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APORTRAIT of the LORD

CHIEF JUSTICE (LORD RUSSELL of KILLOWEN). Full-length Figure in Judicial Robes, after painting by J. Doyle Penrose. Artist's proofs (number limited to 150), £3 3s.; prints, £1 18. Subscription forms and prospectus, with reduced facsimile of portrait, post-free of THE KELLY LAW-BOOK COMPANY, LIMITED,

Dealers in Law Books and Legal Portraits,

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2, NEW KENT ROAD, S.E. (Opposite the Elephant and Castle,.

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ELLIS, EGERTON, BREACH, GALSWORTHY, & Co. beg to announce that the following days have been fixed for their SALES at the AUCTION MART, Tokenhouse-yard, during the year 1899:Thursday, April 28. Thursday, May 12. Tuesday, May 17.

LINCOLN'S-INN-GATE, CAREY-ST., LONDON, W.C. AUCTION SALES are held at the Mart, Wednesday, May 18.

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MELBOURNE HOUSE, LEICESTER.

PRIVATE HOME FOR LADIES.

Medical Attendant: CHAS. J. BOND, F.R.C.S. Eng., L.R.C.P. Lond. Principal: H. M. RILEY, Assoc. Soc. Study of Inebriety. Thirty years' Experience Excellent Legal and Medical References. For terms and particulars apply Miss RILEY, or the Principal.

BRAND & CO.'S

SPECIALTIES
FOR INVALIDS.

ESSENCE OF BEEF,
BEEF TEA,

MEAT JUICE, &c,

Prepared from finest ENGLISH MEATS
Of all Chemists and Grocers.

BRAND & CO., LTD., MAYFAIR, W., & MAYFAIR
WORKS, VAUXHALL. LONDON, S.W.

EPPS'S COCOAINE.

COCOA-NIB EXTRACT.

The choicest roasted nibs (broken-up beans) of the

Tokenhouse-yard, City, nearly every Thursday, and on other days as occasion may require.

STIMSON & SONS undertake SALES and LETTINGS by PRIVATE TREATY, Valuations, Surveys, Negotiation of Mortgages, Receiversh.ps in Chancery, References and Arbitrations, the Adjustment of Compensation and other Claims, Sales by Auction of Furniture and Stock, Collection of Rents, &c.

Separate Lists of Property, Ground Rents for Sale, and Houses, Premises, &c., to be Let, are issued on the 1st of each month; and can be had gratis on application, or free by post for two stamps. No charge for insertion. Telegraphic address, "Servabe, London.'

JOHN GERMAN, SON, & BEVEN,

LAND AGENTS, SURVEYORS & AUCTION & ERS 69 and 60, CHANCERY LANE, W.C. Country Offices:

ASHBY-DE-LA-ZOUCH, LEICESTERSHIRE.
CHARTLEY, STAFFORDSHIRE,

WILLESLEY, DERBYSHIRE.
KINGSTON, NOTTS.

Telegraphic Address, " Cogitate, London."

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MESSRS. H. GROGAN & CO., 101, Park

street, Grosvenor-square, beg to call the attention of intending Purchasers to the many attractive West-End

Houses which they have for Sale. Particulars on applica

tion. Surveys and Valuations attended to.

G. F. BOX & CO.,

AUCTIONEERS, VALUERS, ESTATE AGENTS, RENT
RECEIVERS, AND BAILIFFS.
Auction Room for Sale of Furniture and every descrip-
tion of Property. [Established 1885.]
Offices: 227, LoWER CLAPTON-ROAD, N.E., and at 66, GREY-
HOUND-LANE, STREATHAM, S.W.

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ON MANSIONS AND FLAT Large Sums awaiting Investment, also on Freehold and Leasehold Properties, Large Estates or Farms.

Good

Thursday, May 28.
Thursday, June 2.
Thursday, June 9.
Thursday, June 23.
Thursday, June 30.
Thursday, July 14.
Thursday, July 21.
No. 29, Fleet-street,
street, E.C.

