66 of private bill legislation that promoters should be in the main persons of substance, able to invest considerable sums, and to forego, for a time, interest upon their capital. A railway promoted by unsubstantial persons is a public disadvantage on two grounds: first, it prevents another and a better railway being made; and, secondly, it disarranges a neighbourhood and interferes with private property for an insufficient cause. opinion between those two learned judges, and the exclusion of an | provident investments, but because we take it to be of the essence appeal by section 47 of the Judicature Act, 1873, as construed in Reg. v. Whitchurch (L. R. 7 Q. B. D. 534). The question depends on the construction of section 5 of 7 & 8 Vict. c. 101, which directs that money payable under an affiliation shall be due and payable, &c.; and section 4 of the Act of 1872, which enacts that justices "may" direct any sum due under an order to be recovered by distress, &c. HUDDLESTON, B., construes may to mean shall," while GROVE, J,, construes it otherwise. The 4th section of the Bastardy Act, 1872, is so lengthy that it is impossible to discuss such a question properly without copious extracts from it; but it may be observed that "may" simpliciter occurs twice therein, and "may if they see fit" twice also. Apart from authority, we should have thought that "may" simpliciter was obligatory, and "may if they see fit" discretionary. But it seems, from Julius v. Bishop of Oxford (L. R. 5 App. Cas., at p. 228), that the words "if they see fit" are surplusage, but that "enabling words are compulsory where they are words to effectuate a legal right" (Ib., at p. 214). We incline, therefore, to the opinion that HUDDLESTON, B., was right, and GROVE, J., wrong. But it is very unfortunate that upon this and similar questions there should be no appeal, either with or without leave. The very strict construction of the words "criminal cause or matter" in Reg. v. Whitchurch is, we think on the whole, a correct one, but a reference to Mellor v. Denham (L. R. 5 Q. B. D. 467) will show what important points are left practically undecided in the present state of the law. It might at least be provided by an amending Bill (for it could not be done, we imagine, by Rules of Court) that where a court of two judges, sitting to hear appeals from inferior courts, is" equally divided," an appeal from their decision-for a decision there technically is affirming the judgment of the court below, unless indeed that court also be equally divided, as happened in the recent case, should be as of right, whether the decision be in a "criminal cause or matter or not. THE PROPOSALS Of Lord REDESDALE and Dr. PLAYFAIR to alter the Standing Orders in reference to Railway Bills which prohibit the payment of interest on calls out of capital, require very careful consideration. On the one hand, it is strongly urged by Sir E. WATKIN, on behalf of " clergymen and poor widows who are tempted to invest in speculative lines," that such lines ought to be discouraged; on the other, it is put forcibly by Dr. PLAYFAIR and Mr. FORBES that the present Standing Order may sometimes have an effect in preventing small railways being formed on account of the difficulty of getting up capital, that it favours monopoly and checks enterprize, and that it is frequently evaded. The Standing Order (L. S. O. 128) prescribes that "a clause shall be inserted in every Railway Bill prohibiting the payment by the company of any interest or dividend on any capital which they have been, or may be, authorized to raise, either by means of calls or of any power of borrowing, to any shareholder on the amount of the calls made in respect of the shares held by him, except such interest on money advanced by any shareholder beyond the amount of the calls actually made as is in conformity with the Companies Clauses Consolidation Act, 1845." The reference is to section 24 of the Act, which enacts that "it shall be lawful for a company, if they think fit, to receive from any of the shareholders willing to advance the same all, or any part of, the moneys due upon their respective shares beyond the sums actually called for," and to allow interest upon the amounts so paid in advance. It seems, therefore, that a good deal in the direction of the proposed alteration can be effected under the existing law, and that even clergymen and widows may pay their calls in advance if they and the company in which they take shares so please. The Standing Order proposed to be substituted by Lord REDESDALE differs but little from that proposed by Dr. PLAYFAIR. The gist of them both is to allow interest to be paid on all calls, but to restrict the rate of interest and the period from which, and up to which, it is to be paid, the chief difference being that Lord REDESDALE would allow five per cent., while Dr. PLAYFAIR would allow four and a half per cent. only. On the whole, we are in favour of no alteration being made, not because we think it any part of the business of Parliament to protect adult clergymen and widows against tempting but im THE CURIOUS POINT raised in the ticket-clipping case, in which MATHEW and CAVE, JJ., held that it is no justification of an assault that it was committed in an attempt to prevent the exercise of a civil right, is singularly bare of direct authority. There is, however, a dictum of PATTESON, J., in Bird v. Jones (7Q. B. 742). There a public highway had been partially blocked by an appropriation for seats to view a regatta