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(see par Lord Ssnnomnz in Ooaks v. Boswell, ll App. Cas. p. 285). The purchaser who takes upon himself to guide the vendor’s judgment is debarred at once from suppression of the truth and suggestion of error. In the recent case of Dzvis v. Ohrly, before Baum-:s, J., this rule appears to have been forgotten. A debt of £300 was due to the plaintiff from the estate of a bankrupt who had died since the bankruptcy. The defendant purchased it for £15, and it then transpired that the official receiver was entitled to property in the bankruptcy suflicient to pay 20s. in the pound. There was astrong conflict of evidence as to what was stated by the defendant to the plaintiff in the course of the negotiations for the purchase, but BARNES, J., came to the conclusion that the defendant had represented that the estate could not pay more than ls. in the pound. Upon this conclusion it was a matter of course for judgment to be given setting the sale aside.

Tm; DECISION of the Court of Appeal in Ibbotson v. Ibbotson Bros. §- Co. $Li'me'tad) shews, as did the decision of the House of Lords in B oomentlial v. lb-rd (45 W. R. 449), that there are limits to the injustice which can be perpetrated under section 25 of the Companies Act, 1867. Upon the sale of a private business to a company in 1872 it was arranged that the plaintifi, who was one of the vendors, should receive, as part of his share of the purchase-money, 200 £100 shares to be issued as fully paid up, and 250 £100 shares to be issued with £80 paid up, together a nominal consideration of £40,000. Shares were issued accordingly, but no sufficient contract under section 25 was filed at the time, and a contract filed some months later did not cure the defect. Meanwhile, although the company had gone into possession and was carrying on the business, no conveyance of the purchased property had been made, and when, in 1877, the matter was about to be completed, it was resolved to alter the original arrangements for purchase so as to get rid of the risk as to the filed contract. A fresh agreement was accordingly made between the vendors and the company, and instead of the consideration consisting, so far as the plaintifi was concerned, of shares, it was to consist of cash. The property was accordingly conveyed, and the company paid the

laintiff £40,000 by cheque, while the plaintiff by cheque paid back the same amount in discharge of his liability on his shares. Having regard to the stringency of section 25, such a transaction, however good it might have been at the outset, was attended with considerable risk, and after the lapse of twenty years the company have met a claim made upon them by the plaintiff with a counter-claim for £80 on each of the 250 shares, and for a declaration that the 200 are subject to a liability to ay for them in full. The peculiarity of the case is that no fault has been found with the original purchase, nor is the company in liquidation. On the contrary, it has all the time carried on the business successfully. It was apparently no sufiicient answer to the claim that the company, since it had not registered a contract, had failed to carry out its part of the bargain, and to issue shares fully paid or artly paid, as arranged. A company which wishes to take ad)vantage of section 25 is not to be prevented by any such commonplace consideration. Where, however, the company is still a going concern, it is sometimes possible to effect the same result by a rectification of the register. In the present case the Court of Appeal got over the difficulty by holding that the new contract of 1877 for payment in cash was valid, and hence the liability of the plaintiff on the shares had been duly discharged.

THE RIGHT of a plaintiff to claim a nonsuit was unsuccessfully asserted in the recent case of Fox v. T/w Star Newspaper Co., which was an action for libel brought by a county court registrar. Before the Judicature Acts, the plaintiff, as dominus litio, could undoubtedly avail himself of this privilege in order to avoid having judgment recorded against him barring his right of action. The hardship which such a practice often entailed on a defendant was mitigated, if not altogether obviated, by ord. 41, r. 6, of the R. S. C., 1875, which converted a nonsuit into a judgment for the defendant and prohibited a fresh action being brought without leave. It is true that this order has since been


repealed and that the R. S. C., 1883, do not reproduce it. As, however, the Court of Appeal held, in the case under consideration, order 26 of the existing rules covers everything which was formerly matter of nonsuit. It provides, by rule 1, that after defence “it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the court or a judge.” Therefore, a plaintiff is clearly no longer doniinus Zitis in the old sense of the term, though he can still, it seems, be nonsuited with leave of the judge, where he makes his application for the purpose before the jury have given their verdict (Pinto v. Badman , 7 Times L. R. 317).


VALUABLE evidence was given last week by Sir Gsonos Lswis before the Select Committee appointed to inquire into the moneylending system. He has had exceptional opportunities of becoming acquainted with the subject, especially in what we may term its higher branches, and no doubt the committee will attach very considerable weight both t_o his testimony as to facts, and to his suggestions as to alterations in the law. He proposes, in the first place, that all professional moneylenders should be registered and compelled to take out a licence. _No very great difficulty would probably be encountered in carrying out such a law provided its scope can be limited to the class of cases in view. Assuming this limitation can be made, such a licence should be granted to a person only in his own name, and it should be forbidden for anyone to carry on the business in any other name or in more than one name. A penalty would have to be imposed upon any unlicensed person following this calling, and it would be a question of fact to be decided in each case whether or not the person in question did or did not make a business of lending money. Besides the penalty, Sir Giiones LEWIS suggests that no person who acts so as to make himself liable to the penalty should be able to recover his loan in any court of justice. Probably such a provision would be more efiicacious in enforcing regulations for licensing and registration than the dread of the penalty.