Thursday, July 23. Thursday, August 4: Thursday, August 11. Thursday, September 22. Thursday, October 13. Thursday, October 27. Thursday, November 10. Thursday, November 24, Thursday, December 1. Thursday, December 15. Temple-bar, and 18, Old Broad

By Order of the Trustees of the Will of Joseph Thomas Palmer, Esq., deceased. LOUGHTON, ESSEX, About a mile from Theydon Bois, 11 mile from Chigwelllane, and about 2 miles from Loughton Stations on the Great Eastern Railway, and only 14 miles from London. In a delightfully rural and undulating district, commanding picturesque views over the Forest, a valuable Freehold Residential Property, known as the Debden Hall Estate; it comprises Debden Hall, a substantial residence approached by a carriage drive through a park, with lodge at entrance, and containing 19 bed and dressing rooms capital entrance hall with fireplace, 5 reception-rooms, conservatory, and very good domestic offices, spacious pleasure grounds, kitchen garden, stabling for 7 horses, 2 large coach-houses and other buildings, 4 cottages, and first-rate farmery, and well-timbered park-like meadow, arable, and wood land, extending to about 140 acres, possessing very extensive frontages to main roads.

Debden-green House.-A well-Luilt Freehold Residence, facing the Green, containing eight bed and dressingrooms, bath-room, five reception-rooms, and domestic offices, with stalling for three horses, and pleasure and kitchen gardens.

A Pair of substantial brick-built Villas, a Pair of timber and tiled Cott ges, and a small Paddock, situate in England's-lane.

ME

ESSRS. ALFRED SAVILL & SON have received instructions to OFFER the Above for SALE by AUCTION, at the MART, Tokenhouse-yard, London, E.C., on WEDNESDAY, MAY 4, 1838, at TWO

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STREATHAM HILL.

With possession.-An exceptionally attractive Detached Residence, occupying a delightful position on the best part of the main Streatham-road; it has had a particularly larg sum of money expended upon it, and is in perfect substantial and decorative repair.

MESSRS HERRING, SON, & DAW will

SELL by AUCTION, at the MART, Tokenbousyard, E.C., on TUESDAY, APRIL 19, 1893, at TWO o'clock, the commanding Detached LEASEHOLD RESDENCE, known as Derwent Mount, Streatham main road, only 2 minutes' walk from Streatham-hill Station, containing 8 bedrooms of spacious dimensions, dressing-rom, 2 bath-rooms, 3 handsome reception-rooms, conservatory, and domestic offices, fitted up in a most expensive manner; there is stabling for 3 horses, large coachhouse, man's living rooms, &c., attractive garden, with greenhouses, &c., comprising in all about 1 acre; it is held for a long term at a moderate ground-rent.

Particulars of Messrs. Wellborne & Son, Solicitors, 17, Duke-street, London Bridge, S. E.; and of the Auctioneers, 6, Ironmonger-lane, Cheapside, E.C., 308, Brixton-hill, S.W., and at Brighton.

KNIGHT, FRANK, & RUTLEY,

FOR SALES AND VALUATIONS.

Freehold Ground-rents Wanted. Principals placed in THE CONDUIT ST. AUCTION GALLERIES,

direct communication with clients.

GIBSON'S AUCTION AND ESTATE OFFICE, 22, RING-STREET, Sr. JAMES', LONDON, S. W. (Telephone 5527 Gerrard); HERTFORDSHIRE OFFICES, ST. ALBANS (Telephone No. 4); and HARPENDEN.

YENTRAL LONDON RAILWAY.-Shepand District.-Owners wishing to Sell or Let Property in these districts should send to C. RAWLEY CROSS & Co., who ave more applications than they can suit; particulars inserted in their Western Suburbs Register free. Rent collections undertaken (large or small), and Property of all kinds managed on inclusive terms; punctual payments guaranteed; references to clients of 20 years' standing. Offices, "Ilchester House," (facing) Uxbridge-road Station, W. (Established 1877). Telephone No. 669. Kensington.

natural Cocoa on being subjected to a powerful hydraulic M. W. EDGLEY, 40 & 41, Fleet-st.

pressure, give forth their excess of oil, leaving for use a finely-flavoured powder-"Cocoaine," a product which, when prepared with boiling water, has the consistence of tea, of which it is now, with many, beneficially taking the place. Its active principle being a gentle nerve stimulant, supplies the needed energy without unduly exciting the system. Sold only in labelled Tins. If unable to obtain it of your tradesman, a tin will be sent post-free for 9 stamps.-JAMES EPPS & CO., LTD., Homœopathic Chemists, London.

