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Suitable clauses, settled by Counsel, can be obtained on application to THE LICENSES INSURANCE CORPORATION AND GUARANTEE FUND, LIMITED,

24, MOORGATE STREET, LONDON, E.C. Mortgages Guaranteed on Licensed Properties promptly, without special valuation and at low rates.

ALLIANCE ASSURANCE COMPANY.
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.Ć.
LIFE AND FIRE INSURANCES AT MODERATE RATES.

Life Policies free from Restrictions, with Perfect Security and Liberal Bonuses.
LEASEHOLD AND SINKING FUND POLICIES.
Full Prospectuses on application.

Special forms of Policies have been prepared to provide for payment of ESTATE DUTIES.
ROBERT LEWIS, Chief Secretary.

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THE RULE AGAINST PERPETUITIES... 650 THE LAND TRANSFER RULES 650 THE LATE MR. EDWARD LEE RowCLIFFE

COURT PAPERS...

658

659

651

CREDITORS' NOTICES........................... 659 BANKRUPTCY NOTICES........................ 661

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WINDING UP NOTICES

Cases Reported this Week.

In the Solicitors' Journal.

A Debtor, Re. Ex parte The Debtor... 657
Atlas Metal Co. v. Miller and Others... 653
Calcott and Elvin's Contract, Re....
Felix Hadley & Co. (Lim.) v. Felix
Hadley

Southwark and Vauxhall Water Co. v. The Wandsworth District Board of Works

655

Strangwayes v. Read

651

653

In the Weekly Reporter.

655

Clegg v. Ellison.....

577

Kennaird (Appellant) v. Cory & Son (Respondents)

Leicester County Council v. Leicester

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Lund v. Liverpool School for Indigent Blind..

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Mayor, &c., of Liverpool v The Assess-
ment Committee of the Llanfyllin
Union and Others.
Ratcliff, Re...

656

654

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v. Overseers of Dalton (Respondents) 582 'Ripon City" or "Silvia," The

CURRENT TOPICS.

WE ARE GLAD to observe that the Companies Act, 1867, Amendment (No. 2) Bill, promoted by the Council of the Incorporated Law Society, was read a third time in the House of Commons on Wednesday, and we trust it may now be considered safe to pass into law. The Bill has not, we believe,

LEGAL AND GENERAL LIFE ASSURANCE been reprinted since it was altered; but we understand that its

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IN THE COURSE of the hearing on Wednesday of a trade-mark case, the Master of the Rolls said he wished it to be generally known by solicitors that a copy of a judge's notes of vivá voce evidence taken before him should be applied for at a reasonable time before the hearing of an appeal, so that the judge's clerk might have time to make the copy. The application was often postponed to the last moment, and there was not time to make a copy before the hearing of the appeal. The original notes were not always easy to read.

WE REFERRED last week to the suggestions of the Incorporated Law Society with regard to service in Scotland. The case presented in the committee's report constitutes an unanswerable plea for equal rights on behalf of the English litigant. It may appear to be a work of supererogation to attempt to add to the strength of that plea, but we hope that in any communications which may pass on this subject the important case of Wood v. Middleton (45 W. R. 184; L. R, 1897, 1 Ch. 151) will not be overlooked. In that case an action was commenced by summons in the county court of Cumberland against a defendant resident in Scotland. Ord. 51, r. 23, of the County Court Rules, 1889, is in the following terms:

"Where a defendant sued under section 67 of the Act shall be out of England or Wales, the judge, or in his absence the registrar, may upon an affidavit of the fact, direct the service of the summons to be effected within such time and in such manner as the judge or registrar may think fit."

