case. TO THIS YEAR'S BANKRUPTCY BILL. I. THE approaching re-introduction of Mr. Chamberlain's Bill makes it desirable to call attention to a number of points which, in our opinion, ought to be provided for in any amendment of the law of bankruptcy Government Bankruptcy Bill of last session, and we may also make a few at the present time, but which were not touched upon in any way in the suggestions, additional to those which have appeared in our columns, upon one or two of the provisions of that Bill. We will deal first with the question of deeds of assignment by traders of all their estate and effects for the general benefit of their creditors. The present law on this point is not proposed to be altered by the Bill which, by clause 5, sub-clause (a.), provides that it shall constitute an act of bankruptcy if "the debtor has in England, or elsewhere, made a conveyance or assignment of his property to a trustee or trustees for the benefit of his creditors generally." This act of bankruptcy is one upon which a bankruptcy petition can be presented within six months, and to which a trustee's title would relate back, if committed within twelve months before adjudication. We think it would be well to consider a little of the history of deeds of assignment in connection with this provision, going as far back only as the Bankrupt Law Consolidation Act, 1849. By section 68 of that Act it was provided— It was not enough, in our view, to show that the prisoner's conduct was malicious in the sense in which they use the term. SOME POINTS FOR CONSIDERATION AS The Lord Chief Justice says that the prisoner "acted unlawfully and maliciously,' not that he had any personal malice against the particular individuals injured, but in the sense of doing an unlawful act calculated to injure, and by which others are, in fact, injured. Just as in the case of a man who unlawfully fires a gun among a crowd, it is murder if one of the crowd is thereby killed." With great respect to his lordship, the illustration is not appropriate. The degree of probability in such a case makes all the difference. The ancient doctrine that a man must be taken to intend the natural result of his acts is good sense if it be confined to results which are so highly likely to result from the acts as that a person must, in common sense, be presumed to contemplate that they will follow. But we do not think that the degree of probability that the result would follow was by any means so high in this case as in the ancient illustration employed by the Chief Justice. The doctrine enunciated by him really comes to this-viz., that any person doing a wrong act, knowing it to be wrong, of such a nature as that he ought to have known, if he considered, that injury might result to persons therefrom, must, if such injury follows, be guilty of inflicting grievous bodily harm on the person injured. This seems to us a most sweeping proposition. A boy makes a slide on the pavement. This is, we believe, at any rate in urban sanitary districts, an unlawful act. It is done "maliciously" in the sense in which the judges in the case we are discussing appear to have used the term "maliciously "— that is to say, the boy knows it is wrong, because he runs away when he sees the policeman coming round the corner. An old gentleman tumbles down on the slide and breaks his leg, a result which no one can say is unlikely to happen, and a result which the boy certainly ought, if he had considered, to have recognized as not unlikely. That boy, according to the principle applied, is guilty of unlawfully and maliciously breaking that old gentleman's leg. We cannot ourselves see that our illustration is at all an unfair application of the views expressed by their lordships, and yet the result is, to our mind, absurd. It seems to us, looking at the case we are discussing as fairly as we can, that the act done by the prisoner was a lamentably and wickedly reckless practical joke, proceeding, however, rather from a sort of brutish thoughtlessness than from any intention that any person should be hurt; but unless the evidence can be fairly said to show that he intended that persons should be injured, we cannot see how he can be said to have unlawfully and maliciously inflicted grievous bodily harm. The words are not "shall unlawfully and maliciously do any act which causes grievous bodily harm," but shall unlawfully and maliciously inflict grievous bodily harm." We do not think these two expressions are by any means equivalent. In order that the act itself shall be evidence of the intent, it seems to us that a higher and more obvious probability of the resulting injury must exist than in this case. It must amount almost to certainty, otherwise the principle of presumed intention would be capable of most dangerously wide application. Many practical jokes of a foolish and blameworthy character have led to lamentable consequences in the way of injuries, but no one has ever thought of suggesting that they brought the perpetrators within the scope of an indictment for inflicting grievous bodily harm. We are not arguing the ques. tion whether such matters should or should not be punishable. Perhaps they ought to be in all cases; certainly they ought in some, as, for instance, in the case we are discussing. The question is whether they can properly be brought within the scope of words which seem scarcely to contemplate such an application of their meaning. In a case of Vincent v. The Great Western Railway Company, tried at Taunton on Saturday last, for damages for loss of a valuable sow, the defen: dants had pleaded the following remarkable plea :- The defendants say that the suffocation and death of the pig were not in any way occasioned by any skilfulness, misconduct, or negligence of the defendants or their servants, but were wholly due to the act of God and natural causes-viz., the unusually hot and sultry state of the weather, and the peculiar and inherent tendencies and weakness and unhealthiness of the pig itself, and i's excessive fatness, and consequent inability to travel safely, or to some or one of such causes, and could not have been prevented by any amount of foresight or care reasonably to be expected from the defendants." "That if any such trader shall execute any conveyance or assignment by deed of all his estate and effects to a trustee or trustees for the benefit of all the creditors of such trader, the execution of such deed shall not be deemed an act of bankruptcy unless a petition for adjudication of bankruptcy be filed within three months from the execution thereof, provided such deed shall be executed by every such trustee within fifteen days after the execution thereof by the trader, and the execution by the trader and by every such trustee be attested by an attorney or solicitor, and notice thereof be given within one month alter the execution thereof by such trader in case such trader reside in London, or within forty miles thereof, in the London Gazette and also in two London daily newspapers, and in case such trader does not reside within forty miles of London, then in the London Gazette and in