AMERICAN ROLL TOP DESKS.

M. W. Edgley, 40 & 41, Fleet-st. AMERICAN ROLL TOP DESKS.

M. W. Edgley, 40 & 41, Fleet-st, AMERICAN ROLL TOP DESKS.

M. W. Edgley, 40 & 41, Fleet-st.

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Coppen Bros. v. Moore
Municipal Election for the Central
Division of Hackney, Re. Ex parte
Wood and Stuart
Piercy, Re. Whitwham v. Piercy 395
Reg. v. Bird and Other Justices. Ex
parte Jones.
Railway Co.....

397

Perry Almshouses, In re..

330

Reg. v. Sharman and Others (Justices).

Ex parte Denton

337

396

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Rowe. In re. Pike v. Hamlyn

357

St. Matthew, Bethnal Green, Vestry v.
London School Board

353

397

397

South Hetton Coal Co. (Limited) v.
Haswell, Shotton, and Easington
Coal and Coke Co. (Limited).
West v. William;

355

362

ALLIANCE ASSURANCE COMPANY. Spencer v. Lancashire and Yorkshire

Established 1824. Capital, £5,000,000 Sterling.
HEAD OFFICE: BARTHOLOMEW LANE, LONDON.
Chairman: RIGHT HON. LORD ROTHSCHILD.

LONDON BRANCHES: 1, ST. JAMES'S ST., S.W.; 63, CHANCERY LANE, W.C.;
NORFOLK ST., STRAND; WIGMORE ST.; 3, MINCING LANE, E.C.
LIFE AND FIRE INSURANCES AT MODERATE RATES.

Life Policies free from Restrictions, with Perfect Security and Liberal Bonuses.
Special forms of Policies have been prepared to provide for payment of ESTATE DUTIES.
LEASEHOLD AND SINKING FUND POLICIES.
Full Prospectuses on application.
ROBERT LEWIS, Chief Secretary.

West Randt Proprietary (Lim.), Re 395

CURRENT TOPICS.

HIS HONOUR Judge EDGE has been transferred from the Devonshire County Courts (Circuit No. 58) to the Metropolitan LEGAL AND GENERAL LIFE ASSURANCE County Court (Circuit No. 41), and Mr. ROBERT WOODFALL has been appointed to the county courts vacated by Judge EDGE. Mr. WOODFALL was called to the Bar in 1883.

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THE INCONVENIENCE and delay to ordinary litigants caused by the protracted nature of the trial of patent actions has for a long time been a subject of complaint, and it is to be hoped. that some good result will follow from the remarks made by the Lord Chancellor in the course of his judgment in Gormully v. North British Rubber Co. In his view, apparently, the proper way to deal with such cases, if the trial cannot be brought within reasonable limits, is for the court to order them to be tried before a referee. By section 14 of the Arbitration Act, 1889, provision is made for such reference in cases involving any scientific investigation "which cannot in the opinion of the court or a judge conveniently be made before a jury or conducted by the court through its other ordinary officers," and it is clear that a patent action may involve scientific investigation within the meaning of this provision (Saxby v. Gloucester Wagon Co., W. N., 1880, p. 28). A reference, however, is at best an unsatisfactory expedient, and especially in a class of actions which frequently involve interests of great pecuniary magnitude. The proper solution of the difficulty has been frequently suggested. What is required is a special court for the trial of patent actions, and the assignment of a judge specially for the work of the court. This would mean the appointment of an additional judge; but now that the Lord Chancellor has had his attention called to the exigency of the matter, it ought to be possible to secure such an appointment. There is abundant reason for withdrawing patent cases from the ordinary lists, so that they shall not for days together interrupt business; but this withdrawal must be simultaneous with the provision of a suitable tribunal to which they can be transferred. The Lord Chancellor admits that it is most satisfactory that patent cases

should be determined in an ordinary court, and the institution interested him in connection with his favourite branch of law, of a special tribunal would remove all ground of complaint, the benefit of his learning and singularly acute intellect. and also facilitate the disposal of the general business of the courts.