In accordance with the terms of this rule the registrar gave leave to serve the defendant in Scotland, which was done. The action was afterwards removed into the High Court, and the

question of jurisdiction was argued before STIRLING, J. The learned judge held that the above county court rule was valid, and within the power of the rule-making authority to make; that the service effected was therefore good service, and that had the action remained in the county court the jurisdiction could not have been objected to. But it had transpired that the subject-matter of the action exceeded the jurisdiction of the county court, and the registrar therefore transferred it to the High Court, as he was bound to do. The question, therefore, resolved itself into whether the High Court had jurisdiction, and the judge held that if the action had been commenced in the High Court, there would have been no jurisdiction to order service in Scotland, and consequently that, although the county court would have had jurisdiction if it had remained a county court action, the High Court could not acquire any similar jurisdiction by the mere fact of the transfer of the action from the county court to the High Court.

Court of Session and the lower courts in Scotland. The enact

THE ABOVE case appears to us to throw a striking light upon the absurdity and injustice of the existing state of affairs as to service of English process in Scotland. The county court has assumed for years past a free right to serve its process in Scotland, and this right is also freely assumed by both the ments conferring this right upon the Scottish courts will be found in a previous article on this subject (vol. 41, p. 184). Notwithstanding all this, the High Court in England is denied the right to serve an originating summons or petition in Scotland, and its power to order service of a writ of summons is hedged round by all manner of restrictions which are unknown to the Scottish courts or even our own county courts. Another fact which makes the present state of affairs even more absurd is that, as long ago as 1891, the Rules of the Supreme Court (Ireland) came into force, and ord. 11, r. 10, of those rules provides that "The rules of this order (service out of the jurisdiction) shall apply to originating summonses and petitions and other originating proceedings.' These facts speak for themselves. They shew that the powers assumed by the Irish courts and by the English county courts were properly assumed, and that they have never met with any objection from the Scottish courts. And they shew that the only person who is shut out from participation in these reciprocal rights to serve originating process of all kinds out of the jurisdiction, but within the United Kingdom, is the English litigant in the English High Court. Why this state of affairs should have continued so long seems to us inexplicable.

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THE COURT of Appeal have, as might have been expected, affirmed (ante, p. 635) the recent decision of KEKEWICH, J., in Re White, Pennell v. Franklin (46 W. R. 247). A testator, who died in 1891, appointed three persons as trustees and executors of his will. One of them was a solicitor, and he was expressly empowered by the will to make professional charges. The estate proved insolvent and the will was proved by the solicitor alone, who acted professionally in the administration, and then proposed to charge his costs against the estate. Unfortunately the earlier decisions, including decisions of the Court of Appeal, made it impossible for such a claim to be supported, and it was rejected by KEKEWICH, J. Apart from the express power in the will, the solicitor would have had no right to make any charge at all, even had the estate been solvent. His right to charge, therefore, sprang from the bounty of the testator, and the money, had he received it, would have come to him as a gift. This is, at least, the legal theory, and on the strength of it it has been held that a solicitor who attests the will debars himself from taking advantage of the provision in question (Re Barber, 34 W. R. 395, 31 Ch. D. 665; Re Pooley, 37 W. R. 17, 40 Ch. D. 1); but if the costs, when taken under the provision, are a gift so as to render the solicitor incompetent as an attesting witness, they are equally a gift or a legacy when it comes to be a question of paying them out of an insolvent estate. They cannot rank with the claims of creditors, and the solicitor must forego them not withstanding that he has done the

work whereby they are earned. The result, as the Master of the Rolls in the present case observed, is hard upon the solicitor, but it follows too clearly from legal principle to be gainsaid.

