to know, the law: they are not sworn to decide the law; they are not required to decide the law. It is the duty of the judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences." It appears that in the United States the question was once raised whether this rule applies in criminal cases, but it was unhesitatingly decided that it did; and Mr. Justice STORY, in One of the finest of his judgments, laid it down that it is the most sacred constitutional right of every party accused of a crime, that the jury should respond as to the facts, and the court as to the law. It is the duty of the court to instruct the jury as to the law; and it is the duty of the jury to follow the law as it is laid down by the court. This is the right of every citizen, and it is his only protection. Every person accused as a criminal has a right to be tried according to the law of the land, the fixed law of the land; and not by the law as a jury may understand it, or choose, from wantonness, ignorance, or accidental mistake, to interpret it" (United States v. Battiste, 2 Sumn. 243). It would be difficult to state more forcibly the reasons why in criminal cases juries should not follow the example of the Bristol wiseacres.

A RECENT CASE of alleged personation suggests an inquiry as to what is the punishment for the offence. It will be found that, although obtaining property by false and deceitful personation was always a misdemeanor at common law, punishable by fine and imprisonment (2 East P. C., c. xx., s. 5), and although special frauds of this description-e.g., the personation of soldiers (2 Will. 4, c. 53, s. 49) or sailors (11 Geo. 4, & 1 Will. 4, c. 20, s. 84) to obtain their pay; of stockholders to receive their dividends (24 & 25 Vict. c. 98, s. 3); of masters to give false characters to servants (32 Geo. 3, c. 56), and of voters at parliamentary, municipal, and school board elections, have been made grievous, and in most cases felonious, offences from time to time, there was no general statute upon the subject until the False Personation Act, 1874 (37 & 38 Vict. c. 36), was passed" to render personation, with intent to deprive any person of real estate or other property, felony." This statute, which was passed after, and probably suggested by, the case of Reg. v. Castro, otherwise ORTON, otherwise Sir ROGER TICHBORNE, Baronet, is a remarkably severe one. It enacts that "if any person shall falsely and deceitfully personate any person, with intent fraudulently to obtain any land, estate, chattel, money, valuable security, or property, he shall be guilty of felony, and upon conviction shall be liable to penal servitude. That the person personated is dead does not appear to make the offence less complete (see R. v. Brown, R. & R. 324, decided on the statute relating to the personation of seamen). The peculiar severity of the Act of 1874 consists in making the offence complete although no property be in fact obtained by the personator, and although the property parted with was not parted with from a belief in the personation. In this respect the offence of personation differs materially from that of obtaining money, &c., under false pretences, which cannot be committed unless the money, &c., was actually obtained (24 & 25 Vict. c. 100, s. 91) by means of the false pretences (Reg. v. Mills, Dears & B. C. C. 205). Of course a personator may be indicted merely for obtaining money under false pretences (see R. v. Story, R. & R. 81), a course which the framers of the Act appear to have contemplated as possible, for section 2 provides that "nothing in this Act shall prevent any person from being proceeded against and punished under any other Act, or at common law, in respect of an offence (if any) punishable as well under this Act as under any other Act, or at common law." The maximum punishment, however, for merely obtaining money under false pretences is, by 24 & 25 Vict. c. 100, s. 91, as amended by 27 & 28 Vict. c. 47, s. 2, five years' penal servitude, whereas obtaining money by false personation is, by the False Personation Act, 1874, punishable by penal servitude for life.

a reform of humble aspect which seems to us nevertheless to promise greater benefits to the public than many more ambitious schemes. Let the use of that ominous phrase, "it is all a question of intention," and of all its equivalents, be utterly interdicted to her Majesty's judges. This reflection has been suggested to us by a case (In re Tanqueray-Willaume & Landau) which was decided last week by the Court of Appeal. The principal question at issue was the old one, whether a direction to pay a testator's debts, accompanied by a devise to the executors, creates a charge of the debts upon the realty. Mr. Justice KAY had held that in this case no such charge was created, upon the ground that the executors, though taking the legal estate as joint tenants, took unequal interests as beneficiaries. This decision has just been reversed by the Court of Appeal, who have gone a long way towards laying down the general rule, that a direction to pay debts coupled with any devise whatever, whether beneficial or not, to the executor or executors jointly, will create a charge upon the realty for the payment of the debts. We quite think that the step is in the right direction; but it is remarkable that the Master of the Rolls should, according to the report, have seemed to think that he was only following the opinion expressed by Mr. Justice FRY in the case of Bailey v. Bailey (27 W. R. 909, L. R. 12 Ch. D. 268). That opinion is, except as regards the sentence cited by the Master of the Rolls, somewhat nebulous; reducing (or rather, expanding) the whole matter to a "question of intention" in a way which leaves a wider scope even than usual for mere guessing. We think it is to the public advantage that Mr. Justice KAY's decision should have been overruled; but we also think that his decision accords at least as well with Mr. Justice FRY'S opinion in Bailey v. Bailey as with that of the judges who overruled him. The court also decided that, unless twenty years have elapsed since the testator's death, an intending purchaser cannot question the authority of the executor to sell, upon the ground that a charge for the payment of debts must be presumed to have been satisfied by the debts having been paid.