one London daily newspaper and one provincial newspaper published near to such trader's residence; and such notice shall contain the date and execution of such deed, and the name and place of abode respectively of every such trustee and attorney or solicitor." The above section was superseded by sections 192 to 200 of the Act of 1861, and by the present Act all statutory enactments regulating deeds of arrangement of any kind between a debtor and his creditors were repealed. Now, we would ask, why was section 68 of the Act of 1849 superseded (not expressly repealed, let it be borne in mind), by the Act of 1861? It could not have been that the Legislature was of opinion that such deeds were baneful, otherwise it must be presumed the principle of Are we the same would not have been extended as it was by that Act. not right in contending that, on the contrary, deeds of assignment within the provisions of section 68 of the Act of 1849 were sufficiently satisfactory to induce the Legislature to seek to extend the benefits of the same to all kinds of arrangements for compromise between a debtor and his creditors, and that such was the object of the deed provisions of the Act of 1861 ? We think we are, and that by those provisions a mistake was made only in carrying the principle too far. But the mistake having been discovered by experience, we are of opinion that a still greater mistake was made in 1869, in the contrary direction, by abolishing all enact. ments for the regulation and protection of deeds of arrangement. When a trader who has acted fairly and honestly, and to the best of his ability endeavoured to conduct his business successfully, finds himself in the unfortunate position of not being able to "make both ends meet," what more can he do than give into the hands of his creditors all he possesses for them to make the most thereof at the least possible cost? And if the creditors are satisfied with their debtor's conduct, why should they not be able to take from him all he has to give them and make the best of it? These are generally the cases in which, when forced into court either under bankruptcy or liquidation, we find all the assets swallowed up in the costs of those expensive proceedings. The bills of cost allowed to receivers in a great many of such cases are simply scandalous, and often before the creditors get the estates into their own hands they find them charged with those costs and practically nothing left for them. This has given rise to a number of persons springing up in all parts of the country styling themselves accountants, who live and fatten on the plunder they obtain out of these small estates, and the benefit of whose services, so far as the creditors are concerned, is simply valueless; and this practice is, in our opinion, the greatest blot of all upon the present bankruptcy law. But, it may be urged, there is nothing in the present law to prevent creditors from accepting an assignment from their debtor of all his estate and effects in satisfaction of their debts if they are unanimous upon the point. That is true only to a limited extent. So long as such a deed continues to be an act of bankruptcy to which a trustee's title under a subsequent a ljudication would relate back, it is clear that no trustee under such a deed could be advised to divide the funds under the deed, and therefore the only way for a trustee to be perfectly safe is to retain the proceeds of the estate until twelve months have expired, when if no petition be then filed he may, of course, safely divide them amongst the creditors. But by that course one great object of deeds of assignment-viz., the prompt realization of estates and distribution of the proceeds-is at once defeated. We know from experience that this is not an uncommon occurrence. Deeds of assignment are even now often resorted to, and they would be so much oftener but for the objection which we have pointed out. At the present time clients of our own, who are trustees under a deed of assignment for general benefit of creditors, executed by a retail trader, are holding over the funds in this way because a secured creditor whose security is estimated to be nearly sufficient to cover his claim declines, on the ground that he is only a trustee for others (some of whom are infants), to assent to the deed and place a value upon his security. But if the law of 1849 had been in force the funds might have been divided immediately after the expiration of three months from the deed being executed. In another case in our own experience the trustees under a similar deed of assignment, thinking that they had obtained the assents thereto of all the creditors, proceeded to divide the proceeds under the deed. They had no sooner done so than another creditor, for whom they had not provided because they were not aware of his claim, filed a bank ruptcy petition and obtained adjudication, and the trustees had out of their own pockets to pay him a sum of money to compromise the matter, he having first moved the court and obtained an order for them to pay over to the trustee in the bankruptcy the whole of the proceeds realized by them under the deed of assignment. We do not advocate a return to the deed system of the Act of 1861, nor any statutory provision with regard to deeds of arrangement other than deeds of assignment pure and simple by traders similar to section 68 of the Act of 1849, so that our suggestion would not interfere with the general principles of the Government proposals. A return to the provisions of that section, however, would, in our opinion, be found to be a great boon to the commercial community at large, especially in small estates. It could not, on the other hand, act at all injuriously, inasmuch as any creditor or number of creditors of the requisite amount, if dissatisfied therewith, would have ample time in which to take advantage thereof in order to force the matter into court. Of course it might be necessary to make some further provision to give the court jurisdiction in such cases to determine questions arising under the deed (such as the rights of persons claiming to be creditors to prove and to make trustees accountable for misconduct), and it might also be provided that such deed should be a bar to, and a discharge to the debtor in respect of, all claims made under the deed. And to prevent attempts to introduce into deeds of the kind extraordinary powers, a simple statutory form of deed might be provided. It is probable, also, that other details of a similar nature might suggest themselves if the principle we have contended for were only acceded to; but there would not, we think, be much difficulty in framing details to make the proposal work satisfactorily. It is never safe to prophecy; but unless some provision such as we suggest be made in the interest more particularly cf small estates, (for the provisions of clause 43 of the Government Bill we consider altogether inadequate for the purpose) we will venture to predict for the Government proposals as great a failure as the present Act has proved. The next point we desire to notice is the present law as