioner for the parties have been perfectly straightforward, and where it would time being, it is still a question, in cases where the reversion be improper for the judge to estimate, after the risk had been has passed upon the death of the lessor to devisees, whether the ascertained, the remuneration which ought to have made it covenant is so incident to the lease that the burden must ultiworth while for the moneylender to make the advance.

mately be borne by the reversioner-in other words, whether Since Sir GEORGE LEWIS appeared before the committee Sir the burden falls on the roversion itself—or whether it is not HENRY Hawkins has given his evidence, approving of all Sir really personal to the lessor so that the burden can be transGEORGE LEWIS’s suggestions. He even goes a little further in ferred from the devisees to the lessor's personal estate. proposed safeguards against the frauds of moneylenders by In Eccles v. Mills a covenant which, taken by itself, contemsuggesting that every licensed lender should be compelled to plated the imposition of a burden upon the lessor during a part enter all his transactions in a book, in the same way as a pawn of the currency of the lease was followed by words which broker is required to do. It is, of course, an easy matter to materially limited its meaning: By deed dated the 2nd of make suggestions of this kind, and, as above intimated, they September, 1868, Jones demised to Bell a farm of 4,000 acres have our full sympathy provided they can be restricted to the known as Meadowbank situated in the province of Otago. The

term was fourteen years, and the rent £1,000 a year. The run with the reversion so as to be enforceable against the lease contained a covenant on behalf of the lessor, his heirs, reversioner for the time being without being a burden upon the executors, administrators, and assigns, that the lessor, his reversion itself, and he proposes as the test, whether the heirs or assigns, would before 1st of September, 1869, finish obligation of the covenant is incident to the relation of landlord the work of laying down a specified 1,000 acres of the farm in and tenant, or whether it was really only preparatory to the English grass.

As pointed out by Lord MacNAGHTEN, this commencement of that relation. The matter is not determined implied on the part of the lessor an agreement to continue to by the statutory liability of the assignee to the lessee. The lay down the land in grass, and on the part of the lessee an statute, indeed, leaves the ultimate liability as between the authority for the lessor to enter upon the land and cultivate it specific devisee and the general personal estate of the lessor for that purpose; and it could hardly be contended that a untouched. “The inquiry,” said Lord MacNAGHTEN, "must go continuing obligation and licence of this kind would not pass to deeper. It would seem that the nature of the obligation in the assignees of the reversion. But after the covenant camo each particular case must determine the question. If it was in the singular provision: “It is hereby declared that there shall its nature incident to the relation of landlord and tenant it not be implied in this lease any covenant or provision whatever would only be fair that the burden should be borne by the on the part of either of the parties hereto." The effect, con- devisee as between him and the testator's estate, falling on him as sequently, of excluding from the lease anything that might landlord whether the agreement bore a seal or not. . . . On the arise by implication was to release the lessor from the duty to other hand, if the covenant was not in its nature incident to the continue to cultivate the land, and to deprive him also of the relation of landlord and tenant-if the thing to be done was right to do so. Thus the covenant that the land should be laid something preparatory to the complete establishment of that down in English grass by the 1st of September, 1869, was a relation—it would seem to be fair and in accordance with the covenant to be fulfilled without any further cultivation, and was probable wishes of the testator that the burden of the covenant practically a warranty that by the date specified the land would unperformed by him in his lifetime should be borne by his be found to be in fact so laid down.

estate rather than by the specific devisees.” This result, at first sight somewhat ubintelligible, is explained