THE LAW SOCIETY'S COMMITTEE ON

LEGAL PROCEDURE.

THE committee appointed by the Incorporated Law Society has now drawn up and issued its report on the recommendations of the Procedure Committee; and this carefully written document affords a great contrast to the hasty and perfunctory utterance some time since put forth by the council of the same society. As the report of the Procedure Committee was recently commented on in these columns at considerable length, it is unnecessary now to follow the present report through all its recommendations, most, and the most important, of which we find to be in harmony with the views we have already expressed; but there are some points which it may be useful to draw attention to, partly because new and valuable suggestions are made, and partly because some of the proposals advanced or accepted scem open to question.

We are

On the question of costs, we had pointed out that there were two methods of diminishing them-one by diminishing the occasions for incurring them, the other by lessening the payment to be made for the work done. The committee are of opinion that " the only proper, and, indeed, the only effectual, way to lessen expense is to lessen the amount of work to be done." not prepared to dissent from this; but the committee do not appear to have fully realized the desirable, if not necessary, consequence that the occasions for incurring expenses should, if possible, be diminished. On the contrary, under several of their recommendations the occasions would be increased, They seem to have narrowly escaped the idle proposal for the increase of perjury, by requiring pleadings to be certified on oath, with the accompanying privilege of orally cross-examining this sworn testimony; a proposal which could only have the effect of introducing a trial of whether either party has a prima facie case as a preliminary skirmish to the trial whether he has a real case. They do, in fact, propose that, in addition to pleadings, which they would retain as showing the parties what they are at issue upon, there should be a settling of issues before the judge to determine that question still further.

Yet it is almost notorious that such issues when actually settled rarely give satisfaction, and that at the trial it is found that the parties and the judge have practically to re-draw them. It is supposed that this would "narrow the question actually disputed," and that "the settlement of issues would indeed often result in settling the action." This view appears to us to be wholly unpractical. It could only be properly done with the assistance of the counsel on whom the burden of maintaining the case in court is to fall; and it could only be properly done by them if they were as fully instructed as they are at the trial. That in some particular actions it might be useful is possible, though we believe the event would be a rare one; but to burden every action with this preliminary application would be to add a new and expensive, and for the most part wholly useless, charge to the costs of litigation.

The charge of shorthand notes also we cannot but regard as wholly unnecessary in the great majority of actions; and must demur to the costs being increased by this charge, even in the modified form in which it is recommended.

not be by a separate summons, but by a reference of the original summons to the judge by the master, they fail to notice that their scheme compels the party either to elect on the spot whether he will appeal, or else to make a fresh application to the master to "refer" the summors, and "to indorse on the summons" the reasons of his decision on a matter which will have then passed from his memory. The proposed change seems a gratuitous one, practically saving nothing in any case, and tending to multiply appeals by not allowing time for reflection.

As to judgment debtor summonses, it is proposed that the onus of showing the non-existence of means should be cast on the debtor. This seems reasonable; though, as the debtor will immediately discharge himself of that burden by swearing that he has no means, the effect will probably not be important. The proposal to transfer the matter to the Bankruptcy Court must, we think, stand over until we know more of what the Bankruptcy Court of the future is to be.

caution.

Some occasions of expense, however, the committee propose to abolish. Their proposal that an official certificate shall be evidence of due registration would probably be a safe and useful addition to the law of evidence; and the proposal that the parties may agree to take any portion of the evidence on affidavit only may possibly be of some, though we should suppose of very limited, advantage.

On the important point of discovery the committee accept the recommendation that the party requiring it should pay for it in the first instance; but they object to the restriction of interrogatories or discovery by the discretion of a master, proposing however, with respect to discovery, to substitute for such a restriction a limitation to be imposed by the party requiring the discovery, who must state what are the points in relation to which he requires it. We doubt the value or wisdom of this limitation; but we must admit that we share the reluctance of the committee to submit this most valuable instrument to the discretion of a master. The point is a difficult one. When interrogatories and discovery were first introduced into common law practice they were put under restraint and check. It was found by practice, or thought to be found, that the operation of this restraining power caused more delay and more costs than it was worth, and step by step this control has been lessened and discarded. To return to a discarded practice, the mischiefs of which are, perhaps, forgotten, is always a doubtful and perilous step. The abuse of this part of procedure is, to a large extent, directly chargeable on the masters, who have forced interrogatories upon litigants by depriving them of the far simpler and cheaper remedy of particulars. If that practice were relaxed, we believe the check imposed by the necessity of paying for answers and discovery in the first instance would be sufficient to prevent the abuses that have been so much complained of.

With reference to chamber practice, the committee have elaborated a most carefully-drawn and practical series of recommendations, which are too detailed to admit of notice here, but which are evidently the result of an intimate acquaintance with the causes of expense, delay, and inconvenience. We may notice, however, that they accept the principle of assigning each action to a particular master.