to the non-liability of infants to be made bankrupt, taking for our text the case of Ex parte Jones, Re Jones (29 W. R. 747). In that case the law was expressly laid down by the Court of Appeal (overruling the Chief Judge), that "an infant trader, who has not actually represented himself to be of full age, cannot be adjudicated bankrupt in respect of a trade debt, notwithstanding that he has himself previously filed a liquidation petition, the proceedings under which have failed." The foregoing quotation is from the head-note to the report in the WEEKLY REPORTER, the italics, however, being our own. We have given those words in italics because we think the judgments of the Master of the Rolls and Lush, L.J., fully support the proposition which the headnote would contain if the words in italics were wholly omitted. In the case we refer to the appellant, who at the time of the appeal was still an infant, carried on business as a coal and breeze merchant. In February, 1881, he filed a petition for liquidation, and on the 10th of March the first statutory meeting of creditors was held, but no resolution was passed thereat. On the 21st of March the Corporation of Birmingham presented a bankruptcy petition against him, alleging that he was indebted to them in the sum of £180 13s. for coke and breeze sold by them to him. The appellant had never actually represented himself to the corporation as of full age, but they had always believed him to be so. The county court judge made an order of adjudication, which, on appeal to the Chief Judge, was upheld, but which was reversed by the Court of Appeal. The Master of the Rolls laid down the law on the subject very distinctly in his judgment, from which we make the following extracts: "The first point to be considered is whether the appellant is liable at all to the corporation. If he is not a debtor' he cannot present a petition for liquidation, nor can he be made a bankrupt. How then is he made out to be a debtor? It is not suggested that the coke and breeze which he bought were necessaries-that they were supplied for home consumption. He bought them for the purpose of selling again. He is, therefore, under no common-law liability to the persons who supplied him with them. The fact that he had the coke and breeze in his possession has no effect according to our law, as such things are not necessaries. If persons choose to trust an infant, they take their chance of being paid. That is the law; and I am not prepared to say that it is absurd." "There is nothing illegal in an infant carrying on trade. Thousands of infants do so." "I respectfully but entirely dissent from the judgment of the Chief Judge in Ex parte Lynch. It is not well-settled law that if an infant has been held out and dealt with as a trader he can be made a bankrupt in respect of a trade debt.' It is not true that the Infants Relief Act has made no difference with regard to the liability of an infant on his trading debts. The words of that Act are perfectly general, and it must be taken to refer to all contracts except those expressly excepted. The Act is not to be restricted so as not to apply to trade debts." Lush, L.J., also stated in the course of his judgment: "The law says that, though an infant may trade, he is not liable to pay trade debts." Now, we submit that a law which allows an infant to trade (of which "thousands of infants" take advantage), and which gives the persons from whom he obtains goods on credit no remedy against him or his property, although they might naturally have considered him of full age, is an anomaly which ought to be remedied without further delay. Let it be either made illegal for an infant to trade, or else give the persons who have entrusted him with goods on credit a remedy against his property, if not against himself personally, or, at any rate, to the extent of such property as he may have acquired at their expense. We are sure that it was never the intention of the Legislature, in passing the Infants Relief Act, 1874, to affect the law with regard to infants carrying on trade and contracting debts in the way of such trade. The avowed object of that Act was to protect infants against extortionate money-lenders, jewellers, and such like, and not to interfere with debts contracted by them in carrying on trade; and, in our opinion, it would only be equitable to except such debts from the operation of that Act. As the law at present stands, an infant who may happen to appear to be of full age (and infants who trade nearly always have that appearance), if he does not actually represent himself to be of full age, may get goods from dealers in the way of his trade and then decline to pay, and the law does not give the defrauded dealers even the satisfaction of being able to punish him by criminal process, or a right to obtain back their goods. If the law recognizes the right of an infant to trade, it ought in all consistency to regard goods obtained on credit by him in the ordinary way of such trade to be just as much saries" as any article obtained by him for "home consumption." They are undoubtedly necessaries for the purposes of his trade. 66 neces The question when a person who has been a trader, but has ceased to carry on any trade, can be adjudicated bankrupt as a trader is one of considerable importance to the commercial community, and since the decision in Ex parte Schomberg, Re Schomberg (23 W. R. 204, L. R. 10 Ch. App. 172), it has been left in a very unsettled and unsatisfactory condition. The old law was tolerably clear, that any person who had been a trader, and still owed debts contracted by him whilst he was a trader, could be adjudicated as such upon a petition presented by a creditor whose debt was contracted at the time of such trading. But in Ex parte Schomberg the Court of Appeal held that a person, in order to be sued on a debtor's summons as a trader, must be a trader at the time when the summons is served. The ratio decidendi of that decision would require such a person to be also a trader at the time of his committing any act of bankruptcy on which he might be adjudicated in order to be made bankrupt as a trader. Considering the very wide differences in the bankruptcy law between traders and non-traders as affecting voluntary settlements, property in the order and disposition of a bankrupt, the liability of a bankrupt to criminal offences under section 11 of the Debtors Act, 1869, and a variety of other matters, this is a point which, we think, might be more clearly and equitably provided for. Cases have arisen in our own experience where traders have disposed of their businesses and ceased to trade, owing, however, debts in respect of their trading, and the law ought, we think, to specially provide that such persons should be liable to be made bankrupt as traders, notwithstanding their having ceased to trade, provided that a petition be presented against them within, say, six months from the time of their having ceased to carry on trade by a creditor whose debt has been contracted during the time of such trading. Another point to which we would call attention (in