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REVIEWS.

ROMAN DUTCH LAW.

SIMON VAN LEEUWEN'S COMMENTARIES ON ROMAN DUTCH LAW. Revised and edited, with Notes, by C. W. DECKER, Advocate. Translated from the original Dutch by J. G. KorzÉ, Barrister-at-law, Chief Justice of the Transvaal. Vol. 1. Stevens & Haynes.

The next clause is one which deserves careful attention. provides that "a bill of sale shall be void unless the same is executed in the presence of a person who has authority to take oaths in the Supreme Court of Judicature in England, and, if the bill is executed in England, who is also a certificated solicitor, and such person shall state in the attestation of the execution of the bill of sale that he has before the execution of the bill of sale carefully explained to the grantor the nature and effect of the bill of sale, and The Roman Dutch law, it may perhaps be necessary to explain to further, if the bill is to be executed in England, that he was some of our readers, is the common law of our colonies of Ceylon, appointed by the grantor to be, and is, the solicitor of the Guiana, and South Africa. In Ceylon Van Leeuwen's work has grantor." The effect of this will obviously be to introduce con- long been the text-book, a translation into English having been In siderable difficulty in the execution of bills of sale in country published with special reference to the wants of that colony. districts. The commissioner for oaths will have to be hunted up, Commentaries of Van Leeuwen is one of the works prescribed for the South Africa, and, as Mr. Kotzé tells us, especially in the Transvaal, the and if he is away or engaged, the execution must be postponed. guidance of the courts. Mr. Kotzé has for the first time translated into Take, for instance (opering the Law List at random) the import-English the Notes to the Commentaries by Decker. ant town of Accrington, in Lancashire. There are stated to be only pretend to judge of the translation from the original Dutch, but we can two commissioners for oaths there; is it at all unlikely that testify to the terseness of the language in which the English version is both may be away on many days? If the clause should be expressed. Here and there it would appear that Van Leeuwen has not passed as at present drawn, the number of commissioners must very clearly expressed his meaning. be largely increased, and then where will be the guarantee, supposed to be afforded by the provision, of a certain extra trustworthiness in the attesting witness? The provision as to the attesting witness being appointed the solicitor of the grantor will increase the cost of the transaction, for the solicitor will apparently have to obtain a formal appointment by the grantor. If he is formally appointed the grantor's solicitor, he will be responsible to him for the propriety of the provisions of the deed, hence he will have to peruse and approve of it in the usual

way.

Clause 9 establishes a system of local registration of bills of sale with the registrars of the county courts, which will, we think, be a considerable improvement.

The next clause provides that every bill of sale made or given in consideration of any sum under £50 shall be void. The evidence before the committee showed the enormous prevalence of bills of sale for amounts under £20, and no question can arise as to their evil effect; but we are not clear as to the expediency of the remedy proposed. It is a question whether the effect will not be to encourage in many cases the advance of sums just over the statutory amount at increased rates of interest.

Clause 11 strikes at the root of most of the evils which have arisen from the new law by providing that

"Where a person, within twelve months after he has executed a bill of sale, becomes subject to the provisions of the law for the time being in force relating to bankruptcy or any similar proceeding, whether he is adjudged bankrupt or has his affairs liquidated by arrangement, or enters into a composition or otherwise, such bill of sale shall, as against the trustee or other person entitled to the estate of such person under the said law, be void in respect of any personal chattels which, at or after the commencement of the bankruptcy or liquidation or other date at or to which the proceedings under the said law are deemed to commence or to relate, are in the possession or apparent possession, or the order and disposition, of the person executing

such bill of sale."

There can be no doubt that it is the security given to the registered holder by the provision of the Act of 1878 taking chattels comprised in a registered bill of sale out of the order and disposition clause of the Bankruptcy Act, which has mainly attracted the attention of the money-lenders to bills of sale.

On the report of the Conveyancing Bill in the House of Lords, Lord Coleridge drew attention to the clause of the Bill which proposed to abolish the office and all the machinery for taking the acknowledgments of married women. He should submit to their lordships that the abolition of this office was unwise and inexpedient. The whole sche:ne and the functions of the com. missioners was regulated by Act of Parliament, and, so far as he knew, the law in many cases operated for the protection of persons who ought to have a certain protection thrown over them. The scheme was very inexpensive, and he believed that the judicial bench was in favour of the retention of the present system. He submitted that it was hardly worth while under the circumstances to abolish this office. Earl Cairns said that for many years there had been a great feeling that the system of the acknowledgment of the deeds of married women was entirely useless and very expensive. He did not speak of the fees paid to the commissioners, but in order to take an acknowledgment complicated machinery had to be set to work and solicitors employed, and, as a consequence, great expense was occasioned. He regarded the present system of taking acknowledgments as one which caused great expense and was productive of no advantage whatever.

codicils" will agree with Decker that the section is

We cannot

We think that most readers of the commencement of his dissertation "of the different kinds of wills and 66 very unintelligible." The translator has added useful notes of his own relating to decisions of the Privy Council and the South African courts, and other authorities. The book bears marks throughout of great care, and will unquestionably take its place as the standard English work on Roman Dutch law.

FIXTURES.

THE LAW OF FIXTURES IN THE PRINCIPAL RELATION OF LANDLORD AND
TENANT, AND IN ALL THE OTHER OR GENERAL RELATIONS. By
ARCHIBALD BROWN, Barrister-at-Law. FoURTH EDITION. Stevens &
Haynes.

We have delayed too long our notice of this new edition of Mr. Brown's useful work. The main changes consist in the statement of the provisions of the Bills of Sale Act, 1878, with reference to fixtures; and of the recent decisions as to the effect of disclaimer by a trustee in bankruptcy upon the right to the fixtures. Mr. Brown states very well and fully the cases on this subject, but refrains from commenting upon them. A new chapter has been added on the law as to ecclesiastical fixtures, or, rather, on the law of dilapidations as bearing on the subject of fixtures. increased if Mr. Brown would adopt a somewhat simpler style of phraseMay we be allowed to suggest that the pleasure of the reader would be ology. For instance, in the first paragraph of his new chapter, it does not conduce to the edification of the reader to be told of "any structure which, as being either of a strictly agricultural or of a barely necessary and completory character, has coalesced with the house."