on the River Thames, and the plaintiff being prevented from passing by two policemen stationed by the defendant, brought his action for false imprisonment. It was held no imprisonment, but PATTESON, J., observed (p. 751) that the plaintiff ought to have pleaded the right of footway and the obstruction by the defendant, and that he necessarily assaulted him in exercise of that right. And in Russell on Crimes (5th ed., vol. 1, p. 965) it is laid down, citing this dictum and 2 Roll. Abr. Trespass, p. 547, E., pl. 1 and 2, that "a person who has a right of way or other easement may justify using so much force as may be necessary to enable him to exercise that right, or to prevent another from interrupting it," although "in general, unless there be violence in the trespass, a party should not, either in defence of his person or his real and personal property, begin by striking the trespasser, but should request him to depart or desist; and if that is refused, should gently lay his hands upon him in the first instance, and not proceed with greater force than is made necessary by resistance (Weaver v. Bush, 8 T. R. 78). In Steph. Com., vol. 3, p. man endeavours to deprive me of them, I may justify laying 374, it is said that "in defence of my goods and possessions, if a hands upon him to prevent him, and in case he persists with violence, I may proceed to beat him away." A railway ticket being perhaps "goods or possessions" within these words, an assault would seem to be justifiable in an attempt to keep it from a person who has no right to detain it. Thus far there seems to be some ground for questioning the recent decision, which, however, proceeded partly, if not wholly, on the ground that no point of law was raised before the Lord Mayor. April 18, on and after which day one court will sit in Banc, and three courts The trial of common jury actions in Middlesex will begia on Tuesday, will sit at Nisi Prius. Special jury actions and actions to be tried without a jury will not be taken before Monday, May 1. The following dates have been fixed by Mr. Justice Stephen for holding the ensuing Spring Assizes on the Midland Circuit-viz., Lincoln, Tuesday, April 18; Northampton, Monday, April 24; Derby, Saturday, April 29; Warwick, Friday, May 5. On Monday, in the House of Commons, Mr. Gregory asked the Secretary of State for the Home Department whether, having regard to the importance of mittee of judges, and the alteration which they would effect in the administrathe new rules of procedure which were under the consideration of a comtion of the law, provision could be made for suspending the operation of them until there had been an opportunity for the consideration of them by that Chancellor on the subject, and he understood from him that no new rules had House. Sir W. Harcourt said that he was in communication with the Lord yet been made, although the judges had held meetings and passed resolutions upon which rules would be framed. An action was tried at the Westminster County Court on Friday, betore Mr. Bayley, judge, in which a barrister's clerk sued his late employer for the sum of 2s. 6d. This sum was a "clerks' fee," which had been received by the barrister for professional work done by him while the plaintiff had acted as his Parry, stated that he had acted as clerk to the defendant, Mr. R. H. Spearclerk. The plaintiff, Mr. Lyster, formerly clerk to the late Mr. Serjeant man, of the Oxford Circuit, for some years. He left his employment at the end of July, 1881, a few days prior to which Mr. Spearman settled a statement of claim in an action for a firm of solicitors in the City. Mr. Spearman's fee and the clerk's fee was paid to the former in the following December, and Mr. Edward Turner, barrister, represented the plaintiff, Judgment was given the plaintiff claimed the latter fee. The defendant appeared in person, and for the plaintiff for the amount claimed and costs. expenditure in pursuance of such agreement, will at once entitle AGREEMENTS FOR LEASES SINCE THE both parties to all the remedies which would be given by a lease JUDICATURE ACT. by deed for twenty-one years. WE reported last week (ante, p. 331) an observation of the Hitherto the terms of a lease not provided for by the agreement have But the most important practical effect may perhaps be this: Master of the Rolls in The Commissioners for the Exhibition of been settled by negotiation between the solicitors of the parties, not 1851 v. The Royal Horticultural Society that "since the Judica- necessarily with reference to the usual covenants which the Chancery ture Act the effect of a holding under an agreement for a lease is Division would insert in case of an action for specific performance the same at law as in equity. In such a case now, both at law and of an agreement. No doubt that is always in view as an ultimate in equity, the tenant holds under the agreement, and is not simply, resort, but a solicitor is slow to advise his client to have recourse as he was formerly at law, a tenant from year to year." The to such an action. The terms of the lease are, therefore, hammered matter seemed too important to be discussed on a mere dictum, out by mutual discussion and concession. The lessee accepts more notwithstanding it was, as we learn, uttered in the manner which onerous covenants than he could be compelled to accept, and the is well known to indicate the expression of the settled opinion of lessor gives up provisions to which he is entitled, because he can this eminent judge. This