connection with the Government proposal to restrict the powers of certain creditors to vote, as contained in clause 17 of the Bill of last session), is as to creditors in respect of bonds or guarantees given to them as security for the debts of third persons, and also as to creditors of a firm of two or more debtors holding collateral security over the separate estate of one of their debtors. With regard to the former class of cases, we have known instances where the holders of such bonds or guarantees have been able to outvote the whole of the rest of the creditors. Surely these are as bad as the cases provided for by clause 17, and ought to be included in that provision. Then, with regard to the other class of cases, we have known instances of creditors holding such collateral security to the value of more than their claims against the firm, but they have been able to prove and vote in competition with the rest of the joint creditors for the full amounts of their debts. Now, although it may be right to relieve the separate estate of the partner who has given the collateral security to the extent of the dividend upon the debt to be received from the joint estate by admitting a proof upon such estate for the full amount, we think it would be only proper to place some restriction upon the power of such a creditor to vote in competition with the other creditors. This might easily and fairly be done by requiring him to place a value upon his security (under the penalty, if he should undervalue it, of being compelled to deliver it up to the trustee on being paid the amount of his valuation), and being allowed to vote only in respect of the balance of his debt after deducting the amount of such valuation. OATHS. 66 [To the Editor of the Solicitors' Journal.] Sir,-A deponent to a probate affidavit is willing to take the oath, but objects to taking the Testament or the Evangelists in his hand or kissing the book. I, after some trouble, induce him to hold the book while I repeat the usual form of words, after which he says "Yes," and puts down the book. Was the oath rightly administered? Is there any legal necessity for kissing the book or even for touching or holding it at all? Mr. Braithwaite only says 66 a Christian swears on the Holy Evangelists." The deponent referred me to some dictum of Lord Brougham as supporting his view. T. P. Y. Feb. 8. [See observations under head of Current Topics.-Ed. S. J.] CORRESPONDENCE. THE DRAFT ORDER UNDER THE SOLICITORS' REMUNERATION ACT. [To the Editor of the Solicitors' Journal.] Sir, I observe that in your issue of the 4th inst. you set out certain resolutions passed on the 15th, 16th, and 30th of December last, on the subject of Solicitors' Remuneration. As your readers have been made partially acquainted, through some source unknown to me, with what has been done by the Associated Provincial Law Societies, I think it well to add that at a meeting of the Associated Provincial Law Societies held on the 1st inst., the draft order dated January 6, 1882, as submitted by the president of the Incorporated Law Society, was approved. THOMAS MARSHALL, Hon. Sec. Associated Provincial Law Societies, Leeds, February 8. [Mr. Marshall is probably not aware that the resolutions referred to were printed in an appendix to the Worcestershire Law Society's Report.-ED. S. J.] SOLICITING PROOFS AND PROXIES IN BANKRUPTCY. [To the Editor of the Solicitors' Journal.] Sir, The resolution under the above heading passed by the Worcestershire Law Society, which is reported in your issue of the 4th inst., is aimed at a form of "touting,' which, I think, requires more attention, with a view to its suppression, than it has hitherto received at the hands of the profession at large. I enclose a copy (omitting names, &c.) of a letter received by a client of mine in relation to some liquidation proceedings. It will hardly be believed that at the first meeting of creditors the firm of solicitors who issued the letter in question only represented one unimportant creditor. I regret to say that they are members of the Incorporated Law Society, which, I trust, at no distant date, will put on record the disapproval of the society, as representing the profession, of such a practice. Feb. 7. M. I. L. S. [The following is the letter referred to :"Several clients of ours who are creditors in this matter have instructed us to fully investigate the affairs of these debtors, and ascertain the reason why they have filed their petition, and the best course to adopt in order to obtain the largest dividend for the creditors. "We shall be glad if you can co-operate with us, and give us every information in your power with regard to the debtors' affairs, and also by your attending the general meeting. Should you, however, be prevented from attending, we shall be obliged by your swearing enclosed affidavit of proof of debt and signing proxy so that we may attend on your behalf and prevent any inadequate composition being carried, so that the fullest dividend may be obtained by the creditors."] PEREMPTORY ORDER FOR TIME. Sir, Can you inform me what is the meaning of a peremptory order for time to deliver or file a proceeding? I was under the impression that it was meant that no further time was to be granted, but to-day I opposed an application for time in the Queen's Bench Division, but notwithstanding that I took the objection that a peremptory order had already been made a week ago, the master gave another extension of time. Either the word "peremptory" means something or nothing which is it? May I also beg to call your attention to the great convenience it would be to the dispatch of business in the Queen's Bench Division Chambers if one master would sit continually in chambers instead of having a fresh master each day? In my own matter there have been seven applications for time, which have been heard by six masters. C. B. CASES OF THE WEEK. STATUTE OF LIMITATIONS-MORTGAGE-FORECLOSURE ACTION-" PAYMENT OF PRINCIPAL MONEY OR INTEREST"-RECEIPT OF RENTS BY MORTGAGEE-3 & 4 WILL. 4, C. 27, ss. 2, 24, 40-7 WILL. 4, AND 1 VICT. c. 2837 & 38 VICT. c. 57, s. 1.