SHORTHAND NOTES.-On the 28th ult. the Court of Appeal (JESSEL, M.R., and COTTON and LINDLEY, L.JJ.) affirmed the decision of Fry, J., in the case of Wallis v. Smith (noted ante, p. 184). The question was whether a sum of £5,000 which, by one of the clauses in a contract, was to be forfeited by one of the parties to it, as liquidated damages, in case he should commit a substantial breach of the agreement, either in not proceeding forthwith with all due diligence to carry out and complete the several works contemplated, or in failing to perform any of the provisions therein contained, was really only a penalty. The provisions of the agreement are fully stated in the former note, and, upon the construction of the agreement as a whole, Fry, J., came to the conclusion that it was the intention of the parties that, in the events which had happened, the £5,000 should be forfeited as liquidated damages, and the Court of Appeal affirmed this decision. Under these circumstances the court allowed the costs of transcripts of a shorthand writer's notes of the evidence taken in the court below, with the exception of copies of documents which were set out in the notes, and which the court said ought not to have been transcribed there.-SOLICITORS, Terrell & Harrison; Russell, Son, & Scott.

APPEAL FOR COSTS-COSTS OUT OF Fund-Trustee-JuDICATURE ACT, 1873, s. 49-ORDER 55.-In a case of Turner v. Hancock, before the Court of Appeal on the 24th ult., the question was again raised which was raised in Farrow v. Austin (30 W. R. 50, L. R. 18 Ch. D. 58, 25 SOLICITORS' JOURNAL, 640)-viz., whether a trustee who has not been allowed costs out of his trust fund can appeal on the ground that he ought to have been allowed costs out of the fund. In Farrow v. Austin it was held that he could, but, as we pointed out (25 SOLICITORS' JOURNAL, 635) the decision of the Court of Appeal to the contrary in In re Hoskin's Trusts (25 W. R. 779, L. R. 6 Ch. D. 281) and Taylor v. Dowlen (17 W. R. 779, L. R. 4 Ch. 697) were not then cited to the court. In Turner v. Hancock reference was made to In re Hoskin's Trusts, but, notwithstanding, the court (JESSEL, M.R., and COTTON and LINDLEY, L.JJ.) came to the same conclusion as the court did in Farrow v. Austin. JESSEL, M.R., said that in Stratton v. Cottrell (21 W. R. 234, L. R. 8 Ch. 295, 302) Lord Selborne said, "The right of a mortgagee in a suit for redemption or foreclosure to his general costs of suit, unless he has forfeited them by some improper defence or other misconduct, is well established, and does not rest upon the exercise of that discretion of the court which, in litigious causes, is generally not subject to review. The contract between mortgagor and mortgagee, as it is understood in this court, makes the mortgage a security not only for principal and interest, and such ordinary charges and expenses as are usually provided for by the instrument creating the security, but also for the costs properly incident to a suit for foreclosure or redemption. In like manner, the contract between the author of a trust and his trustees entitles the trustees, as between themselves and their cestuis que trust, to receive out of the trust estate all their proper costs incident to the execution of the trust. These rights, resting substantially upon contract, can only be lost or curtailed by such inequitable conduct on the part of a mortgagee or trustee as may amount to a violation or culpable neglect of his duty under the contract. Any departure from these principles in the general course of the administration of justice in this court would tend to destroy, or, at least, very materially to shake and impair, the security of mortgage transactions and the safety of trustees. In fact, such a departure, instead of being beneficial to those who may have occasion to borrow money on security, or to repose confidence as to property in their friends or neighbours, would, in the result, throw the former class of persons into the hands of those who indemnify themselves against extraordinary risks by extraordinary exactions, and would deprive the latter class of the assistance of all who cannot afford, or are not inclined, to bestow upon the affairs of other persons their money as well as their trouble and time. A decree, therefore, in a redemption suit, which disallows the costs of the mortgagee, is of right appealable, and, if appealed against, can only be supported by proof of special circumstances sufficient to justify such a departure from the ordinary course of the court." JESSEL, M.R., added that it was not the course of the court in modern times to discourage persons from becoming trustees by making trustees who had honestly done their duty liable for breaches of trust which they had committed innocently. The decision in In re Hoskin's Trusts appeared to have been founded on a mistake of law. James, L.J., there said that the costs of a trustee were subject to the discretion of the court. The Master of the Rolls said that he had always understood the rule to be as it was laid down by Lord Selborne in Stratton v. Cottrell, and he must treat what James, L.J., said in In re Hoskin's Trusts as being a mistake, and section 49 and order 55 did not alter the old rule as to the costs of a trustee or mortgagee. COTTON and LINDLEY, L.JJ., concurred. The appeal was accordingly heard on its merits, and, in the result, the court held that there was no ground for depriving the trustee of his costs out of the trust estate.-SOLICITORS, G. S. & H. Brandon; G. R. Burn.