The rule thus laid down gives an intelligible principle, and by the actual state of affairs at the time of the granting of the one which appears to be fair. Prima facie persons succeeding lease. The lessor had already commenced the task of sowing to the positions of lessor and losseo take their respective the 1,000 acres with grass, but the lessee disapproved both of interests, whether the reversion or the term, cum onere, and, so the seed and of the manner of sowing. He objected that the soon as it is ascertained that a burden is imposed on the lessor seed was inferior, and that the plan of a single ploughing and or on the lessee as such, it must be left to be borne out of the sowing which the lessor was pursuing would produce no crop of estate of the one or the other. But if the burden is not attached grass even with the best of seeds. The lessor maintained that to the interest, but is preparatory to its creation, the reason of the seed was good and that the single sowing would be the thing is different, and the person taking the interest is ensufficient. He did not intend to repeat his work and he was titled to take it clear of a liability which should be borne by content to leave the fate of the grass to be determined at the the person who originally incurred it. The authorities show an specified date without further interference by him. He was indication of the distinction, though it has not been very clearly Willing to covenant that the ground should be laid with grass, carried into effect. In Marshall v. Holloway (5 Sim. 196) the but he was not willing to be bound by any implied stipulation burden of a covenant by the lessoe to complete buildings within that he should sow over again when in his opinion a single a specified time was held to fall on the lessee's general personal Bowing would suffice. Apparently this attitude on the part of estate, and not on the legatee of the lease. On the other hand, the lessor accounts for the curious qualification by which the in Mansel v. Norton (22 Ch. D. 769) a covenant by the lessor to covenant was followed. As things turned out, the lessor was pay for the lessee's property on the demised premises at the end wrong, but he did not live to know it. He died in March, of the term was held to fall on the devisee." In Eccles v. Mills 1869. In September, 1869, the grass which he had sown had the covenant was one which was in intention antecedent to the failed to como up, and the lesse0 obtained for the breach of relationship of landlord and tenant, and as between the covenant damages assessed at £2,296.

executors and the specific depisoes fell on the general personal Under the lessor’s will the property in question was specifically estate of the leseor, even assuming that it ran with the land so devised, but it was assumed when the lessee made his claim as to be binding as between roversioner and lessee

upon

the that the burden of the breach of covenant would fall on the reversioner for the time being. general personal estate, and the money was paid accordingly by the executors. For many years the propriety of the payment was not questioned, but recently difficulties arose in the administration of the lessor's estate, and the respective

REVIEWS. liabilities of the specific devisees and of the general personal

MORTGAGES. estate have had to be considered. The New Zealand courts THE LAW OF MORTGAGE, AND OTHER SECURITIES UPON PROPERTY. took the view that the covenant, in spite of the qualification

By the late WILLIAM RICHARD FISHER, of Lincoln's.inn, Barristerfollowing it, ran with the land, and that the breach of

at-Law. FIFTH EDITION. By ARTHUR UNDERHILL, M.A., covenant ought to have been satisfied by the specific devisees. LL.D., Barrister-at-Law, Reader of the Law of Real and Personal But in the Privy Council the view has prevailed that the clause Property in the Inns of Court. Butterworth & Co. excluding the implication of any obligations reduced the pre Everyone who has been accustomed to use " Fisher" in practice ceding covenant to a mere warranty binding on the lessor will welcome a new edition. As the author left it, the book was an personally. It was a guarantee as to the future state of the excellent example of what a law treatise ought to be as regards clear land, entered into as an inducement to the acceptance of the development of principles and accurate and cautious statements of lease by the lessee, and involved no obligation continuing during their application; it was terse in style and never wandered from the the currency

of the lease. The breach, therefore, was a matter ment of matter was not always satisfactory ; 'there was not much of only affecting the lessor personally, and the damages had been the modern system of sub-division of branches of the subject, renderproperly paid out of his personal estate. This was sufficient for the decision of the case, but Lord say the least, was capable of improvement. Moreover, although the

ing reference easy; there were no marginal notes, and the index, to MAONAGATEN did not leave the matter here. The New Zealand scope of the work was extremely wide, it included little, if any, courts, while holding that the covenant ran with the reversion, information as to mortgage debentures and mortgages by limited had not taken the distinction that this circumstance was not

The task undertaken by Mr. Underhill was therefore not a conclusive of the ultimate liability inter 80 of the persons

light one.