week, however, we report a case of only get them by an action for specific performance. But will that Walsh v. Lonsdale, in which the Court of Appeal at Lincoln's-inn be the case now? The landlord of a person who has entered under unanimously came to the same conclusion, and it now becomes an agreement for a lease leaving some of the terms indefinite, will necessary to consider the doctrine laid down and its results in say, "I am now entitled to consider you as holding for the term practice. under the covenants and provisions which the court have held to be The doctrine was stated by the Master of the Rolls as follows: usual. You are, in fact, now bound to rebuild in case of fire, -"Here there was an agreement for a lease, under which the for a covenant by the tenant to repair, without exception in case intended lessee had taken possession. Since the Judicature Act, of damage by fire, is a usual covenant (Kendall v. Hill, 6 Jur. a person in that position held under the agreement. There were N. S. 968; Sharp v. Milligan, 23 Beav. 419). I will not agree not, as formerly, two estates, one a tenancy at law, from year to to the insertion of such exception in the covenant to repair." And year, the other a tenancy in equity under the agreement. Now the tenant, on his part, will say, "I am now entitled to assign or there was only one court, and the rule of equity prevailed. The underlet, for a covenant not to assign or underlet is not a usual tenant now held under the agreement, on the same terms as if a covenant (Hampshire v. Wickens, 26 W. R. 491). I will lease had been granted properly framed in pursuance of it. That not agree to the insertion of such a covenant in the lease." The being so, he could not complain of the landlord exercising the motive for concession-namely, dislike to litigation-is same rights as he would have had if the lease had been granted, removed. If no lease is executed each party can enforce all the and, on the other hand, he was protected just in the same way as rights which he would possess if the lease were executed. It is if the lease had been granted." Upon this it is to be observed true that the recent decisions showing that the question of what are that under the Judicature Act the rules of equity are only to pre-"usual covenants" is one of fact, depending on the general pracvail where "there is any conflict or variance between them and the rules of the common law, with reference to the same matter." What, then, were the rules of law and equity before the Judicature Act relating to the position of a person who had entered into possession under a valid agreement for a lease? At law he was tenant at will, or if he had paid rent he was presumed to be tenant from year to year, upon such of the terms of the agreement as were applicable to that tenancy. In equity he was entitled to enforce the agreement and to obtain the grant of a lease upon the terms specified in the agreement, or if all the terms were not specified, then upon certain usual terms. But equity never pretended to say that before a lease was actually granted in ance of the agreement the person in possession was entitled to the same rights as if the lease had been actually granted. It would help either party to get the lease which had been agreed for, but it would not interfere with the legal position of either party before such lease had been granted. Was there here any conflict or variance with reference to the same matter? pursu We are not concerned, however, to discuss at length the question whether the decision of the Court of Appeal is right; whether right or wrong, it is now the law, and the matter of practical importance is the results which flow from it. As soon as an intending lessee enters into possession under an agreement for a lease of which specific performance could be obtained, the rights of himself and the landowner are exactly the same as if a lease had been executed. The result appears to be, in the first place, practically to repeal 8 & 9 Vict. c. 106, s. 3, requiring leases exceeding the term of three years from the making thereof to be by deed. For in Parker v. Taswell (2 De G. & J. 559), it was decided that a lease in writing for more than three years, not by deed, was valid in equity as an agreement for a lease, and might be specifically enforced. Whenever, therefore, there is possession under a lease or agreement in writing, both the landlord and tenant will now possess all the remedies they could have had under a lease by deed. In the next place, the stamp duty on a lease for more than thirty-five years may apparently be saved by executing a mere agreement for the lease specifying fully all the terms. The agreement will, it seems, only require a sixpenny stamp, for it will only be necessary to produce it in evidence as an agreement for a lease. Once prove that you are in possession under a valid agreement for a lease, and you have all the remedies which a lease would give you. Again, entry under a mere parol agreement for a lease for twenty-one years and tice of conveyancers, tend to diminish the reliance which the parties will place in their construction of this term, but we think that the general result will be what we have indicated. The lesson to be learnt from the recent decision seems to be to abandon, as far as possible, agreements for leases; and, where they must be prepared, to specify in them with great care all the provisions under which it is intended that the lessee shall hold. TRIAL BY JURY. THE question how far