BUT WHILE patent actions frequently consume an excessive amount of time, they have a justification for their length which is lacking in some other cases. The issues before the court depend upon scientific points, which require careful and prolonged examination, and unless the judge is himself a scientific expert he has to go through a course of education before he is in a position to decide upon the facts and to apply to them the appropriate law. It is different where the trial is spun out because it presents matter of great popular interest. The recent death of the "Tichborne claimant" recalls perhaps the most flagrant instance of this misuse of the procedure of a court of justice. It is difficult now to realize how those who had the conduct either of the civil or the criminal proceedings could have consented to extend them to such an inordinate length, or how the presiding judges could have allowed it. A speech of twenty-six days, such as the late Lord Chief Justice delivered for the defence in the civil action, is doubtless a great performance, and, in consequence of the extraordinary conflict of testimony as to ARTHUR ORTON's identity, there was an immense mass of material with which to deal. But in such a case the very length of the proceedings defeats their object. Whether the persons charged to decide the matter are judges or jurymen, their capacity to receive facts and arguments is limited, and for practical purposes the short speech, with its neat marshalling of facts and its concise presentment of arguments, is the most effective. In ordinary cases this is the quality which counsel attempt to import into their speeches, and otherwise business would become impossible. In extraordinary cases, doubtless, some latitude must be allowed. Judges, counsel, and witnesses are human, and with the public, represented by the newspaper reporter, eagerly looking on, there is no great disposition to hurry over the matter. But popular interest does not excuse the reckless waste of the time of courts of law, and the Tichborne case will, it is to be hoped, remain as a "record" offender in this respect.

WHEN WE referred last week to some observations made by Mr. H. W. CHALLIS in the preface to the new edition of Hood and Challis on the Conveyancing and Settled Land Acts, we little thought that the author of the observations was lying at the point of death. His health was always somewhat delicate, and on the 1st inst. he succumbed to an attack of influenza. By his death we have lost one of the comparatively few profoundly learned real property lawyers of this generation. His attainments were the admiration of his friends long before, by the publication of his treatise on the Law of Real Property, they became generally known to the profession. The labour he bestowed upon that work was enormous. He believed in Lord COKE's remark that "There is no knowledge, case, or point of law, seem it of never so little account, but will stand our student in stead at one time or other; and therefore, in reading, nothing is to be pretermitted" (Co. Litt. 9a), and he acted upon it to the fullest extent in the preparation of the book. He met with his reward; the treatise established his reputation, and he acquired a good practice; but, as he himself wrote in our columns of his friend the late Mr. W. B. TREVELYAN, "he never pushed himself into the prominence of a great practice,' such as has been attained by many inferior men; and he probably did not desire it." Eminently scholarly, fastidious, and high-minded, he Ecorned any attempt to attain distinction or popularity. Yet there was no greater favourite among his brethren at the equity bar. His genuine kindliness, old-world courtliness of manner, and readiness to open his treasures of learning to anyone who had a knotty point to consider in the course of practice, endeared him to them; and there have been few men at the bar whose loss has been more deeply regretted. For many years he was a frequent contributor to this journal, and up to almost the close of his life he was always ready to give our readers, upon any matter which