Not only were all the statutes and decisions since 1884 interested in the lessor's estate. The lessee might under the including the decisions on the Bills of Sale Acts) to be incorporated, statute have his remedy against the specific devisee as the mentioned, as well as on mortgages of choses in action ; and & con

but new chapters had to be added on the omitted subjects above assignee of the reversion, but the specific devisee might still be siderable part of the book had to be rearranged. entitled to claim exoneration from the lessor's personal estate. We are glad to say that as the result of our investigation of the new It is possible, says Lord MacNAGETEN, that the covenant may edition, we think that these difficulties have been very successfully

owners.

grappled with and overcome by Mr. Underhill. The labour he has put into the book may be estimated from the amount of matter which he

CASES OF THE

OF THE WEEK. has modestly placed between brackets in order to distinguish it from the original text. As to many parts it might almost be said that

Court of Appeal. there is no page without a bracket. The more important question is as to the quality of the added matter, and upon this we may say

FOX v. THE STAR NEWSPAPER (LIM.). No, I. 10th March. that several of these additions have been subjected to the rather

PRACTICE-NONSUIT-DISCONTINUANCE-ORD. 26, R. 1. severe and microscopic test of reference in the course of investiga This was an appeal by the plaintiff from a judgment of the Lord Chief tion of points arising in practice, and have stood the test very well. Justice. The action was brought for an alleged libel published in the Mr. Underhill's statements of the effect of decisions are terse, accurate, Star newspaper... The plaintiff had also brought an action in respect of a and neatly put, and, so far as we have been able to ascertain, all the similar alleged libel published in the Evening News, Tho action against recent cases of importance have been incorporated. We are not the Evening News was tried first, before the Lord Chief Justice and a sure that the careful selection of cases and rigorous exclusion of special jury, and resulted in a verdict and judgment for the defendants. matter not strictly relevant, which characterized Mr. Fisher's book, The action against the Star was then calle i on to be tried before the same has been borne in mind in every part of the present edition; it is, action and he claimed to be nonsuited. The Lord Chief Justice ruled tha:

jury. The plaintiff said that he did not propose to proceed with this no doubt, difficult to withstand the temptation to include every the plaintiff had no right to claim a nonsuit, and ordered judgment to be decision in anyway bearing on the text. We may also hint that the entered for the defendants. The plaintiff 'now appealed in person, and latter part of the book is hardly as complete as the rest; we find, argued that he had a common law right to a nonsuit. Rule 6 of order 41 for instance, the Mortgagees? Legal Costs Act printed at p. 910, of the rules of 1875 had abolished nonsnits; but the whole of the rules with a reference to a case in a note, but otherwise without any of 1875 were repealed by the rules of 1883. Ord. 72, r. 2, of the latter commentary. But on the whole the incorporation of cases and rules said that,“ Where no other provision is made by the Acts or these statutes is very well done. The new chapters added by the editor rules, the present procedure and practice remain in force." This rule are clearly expressed and valuable statements of the law on their was not intended to keep on foot any repealed order, but the general several subjects. As regards the re-arrangement of the matter, we can jurisdiction and practice of the court: Magnus v. National Bank of Scotspeak without qualification. The book has been greatly improved and (36 W. R. 602) ; Re Busfield (32 Ch. D. 123, at p. 131). The common as regards facility of reference. Considering the difficulty of his task, law right to a nonsuit was thus kept alive, and in practice nonsuits were

allowed at the present day. we think Mr. Underhill is entitled to be congratulated on the mode in which it has been accomplished.

The Court (Ā. L. SMITH, CHITTY, and Collins, L.JJ.) dismissed the appeal, holding that the plaintiff was no longer entitled to demand a nonsuit, thereby reserving to himself the right to bring another action.

Ord. 41, r. 6, of the rules of 1875 had been advisedly repealed and not reBOOKS RECEIVED.

enacted. The whole subject of a plaintiff's right to withdraw from an

action with a right to bring another action was now governed by order 26. Encyclopædia of the Laws of England, being a New Abridgment The effect of rule 1 of that order was that, when an action had reached by the Most Eminent Legal Authorities, under the General Elitor- the stage of trial, the plaintiff could not withdraw from it, reserving to ship of A. Wood RENTON, M.A., LL.B., Barrister-at-Law. Volumes himself the right to bring a second action, except by leave of the judge.V. and VI.-Employers Liability to Freemason, Freight to Inter- Counsel, Blake Odgers, Q.C., and Temple Franks. SOLICITORS, Harrison f ment. Sweet & Maxwell. Price, 203. net.

Davies.