CORRESPONDENCE.

THE CONVEYANCING ACT, 1881.
[To the Editor of the Solicitors' Journal.]

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Sir, I am one of those who, on first reading your remarks upon the Conveyancing Act, were disposed to think that you were not treating it quite fairly; but a little experience of its working has convinced me that you have really rendered a valuable service in pointing out that it is unsafe to rely on its provisions as superseding the established forms. The provision (section 3) that the production of the receipt for the last payment of rent shall be evidence of the observance of all covenants is qualified by the words "unless the contrary appears," and seems thus to leave it open to a purchaser to give evidence of a house being out of repair in resistance to a claim for specific performance.

The provisions (sections 3, 13) exempting a lessor or vendor of leaseholds from producing his title only apply to the cases noticed by you, and leave it incumbent on the contracting party to prove that he comes within one of them, and that he is not granting a lease under a power in a settlement, or dealing with a lease so granted.

The general words (section 6) are defective in the matter of casements as pointed out by you.

The covenant for quiet enjoyment in a mortgage (section 7) is curiously worded so as to suggest an implication against the mortgagee taking possession when no interest is in arrear; and the covenant for further assurance at the cost of the mortgagor is limited so as to determine when the mortgagee contracts to sell the property. Consequently, any act of further assurance that may be required to complete the title to a purchaser can only be obtained on paying the cost of it. The provisions respecting mortgages of leaseholds take no account of the last day of the term, which is always left in the mortgagor. The provision (section 21) relating to the surplus proceeds of sale of

mortgaged property directs it to be paid to the person entitled to the mortgaged property, or authorized to give receipts for the proceeds of sale thereof; which defines no one at all, unless it be the purchaser of the property, which is absurd.

The section (31) relating to the appointment of new trustees omits to clear away the doubt whether a person named trustee in a will, who disclaims, is a trustee within the meaning of the clause; or rather the words of the section enhance the doubt which formerly existed.

The Act professes (section 65) to allow a long term to be enlarged into a fee, when there was originally no pecuniary rent reserved, or a rent was reserved, but "has become barred by lapse of time"; while the law is that rent can never become barred by lapse of time.

creditor.

The section (61) inserting a joint-account clause into every mortgage authorizes the mortgagor to pay the money to the surviving mortgagee, although he has notice of a severance of the jointure; thus discharging a debtor by payment to one whom he knows not to be his proper What with negativing this clause, and the clauses relating to consolidation and leasing, and curing the other flaws above pointed out, a mortgage under the new Act must run to nearly as great a length as under the old law, and be less satisfactory, since its operation is less certainly known. PRUDENS.

CASES OF THE WEEK.

RESCISSION OF CONTRACT FOR SALE-MISREPRESENTATION-INQUIRIES MADE BY PURCHASER-ONUS PROBANDI THAT REPRESENTATIONS of Vendor WERE NOT RELIED ON-PLEADING-SOLICITOR MADE PARTY FOR COSTS.-In a case of Mathias v. Yells, before the Court of Appeal (JESSEL, M.R., Sir JAMES HANNEN, and LINDLEY, L.J.), on the 13th inst., the action being to set aside a sale of a sum of consols, which had been invested to provide for the costs which might arise in a pending suit in the Chancery Division, on the ground that misrepresentations had been made by the principal defendant, the court reiterated what was laid down in the recent case of Redgrave v. Hurd (ante, p. 74)— viz., that when a vendor has made material representations as to the value of that the representations were untrue, the onus is, not on the purchaser to the property sold, and the purchaser seeks to set aside the sale on the ground prove that he relied on the representations, but on the vendor to prove that he did not. JESSEL, M.R., referred to the recent case of Brownlie v. Campbell (L. R. 5 App. Cas. 925) as laying down the law on the subject. If a material representation was one which, from its nature, might induce the purchaser to act upon it, then there was an inference that he did act upon it, and, if it was untrue, the defendant was liable, unless he could prove that the plaintiff did not in fact rely on it, or that he had in effect said that he did not care about the representation, but would take the risk. The vendor could not say to the purchaser, You might have inquired, and, if you had, you would have

[To avoid misapprehension it may be well to add that our correspondent found out that what I said was untrue; nor could he say, You made some is an entirely independent witness.-ED. S. J.]

THE MARRIED WOMEN'S PROPERTY BILL. [To the Editor of the Solicitors' Journal.] Sir,-The fact that this Bill was read a second time in the House of Lords on Tuesday suggests that no time should be lost in calling attention to one anomaly in this most anomalous branch of law which is but imperfectly remedied by the proposed enactment.

As your readers are aware, section 6 of the Act of 1870 provides that personal property to which a woman, married after the passing of the Act, shall, during her marriage, become entitled as next of kin of an intestate shall belong to her for her separate use, while the next section provides that, in case of real estate descending upon her as heiress of an intestate, she shall have the rents and profits only for her separate use, although from the marginal note it is evident that the draftsman intended the absolute interest to belong to her.

The effect of this anomaly has just been exemplified in my own practice.

on it.

inquiries, if you had been more diligent you would have discovered everything. The question was whether the defendant had made a representation knowing it to be untrue, or whether he had taken on himself to make a statement without inquiring whether it was true or false, though he had the means of satisfying himself whether it was true or false. And, during the argument, JESSEL, M. R., said that in an action of this kind it was not necessary for the plaintiff to allege in his pleading that be relied on the truth of a material statement, the presumption being that, if it was material, he did rely The solicitor to the principal defendant was also made a defendant to the action, but he had not made any representation to the plaintiff, and had not even prepared the conditions of sale. He was, as JESSEL, M.R., said, made a defendant to the action only because he had acted as solicitor to the principal defendant, with the view of making him liable for costs. And, as had been said many years ago by Lord Cottenham, and more recently by Lord Selborne, it was improper to make a solicitor a defendant to an action for such a purpose, and the practice ought to be discouraged. The action had been rightly dismissed as against the solicitor, with costs.-SOLICITORS, Mason & Edwards; T. Hay; Brooks, Jenkins, & Co.