trial by jury, even if not expressly limited, will survive the coming into operation of the new rules can only be tested by experience. To a very great extent it seems probable that trial by a judge will supersede the ancient system. A good while ago, long before this change appeared to be one of the practical probabilities of law reform, we ventured to indicate our opinion that some such result would ultimately be brought about. There are certain advantages in trial by jury and certain disadvantages, but the truth seems to be that from a business point of view, under the circumstances existing at the present day, the disadvantages have come to preponderate, while the advantages have become minimized. In a ruder state of society, when the personal liberty of the subject and the rights of property were less secure from the encroachments of the Crown and the violence of the powerful than at the present day, no doubt trial by jury in civil actions, no less than in criminal cases, acted as a very valuable safeguard against oppression and injustice, but it is hardly necessary to point out how widely different a state of things exists at present. Public opinion is now an effective check upon any corruption or partiality on the part of the judge, and deeplyrooted professional traditions and feeling tend also to prevent him from exercising his functions in a spirit otherwise than judicial. But it may be said that the decision of questions of fact by ordinary men, selected from the community at large, introduces the element of plain, practical common sense into the administration of justice. This argument might have some weight if the judges of our day were pedants of a semi-ecclesiastical type, or even as much wedded to precedent and to a rigidly technical system as were the judges of a couple of centuries back; but the truth is that the men who rise to the top of the legal profession now do so as much by virtue of their practical business ability and worldly shrewdness as of their acquaintance with the theory of the law. Why should it be supposed that a well-educated man who, in most cases, must be a man of more than the average amount of judgment and mental power, and must, in nearly all cases, have had a very large and widely-extended experience of worldly affairs, should be less competent to decide on questions of fact than twelve small tradesmen selected at random? A good deal has been said by common law judges of the advantages of having a mercantile case tried by a special jury of the City of London. We feel inclined to doubt whether the advantage was ever really as great as it has been supposed to be. We doubt whether persons familiar with one business are necessarily thereby qualified to decide with regard to matters concerning another kind of business-for instance, whether a stockbroker is, by reason of his knowledge of his own business, a better judge of a question relating to the cotton trade—and it is obvious that it would only occasionally happen that a person conversant with the actual business involved would get on the jury. But whatever this advantage may have been it is, we believe, very much diminished under the present system of classifying jurors. A tobacconist or an hotel-keeper can certainly have no particular qualifications to decide questions about bills of lading or charterparties. Is it not, on the whole, taking one case with another, much more probable that a judge, whose functions necessarily bring before him all sorts of transactions, should have some knowledge of the particular question, or at any rate of matters so far analogous as to afford some materials for judging of such question, than that a jury should have such knowledge? Moreover, the two arguments in favour of juries seem mutually contradictory. If the theory is that the best kind of tribunal is one composed of ordinary intelligence not expert in the particular matter, then what becomes of the special jury of merchants theory? If, on the other hand, the latter theory is correct, the jury system does not go far enough, and some system ought to be devised to secure the presence of experts on the jury. We remember a case in which, the question being whether corn delivered was equal to sample, it transpired on inquiry that there was not a single farmer, or corn merchant, or even baker, on the jury, which was composed of small town tradesmen without the faintest knowledge of anything connected with corn. The testimony of the experts was, of course, absolutely contradictory. Samples were produced which the jury solemnly examined. An assembly of monkeys examining a volume of the Law Reports would have derived about as much information from so doing. Of course, the result was a toss up. present system an expert familiar with the law is set in each case to try to explain to the jury the abstract or general propositions of law which are involved in the decision of the issues, and the jury have to find whether the facts do or do not come within such propositions. The result cannot in the nature of things be satisfactory. Ably as our common law judges on the whole perform their office, it is in many cases impossible to make the jury fully grasp the limits and true bearing of the unfamiliar ideas expounded to them, and the result is, probably, very often that the mental elements from which their decision results would, if they could be scrutinized, appear a strange jumble. It seems to us clear that the same mind ought to decide on both law and fact. We do not deal with