(Reported by F. G. RUCKER, Barrister-at-Law.] The Law of Mines and Mining in the United States. By Daniel MOREAU BARRINGER, A.M., LL.B., and JOHN STOKES ADAMS, A.B.,

Re NEW PAR CONSOLS (LIM.). No. 1. 14th March. LL.B., of the Philadelphia Bar. Boston: Little, Brown & Co.

PROHIBITION — JURISDICTION OF COUNTY COURT IN WINDING-UP Of Com. The Law of Railway Bonds and Mortgages in the United States of PANIES -COMPANIES (WINDING-UP) Act, 1890, s. 1, SUB-SECTION 6. America. With Illustrative Cases for English and Colonial Courts.

This was an appeal from an order of Bigham, J., granting a writ of by EDWARD LYMAN SHORT, of the New York Bar. Boston: Little, probibition to the county court of Truro restraining further proceedings Brown, & Co.

ou a committal order. Proceedings for winding-up the New Par Consols The Real Representative Law, 1897; being Part I. of the Land (Limited) were taken in the said county court, and in the course of such Transfer Act, 1897, and a Discussion on Administration Thereunder. proceedings the county court judge made an order committing to prison

one Charles Gregory, one of the directors of the company, for contempt By AMHEREST D. TYSSEN, D.C.L., Barrister-at-Law. William

in failing to comply with an order which had been made on him to submit Clowes & Sons (Limited).

and verify a statement of the affairs of the company. An application The Law List. Comprising the Judges and Officers of the Courts was made on the part of Gregory for a writ of probibition on the ground of Justice, Counsel, Special Pleaders, Conveyancers, Solicitors, that the order to furnish the statement of affairs was invalid as not being Prectors, Notaries, &c., in England and Wales, the Circuits, Jugdes, in compliance with the County Court Rules. Bigham, J., granted the Treasures, Registrars, and Éigh Bailiffs of the County Courts, writ. The official receiver appealed. Metropolitan and Stipendiary Magistrates, Official Receivers under

The Court (A. L. SMITH, Chitty, and COLLINS, L.JJ.) allowed the the Baukruptcy Act, &c., &c. Published by the Authority of the appeal, holding that the writ of prohibition did not lie, by reason of

section 1, sub-section 6, of the Companies (Winding-up) Act, 1890, which Incorporated Law Society of the United Kingdom. Compiled as far enacts that every court having juriediction under the Act to wind up a as relates to Special Pleaders, Conveyancers, Solicitors, Proctors, and company shall, for the purposes of that jurisdiction, have all the powers Notaries. By J. S. PURSELL, C.B., Controller of Stamps and of the High Court. The effect of that was that a county court when Registrar of Joint Stock Companies, and Published by the Authority exercising winding-up jurisdiction could not be treated as an inferior of the Commissioners of Inland Revenue. Stevens & Sons (Limited). court subject to prohibition.-Counsel, Sir R. B. Finlay, 8.G., and Muir Price 10g. 6d. net.

Mackenzie; Glenn. SOLICITORS, Solicitor to the Board of Trade; Gregory The Office of Magistrate. By HAROLD WRIGHT, B.A., LL.B.,

{Reported by F. G. RUCKER, Barrister-at-Law.]] Barrister-at-Law, Stipendiary Magistrate for the the Staffordshire Potteries. Third Edition, Revised and Enlarged. William Clowes CALCRAFT 4. GUEST. No. 2. 8th, 9th, and 11th March. & Sons (Limited).

PRACTICE-EVIDENCE---PRODUCTION DOCUMENTS-PRIVILEGED Docua

MENTS -COPIES-SECONDARY EVIDENCE.

This was an appeal from a decision of Collins, J., at the trial without a -We have received the Law List for 1898, which contains the usual jury in Middlesex. Since the trial a number of documents relating to complete information brought down to date. Perhaps it may be the subject: matter of an action which had taken place in 1786 had been dislong habit in consulting this work, but it seems to us that none of covered at the office of a solicitor to whom they were handed by the its

executors of a solicitor who conducted the action for the plaintiffs' prerivals has yet succeeded in equalling the convenience, in decessor in title. The documents consisted of (inter alia) the record in the many regard to legible type and size and ease of reference, of this volume. action of Fry v. Stevens, tried in 1786, the briefs of counsel, proofs of