BANKRUPTCY PETITION-SECURED CREDITOR-GIVING UP SECURITYESTIMATE OF VALUE-FORMAL DEFECT-AMENDMENT-BANKRUPTCY ACT, 1869, ss. 6, 82-BANKRUPTCY RULES, 1870, R. 208-BANKRUPTCY FORMS, 1870, No. 10-SHORTHAND NOTES OF EVIDENCE-COSTS.-In a case of Ex parte Vanderlinden, before the Court of Appeal on the 18th inst., a question arose upon the construction of section 6 of the Bankruptcy Act, 1869, which provides that the debt of a creditor who petitions for an adjudication of bankruptcy against his debtor "must not be a secured debt, unless the petitioner states in his petition that he will be ready to give up such security for the benefit of the creditors, in the event of the debtor being adjudicated a bankrupt, or unless the petitioner is willing to give an estimate of the value of his security, in which latter case he may be admitted as a petitioning creditor to the extent of the balance of the debt due to him after deduoting the value so estimated, but he shall, on an

application being made by the trustee within the prescribed time after the date of adjudication, give up his security to such trustee for the benefit of the creditors, upon payment of such estimated value." The court (JESSEL, M.R., and CorroN and LINDLEY, L.JJ.) held that, though it is necessary that the petitioner, if he is ready to give up his security for the benefit of the creditors, should state that fact in his petition, it is not necessary, if he be willing to estimate the value of his security, that he should state his willingness to do so in his petition, but that it is sufficient that he should make that statement on the hearing of the petition, though it is better that he should, in compliance with form No. 10 of the Bankruptcy Forms, 1870, make the statement in the petition. In the particular case the petitioning creditor held a charge upon some property of the debtor as security for his debt, but he considered the security of no value, and stated in the petition that he held no security. The debtor disputed the adjudication, on the ground that the security had not been stated in the petition. A few days before the bearing of the petition the petitioner's solicitors had, in a letter to the debtor's solicitors, said, "If the adjudication takes place, the charge will enure to the general body of creditors, as it is not valued at anything." At the hearing of the petition it was stated on behalf of the petitioner that he was ready to give up his security, but the registrar refused to make the adjudication, and dismissed the petition on the ground that this fact was not stated in it. The Court of Appeal held that, inasmuch as if the petitioner had valued his security as worth a farthing, he need not have stated his willingness so to value it in the petition (this being in effect the same thing as giving it up for the benefit of the creditors), the defect or irregularity in the petition was a merely formal one, within the meaning of section 82, by which no substantial injustice had been caused, and that the registrar ought to have exercised the power of amendment given by rule 208, by inserting in the petition a statement of the petitioner's readiness to give up his security. And the court accordingly amended the petition in that way, and made the adjudication. The court gave no costs of the appeal, though they allowed the petitioner the costs of the hearing before the registrar, because a great deal of evidence had been adduced there with the view of proving that the petition had been presented for a malicious purpose. And the court gave the petitioner the costs of the shorthand writer's notes of the evidence, on the ground that he had been appointed under an express order of the court to take these notes.-SOLICITORS, Beyfus & Beyfus; Williams & Graham.

BANKRUPTCY APPEAL-TIME-ENTRY-NOTICE TO REGISTRAR of County COURT-" FORTHWITH "-BANKRUPTCY RULES, 1870, RR. 143, 144.-In a case of Ex parte Williams, before the Court of Appeal on the 23rd ult., a question arose whether an appeal to the Chief Judge in Bankruptcy from an order in bankruptcy made by a county court was irregular, on the ground that notice of the appeal had not been sent" forthwith" to the registrar of the county court in compliance with the provisions of rule 144 of the Bankruptcy Rules, 1870. The order was made by the county court on the 17th of December. On the 22nd of Decem. ber an appeal was entered with the registrar of appeals in London, and, on the same day, the London agents of the appellant's country solicitors sent a copy of the notice of appeal by post to the country solicitors, by whom it was received on the morning of the 23rd of December. The offices of the county court were closed for the Christmas vacation from the 23rd to the 27th of December, both inclusive. On the morning of the 28th of December the country solicitors of the appellant left a copy of the notice of appeal with the registrar of the county court. Bacon, C.J., held, apparently on the authority of Ex parte Lamb (30 W. R. 126, L. R. 19 Ch. D. 169, ante, p. 97), that the notice had not been sent to the registrar "forthwith," and on this ground he dismissed the appeal without going into the merits. The Court of Appeal (JESSEL, M. R., and CoTTON and LINDLEY, L.JJ.) said that the appellant had been guilty of no delay, the notice of appeal having been left with the registrar at the earliest possible time. The Chief Judge must have been under some misapprehension. The objec tion was accordingly overruled, and the appeal was heard on its merits.— SOLICITORS, R. White; Smith, Lawrence, & Co.