any other important question of life in the way in which we deal with legal matters in the common law courts. A man whose interests, whether bodily or pecuniary, are concerned in the determination of some question involving the knowledge of an expert does not call in an expert to explain to him the principles of his art or science and then proceed to apply those principles for himself. A judicious man exercises his judgment on advice tendered to him by an expert as far as he can, but he does not advise himself. Again, it is obvious that a great deal of cumbrous machinery, causing the multiplication of steps in an action, and consequent expense and delay, is swept away, and a great increase of flexibility and simplicity will be produced by the substitution of trial by judge for trial by jury. Rules nisi for new trials on the ground of misdirection, and on the ground that the verdict is against evidence, will be got rid of, and a simple appeal substituted. New trials themselves will in very few cases be necessary, for the materials will mostly be sufficient to enable the Court of Appeal to decide the whole matter without sending the case down for a new trial. In some cases the complexity of the old system has been aggravated by the Judicature Act. It has frequently been necessary to obtain a rule for a new trial in the divisional court, and also to appeal from the judgment at the same time to the Court of Appeal; the result being confusion and expense of the most deplorable character. This would be obviated by dispensing with the jury. It seems to us that the inconveniences attributable to the jury system in some cases have only to be realized to ensure the success of the opposite system. A heavy case may be tried at a ruinous expense, and then a rule nisi obtained for misdirection. There may then be an appeal to the Court of Appeal against the decision of the divisional court on the rule, and the Court of Appeal may then send the case down for a new trial, the case may be tried again at a ruinous expense, and then the proceedings may go on again da capo. Contrast this with the trial by a judge and one simple appeal to the Court of Appeal determining the whole matter. Then, again, the greater flexibility and convenience of the trial by a judge is at once apparent. The judge can postpone the further hearing, if for any reason he wishes to consider the course he will take, to any time that may be convenient, and may, if he thinks fit, decide to hear the evidence on one point or branch of the case first and decide as to that, possibly obviating the necessity for summoning a large number of witnesses and going into other matters that may become irrelevant. If a party is unpre We do not deny that there are certain cases in which a jury may be a tolerably good tribunal, but we are speaking of the majority of cases. If it can be shown that the supposed advantages of the jury system are, in the majority of cases, either obsolete or mythical, then it is easy to come to a conclusion unfavourable to the system, for nothing is more easy than to demonstrate the great disadvantages that attach to the jury as a tribunal for investigating fact. We will not stop to dwell on various obvious topics, as, for instance, the prevalence of certain sentiments and prejudices among jurymen which result in what is really a denial of justice to certain parties, as, for instance, where a railway company or other corporation is opposed to a private in-pared with some technical proof, the judge may adjourn the case dividual, or where a tradesman is opposed to a customer. These with little or no inconvenience, and make such order as to costs as are obvious topics. There are certain great and palpable defects he thinks fit. Pages might be filled with an enumeration of the in the jury system regarded as a matter of machinery. It entails various points in which the trial by a judge would conduce to a great increase of delay and expense. The separation of issues of convenience and justice. We do not suppose for a moment that law and fact has, we believe, been in some respects beneficial to the judge's decisions would always be satisfactory. Even judges the development of English law. The necessity for laying down are sometimes hasty, sometimes crotchety, sometimes prejudiced; definite propositions or rules of law, within which the facts have no human system can be entirely satisfactory. But the question to be brought, has probably, to a considerable extent, tended to is whether the decisions of judges would not be at least as satislogicality and clearness. But an advantage of this sort may perhaps factory as those of juries, and certainly there would be a great be purchased too dearly. It is no use having a machine which gain in point of expedition and saving of expense. makes excellent law if it fails in practice to apply such law cheaply and satisfactorily to the facts. The theory of the thing no doubt was that issues of law and of fact were wholly distinct or severable, but that is not so in reality. The ancient theory of pleading involved the same fallacy. Mixed questions of law and fact, such, for instance, as whether there has been a conversion, or a breach of contract, or a rescission, and so forth, form, perhaps, as large an element as the pure question of fact. Under the The truth is that the province of the jury has been so far trenched upon by the judges already that the present system is an anomaly. It was unavoidable that it should be so, as anyone familiar with the