THE REPORT of the Legal Procedure Committee of the Iacorporated Law Society, to which we referred last week, deals also with the Land Charges Bill, which has now passed the House of Lords. The Bill, as we have already pointed out, substitutes for the writ of elegit a system of charging orders under which the execution creditor will have the power of realizing the debtor's lands as though he were mortgagee. It is contemplated, apparently, that the judgment creditor shall be entitled to a charging order as a matter of right, but no provision is made for such an order being made ex parte; and since, as the report points out, a summons after judgment requires to be served on the debtor personally, the creditor will be powerless to get his charging order if the debtor chooses to elude service. The creditor would thus be in a worse position than under the existing practice as to elegit. On the other hand, the Bill assists the creditor by enabling him to get an order charging any interest of the debtor in land, whereas certain interests are not extendible under an elegit. The second clause of the Bill empowers the Lord Chancellor to provide for the removal of the business conducted in the Registry of Judgments Department of the Central Office to the Office of Land Registry. This naturally meets with the approval of the committee, for some registers are already kept at the Land Registry, and it is obvious that all the registers which a purchaser of land may require to search ought to be collected at the same office. The committee further urge that contracts with corporations, which under Local Improvement Acts are binding upon land and have to be registered with the town clerk, ought also to be registered at the Central Office. Of course such local registration should never have been allowed unless accompanied also by central registration, but the precedent has been set and the Legislature continues to allow of the multiplication of local registers to the great trouble and expense of purchasers.

AN ATTEMPT was made in Groves v. Lord Wimborne (ante, p. 633) to upset the settled doctrine that an action will lie at the suit of a workman against his employer for injury caused by the employer's failure to perform his statutory duty of fencing dangerous machinery under section 5 of the Factory Act, 1878. For any such default the employer is liable to a penalty under the Act, and hence, it was urged, he is exempted from being at the same time liable to an action. But the argument, which is opposed to a long series of decisions, was rejected by the Court of Appeal. In Coe v. Platt (7 Ex. 460), which was upon the Act 7 & 8 Vict. c. 15, the plaintiff failed on another ground, but it was not doubted that, could he have proved the neglect of the statutory duty, he would have been entitled to recover. Holmes v. Clarke (6 H. & N. 349) and Britton v. Great Western Cotton Co. (L. R. 7 Ex. 130) are both direct decisions that the action will lie notwithstanding that the plaintiff goes on working with knowledge of the risk he runs, provided he has complained; aud in Baddeley v. Earl Granville (19 Q. B. D. 423) the Divisional Court not only held that the action would lie, but also, following an intimation by the majority of the Court of Appeal in Thomas v. Quartermaine (18 Q. B. D. 685), that the maxim volenti non fit injuria was not available to the employer by way of defence. In the present case of Groves v. Lord Wimborne the Court of Appeal have given cogent reasons why the statutory penalty should not exclude civil liability. Under section 82 of the Act of 1878, indeed, the whole or part of the penalty may, at the discretion of the Home Secretary, be applied for the benefit of the injured person or his family, but this is not the same thing as giving him a direct claim for compensation against the employer, nor does it follow that the penalty imposed will bear any proportion to the injury inflicted on the workman. The neglect of the statutory duty may be venial and yet the consequences severe. The penalty, therefore, does not correspond to the employer's civil liability to the workman, and, in the absence of any indication of such an intention in the Act, the civil liability is not excluded. As just