Their mode of dealing with summonses (which they rightly, as we think, retain against the opinion of a "considerable minority," who would substitute "notices," to be drawn up altogether at the discretion of the parties) strikes us as not altogether happy. As to the moulding of the summons within the limits they prescribe, it is done every day, and it is altogether unnecessary to provide for it by a rule; and as to the appeal, which, they propose, shall

The committee so much approve of the system of official referees that they wish their number increased and their power augmented, and the arbitration business of the masters transferred to them. We should have rather favoured the absorption of the official referees in the masters, increased in number, if necessary to meet those duties. There is, it must be allowed, a pretentious and unbusinesslike character about the new tribunal which makes it compare unfavourably with others of older standNeither can we, as at present advised, accept the view that appeal on questions of fact should lie from the decisions pronounced in compulsory references. The value of the procedure would be seriously diminished if matters which, because of their nature, and as unfit for another form of trial, are sent to reference, should be open to be tried over again before a tribunal for which they have been already pronounced unfit. But on questions of law it may be readily agreed there should be an appeal. With respect to the "third party a somewhat crude recommendation is made, under which it is supposed that a third party can be "held liable" in the original action. That such an idea was originally entertained there is no doubt; but it is equally without doubt that except by consent no such "holding" can be made or judgment entered. It may be that the third-party rules should be modified and extended according to the original design; but the recommendation as it stands is illogical.

Finally (and it is only in a somewhat hasty way that we can at present deal with this report, which we may hereafter have opportunity of examining more fully) we must notice three recommendations appended to the report (1) that proceedings under ord. 14, r. 1, should be extended to actions for the recovery of land; (2) that the practice under the Bills of Exchange Act should be restored, but limiting the time to eight days instead of twelve; and (3) that the long vacation should be reduced. All these thanks are due from the profession to the committee for the care and recommendations appear to be of real practical utility. And great ability with which they have discharged their difficult and tedious duty.

On Tuesday Mr. Justice Fry, on taking his seat. addressed Mr. John Pearson, Q.C., the senior member of the bar present, to the following effect:-"Mr. Pearson,-I think it right to make a statement in reference to two cases which were brought before me yesterday in chambers with reference to marriages with wards of court without the leave of the court, and, as is alleged, without consent of the guardians and relatives of the wards. In each case I found it my painful duty to commit to prison for contempt of court the man who had gone through the ceremony of marriage with the ward, and in each case I found so much culpable negligence on the part of the relatives and guardians who had permitted these marriages to be possible, that, in addition to the inquiry as to the validity of each marriage, I have directed an inquiry to be made as to the complicity (if any) of the guardians and relatives in bringing about these marriages. The cases were properly brought before me in chambers in private, but I was so much struck by the circumstance of two such cases being brought before me on one day, that I have thought it right to make this public state statement in reference to them, in order that people may understand the grave nature of the offence committed in marrying or bringing about a marriage with a ward of this court without its consent.-Mr. Pearson: In reference to the statement which your lordship has been pleased to make, may I venture to ask whether the marriages were by banns or by licence?His lordship: In one case by banns, in the other by licence.-Mr. Pearson: In my experience in the worst cases of this kind the parties always resort to marriage by banns.

SOME POINTS FOR CONSIDERATION AS TO THIS YEAR'S BANKRUPTCY BILL.

II.