COMPOSITION RESOLUTIONS-REGISTRATION-EXAMINATION OF DEBTOR AT MEETINGS-PRESENCE OF SHORTHAND WRITER-STATEMENT OF AFFAIRS -

A lady client, married in 1875, inherited last year real property of considerable value. She has four infant children, one a son. On her SUFFICIENCY-IRREGULARITY IN PROCEEDINGS-LEAVE TO SUMMON FRESH death this child will, of course, in the absence of express provision, succeed to the entire property to the exclusion of the other three. My client wishes to prevent this by her will, but, of course, she is utterly powerless to do so, and her husband, if he survived her, would be equally so. The only way in which her object can be effected is by resorting to the cumbrous and costly procedure of the Fines and Recoveries Act and conveying the property to trustees, to be held upon such trusts as she shall by will appoint. Had the property been leasehold there would, of course, have been no impediment in the way of free testamentary disposition.

The Lord Chancellor deals with this anomaly by providing in section 3 of his Bill that every woman married before the commencement of the Act shall be entitled to hold as her separate property all real and personal property, her title to which shall accrue after the commencement of the Act, which is fixed to take place on the 1st of January, 1882. But why, if the provision be a proper one, and if its effect is to be retrospective at all, should that retrospective operation be limited to a few weeks, and thus the beneficial effect of the Act be denied to hundreds whose position is similar to that of my client? March 9. A SOLICITOR.

An American telegram states that the President has nominated Mr. Samuel Blatchford, judge of the Circuit Court, New York, as justice of the Supreme Court, to fill the place which Mr. Conkling recently declined.

before Easter.

Mr. Chamberlain announced in the House of Commons, on Thursday evening last, that the Government Bankruptcy Bill would not be introduced The office of clerk of the peace for the East Riding of Yorkshire has been accepted by Mr. Bickersteth, barrister, with the condition that Mr. Joseph Wilkinson, town clerk of York, is to hold the position of deputy-clerk.

Up to Monday, says the Times, 103 Bills have been introduced into the House of Commons since the commencement of the present session. Of that number fifteen are Government measures and the remainder are promoted by paivate members. Only two Bills have yet gone through all their stages and received the Royal assent; eighty are ready for second reading; two have passed the House of Commons; one originated in the Upper House; ten have reached the Committee stage, and three have been referred to the Examiners,

A

FIRST MEETING-BANKRUPTCY ACT, 1869, s. 126-BANKRUPTCY RULES,
1870, R. 295.-In a case of Ex parte Solomon, before the Court of Appeal on
the 9th inst., the question arose whether a creditor, who desires to examine his
debtor at a meeting under a liquidation petition filed by the debtor, is
entitled to have a shorthand writer present at the meeting to take down the
debtor's answers, and whether, if the meeting refuses to allow this, the
resolutions passed are of any validity as against dissenting creditors.
solicitor to attend the meetings under the petition as his proxy.
debtor having filed a liquidation petition, one of his creditors instructed his
The
solicitor desired to examine the debtor about his affairs, and he attended the
first meeting, taking with him a clerk who could write shorthand, for the
purpose of making notes of the debtor's answer?. At the meeting the
solicitor commenced examining the debtor, and the clerk made notes of his
answers. Some one called the attention of the chairman to the fact that a
reporter was present, and the chairman then asked the clerk whether he was
a creditor or a proxy for a creditor. The clerk replied that he was not, and
the solicitor then explained that he was there by his instructions to take
notes of the debtor's examination. The chairman said that this was an ir-

regular proceeding, and put it to the meeting whether they desired that the
clerk should remain or not. The meeting, by a large majority, resolved that
the clerk should withdraw, and he then left the room.
The solicitor con-
tinued his examination, but no notes of the debtor's answers were taken by
any one. The creditors resolved by the statutory majority to accept a
composition of 2s. 6d. in the pound, the solicitor, as proxy for his client,
dissenting. At the second meeting the solicitor again attended. He wished
to examine the debtor again, and took with him a professional shorthand
writer to make notes of the debtor's answers, but the meeting excluded the
shorthand writer in the same way as they had excluded the clerk at the first
meeting, and the solicitor declined to ask the debtor any more questions. The
resolutions passed at the first meeting were confirmed, the solicitor, as proxy for
his client, again dissenting. The registration of the resolutions was opposed
by the dissentient creditor, on the ground (inter alia) that he and his proxy
debtor and from having such examination taken down in writing. Mr.
were at both the meetings prevented from having a proper examination of the
Registrar Pepys overruled the objections, and ordered the reselutions to te
registered. The Court of Appeal (JESSEL, M. R., and COTTON and LINDLEY,
L.JJ.) held that the resolutions ought not to have been registered, and
ordered the registration to be vacated. It was urged that no request had
been made to the chairman to take notes of the examination, and that it was
his duty to take notes if requested to do so; that the meeting was a meeting
of creditors, and that no one but a creditor, or his proxy, had a right to be
present, and that, if every creditor who wished to examine a debtor was
entitled to bring a shorthand writer to take notes, great inconvenience would

