Clauses 55 and 56 relate to "fees, salaries, expenditure," but those being matters more political than practical, we do not presume to comment upon them. We have now arrived at a number of most important provisions which are contained in clauses 57 to 67, under the general head of 'Supplemental." The administration in bankruptcy of the estates of deceased persons is dealt with by clause 57, which is as follows: "Clause 57.-(1.) Where the estate of a deceased person is insufficient for the payment of his debts, he shall be deemed to have committed an act of bankruptcy at the time of his decease, and the court may, on the petition either of a creditor of his estate or of his legal personal representative, make an order in bankruptcy for the administration of his estate as if he had been adjudged bankrupt immediately before his death. "(2.) The petition must be presented within six months after the death, and if it is presented by a creditor, as such, the debt due to the creditcr must be a liquidated sum due and payable, and if he is a secured creditor the same rules shall apply as in the case of a living bankrupt. "(3.) If the petition is presented by any person other than the legal personal representative of the deceased, the legal personal representative may, if he thinks fit, appear and oppose the petition. 66 (4.) Where a debtor who has been adjudicated bankrupt dies before the close of the bankruptcy, the proceedings shall, without any special order, be continued notwithstanding the death. "(5.) Where proceedings are taken in the High Court of Justice for the administration of the estate of a deceased person, the judge before whom the proceedings are pending may, on the application of a creditor or of the legal personal representative of the deceased, and on proof to the satisfaction of the judge that the estate is not likely to be sufficient to pay its debts, transfer the proceedings to the judge exercising jurisdiction in bankruptcy, and thereupon, subject to prescribed rules, the court may make an order in bankruptcy for the administration of the estate as if the deceased person had been adjudged bankrupt immediately before his death." a certain time after it This introduces a new principle in bankruptcy law, but one which has been advocated in such influential quarters that it may be well to try the experiment. For our own part, we do not think that it can result in any greater dissatisfaction than the present costly proceedings for administration of insolvent estates of deceased persons. But as it is an experiment, we should prefer to limit the proposal for the present to the estates of insolvent deceased traders. This, we think, would meet all present demands, and would not be so liable to create hardship in trying the experiment. Several doubts, however, occur to us upon the clause as drawn, upon which we will remark under the different sub-clauses. Sub-clause 1.- How and when, we would ask, is it to be ascertained whether the estate of a deceased person is insolvent? In making the calculation is any provision to be made for costs? Or, if the estate shows just sufficient on paper to pay all the liabilities without costs of administration, is it to be deemed solvent or otherwise? These are points which might give rise to considerable litigation if not more specifically provided for. We suggest that it might properly be provided that an estate should be considered insolvent on the petition of any creditor whose debt should not have been paid within had become due, and within a certain time after his having demanded payment thereof in some prescribed manner from the legal personal representatives of the deceased. Then, what would be the effect of an order for administration in bankruptcy upon goods of another person in the order and disposition of the deceased at the date of his death, but taken out of such order and disposition immediately afterwards? Also with regard to fraudulent preferences made by the deccased to any of his creditors? And to when would the trustee's title relate back? Suppose an order for administration in bankruptcy were made six months after death, would it take effect as of the date thereof? or would it take effect as from "immediately before his death," so that the trustee's title might relate back to any act of bankruptcy committed within twelve months of the death? Again, we presume that a meeting of creditors would have to be held for the appointment of a trustee, &c. ; but the clause is silent as to this. It is obvious that all the provisions relating to an ordinary bankruptcy would not be applicable, such as, for instance, the public examination of the bankrupt and the statement of affairs to be filed by him. Some specific provision ought therefore to be made to meet such cases, and also for the purpose of requiring any person who may have intermeddled with the deceased's estate to render accounts in respect thereof. The clause, as drawn, is altogether silent on these points, and the whole subject has evidently not been properly thought out, or we think it would never have been presented in such a crude form. Sub-clause 2.-Having regard to our remarks upon the preceding subclause, and also having regard to sub-clause 5, we do not think any limit of time should be stated. Sub-clause appears only reasonable. Sub-clause 4.-Why should not this be extended to any case where a bankruptcy petition has been filed (upon a clear act of bankruptcy committed), even though an adjudication has not been made, first, however, requiring notice of the petition to be served upon the legal personal In representatives of the parties entitled to take out administration ? any event we would urge that there ought to be power to adjudicate upon a petition filed by a creditor before death on proof of the insolvency of the deceased, and the creditor should not in that case be compelled to file a fresh petition to enable him to proceed under subclause 1. Sub-clause 5.-No limit of time after death is provided by this subclause. This we think right, but it ought to be consistent with subclause 2. If the two sub-clauses are not made consistent, it will be possible to evade the operation of sub-clause 2, as to the six months' time, by first taking proceedings in the High Court for the administration of an estate, and then applying for an order under this sub-clause. Why should this additional expense be required to be incurred in order to effect the same result? REVIEWS. SALE OF GOODS. THE LAW RELATING TO THE SALE OF GOODS AND COMMERCIAL AGENCY. By But there Most readers would turn in a book of this sort to its treatment of the much-vexed 17th section of the Statute of Frauds, in order to obtain a test specimen of its quality. We accordingly turned to Part IV. (PP. 157-224), and were well satisfied with Mr. Campbell's arrangement and commentary. We cannot quite sympathize with those impulsive persons (although the late Lord Chief Justice is said to have lent to their opinion the weight of his authority) who think that the repeal en bloc of the Statute of Frauds would be a public benefit. is much significance in the fact that Mr. Campbell