The action had been The annual meeting of the Selden Society is to be held in the witnesses, and notes of their evidence in the case. Council Room, Lincoln’s-inn Hall, on Wednesday next, the 23rd inst. brought against the lessee of one of the predecessors in title of the

plaintiffs and had been defended by such predecessor. The appellant's The first provincial meeting of the year of the Auctioneers’ Institute of (defendant's) solicitors had obtained copies of some of the documents from the United Kingdom was held on the 11th inst., at Oxford, and was the persons in whose custody they had been, and thereupon asked that largely attended. Mr. James F. Field, of London, the president, occu the documents might be produced. The plaintiffs objected to produce pied the chair at the meeting of the council. It was reported that a them, claiming that they were privileged. The appellant then asked for deputation from a meeting of bailiffs was received early in the year upon leave to give secondary evidence of those documents of which he had copies. the subject of the law of distress and the present position of bailiffs, and Although the documents had been prepared for the trial of Fry v. Steve.us it was resolved that it was desirable that a representative meeting of it did not appear whether they had actually been used or not. bailiffs should be held to thoroughly discuss the whole subject, and that The Court (LINDLEY, M.R., and RIGBY and Vaughan WILLIAMS, L.JJ.) the views of such meeting should be placed before a committee of the held that the documents were privileged, but allowed the appellang to institute for consideration.

give secondary evideuce of such of them as he could,

& Co.

OF

or as

The judgment of the court was delivered by

use of the words “market-garden and nursery-grounds" in section 9. LINDLEY, M.R.-The question has arieen whether certain documents are The only conclusion at which I can arrive is that buildings are not to be evidence and whether secondary evidence of them can be given, we must treated as agricultural land for rating purposes under this Act of Parliabe cautious in this, because some of them may be inadmissible. It ment. The case of Purser v. Worthing Local Board (35 W. R. 682, 18 appears to me that the case is covered by Minet v. Morgan (21 W. R. 467, Q. B. D. 818) does not, in my opinion, assist the court in construing this L. R. 8 Ch.361), and if any are covered by privilege that privilege is not Act of Parliament. That case merely shews that a market-garden prima lost; as a general rule, iť a document is once privileged it is always facie includes the buildings upon it used for market-garden purposes. To privileged. The case of Wheeler v. Le Marchant (17 Ch. D. 675, urge that market-gardens and nursery-grounds do not cease to be so 29 W. R. Dig. 72) seems to be to the contrary effect, but I think that because they are more or less covered with glass-houses, is to urge what is chee has been rather misunderstood, and has given rise to controversy. quite true, but is beside the mark. The question is, How are such houses Cotton, L.J., commented on it in Kennedy v. Lyell (31 W. R. 691, 23 to be rated under the Act of Parliament? My answer is, if they are Ch. D. 387), and it was again referred to in "Lowden v. Blake (38 W. R. 64, buildings they must be rated as such, and not as agricultural land. Mr. 23 Q. B. D. 332), and again Stirling, J., referred to it in Learoyd v. Halifat Salter, in his very able argument, suggested that Ibuildings used only for Joint-Stock Banking Co. (41 W. R. 344 ; 1893, 1 Ch. 686). So far the covering land which was cultivated under their protection ought to be contention of Mr. Cripps is right. The next question is, the appellant distinguished from other buildings, and ought to be held to be agricul. having copies of some of the documents, can ho give secondary evidence tural land. I can find nothing to justify a distinction between one class of them ? That is covered by Lloyd v. Mostyn (10 M. & W. 478), which is of buildings and another for any such purpose as his argument requires. a distinct authority that secondary evidence can be given. On the other Section 5 speaks, no doubt, of buildings used only for the cultivation of band, we must consider when any particular document is tendered land, but this clause in no way shews that such buildings, or any others, whether we can admit it.-COUNSEL, Cozens-Hardy, Q C., Bosarquet, Q.C., are to be rated as agricultural land. The case of London and Northand Macaskie ; Cripps, Q.C., and Stuart Moore. Solicitors, Nicholson, Western Railway v. Llandudno Improvement Commissioners (45 W. R. 350 ; Graham, & Graham, for Preston f Francis, Bournemouth ; Meynell $ 1897, 1 Q. B. 287), turned on the construction of a provision in another Pemberton.