ONE of the most important questions with regard to bankruptcy law at the present time is the effect which section 20 of the Bills of Sale Act, 1878, has had upon the law of order and disposition as provided by the Bankruptcy Act, 1869, s. 16, sub-section 5. This question has given rise to a great amount of discussion, and was given considerable prominence to at the meeting of the Incorporated Law Society at Brighton in October last. Apropos of the debate which took place at that meeting on the paper upon Bills of Sale, read by Mr. Saunders, of Birmingham, we took occasion (25 SOLICITORS' JOURNAL, p. 926) to make a suggestion upon the subject, which we think it will not be out of place to repeat in these papers. Whilst agreeing to a limited extent with the majority of the meeting as to the propriety of allowing a person possessed of personal chattels, such as furniture owned by a lodging-house keeper, machinery by a manufacturer, and similar cases, to raise money thereon by bill of sale, we suggested that the principle propounded by Mr. Saunders, and others forming the minority, of rendering it illegal by enactment to grant a bill of sale on personal effects might well be applied to stock-in-trade and articles in which a debtor deals in the ordinary course of his trade, and more particularly with regard to after-acquired property of that nature. A further consideration of the question confirms us in the views we then expressed, and in the view that, without repealing or altering in any way section 20 of the Bills of Sale Act, the adoption of our suggestion would remedy the evils complained of as having been occasioned by that section. We are aware that it would be introducing something of a novelty in the law to recognize as it were only a sort of quasi ownership and not an absolute ownership by a trader in his stock-in-trade, which would be the practical effect of our suggestion. But we apprehend that will not be a very startling circumstance to the President of the Board of Trade if only the theory recommends itself to his judgment. It is to the stock-intrade which a retail trader possesses that wholesale dealers look for payment of their accounts, and in regulating the amount of credit which they will give, and so long as a trader owes accounts in respect of his trading he ought to be prevented, as far as practicable, from dealing with that stock except in the ordinary way of his trade. This is no new principle with the Legislature, as is evidenced by section 11, sub-section 15, of the Debtors Act, 1869, which provides that a bankrupt or liquidating trader, within four months before his bankruptcy or liquidation, pawning, pledging, or disposing of, otherwise than in the ordinary way of his trade, any property which he has obtained on credit and has not paid for, shall be guilty of a misdemeanour, and be liable to imprisonment. Then why should it not be extended, as we have suggested, so as to effect, as we think it would, a beneficial result? When a trader has to resort to the expedient of raising money by giving a bill of sale on his stock-in-trade, we may be very sure that he is on his last legs, and our experience tells us that in ninety-nine per cent. of such cases the relief he thus obtains is only temporary, and does not long ward off the final crash, which, when it does come, is all the more disastrous both to himself and his creditors, besides opening the door to a very great amount of fraud. The remedy we suggested was that it should be provided that the giving of a bill of sale by a trader over his stock-in-trade should constitute an act of bankruptcy; but, on further reflection, we think this would not by itself be sufficient, and we would therefore suggest, in addition, that where a bill of sale over stock-in-trade (and we would further include trade bookdebts) is given more than twelve months prior to adjudication, so that a trustee's title would not relate back thereto, such bill of sale should be void if the property included therein, or any part thereof, should be in the apparent possession (as defined by the Bills of Sale Act) of the debtor at any time within, say, three months prior to the filing of a bankruptcy petition by or against him, so far as regards such property as should remain in his apparent possession within such time. In fact, in our opinion, the law on the subject could scarcely be made too stringent. The arguments made use of at the Brighton meeting of the Incorporated Law Society in opposition to the suggested repeal of section 20 of the Bills of Sale Act were all founded on the policy of allowing persons possessed of personal estate, such as a lodging-house keeper owning furniture, or a manufacturer owning machinery, to raise money thereon just as much as upon real estate; but, so far as appears by the report, not one of the speakers ventured to include stock-in-trade owned by a trader in his arguments. Now, we fully admit the principle with regard to all kinds of personal effects other than stock-in-trade and trade book-debts, but we submit that it would be most beneficial to protect the trading community by excepting that class of property from the power of the owners to incumber it by a bill of sale. The consideration of section 20 of the Bills of Sale Act, 1878, brings us to a much wider question, upon which, in our opinion, an alteration in the prosent law might very beneficially be made-viz., the question of property of others in the order and disposition of a bankrupt at the time of his bankruptcy passing to his trustee for the benefit of his creditors. It is a matter of considerable interest to trace the history of

this law, and the alterations which have been made therein, and particularly the inroads in the application of the law which were made by the Bankruptcy Act, 1869, and the Bills of Sale Act, 1878. The first statute on the subject was 21 Jac. 1, c. 19, s. 11, which provision was, with slight alterations, re-enacted by 6 Geo. 4, c. 16, s. 72, and the provision of the last mentioned Act was repeated in section 125 of the Act of 1849, with an exception as to ships. The wording of that section is as follows (omitting the proviso at the end containing the exception before mentioned) :—

"That if any bankrupt at the time he becomes bankrupt shall, by the consent and permission of the true owner thereof, have in his possession, order, or disposition any goods or chattels whereof he was reputed owner, owner, the court shall have power to order the same to be sold and disposed or whereof he had taken upon him the sale, alteration, or disposition as of for the benefit of the creditors under the bankruptcy."

The differences between the above section and the section in the statute

46

66

of James are that in the former the words are possession, order, or disposition," and in the latter they were possession, order, and disposi66 I whereof he was tion"; and again in the former the words are reputed owner or whereof he had taken upon him the sale," &c. ; whilst in the statute of James they were "whereof they shall be reputed owners and take upon them the sale," &c. Up to the passing of the Act of 1861 only traders were liable to be made bankrupt, so that of course the law of order and disposition only applied to them. But by that Act non-traders became liable to be made bankrupt, and then the law of order and disposition applied equally to them. The object of the law originally was to prevent traders from obtaining false credit on the strength of owning property which did not belong to them, but which, being in their possession, order, and disposition, gave them the appearance of having means of payment which they did not really possess. It was therefore thought to be a just penalty to inflict upon the true owners of such property to deprive them thereof for the benefit of the creditors, who might have been deceived into giving credit on the assumption that such property belonged to their debtor. After the passing of the Act of 1861 it was felt that the application of the law to non-traders was unnecessary and wrong, as the same reasons did not apply in their case as in the tions and limitations in the law were made, as will be seen by comparing case of traders, and accordingly by the Act of 1869 considerable alteraso much of section 15 of that Act as relates to the question with section 125 of the Act of 1849. Section 15 of the Act of 1869, so far as it deals with this question, is as follows:

"The property of the bankrupt divisible amongst his creditors shall comprise the following particulars (inter alia):"(5.) All goods and chattels being at the commencement of the bankruptcy in the possession, order, or disposition of the bankrupt, being a trader, by the consent and permission of the true owner, of which goods and chattels the bankrupt is reputed owner, or of which he has taken upon himself the sale or disposition as owner; provided that things in action other than debts due to him in the course of his trade or business shall not be deemed goods and chattels within the meaning of this clause."