IT HAS been held by KEKEWICH, J., in Re Brooke and Tremlin's Contract that a married woman who is a mortgagee under a mortgage made in 1895, and who owns the mortgage money as her separate property, can convey the mortgaged property without the concurrence of her husband and without the necessity of acknowledging the deed. But for the decision of NORTH, J., in Re Harkness and Allsopp's Contract (44 W. R. 683; 1896, 2 Ch. 358) the point would have been too clear for argument. Under the Married Women's Property Act, 1882, a married woman is enabled to dispose of property acquired after the Act as if she were a feme sole, and there is no reason for excluding this power in the case of land which she has acquired under a mortgage. In Re Harkness and Allsopp's Contract, however, it was held that a married woman who was a trustee of real property could not convey, except with the concurrence of her The ground of the husband and by deed acknowledged. decision was that section 18 of the Act expressly enables a married woman who is trustee of certain classes of personal property to transfer as a feme sole, and it would seem, therefore, that the game facility is not extended to the case where the married woman is a trustee of real estate. The conclusion is helped by the consideration that the initial clauses of the Act, conferring on married women a general power of disposition, appear to contemplate only property in which she is beneficially interested. The result is highly inconvenient. Probably it is due to oversight on the part of the draftsman of the Act, and clearly it should not be extended. The only ground for applying it to the case of a mortgage would be that the mortgagee is a trustee for the mortgagor, but this is not so. While the mortgage is subsisting, the mortgagee is interested in the land on his own account; the mortgagor only has the equity of redemption. Hence a married woman who is a mortgagee can convey as a feme sole, notwithstanding Re Harkness and Allsopp's Contract. And after the mortgage has been paid off she is, as KEKEWICH, J., pointed out, a bare trustee, and can convey as a feme sole under section 16 of the Trustee Act, 1893.

THE CLAUSE frequently inserted in partnership articles giving to the partners power to expel one of the firm in case of breach of duty or incapacity requires to be exercised in good faith or it may become an instrument of grave oppression. In the recent case of Barnes v. Youngs (46 W. R. 332) ROMER, J., has placed a qualification upon its exercise which will prevent any such result. The articles there contained a very comprehensive clause giving the partners power to expel one of their number under a variety of circumstances. The expulsion was to take effect upon notice in writing being served upon the expelled partner, but provision was made for a reference to arbitration if any question arose whether a case had happened to authorize the exercise of the power. In consequence of information which the defendants had received as to certain conduct of the plaintiff, they, without warning and without giving an opportunity of explanation, served notice of expulsion upon him. The action was thereupon commenced by the expeiled partner to prevent the expulsion and the consequent dissolution of partnership from taking effect, and the defendants, the other partners, moved to stay the proceedings and to refer the matter to arbitration. In the opinion of ROMER, J., however, the defendants had not placed themselves in a position to require arbitration under the articles. A notice of expulsion involves a decision by the partners upon the conduct of the expelled partner, which is in the nature of a judicial decision; and the decision should not be arrived at, and the notice served, until the partners have proceeded in a judicial manner, and have given the impeached partner a chance of offering an explanation. "I think," said the learned judge, "that partners are not entitled to spring a notice of dissolution on their co-partner without the slightest preliminary notice being given to him, and without calling his attention in the slightest degree to any alleged cause of complaint, and without giving him the slightest opportunity of

meeting the case which is alleged against him." In the present case no such opportunity had been given, and consequently the right to serve a notice of dissolution had not arisen. The notice which was served was consequently bad, and ROMER, J., declined to stay the plaintiff's action.