RAILWAY COMPANY-COMPULSORY POWERS-RIGHT TO ENTER ON LAND REFUSAL OF LANDOWNER TO DELIVER POSSESSION-SHERIFF-MINERALS— TRESPASS-COMPENSATION FOR LAND INJURIOUSLY AFFECTED-LANDS CLAUSES CONSOLIDATION ACT, 1845, ss. 68, 85, 91-RAILWAYS CLAUSES ACT, 1845, ss. 6, 77.-In a case of Loosemore v. The Tiverton and North Devon Railway Company, before Fry, J., on the 27th ult., a question arose as to the right of a railway company, who have given notice to a landowner to treat for land required for the purposes of their Aot before the expiration of the three years limited by the Aot for the exercise of their powers for the compulsory purchase of land, to enter on the land, under section 85 of the Lands Clauses Consolidation Act, 1845, after the expiration of that period and just before the expiration of the five years limited for the completion of the company's works, the compensation payable to the landowner not having been ascertained, and it not being possible that the compensation should be ascertained, or that the company's works on the land should be completed, until after the expiration of the five years. The company's Aot was passed on the 19th of July, 1875. Their compulsory powers for the purchase of land expired on the 19th of July, 1878, and the time for the completion of their works expired on the 19th of July, 1880. On the 12th of July, 1878, the company served on the plaintiff a notice to treat for some land belonging to him. The plaintiff on the 2nd of August, 1878, served on the company a counter-notice, requiring them to purchase the whole of his land, on the ground that the land required by the company formed part of the curtilege of a mill belonging to him,

On

The company treated this notice as invalid, and did not reply to it. the 2nd of December, 1878, the plaintiff sent the company a second notice, calling on them to elect whether they would take all or none of his land, and saying that, unless they so elected within twenty-one days by notice in writing to him, he should consider their silence to mean that it was not their intention to take the whole of his land. Nothing further was done for a long time, and ultimately, on the 10th of December, 1879, the company sent notice to the plaintiff of their intention to apply to the Board of Trade, under section 36 of the Act 30 & 31 Vict. o. 127, to appoint a surveyor to value the land, so as to enable them to take possession under section 85 of the Lands Clauses Act. The plaintiff took no steps to have the validity of his counter-notice decided, nor did he take any steps to have the compensation payable to him ascertained. The company applied to the Board of Trade, who appointed a surveyor, and be on the 2nd of February, 1880, valued the land comprised in the company's notice to treat at £236 103. A copy of the valuation was sent to the plaintiff, but he still did nothing. On the 9th of April, 1880, the company deposited the £236 103. in the Bank of England, and on the 5th of July, 1880, they gave the plaintiff a written notice of their intention to enter on his land, and sent him a bond of the company, with two sureties, for the £236 10s. The plaintiff the same day gave the company notice in writing that he should resist their taking possession. On the following day the company took possession, the plaintiff, in fact, offering no resistance. The plaintiff then commenced this action against the company, alleging that their entry was invalid, and claiming an injunction to restrain them continuing in possession of his land. He also claimed damages for some clay which they had dug out and removed from the land. The latter claim arose in this way. The company's notice to treat did not include the minerals on the land, and there was evidence that the clay on the land was of some commercial value, and was, therefore, a mineral according to the definition given in Hext v. Gill (20 W. R. 957, L. R. 7 Ch. 699). The company's line was to be carried across the plaintiff's land on an embankment, so that it was not necessary to excavate his land for the purpose of constructing the line. But the company dug out from the plaintiff's land, and carried away, some loads of clay, for the purpose of puddling some bridges which they were building on some adjoining land. It was contended on behalf of the plaintiff that the company's entry on his land was unlawful, because it was impossible either that their works could be completed within the five years, or that the compensation payable to the plaintiff could be ascer tained, under section 68 of the Lands Clauses Act, within that period, and it was said that the provisions of that section were powers conferred on the company which did not survive the expiration of the five years. FRY, J., said that the notice to treat created a relation of a somewhat peculiar character between the company and the landowner, somewhat like that of vendor and purchaser. It bound the company to take the land, and it bound the landowner to give the company the land, subject to his right to compensation. The argument was that the provisions of section 68 were powers of the company which came to an end at the end of the five years. Suppose the company had given a notice to treat and had entered long before the expiration of the five years, but the landowner had taken no steps to have the compensation ascertained, could it be said that the company would be entitled to remain in possession of the land without the compensation payable to the landowner ever being ascertained? If so, he would be without any remedy beyond the amount for which the company had given security. That would be an absurd construction. His lordship thought that the true view was, not that section 68 conferred powers on the company which came to an end at the expiration of the three years or the five years, but that it gave them powers for the benefit of the landowner, he having the option of requiring those powers to be exercised. It had been held in previous cases that these powers survived the expiration of the three years, and his lordship had great difficulty in seeing why, if they survived the three years, they did not equally survive the five years. He preferred, however, to rest his decision on this, that section 68 imposed on the company obligations to do something for the benefit of the landowner, and that those obligations did not expire when the company's compulsory powers expired. Reliance was also placed, on behalf of the plaintiff, on the view expressed by Malins, V.C., in Field v. The Carmarthen, &c., Railway Company (16 W. R. 273, L. R. 5 Eq. 190), that the power of a railway company to enter on land under section 85 of the Lands Clauses Consolidation Act is limited to cases where there is an urgent necessity for an immediate entry. FRY, J., said that, in the absence of authority, he should have felt great difficulty in coming to any such conclusion, the effect of which was to introduce into section 85 words which were not there. But, if that authority was to be treated as binding, his lordship thought that in the present case there was an urgent necessity for an immediate entry, for, if the company had not entered when they did, they would, probably, have not been able to obtain possession of the plaintiff's land at all.

It was also urged that the entry of the company was unlawful, because, as the plaintiff had refused to deliver up possession, they ought, under section 91 of the Lands Clauses Act, to have summoned the sheriff to give them possession. But FRY, J., held that, as the plaintiff did not actively oppose the entry of the company, section 91 did not apply, and the company were justiñed in taking possession without the aid of the sheriff.