The alterations effected in the law by that section will be seen to be, first, to limit the application of the law to bankrupt traders; secondly, to vest the property in the trustee immediately upon his appointment without any special order of court; and, thirdly, the exception of things in action other than trade debts. Section 20 of the Bills of Sale Act, 1878, made a still more sweeping exception by excluding from the operation of section 15, sub-section 5, of the Bankruptcy Act, 1869, all chattels comprised in any bill of sale duly registered under that Act. Now, in our opinion, by the passing of that section the only remaining value of the law of order and disposition was done away with, and it would be much better to entirely repeal the law than to continue it as at present. It always has been a doubtful question whether the law did not create much greater hardships than it remedied, and we have very little hesitation in saying that now its only effect is to create hardships. We will only give one instance within our own knowledge as an example. At a sale by auction of machinery a gentleman purchased a portion for £200, and paid the amount to the auctioneer. For the convenience of the purchaser, the vendor allowed the machinery to remain on his premises until the purchaser could remove it, and it so remained for some days, when the vendor filed a petition for liquidation. The trustee claimed the machinery as being in the debtor's reputed ownership, and the innocent purchaser not only lost the whole of it, but was unable even to prove against the estate for his £200 and get a dividend thereon. Now, this was a case of unmitigated hardship, as it is very certain that no creditor could ever have been deceived by the action of the purchaser into giving credit to the debtor, which he would otherwise not have done. Of course it may be said that everyone is presumed to know the law, and the purchaser ought to have known better than to have left his machinery as he did. That is very true; but at least everyone has a right to presume and expect that the law will deal fairly and honestly between man and man; and when we find that it has not that result, then, by all means, let it be altered. The policy of the law might have been very correct in the time of James I., but in these days it seems to us a little antiquated, very much bordering on the

absurd, and not at all suited to the requirements of the present age, especially when we consider the numerous exceptions founded on the various customs of different trades which the courts have from time to time engrafted upon the rule.

Another point which we have often found to work great hardship is the following:-A trader purchases goods, which, however, are not delivered until after he fails. If they are in transit, and the seller is fortunate enough to learn of the failure before the goods are delivered, he can, of course, stop the delivery, but if, as often happens, he is in ignorance of the failure for a day or two, the goods may be delivered even after the failure, and the sellor must then rank on the estate for the price of them, the goods becoming part of the insolvent's estate. This has always appeared to us a very unjust law, and whenever we have acted for debtors in such cases we have invariably advised them not to accept delivery of the goods, as we consider it nothing short of a moral fraud to do so under such circumstances. We think it would be a wise and just law which would provide for the return of the goods in such cases to the sellers. We cannot conclude these suggestions without noting the points raised by a correspondent in these columns (ante, p. 94). Three points are mentioned by him, but we will only deal with the first of them, as we think the other two have been dealt with in the Government Bill viz., by clause 35, sub-clause 4, paragraph (b.), and sub-clause 6, upon which we commented in their proper place. The first point, however, is one of some importance, and, though we do not agree with the proposal of "Prudens" to the full extent, we think the present law could very well be amended so as to do stricter justice between the creditors. "Prudens" suggests that, with regard to the admission of proofs of debts upon bankrupts' estates, all commissions on loans should be disallowed, and "there should be charged for all goods the lowest cash price, and allowed for all claims a fixed rate of interest-say simple interest at five per cent. -from the date of the loan or supply of goods, and disallow all extra interest." We should strongly object to any interference with the present law as to bargains between a debtor and his creditors such as is suggested by "Prudens," and we fail to see how any different law could be beneficially enacted to regulate such bargains in the event of the debtor subsequently becoming bankrupt. If this were done, we fear it might lead to debtors who may have made, or think they have made, improvident bargains becoming bankrupt for the purpose of getting out of the consequences of their own bargains, and the evil this would give rise to would, we think, be much greater than the fancied one raised by "Prudens." But we think that the latter part of rule 77 of the Bankruptcy Rules, 1870, might be amended so as to act more equitably. The latter part of that rule is as follows:

:

"Any creditor may prove for a debt not payable when the bankrupt committed an act of bankruptcy, and be entitled to prove such debt as if the same was payable presently, and receive dividends equally with the other creditors, deducting only thereout a rebate of interest at the rate of five pounds per centum per annum, computed from the declaration of a dividend to the time when the debt would have become payable according to the terms upon which it was contracted."