has found himself unable to treat the cases arising upon one of its sections in less than sixty-seven pages: a proof, if the tradition of its authorship is well grounded, that eminent judicial capacity is no test of a legislator. We think that these pages are a favourable specimen of the arrangement and elucidation of an obscure and perplexed body of decisions. The important subject of stoppage in transitu (pp. 333-375) seems to be very well treated. It is remarkable that this branch of the subject should have required fewer pages than the discussion of the section of the statute, though the difficulties of the former are inherent in its nature, while those of the latter are chiefly due to careless legislation: a warning which might carry a useful lesson even to these times. As an example of Mr. Campbell's freedom and acuteness, we will refer to his ingenious emendation (p. 349) of the obscure and very doubtful case of Vertue v. Jewel (4 Camp. 31). We observe that Mr. Campbell has not invariably been careful to carry his researches into the cases down to the very moment of publication. His preface is dated in last October; and though Crawcour v. Salter was not published in the Law Reports until November, its main features were reported in the "Cases of the Week" of the SOLICITORS' JOURNAL for May 14 last, p. 525. We do not much sympathize with the views which would turn the arguments of counsel into a mere catalogue of caseswell or ill digested, according to the talents of the speaker-to the exclu sion of broad principles. But we fear that readers of text-books are more deeply impressed by the completeness of the catalogue of cases than by any other merit. As regards Crawcour v. Salter, we think that it might have thrown further light upon some remarks made by our author, at p. 102, upon the exclusion of reputed ownership. THE CONVEYANCING ACT. THE CONVEYANCING AND LAW OF PROPERTY ACT, 1881, AND THE SOLICITORS' We have here a very compact and convenient edition of the Conveyancing Act, which, as regards size, type, and paper, leaves nothing to be INCORPORATED LAW SOCIETY'S CALENDAR. By Authority of the Council. We need not do more than note the appearance of this calendar, and suggest, for the consideration of the council, that in the local list of country members and the list of foreign correspondents, it would be a convenience if the names of the towns or places were printed in thicker type, and always placed on the right-hand side of the page. CORRESPONDENCE. desired. The convenience of the reader is consulted in the large type numbers to the sections and at the head of each margin, and there is a good index. Small as these matters may appear, they are of con- THE INCORPORATED LAW SOCIETY'S CALENDAR FOR THE YEAR, 1882. siderable importance to the practitioner who wants to get rapidly to a particular provision of the Act. As to the notes, we cannot speak in terms of unqualified commendation. They are sometimes useful and practical-as, for instance, the observation on section 3, sub-section (6), that no provision is made by that sub-section for expenses incurred in tracing or getting in the legal estate, or for questions respecting want or deficiency of stamps, or want of registration of deeds. In other cases the notes contain explanations of the law before the Act, which are often of value in showing the precise alterations effected. But we do not often find explanations of the numerous difficulties of the Act. The notes are too often mere summaries of the effect of the sections, which can only be of use to the hasty reader. There does not seem to be much advantage, for instance, in appending to section 14, sub-section (9)—which provides that "this section applies to leases made either before or after the commencement of this Act, and shall have effect notwithstanding any stipulation to the contrary". '-a note stating that" it will be noticed that this section is retrospective, and cannot be excluded by any stipulation to the contrary"; or in appending to section 31, sub-sections (7) and (8), a note that "it is important to notice that this section applies, unless a contrary intention is expressed, to trusts created either before or after the commencement of this Act." That is surely sufficiently plainly stated in the sub-sections themselves. Nor are the notes always accurate. For instance, on p. 87 we find it stated that "the attorney should exercise his powers in the name of his principal, and use and sign his principal's name instead of his own -an observation which seems to have been penned in forgetfulness of section 46, which provides that "the donee of a power of attorney may, if he thinks fit, execute or do any assurance, instrument, or thing in and with his own name and signature and his own seal, where sealing is required, by the authority of the donor of the power." And what does Mr. White mean by saying in the note at p. 125, that section 65, sub-section (5), "provides a means of disentailing the leaseholds"? We should rather have said that the object of the sub-section is to provide a means of entailing leaseholds by converting them into entailed freeholds. CHITTY'S STATUTES. THE STATUTES OF PRACTICAL UTILITY IN THE CIVIL AND CRIMINAL A considerable use of the last edition of Chitty's Statutes has fully confirmed the favourable opinion we expressed of that work on its appearance. We can say, with some confidence, that the convenience of such a work to the practising lawyer can hardly be over-estimated. The selection of statutes is judicious, and the notes are just sufficient, to put the reader on the right track for information. In the present supplement Mr. Lely has selected thirty-one out of the seventy-two public Acts passed last session, and has grouped them under their proper headings, appending explanatory notes. The value of such a commentary will be seen from the notes to the first, and apparently least noteworthy, Acts in the volume-the Statute Law Revision Act and the Expiring Laws Continuance Act. Points which might puzzle the reader in these Acts are carefully explained, and references given to the places in Chitty's Statutes where the repealed or continued enactments are to be found. So with the other Acts of the session, including the Conveyancing Act, which is extensively annotated. The result is to give to the lawyer who boys this volume an intelligent explanation of all the practical Acts passed during the session; and this, we imagine, is an advantage which will be extensively appreciated. A NOVEL LAW DIARY. BALLINGER'S LAW DIARY FOR BARRISTERS AND SOLICITORS, 1882. PART 1. JANUARY TO JUNE. Printed by Howard & Jones. The idea of this diary, which is stated be be entirely novel, seems to us to be excellent. In a work which will conveniently go into the coat pocket there is given a page for each day, which contains space, first of all, for summonses and appointments, as to which there are four columns -the first headed "Matter or cause," the second "Nature of summons or place of appointment" the third "Result," and the last “Time''; the various working hours of the day being here inserted. The solicitor