The next step would be to provide a means of punishing those moneylenders who induce persons to deal with them by specious and fraudulent advertisements and circulars. _S11' Gnomes has drafted a clause with this object, in the following words: “Whosoever being a professional moneylender, or his manager, clerk, or agent, shall circulate or publish, or concur in the circulation or publishing, any written statement that he should know to be false, with intent to deceive or injure or defraud any person who may enter into any contract for the loan of money, shall be guilty of misdemeanour.” Subject to the limitation already suggested, few persons, probably, will be found to raise any serious objection to these proposed changes in the law. The evil is admitted and is widespread, aude remedy is urgently demanded. It seems impossible that such changes could injure trade, or oppress the poor, or hurt any 0116 person except those whom it is intended to restrain. The proposed legislation would put an end to the “ private gentle man ” who is ready to lend money “ at a low rate of interest ” from motives whic (according to his advertisements) approach philanthropy. It would also destroy the bogus “ bank. ’

More difference of opinion will, however, be excited by the proposals of Sir GEORGE LEWIS to give judges power to inter

ere with the amount of interest a borrower contracts to psyIt 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 persons who are for various reasons unable to fully protect themselves. This by the Ground Game Act, 1886, agreements by tenant farmers not to kill rabbits and hares, even when made for very good consideration, are void as against them. And again, by the \Vorkmen’s Compensation Act of last year, except in certain prescribed cases, any bargain which a workman may make not to take advantage of the Act is void. It may be said that a poor borrower who has once got into the clutches of_a moneylender, it much less able to protect himself aiainst lilfl oppressor than the farmer is against his landlord or t e work

man against his master. Equity, too, has for centuries reli6V9d


against unconscionable bargains made with expectant heirs and reversioners, and continues to do so in spite of the repeal of the usury laws and of the laws restricting dealing with reversions. Moreover, it is not in the case of expectant heirs alone that equity will interfere, though other cases of interference are not common. One instance isreported in Ni:-vill v. Snelling (29 W. R. 375, 15 Ch. D. 679), where the'plaintiif was a younger son, and had no property of any kind in possession or reversion, being entirely dependent on his father. The defendant, a moneylender, held promissory notes of the plaintiff for a considerable amount more than he had ever lent, but the court in this case madeadeclaration that the notes should only stand as security for the amount actually advanced, with interest at the rate of five per cent. The case was tried by DENMAN, J ., sitting as a judge of the Chancery Division, and no appeal was ever brought against his decision. In the course of his judgment, in which he carefully reviewed the cases on the subject, he said : “I can find no case which decides that the interference of the court is limited to cases in which the dealings have been with expectant heirs or reversioners, or to cases in which the dealing has been one in relation to the expectancy. . . . The real question in every case seems to me to be the same as that which arose in the case of expectant heirs and reversioners before the special doctrine in their favour was established—that is to say, whether the dealings have been fair, and whether undue advantage has been taken by the moneylender of the weakness or necessities of the person raising the money. Sometimes extreme old age has been unduly taken advantage of, and the transaction set aside. Sometimes great distress. . . . Icannot 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 plaintiff, looking to his means, present or future. The defendant throughout intended to work upon the weakness of the plaintiff and the fear of those belonging to him, his main reliance being upon the power or hope of extorting money from the plaintiffs father as soon as the plaintiff broke down in the payment of cent. per cent. or more. . . . I cannot think that such transactions as those disclosed in the present case, mischievous as they are to society, and accompanied with such features of unfairness and extortion, ought to be allowed to result in exorbitant gains to Mr. Sivsnnixe or to any other moneylender; nor do I entertain any doubt that, upon the general principles of equity, which lay it down that unfair and unconscionable dealings with a person whose position renders him too weak to resist rapacity, and avarice, and unfair dealing are within the jurisdiction of the court, and ought to be repressed, I ought to make the decree prayed for in the statement of claim.”

When the court has already gone so far as this, it is not unnatural to suggest that power should be given generally in actions for money lent, to fix a fair rate of interest in all cases where there is anything unfair or oppressive in the bargain, or any undue advantage taken of ignorance, age, or distress. It would not follow that a judge would reduce the interest in every case which came before him, in which it was extremely high. To do so would be to check borrowing unduly. There are many cases in which money is lent at very great risk, and consequently at very large interest, where no sort of advantage is taken of the borrower. The only object of such a power is to enable the court to interfere where there has been actual oppression, and the practical difficulty will be to exclude from the proposed jurisdiction cases where the transactions between the parties have been perfectly straightforward, and where it would be improper for the judge to estimate, after the risk had been ascertained, the remuneration which ought to have made it worth while for the moneylender to make the advance.