stated, the maxim volenti non fit injuria furnishes the employer proprietors of some "bogus club." These so-called clubs are, with no defence to the action; it is now held, further, that he as a rule, houses kept for the purpose of affording persons the cannot set up the defence of common employment. Even opportunity of doing acts which are forbidden by law in places though the omission to fence is immediately due to the negli- of public resort. No doubt the proprietors of such places often gence of a fellow-workman of the plaintiff, yet the employer break the law in many ways, but the charge most frequently cannot delegate to another the performance of his statutory preferred against them is that of selling liquor without a licence. duty, and he remains liable. Generally the question turns on whether the establishment is a bond fide club or not, and a conviction is obtained upon proof that there is no difficulty in the way of anyone who chooses obtaining admission and purchasing liquor. Houses of this description are no doubt a danger to public order and to morality, and those who keep them deliberately break the law for their own profit. There are, however, many clubs in London and elsewhere-some of them of the highest possible respectability-in which the licensing laws are, in our opinion, broken every day with impunity. The law says that no person shall sell by retail any intoxicating liquor without being duly licensed so to do. But surely this is exactly what the owner of every proprietary club does? He sells liquor, presumably at a profit, and he is not licensed. There are various kinds of clubs, but they may probably all be divided into two classes. In the first class may be placed all clubs the members of which themselves own the property of the club. In these clubs the members are joint owners of the society's property, and the committee, managers, or trustees are their agents. Under such circumstances, it was held in Graff v. Evans (30 W. R. 380, 8 Q. B. D. 373) that liquor purchased by the committee for the use of members, and sold to the members individually as they require it, is not "sold" within the meaning of the Licensing Act. In fact it is clear that, as soon as the committee purchase the liquor, each member becomes part owner of it, and what happens subsequently is merely a convenient method of distributing the liquor amongst persons who already are its owners, and who themselves alone profit by the transaction. In the second class of clubs may be placed all those in which membership is not co-extensive with ownership, in fact all proprietary clubs. Sometimes these are kept by one person, or by several in partnership. Sometimes they are the property of a limited company. In these the members, as such, do not own the goods of the club, and membership and ownership are quite distinct. The proprietor buys the liquor and does, in the ordinary sense, sell it again to the members; and the profit, if any, from the transaction goes into his pocket. Such societies are no doubt perfectly bond fide clubs, but, none the less, it is submitted, the proprietor infringes the licensing laws. In Bowyer v. The Percy Supper Club (Limited) (42 W. R. 29, [1893] 2 Q. B. 154) the club in question was owned by a limited company, and the High Court held that the company was liable to conviction for selling to members without being licensed. MATHEW, J., went so far as to say that he was wholly unable to see any distinction between a case of that sort and the case of a friendly society arranging with the landlord of a public-house that they should have the use of a room on certain occasions and be supplied by him with liquor. The question of proprietary clubs does not seem to have yet been thoroughly gone into; but, when they do receive the attention of the court, it will probably be held that whenever liquor is sold by the proprietor for his own. benefit a licence is necessary, and that it is immaterial whether the proprietor is a company, a firm, or an individual.

or not?

WE PRINT elsewhere a well-reasoned letter from a correspondent, who raises an important point in connection with our articles on the Land Transfer Rules. The question at issue seems capable of being thus stated: A. is the owner of land subject a legal mortgage to B., and A. registers; does the registration operate to divest B.'s legal estate and to vest it in A.? Our correspondent submits that it does. It seems to us that the policy of the Land Transfer Acts is to shew by the register the person capable of transferring or charging the registered land. All other estates may be created in like manner as if the land were unregistered. Thus if a registered proprietor conveys his land by unregistered disposition the legal estate (if vested in him) passes to the grantee subject to be divested by a registered disposition: see Act of 1875, s. 49. There is, therefore, nothing incompatible with the scheme of the Acts in B.'s retaining the legal estate. B.'s estate is an incumbrance and will be noted on the register where the registration is with an absolute title. B. cannot without his consent be given a registered charge in place of his legal mortgage: see rule 118. Again, the rule referred to in our sixth article, that there cannot be two common law fees co-existing in the same land is only a rule of the common law, and may be suspended by force of a statute. Moreover, it seems to have been disregarded in the case of a long term enlarged into a fee simple under section 65 of the Conveyancing and Law of Property Act, 1881. Of course we admit that the common law courts will take cognizance of the statutory fee for the purposes of the Act, but the question is, what is the value of that estate for the purposes of unregistered dealings? Is the old common law fee merged therein Assuming that where land is registered with an absolute title (the prior incumbrance having been discharged but the legal estate not reconveyed) a registered transfer for value by the registered proprietor will, as we think it does, pass the legal estate to the purchaser; thus, as regards absolute titles, the point is not of great importance, inasmuch as the registered proprietor, so long as he is in possession, will have the usual mortgagor's power to lease. In the case of possessory titles, however, the point is of considerable importance, and seems to us to depend on the construction of section 8 of the Act of 1875, which, as we pointed out (ante, pp. 505-6), may be read in two ways, and we stated that it would not be safe to act on the view that, on mere payment off of the incumbrance paramount to the estate conferred by registration, the legal estate vested in the proprietor without reconveyance. It will thus appear that the articles are not based on the assumption that the statutory estate is not the legal estate, but that in practice it will not be safe to assume that it is. Our correspondent thinks that his view is confirmed by rule 97, which provides for the case of a registered proprietor refusing to execute a transfer on a sale by a legal mortgagee under a mortgage made prior to first registration. We contend, however, that in the case of a possessory title an exercise of such a mortgagee's power of sale operates to remove the land from the register unless the purchaser is willing to adopt the registration and take a transfer under rule 97: see Re Winter (L. R. 15 Eq. 156) and ante, p. 551. In a compulsory district this is immaterial, as the purchaser would have to reregister. As regards our correspondent's contention that his view is supported by the fact that a purchaser can be registered without taking a conveyance, we have already pointed out (ante, p. 486) that in the case of a possessory title this would bring the contract for sale on the title, but undoubtedly if his contention is right the legal estate would pass by the registration, which has to be assented to by the vendor, instead of by