working of trial by jury must admit. But when this is once admitted, the system becomes theoretically more and more untenable. When the verdict of a jury is habitually set aside if the judge reports that it was unsatisfactory, it is very difficult any longer to devise any argument in favour of the system as a system of general application which will outweigh its manifest disadvantages. As we said before, we do not deny that at present, at any rate, it will be wise to retain it for certain classes of cases, and probably for these cases it will be well always to retain it, REVIEWS. THE JURY LAWS, THE JURY LAWS AND THEIR AMENDMENT. By T. W. ERLE, one of the Masters of the Supreme Court. Stevens & Sons. This little work consists of a reprint of the Bill for the amendment and consolidation of the law relating to juries which was drawn for Lord Coleridge, when Attorney-General, with notes and explanations; and of various short essays on topics of interest and importance connected with the jury system. We cannot help doubting whether, in the future course of events, the system of trial by jury can entirely hold its own as against the chancery system of trial by judge. Mr. Erle is, obviously, a great admirer of trial by jury, and at the end of his book will be found reprinted, from Senior's Conversations with Distinguished Persons, a very forcible and interesting argument by the late Sir William Erle in favour of trial by jury. But, assuming that there is some or even a great deal of truth in what is there put forward, we are not convinced by it. It is, after all, a matter of the balance of expediency. We cannot help thinking that the advocates of the jury exaggerate the force of the considerations they urge. We cannot suppose that if it became the rule that trials of fact in civil cases should be by judges without juries, any very great difference would be felt by the country at large with regard to the manner in which cases were decided. The experience of the county courts does not seem to show that people really concerned appreciate the virtues of the jury system so much as its theoretical admirers. If we are right in this, then the arguments on the other side become overwhelming. The cumbrousness and inconvenience of the jury system, leading as it does to an increase in the number of steps in an action and great consequent expense and delay, are really so obvious that it is hardly necessary to dwell upon this, but, curiously enough, these arguments never seem to occur to the votary of the common law system of trial. The truth is, that men are very apt to ignore the evils of a system to which they are accustomed. But, assuming that the system of trial by jury is to continue to the same extent as heretofore, then there is no doubt of the value and utility of many of Mr. Erle's suggestions and observations. With some of his conclusions we should hesitate to agree. He pronounces, we observe, in favour of a reduction of the number of the jury, but against the proposal that the verdict of the majority should be taken. Considering what a misfortune a disagreement of the jury is to the parties, we are disposed to think that the verdict of the majority should be taken, and, if so, it may be doubtful whether a reduction of their number is desirable. These, however, are mere matters of detail. Some very interesting and important observations with regard to the mode of summoning juries in the City of London are to be found on page 71 of the book, and, if the jury system is still to prevail, we think that the system there described undoubtedly requires modification. THE CONVEYANCING ACT. THE CONVEYANCING AND LAW OF PROPERTY ACT, 1881, TOGETHER WITH THE VENDOR AND PURCHASER ACT, 1874, AND THE SOLICITORS' REMUNERATION ACT, 1881. With Notes and an Introduction. By AUBREY ST. JOHN CLERKE and THOMAS BRETT, Barristers-at-Law. SECOND EDITION. Butterworths. The sterling character of this very commendable book sufficiently accounts for its having reached a second edition. The circumstances under which the first edition appeared were of such difficulty as might bave "given pause,' even to a veteran commentator; and we thought at the time, and did not conceal our opinion, that a degree of excellence had been attained which went a good deal beyond what, before the event, could reasonably have been expected. Since that time (as, indeed, the authors remark in their preface) so much discussion has taken place, that the difficulties in the way of comment have been, to a great extent, removed; and the mere progress of events has made it no longer possible to reap the same degree of credit as was the just due of Messrs. Clerke and Brett. This change in the surrounding conditions is not without its re-action upon later editions of books; which become more difficult to improve in proportion to the original excellence of the book, and in spite of improvement often seem to lose by comparison with the merits of the original essay. In saying that this is, to a considerable extent, true of the present work, we pay it no mean compliment. This edition is much improved; but the value of the improvements, so to speak, hardly keeps pace with the book's original merit. But we feel in justice constrained to pronounce it to be, in our opinion, the most useful work on the subject which has yet appeared. The comments upon section 17 in the first edition always struck na as being of a less enterprizing character than many parts of the work. What seems to us here to be wanted is not so much a