And as to the removal of the clay, his lordship held on the evidence that the clay was a mineral within the meaning of section 77 of the Railways Clauses Act, 1845. The removal of the clay was not necessary for the execution of the company's works on the plaintiff's land, and the plaintiff was entitled to damages for the improper removal. The provisions of section 6 of the Railways Clauses Act, 1845, for giving compensation to a landowner whose land was injuriously affected by the company's works, did not apply. That section applied to an injury which reasonably or naturally followed from the construction of the works; not to an injury which resulted from a trespass by the company.-SOLICITORS, C, M. Stretton; R. R. Nelson.

arose.

LEASE AGREEMENT-DISTRESS FOR RENT-JUDICATURE ACT, 1873, s. 25.— In a case of Walsh v. Lonsdale, before the Court of Appeal on the 29th ult., the queetion which was referred to in The Commissioners for the Exhibition of 1851 v. The Royal Horticultural Society (ante, p. 331), as to the effect of the Judicature Act upon the position of a person who has taken possession of property under an agreement for a lease, no lease having been executed, again An agreement had been entered into between the plaintiff and the defendant for the granting of a lease by the latter to the former of a weaving shed, looms, and machinery, at a rent of £1 103. per annum per loom run by the lessee, it being provided that the lessee was not to run less than 540 looms. The lease was to contain such covenants and conditions as were contained in another lease which was specified in the agreement, or such of them as were or could be made applicable to the tenancy thereby agreed to be created. The lease referred to was made at a fixed annual rent, payable yearly in advance on the 1st of May in every year during the continuance of the term thereby granted. And it was expressly thereby agreed that there should, at all times during the continuance of the demise (except in the last year of the term), be due and payable in advance on demand whole year's rent of the demised property, in addition to the proportion (if any) of the yearly rent due and unpaid for the period previous to such demand. The lessee entered under the agreement, but no lease was executed. After he had been in occupation for some time, paying his rent quarterly, the landlord served on him a demand for the payment of a year's rent in advance from the date of the demand, calculated on the number of looms (560) which he was then running, and, the demand not being at once complied with, the landlord levied a distress for the sum which he had demanded. The tenant then commenced the action, alleging that the distress was illegal, and claiming an injunction to restrain the landlord from selling under the distress, and from remaining in possession. It was urged that no distress could be levied for rent in advance, because no lease had been executed, and the tenant was, therefore, in possession at law only as tenant from year to year at the rent specified in the agreement. It was also urged that the provisions contained in the lease referred to in the agreement as a precedent for the payment of rent in advance, were not applicable to a case where the rent was uncertain in amount, depending on the number of looms which the lessee might choose to run, and that, at any rate, a distress could be levied only for a rent certain, and must be levied for the whole rent, not for a part of it. The court (JESSEL, M.R., and COTTON and LINDLEY, L.JJ.), without finally deciding the construction of the agreement, held that the landlord was prima facie entitled to demand payment in advance of a year's rent corresponding to the minimum number of looms which the tenant was to run, and to levy a distress for that amount, and, cousequently, that an interim injunction could be granted only on the terms of the plaintiffs paying that amount into court. JESSEL, M.R., said that there was an agreement for a lease, under which the intended lessee had taken possession. Since the Judicature Act, a person in that position held under the agreement. There was not, as formerly, two estates, one a tenancy at law from year to year, the other a tenancy in equity under the agreement. Now there was only one court, and the rule of equity prevailed. The tenant now held under the agreement, on the same terms as if a lease, properly framed in pursuance of it, had been granted. That being so, he could not complain of the landlord exercising the same rights as he would have had if the lease had been granted, and, on the other hand, he was protected just in the same way as if the lease had been granted. The landlord could not eject him by virtue of his legal estate, unless he could do so under the lease. lessee (for he was lessee in equity) had no ground for complaining of the distress. The question how the lease ought to be framed under the agreement was one of some nicety. His lordship's present opinion was that there ought to be inserted in the lease a minimum or dead rent of £810, corresponding to the minimum number of 440 looms which the lessee was to run. If that were so, the provisions of the other lease for payment of the rent in advance would be applicable to that minimum rent, and the distress would be legal to that extent. The injunction ought, therefore, to be granted only on the terms of the plaintiff paying £810 into court within a week. The defendant would remain in possession till the payment was made, and would not sell the goods in the meantime. COTTON, L.J., said that, under the lease on the terms of which the plaintiff must be taken to be holding, the defendant would be entitled to rent in advance of some amount, and there being a prima facie case, he ought not to be deprived of his security. LINDLEY, L.J., said that the plaintiff's rights depended on the lease as it ought to be framed in pursuance of the agreement, and that the landlord ought not to be compelled to withdraw, except on the terms of £810 being paid into court.-SOLICITORS, Pritchard, Englefield, & Co.; Bower & Cotton.