We would suggest that in the case mentioned in the portion of the rule above quoted the rebate of interest should be computed from the date of the order of adjudication, instead of from the declaration of a dividend, and for the following reasons. Take a case of a debt payable by instalments extending over several years. It is clear that the present

value of such a debt is very much less than the nominal amount. In the event of the debtor's estate being divided without delay, such a creditor would not of course be entitled to receive a dividend except upon the reduced amount after deducting a rebate of interest, but if the dividend, instead of being declared at once should be delayed for some time until such creditor's debt should have become due, then that creditor would obtain his dividend upon the full nominal amount of his debt, which obviously would reduce the amount of dividend to be paid to the other creditors. To reduce the point to figures let us suppose the fol lowing case :-A. becomes bankrupt, owing to the ordinary creditors £500, and also owing to B. £1,000, payable at the expiration of four years. His estate realizes after payment of all expenses £500 for division amongst his creditors. If divided forthwith it is clear that B. would have to deduct from his proof of £1,000 a rebate of four years' interest at five per cent., which would, we calculate, amount (in round figures) to £185. That deducted from £1,000 would leave £815 only on which B. would be entitled to rank for dividend, making the total claims on which dividend would have to be calculated £1,315. £500 would pay a dividend upon that sum of about 7s. 74d. in the pound. On the other hand, if the dividend were not declared until B.'s debt became due, the claims for dividend would amount to £1,500, on which £500 would pay a dividend of 63. 8d. in the pound only, so that the other creditors would thereby be judiced to the extent of nearly 1s. in the pound. Now, why should a delay in declaring a dividend make such a difference in the relative positions and rights of the creditors? We think it is generally, and that it ought to be invariably, the policy of the bankruptcy law that the claims of the creditors should be fixed as at the date of the bankruptcy. For instance, a creditor in respect of a debt carrying interest cannot prove for interest beyond the date of the adjudication, Surely there is quite as much reason

why such a creditor should be allowed to add interest to his debt up to the declaration of a dividend as there is for the present rule requiring a creditor whose debt is not due to deduct interest only from that time, instead of from the earlier date of the order of adjudication.

In concluding these papers, we have only further to say that if, in the remarks which we have had to make upon the Government proposals, we have appeared in any way hypercritical, our only object has been to aid, as far as lies in our power, in bringing'about a satisfactory settlement of a question which has now engaged the attention of the legal and commercial world for so long, and which is one of the utmost importance to a commercial country such as ours. It appears to us that, in order to make any code of bankruptcy law work satisfactorily, more will depend upon a close attention to details than upon upon even the general principles which may be enacted. A clumsily-drawn Bill, however perfect the system which may be proposed by it, cannot help, but must prove a failure, on account of the uncertainty of the effect of its provision, which can only be settled by expensive litigation, and also on account of the numerous loopholes which it may afford to evade its most salutary provisions, whilst a less perfect system carefully worked out in all its details, will be more likely to give general satisfaction; and this must be our excuse for entering so minutely into the details of the Government proposals. It is the interest of all that an Act should now be passed which will settle the question for some time to come; and solicitors are as much concerned in the matter as any other class of the community. The vulgar prejudice which attributes to the profession a desire only to assist in legislation which will operate for the benefit of its members, irrespective of the public good, the profession can well afford to treat with the disdain it deserves, and, notwithstanding such calumny, join in assisting to bring about such a settlement as will enure to the benefit of all.

CORRESPONDENCE.

SHERIFFS' IRREGULARITIES.

[To the Editor of the Solicitors' Journal.] Sir,-Referring to the publicity which Mr. W. J. Fraser and I have given to the grave conduct of certain sheriffs and their officers, will you allow me to say that we have convened a meeting of the profession for Thursday next, at five o'clock, in one of the rooms of the Law Institution? We think of inviting the sheriffs and under-eheriffs to hear what we have to say, for the time has come when we must no longer beat about the bush. FRANCIS K. MUNTON. 95A, Queen Victoria-street, E.C.

I

CASES OF THE WEEK.