conveyance.

HARDLY A day passes on which we may not read in the police intelligence in the newspapers of proceedings against the

THE DECISION of the House of Lords in Lord Wolverton v. The Attorney-General, reversing that of the Court of Appeal (1897, 1 Q. B. 231), will be received with satisfaction by the legal profession. The question was as to the liability of the fourth Baron WOLVERTON to pay succession duty on the value of an annuity of £15,000 to which he became entitled under the trusts of a deed of family arrangement. The second baron, who died in 1887, by his will bequeathed certain bank shares upon certain trusts to the third baron during his life, and bequeathed his residuary estate in trust for his own wife for life, with remainder after her decease to the third baron if then living, and if he should then be dead to the person who should then be the testator's right heir. In 1888 the third baron died without issue in the lifetime of the widow, and the bank shares accordingly fell into the residue. On the death of the third baron five

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nieces of the testator were the persons who would, in the event | £5. If for any other reason an occupier refuses to admit the of their surviving the widow, be the co-heiresses of the testator officer of the sanitary authority, the only course for the authority and entitled to the residue. A deed of arrangement was to take is to apply to a magistrate under the last-mentioned thereupon executed by which the widow, the five nieces, section for a warrant authorizing entry upon the premises, by and the fourth baron assigned to trustees their respective force if necessary. But to obtain this warrant the justice must interests in the residue upon trust (so far as material) be satisfied that there is reasonable ground for the entry. In to pay during the life of the widow an annuity of £15,000 the recent case the vestry could only put forward as a reasonto the fourth baron during his life, and after the death able ground" the fact that several schools in the district had of the widow "to continue to pay the said annuity of been found to be in a defective sanitary condition. They were £15,000" to the person for the time being holding the title of unable to allege a single fact to raise suspicion that in this Baron WOLVERTON during his life. The annuity was paid to particular case there was any sort of nuisance, and, in the face the fourth baron until the death of the widow in 1894, and of a statement that a competent sanitary surveyor had certified upon her death succession duty was claimed by the Crown on the arrangements of the school to be perfect, the magistrate the value of the annuity which then began to be payable to failed to see any reasonable ground, and refused his warrant. him. Legacy duty at 3 per cent. had been paid (upon the death Although it is possible this decision may be overruled by the of the widow) upon the whole residue of the testator's estate. High Court, we submit that it is perfectly sound. The LegisBoth the Divisional Court (POLLOCK, B., and BRUCE, J.) and the lature could never have intended to give a local authority power Court of Appeal (Lord ESHER, M.R., and LOPES and RIGBY, to enter a private house against the will of the owner unless L JJ.) held that the annuity which commenced at the death of some reason existed for suspecting the existence of a state of the widow was not the same annuity as that which was payable things likely to injure the occupants of the house or the public in her lifetime, and also that the arrangement made by the deed in general. If a local authority possessed a power such as was was not a contract for valuable consideration in money or claimed by the St. Pancras Vestry, it might be used in a most money's worth within the meaning of section 17 of the Succes- oppressive and intolerable manner by the over-zealous officers sion Duty Act, 1853, and the House of Lords did not differ of some districts. from this view. But the Divisional Court appears to have regarded this as leading necessarily to the the conclusion that the fourth baron became entitled to the new annuity as successor, and that his succession was liable to the duty. The court seems to have left the other sections of the Act entirely out of consideration. Section 15 was considered by the Court of Appeal, and was held to be inapplicable to the facts of the case. That section enacts, in effect, that where, before the successor is entitled in possession, his succession becomes vested by alienation in any other person, then the duty in respect thereof shall be paid at the same rate and time as if no such alienation had been made or derivative title created. The arrangement under which the fourth baron was entitled to receive the annuity out of the residue which formed the succession of the five nieces was not, in the opinion of the Court of Appeal, an “alienation" to that extent of their succession within the section. They therefore thought that the new annuity was to be regarded as a new succession, and so liable to duty. This desires. view has not been generally approved of, and it has now received its quietus from the House of Lords. The new annuity was created by the five nieces, the successors, out of their own succession, and it is a new and a disturbing doctrine to hold that a successor can cause a new succession to be substituted for his own so as to make his alienee liable to pay duty over and above that which is already payable on the original succession. Section 15 seems exactly to fit the circumstances of the present case, with the result that, legacy duty having already been paid on the whole succession, the property is protected from any claim for succession duty by section 18.