The

INSOLVENT ESTATE-ADMINISTRATION-RIGHTS OF SECURED AND UNSECURED CREDITORS-RULES IN BANKRUPTCY-PRIORITY-JUDGMENT RECOVERED BY CREDITOR AGAINST EXECUTOR BEFORE ADMINISTRATION JUDGMENT-JUDICATURE ACT, 1875, s. 10-BANKRUPTCY ACT, 1869, s. 32.-In a case of Winehouse v. Winehouse, before Fry, J., on the 27th ult., the question arose whether, by the operation of section 10 of the Judicature Act, 1875, a creditor, who recovers judgment against the executor of an insolvent estate before the date of a judgment for the administration of the estate, is now disentitled to the priority which his judgment would formerly have given him over the other creditors of the testator in the same degree. On the 21st of January, 1879, an action was commenced for the administration of the testator's estate. On the 29th of March a creditor of the testator commenced an action for his debt against the executors as such. On the 9th of April a receiver was appointed in the administration action, upon his giving security. On the 24th of April the creditor recovered judgment in his action against the executors, they admitting assets by default in pleading. On the 2nd of

May the ordinary administration judgment was given in the administration action. On the 19th of August the receiver's recognizances were completed. On the 1st of July, 1881, the chief clerk's certificate was made in the adminstration action, by which it appeared that the testator's estate was insufficient for the payment of his debts in full. The debt of the creditor who bad recovered judgment was allowed in the certificate, he having proved it by producing his judgment, which was admitted by the executors. When his judgment was obtained it was supposed that the estate was solvent. The creditor was not served with notice of the administration judgment, and did not attend the proceedings under it. On the 22nd of July, 1881, the action was heard on further consideration, when an order was made that the residue of the estate, after the payment of costs, should be apportioned among the creditors (including the judgment creditor), and paid to them accordingly. In February, 1882, the fund not having been divided, the judgment creditor took out a summons, asking that his debt might be paid to him in full out of the assets in court, in priority to all the other creditors. There was evidence that the creditor did not know that the estate was insolvent until the 28th of January, 1882. FRY, J., held that, notwithstanding section 10, the creditor was entitled to priority by virtue of his judgment, and that he had not been guilty of any laches which would deprive him of it. His lordship said that the rule that a judgment obtained by a creditor against an executor gave priority to that creditor over all other debts of the testator of equal degree had been long established. The rule was founded on the superior diligence of the creditor. Section 32 of the Bankruptcy Act, 1869, provided that, in bankruptcy, with the exception of certain debts for wages and rates and taxes, all debts should be paid pari passu. Was this latter provision imported by section 10 of the Judicature Act into the administration of the estates of insolvent deceased persons? Section 10 said that in the administration of those estates, and in the winding up of companies, "the same rules shall prevail and be observed as to the respective rights of secured and unsecured creditors as may be in force for the time being under the law of bankruptcy with respect to the estates of persons adjudged bankrupt." Did these words apply only to the rights of secured creditors as a class in conflict with the rights of unsecured creditors as a class-to the rights of the two classes inter se, regarded as two conflicting classes-or did they apply also to the rights of the members of each class inter se? His lordship thought that the former was the true construction. There had been a great many decisions to the effect that section 10 applied only to the administration of the assets, and had no operation with regard to the assets which were to be administered. It was settled, for instance, that section 10 did not import into the administration of insolvent estates of deceased persons the provisions of section 87 of the Bankruptcy Act, or the provisions of the reputed ownership clause. The property to be administered was that which was the property of the dead man at the time of his death. In In re The Norton Ironworks Company (26 W. R. 53), Jessel, M. R., and in In re The Association of Land Financiers (L. R. 16 Ch. D. 373), Malins, V. C., held that section 10 had introduced into the winding up of a company the bankruptcy rule that servants' wages should be paid in priority to other debts, while, in In re Albion Steel and Wire Company (26 W. R. 348, L. R. 7 Ch. D. 547), Jessel, M.R., held that section 10 did not, in a winding up, give local rates priority over other debts. And in Smith v. Morgan (L. R. 5 C. P. D. 337), the Common Pleas Division held that section 10 had not taken away the priority of a judgment creditor in an administration action. In this conflict of authority FRY, J., said it was not easy to say whether, in his view, he was following or differing from the authorities, but he thought the weight of authority was in favour of his conclusion. He was confirmed in it by the decision of the Court of Appeal in Lee v. Nuttall (27 W. R. 805, L. Ř. 12 Ch. D. 61), that an executor's right of retainer is not affected by section 10. If section 10 had required that all debts should, in the administration of the estate of a deceased insolvent, be paid pari passu, as in bankruptcy, it was difficult to see how the executor's right of retainer could remain. And, moreover, in In re Withernsea Brick Works (29 W. R. 178, L. R. 16 Ch. D. 337), Lush, L.J., and James, L.J. (though not quite so distinctly), laid it down that this part of section 10 was only intended to introduce into winding up, and into the administration of the estates of deceased insolvents, the bankruptcy rule that a secured creditor could prove only for the balance of his debt after deducting the value of his security. Therefore his lordship held that the priority of the judgment creditor had not been taken away by section 10, and granted his application.-SOLICITORS, H. Aird; 0. B. Wooler; Cunliffe, Beaumont, & Davenport.