WILL-EXECUTION-ATTESTATION—ACKNOWLEDGMENT OF SIGNATURE BY TESTATOR-WILLS ACT (7 WILL. 4 AND 1 VICT. c. 26), s. 9.-In a case of Blake v. Blake, before the Court of Appeal on the 14th inst., the question arose what is necessary to constitute an acknowledgment by a testator of his signature to his will in the presence of the attesting witnesses, such as to satisfy the requirements of section 9 of the Wills Act. The document propounded as the will of an alleged testatrix was signed by her, and was attested by two witnesses. The attestation clause stated that it had heen signed by her in the presence of the attesting witnesses, but did not state that it had been declared or acknowledged by her in their presence. Upon the evidence Hannen, P., came to the conclusion that the testatrix had signed the document before the witnesses came into the room, and that what afterwards took place in their presence did not amount to a valid acknowledgment by the testatrix of her signature. The signature was covered over with a piece of blotting-paper, and the witnesses did not see it, and had no opportunity of seeing it. If there was an acknowledgment at all, it consisted in the testatrix telling the witnesses that the document was her will. The Court of Appeal (JESSEL, M.R., and BRETT and HOLKER, L.JJ.) took the same view of the evidence. But it was argued that there had been a valid acknowledgment of the signature, mainly on the authority of Beckett v. Howe (18 W. R. 75, L. R. 2 P. & D. 1), in which Lord Penzance, professing to follow the previous decision of Sir C. Cresswell in Gwillim v. Gwillim (3 S. & T. 200), said that, "if the testator produces a paper, and gives the witnesses to understand it is his will, and gets them to sign their names, that amounts to an acknowledgment of his signature, if the court is satisfied that the signature of the testator was on the will at the time. Whether that decision was right or wrong, I have not to determine. It was founded on other cases. Provided the testator acknowledges the paper to be his will, and his signature is there at the time, it is sufficient." The Court of Appeal, however, held that this was not a correct statement of the law. JESSEL, M. R., said that he agreed with the statement of the law contained in 1 Jarman on Wills (4th ed.), p. 108, "There is no sufficient acknowledgment unless the witnesses either saw or might have seen the signature, not even though the testator should expressly declare that the paper to be attested by them is his will," adding that, in his opinion, it would not be sufficient if the testator said, "My signature is inside the will," unless the witnesses had an opportunity of seeing the signature. He agreed with what was said by Dr. Lushington in Hudson v. Parker (1 Robertson, 25), “How is it possible that the witnesses should swear that any signature was acknowledged unless they saw it? They might swear that the testator said he acknowledged a signature, but they could not depose to the fact that there was an existing signature to be acknowledged. It is quite true that acknowledgment may be expressed in any words which will adequately convey that idea, if the signature be proved to have been then existent-it would be quite sufficient to say That is my will,' the signature being there and seen at the time, for such words do import an owning thereof." The argument in support of the proposition laid down in Beckett v. Howe was founded on the notion that a statement by a testator to the persons whom he asked to attest a document, that the document was his will, necessarily involved a statement that his signature was affixed to it. But that was not so, for, until the document had been attested, it was not a valid will. Till that had been done the document was only what he intended to be his will. He might intend to sign it after the statement, just as he intended it to be attested afterwards. The statement did not necessarily involve the fact of previous signature. Lord Penzance did not intend to lay down the proposition himself, but intended only to follow what he supposed to be the decision in Gwillim v. Gwillim. When, however, that case was looked at, the Master of the Rolls thought that Sir C. Cresswell did not intend to decide anything of the kind. In that case, if the signature of the testator was there at the time of the attestation, it was impossible, under the circumstances, that the witnesses should not have had an opportunity of seeing it, and the argument turned on the question whether the signature was or was not there at the time of the attestation. His lordship could not find a word in the judgment of Sir C. Cresswell to show that he thought that, if the witnesses could not possibly have seen the testator's signature, his saying to them, "This is my will," would be a suffi. cient acknowledgment. The supposed doctrine, therefore, rested entirely on the statement of Lord Penzance in Beckett v. Howe of the effect of the decision in Gwillim v. Gwillim, and it had really no foundation at all. BRETT, L.J., said that he agreed with the reasoning of Dr. Lushington in Hudson v. Parker. He thought that the witnesses must see, or be able to see, that there was a signature, and that the testator must say something to them equivalent to saying, "This is my signature." If they did not see the signature, or have an opportunity of seeing it, the testator's saying to them, This is my will," or "My signature is there," would not be a sufficient acknowledgment. His lordship was of opinion that this conclusion involved a dissent from the views of both Sir C. Cresswell and Lord Penzance, for he thought that Sir C. Cresswell intended to decide in Gwillim v. Gwillim what Lord Penzance supposed that he had decided, and he felt the greatest difficulty in differing from two such eminent judges. But he was bound to act on his own view of the true construction of the statute, though, in so doing, he felt much more doubt of the proprie y of his own decision than he did of the impropriety of the decisions of Sir C. Cresswell and Lord Penzance. HOLKER, L.J., said that the object of the statute was that the witnesses should be able to testify either to the signature of the document by the testator, or to the acknowledgment of the signature by him, and, apart from authority, good sense would seem to require that the acknowledgment should be an acknowledgment of something which was shown to them by the testator. -SOLICITORS, W. H. Orchard; Lucas & Son.

DIVORCE ACTION-COSTS OF WIFE-SECURITY GIVEN BY HUSBAND.-In a case of McAlpin v. McAlpin, before the Court of Appeal on the 13th inst., the question whether the costs of the wife in a divorce action ought to be in all cases absolutely limited to the amount of the security previously given by the husband, came again before the Court of Appeal. This was the old rule in the Divorce Court, and it was always acted upon before the decision of the Court of Appeal in the recent case of Robertson. Robertson (29 W. R. 880, L. R. 6 P. D. 119). In that case it was held that there ought not to be any such absolute limitation, though the judge would have a discretion as to the amount of costs to be allowed to the wife in each particular case. McAlpin v. McAlpin the action was tried before the decision of the Court of Appeal in Robertson v. Robertson, and Hannen, P., acted on the old rule, limiting the wife's costs to the amount of the security which had been given by the husband. After the decision in Robertson v. Robertson the matter w-s brought before him again, but he declined to alter his original order. The Court of Appeal (JESSEL, M.R., and BRETT and HOLKER, L.JJ.) held that he had not exercised any discretion, but had simply persisted in following the old rule, and they therefore gave the wife the whole of her taxed costs of the action. SOLICITORS, Surr, Gribble, & Co.