who makes an appointment has, therefore, only to mark on the line of the hour the name of the matter and the place of appointment, and he has in his pocket a reminder of his engagements. Below this there is space for entering "general work"; below that again, space for noting letters to be written, and, finally, at the foot of the page there are three columns, headed Pleadings, containing space for "Papers to counsel," "Documents to be drawn," and "Last day to deliver or file." The advantage of having the whole day's work thus classified and noted on a single page of a pocket-book appears to us to be very great. THE REPEAL OF LORD CRANWORTH'S ACT. [To the Editor of the Solicitors' Journal.] Sir,-You gave some countenance in your last issue to the remark in Clerke and Brett's Commentary on the Conveyancing Act, to the effect that it does not seem possible by any construction of the section, however liberal, to continue the operation of Lord Cranworth's Act in favour of instruments from which provisions have been omitted in reliance upon the powers conferred by that Act, beyond the date of its repeal. I dissent from this view and venture to say a word or two against it. Lord Cranworth's Act, as its title imports, gives to trustees, mortgagees, and others certain powers, and its provisions, speaking generally, are to extend only to persons entitled or acting under instruments executed after its passing. 66 The question in controversy is the meaning of the saving out of the repealing section of the Conveyancing Act of "any operation, effect, or consequence" of any instrument executed before the repeal takes effect. It is not necessary to deny that the application to any instrument of the powers conferred by Lord Cranworth's Act, or the exercise of any of those powers, is, in a sense, a consequence of that Act; but the powers are a dead letter until attracted by the existence of an instrument to which they apply, and they are then part of the statute law governing that instrument. Surely the terms "operation," effect," and 'consequence of any instrument properly describe the operation, effect, and consequence arising from such instrument as it is affected, not only by rules of law and equity, but also by statute law. Therefore these terms must be fully sufficient to save the powers of Lord Cranworth's Act in the case of any instrument to which it applied. Temple, Jan. 16. A. J. WOOD. [No doubt "the terms operation,'' effect,' and 'consequence' of any instrument properly describe the operation, effect, and consequence arising from such instrument as it is affected, not only by rules of law and equity, but also by statute law," so long as such statute law remains in existence. But the question is about what happens when the statute law is repealed, and here we are unable to follow our corre spondent's argument, which, if it is good for anything, seems to supersede the need ever to insert any saving clause at all. Does our correspondent think that, when any of the "rules of law and equity" are repealed (as, for example, the rules of equity relating to the consolidation of mortgages), they will continue, without the aid of a saving clause, to govern the construction of instruments executed before the repeal? And if not, nothing is gained by what appears to be our correspondent's contention, that statute law is entitled to the same privileges in this respect as "rules of law and equity." We thought that the courts would probably contrive to wriggle out of the difficulty by some such loophole as that suggested by our correspondent; but we retain our opinion that they ought not to have been (quite needlessly) forced to perform such a painful and undignified feat.-ED. S. J.] WHAT SHOULD BE THE FORM OF MORTGAGE? [To the Editor of the Solicitors' Journal.] Sir, I am aware that you express an opinion very prevalent among solicitors, when you say that the power of leasing given by section 18 of the Act should be always expressly excluded. I venture respectfully to contest this view. A power to lease for twenty-one years at a rack-rent is one which a mortgagor may often have occasion to exercise in the prudent management of the property, and it seems to me that he ought not to be deprived of so useful a power, except when the nature of the property or other circumstances makes it probable, in the opinion of the mortgagor's advisers, that a lease granted under it would materially diminish the value of the security, which I apprehend would not, as a general rule, be the case. As regards the power to grant building leases, it is not worth while to negative it where the property is not suited for building purposes, and where it is, the question whether the power is to be retained, or excluded, or varied, will always be a matter of special arrangement. Lincoln's-inn, Jan. 14. JOHN WHITCOMBE. [Our correspondent seems to misapprehend the grounds upon which : CATTLE LEVANT AND COUCHANT. [To the Editor of the Solicitors' Journal.] Sir, I think that the judgment delivered by Mr. Justice Willes in the case of Carr v. Lambert (L. R. 1 Ex. 168), mentioned by your correspondent Lex," as establishing that the cattle "need not have eaten any of the produce of land drawing common," also explains the meaning of the expression levant and couchant, and implies that they need not have slept on the premises. The late Mr. Joshua Williams, after giving an account of the case, says, using some of the words of the judgment :"It appears, therefore, that levancy and couchancy is rather the measure of the capacity of the land, than a condition to be actually and literally complied with by the actual lying down and getting up of the cattle. There can, however, be no right of common in respect of a house which has no homestead connected with it in which cattle may be housed" (Williams on Common and other Prescriptive Rights, p. 35); and on p. 31 he says, "It denotes the number of animals which the land, to which the right of common belongs, can maintain by its winter eatage or produce—that is, during the season in which, the grass not growing, the right of common is of no benefit to the cattle." 2, Old Buildings, Lincoln's-inn, January 14. W. C. MAUDE. CASES OF THE WEEK. we objected to the retention of section 18-viz., that its terms are vague and of dangerous import. We did not object altogether to giving a proper power of leasing to the mortgagor, though we conceive that this should be done only under special circumstances. If the mortgagee has such a power of leasing as the circumstances require, we are unable to LIQUIDATION PROCEEDINGS PARTNERS TRANSFER TO ANOTHER COURT see how the absence of such a power in the mortgagor could injure the -RESOLUTIONS OF JOINT AND SEPARATE CREDITORS-BANKRUPTCY RULES, security. And we think that a power for the mortgagor to grant build-1870, RR. 285, 288.