RAILWAY COMPANY-LANDS CLAUSES CONSOLIDATION ACT, 1845, ss. 63, 65-FORM OF CONVEYANCE-DAMAGES FOR INJURY DONE AFTER AWARD OF ARBITRATORS.-In the case of In re The Swindon, Marlborough, and Andover Railway Company, before Chitty, J., on the 24th ult., a motion was made on behalf of the company that a proper conveyance might be made to them of lands taken by them under their statutory powers, upon payment by them of the sum awarded in respect of purchase-money and compensation by arbitrators appointed under the Lands Clauses Consolidation Act, 1845. It appeared that the company having taken possession of the lands in question, had, as was alleged by the vendors, during the construction of their railway, damaged¦ land belonging to the vendors which was not comprised in the award, and that the vendors had sent in a claim for a further sum in respect of the damages so caused. The conveyance, as delivered to the vendors, purported to convey the land purchased by the company "free from all claims in respect of compensation for damage to be sustained by the owner of the lands and hereditaments by reason of the severing of the same from the other lands of the owner, or other wise injuriously affecting such other lands." The vendors took the objection that the insertion of the words "or otherwise" would prejudice their pending claims against the company, and therefore declined to execute the conveyance in the form delivered to them. CHITTY, J., observed that the contest was an

idle one. The vendors were, no doubt, entitled to have the conveyance executed in a form which should not prejudice any claims they might make; but, on the other hand, all that was desired by the company was a conveyance of the land free from all claims, and not to escape any liability in respect of the claims made. The proper course would be to qualify the terms objected to by confining the damages to damages covered by the award, and this would be effected by placing after the words "or otherwise" the words "for damages covered by the award."-SOLICITORS, W. Moon, for J. C. Townsend, Swindon; Bradford & Foote.

PATENT-INFRINGEMENT-LICENSE FOR LIMITED AREA-SALE OUTSIDE AREA. In a case of Smith v. Buchanan, before Hall, V.C., on the 23rd ult., a point of patent law was raised which, although generally accepted, has not previously been the subject of judicial decision. The plaintiff had granted to certain parties a license to manufacture and sell his patented invention within the counties of Lancashire and Yorkshire. These licensees had sold the patented machines to the defendants, who, in their turn, had sold them outside the licensed counties-namely, in Glasgow and elsewhere. The plaintiff had co nmenced an action for infringement in respect of these sales, and now movel for an interim injunction. The case which he sought to establish was that the restriction imposed by the limited license attached to the patented machines in whatever hands they might be, and he founded this proposition upon the maxim that a vendor cannot give his vendee a better title or a greater right than he himself possesses in the subject-matter of the sale, and that in the case of a patent this maxim is absolutely unqualified, inasmuch as the doctrine of purchase for valuable consideration without notice cannot there be applied. His lordship refused the motion, with costs, upon the ground that a purchaser from a licensee, whether special or general, acquires the patented article for all purposes, and can exercise every right of ownership in respect of it.-SOLICITORS, Shum, Crossman, & Co.; Brook & Chapman.

CASES BEFORE THE BANKRUPTCY REGISTRARS.
(Before Mr. REGISTRAR MURRAY, sitting as Chief Judge.)
March 2.-Ex parte Peach, Re Brown.

The Court of Bankruptcy has no jurisdiction in a case of composition to restrain the debtor from proceeding to a taxation of the receiver's costs, although it is alleged that the amount of such costs has been agreed between the parties.

This was an application on behalf of Frederick Robert Peach for a declaration that the taxing master of this court had no jurisdiction, under the cireu nstances of the case, to tax the costs of the applicant as receiver of the debtor's property, and that the debtor might be restrained from proceeding any further with such taxation.

On the 10th of March, 1880, the applicant was appointed receiver under a petition for liquidation presented by Ambrose Brown. On the 31st of March, resolutions were passed by a statutory majority of the creditors accepting a composition of 10s. in the pound in satisfaction of the debts, payable by instalments as therein provided, the whole to be secured to the satisfaction of the three largest creditors, and the applicant was appointed trustee for the receipt and distribution of the composition.

On the 14th of April the creditors confirmed the resolutions, which were duly registered. The applicant, on the 19th of April, made out his bill of costs, amounting to £75 is. 3d., and submitted the same to the debtor for his approval, and he signed the applicant's ledger account as being correct. The applicant had previously, according to his affidavit, stated that he should not allow Mr. King, a proposed surety, to sign any agreement or bond until the debtor had agreed to his charges.

On the 2nd of May, 1881, the debtor came to the applicant's office, and said he had gone through the bill, and there were several items which ought to be reduced. The applicant then went carefully over the bill with him, and reduced certain items to the extent of £5 63. 6d. The debtor then said, "Well, as you have money in hand, you may as well receipt the bill at once,' and the applicant then debited the cash account with the amount of the bill, and gave him a receipt for the same, and he thereupon, after going through the applicant's ledger, with receipts and disbursements, signed the books as

correct.

The applicant stated that the debtor never objected to any of his charges after they had been settled and agreed to on the 2nd of May, 1881, until January of the present year, when he applied to the taxing master to tax the bill, some other differences having since sprung up between them. The master gave an appointment for the 26th of January, when a clerk in the employ of the applicant's solicitor attended before him, and objected to his jurisdiction, on the ground that the matter had long since been disposed of by agreement, and ultimately the master adjourned the taxation to allow of an application being made to the court.