-On the 4th inst. the Court of Appeal (JESSEL, M.R., and BRETT and HOLKER, L.JJ.) reversed the decision of Fry, J., on the main point in the case of Harlock v. Ashberry (29 W. R. 887, L. R. 18 Ch. D. 229, 25 SOLICITORS' JOURNAL, 640). The principal question was as to the construction of the Act 7 Will. 4, and 1 Vict. c. 28, which provides that "it shall and may be lawful for any person entitled to or claiming under any mortgage of land to make an entry or bring an action at law or suit in equity to recover such land at any time within twenty years next after the last payment of any part of the principal money or interest secured by such mortgage, although more than twenty years may have elapsed since the time at which the right to make such entry or bring such action or suit in equity shall have first accrued." The period of twenty years is now, by the Act 37 & 38 Vict. c. 57, s. 1, reduced to twelve years. By section 2 of the Act 3 & 4 Will. 4, c. 27, it is provided that no person shall bring an action to recover any land but within twenty years next after the time at which the right to bring such action shall have first accrued to some person through whom he claims, or to himself, if the right shall not have accrued to any prson through whom he claims. And by section 24 it is provided that no person claiming any land in equity shall bring any suit to recover the same herein before contained," he might have brought an action to recover the "but within the period during which, by virtue of the provisions same "if he had been entitled at law to such estate, interest, or right in or tɔ the same as he shall claim therein in equity." And by section 40, "No action or suit or other proceeding shall be brought to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within twenty years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for, or release of, the same, unless in the meantime some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing, signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto or his agent; and in such case no such action or suit or proceeding shall be brought but within twenty years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one was given." In Harlock v. Ashberry a legal mortgage of land was executed on October 11, 1849, the mortgage deed providing for the payment of the principal and interest on April 11, 1850. The interest was allowed to fall into arrear, the last payment on account of interest by the mortgagor having been made in August, 1859. No payment was made on account of principal. In January, 1878, the mortgagee gave notice to the tenants that he claimed the estate, and in consequence of this notice W., one of the tenants, paid the mortgagee £5, which was half a year's rent of that part of the property which he occupied. He paid his next half-year's rent to the mortgagor, and afterwards gave up possession of his holding to her. The payment of the £5 was made without her knowledge. On April 21, 1880, the mortgagee commenced the action against the mortgagor, claiming an account of what was due to him on the mortgage in respect of principal, interest, and costs, and foreclosure in default of payment. The defendant insisted that there had been no payment of principal or interest within twelve years before the commencement of the action, nor any acknowledgment of the right of the plaintiff to the mortgaged property, by the mortgagor or any one on her behalf, and she claimed the benefit of the Statute of Limitations. Fry, J., held that a foreclosure action is an action to recover the mortgaged land, not an action to recover the mortgage-money, and, consequently, that it is governed, not by section 40 of the Act 3 & 4 Will. 4, c. 27, but by sections 2 and 24 of that Act, and the Act 7 Will. 4, and 1 Vict. c. 28. And he held that the payment of the £5 rent by the tenant W. to the mortgagee had operated under the later Act to prevent the statute running, and to keep alive the mortgagee's right to foreclosure. Though the Act said thought that a payment by a mere stranger would not keep the right nothing as to the person by whom the payment was to be made, he alive. The payment must be inade by the mortgagor, or by some agent of his, or by any person who, as between the mortgagor and the mortga gee, was liable to make any payment to the mortgagee in satisfaction of the mortgage debt, and a tenant of the mortgaged property was a person who stood in that position. JESSEL, M.R., said that, having regard to the view the decision of the House of Lords was binding as a judgment on the lett. ΤΟ decision of Lord St. Leonards in Wrixon v. Vise (3 D. & W. 104), and to the decision of the Court of Appeal in the recent case of Heath v. Pugh (29 W. R. 904, L. R. 6 Q. B. D. 345), the court was bound to hold that the action was an action for the recovery of the land. The question, therefore, was whether section 2 of the Act 3 & 4 Will. 4 applied so as to bar the plaintiff's right to relief, or whether, by the operation of the Act 7 Will. 4 and 1 Vict. c. 28 time had not run against the plaintiff, notwith-clusion would lead to a strange result. A payment which would be good standing that more than twelve years had elapsed since the last payment of interest was made by the mortgagor. The only question was whether the payment of £5 by the tenant was "a payment of any part of the principal or interest secured by the mortgage," within the meaning of the Act 7 Will. 4 and 1 Vict. c. 28. It was admitted that the £5 was demanded as rent and paid as rent. The argument which succeeded before Fry, J., was, that the Act did not say that the payment must be made by any particular person; that a payment of rent to the mortgagee would have to be brought into the account as between the mortgagee and the mortgagor; and that, consequently, it was a payment of principal or interest within the meaning of the Act. The answer to this argument was twofold. First, it was not a payment of principal or interest. Secondly, it was not made by the person who was liable to pay the principal or the interest. It was quite true that the payment must be charged in the account between the mortgagor and the mortgagee, but it was only on the final balancing of the account that it would appear on which side the balance lay. In the absence of any special appropriation, there was no appropriation of the payments to any particular purpose; it was only on the final result of the account that an appropriation would be made. But, however that might be, the person who made the payment was a tenant, and he made the payment as rent. How then could it be said to be paid in any other character? The mortgagee was the legal owner of the land, and he received the payment as rent; be was entitled to exact it as rent, and he did so exact it. Again, the payment was not made by the mortgagor, or by any person who was liable to pay the principal or the interest. The theory of all the Statutes of Limitation was this, that a payment made by a person liable to pay was an acknowledgment of a right. Lord Westbury so put it in the case of Chinnery v. Evans (11 H. L. Cas. 115). It would not be an acknowledgment unless it was an admission of the right to receive the money and the liability to pay it. The Master of the Rol's thought that Chinnery v. Evans amounted to an actual decision of the point in the present case, because the learned lords who decided it treated section 40 of the Act 3 & 4 Will. 4, c. 27, as being in substance the same thing as the Act 7 Will. 4, and 1 Vict. c. 28. Lord Westbury was clearly of opinion that the payment under the later Act must be made by a person liable to make it, and his lordship thought that Lord Cranworth was of the same opinion, though it was not quite so clear. Both on principle and authority, therefore, the Master of the Rolls thought that the payment must be made by a person who was liable to pay the principal and interest secured by the mortgage, and the payment in the present case was not made by such a person. BRETT, L.J.. said that, inasmuch as the payment of the £5 rent would go into the account in favour of the