arise. JESSEL, M.R., said that, though the Act was silent as to who might he present at the meetings, it had always been the practice to allow the debtor's solicitor to le present to protect him, and this was a rational practice. His lordship believed that it was also usual, when an accountant had been employed by the debtor, to allow him or his clerk to be present. How was it possible for justice to be done if no record upon which the registrar could act was kept of the debtor's evidence given at the meeting? Was it rational not to allow an examining creditor to have a shorthand writer present to take notes of what the debtor said? His lordship thought that it was wholly irrational. It was no part of the chairman's duty to take notes. It was said that every creditor might want to have a shorthand writer. That was not very likely, for the employment of a shorthand writer was a very expensive matter. But, supposing that twenty creditors had brought twenty shorthand writers, it would be reasonable for the meeting to say that only two should be allowed to be present. That was an answer to this suggestion. The proceedings in the present case had been wholly irregular, and on this ground alone the registration of the resolutions should have been disallowed. COTTON, L.J., said that by section 126 great power was given to the majority of the creditors, but they must be strictly watched in the exercise of it, and they must strictly follow the directions of the Act. One of those directions was that the debtor should be present at the meetings, and should answer any inquiries made of him. He must also produce a statement of his Dssets and debts, and in Ex parte Aaronson (26 W. R. 470, L. R. 7 Ch. D. 713) it was decided that his answers to questions put to him at the meetings would go before the registrar as part of his statement of affairs. The directions of the Act, as explained by that decision, implied that some note in writing must be made of the examination, and in questions of figures it was of the utmost importance to the examining creditor that he should have a written note to refer to. In his lordship's opinion, the exclusion of the shorthand writers in this case was entirely wrong. It was urged that the meeting was to be a meeting of creditors. But the Act nowhere said that no one else was to be present, if his presence was essential for reasonably conducting the proceedings. And, in his lordship's opinion, it was essential-not, indeed, that every creditor should have a shorthand writer present, but that there should be some reasonable means of making a record in writing of the debtor's answers. LINDLEY, L.J., thought the proceedings at both the meetings had been so conducted as not to be fair to the dissentient creditors. There was no real opportunity of examining the debtor, and the conduct of the majority, in excluding that assistance of which the examining creditor stood in need, was unreasonable.

Another objection to the registration which the court held to be fatal arose in this way. The debtor was a solicitor, and had carried on business in partnership, but the partnership had been dissolved just before the filing of the petition, and the business was thenceforth carried on by the other partner alone, who was to receive the assets and to pay the debts of the firm. In his statement of affairs the debtor, in the list of book-debts due to his late firm, bad made the following entry and nothing more:-"The book-debts of my late firm, as far as I have the means of ascertaining, the greater part being actions and suits which are pending, and other matters in progress, which I estimate to realize about £9,500. The costs outstanding, forming the above, in most cases are neither made out nor taxed." JESSEL, M.P., said that to call this a statement was simply ludicrous; the debtor by it pledged himself to nothing. He ought to have given the names of the debtors, and, where the bills of costs had been made out, he should have stated the amounts, and, in other cases, he should have given an estimate. He should have applied to his late partner for the necessary information. If, however, for any reason, it was impossible for him to make a sufficient statement, the only result would be that he could not have a liquidation by arrangement or a composition, but must be made a bankrupt. The question then arose whether the court would allow the debtor to summon a fresh first meeting of his creditors. And it was urged on behalf of the dissentient creditors that the coart would only allow this to be done in a case where there had been a slip in the proceedings, and that here the majority had deliberately gone wrong. JESSEL, M.R., thought there bhad been nothing more than an irregularity. He could see no evidence of mala fides. The offer of a composition of 2s. 6d. might be a fair one, but at present the court had no means of judging whether it was so or not. By reason of an irregularity the resolutions could not be registered. But, seeing that the great majority of the creditors desired to have a composition, why should the debtor be driven into bankruptcy? Of course, if the debtor had been guilty of gross misconduct, the court would not give him a new chance of escaping bankruptcy. But, considering the wishes of the majority of the creditors, and that the debtor had not been guilty of any misconduct, he ought to be allowed to summon a fresh first meeting of his creditors. The court, accordingly, ordered that a fresh first meeting should be summoned, and gave leave to use at it the proofs and proxies which were already on the file. They also said that, if a composition was resolved upon, the costs would be paid by the debtor; otherwise, they would be paid out of his estate.-SOLICITORS, 4. S. Jonas; Dubois & Reid.

RAILWAY COMPANY-COMPULSORY POWERS TO PURCHASE LAND-ACCOMMODATION WORKS-RAILWAYS CLAUSES ACT, 1845, ss. 16, 68.-In a case of Wilkinson v. The Hull and Barnsley Railway Company, before the Court of Appeal on the 10th inst., the question arose whether a railway company could use their compulsory powers of taking land for the purpose of taking land from one landowner in order to construct accommodation works for another landowner. The railway of the defendant company was carried by an embankment over and intersected land of the plaintiff, and also of one Davy, the owner of adjoining land. It was proposed by the company to provide access between the severed portions of the plaintiff's land by an archway under the embankment which abutted upon his land; and in order to give Divy the benefit of this communication, without making a second accommodation archway, the company had served the plaintiff with notice to