Since Sir Gnonon LEWIS appeared before the committee Sir HENRY HAWKINS has given his evidence, approving of all Sir GEORGE Liawis’s suggestions. He even goes a little further in proposed safeguards against the frauds of moneylenders by suggesting that every licensed lender should be compelled to enter all his transactions in a book, in the same way as a pawnbroker is required to do. It is, of course, an easy matter to make suggestions of this kind, and, as above intimated, they have our full sympathy provided they can be restricted to the


class of cases which Mr. Justice HAWKINS and Sir GEORGE LEWIS both have in mind. But it was patent to the members of the committee that any proposals dealing with moneylending as such would go beyond the necessities of the case and might produce disastrous results. Banks are the great moneylenders, and it is admitted that banks must be excluded. The securities, however, on which banks will make advances are limited. Traders who require money the return of which must depend on speculative, though not necessarily on hazardous, risks, have to go elsewhere, and there is plenty of business done at rates considerably over what a bank would charge, and yet such as the borrowers are perfectly willing and, as a rule, are able to pay. It was suggested in the committee to draw a distinction between commercial and non-commercial loans, but the possibility of so doing is not clear, and even as to loans which are admittedly non-commercial, difliculties would arise. There is plenty of borrowing which would then fall within the proposed law although not at all in the same category as the cases which have been before the committee. It is of no great use to say that in such transactions the court would never interfere. Doubtless it would not, but the possibility of interference would excite great opposition to the proposed legislation, and this will be evident as soon as the above proposals take practical shape. The evidence before the committee has shewn the necessity for_legi_slative interference, but proposals aimed at moneylending in general will not be found to be practicable. A_ means must be devised of confining the remedy to the actual evils.

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AN interesting question upon the extent to which the burden of a lessor’s covenant runs with the reversion arose before the Privy Council in the recent case of Ecclca v. Mills on appeal from New Zealand, and was dealt with in an elaborate judgment delivered by Lord MAONAGHTEN. The common law, it is well known, refused to recognize the possibility of either the benefit or the burden of the covenants entered into by the lessor running with the reversion, except apparently that the assignee of the reversion was entitled to enforce covenants for the payment of rent or for the rendering of services in the nature of rent ; but the law was altered by 32 Hen. 8, o. 34, and the principle of that statute has been extended by the Conveyancing Act, 1881. Under the statute of Henry 8 the assignees of the reversion have the same remedies against the lessee upon the covenants in the lease as the lessor himself had, and similarly, the lessee has the same remedies against the assignees of the reversion as against the lessor. To take advantage of these provisions it was necessary that the covenant should be made with a lessor who had the legal estate, and that the assignee should take the same estate (see Earl of Darby v. Taylor, 1 East 502), and hence arose a difficulty in cases where the lease was granted by, and covenants entered into, with a mortgagor (Webb v. Russell, 3 T. R. 393). This is now avoided by the provisions of sections 10 and ll of the Conveyancing Act, under which both the benefit and the burden of the covenants in the lease are annexed to the reversionary estate in the land, and are capable of being enforced by or against the person for the time being entitled to the rent reserved by the lease. But even when it is clear that the burden of a covenant on the part _of the lessor runs with the reversion, so as to be enforceable against the reversioner for the time being, it is still a question, in cases where the reversion has passed upon the death of the lessor to devisees, whether the covenant is so incident to the lease that the burden must ultimately be borne by the reversioner—in other words, _wliether the burden falls on the reversion itself—or whether it is not really personal to the lessor so that the burden can be transferred from the devisees to the lessor’s personal estate.

In Evclea v. Mills a covenant which, taken by itself, contemplated the imposition of a burden upon the lessor during a part of the currency of the lease was followed by words which materially limited its meaning. By deed dated the 2nd of September, 1868, Joxas demised_to BELL a _farm of 4,000 acres known as Meadowbank situated in the province of Otago. The

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term was fourteen years, and the rent £1,000 a year. The lease contained a covenant on behalf of the lessor, his heirs, executors, administrators, and assigns, that the lessor, his heirs or assigns, would before let of September, 1869, finish the work of laying down a specified 1,000 acres of the farm in English grass. As pointed out by Lord Mncxsonrnx, this implied on the part of the lessor an agreement to continue to lay down the land in grass, and on the part of the lessee an authority for the lessor to enter upon the land and cultivate it for that purpose; and it could hardly be contended that a continuing obligation and licence of this kind would not pass to the assignees of the reversion. But after the covenant came the singular provision : “It is hereby declared that there shall not be implied in this lease any covenant or provision whatever on the part of either of the partie hereto.” The effect, consequently, of excluding from the lease anything that might arise by implication was to release the lessor from the duty to continue to cultivate the land, and to deprive him also of the right to do so. Thus the covenant that the land should be laid down in English grass by the lst of September, 1869, was a covenant to be fulfilled without any further cultivation, and was practically a warranty that by the date specified the land would be found to be in fact so laid down.