-In a case of Ex parte Horrocks, before the Court of ing leases at a peppercorn rent for the first five years is one which would Appeal on the 12th inst., a question of some importance in practice arose as to require very special circumstances indeed to justify its insertion. We the power of creditors to direct that the proceedings under a liquidation peticannot help looking with doubt and suspicion upon what seems to be tion filed by partners shall be transferred from the court in which they were originated to another court. Rule 285 of 1870 provides that "in cases the drift of our correspondent's last sentence-viz., that it is not of proceedings for liquidation by arrangement or composition instituted by worth while to exclude a dangerous power unless, at the time of the partners, separate meetings of the different classes of creditors shall be held; making of the security, there appears to be a probability of its abuse. thus, if the partnership consists of A., B., and C., a meeting of the joint crediED. S. J.] tors of A., B., and C. shall be first held, and separate meetings of the separate creditors of A., B., and C. shall be held at a date or time subsequent to the meeting of the partnership creditors. The joint creditors may come to such resolution as they may think fit with regard to the joint estate. The separate creditors may also come to such resolution as they may think fit as regards the liquidation of the estate of their individual debtor, but, in the event of their determining upon his bankruptcy, or the liquidation of his estate by arrangement, they shall choose the same trustee, if any, as has been or shall be appointed by the joint or partnership creditors, but they may appoint a committee of inspection from their own body, if they think fit, or they may adopt the committee, if any, appointed by the joint or partnership creditors." And, by rule 288, "the creditors assembled at any general meeting may include in their resolution a direction that the proceedings be transferred to any court other than that in which the same were originated; and, upon any such resolution being filed, the proceedings shall be forth with transferred in accordance therewith; and the court to which the same shall have been transferred shall hereafter act in the matter of the proceedings in like manner as if the same had been properly instituted therein in the first instance." In Ex parte Horrocks a liquidation petition was filed in a county court by two partners, and a liquidation by arrangement was resolved on at a meeting of the joint creditors, and a trustee was appointed. On the next day meetings of the separate creditors of each partner were held, and resolutions to the same effect were passed, the same trustee being appointed. Some time afterwards a meeting of the joint creditors was held, and a special resolution was passed directing that the proceedings under the petition should be transferred to another county court, but no meetings of the separate creditors were summoned to consider the propriety of the transfer. The registrar of the county court held that it was necessary that separate resolutions should be passed at distinct meetings of the separate creditors, approving of the transfer, and as this had not been done, he refused to file the resolution or to make the transfer. His decision was affirmed by the judge of the county court, and afterwards by the Chief Judge, and the Court of Appeal (JESSEL, M.R., and BRETT and LINDLEY, L.JJ.) adopted the same view. It was urged that, according to the settled practice in bankruptcy, separate creditors as such had no voice in any of the proceedings under the joint adjudication, except as to the granting of a discharge to the bankrupt, and that in a bankruptcy of partners the joint creditors would have the power of determining (without the intervention of the separate creditors) whether the proceedings should be transferred to another court. And it was said that the provisions of rule 285 apply only to the first meetings of the creditors, and are intended to give the separate creditors an independent voice only on the question how the separate estates shall be liquidated. JESSEL, M.R., said that it was clear that the rules in bankruptcy did not apply to proceedings under a liquidation by arrangement in all cases. The rules were not easy to construe, but this might not be the fault of the draftsman. Cases would arise which were not foreseen, and therefore, not provided for; not from any lack of power of expression or want of knowledge on the part of the draftsman, but from a want of the power of prevision. The question was whether the transfer could be made without the consent of the separate creditors. Rule 285 was worded generally. It said that "in cases of proceedings for liquidation by arrangement or composition instituted by partners, meetings of the different classes of creditors shall be held," and it went on to explain that a meeting of the joint creditors should be first held, and afterwards separate meetings of the separate creditors of each partner. His lordship could find nothing in the rule to cut down the meaning of these words, which were quite general, and, that being so, they meant that, in all cases in which meetings of creditors were to be held under proceedings for liquidation instituted by partners, separate meetings of the joint and separate creditors should be held. Would this construction lead to any difficulty upon rule 288 ? There was, no doubt, this difficulty: if the rule was read literally, then, if the proceedings were instituted by two partner, there would be three me e-tings of the joint creditors and of the separate creditors of each partner-and resolutions might be passed transferring the proceedings as to the three estates to three different courts. But his lordship thought the true meaning of the rule was that the whole of the proceedings should be trans. ferred to one and the same court. They could not, therefore, be removed at all unless all the three meetings decided on the removal. All three must concur in the removal, for otherwise the whole of the proceedings could not be removed. This construction appeared fairly to carry out the meaning of the rules. It could not be known à priori whether the joint or the separate creditors would be the larger in amount, and it was a fair thing to say that all should concur in the removal. The practice in bankruptcy had grown up under a very different system, and it was manifestly not intended to govern liquidation proceedings. BRETT, L.J., concurred. LINDLEY, L.J., said that rule 288 was worded so as to apply only to the case of a single debtor petitioning, but it must be read as applying also to partners. And he could see no other way of making it workable but by adopting the construction suggested by the Master of the Rolls, which involved no undue THE CONVEYANCING ACT, 1881. [To the Editor of the Solicitors' Journal.] Sir,-Looking at section 40 of this Act, which enables a married woman to execute a power of attorney as if she were unmarried, could an attorney, thus appointed, execute leases or conveyances of property vested in a married woman in trust for sale, and which the married woman had agreed to sell, and by this means avoid the necessity for an acknowledgment of every such deed by the married woman trustee? If so, a useless formality, involving much expense, may be put an end to. INQUIRER. Preston, Jan. 10. [We apprehend that the attorney could not do any act which could not have been done by his principal. It is to be observed that the original draft of the Act contemplated the abolition of acknowledgments by married women, which fact may perhaps explain the existence of the doubt expressed by our correspondent.