treat for two strips of land on either sile of the line, upon which they pro posed to make a roadway from and to Davy's land, passing under the accom. modation archway. These strips of land were comprised in the lands shown on the company's deposited plans. The action was brought to restrain the company from taking the plaintiff's land for this purpose, on the ground that they were not taking the land for the purposes of their undertaking, but in order to save themselves the expense of making the obvious and more convenient communication by a second archway directly between the severed portions of Davy's land. Kay, J., granted an injunction, but his decision wis reversed by the Court of Appeal (JESSEL, M. R., and COTTON and LINDLY, L.JJ.). JESSEL, M.R., said that the real question was whether taking the plaintiff's land for the purpose of making these accommodation works for Davy was taking it for the purposes of the company's undertaking, and, if there had been no decisions on the point, his lordship, on the words of the Act, should have come to the conclusion that the taking of land by a railway company for the purpose of constructing works which they were liable to make, or which they were empowered to make, was a taking of it for the purposes of their undertaking. In section 16 of the Railways Clauses Act no distinction was made between the railway itself and accommodation works, and by section 68 the company were compelled to make certain works "for the accommodation of the owners and occupiers of land adjoining the rail way (inter alia), such and so many convenient gates, bridges, arches, culverts, and passages over, under, or by the sides of, or leading to or from, the railway as shall be necessary for the purpose of making good any interruption caused by the railway to the use of the lands through which the railway shall be made." If the company could make good such interruptions in two or three ways, who was to decide which method should be adopted? Clearly the company, acting upon the advice of their engineer; and if the method proposed should not be convenient to the landowner, power was given to him by section 69 to apply to two justices. But, provided the method was convenient to the landowner, it appeared clear that the company had the power of determining which method should be adopted. In the present case the landowner for whose benefit the proposed accommodation works were to be made did not object, but the landowner whose land was to be taken objected. The company said that, if the communication was made in the way suggested by the plaintiff, it would be highly inconvenient, as, in order to make this second archway, they must either raise their embankment or lower the road so as to expose it to the risk of being flooded. In the one case there would be serious inconvenience to the company, in the other to the landowner. How could it be said that the land proposed to be taken was not required for the purposes of the undertaking? Independently of any decisions, his lordship was of opinion that the company had power to take the land. But the case of The Stockton and Darlington Railway Company v. Brown (9 H. L. C. 246), showed that, when it was once proved that the purpose for which land was required was a purpose of the undertaking, the company, if they were acting bonâ fide, had power to take the land. Whatever a company was empowered to do was a purpose of their undertaking, and by section 68 the company was compelled to make good the interruption caused by the severance of a landowner's land. The case of Earl Beauchamp v. The Great Western Railway Company (16 W. R. 1155, L. R. 3 Ch. 745), was a distinct authority for the present case. There it was said by the plaintiff that some land, which the defendants had taken from him, had become superfluous land, and that they were bound to re-convey it to him. The defendants said that the land was not superfluous, because they wanted to use it to construct accommodation works for another landowner. And the case was decided against the plaintiff on the ground that the company could have taken his land in the first instance for the purpose of making the accommodation works, and that, therefore, having originally taken it for the purpose of making the embankment of their railway on it (which they had afterwards altered), they were entitled to keep the land for the purpose of the accommodation works. His lordship was of opinion that the company were entitled to take land for the purposes of any works which they were empowered to make, but in the present case it was sufficient to say that they could take land for the purpose of making works which they could be compelled to make. COTTON, L.J., said that the question was simply whether the land was bond fide required for the purposes of the company's undertaking. It was not necessary to show that the company could be compelled to make the works; it was enough to show that the land was reasonably required for the purpose of works which the company had power to make. The landowner whose land had been severed was not to be considered unless he was objecting to the mode in which the company proposed to restore the communication. The word "necessary" in section 68 meant necessary in the sense of restoring the communication in a convenient way, and it was left to the company's engineer to say what was a convenient way. Of course, if it was clear that the land which it was proposed to take could not be reasonably required for the purpose, the court would come to the conclusion that the engineer was not acting bona fide. The decision in Pugh v. The Golden Valley Railway Company (28 W. R. 44, 863, L. R. 12 Ch. D. 274, 15 Ch. D. 330), was quite consistent with this view. LINDLEY, L.J., said that the plaintiff's argument was that it was not necessary to take his land, because the communication for Davy might be made in another way. This was a suicidal argument, for, if there were six ways in which an accommodation work could be constructed, it might equally be said that each of them was not a necessary way. The only prac tical method was to allow a discretion to the company's engineer to decide in which way the work should be constructed, and all the authorities were in favour of this view. Earl Beauchamp v. The Great Western Railway Company was exactly in point.-SOLICITORS, Brooksbank & Galland; Frankish & Buchanan.

PRACTICE-ADDING PARTIES FOR DISCOVERY-SOLICITOR-JUDICATURE ACT, 1873, s. 24, SUB-SECTION 3-ORD. 16, R. 13.—In a case of Berry ▾. Keen, before the Court of Appeal on the 15th inst., a question arose as to adding a party to an action merely for the purpose of obtaining discovery from

him. The action was brought by persons who, under the will of a testator, were entitled to real estate to recover possession of it from the defendants, who were in possession without any title. The defendants alleged that the legal estate was vested in some persons to whom the testator had conveyed it by way of mortgage. The plaintiffs interrogated the defendants, and asked them the names of the mortgagees. The defendants answered that they did not know the names of the mortgagees, but that their solicitors knew their names. The solicitors had acted for the testator in the preparation of the mortgages. The plaintiffs then took out a summons asking that they might be at liberty to add the solicitors as defendants to the action, and to interrogate them as to the names of the mortgagees, the object being then to make the mortgagees defendants. Hall, V.C., refused the application, and his decision was affirmed by the Court of Appeal (JESSEL, M.R., and COTTON, and LINDLEY, L.JJ.). Reliance was placed on section 24 (sub-section 3) of the Judicature Act, 1873, and on rule 13 of order 16, and also on the case of Banner v. Jackson (1 D. & Sm. 472), which, it was said, showed that before the Judicature Act the solicitors could have been made defendants for the purpose of discovery. JESSEL, M.R., said that a mere witness could not be made a party to an action, however essential the discovery which he could give might be to the plaintiff. In Banner v. Jackson the solicitor of the other defendant was properly made a defendant, because he had possession of certain documents which the other defendant c'aimed, and of which the plaintiff sought the delivery up. COTTON, L.J., said that in that case the solicitor had made himself an active party in the litigation. LINDLEY, L.J., said that the present application was, perhaps, an experiment worth trying, but it could not succeed.-SOLICITORS, G. E. Carpenter; Brooke & Chapman.