’ This result, at first sight somewhat unintelligible, is explained by the actual state of affairs at the time of the granting of the lease. The lessor had already commenced the task of sowing the 1,000 acres with grass, but the lessee disapproved both of the seed and of the manner of sowing. He objected that the seed was inferior, and that the plan of a single ploughing and sowing which the lessor was pursuing would produce no crop of grass even with the best of seeds. The lessor maintained that the seed was good and that the single sowing would be sufficient. He did not intend to repeat his work and he was content to leave the fate of the grass to be determined at the specified date without further interference by him. He was willing to covenant that the ground should be laid with grass, but he was not willing to be bound by any implied stipulation that he should sow over again when in his opinion a single sowing would sutfice. Apparently this attitude on the part of the lessor accounts for the curious qualification by which the covenant was followed. As things turned out, the lessor was wrong, but he did not live to know it. He died in March, I869. In September, 1869, the grass which he had sown had failed to come up, and the lessee obtained for the breach of covenant damages assessed at £2,296.

Under the lessor’s will the property in question was specifically devised, but it was assumed when the lessee made his claim that the burden of the breach of covenant would fall on the 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 liabilities of the specific devisees and of the general personal estate have had to be considered. The New Zealand courts took the view that the covenant, in spite of the qualification following it, ran with the land, and that the breach of covenant ought to have been satisfied by the specific devisees. But in the Privy Council the view has prevailed that the clause excluding the implication of any obligations reduced the preceding covenant to a mere warranty binding on the lessor personally. It was a guarantee as to the future state of the land, entered into as an inducement to the acceptance of the lease by the lessee, and involved no obligation continuing during the currency of the lease. The breach, therefore, was a matter only affecting the lessor personally, and the damages had been properly paid out of his personal estate.

This was sufficient for the decision of the case, but Lord ltfncxaonrns did not leave the matter here. The New Zealnnd courts, while holding that the covenant ran with the reversion, had not taken the distinction that this circumstance was not conclusive of the ultimate liability inter se of the persons interested in the lessor’s estate. The lessee mi ht under the statute have his remedy against the specific devises as the assignee of the reversion, but the specific devises might still be entitled to claim exoneration from the lessor’s personal estate. It IS possible, says Lord Macmonrnn, that the covenant may


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run with the reversion so as to be enforceable against the reversioner for the time being without being a burden upon the reversion itself, and he proposes as the test, whether the obligation of the covenant is incident to the relation of landlord and tenant, or whether it was really only preparatory to the commencement of that relation. The matter is not determined by the statutory liability of the assignee to the lessee. The statute, indeed, leaves the ultimate liability as between the specific devises and the general personal estate of the lessor untouched. “ The inquiry,” said Lord Maonsonrnn, “must go deeper. It would seem that the nature of the obligation in each particular case must determine the question. If it was in its nature incident to the relation of landlord and tenant it would only be fair that the burden should be borne by the devises as between him and the testatcr’s estate, falling on him as landlord whether the agreement bore a seal or not. . . . On the other hand, if the covenant was not in its nature incident to the relation of landlord and tenant—if the thing to be done was something preparatory to the complete establishment of that relation—it would seem to be fair and in accordance with the probable wishes of the testator that the burden of the covenant unperformed by him in his lifetime should be borne by his estate rather than by the specific dsvisees.”

The rule thus laid down gives an intelligible principle, and one which appears to be fair. Primzi facfe persons succeeding to the positions of lessor and lessee take their respective interests, whether the reversion or the term, cum onoro, and, so soon as it is ascertained that a burden is imposed on the lessor or on the lessee as such, it must be left to be borne out of the estate of the one or the other. But if the burden is not attached to the interest, but is preparatory to its creation, the reason of the thing is different, and the person taking the interest is entitled to take it clear of a liability which should be borne by the person who originally incurred it. The authorities shew an indication of the distinction, though it has not been very clearly carried into effect. In Marshall v. Holloway (5 Sim. 196) the burden of a covenant by the lessee to complete buildings within a specified time was held to fall on the lessee’s general personal estate, and not on the legatee of the lease. On the other hand, in JI[ansvl v. Norton (22 Oh. D. 769) a covenant by the lessor to pay for the lessee’s ropsrty on the demised premises at the end of the term was held to fall on the devises. In Ecclas v. Halls the covenant was one which was in intention antecedent to the relationship of landlord and tenant, and as between the executors and the specific devisees fell on the general personal estate of the lessor, even assuming that it ran with the land so as to be binding as between reversioner and lessee upon the reversioner for the time being.