-ED. S. J.] On Wednesday, at the meeting of the Faculty of Advocates, the election of a dean, in the room of Mr. Kinnear, recently elevated to the bench, took place. There were three candidates-Mr. J. H. A. M'Donald, Q.C., sheriff of Perthshire, ex-Solicitor-General for Scotland; Mr. John Traynor, sheriff of Forfar; and Mr. William Mackintosh, procurator of the Church of Scotland and interim sheriff of Ross and Cromarty. On a division there voted for Mr. M'Donald, 96; for Mr. Mackintosh, 42; for Mr. Traynor, 30. At the Manchester Assizes on Tuesday, before Lord Coleridge, Charles Vine, on bail, a boy aged 10, was charged with setting fire to a stack of hay and straw, the property of Isaac Wright. The prisoner had confessed that he had set fire to the stack with some matches out of a box which he had picked up, and having done so, he had run away home as fast as he could. There was no evidence of any express malice on the part of the prisoner, nor any evidence as to his antecedents or general conduct one way or the other. At the close of the case for the prosecution, Mr. Mathews submitted that there was no case to go to the jury, the prisoner being only ten years old, and no evidence having been given that the boy was of a mischievous disposition. He cited the following passage from "Archbold's Criminal Pleading," 19th edition, 1878, page 17 :-"Between the age of seven and fourteen years an infant shall be deemed prima facie to be doli incapax, but malitia supplet ætatem, and this presumption may be rebutted by strong and pregnant evidence of a mischievous discretion.' There was no formal proof of the prisoner's age, but it is stated by the Times' reporter that from his appearance in the dock there is no doubt that in all probability his age was that stated in the "calendar"-namely, ten years. The Lord Chief Justice said that he considered that the passage cited applied to this case, and, having consulted Mr. Justice Bowen, who was of the same opinion, directed a verdict of Not Guilty to be returned, and the boy was discharged. straining of the words.-SOLICITORS, Phelps, Sidgwick, & Biddle; Pitman death in 1880, living in England, and this was known to the beneficiaries. & Son. an BANKRUPTCY-REPUTED OWNERSHIP-ORDER AND DISPOSITION-CONSENT OF TRUE OWNER-TRUST PROPERTY-BANKRUPCY ACT, 1869, s. 15.-In a case of Er parte Maston, before the Court of Appeal on the 12th inst., the question arose whether some stock-in-trade which had belonged to intestate was to be treated as divisible among the creditors of a bankrupt, who had, after the death of the intestate, carried on his business as agent for his administratrix, on the ground that the goods in question had, with the consent of the true owner, been in the order and disposition of the bankrupt as reputed owner. The court (JESSEL, M.R., and BRETT and LINDLEY, L.JJ.) came to the conclusion on the evidence that, as a matter of fact, no such consent had ever been given by the administratrix, and it became unnecessary to decide the question of law whether her consent, if it had been given, would have been sufficient. But JESSEL, M.R., said that, without giving a final opinion, he was disposed to think that by the "true owner was meant the beneficial owner, and that, whether it was or necessary that in the case of trust property the consent of both the legal and beneficial owners should be given, it was, at any rate, essential that the consent of the beneficial owner should be given. The consent of a bare trustee could not deprive the beneficial owner of his property.-SOLICITORS, Pitman & Son; G. L. P. Eyre & Co. WISHES OF CONTRIBUTORIES was not COMPANY WINDING UP FAILURE OF OBJECTS OF COMPANY.-In a case of In re The Haven Gold Mining Company, before the Court of Appeal on the 14th inst., the question arose whether an order ought to be made to wind up a company on the petition of some shareholders, though the large majority of the shareholders desired that the company should go on. The company was formed for the purpose of working for gold in some land in New Zealand, in which the company were supposed to have acquired mining rights. The company was formed in 1880, and soon after the formation it was discovered that there was a difficulty about the title to the property, and in May, 1881, information was received from New Zealand that the land was in the possession of, and was being worked by, a person who claimed it under a title prior in date to that of the person through whom the company claimed, and whose title had been registered before the registration of the title of the company's predecessor. This information was confirmed in September, 1881, and the directors then summoned a meeting of the shareholders, and advised them that it was hopeless to attempt to proceed with the undertaking, and that the company ought to be wound up voluntarily. The great majority of the shareholders, however, wished to go on, and resolved to send out an agent to New Zealand to endeavour to obtain an extension of the supposed mining rights, the original grant of which to the company's predecessor would soon expire. Under these circumstances, Bacon, V.C., refused to make a winding-up order on the petition of some shareholders. The Court of Appeal (JESSEL, M.R., and BRETT and LANDLEY, L.JJ.) held that the company ought to be wound up. JESSEL, M.R., said that it must be taken to have been proved that no title could be shown to the property. Could then the majority of the shareholders bind the minority to go on with the speculation because they chose to assume that there was some small chance of ultimate success? Could it be said that there was any reasonable prospect of ever acquiring the supposed property? No doubt the court would have regard to the wishes of the shareholders. But when the whole sub-stratum of the company had no existence, and it was clear that it could never carry on business, the minority had a right to have it wound up. BRETT, L.J., said that, the company not being insolvent, and the majority of the shareholders desiring to go on, the court would not interfere unless there was a total absence of the subject matter which the company was formed to work, and no reasonable prospect of their obtaining such a property. He thought that this was so in the present case, and that the opinion of the majority of the shareholders that there was a chance of success, was unfounded, and ought not to bind the minority. -SOLICITORS, Beall; Harrison; Preston & Co. TRUSTEE AND CESTUI QUE TRUST BREACH OF TRUST-STATUTE OF LIMITATIONS-STALE DEMAND.