PRACTICE-DISCOVERY-INTERROGATORIES-ADMISSIONS-Ord. 31, R. 2.— In a case of The Attorney-General v. Gaskill, before the Court of Appeal on the Sth inst., the question was raised whether, under the present practice, interrogatories can be delivered by a plaintiff merely for the purpose of obtaining from the defendant an admission of right, or whether they ought to be restricted to the obtaining from the defendant information as to facts which are within his knowledge, and are not within the knowledge of the plaintiff. The action was brought by the Attorney-General, at the relation of a local board, to restrain the defendant from building (as it was alleged he was doing) so as to obstruct a footway which the plaintiff's alleged to be a public highway. The plaintiff delivered interrogatories for the examination of the defendant, and asked him (inter alia) whether the path in question was not a public highway, and whether it had not been for many years so used by the public. The defendat t declined to answer this interrogatory, and Bacon, V. C., held that he was not bound to answer. It was urged on the defendant's behalf that the proper mode of making admissions is by the pleadings, which, under the present practice, are not put in upon oath, and that the discovery to be ob'ained by means of interrogatories is now limited to facts which the party interrogated knows, and which the interrogating party does not know. And reliance was placed on the decision of Bacon, V.C., in Johns v. James (L. R. 13 Ch. D. 370), in which the Vice-Chancellor disallowed an interrogatory delivered by a defendant to a plaintiff, asking whether certain allegations in the statement of claim were true or false. His lordship said that such an inquiry was like saying, "Have you not told a falsehood in your statement of claim?" and he thought that such an inquiry was not the province of interrogatories, and there was no reason why the plaintiff should be put to answer any such inquiry. JESSEL, M. R., said that the Vice-Chancellor appeared to have proceeded on some misapprehension as to the effect of the Judicature Act. The Judicature Act did not alter the old practice as to discovery, except so far as the rules expressly altered it. His lordship must not be supposed to be encouraging the practice of interrogating the defendant through all the statements contained in the statement of claim, as was the practice in the Court of Chancery before the Judicature Act. But rule 2 of order 31 provided a means of checking the delivery of unnecessary interrogatories, and his lordship hoped that a more effectual mode of checking this would soon be given. Here the defendant denied the existence of the alleged public right of way. The plaintiff asked him whether he did not know that there was this highway, and whether it had not been used by the public. The interrogatory was material. The objection to it was that it sought an admission on oath from the defendant of the whole matter in dispute. That was no objection at all. It was because the plaintiff had to prove his case that he sought to obtain an admission of his right from the defendant, If the plaintiff could get the admission, he would be relieved from the necessity of proving his case. prove it would involve the calling of a great number of old witnesses, which would be a very expensive proceeding. One of the great objects of interrogatories had always been to save the expense of adducing evidence by getting admissions from the defendant, and not merely the discovery of facts which would lead to evidence. COTTON, L.J., said that the argument was that the old practice of the Court of Chancery as to discovery before the Judicature Act must be thrown aside now. This was a mistake. The Judicature Act enabled every party to interrogate his adversary, subject to certain checks, but the right to discovery remained the same as it was before. A party had a right to ask for admissions from his adversary of everything which was material to the issues raised on the pleadings. The object of the pleadings was to ascertain the issues between the parties; the object of interrogatories was to obtain admissions on oath which would relieve the interrogating party from the burden of proving his case by evidence. But his lordship would never encourage in any way the old practice of interrogating to every statement in the statement of claim, whether it was material or not. That practice was checked by rule 2 of order 31, and would probably hereafter be more effectually checked. LINDLEY, L. J., said that the Vice-Chancellor seemed to have forgotten that the rule under the Common Law Procedure Act, that it was necessary to obtain leave to deliver interrogatories, had been now abolished except

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in the case of a company. No doubt the old chancery practice had been materially altered in this respect, that now the statement of defence and the interrogatories were different documents. It would be a great abuse to compel a man to admit on oath that which he had already admitted by his pleading, and for this reason the common law divisions had declined to allow interrogatories to be administered to a defendant until after he had delivered his defence. But, subject to this, the old practice of the Court of Chancery remained. A plaintiff was still entitled to discovery from the defendant, not only of facts within the defendant's knowledge, but to discovery in the wider sense of admissions of right. And in this case bis lordship could see nothing oppressive or vexations in asking the defendant whether he would admit on oath the existence of the alleged highway.SOLICITORS, Taylor, Hoare, & Taylor; F. Needham.

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RULES OF LONDON STOCK EXCHANGE-APPOINTMENT OF SETTLING DAY - DEFRAUD RIGHTS OF JOBBERS IN SHARES OF NEW COMPANY FAULTING MEMBER-ADMINISTRATION OF ASSETS BY OFFICIAL ASSIGNEE OF STOCK EXCHANGE-RIGHTS OF CREDITORS-DEBTOR'S SUMMONS-SECURITY -BANKRUPTCY ACT, 1869, s. 7-COPIES OF SHORTHAND WRITER'S NOTES OF EVIDENCE-COSTS.-In a case of Ec parte Ward, before the Court of Appeal on the 9th inst., some questions arose as to the construction of some of the rules of the London Stock Exchange. By the custom of the Stock Exchange all members are liable as principals upon the contracts into which they enter, even though they are, in fact, acting only as brokers for a p incipal. One rule provides that all contracts entered into with respect to the shares of a new company are contingent on the appointment of a special settling day by the committee. Another provision of the rules is that, when a member is declared a defaulter on the Stock Exchange, all his outstanding contracts are at once closed by the official assignee appointed under the rules, who receives all differences which are payable on that footing in respect of the winning contracts, and pays all differences which are due on the same footing in respect of the losing contracts. In Ex parte Ward a broker was commissioned by a client to buy for him some shares in a new company. The broker accordingly bought the shares from a jobber at a time when no settling day for the company's shares had been appointed. Both the jobber and the broker were members of the Stock Exchange. A settling day was afterwards appointed by the committee of the Stock Exchange. The application for a settling day was opposed, on the ground that there had been fraud in the getting up of the company, but the committee, after a long investigation, came to the conclusion that the allegations of fraud had not been proved. The client failed to provide the funds necessary to pay for the shares, and the broker was unable to do so, and, consequently, he was declared a defaulter on the Stock Exchange, and his contracts were closed by the official assignee in the ordinary way, but very little (if anything) was obtained in this way for distribution among the Stock Exchange creditors. The jobber afterwards, with the consent of the creditors of the broker (as required by another of the Stock Exchange rules), issued a debtor's summons against him for the amount due to him on his contraets to buy the shares. The broker applied to the court to dismiss the summons, alleging that no debt was due from him, mainly on the ground (1) that the appointment of the settling day had been obtained by fraud, and was, therefore, invalid; (2) that the jobber, having had the benefit of the distribution of assets by the Stock Exchange assignee, was precluded from taking any legal proceedings against the broker in respect of the same matter. Mr. Registrar Pepys overruled the objections, but, as the jobber did not object to the question of the validity of the debt being tried in an action, he ordered the proceedings on the summons to be stayed, pending the trial of an action, The on the terms of the broker giving security for the amount claimed. broker appealed, and it was urged that no security ought to have been required. The Court of Appeal (JESSEL, M.R., and COTTON and LINDLEY, L.JJ.) affirmed the decision. JESSEL, M.R., said that even if the settling day was obtained by frand, that could not affect the rights of the jobber, unless it was shown that he was a party to the fraud, and of that there was not a particle of evidence. Even if such an extravagant notion could be entertained as that the committee were themselves parties to a fraud, that would not affect the rights of the jobber, if he was not a party to it. Then it was said that when a man was declared a defaulter on the Stock Exchange, the official assignee closed his accounts, and distributed what he received among the defaulter's creditors, and it was said that this had released the debt. Why it should, his lordship could not conceive. There was no such provision in the rules. To the extent, indeed, to which the debt had been paid in this way, it would be discharged, but no further. It was said that one of the rules provided that no legal proceedings should be taken by a member against a defaulter without the consent of his creditors. In this case, however, the creditors of the appellaut had given their consent. But, if they had not, the rule did not destroy the debt. So far as his lordship was concerned, he could not see why the proceedings on the summons should have been stayed at all, even on the terms of security being given. But the respondent had consented to an order in that form. The law on this subject was quite settled by the two cases of Ex parte Wood (4 D. M. & G. 875), and Ex parte Wier (20 W. R. 457, L. R. 7 Ch. 319). In the latter case, Lord Justice James said, "The registrar ought to have had regard, not merely to Wier's solvency, but to the prospect of Tucker's success in an action." And Lord Justice Mellish said, "In determining whether security should be given, the registrar ought not only to consider the solvency of the alleged debtor, but also what is the probability that the claimant will be able to establish a debt. If the probability is that there is a good defence, security ought not to be required.' Applying that rule to the present case, it was, in his lordship's opinion, tolerably clear that the appellant would have no defence to an action by the respondent for the alleged debt, and, therefore, the registrar was quite right in requiring security to be given. COTTON, L.J, and LINDLEY, L.J., both agreed that the fact that a settling day had been obtained by fraud would be wholly im