sketch, necessarily imperfect, of the doctrine of consolidation, as an explanation of the grammar and construction of the section; and in particular of the precise meaning of "any one mortgage' in sub-section (1), and of "the mortgages" in sub-sections (2) and (3). We should have read with great interest the views of these learned authors upon this topic, but their note remains unchanged, except for a faint symptom of concession to a remark (which, in our opinion, is without the slightest foundation and deserves no concession at all) made upon the same section by Messrs. Wolstenholme and Turner. In the revised comment upon section 14 (relief against forfeiture) we notice a fresh and not unimportant observation: "It seems open to argument that, by virtue of the changes effected by this section, specific performance of a contract for a lease may be ordered, although the lease if it had been granted" (p. 73). Such a point certainly ought not plaintiff has already done some act which would be a forfeiture of the have been left " open to argument." Upon this section the authors also remark, "Every application to the court is to be made by summons, section 69." But have they not overlooked the words in sub-section (2), "The lessee may, in the lessor's action, if any, or in any action brought the lessee must bring one; and in this case, at all events, it would seem by himself" apply for relief? If there is no lessor's action pending, that his application should, or at least might, be raised by the pleadings. We think, or rather guess, that the Act meant to exclude all proceedings under this section from the operation of section 69, but forgot to say so explicitly. We observe that Messrs. Wolstenholme and Turner say, "Sub-section 2 will impose on the judges," not, be it observed, the chief clerks, "the difficult duty of deciding the terms upon which relief is to conclude by expressing our appreciation of the worth of the painstaking be granted." Instead of multiplying these observations further, we will labour of the authors. CORRESPONDENCE. BILLS OF SALE. [To the Editor of the Solicitors' Journal.] Sir,-Has your correspondent, "A Country Solicitor," really a doubt upon the point he submits in his letter in last week's issue of your journal ? He seems to have looked up the law pretty fully from the references he gives to decided cases, and I should have thought the answer was clear that certainly B. could retain his security as against an execution creditor. There was a valuable consideration given for it in the debt owing; and the conduct of B., being perfectly bond fide, that would be quite sufficient to uphold it under any circumstances, except in case of bankruptcy or liquidation. But I would go further and say that, unless the deed could be set aside as an assignment of the whole of the debtor's property for a past consideration, and so an act of bankruptcy, it could not be impeached even by a trustee of the debtor's property in bankruptcy or liquidation, for it certainly was not a fraudulent preference under section 92 of the Bankruptcy Act, 1869, whatever it might have been under the previous law of bankruptcy. A SOLICITOR. BANKRUPTCY LAW. [To the Editor of the Solicitors' Journal.] Sir,-Your correspondent, "A Country Solicitor of Forty Years' Standing," is a follower of Lord Sherbrooke upon the question of bankruptcy law, and, like him, takes an exaggerated view of the evils of the present law. I unhesitatingly join issue with him upon his statement that in nineteen cases out of twenty the public loses more than it gains by having a code of bankruptcy law. No doubt there are many abuses of the law, but then we hear of these whilst ordinary cases, where the law is not abused, are not paraded in the same way, and it is exceeding the bounds of fact very considerably indeed to say that the former constitute a majority of the cases in bankruptcy, or anything approaching it. The subject, to be argued at length, would take up too much of your valuable space without any corresponding advantage, as it must be pretty clear to the vast majority of minds that, however beautiful the theory contended for by Lord Sherbrooke and your correspondent, it is altogether impracticable in the present state of society and trade. But I shall be glad if you will give me space to express briefly one or two thoughts which have occurred to me in opposition to the views expressed by your correspondent. Granting, for the sake of argument, the evils arising out of the law of bankruptcy, "commercially, morally, and socially," would those evils be mitigated in any way by the suggestion of your correspondent that the ordinary laws of debtor and creditor should be left to assert themselves? A time there was when there was no bankruptcy law in the land, and as trade developed itself and that great system of credit without which, whatever theorists may say about it, the commercial the sewage would be conveyed. They had incurred expense and used every greatness of this country, the result of that enterprize which the system has fostered and encouraged, could not have been reared up-became more to be recognized, it was found absolutely necessary to introduce a code of law to do justice as between creditors in case of their debtor being unable to pay them all in full. How we should better ourselves by going back to those primitive days before a bankruptcy law was introduced I fail to perceive. Whenever a debtor found himself in a position of insolvency he might act just as he pleased