-In a case of Harston v. Tenison, before the Court of Appeal on the 16th inst., the question arose whether the right to recover from a trustee the amount of the loss occasioned by a breach of trust bad been barred by the Statute of Limitations, or whether, at any rate, the cestuis que trust had lost their remedy by delay and acquiescence. By the will of a testator who died in 1836 his son and his daughter were appointed trustees and executors. The son afterwards, with the assent of the daughter, received the proceeds of sale of some stock which formed part of the estate, and applied the money to his own use. In 1856 new trustees were appointed in place of the son and the daughter. In 1858 some of the beneficiaries instituted a suit in the Court of Chancery, against the old and the new trustees, for the execution of the trusts of the will, and in 1859 a decree for their execution was made, and inquiries as to breaches of trust were directed. In 1560 the chief clerk found the amount of the loss which had been occasioned by the breach of trust, and an order was made that the daughter should, within six months, transfer into court the amount of the stock the proceeds of which had been misapplied. She failed to obey this order, and process of contempt was issued against her, but she avoided it by going abroad, where she remained until 1870. No sequestration was issued against her. On the farther consideration of the suit in 1863, an order was made that her interest under the will (a life interest) should be impounded and applied in making good pro tanto the breach of trust. No personal order was, however, made against her for payment of the amount of the defalcation, either on this occasion or on the subsequent further consideration of the cause in 1866, nor were any further steps taken against her, though she was, from 1870 until her After her death an action was brought by the survivor of the two new trustees against her executors, claiming, as a creditor in respect of the breach of trust, the administration of her estate on behalf of himself and her other creditors. It was objected by the defendants that the plaintiff was not entitled to suo, at any rate without making some of the cestuis que trust under the father's will parties to the action; that the breach of trust had, by virtue of the orders made in the former suit, been converted into a judgment debt, and that the plaintiff's remedy was barred by the Statute of Limitations; and that, at any rate, the demand was one which a court of equity would consider stale, and that the cestuis que trust had lost their rights by luches and acquiescence. Fry, J., dismissed the action, on the ground that it was an attempt to enforce a stale demand, and that the cestuis que trust must, under the circumstances, be taken to have elected to abandon their personal remedies against the daughter, and to be content with impounding her interest under the will. This BAGGALLAY, L.J., and Sir JAMES HANNEN). BAGGALLAY, L.J., who decision was reversed by the Court of Appeal (Lord COLERIDGE, C.J., delivered the judgment of the court, said that the case of May v. Selby (1 Y. & C. Ch. 235) showed that the plaintiff was the proper person to sue. Also it was the recognized doctrine of equity that, as between a trustee and his cestui que trust, no time would operate as a bar to the equitable claim of the latter in respect of a breach of an express trust, and section 25 (sub-section 2) of the Judicature Act of 1873 contained a statutory declaration of this rule. Nor did their lordships think that ther were any substantial grounds for making the presumption which Fry, J., had made. It was a well-established rule that a cestui que trust who, knowing that his trustee bad committed a breach of trust, obtained from him a part only of that to which he was entitled, did not thereby waive his right to such further relief as he might be able to obtain, unless there was something in the surrounding circumstances from which an intention so to do could be clearly inferred. Their lordships thought that no such inference could be drawn from the conduct of the cestuis que trust in the present case. It was not suggested that, at the time when the order on further consideration was made, the daughter had any property in this country, other than her interest in the trust estate, which could be made available to satisfy what she might be ordered to pay. The cestuis que trust got what they could out of the wreck by impounding her interest, and there was nothing in their conduct to suggest that they intended to waive any rights which they might have against her or her estate should she again come within the jurisdiction of the court, or become possessed of property which might be made available for the order on further consideration, give rise to any such inference. It was not satisfaction of their demand. Nor did their conduct, subsequently to the suggested that after her return to England in 1870 she was, to the knowledge of any of the cestuis que trust, possessed of any property which could be made available to satisfy their claims. To have taken proceedings would, in all probability, have led to further expense and loss. Moreover, at the time when the present action was commenced, some of the persons interested in the trust estate were still infants, and by no act of their own could those infants be debarred of their rights. But it was said that the claim of a cestui que trust could be barred by lapse of This point did not appear to have been brought to the attention of Fry, J. time operating against his trustee, and in support of this proposition the case of Hovenden v. Lord Annesley (2 Sch. & Lef. 607) was relied on. Redesdale, however, was there dealing, not with a case between a cestui que trust and his trustee in respect of a breach of an express trust committed by whom it was proposed to treat as a constructive trustee by reason of dealings the trustee, but with a case between a cestui que trust and a third person, between himself and the express trustee. Nor was there anything in the conwould have amounted to acquiescence or laches on his part sufficient to debar duct of the present plaintiff which, had he been a beneficiary under the will, him from enforcing any claim which he might otherwise have had against the daughter's estate. Under the circumstances, he was not bound to institute proceedings against her at the risk of having himself to bear the costs of them. The usual administration order must, therefore, be made, and both parties would have their costs of the appeal as costs in the action.-SOLICITORS, Jackson & Wright; Bolton, Robbins, & Busk. Lord SLANDER OF TITLE-NEWSPAPER REPORT - INACCURACY- MALICESPECIAL DAMAGE INJUNCTION.