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Everyone who has been accustomed to use “Fisher” in practice will welcome a new edition. As the author left it, the book was all excellent example of what a law treatise ought to be as regards clear development of principles and accurate and cautious statements of their application; it was terse in style and never wandered from the precise point in hand. There were, of course, defects : the arrangement of matter was not always satisfactory; there was not much of the modern system of sub-division of branches of the subject, rendering reference easy ; there were no marginal notes, and the index, l° say the least, was capable of improvement. Moreover, although the scope of the work was extremely wide, it included little, it @115" information as to mortga e debentures and mortgages by llmllied owners. The task undertafien by Mr. Underhill was therefore not_o light one. Not only were all the statutes and decisions since 1364 (including the decisions on the Bills of Sale Acts) to be incorp0!‘B§9dv but new chapters had to be added on the omitted subject! l1b°'° mentioned, as well as on mortgages of clsoaee in action; and a considerable part of the book had to be rearranged.

We arc glad to say that as the result of our investigation of the new edition, we think that these dificulties have been very successfully


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 has modestly placed between brackets in order to distinguish it from the original text. As to many parts it might almost be said that 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 that several of these additions have been subjected to the rather severe and microscopic test of reference in the course of investigation of points arising in practice, and have stood the test very well. Mr. Underhill‘s statements of the effect of decisions are terse, accurate, and neatly put, and, so far as we have been able to ascertain, all the recent cases of importance have been incorporated. We are not sure that the careful selection of cases and rigorous exclusion of matter not strictly relevant, which characterized Mr. Fisher’s book, has been borne in mind in every part of the present edition; it is, no doubt, diflicult to withstand the temptation to include every decision in anyway bearing on the text. We may alsolhint that the latter part of the book is hardly as complete as the rest; we find, for instance, the Mortgagees’ Legal Costs Act printed at p. 910, with a reference to a case in a note, but otherwise without any commentary. But on the whole the incorporation of cases and statutes is very well done. The new chapters added by the editor are clearly expressed and valuable statements of the aw on their several subjects. As regards the re-arrangement of the matter, we can speak without qualification. The book has been greatly improved as regards facility of reference. Considering the difficulty of his task, we think Mr. Underhill is entitled to be congratulated on the mode in which it has been accomplished.

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The Real Representative Law, 1897; being Part I. of the Land Transfer Act, 1897, and a Discussion on Administration Thereunder. By Amnsassr D. TYSSEN, D.C.L., Barrister-at-Law. William Clowes & Sons (Limited). '

The Law List. Comprising the Judges and Oliicers of the Courts of J ustics, Counsel, Special Pleaders, Conveyancers, Solicitors, Prectors, Notaries, &c., in England and Wales, the Circuits, J ugdes, Treasures, Registrars, and High Bniliffs of the County Courts, Metropolitan and Stipendiary Magistrates, Ofiicial Receivers under the Bankruptcy Act, &c., &c. Published by ‘the Authority of the Incorporated Law Society of the United Kingdom. Compiled as far as relates to Special Pleaders, Conveyancers, Solicitors, Proctors, and Notaries. By J . S. PUBSELL, C.B., Controller of Stamps and Registrar of Joint Stock Companies, and Published by the Authority of the Commissioners of Inland Revenue. Stevens & Sons (Limited). Price 10s. 6d. net.

' The Office of Magistrate. By HAROLD WRIGIIT, B.A., LL.B., Barrister-at-Law, Stipendiary Magistrate for the the Statfordshire Potteries. Third Edition, Revised and Enlarged. William Clowes & Sons (Limited).

-We have received the Law List for 1898, which contains the usual complete information brought down to date. Perhaps it may be long habit in consulting this work, but it seems to us that none of its many rivals has yet succeeded in equalling the convenience, in regard to legible type and size and ease of reference, of this volume.

The annual meeting of the Selden Society is to be held in the Council Room, Linco n’s-inn Hall, on Wednesday next, the 23rd inst.

The first provincial meeting of the year of the Auctioneers’ Institute of the United Kingdom was held on the 11th inst., at Oxford, and was largely attended. Mr. James F. Field, of London, the president, occupied the chair at the meeting of the council. It was reported that a deputation from a meeting of bailiffs was received early in the year upon the subj cct of the law of distress and the present position of bailiffs, and it was resolved that it was desirable that a representative meeting of bailitis should be held t_o thoroughly discuss the whole subject, and that

the views of such meeting should be placed before a committee of the Institute for consideration.