material unless it could be shown that the jobber was an actor in or a party to the fraud, and of that there was no evidence.

The court allowed the respondents the costs of copies of a shorthand writer's notes of evidence taken before the registrar, on the ground that the respondents had been served by the appellant with notice that these notes would be read.-SOLICITORS, L. Rawlins; Travers Smith, & Braithwaite.

TAXATION OF COSTS-DELIVERY OF BILL OF COSTS TOGETHER WITH CASH ACCOUNT-RETENTION OF COSTS AND PAYMENT OF BALANCE-ATTORNEYS AND SOLICITORS ACT (6 & 7 VICT. c. 73), s. 41.-In the case of In re Angove, before Chitty, J., on the 10th inst., a motion was made by a solicitor to discharge an order for taxation. It appeared that the applicant, during the year 1879, and subsequently, had been engaged in transacting business for one Scowen. On the 30th of May, 1881, the solicitor delivered to Scowen his bill of costs, amounting to £100 93. 7d., and on the day following a cash account, which showed a balance of £1 18s. 1d. to Scowen's credit after deduc'ing the bill of costs. On the 24th of November, 1881, Scowen called at the s licitor's office, requesting payment of the balance due to him, and received from the solicitor a cheque for £1 169. only. On the 23rd of February, 1882, Scowen took out a common order for taxation of the bill of costs delivered to him on the preceding 30th of May. The solicitor sought to discharge this order, on the ground that the receipt by Scowen of the balance was tantamount to payment of the bill. CHITTY, J., said that it was impossible, in the present case, to say that the solicitor had discharged the demands of his client in full, because it was apparent that the sum of 23. 1d. was still unpaid. It must be held upon the facts that the client was entitled to the order asked for, since in point of law a payment of £1 16. was not a payment of £1 18s. 1d. His lordship was also of opinion that if the solicitor had intended, by the payment actually made, to have finally settled all accounts between himself and his client, he should have drawn his client's attention to the matter at the time of payment, in order that an opportunity might be given to his client at once of taxing the bill of costs if he wished to do so. The motion must be refused, with costs.-SOLICITORS, Angove; Emanuel § Simmonds.

LANDLORD AND TENANT-DEMISE OF REALTY AND CHATTELS-DESTRUCTION BY FIRE-RENT.-In a case of Marshall v. Schofield, a case tried at the last Liverpool Assizes and heard on further consideration by Chitty, J., on the 14th inst., an important question arose as to the liability of certain lessees to pay rent under the following circumstances :-The plaintiffs, the trustees of a will, agreed to demise to the defendant "room and power" in a mill at an annual rent of £700, the landlords supplying steam power. The defendant entered under the agreement, occupied the premises for one year, and paid one year's rent. At the beginning of the second year the premises were burnt down. The agreement contained no clause providing for cesser of rent in case of the destruction of the premises. The plaintiffs claimed the whole second year's rent, less certain deductions, relying on the rule of law that if realty and personalty are demised together the rent issues out of the realty only. The defendant, on the other hand, contended that the rent being indivisible, and the law not allowing apportionment, no rent whatever was payable. The landlord was unable to perform one side of the contract, and it was absurd to contend that the tenant was, nevertheless, bound to perform the other side. If the rule of law was to bear the interpretation claimed by the plaintiff, the result would be that the landlord would be benefited by the destruction of his property. CHITTY, J., said that the rule of law was clear that rent issues out of the thing demised and every part of it. There had been endeavours long since to relieve the tenant upon the destruction of the tenement from the necessity of paying rent. But those endeavours had failed, and the established law was that the rent must be paid notwithstanding the disappearance of the property. The present case did not fall within that class of cases where there was a contract with covenants to be performed by either party. The result was that he must hold that the plaintiffs were entitled to the rent claimed, however harsh the law might seem to be, and however unfortunate the defend. ants who had, probably, entered into the agreement in question without any legal assistance-might appear. It might be observed that it was usual in the case of properly drawn demises of land and effects-for instance, in the case of a demise of a house and furniture-to re servetwo separate rents, and to insert a proviso of cesser of rent upon destruction by fire. His judgment must, therefore, be for the amount claimed.-SOLICITORS, Bower & Cotton, for Jubb & Pooth, Halifax; H. Thompson, Liverpool.