mortagor, he should have been anxious to treat it as a payment made by him, if by any reasonable construction of the Act he could do so. But, according to the ordinary rules for the construction of statutes, he could not. It was an enabling statute. Section 2 of the Act 3 & 4 Will. 4, c. 27, was more rigorous than any previous Statute of Limitations, and the later Act modified it, and was to be read with it, and as in the nature of a modification or proviso. Then the question arose whether a payment of rent by a tenant to a mortgagee, who had exercised his legal right to demand it, was a payment of part of the principal or interest secured by the mortgage within the meaning of the Act. His lordship thought that it was not, and for three reasons. First, it was not a payment at all as between the mortgagor and the mortgagee. It was only an item in an account which would have to be taken between them, and an item in an account which would have to go to the credit of the one party or the other was not a payment. The account might contain many other items which were not principal or interest. Secondly, the payment was not made as a payment of principal or interest. It was a payment of rent, made as such by the person who made it, and received as such by the person who received it. Thirdly, if it could be said to be a payment of principal or interest, it was not a payment made by the mortgagor or by any agent of his, or by any person who was entitled to make a payment of principal or interest on his behalf. His lordship thought that the payment must be made by such a person in order to bring it within the statute. He thought that, in all the Statutes of Limitation, when a payment was allowed to take a case out of the statute, it must be such a payment as would amount to an acknowledgment of right, and, therefore, it must be a payment by the person liable to pay or his agent, and he thought that this was the real ground of the decision in Chinnery v. Evans. He thought that the judgment in that case was intended to apply to the statute 7 Will. 4, and 1 Vict. c. 28, as well as to section 40 of the statute 3 & 4 Will. 4, c. 27. But, assuming that it only applied to section 40 of the earlier Act, still he thought it was impossible to suppose that the House of Lords really, as a matter of reading, read into the former part of the section (after the words "sball have been paid') the words "by the person by whom the same shall be payable, or his agent," which followed the words "shall have been given in writing." The words "by the person, &c.," were entirely governed by the word "signed," and it would be impossible to read them into the former clause after the word "paid." He thought that the House of Lords would have construed section 40 in the same way if it had stopped at the word "paid," and, so construing it, they came to the conclusion that, because it was a Statute of Limitations, the payment must be a payment made as an acknowledgment of a right, and therefore it must be made by the person liable to pay or his agent. And, if that was the principle of the judgment, it would be exactly applicable to the construction of the Act 7 Will. 4, and 1 Vict. c. 28. In the one COMPANY-WINDING UP-LEAVE CREDITOR ΤΟ PROCEED WITH EXECUTION AFTER WINDING-UP ORDER-COMPANIES ACT, 1862, ss. 85, 163.-In a case of In re The Vron Colliery Company, before the Court of Appeal on the 25th ult., the question was whether leave ought to be given to a creditor to proceed with an execution against the goods of the company, notwithstanding that an order had been made to wind up the company. The creditor had commenced his action against the company on the 28th of December, had recovered judgment by default on the 6th of January, and had issued execution the same day without notice of any petition to wind up the company. The sheriff levied on the 7th of January. On the 4th of January a petition to wind up the company had been presented, under which, on the 10th of January, a provisional liquidator was appointed, and an order was made staying all further proceedings in the action until after the hearing of the petition. The petition was heard on the 14th of January and a winding up order was inade. The creditor then applied for leave to go on with his execution, and Bacon, V.C., granted the application. The Court of Appeal (JESSEL. M.R., and BRETT and HOLKER, L.JJ.) were of opinion, on the facts, that there were no special circumstances such as to justify Referthe giving of leave, and they discharged the Vice-Chancellor's order. ence was made to many of the previous cases in which similar applications have been granted, such as In re Bastow & Co. (15 W. R. 1033, L. R. 4 Eq. 681); In re The Railway Steel and Plant Company (26 W. R. 418, L. R. 8 Ch. D. 183); In re The London Cotton Company (14 W. R. 575, L. R. 2 Eq. 53); and In re Richards & Co. (27 W. K. 530, L. R. 11 Ch. D. 676). JESSEL, M.R, said that these cases were decided in the courts of first instance. In some of them it had been held that the mere giving of an indulgence by a creditor at the request of the company was a special ground for giving him a preference over the other creditors. He was not satisfied that these cases had been rightly decided, though it was not necessary on the present occasion to Say that they ought to be overruled. He thought there was some difficulty in saying that when a creditor voluntarily gave time to the company, the act of the company in asking for time was to prejudice the other creditors. In others of the cases in question it had been held that the fact that a creditor had been induced by some false pretence on the part of the company-i.e., of the directors of the company-to delay after the making of a winding-up order. It was very difficult to see why his proceedings to recover his debt was a reason for giving him a preference this should affect the rights of the other creditors. He need not, however, approval of those decisions. BRETT, L.J., said that the facts of the cases now say more than that he must not be understood as intimating any referred to were not at all like those of the present case, and therefore it was not necessary to say whether those cases were rightly decided, and he declined to express any opinion about it. HoLKER, L.J., also said that he by a creditor to the company was a special circumstance which would felt a difficulty in coming to the conclusion that the giving of an indulgence justify the court in allowing him a preference after the winding up over other creditors who had equally given an indulgence. But it was not CITORS, Kennedy, Hughes, & Kennedy; Mercer & Mercer. necessary to decide the point now, for it did not arise on the facts.-SOLI not TRUSTEE-BREACH OF TRUST-NEGLIGENCE-ACCRETION TO TRUST FUND NEW SHARES IN COMPANY ALLOTTED IN RESPECT OF OLD.