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This was an appeal by the plaintiff from a judgment of the Lord Chief Justice. The action was brought for an alleged libel published in the Star newspaper. The plaintiff had also brought an action in respect of a similar alleged libel published in the Eveniny News. The action against the Evening News was tried first, before the Lord Ohief Justice and n. special jury, and resulted in a verdict and judgment for the defendants. The action against the Star was then callci on to be tried before the same jury. The plaintiff said that he did not propose to proceed with thi-1 action and he claimed to be nonsnited. The Lord Chief Justice ruled that the plaintiff had no right to claim a nonsuit, and ordered judgment to be entered for the defendants. The plaintiff now appealed in person, and argued that he had a common law right to a nonsuit. Rule 6 of order 41 of the rules of 1875 had abolished nonsuits; but the whole of the rules of 1875 were repealed by the rules of 1883. Ord. 72, r. 2, of the latter rules said that, “ Where no other provision is made by the Acts or these rules, the present procedure and practice remain in force.” This rule was not intended to keep on foot any repealed order, but the general jurisdiction and practice of the court: Jlagnm v. National Bank of Scaflmd (36 “T. R. 602) ; Re Bus/ield (32 Ch. D. 123, at p. 131). The common law right to a nonsuit was thus kept alive, and in practice nonsuits were allowed at the present day.

Tun Connr (A. L. Sm-rn, Cm-rrr, and Comma, 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 reenacted. 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. The effect of rule 1 of that order was th it, when an action had reached the stage of trial, the plaintiff could not withdraw from it, reserving to himself the right to bring a second action, except by leave of the judge.— CuU.\‘SBL, Blake Orlycrs, Q.C., and Temple Franks. Somciroas, Harrison Q Davies.

[Reported by F. G. Ruckus, Barrister-at-La'.v.]

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This was an appeal from an order of Bigham, J ., granting a writ of prohibition to the county court of Truro restraining further proceedings on a committal order. Proceedings for winding-up the New Par Consols (Limited) were taken in the said county court, and in the course of such proceedings the county court judge made an order committing to prison one Charles Gregory, one of the directors of the company, for contempt in failing to comply with an order which had been made on him to submit and verify a statement of the affairs of the company. An application was made on the part of Gregory for a writ of prohibition on the ground that the order to furnish the statement of affairs was invalid as not being in compliance with the County Court Rules. Bigham, J., granted the writ. The offlcial receiver appealed.

T1-[B Courvr (A. L. Surru, Curr-rr, and Course, L.JJ.) allowed 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 enacts that every court having jurisdiction under the Act towind up a company shall, for the purposes of that jurisdiction, have all the powers oi the High Court. The effect of that was that a county court when exercising winding-up jurisdiction could not be treated as an inferior: court subject to prohibition.—Couxssr., Sir R. B. Finlay, S.G., and Muir Mackenzie; Glenn. Soucrrons, Solicitor to the Board of Trade; Gregory


g {Reported by F. G. Rucirss, Barrister-at-Law.]]

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This was an appeal from a decision of Collins, J ., at the trial without a jury in Middlesex. Since the trial a number of documents relating to the subject-matter of an action which had taken place in 1786 had been discovered at the office of a solicitor t) whom they were handed by the executors of a solicitor who conducted the action for the plaintiffs’ predecessor in title. The documents consisted of (inter alia) the record in the action of Fry v. Stevens, tried in 1786, the briefs of counsel, proofs of i witnesses, and notes of their evidence in the case. The action had been brought against the lessee of one of the predecessors in title of the plaintiffs and had been defended by such predecessor. The appellant‘: (defendant's) solicitors had obtained copies of some of the documents from the persons in whose custody they had been, and thereupon asked that the documents might be produced. The plaintiffs objected to prodme them, claiming that they were privileged. The appellant then asked for leave to give secondary evidence of those document. of which he had copies. Although the documents had been prepared for the trial of Fry v. $1806.13 it did not appear whether they had actually been used or not.

Tun Counr (Lrxnuzr, M.R., and Rronr and V.\vou.nx WrL1.r.uss, L.-Tl.) ' held that the documents were privileged, but allowed the appellant to , give sccondury evidence of such of them as hr could.


The judgment of the court was delivered by

Lmntsr, llI.R.—The question has arisen whether certain documents are evidence and whether secondary evidence of them can be given , we must be cautious in this, because some of them may be inadmissible. It appears to me that the caso is covered by Mina! v. Morgan (21 W. R. 467, L. R. 8 Ch. 361), and it any are covered by privilege that privilege is not lost; as a general rule, if a document is once privileged it is always privileged. The case of Wheeler v. Ie Merchant (17 Ch. D. 675, 29 VV. R. Dig. 7'2) seems to be to the contrary efiect, but I think that case has been rather misunderstood, and has given rise to controversy. Cotton, L.J., comrncnted on it in Kennedy v. Lyell (31 W. R. 691, 23 Ch. D. 387), and it was again referred to in Lowdm v. Blake (38 W. R. 64, 23 Q. B. D. 332), and again Stirling, J.,referred to it in Learoyd v. Halifax Join!-Stock Bankiny ct. (~11 W. R. 3-14; 1s93, 1 Ch. ess). Bo tar the contention of Mr. Cripps is right. The next question is, the appellant having copies of some ot the documents, can he give secondary evidence of them? That is covered by Lloyd v. Martyn (10 M. & W. 478), which is a distinct authority that secondary evidence can be given. On the other hand, we must consider when any particular document is tendered whether we can admit ii'.—COUNSBL, Cozma-Hardy, Q. C., Bosanquet, Q,.C., and Macaokie; Cripps, Q.C., and Stuart ilfoore. Souciroiis, Nicholson, Graham, §- Graham, for Preston ,t Francis, Bournemouth; Heyncll Q