UNTIL PARLIAMENT interferes, it does not seem at all likely that there will be any end to the cases which keep coming before the High Court on the Betting Houses Act, 1853, involving the question whether some place or other is, or is not, a "place" within the meaning of that Act. Another of such cases was before the Court for Crown Cases Reserved last Saturday in Reg. v. Humphrey, and it was obvious from the tone of their judgments that the judges of the Queen's Bench Division do not consider their court bound by the decision of the Court of Appeal in Powell v. The Kempton Park Racecourse Co. (46 W. R. 8; 1897, 2 Q. B. 242), though of course they express the utmost respect for that decision. HAWKINS, J., especially was careful to state that no word of his must be taken as approving of that case. The recent case was very different from the Kempton Park case. It had nothing to do with enclosures on racecourses. The defendant was convicted under the Act of illegally using a certain archway in the city of Leeds, which he frequented at the same hour of the day, for the purpose of betting with any person who should come to the archway for that purpose. The court, therefore, in upholding the conviction, were able to do so without dissenting from the Kempton Park case. It will be interesting to see how the judges will treat a case which raises the same point. It is quite clear that no court can overrule a judgment of the Court for Crown Cases Reserved, and this court gave a final decision in Hawke v. Dunn (45 W. R. 359; 1897, 1 Q. B. 579). The Court of Appeal, however, refused to follow it in the Kempton Park case, and now these two courts appear to be at issue, and each seems likely to hold to its own expressed opinion. Under such circumstances it has become almost imperative that Parliament should take up the question, and, if possible, lay it at rest once for all. The task would be no easy one, and any proposed legislation would probably meet with much opposition. One very unsatisfactory feature in the decision of the Court of Appeal is that the action was really a collusive one. The Act of 1853 commences with a preamble, "Whereas a kind of gaming has of late sprung up.' It was admitted that the kind of gaming in question had been carried on since the beginning of this century. That admission had evidently an important bearing on the judgment of the court, but it clearly weakens the authority of that judgment, and WILLS, J., expressed an opinion that it is little short of a scandal that the leading authority on the subject should have been obtained under such circumstances. Anyhow, "muddle" is the only word which adequately expresses the state of the law as to betting. The authorities are irreconcileable, and the position is quite unseemly. The sooner legislation puts an end to the existing state of things the better will it be for the dignity of the law.

IN THE recent case of Clyde Cycle Co. v. Hargreaves the oftraised question, what are necessaries suitable for an infant? was again under consideration. It was held in that case, by a county court judge, when sitting alone without a jury, that a racing bicycle purchased by the defendant for £12 10s., which had been used by him for racing purposes as well as for exercise on the road, was an article of utility suitable for his circumstances and station in life, which was that of an apprentice to a scientific instrument maker, at a salary of 21s. a week. In affirming this judgment, the Divisional Court (Lord RUSSELL, C.J., and RIDLEY, J.) held that, since the county court judge was acting as both judge and jury, his decision could not be reviewed if, in their opinion, the case was a proper one to have been left to a jury-that is to say, one in which there was evidence to justify a jury in finding for the plaintiff on the question of whether the bicycle supplied to the defendant was or was not "necessaries." This decision is fully in harmony with what was laid down in the leading case of Ryder v. Wombwell (L. R. 4 Ex. 32), and likewise derives support from the

statutory definition of "necessaries" contained in section 2 of the Sale of Goods Act, 1893 (56 & 57 Vict. c. 71). Moreover, it upholds the rule which ought always to be strictly adhered to in the interest of the public-namely, that the power of appealing from the county court is, as it always has been, limited to those cases in which one of the parties is dissatisfied with "the determination or direction of the judge in point of law or equity, or upon the admission or rejection of any evidence" (51 & 52 Vict. c. 43, s. 120), and that, therefore, where there is no jury, the judge's findings of fact (if upon some evidence) are final, and cannot be questioned (Cousins v. Lombard Deposit Bank, 1 Ex. D. 404; Smith v. Baker, 1891, A. C. 325), though an appeal will lie where it is clear that in coming to a conclusion on the facts he must have taken an erroneous view of the law: Cawley v. Furney (12 C. B. 291), Cuthbertson v. Parsons (12 C. B. 304).

goods, or receives some other valuable consideration, upon an WHERE A person whose goods have been stolen takes back the agreement not to prosecute the thief, he is gulty of the misdemeanour which was anciently known as theftbote, but which is now called compounding a felony. An indictment for the misdemeanour is very seldom indeed met with in the criminal courts, although no doubt it is an everyday offence. Such an agreement, however, is clearly illegal, and therefore cannot be enforced in an action at law. An example of this came before GRANTHAM, J., a few days ago in the Queen's Bench Division. In this case it appeared that the plaintiff had had a clerk whom he suspected of embezzlement, and who confessed his guilt. The plaintiff threatened to prosecute the clerk, but some friends of the latter, amongst whom was the defendant, contributed and handed to the plaintiff a part of the sum that had been misappropriated, and the defendant gave the plaintiff a bill of exchange for the balance. No criminal proceedings were taken. The action was brought on the bill of exchange, and illegal consideration-namely, to compound a felony. The was defended on the ground that the bill was given for an judge found as a fact that the bill had been accepted by the defendant because the plaintiff had threatened to prosecute his clerk, and gave judgment for the defendant. This was clearly in accordance with the defence set up, although no doubt the agreement not to prosecute was merely implied. After this finding of fact there was no room for doubt as to the law on the subject. The circumstances of the case, however, are of sufficiently uncommon a nature to deserve some passing notice, and the case supplies a good example of an important legal principle.