-On the 3rd inst. the Court of Appeal (JESSEL, M. R., and BRETT and HOLKER, L.JJ.) reversed the decision of Fry, J., in the case of Briggs v. Massey (29 W. R. 926, 25 SOLICITORS' JOURNAL, 743), though upon a ground which was taken in the court below. The question was as to the extent of a trustee's liability to make good part of the trust state which, through his negligence, the husband of the tenant for life had been allowed to receive. By the settlement made on the marriage of the husband and wife, the residue of the estate of a testator, to which the wife was entitled, subject to the life estate of the testator's widow, was vested in trustees, on trust for the wife for her life, with remainder to the husband for his life, with remainder to the children of the marriage. The wife was the surviving executrix of the testator, and the husband, availing himself of this circumstance, sold parts of the personal Also, estate of the testator, and appropriated the proceeds to his own use. after the death of the widow some shares in a company, which formed part of the testator's estate, were transferred from the names of the executors into the name of the husband alone. Afterwards some new shares were allotted by the company to, and accepted by, him in respect of the old ones, and he paid up the calls on the new shares in full, though there was no evidence to show out of what funds he did so. He subsequently mortgaged the shares, new and old, to a person who had no notice of the trust. A decree having been made declaring that the surviving trustee of the settlement was liable to make good the value of the residuary personal estate of the testator which had been received by the husband, and the trustee having paid into court the amount of the proceeds of sale of that property (other than the shares in the company), the question arose on further consideration whether the trustee was liable to account for the present market value of the new shares which had been allotted to the husband, or only for the selling value of the option to take them at the time when they were offered to him by the company. Under the settlement the trustees had no fund which they could have properly applied in paying the calls on the new shares. Fry, J., held that the trustee was liable to pay the present market value of all the shares, new and old, but that, if the husband had paid the calls on the new shares out of the proceeds of sale of the other personal estate which he had received, the trustee would be entitled to be repaid the amount of the calls so paid out of the moneys which he had paid into court, and an inquiry was directed for this purpose at the risk of the trustee as to costs. The Court of Appeal held that if the husband had paid the calls on the new shares out of his own money, still, the trust estate could not take those shares without paying the calls, and he would have a lien on the shares for the calls which he had so paid, and the trustee would be entitled to the benefit of that lien, and to stand in the husband's place in respect of it. To that extent, therefore, the judgment could not be supported. -SOLICITORS, F. W. Reynolds; Singleton & Tattershall. HUSBAND AND WIFE-CHOSE IN ACTION OF WIFE-REDUCTION INTO POSSESSION BY HUSBAND-GIFT BY HUSBAND TO WIFE.-In a case of Errington v. Riddell, before Fry, J., on the 4th inst., the question arose whether a wife's chose in action had been reduced into possession by her husband, and there was the further question whether, if he had reduced it into possession, he must be taken to have made a gift of it, either to the wife absolutely for her separate use, or to the trustees of one of two settlements which had been executed on the marriage. One of the settlements was of property belonging to the husband, the other was of property belonging to the wife; the same persons were the trustees of both. Under the settlement of the husband's property the income was to be paid to him for his life; after his death an annuity was to be paid out of it to the wife, and subject thereto the property was to be on trust for the children of the marriage. This settlement authorized the investment of the trust funds on the security of the debentures of any incorporated company. By the settlement of the wife's property the income was, during the joint lives of the husband and wife, to be paid to her for her separate use, without power of anticipation; with remainder to the survivor for his or her life; with remainder on trust for the children of the marriage. This settlement authorized the investment of the trust funds only on Government or real security. By the will of the wife's father, who died on the 5th of April, 1870, he, in exercise of a power reserved to him in another settlement, appointed the sum of £1,000 to her absolutely. This sum was charged on certain real estate. The interest due on the £1,000 was, as it accrued due between the 5th of April, 1870, and the month of October, 1872, paid by the person liable to pay it to the wife, and was by her paid to a separate banking account which was kept in her name, and this was done with the assent of her husband. On the 11th of March, 1873, the £1,000 was paid off by means of a cheque payable to the husband, and at the same time the interest, from October, 1872, to the 11th of March, 1873, was paid to him. On the same day he paid the cheque to the bankers of the North-Eastern Railway Company, and wrote to that company requesting them to apply the money in payment for £1,000 debenture stock of the company, which he requested them to register in the names of the persons who were the trustees of the two settlements. This was shortly afterwards done, and the certificate of the stock was sent by the company to the husband, and was retained by him. The senior trustee of the settlements was aware of this investment; the other trustee did not know of it during the life of the husband. The warrants for the interest on the stock were sent every half year by the company to the senior trustee, who, after indorsing them, sent them to the husband. The husband each half year during his life sent the interest warrants to his bankers, with a direction to carry the amount to the credit of bis wife's separate account. In May, 1876, he drew up a statement in writing which purported to be a list of the property which he then possessed, and in that statement no mention was made of the £1,000 debenture stock. He died in 1878, having made a will in June, 1876, which contained no specific reference to the debenture stock. After his death the wife claimed the stock, on the ground that the husband had not reduced the £1,000 into his possession, or that, if he had, he must be taken to have declared a trust of it for her absolute benefit. The trustees of the two settlements claimed the stock as having been given to them by the husband on the trusts of one or other of the settlements. The executors of the husband claimed the stock as forming part of his estate. FRY, J., held that it had passed to the executors. He said that when the husband received the cheque for £1,000 he was in a position to receive the £1,000 without the consent of any other person. This amounted to a reduction into possession. He had the cheque in his hands and could have turned it into one thousand sovereigns. Then the question arose whether, by his subsequent acts, the husband had declared an irrevocable trust of the £1,000. His lordship was of opinion that he had not. There was nothing to prevent him from at any time receiving the interest himself if he had chosen to do so. There was no evidence that any special declaration of trust was made by him either to the wife or to the trustees-no evidence, indeed, of the communication of the investment to her. If a declaration of trust was to be found anywhere, it could be found only in the direction given by the husband to his bankers to pay the interest to the wife's separate account. This, no doubt, amounted to a dedication of the particular sum to which the direction applied to the wife, but not to a declaration of any irrevocable trust of the capital. He might at any time have retained the interest himself, as he did the interest which was paid in March, 1872. Moreover, in order that a declaration of trust might operate, it must be clear as to the person who was to take the benefit of it, and here the circumstance that the wife and the two sets of trustees were claiming the benefit went far to show that there had been no clear declaration of trust. The circumstances did, indeed, show an intention on the part of the husband to do something inconsistent with his retaining the absolute dominion of the fund, but there was not such a clear, complete, and irrevocable declaration of trust as was essential to enable the court to enforce it. There was nothing more than an intention.-SOLICITORS, W. & J. Gibson. FORFEITURE CLAUSE-VALIDITY-GIFT over.-In a case of Hurst v. Hurst, before Fry, J., on the 7th inst., a question arose as to the validity of a clause of forfeiture contained in a will. The testator, by his will, gave all his freebold and leasehold property to his executors and trustees, upon trust (inter alia) to permit his son to collect and receive the net rents of certain specified freehold and leasehold houses, to and for his own use and benefit, during his life, and after his death upon trust that the executors and trustees should convey and assign the houses to the children of the son in equal shares, absolutely, on their attaining the age of twenty-one years. But, in case any of the children assign the shares or share of the children so dying under that age to the others of the son should die before attaining that age, then on trust to convey and or other of such children; but, in case of the son not having any issue, or in case none of his children should live to attain twenty-one, then the testator declared that the property, the rents of which would be receivable by the son during his life, should be conveyed and assigned by his executors and trustees to, and divided equally between, such of the children of the testator's daughter as should live to attain the age of twenty-one. The testator had, by a previous clause, given other freehold and leasehold property in a similar way to his executors and trustees, on trust for his daughter for her life, with remainder to her children on their attaining twenty-one. By a subsequent clause, the testator declared that the bequests therein before made to his son and daughter respectively should be subject to the following condition-viz., that they should in nowise charge or incumber the property, the rents of which were receivable by them during their respective lives, or any part thereof. And, in case either his son or daughter should so charge or incumber the property, or any part thereof, or in case his son should become bankrupt or insolvent, or compound with his creditors, then the testator declared that the bequest to his son or daughter so transgressing such condition, or in the case of the bankruptcy or insolvency of his son, should thereupon become absolutely forfeited. And the testator declared that, in either of such cases, the trusts therein before created in favour of the child or children of the son or daughter so transgressing should at once take effect, and be acted upon by his executors and trustees as thereinbefore directed. After the testator's death the son executed a deed affecting to charge his life interest under the will with the repayment of a sum of money advanced to him. The action was brought by one of the trustees of the will, claiming a declaration that the charge was wholly inoperative, except as working a forfeiture of the son's life interest. FRY, J., said that the trust to convey to the children of the son was one which could not be carried into effect during the life of the son, because it was a trust to convey a certain aliquot share to each of the children of the son who should attain twenty-one, and it was, evidently, impossible to ascertain what would be the minimum share of a child until the death of the son, because the class would not be ascertained till then. He thought that if the event happened of the son incumbering his interest, the forfeiture clause would operate as a clause of cesser if there was no gift over. But the testator went on to say that, on the execution of the charge, the trust in favour of the child or children of the son should at once take effect, and that was a trust which it was impossible to perform during the life of the son. Could it be construed as a trust for the children of the son who might be living at the time of the cesser of his life interest? In his lordship's opinion the express words excluded the possibility of such a construction. No provisions could well differ more than a provision for the family of the son living at the time of his death, and a provision for his family living at the time of the cesser of his life interest. Then arose the question whether the clause of cesser was to take effect upon the execution of the charge, or upon the execution of the charge and the taking effect of the gift over. If the former, the clause would be clearly good; if the latter, it would be clearly bad, because one of the two events, on the happening of which it was to take effect, would be impossible, and it was well settled that an estate which was to go over on the happening of an impossible condition was an absolute estate. If the question had been open his lordship said he should have thought the true meaning of the testator was that the gift over was to take effect only on the execution of the charge and the happening of the other event. But he thought that the decision of the Court of Exchequer Chamber in the case of Doe v. Eyre (5 C. B. 713), was a direct authority to the contrary, and that case had been considered and followed by Vice-Chancellor Kindersley in Robinson v. Wood (27 L. J. Ch. 726). He must, therefore, hold that the clause of forfeiture was capable of operating. Another argument raised was that the charge, not being a valid charge, could not have any operation at all. It could not affect the son's interest, and, therefore, could not work a forfeiture. As to this point, FRY, J., said that the forfeiture, if it took effect at all, was the result of the execution of the charge, and to hold that the result or consequence of the charge prevented the charge from having ever existed at all would be absurd. This would be in effect to hold that a ma could have an estate |