THE CASE of The Glengyle is a striking example of the expedi tion which is possible in the trial of actions in our courts. In August last The Glengyle, while on a voyage from London to Japan, was run into and very seriously damaged when in the Straits of Gibraltar. By the prompt action of the salvage steamers Hermes and Newa, and the tugs Hercules and Nellie, The Glengyle was brought into Gibraltar Bay and saved from becoming a total loss. In October the salvors instituted this action for salvage, and on the 6th of December Mr. Justice BARNES awarded The Hermes and Newa £19,000 and the tugs £500. On the 16th of February the Court of Appeal upheld the judgment of the Admiralty Court; and on Tuesday last the House of Lords confirmed the decision of the Court of Appeal. From this it would seem that when litigants desire a speedy trial, the courts are in no wise backward in gratifying their

THE SELDEN Society is about to issue to the members, as volume xii. of its publications, "Select Pleas in the Court of Requests, A.D. 1487-1569." This book has been edited for the Society by Mr. I. S. LEADAM, and contains a careful introduction treating of the whole history of this Court, known as "the Court of Poore Men's Causes," from its establishment under Henry VII. to its disappearance under the Commonwealth and Restoration. The publication is of unusual interest, as the history of the Court has not before been fully investigated. This is the volume for 1898. Volume xiii., for 1899, on "Pleas of the Forest Eyre Rolls," by Mr. G. J. TURNER, is already in municipal records of Lincoln and Beverley, edited by Mr. the press. Volume xiv., for 1900, will be a selection of the early ARTHUR F. LEACH.

THE VESTRY of St. Pancras appear to claim the right of
entering upon any premises in order to inspect the sanitary
arrangements, even though nothing whatever is brought to
their knowledge to lead them to suspect the existence of a
nuisance. If such a right exists it is a very wide and arbitrary
power to be in the hands of any sanitary authority, and in
resisting the vestry's claim the North London Collegiate School
for Girls has this week raised a question of considerable im-
portance. Section 1 of the Public Health (London) Act, 1891,
puts upon the sanitary authority the duty of causing their
district to be inspected from time to time with a view to the
discovery of nuisances, and section 10 gives them the right to
enter any premises for the purpose of examining as to the
existence of a nuisance thereon. There is, however, no pro-
vision imposing a penalty upon an occupier who refuses ad-
mission to his premises, unless entry is claimed in order to carry
out an order of the justices, or is refused with the intention of
preventing the discovery of an offence under the Act, or the
refusal can be brought under one of these three heads, then by
refusal is declared by some other Act to be penal. If the
section 115 the person refusing is liable to a fine not exceeding the cost of prosecutions were largely borne by the public.