A CASE affecting county court bailiffs and the fees chargeable by them on levying a distress for rent has recently been determined-namely, Duncombe v. Hicks. There, by arrangement with the tenant, the man put in possession by the bailiff agreed to substitute, for "full possession," what is called "walking possession "-that is to say, instead of remaining in possession, he agreed with the tenant to leave on receiving the key of the premises, together with a written authority from the tenant Full to re-enter as and when he (the bailiff's man) so pleased. possession fees having, under these circumstances, been charged, it was held by the county court judge that they were not payable, and that, moreover, the bailiff's certificate must be cancelled. On appeal to the High Court, the Divisional Court (WRIGHT and DARLING, JJ.) declined to interfere in any way with the discretion exercised by the county court judge, and likewise expressed a doubt as to whether they had power to amend so much of his decision as related to the cancellation of the certificate. That the High Court does not possess the power in question is, we submit, clear from the language of section 33 of the County Courts Act, 1888, which enables the high bailiff to appoint bailiffs to assist him, and at his pleasure to dismiss all or any of them, and appoint others in their place, and provides that every bailiff so appointed may be suspended or dismissed by the judge."

Mr. Justice Channell has fixed Friday, the 6th of May, as the commission day for the Spring Assizes at Leeds.

RESERVE CAPITAL.

THE Court of Appeal have held in Bartlett v. Mayfair Property Co. (Limited), affirming the decision of WRIGHT, J. (46 W. R. 199), that an effective mortgage cannot be made of capital of a limited company which by a special resolution passed under section 5 of the Companies Act, 1879, has been declared not to be capable of being called up except in the event and for the purpose of a winding up. Having regard to the current of decisions hitherto upon mortgages of uncalled capital, it was by no means clear that this was the correct view, and the argument in the judgment of LINDLEY, M.R., is based upon the analogy of the operation of the Act of 1879 in the case of unlimited companies rather than upon considerations applicable to limited companies. Originally there was, as is well known, no little doubt as to the validity of any charge on uncalled capital. Such a charge, it was said, involved an interference with the discretion which the directors ought to exercise in making calls (see Stanley's case, 12 W. R. 894, 4 De G. J. & S. 407). But in Re Phoenix Bessemer Steel Co. (32 L. T. 854) JESSEL, M.R., held the objection to be untenable, and in subsequent cases the controversy has turned rather on the words of the power in the memorandum or articles of association authorizing the mortgage of uncalled capital, than on the possibility of such power being conferred. In Re Pyle Works (Limited) (38 W. R. 674, 44 Ch. D. 534) it was held by the Court of Appeal that a mortgage of uncalled capital, when properly authorized by the constitution of the company, was effectual to charge calls made by the liquidator in a winding up equally with calls made by the directors; and the validity of such mortgages was further affirmed by the Privy Council in Newton v. Anglo-Australian Investment Co. (43 W. R. 401; 1895, A. C. 244).

The section upon which the question in Bartlett v. Mayfair Property Co. has arisen provides, in the first instance, for the case of unlimited companies which are being registered as limited under section 179 of the Act of 1862. Such a company may, upon the registration, increase the nominal amount of its capital by increasing the nominal amount of its shares, but in this case no part of the increased capital is to be capable of being called up except in the event of, and for the purposes of, the company being wound up. The Act, it may be noticed, was passed in consequence of the hardships incident to unlimited liability which were revealed by the failure of the Glasgow Bank in 1878, and the device of reserving a part of the capital for use only upon a winding up was adopted as a means of reconciling limited liability with the credit which a company had possessed when unlimited. An unlimited company might also upon registration with limited liability, instead of increasing its nominal capital, reserve in the same manner a portion of its existing uncalled nominal capital.