Finlay Knight, for Peach, contended, upon the authority of Ex parte Lyons (L. R. 7 Ch. 494), that when the amount of the receiver's charges had been ascertained by agreement between the parties, this court had no jurisdiction to

order a taxation.

Brough, for the debtor, was not heard.

Mr. REGISTRAR MURRAY held that he had no jurisdiction to make any order upon the application. In Ex parte Lyons the debtor had given a bill of sale outside the liquidation to the receiver, and the Court of Appeal held that the Court of Bankruptcy had no jurisdiction to set it aside, but here he was asked to say that the debtor was bound by the resolutions and the alleged agreement with the receiver. He might review the taxation when the bill had

This was an application on behalf of William Hall, a debtor, whose affairs were under liquidation by arrangement, for an order that the Imperial Discount Company (Limited) be restrained from further proceeding in an action commenced by them against the debtor in the Queen's Bench Division on the 15th of December, 1881, to recover the sum of £82 0s. 7d.

On the 8th of May, 1879, the debtor filed his petition for liquidation, and at the first meeting a resolution was passed by the statutory majority of the creditors that his affairs should be liquidated by arrangement, and not in bankruptcy, and trustees were appointed, with a committee of inspection. Such resolution was afterwards registered.

At the date of the petition the Imperial Discount Company (Limited) were creditors of the debtor for the sum of £75, balance of principal money due on a promissory note for £120, dated January 2, 1879, and the company received dividends amounting to £7 19s. 5d. They did not, however, assent to any arrangement with the debtor otherwise than by proving their debt and accepting dividends. At a general meeting of the creditors held under the liquidation a special resolution was passed that the liquidation should be closed as from the 31st of December, 1880, but no discharge was granted to the debtor. On the 15th of December, 1881, the company commenced an action against the debtor in the Queen's Bench Division to recover the sum of £82 0s. 7d., being the balance due, with interest up to that time, after deducting the dividends received by the company. The secretary of the company alleged in his affidavit that the debt had been incurred by fraud, but the debtor denied this to be the case.

Section 15 of the Debtors Act, 1869, provides that "where a debtor makes any arrangement or composition with his creditors under the provisions of the Bankruptcy Act, 1869, he shall remain liable for the unpaid balance of any debt which he incurred or increased or whereof, before the date of the arrangement or composition, he obtained forbearance by any fraud, provided the defrauded creditor has not assented to the arrangement or composition otherwise than by proving his debt and accepting dividends."

Herbert Reed, in support of the application.-A creditor to whom the debtor is indebted in respect of any proveable debt has no remedy against the property or person of the debtor except in the manner directed by the Act: Bankruptoy Act, 1869, s. 12, and by rule 289 he is absolutely restrained from commencing or continuing any proceedings whatever. It is said that the debt due to the company has been incurred by fraud, still, the debtor not having obtained his discharge, the company cannot sue: Ex parte Hemming, Re Chatterton (28 W. R. 218, L. R. 13 Ch. D. 163); Cobham v. Dalton (23 W. R. 865, L. R. 10 Ch. 655). The only remedy of the company is under section 54, which provides that when a person who has been made bankrupt has not obtained his discharge, then, from and after the close of the bankruptcy, no portion of a debt proveable under the bankruptcy shall be enforced against the property of the person so made bankrupt until the expiration of three years from the close of the bankruptcy.

Israel Davies, for the company.-The liquidation having been olosed, the company has a right to proceed for the recovery of a debt incurred by fraud, although the debtor may not have obtained his order of discharge. Property acquired by or devolving upon the bankrupt after the close of the liquidation cannot be claimed by the trustee : Re Pettitt's Trusts (24 W. R. 359, L. R.1 Ch. D. 479). Indeed, this is clear from the terms of the 15th section apart from any authority. Ex parte Wainwright (L. R. 19 Ch. D. 149), shows the position of the debtor in a case in which the liquidation has not been olosed; and Ebbs v. Boulnois (23 W. R. 820, L. R. 10 Ch. 479), supports my contention. Section 15 of the Debtors Act has no application to this case. In Ex parte Williams (23 W. R. 790, L. R. 20 Eq. 743), Bacon, C.J., held that the creditors have the same rights against an undischarged debtor as against a bankrupt under section 54.

Reed, in reply.

Mr. REGISTRAR BROUGHAM said that for the purposes of the argument fraud was admitted, and it was also admitted that the liquidation had been closed as from the 31st of December, 1880. It was contended that the only remedy of the creditor was under section 54, but in this case the debt would not be barred by the order of discharge. In Cobham v. Dalton, James, L.J., said that "when the order of discharge had been obtained, or the bank. ruptcy had been olosed, the right of creditors whose debts were not barred as to the future assets accrued, the creditors whose debts were barred having lost all remedy." The debt of the company was not barred, and Cobham v. Dalton was conclusive upon the point. He would be bound to follow Ex parte Williams, but he thought Ex parte Hemming more applicable, because Ex parte Williams only applied to creditors whose debts were barred. The application would be refused, and the costs must follow the

event.

Solicitors for the debtor, Reed, Lovell, & Reed. Solicitor for the company, E. H. Adcock.