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This was an appeal by the surveyor of taxes from a d€CisiOI1 (reported 41 SOL‘lCl'l‘ORS' J OURNAL, 697) of a Divisional Court, consisting of Collins, L.J. (then Collins, J .), and Ridley, J . The case turned upon the true construction ot the Agriculturial Rates Act, 1896 (59 82 60 Vict c 16), and raised an important question as to whether glass-houses erected over marketgardeus were to be rated as “agricultural land" or as “buildings or other hereditaments." Robert Piper was a grower of fruit, vegetables, and flowers at \Vorthing, and kept there what he himself cilled, a nd what was commonly known as, a market garden and nursery. The land he occupied extended to more than four acres, and on it he had erected fifty-seven greenhouses of glass, which he used for growing tomatoes, cucumbers, grapes, and other vegetables, for sale. The fifty-seven glass-houses occupied about half of Piper’s land, the rest of which was occupied by vine borders, paths, and stokeholes connected with the heating arrangements. The overseers of the parish, by whom, under the Agricultural Rates Act, 1896, and the Local Government Board regulations, statements were to be made as to the rateable value of Piper’s “agricultural land” and “buildings and other hereditaments," returned the land covered by the glass-houses as “ agricultural land.” The assessment committee, however, on the objec

‘Lion of the surve or of taxe decided that the land so covered was not

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agricultural land. The quarter sessions, to whom the case was appealed, reversed the decision of the assessment committee, but stated a case for the opinion of the High Court. In the Queen's Bench Division the judges differed, Collins, L.J., holding that the glass-houses were to be rated as agricultural land, while Ridley, J., agreed with the assessment com. mittee. The appeal from quart/er sessions was thereioro dismissed. The surveyor of taxes appealed to the Court of Appeal.

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Lmnssr, M.R., said : The question in this case is whether glass-houses in or on a market-garden are to be rated as buildings or as agricultural land under the Agricultural Rates Act, 1896? The court of quarter sessions held that the glass-houses ought to be rated as agricultural land. On appeal_to the Queen's Bench Division the members ot the court were equally divided, and the appeal was dismissed,_but leave was given to appeal to this court. The glass-houses in question are clearly buildings in the ordinary legal meaning of the word. The caso stated leaves no doubt on this point. The question turns entirely on the true construclion of the Act of Parliament (59 & 60 Vict. c. 16). The 9th section contains a definition of agricultural land, but no definition of buildings or of market-gardens or nursery-grounds. The Interpretation Act, 1889, contains, in section 3, a definition of land; and this word, when used in subsequent statutes, is to include buildings, unless a contrary intention appears. The Interpretation Act, 1889, contains no definition of buildings, market-gardens, or nurseries. The 9th section of the Act ot 1896 clearly shews that land there cannot possibly mean or include buildings _in the early part of the section, for the definition is that agricultural land means any land used as arable, meadow, or pasture- ground only. Marketgardens and nursery-grounds are, however, also declared to be agricultural land, and this is the enactment which gives rise to the diifficulty with which we have to deal. The definition in section 9, however, must not be ‘used to contradict other parts of the Act, or to introduce anomalies which the language ot the enacting part of the statute does not justify. Marketgardens and nursery-groimds may or may not have buildings upon them. It they have not, no difliculty arises; but, it they have, then comes the question, How are those buildings to be rated? To answer this question we must look to the enacting clause, which is section l. Here we have “ agricultural land " used in connection with, end, as I think, plainly contrasted with, ‘ ' buildings or other hereditaments.’ ’ Similar language is used in sections 5" and 6. The express mention of buildin s makes the whole statute perfectly clear to my mind, and removes the doubt caused by the