sum of £107,929 for the Supreme Court of Judicature and other legal
In the House of Commons, on the 8th inst., on the vote to complete the
departments in Ireland, Mr. Dillon instituted a comparison between the
cost of the judicial establishments in Ireland and those in England and
Scotland. The Supreme Court of Judicature and other legal departments
in Ireland cost £112,000 last year and £107,000 in the year now under
discussion, while in England the Supreme Court of Judicature, with, y
the lowest estimate, about twenty times the amount of business, cost only
£326,000 this year. The law charges in England, with a population of
28,000,000 and an enormous crush of business, were only £79,000, whild
in Ireland, with a population of only 4,500,000, the law charges and
criminal prosecutions cost no less a sum than £62,000. In addition to
that there was the Land Court, which cost £119,000, and for which there
was no analogy in this country. Then they had got the County Court
officers in Ireland, £113,000, whereas in England the sum was only

the expenses of criminal prosecutions in Ireland taken up by the Crown

England

pro

PROCEDURE IN ACTIONS ON BILLS OF EXCHANGE. THE report of the Special Committee of the Incorporated Law Society on Legal Procedure, which we printed last week (ante, p. 637), contains proposals as to actions on bills of exchange, which are stated, if we may presume to say so, with more regard to brevity than to clearness. The subject is an important one, and two distinct proposals for amendment of cedure are put forward in terms which leave us in some doubt as to what the committee actually desire. The main point is that as regards actions on bills of exchange order 14 is less effective than was the procedure under the Summary Procedure on Bills of Exchange Act, 1855, commonly called Keating's Act, but the words of the report leave us in some doubt as to whether the committee desire the revival of Keating's Act in High Court procedure, or an alteration of order 14. The passage of the report dealing with this point is as follows:

considerable confusion and inevitable friction.

make an affidavit supporting his claim, and to produce it on issuing his summons, and also to serve a copy of it with the summons. The whole procedure under order 14 rests upon this sworn testimony of the plaintiff that he has a good claim and the defendant has no defence. No order is made until both parties are brought face to face before the master (except, of course, where one fails to attend) and both sides are heard. It does not appear from the report that the committee realized the fundamental difference between procedure under Keating's Act and under order 14, or that the proposal to revive that Act in the High Court would involve considerable alterations in the rules. In the first place, the universal right of a defendant to enter appearance would have to be qualified by excepting actions falling within Keating's Act. In the second place, ord. 3, r. 6, as to special indorsement of the writ, would have to be amended by excluding claims within that Act, because order 14 is based upon the defendant's unfettered right to appear and upon the special indorsement of the writ; and order 14 could not, as we "The committee are of opinion that the process under the Sum-in actions on bills of exchange and promissory notes without have said, be made to operate concurrently with Keating's Act mary Procedure on Bills of Exchange Act, 1855, was advantageous, and that it has been unduly restricted under order 14. They suggest that in actions on bills of exchange and on certain written documents, and in other special cases to be prescribed, the plaintiff should be entitled to summary judgment unless the defendant obtains leave to defend. In the alternative, they suggest a rule to be made under order 14, by which the plaintiff in an action on a bill of exchange should be entitled immediately after appearance to issue and serve a summons under order 14, on the return of which, without other evidence in support than the production of the bill, he should be entitled to summary judgment unless the defendant shall be then prepared with an affidavit shewing substantial grounds of defence.'' We will assume that the first suggestion means the restoration of Keating's Act in High Court procedure. The report does not actually say this in words, but it can mean nothing less, because under the existing procedure a plaintiff is already entitled under order 14 to "summary judgment unless the defendant obtains leave to defend." What the report fails to make clear is that the "leave to defend" here referred to is the "leave to appear and defend " under section 2 of Keating's Act. Assuming this reading of the report to be correct, it may be well to point out that although Keating's Act is one of the original provisions out of which order 14 grew, there is a difference in principle between the two; and that it would be a very difficult thing to graft the principle of Keating's Act on to procedure under order 14. Nor could it be made part of procedure in the High Court without importing the safeguards provided by the Act. And, moreover, if this were done the rules of procedure regulating the right of the defendant to appear, and the special indorsement, and summary judgment under order 14 would have to be altered so as to entirely take out of their operation actions on bills of exchange. It would not be well to have two separate procedures based upon different principles at work concurrently with regard to a particular kind of action.