In

WILL-CONSTRUCTION-CHARGE OF DEBTS ON REAL ESTATE-SALE BY EXECUTORS-RIGHT OF PURCHASER TO INQUIRE AS TO EXISTENCE OF DEBTS.-In a case of Tanqueray-Willaume to Landau, before the Court of Appeal on the 9th inst., the question arose whether a testator had, by his will, created a charge for the payment of his debts on his real estate, and there was the further question whether, on a sale of some of the real estate by the executors more than ten years after the testator's death, the purchaser was entitled to inquire whether any debts of the testator still remained unpaid. The testator appointed his wife and his son executrix and executor of his will, and he directed them to pay all his just debts, funeral and testamentary expenses, as soon as conveniently might be after his decease. And he gave and devised to them, trustees of his will, all his real estates, to hold the same unto then, their heirs and assigns, according to the natures and qualities thereof respectively. And he bequeathed to them all his personal estate (except such part or parts thereof as he had thereby specifically disposed of) unto them, their executors, administrators, and assigns, according to the natures and qualities thereof respectively. And the testator declared that his said real and personal estates were so devised and bequeathed upon the trusts thereinafter expressed concerning the same-viz., upon trust to pay the rents and the annual income thereof unto, or permit the same to be received and taken by, his wife during her life, and from and after her decease to raise and pay out of his said real and personal estates two legacies of £2,000 and £3,000 respectively. And, as to all the residue of his said real and personal estates, after the death of his wife, the testator gave, devised, and bequeathed the same unto his son, his heirs, executors, administrators, and assigns, according to the natures and qualities thereof respectively. Provided always that the testator's son should not be obliged to pay the two legacies at the end of twelve months from the date of the decease of the testator's wife, but should be at liberty to pay the same legacies, or either of them, with interest, at any time or times most convenient to himself within two years next after the decease of the testator's wife. The testator died on the 13th of May, 1871. On the 14th of June, 1881, the widow and the son, as executors and devisees in trust of the testator, put up for sale by auction some real estate of the testator. After the delivery of an abstract of title to the purchaser he took two objections: (1) that the testator's will did not create a charge of his debts on his real estate; (2) that, considering the length of time which had elapsed since the death of the testator, there was a presumption that his debts had been paid, and that, therefore, if there was a charge of debts, the purchaser was entitled to inquire, and the vendors were bound to answer, whether any debts of the testator still remained unpaid. The vendors relied on the will as creating a charge of debts, and declined to answer the inquiry as to the existence of debts. The purchaser took out a summons under the Vendor and Purchaser Act of 1874 to determine the matters in dispute. Kay, J. (25 SOLICITORS' JOURNAL, 875), was inclined to think, on the authority of the decision of Lord Hatherley when Vice-Chancellor in Harris v. Watkins (Kay, 438), that there was no charge of debts created by the will, because the executrix and executor took unequal beneficial interests in the real estate devised to them, and he, therefore, held that the title was too doubtful to be forced on a purchaser. He also intimated an opinion differing from that of Lord Romilly, M.R., in Sabin v. Heape (S W. R. 120, 27 Beav. 553), in which it was held that, when an executor had an implied power to sell real estate for the payment of the testator's debts, he might sell twenty-six years after the testator's death, and refuse to answer the question whether there were any debts then existing or not. Kay, J., said that, of course, so long as that decision was not overruled, he was bound to follow it in a case exactly like it, though it seemed to him a little unreasonable that, in a case of that kind, after so long a lapse of time, the purchaser should not be allowed to ask the question. But it was not necessary for him to decide the point. JESSEL, M.R., said that the law as to what would create a charge of debts by will on real estate was fairly stated by Fry, J., in Bailey v. Bailey (L. R. 12 Ch. D. 268, 273) thus :-"I do not think that there is any conflict in the authorities. They appear to me to come to this-that where there is a direction that the executors shall pay the testator's debts, followed by a gift of all his real estate to them, either beneficially or on trust, all the debts will be payable out of all the estate so given to them. The same rule applies whether the executors take the whole beneficial interest, as in Henvell v. Whitaker (3 Russ. 343), or only a life interest, as in Finch v. Hattersley (3 Rass. 345a), or no beneficial interest at all, as in Hartland v. Murrell (27 Beav. 204)." That being so, the only questions were whether there was any direction to the executors to pay the testator's debts, and whether there was a devise of the real estate to them. In the present case, there being a devise of the legal estate to the executors, there was no distinction between a charge of debts, with the implied power of sale which followed from it, and a trust to ell for