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After making the above provision for the case of unlimited companies, section 5 proceeds: "A limited company may by special resolution declare that any portion of its capital which has not been already called up shall not be capable of being called up, except in the event of and for the purpose of the company being wound up; and thereupon such portion of capital shall not be capable of being called up, except in the event of and for the purposes of the company being wound up." It was upon this provision that the Mayfair Property Co. acted. The company was registered in August, 1892, with a nominal capital of £50,000 in 5,000 shares of £10 each. The sum of £4 59. per share was called up, and by a special resolution passed under section 5 of the Act of 1879 in September, 1892, it was declared that £5 per share should not be capable of being called up except in the event of and for the purposes of the company being wound up. Both the memorandum and the articles of association authorized the creation of a charge on the uncalled capital, and in 1894 the company issued first mortgage debentures charged on all its property, both present and future, including the uncalled capital for the time being. A winding-up order was made in August, 1896, and the debenture-holders c'aimed that their security extended to the capital which thereupon became capable of being called up.

Taking the provision quoted above apart from the preceding clauses relating to unlimited companies, it would seem that it

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is capable of the construction thus sought to be put upon it. The purposes of the winding up" include the payment of all creditors, whether secured or not, in their due order, and the use of these words does not necessarily prohibit the application of the reserve capital to the payment of creditors who have acquired a specific charge upon it. It must be admitted, however, that a strong argument against this view is afforded by the juxtaposition of the clauses dealing with the registration of unlimited companies as companies having limited liability. As long as the liability was unlimited the capital at the disposal of the directors comprised, as the Master of the Rolls in his judg ment in the present case pointed out, only the nominal amount of the shares. In a winding up the calls which the liquidator could make were unlimited, but previously to the winding up no call beyond the nominal amount of the shares could be made, nor could the proceeds of calls beyond such nominal amount be in any way pledged. It is natural to infer that when, by the Act of 1879, the Legislature made it possible for the company to substitute for this unlimited liability in winding up a limited liability represented by the nominal capital specially reserved, the same qualities should attach to calls made upon this reserve capital as had previously attached to calls made in a winding up in excess of the nominal value of the shares that is, the calls on the reserve capital were meant to be excluded altogether from the control of the directors, and never to be available for any purpose whatever until a winding up had occurred.

But if this is the true effect of the section as to unlimited companies it may reasonably have the same effect when it uses precisely similar language with regard to limited companies. Thus here again the reserve capital is removed from the control of the directors and is kept intact for the liquidator to apply in the course of the winding up. "The prohibition," said LINDLEY, M.R., "against calling up the reserve capital in the case of limited companies is inserted for precisely the same purpose as in the case of unlimited companies-viz., to preserve such capital for the general purposes of the company when wound up. To interpret the section so as to enable a company to defeat this object by pledging or otherwise disposing of its reserve capital is, in my opinion, entirely to miss the real meaning of the Legislature as expressed in the language it has used. Neither the Act of 1879 nor the other Companies Acts give a company power to dispose of assets which cannot come into existence until it is wound up. capital or any part of it when called up to a prior assignee, or to a mortgagee who has no claim against the assets until he has realized or given up his security, is not to apply the reserve capital for the purposes of the company being wound up within the true meaning of that expression as used in section 5, but to prevent such application."

To hand over the reserve

Apart from technical considerations, the construction thus adopted gives greater utility to the provision in question. As already pointed out, one object of creating a reserve capital is to increase the general credit of the company, and directly the reserve capital is pledged-if this were possible-the additional source of credit would be gone. So far as the liability of the shareholders is concerned the result is the same, for in no case could the capital be called up till a winding up, and when this occurred they would not be affected by the order in which the secured and unsecured creditors were paid. But otherwise the resolution creating the reserve capital would become inoperative, and upon a mortgage being created it would cease to be available for the general creditors. Under the present decision such a result will not be possible.

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