-In a case of McGill v. Collingridge, before Manisty, J. (sitting for Kay, J.), on the 17th inst., a question arose as to whether the plaintiffs were entitled to relief under the following circumstances :The defendants were the proprietors and publishers of a newspaper, and the plaintiffs were respectively the owner and licensee of a patent. The plaintiffs, in November, 1880, discovered that certain persons were selling an American invention, alleged to be an infringement of their patent, and they commenced three actions to restrain the piracy. On the 17th of December, 1880, motions were made in all three actions to restrain the infringement until the trial, and in two of the actions orders by consent were made, granting injunctions until the trial, and in the third the motion was directed to stand over, the defendant in the meantime undertaking to keep an account. On the 18th of December, 1880, the defendants published what purported to be a report of two of the motions, and in it they stated, amongst other things, that the Master of the Rolls had said that he did not see there was any patent in the plaintiffs' invention, as he had seen plenty similar articles on many occasions. This statement, and others in the report, were admittedly inaccurate, and the plaintiffs, on discovering the fact of the insertion, wrote to the defendants, requiring them to insert an amended report, with an editorial comment, showing how the mistake had arisen. The defendants did subsequently insert an amended report with a short editorial, but the plaintiffs, not considering the defendants had complied with their requirements, commenced this action to restrain the defendants from printing or publishing any further copies of their issue of the 18th of December, 1880, and for damages. The defendants had broken up their type of that issue, and stated in their defence that they only had a few copies in their possession for reference and not for sale. They also stated in their defence that the report was received from their ordinary reporter, and that it was inserted bond fide and without malice. The plaintiffs alleged generally in their statement of claim that the sales of their patented article had fallen off after the report, and adduced evidence in support of such statement. MANISTY, J., in reference to the injunction asked for, was of opinion, as the defendants had broken up their type and did not intend to sell any further copies of the inaccurate report, that no such injunction was necessary, and that the same ought not to be granted. He considered that the action was in effect one for slander of title, and that the gist of such an action was the allegation and proof of special damage. He did not think that the general statement of damage in the statement of claim, on the authority of the case of Malachy v. Soper (3 Bing. N. C. 371), was sufficient to support the action, and that on that ground the plaintiffs could not succeed. But even if such allegations were sufficient, the plaintiffs had failed to prove that their sales had fallen off in consequence of the untrue report of the defendants. The importation of the American machines no doubt had caused this, and he could not put it down to the defendants' paper. The plaintiffs' case, therefore, failed, and the action must be dismissed, but as the defendants had acted negligently in inserting such a report, it would be dismissed without costs.-SOLICITORS, E. W. Owles; De Jersey, Micklem, & Co. The con CONTRACT-BREACH OF STIPULATIONS-PROVISION FOR FORFEITURE OF SPECIFIED SUM-LIQUIDATED DAMAGES OR PENALTY.-In a case of Wallis v. Smith, before Fry, J., on the 14th inst., the question arose whether a sum which was to be forfeited by one of the parties to a contract as liquidated damages, on his failing to perform the provisions therein contained, was to be taken to be only a penalty against which the court would relieve. tract was entered into in August, 1879, between Wallis, the owner of some land in the neighbourhood of London, and Smith, a civil engineer. The agreement stated that there was on the land a large deposit of clay suitable for the manufacture of bricks, tiles, and terra-cotta ware, and that the land was suitable for the erection of villas, and that, for the purpose of developing the estate, it had been agreed between the parties as thereinafter stated. And it was provided that Wallis was to sell the estate to Smith at the price of £70,000, and that Smith was to provide the necessary capital, not exceeding £70,000, for the purpose of laying out and making the necessary roads and drains for the estate and to erect houses thereon. If necessary, two contracts between the parties were to be prepared, one for the sale of the estate, and the other providing that Smith should, on account of Wallis, construct the roads and manufacture on the estate bricks, &c., and generally do all works necessary, at a price to be paid by Wallis to him as thereinafter mentioned. The two contracts were to be read as between the parties as one. Wallis was to give Smith possession of such portions of the land as might be necessary for the works, from time to time as the land was covered with houses or laid out for building purposes or roads, and, in consideration of this, Smith was to provide £70,000 for the purpose of executing the works, when and as the same might be required, so that the works should be prosecuted forthwith with due diligence. A deposit of £5,000 on the purchase-money of the estate was to be paid by Smith, £500 of it on the execution of the contract, and the balance within seven months; the money when paid to be placed on a deposit account in a bank in the joint names of Wallis and Smith. On the execution of the contract and on payment of the £500, Wallis was to give Smith possession of such portions of the land as might be necessary for carrying out the contract, and Smith was at once to proceed with the works, which were to be finished within ten years from the date of the contract. If the works were not then completed, such portions of the estate as might be unsold were to be sold by auction, and the proceeds of sale, after paying what might be due to Smith in respect of moneys expended on the works, were to be applied in paying the balance of the purchase-money of £70,000, and the ultimate balance was to be divided equally between Smith and Wallis. So soon as Smith should have spent £5,000 on the works, he was to be entitled to receive back the deposit lodged in the bank. The £70,000 was to be continued by him in the works until they were all finished. After the deposit of the £500, the title of Wallis to the estate was to be investigated, and, if he was unable to produce a good title, Smith was to be entitled to receive back the deposit of £500, and, in addition, Wallis was to pay him £5,000 as liquidated damages. The proceeds of the sale of the bricks, &c., and of the sale of ground-rents, houses, or land, and all moneys received under leases, were to be applied from time to time in repaying the capital expended by Smith in excess of £5,000, the intention being that the £5,000 expended on the estate was to be treated as in substitution for the £5,000 deposit, and the balance was to be applied in payment of the purchase-money of £70,000, and, after these payments had been made, the proceeds were to be divided equally between Wallis and Smith. There was to be, in any event, no personal liability on the part of Smith to pay Wallis any part of the purchase-money of £70,000, and personal liability on the part of Wallis to repay Smith any advances made by him, but they were respectively to look only to the said proceeds for pay. ment and repayment. Smith was to give the whole of his time and personal attention to the works. Nothing in the agreement was to be