Act of Parliament, and does not really assist me to arrive at the true (Reported by W. SHALLCROSS GODDARD, Barrister-at-Law.]

interpretation of the statute with which we have to deal. In my opinion,

the appeal must be allowed and the orders of the Queen's Bench Division SMITH ». RICHMOND. No. 2. 7th and 8th Feb. ; 11th March. and of the quarter sessions must be reversed. RATING - MARKET-GARDEN-LAND COVERED WITH GREENHOUSES --" AGRI Rigby, L.J., delivered judgment to the same effect.

CULTURAL LAND” “BUILDINGS OR OTHER HEREDITAMENTS"-LIABILITY VAUGHAN WILLIAMS, L.J., dissented. He said : I am very sorry to OF LAND COVERED with GLASS, BEING PART OF A MARKBT-GARDEN— differ from the other members of the court. The construction of the Act AGRICULTURAL RATES ACT (59 & 60 VICT. C. 16), ss. 1, 5, 6, 9. is very difficult. There is no construction which, in my judgment, does

This was an appeal by the surveyor of taxes from a decision (reported 41 not lead to results which it is difficult to suppose that the Legislature SOLICITORS' JOURNAL, 697) of a Divisional Court, consisting of Collins, L.J. contemplated. In such a case one must be guided by the words of the (then Collins, J.), ard Ridley, J. The case turned upon the true construc- sections, and not by balancing the difficulties of the respective results one tion of the Agriculturial Rates Act, 1896 (59 & 60 Vict c 16), and raised against the other. The question in the case is whether that part of the an important question as to whether glass-houses erected over market land occupied by a market-garden which is covered with glass- houses of gard eus were to be rated as agricultural land”

' buildings

the character stated in the case, comes within the exemption mentioned or other bereditamente.” Robert Piper was a grower of fruit, veger render the occupier liable to pay one-half only of the rate in the pound

in section 1, sub-section 1, of the Agricultural Rates Act, 1896, so as to tables, and flowers at Worthing, and kept there what he himself culled, a nd what was commonly known as, a market garden and payable in respect of other hereditaments. “I think that the land in nursery.. The land he occupied extended to more than four acres, question docs fall within the exemption. I agree with Collins, L.J., that and on it he had erected fifty-seven greenhouses of gl 18%, which he the cases of Purser v. Worthing Local Board and London and North Western used for growing tomatoes, cucumbers, grapes, and other vege- Railway Co. v. Llandudno Commissioners (ubi supra) shew that prima facie tables, for sale. The fifty-seven glass-houses occupied about half of this land covered with these glass-houses is part and parcel of the marketPiper's land, the rest of which was occupied by vine bordera, paths, and garden, and therefore is agricultural laud, the occupier of which is s'okeholes connected with the heating arrangements. The 'overseers of entitled to the benefit of this exemption. The form and collocation of the parish, by whom, under the Agricultural Rates Act, 1896, and the words used in the Act is not new as defining partial exemption in rating Local Government Board regulations, statements were to be made as to

It is to be found as early as the Public Health Act, 1848, and in the rateable value of Piper's " agricultural land" and " buildings and the Public Health Act, 1875, and has uniformly received such a construcother hereditaments," returned the land covered by the glass-houses as

tion that the hereditaments catalogued in the definition have been held "agricultural land." The assessment committee, however, on the objec- to include the building thereon whenever the buildings in question are tion of the surveyor of taxes, decided that the land so covered was not part and parcel of the specified hereditaments. It remains to consider if agricultural land. The quarter sessions, to whom the case was appealed, there is anything in the tenor and details of this Act to lead to the con. reversed the decision of the assessment committee, but stated a case for receive a different construction in this Act, so as to exclude from

" and the other collocated words ought to the opinion of the High Court. In the Queen's Bench Division the judges - agricultural land” the buildings on each hereditament, whatever their differed, Collins, L.J., holding that the glass-houses were to be rated as agricultural land, while Ridley, J., agreed with the assessment com

character. I see nothing in the tenor of the Act, or in its details, to lead mittee. The appeal from quarter seseions was therefore dismissed. The to such a conclusion, and if it had been the intention of the Legislature, surveyor of taxes appealed to the Court of Appeal.