SOLICITORS' CASES.

HIGH COURT OF JUSTICE.-QUEEN'S BENCH DIVISION.
(Sittings in Banc, before MATHEW and CAVE, JJ.)

March 27.-Copp v. Lynch and The Law Life Assurance Company.* Solicitor-Agent-Insurance-Commission-Incapacity of solicitor to receive commission on insurance unknown to his client.

the

to

In this case, which was heard on appeal from the judgment of Mr. Commissioner Kerr, the action was brought by Mr. Copp, who is a solicitor and agent to the Law Life Assurance Company, to recover the commission on of premiums payable in respect certain insurance of the under the life of one Jackson, following circumstances:-Jackson being indebted to the defendant Lynch, offered security assign to him by way of mortgage a contingent reversionary interest to which he was entitled in the event of his surviving his father and mother, and it was proposed that, as a further security, he should insure his life, and assign the policy to Lynch. Copp, who was Lynch's solicitor, and acting for him in the negotiations with Jackson, introduced Jackson to the Law Life Assurance Company, and he insured his life with that society. The Law Life Assurance Company are in the habit of paying a commission on the annual premium to any solicitor who introduces a life, and it appears on their prospectuses that assurances may be effected through solicitors. Jackson having been introduced by Copp, the company sent the annual demand for the premium on his life assurance to Copp, who forwarded it to Lynch, and he sent Copp a cheque for the amount, and debited Jackson's account with himself with such amount. The company having received the premium, which in Jackson's case amounted to £55 5. 5d., returned to Copp his commission thereon, which amounted to £2 15s. 3d., but Lynch was unaware that Copp received any commission. This course of business having continued for three years, but in the fourth year, owing to some mistake, the demand for the premium was sent to Mr. Lynch, and on his sending his cheque for the amount, the commission was handed back to his messenger. From that time Mr. Lynch continued to pay the premiums himself and to receive the commission, with the amount of which in each instance he credited Jackson, and refused to hand it over to Mr. Copp. Mr. Copp brought his action to recover the amount of the commission thus received by Lynch. Lynch in his defence denied his liability, on the ground that Copp was acting as his solicitor and agent, and counter-claimed for the amount of the commission received by Copp on the premiums paid during the first three years of the insurance. The Law Life Assurance Company were added as defendants in the alternative. Mr. Commissioner Kerr gave judgment for the defendant in the action and on the counter-claim, and the plaintiff now appealed. Crispe, for Mr. Copp.

Tomlinson, for Mr. Lynch.

J. Clerk, for the Law Life Assurance Society.

It was admitted in the course of the argument that Mr. Lynch was as a fact unaware that Mr. Copp received any commission on the premium until he discovered it as above.

Crispe, for the plaintiff, urged that Mr. Copp was not acting as Mr. Lynch's solicitor, but as the agent of the assurance company, and that as such he was entitled to his commission; that if Jackson had effected the assurance himself without the intervention of Copp, the premium payable would have been the same as now, and no smaller; and referred to the cases of Great Western Insurance Company v. Cunliffe (L. R. 9 Ch. 525), and Baring v. Stanton (25 W. R. 237, L. R. 3 Ch. D. 502).

The COURT, however, without calling on the other side, upheld the decision of the learned commissioner. In both the cases cited there had been knowledge of the fact that the agent received commission, and acquiescence in the practice by the principal. In the present case Mr. Lynch did not know that Mr. Copp received any commission, and therefore the rule of law applied that where an agent derives a benefit unknown to his principal, such as this commission, he must account for it to his principal. It was suggested that if Mr. Lynch had himself effected the insurance, he would still have had to pay the same premium, and that Mr. Copp was the agent of the company, and not Mr. Lynch's solicitor, but neither of these contentions were correct. Mr. Copp was acting as Mr. Lynch's solicitor, and Mr. Lynch was not aware that he was acting in any other capacity, and the premiums would be lower if these commissions had not to be allowed for. It might be that Mr. Copp assumed that Mr. Lynch was aware of the practice, but, as a matter of fact, it appeared that he was not, and that being so, Mr. Lynch had a good defence to the action, and was also entitled to succeed upon his counter-claim. Leave to appeal was refused, the court saying that it was a very clear case, and unless solicitors were desirous of receiving these commissions without their client's knowledge, there could be no reason for an appeal. Solicitors, A. E. Copp; West, King, Adams, & Co.; Bockit & Son.

(Sittings in Bane, before GROVE, J., and HUDDLESTON, B.)
March 27.-In the Matter of E. D. Lewis, a Solicitor.

G. Candy argued on behalf of the appellant. Stone argued in support of the order of the learned judge. This was an appeal from an order made by Mr. Justice Ford North, in chambers, under the following circumstances:-One, W. W. Maitland, was charged with perjury at Bow-street, and a Mrs. Heath, on his behalf, entered ent, by which she retained him to act for Maitland at the police-court only, into an agreement in writing with Mr. E. D. Lewis, a solicitor, the respond. and paid him fifty guineas down on account, authorizing him expressly to charge five guineas for each attendance at the police-court, and one guinea for each conference with Maitland, in addition to his ordinary

* Reported by F. H. WILSON, Esq., Barrister-at-Law.