The principle of Keating's Act may be shortly summarized as follows: A dishonoured bill of exchange gives the holder a prima facie right to recover the amount summarily from the defendant, unless the latter can show cause to the contrary. The onus of proof therefore is thrown on the defendant. A holder of a bill of exchange is allowed to issue a writ in special form prescribed by the Act, which is indorsed with a copy of the bill or note sued on, and which warns the defendant that unless within twelve days he shews good cause why he should be allowed to enter an appearance, and having obtained leave duly enters such appearance, final judgment may be entered and execution issued against him. The application for leave to appear and defend was made ex parte (Day's Com. Law Proc. Acts, 4th ed., p. 385). The plaintiff had merely to issue and serve the writ, and on the expiration of the time for appearance to search for appearance, and if none entered, to sign judgment in default.

The principle of order 14 is entirely different. The right which every defendant has in every action to enter appearance remains unaffected by it. Order 14, in fact, does not commence to operate until appearance is entered, whereupon a plaintiff suing by specially-indorsed writ may apply for summary judgment. But the onus of proof rests upon him. He is bound to

In these circumstances the question arises whether procedure under Keating's Act is so much better than that under order 14 that it is worth while embarking on such a reconstruction of our rules of summary procedure as the revival of that Act would involve. If, as the committee say, defendants are able to delay plaintiffs suing on bills of exchange under order 14 where both parties are before the master at the same time, how much more probable is it that they would be able to cause delay in such cases when they would have the field entirely to themselves in applying ex parte under Keating's Act for leave to appear and defend. It is often a hard task now, we admit, for a master to tell what substance there is in a defendant's case set up under order 14, and yet he has both parties before him. This difficulty would surely be increased, instead of diminished, if he were compelled to judge only from the affidavit of the defendant. We must confess that, in the absence of some stronger reasons than those contained in the report, we greatly doubt the wisdom of substituting Keating's Act for procedure under order 14 in actions on bills of exchange. As regards the alternative proposal of the committee, it merely amounts to this: That in actions on bills of exchangea under order 14 the plaintiff should only be required to produce the bill, and not to make an affidavit swearing that the money was owing. We do not think that this is a sound suggestion either. Order 14 is based upon the plaintiff's sworn proof of the justice of his claim. Take this away from any part of it and the summary procedure it establishes would totter. We are by no means convinced that it would be desirable in all cases to give summary judgment to the holder of a bill of exchange upon the mere production of the bill, without having his sworn testimony that the defendant was truly and justly indebted to him for the amount claimed. Nor do we see that the mere exemption of the plaintiff in such actions from the necessity of verifying his claim would lessen delay. On the contrary, the only effect of doing so would, in our opinion, be to cause many more adjournments, which would be rendered necessary in order to allow time for the plaintiff to answer the defendant's affidavit. Moreover, under Keating's Act the court has special power to impound the bill of exchange sued on, and if the plaintiff in such an action were exempted from verifying his claim, a similar power would have to be added to those the court now possesses under order 14.

On the whole we think that in this portion of their report the committee have either said too much, or too little. It would, in our opinion, be advisable that the committee's suggestions should either go to the Rule Committee with fuller explanation, or not at all.

It is stated that a transfer of 110 Chancery witness actions is in course of preparation to Mr. Justice Byrne for trial, of which 50 are from the list of Mr. Justice North, 35 are from Mr. Justice Stirling, and 25 are from Mr. Justice Romer.

for Friday, the 29th inst., at the Inner Temple Hall. After the debate The "Ladies' Night" debate of the Hardwicke Society is announced the members of the society will hold their customary reception "to meet the Lord Chancellor and her Majesty's Judges,”

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