use of the words “ market-garden and nursery-grounds” in section 9. The only conclusion at which I can arrive is that buildings are not to be treated as agricultural land for rating purposes under this Act of Parliament. The case of Purser v. Worzhiny Local Board (35 W. R. G82, l8 Q. B. D. 818) does not, in my opinion, assist the court in construing this Act of Parliament. That case merely shews that a market-gardenprim/i flu.-is includes the buildings upon it used for market-garden purposes. To urge that market-gardens and nursery-grounds do not cease to be so because they are more or less covered with glass-houses, is to urge what is quite true, but is beside the mark. The question is, How are such houses to be rated under the Act of Parliament? My answer is, it they are buildings they must be rated as such, and not as agricultural land. Mr. Salter, in his very able argument, suggested that (buildings used only for covering land which was cultivated under their protection oughtto he distinguished from other buildings, and ought to be held to be agricultural land. I can find nothing to justify a distinction between one class of buildings and another for any such purpose as his argument requires-. Section 5 speaks, no doubt, of buildings used only for the cultivation oi land, but this clause in no way shews that such buildings, or any others, are to be rated as agricultural land. The case of London and NorthWeatom Railway v. Llandudno Improvement Commissioners (45 W. R. 350; 1897, 1 Q. B. 287), turned on the construction of a provision in another Act oi Parliament, and does not really assist me to arrive at the true 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 and of the quarter sessions must be reversed.

Rrcsv, L.J., delivered judgment to the same eftect.

VAUGHAN Wmtians, L.J., dissented. He said: I am very sorry to differ from the other members of the court. The construction of the Act is very difiicult. There is no construction which, in my judgment, does not lead to results which it is diificult to suppose that the Legislature contemplated. In such a case one must be guided by the words oi tho sections, and not by balancing the difilculties of the respective results one against the other. The question in the case is whether that part of the land occupied by a market-garden which is covered with glass-houses ot the character stated in the case, comes within the exemption mentioned in section 1, sub-section 1, of the Agricultural Rates Act, 1896, so as to render the occupier liable to pay one-halt only of the rate in the pound payable in respect of other hereditaments. I think that the laud in question docs fall within the exemption. I agree with Collins, L.J., that the cases of Purser v. Wow-thing Local Board and London and North Western Railway Co. v. Llanduzlno Commissioners (ubi supra) shew that primd faci: this land covered with these glass-houses is part and parcel of the marketgarden, and therefore is agricultural laud, the occupier oi which is entitled to the benefit of this exemption. The form and collocation oi words used in the Act is not new as defining partial exemption in rating cases. It is to be found as early as the Public Health Act, 1848, and in the Public Health Act, 1875, and has uniformly received such a construction that the hereditaments catalogued in the definition have been held to include the building thereon whenever the buildings in question are part and parcel of the specified hereditaments. It remains to consider if there is anything in the tenor and details of this Act to lead to the conclusion that “ market-garden ” and the other collocated words ought to receive a different construction in this Act, so as to exclude from “ agricultural land ” the buildings on each hereditament, whatever their character. I see nothing in the tenor of the Act, or in its details, to lead to such a conclusion, and if it had been the intention of the Legislature, when employing this old precedent for the definition of hereclitainents to be partia ly exempted from rates, to use the word in a new sense. and exclude from the exemption all land covered with buildings, it would have been very easy to do so; and this has not been done. I will now deal with the sections chiefly relied on in the arguments at the bar, as indicating an intention by the Legislature to use these words in this new sense. It is argued that in section 1, sub-section 1, of this Act, there is B manifest intention to contrast agricultural land with buildings—i.e., the buildings thereon. I think not. There is a contrast, but it is a contfnii between agricultural land as defined and “ buildings or other hereditaments" ; a contrast, that is, between different classes ct rateable hereditaments. The right inference from this contrast seems to me not to be that all buildings are to be excluded from agricultural land, but only such buildings as can by the existing law properly be dealt with for rating pillposes as separate hereditaments. Next, it is argued that section 5 shews this intention to exclude all buildings from “ agricultural land." I think not. It is a diflicult section to construe, but it seems tome to be asectiou giving directions as to the separation in valuation lists and bases of county rates, &c , of agricultural land as a rateable hereditament from buildings and other rateable hereditamcnts. Now, what are the buildings which are to be separately valued according to these directions in clause (c)? C0}lins, L.J., thinks that they are buildings not part and parcel of the agilcultural land—not part and parcel, that is, in the present case, of the market-garden—-but used in connection with it, and no doubt siwh buildings, although not forming part of the market-garden or Otlwf agricultural land, might in rating law be described as a part of the hereditament consisting partly of agricultural land and partly Oi buildings, for there is no law which requires a separation of hereditaments according to the titles under which the occupier holds, or tllfi use which the occupier makes of the parts ; and unity of personal occupation and unity of parish is all that is necessary to constitute and determine the rating hereditament. If once you arrive at the conclusion that the definitions of agricultural land cover and include the buildings part _i\ii<1 parcel thereof, it is not easy to avoid the conclusion that the l)Uild1l_l{-‘,5. spoken oi in this section must be some buildings other than those falling within the definition. One mode of avoiding this conclusion would be

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