held to constitute a partnership between the parties. There were various other subsidiary stipulations. It was then provided, by clause 25, that, if Smith should commit a substantial breach of the agreement, either in not proceeding forthwith with all due diligence to carry out and complete the several works contemplated, or in failing to perform any of the provisions therein contained, then, and in either of these events, the deposit of £5,000, whether expended upon the estate or not, was to be forfeited, and, if the balance of such deposit had not been paid, then Smith should forfeit and pay a sum equal to the balance, the intention being that, if default was made by Smith as aforesaid, he should forfeit and pay to Wallis, as and by way of liquidated damages, the sum of £5,000, and no the agreement was to be void and of no effect (but in estimating the £5,000, credit was to be given for all moneys expended by Smith upon the works), and Wallis should not be called upon to pay or give any compensation or satisfaction for any moneys expended by Smith in pursuance of the agreement, the object and intention being that Wallis, upon such events happening, should have, and if necessary retake, possession of the estate, with all buildings and works erected thereon, discharged from the agreement, without any interference on the part of Smith, but such breach was not to be the consequence of a misconstruction of the language or meaning of any of the provisions of the agreement. It was lastly provided, by clause 26, that if Wallis should fail to fulfil any of the conditions or stipulations on his part, or should in any way hinder Smith in the performance by him of the stipulations, or interfere with the exercise of any discretion thereby reserved to Smith, or do any at prejudicial to the carrying out of the agreement in the manner most profitable to the parties, then Smith should be entitled to take possession of the whole of the estate as owner in fee simple, without any farther payment on account of purchase-money, and should receive from Wallis a conveyance thereof, and Wallis should have no further interest therein, or in the agreement, or any of the works, but the same should belong absolutely to Smith. Immediately after the execution of this agreement, another agreement was executed by the parties for the sale of the estate to Smith, but the second agreement contemplated, with regard to the proposed works, was never executed. No part of the deposit of £5,000 was ever paid by Smith. He failed to perform the agree ment in any respect, and refused to do so, and he never expended anything upon works under it. In December, 1879, Wallis commenced the action, alleging that he had sustained damage in excess of £5,000 by reason of the defendant's default, and claiming an order that the defendant should pay £500 that the £5,000 was really in the nature of a penalty, though it was called in by way of liquidated damages. On behalf of the defendant it was contended the agreement liquidated damages. FRY, J., declined to adopt this view. He said that the short effect of the agreement was, that Wallis was to put into the common enterprize the land, which was to be deemed to be of the value of £70,000, and Smith was to bring in working capital to the extent, if necessary, of £70,000, the whole of which was ultimately to be repaid, except £5,000, which he was to sink in the estate. Then clause 25 provided that the breach of the contract, upon which the forfeiture of the £5,000 was to take place, must be a substantial breach; it must go to the substance of the contract. In the next place, it must be what might be described as a wilful breach. In the next place, the effect of the clause was that, if more than £5,000 had been expended by Smith on the estate, the estate would revest in Wallis, discharged from any right of repayment in Smith. To that extent the clause had very little operation, for, if Smith had expended a sum of money on the land, and had then declined to go on with his contract, the land would, in the absence of any such clause, belong to Wallis, and Smith would lose his money. It had would have a lien on the been, indeed, suggested that Smith land for the money which he had expended, but, on principle, his lordship thought that a man who had broken his contract could not have any such right. If anything short of £5,000 had been expended by Smith, he was to pay the difference to Wallis. The agreement evidently contemplated the deposit as the primary fund to pay the £5,000. And it must be observed that £5,000 was also the sum which Wallis was to pay to Smith, in the event of his not showing a title to the land, and it was also the sum which Smith was to sink in the land in the event of the agreement that the parties meant that, if Smith prevented Wallis from getting the benebeing carried out. His lordship could not come to any other conclusion than fit of the agreement, he should either leave the £5,000 in the land, or pay Wallis the difference between it and the money which he had expended. This ties contrary to this conclusion? The question whether a sum of money was conclusion was strengthened by clause 26. Was there anything in the authori a penalty or liquidated damages was one of construction. That was the pri mary rule, and there were other subordinate ones. It was clear that the use that, if under the agreement a number of things of different importance were of the words "liquidated damages was not conclusive. It was also clear to be done, and one large sum was mentioned as to be paid on default in the doing of any of them, the court would, if it could, construe it as a penalty, and not as liquidated damages. But in the present case the clause applie only to a breach which was at once wilful and substantial, and such a breach applied to one act only. There were other cases which showed that, when a must always be of importance to the parties. The clause, therefore, really sum was already in the hands of a stakeholder which was to be applied in payment of the liquidated damage in the event of a breach of the agreement, the court would hold that it was to be paid as damages and was not a pensly. When a sum of money was set apart to meet a contingency, it was diffi cult to say that the stakeholder was not, on the happening of the contingency, bearing on the present case. to hand it over at once to the party entitled to it. Those cases had a strong the words "liquidated damages," his lordship thought the primary object of Even, therefore, if no effect was to be given to the parties was that the £5,000 should be paid by Smith on the happening of the events mentioned in clause 25. The plaintiff was, therefore, entitled to judgment for the £5,000.—SOLICITORS, Russell, Son, & Scott: G. H. Terrell. CASES BEFORE THE BANKRUPTCY REGISTRARS. W. presented a petition for liquidation, but no application was made for any injunction to restrain actions. Subsequently to the presentation of the petition, and before the first meeting, G., a judgment creditor of W., obtained a commitment order against W. for payment of the amount due to him, or for his commit |