in preferring his creditors; and even if he did nothing in this respect, but left his creditors to pursue their common law remedies, it would be a case of "first come, first served," and it would be nice to contemplate the scrambling amongst creditors, the jealousies and ill-will it would engender, and the great sacrifice of assets in the sheriffs' officers' clutches, which would be the result of such a system at the present day. Would this be a saving of "" expense to the country," a prevention of "pecuniary loss to the trading community," or a diminution of "commercial depravity"? He would, I think, be a bold man who would venture to answer in the affirmative. Your correspondent further asserts that "the facilities which the law holds out for getting whitewashed are so great as positively to encourage recklessness in trading." If that be so (and it is to some extent recognized by the proposals of the Government with respect to bankrupts' discharge) it will not require a total abolition of the system to rectify it. That can be done by amendment of the law only. But I dispute the assertion that the present state of the law has much, if any, effect in increasing recklessness in trade. We shall always find a number of reckless traders whatever law may be passed on the subject, and, in my opinion, they would be none the less numerous if there were no code of bankruptcy law in existence. On the contrary, I think that the only way of dealing with recklessness in trading is by having a code of bankruptcy law containing provisions directed to the point similar to the Government proposals. HENRY P. JONES. Manchester, March 25. CASES OF THE WEEK. LOCAL SANITARY AUTHORITY-SEWERS-NUISANCE-FAILURE TO EXERCISE STATUTORY POWERS-PUBLIC HEALTH ACT, 1875 (38 & 39 VICT. C. 55), ss. 13, 15, 17, 21-RIVERS POLLUTION ACT, 1876 (39 & 40 VICT. C. 75), s. 3.-In a case of The Attorney-General v. The Guardians of the Poor for the Union of Dorking, before the Court of Appeal on the 24th ult., an important question arose as to the liability of a local sanitary authority for a nuisance arising from sewers vested in them, but constructed before they came into existence, they having done nothing beyond omitting to put in force their statutory powers of constructing a new system of drainage for their district. The action was brought at the relation of the owner of a house and land in the parish of Dorking, for the purpose of restraining the defendants, who were the local sanitary authority under the Public Health Act, 1875, from causing or permitting the sewage of the town (other than sewage as to which there was a prescriptive right before the commencement of the action) to flow in an unpurified state into a brook which bounded the relator's land, so as to occasion a nuisance to him. The sewage of the town was discharged by various drains into the brook in question, which was a natural stream. The sewage of the district had rapidly increased of late years, the population of Dorking having risen from 5,996 in the year 1851 to about 10,000 at the present time. The defendants asserted that, even if a nuisance existed, they were not responsible for it, for they had done no act to create or increase the nuisance; they had not themselves made the drains in question, but were only using in the accustomed manner the drains which they found in existence when they were constituted a public body. Hall, V.C., held, upon the authority of Glossop v. The Heston and Isleworth Local Board (28 W. R. 111, L. R. 12 Ch. D. 102), that, assuming the existence of a nuisance, the plaintiff had no ground of action for an injunction or damages against a local board who had done no act themselves to create or increase the nuisance, but had merely neglected to perform their duty of providing a satisfactory and healthy system of drainage, and that the only remedy was by a prerogative writ of mandamus to be granted by the Queen's Bench Division. The Court of Appeal (JESSEL, M.R., and COTTON and LINDLEY, L.JJ.) affirmed the decision. JESSEL, M. R., said that this court, as well as the court below, was bound by the decision in Glossop. The Heston Local Board. Even if he differed in opinion from the judges who decided that case, which he did not, he must decide in accordance with it, unless he could see some substantial difference between the two cases. He did not see any substantial difference-indeed, he could discover no tangible difference. He assumed in this case, as in that, that the sewers were vested in the defendants. As in that case, it was admitted that as regarded a large portion of the sewers there were prescriptive rights-that is, there were a large number of persons in Dorking who had a right to send their sewage down the sewers. In that case, as in this, there had been a gradual increase of the nuisance by the increasing numbers of persons who had no prescriptive right to drain into the sewers. That was so far in favour of granting an injunction. Here, as in that case, the defendants had done nothing as regarded the particular sewer complained of, but they stated that they had done everything in their power to provide the best mode of dealing with the sewage of the town, and that in order to construct a new system of drainage, which they intended to do, they must acquire land on to which effort to find land of the requisite extent and quality in the neighbourhood, The CONTRACT-BREACH OF STIPULATIONS-PROVISION FOR FORFEITURE OF SPECIFIED SUM-LIQUIDATED DAMAGES OR PENALTY-COSTS-EVIDENCE |