SOCIETIES.

SOLICITORS' BENEVOLENT ASSOCIATION. The usual monthly meeting of the board of directors of this association was held at the Law Institution, Chancery-lane, London, on Wednesday, March 8, Mr. Philip Rickman, in the chair; the other directors present being Messrs. Asker (Norwich), Brook, Hedger, Hunter, Kays, Mellersh (Godalming), Paterson, Pennington, Roscoe, Rose, Smith, Walters, and Woolbert (Mr. Eff, secretary). A sum of £305 was distributed in grants of assistance anong the necessitous families of thirteen deceased solicitors; five gentlemen were admitted members of the association; bequests of £100, in each case, announced under the wills of the late Henry Spence Fairfoot, Esq., and Charles Richard Craddock, Esq., solicitors; and other general business transcted.

EQUITY AND LAW LIFE ASSURANCE SOCIETY. The annual general meeting of the shareholders was held on Tuesday, at the society's house, No. 18, Lincoln's-inn-fields, Mr. John M. Clabon presiding.

The secretary (Mr. S. W. Berridge) read the notice convening the meeting

The report, which was taken as read, states that "During the past year, the 37th in the history of the society, 227 new policies have been issuel, assuring £389,991; and of this amount £331,791 has been retained by the society, and the remainder re-assured. The gross amount of the new premiums is £12,791 98. 11d., and the net amount, after deducting re-assurance premiums is £11, 142 0s. 9d. The renewal premiums have amounted to £121,768 118 78., and the amount of assurances, excluding re-assurances, in force at the end of the year was £4,340, 169, the premiums on which amounted to £128,974 2. 74. The amount of interest and dividends received during the year wis £59,738 14s. 1d., an amount rather smaller than that received in the previous year. This arises chiefly from the lowered rate of interest, and from our having had a large sum on deposit during the year. Three reversions have fallen into possession during the year, and one has been realized, which latter, with four allowed to be redeemed, have yielded a profit in all of £1,769 11s. 101. Two small balances, amounting to £226 17s. 11d., have been written off. The claims have amounted to £99,805 93. 3d., which is somewhat less than the expectation according to the tables by which the society's valuations are made. The amount of annuities paid during the year is £20, 110 0s. 8d., whilst the amount received for the purchase of new annuities is only £10,565 63. 11d.; the amount in force has decreased by £500 during the year. The total receipts during the year have amounted to £205,570 1s. 93., and the total payments to £151.650 10., so that the society's assets have been increased by £53,919 11s. 9d. They now amount to £1,721 603, and excluding the unproductive items, such as cash on current account and also the rever sions, the remainder was invested on the 31st of December at an average rate of £4 10s. 61. per cent. per annum. The directors who retire by rotation are the Hon. Mr. Justice Denman, Mr. Staveley Hill, Mr. Bristowe, and Mr. Horace Smith. Two of the auditors, Mr. Bailey and Mr. Pitcairn, also retire. All these gentlemen offer themselves for re-election.

The CHAIRMAN said-Gentlemen, it is now my duty to move the adoption of the report, and I am glad to tell you, as you have already seen, that I have again a prosperity speech to make to you. On looking over what I have said in past years, and what used to be said by our good friend, Mr. Russell, I find we are going over the same ground again and again, but while the figures are new, it must be interesting to all of us to know what the present actual state of the society is. I told you last year that we were wellto-do, because we had in the previous year sufficient new business, that we made a careful selection of our lives, and that we put out our money on good security. I think you will say, when I have finished my speech, that we can make the same assurance again this year. My friend on my left (Mr. Berridge), to whom we are so much indebted for the prosperity of the society, gives me some figures, and I shall read them to you, under various heads, to justify what I have said. The first I have will be the amount insured during the past year, which is £389,991. During the last five years the figures are these: I will give you the thousands and omit the hundreds. In 1876 the amount was £432,000; in 1877, £361,000; in 1878, £280,000; in 1879, £413,000; and in 1880, £366,000. The average of these is £379, 160, so that you see we are more than the average for the last five years in the sum insured. If I take the premiams, I find the sum received for new premiums during the past year is £12,791. Then, taking the five years as before, in 1876 we received £15,197; in 1877, £13,000; in 1878, £8,600; in 1879, £13,000; and in 1880, £12,000. The average of this is £12,650, and the new premiums of last year being £12,791. Again, we are beyond the average of the last five years. I may tell you here that the average amount of our policies during the last year is £1718, and I need not tell you that the higher the amount, the probability is the higher the class of the life, and the higher the class of life, the life is 80 much the better. Therefore, when we have large policies you are pretty sure they are good lives. On the question of interest I shall have a little explanation to give, because those of you who have carefully analysed the account, will find that although our capital fund has been more, the interest received during the last year has been rather less. simply that we cannot get the interest we used to get. Where we used to get 5 per cent. we now get 4 per cent., and where we got 4 per cent. we now get 4. We are glad to get good first-class securities even at 4 per cent., although we generally get a little more. We had a large amount during a considerable part of the year on deposit. We make investments from time to time as you see, but as we cannot get them to pay us more than £3 13. per cent. you will readily suppose we are not anxious to go largely into securities of that class when we can get good mortgages to pay something like 44 per cent. Just now we have been waiting for a little time to get rid of a sum of £75,000 on good mortgage. Happily, lately we have got good interest, but there are times when money is wanting for a good mortgage, and the rate of interest being low the amount received of course suffers. From time to time reversions come in; they pay a higher rate then anything else—at least 6 per cent.-but they do not count in our interest. If we put out £30,000 during the year, possibly what we may get is £50,000 on reversions, but that does not count in the interest of the year. For these reasons, and in spite of all our care, the interest during the year does not come to quite so much as the interest of the preceding years. The claims again, though they seem of large amount, are one of our favourable items. They are just under £100,000, but they might have been, according to the calculations, £107,000; therefore we are under the mark, and that is another instance of the careful way in which we select our lives. Another item I should like to remark upon is that the

The first reason for that is

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