when employing this old precedent for the definition of hereditaments to The Court (LINDLEY, M.R., and Rigby and Vaughan Williams, L.JJ.; exclude from the exemption all land covered with buildings, it would have

be partially exempted from rates, to use the word in a new sense, and VAUGHAN WILLIAMS, L.J., discenting) allowed the appeal.

been very easy to do so; and this has not been done. I will now deal LINDLEY, M.R., said : The question in this case is whether glass-houses with the sections chiefly relied on in the arguments at the bar, as indicatin or on a market-garden are to be rated as buildings or as agricultural ing an intention by the Legislature to use these words in this new sense. land under the Agricultural Rates Act, 1896 ? The court of quarter It is argued that in section 1, sub-section 1, of this Act, there is a sessions held that the glass- houses ought to be rated as agricultural land. manifest intention to contrast agricultural land with buildings—i.e., the On appeal to the Queen's Bench Division the members of the court were buildings thereon. I think not. There is a contrast, but it is a contrast equally divided, and the appeal was dismissed, but leave was given to between agricultural land as defined and “ buildings or other hereditaappeal to this court. The glass-houses in question are clearly buildings ments”; a contrast, that is, between different classes of rateable herein the ordinary legal meaning of the word. The caso stated leaves no ditaments. The right inference from this contrast seems to me not to be doubt on this point. The question turns entirely on the true construc- that all buildings are to be excluded from agricultural land, but only such țion of the Act of Parliament (59 & 60 Vict. c. 16). The 9th pection con buildings as can by the existing law properly be dealt with for rating purtains a definition of agricultural land, but no definition of buildings or of poses as separate hereditaments. Next, it is argued that section 5 shews market-gardens or nursery-grounds. The Interpretation Act, 1889, con this intention to exclude all buildiogs from "agricultural land." I think tains, in section 3, a definition of land ; and this word, when used in not. It is a difficult section to construe, but it seems to me to be a section Eubeequent statutes, is to include buildings, unless a contrary intention giving directions as to the separation in valuation lists and bases of county appears. The Interpretation Act, 1889, contains no definition of build- rates, &c , of agricultural land as a rateable hereditament from buildings ings, market-gardens, or nurseries. The 9th cection of the Act of 1896 and other rateable hereditaments. Now, what are the buildings which are clearly shews that land there cannot possibly mean or include buildings to be separately valued according to these directions in clause (c)? Colin the early part of the section, for the definition is that agricultural land lins, L.J., thinks that they are buildings not part and parcel of the agrimeans any land used as arable, meadow, or pasture-ground only. Market cultural land- not part and parcel, that is, in the present case, of the gardens and nursery-grounds are, however, also declared to be agricultural market-garden-but used in connection with it, and no doubt such land, and this is the enactment which gives rise to the difficulty with buildings, although not forming part of the market-garden or other which we have to deal. The definition in section 9, however, must not be agricultural land, might in rating law be described as a part of the used to contradict other parts of the Act, or to introduce anomalies which hereditament consisting partly of agricultural land and partly of the language of the enacting part of the statute does not justify. Market- buildings, for there is no law which requires a separation of heregardens and nursery-grounds may or may not have buildings upon them. ditaments according to the titles under which the occupier holds, or the If they have not, no difficulty arises; but, if they bave, then comes the use which the occapier makes of the parts; and unity of personal occupaquestion, How are those buildings to be rated ? To answer this question tion and unity of parish is all that is necessary to constitute and determine we must look to the enacting clause, which is section 1. Here we have the rating hereditament. If once you arrive at the conclusion that the "agricultural land " used in connection with, and, as I think, plainly con definitions of agricultural land cover and include the buildings part and trasted with," buildings or other hereditaments." Similar language is used parcel thereof, 'it is not easy to avoid the conclusion that the buildings. in sections 5 and 6. The express mention of buildings makes the whole spoken of in this section must be some buildings other than those falling statute perfectly clear to my mind, and removes the doubt caused by the within the definition. One mode of avoiding this conclusion would be

cases.

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