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that he allows the prosecution to reply on the prisoner's address, just as if it were evidence.

I may add that Mr. Alfred Wills, Q.C., as recorder of Sheffield, has adopted the same practice.

It seems to me that the innovation which these learned persons have introduced is decidedly a wholesome one, and one which ought to be followed. One advantage of it is that it is a compromise between the old idea of the prisoner's mouth being closed, which induces defending counsel to talk such bunkum to the jury, and the new idea-a very dangerous one-of administering an oath to, and cross-examining, him.

LEGACIES TO LAWYERS' CLERKS.
[To the Editor of the Solicitors' Journal.]

W. S. S.

attended to draw up the order and assist me with the papers, all I am entitled by law to charge my client is the miserable sum of 6s. 8d. It is quite true I shall not charge so small a fee for my services, though the fact remains that I am not entitled to charge more than the sum indicated. In the chambers of the judges of the Chancery Division I should have been allowed a guinea for my attendance, and with that fee I should have been content. In addition there would have been the drawing up of the order, which would have also formed a further fee.

In the interests of the public and of the suitors, it is of great importance that solicitors should be reasonably remunerated for their time and attention in attending at judges' chambers, no matter to what Division of the Supreme Court the case may be attached. These are, however, points with which the Incorporated Law Society, through their council or otherwise, will have to deal, and I have no doubt from all I hear, they will be

Sir, I see that the late Sir John Karslake has left his clerk £2,000 in prepared and willing to suggest an acceptable remedy. recognition of his long and faithful services.

It is always gratifying to read of such acts of liberality-they live in one's memory and act as a kind of spur. Might not eminent solicitors follow in the wake of eminent barristers in this thoughtful custom of legacy-giving in return for long and meritorious services?

I can recall the following instances of liberality by eminent barristers to their clerks :-Mr. Justice Quain, £5,000; Mr. Justice Crowder, £3,000; Lord Justice Giffard, £1,000; Lord Justice Thesiger, £1,000; and I should much like to see similar instances of thoughtfulness by

eminent solicitors.

Lincoln's-inn, November 14.

AN OLD LIMB OF THE LAW.

JUDGES' CHAMBERS.

[To the Editor of the Solicitors' Journal.] Sir,-So frequent and so just have been the complaints which have from time to time been made respecting the conduct of business at judges' chambers, that you will probably be glad to insert the experience I have recently had before one of her Majesty's judges, as showing that in some respects a great improvement has been made, though much still remains to be done, which it is greatly to be desired that the contemplated meeting of the Incorporated Law Society will be the means of causing to be ultimately introduced.

I wish then to say that I had the pleasure to-day of attending before Mr. Justice Watkin Williams, and am pleased to be able to record the painstaking and carefulness in which he considered the question submitted to him, and the patience which he displayed in grasping the facts, which were somewhat complicated; which consideration at his lordship's hands has unquestionably prevented an appeal, as both my opponent and I were well satisfied with the treatment we received. The application was to set aside a judgment, and an order which had subsequently been founded thereon. There were five affidavits for his lordship's consideration, which were carefully considered, as well as the observations made by my opponent and myself. It frequently happens at chambers that the judges keep their eyes fixed on the summonses before them, and never think to look up and see by whom they are addressed; thence it happens that some of them attach no more import. ance to the presence before them of the experienced solicitor than of the mere office-boy who may be in the receipt of a few shillings per week; the latter, being necessarily less familiar with the rules of polite society, has no difficulty in enforcing his views or rather his conclusions, while the former, naturally hesitating to be guilty of anything like rudeness, is less obtrusive, and frequently finds an order made without having had the opportunity to set forth his views satisfactorily.

It is true that Mr. Justice Watkin Williams' judicial experience is somewhat recent, but I cannot help feeling that if some of his colleagues would follow his example of patience and consideration, not only would the profession be better satisfied, but, what is of far higher importance, the interests of the public would be better served, and appeals would consequently be less frequent. In his management of chamber business Mr. Justice Watkin Williams has evidently been copying the example set by the judges of the Chancery Division, who invariably listen with patience and fairness to the representations made to them when they sit in chambers, and hence it frequently happens that in business of that description in the Chancery Division their lordships are either attended by experienced managing clerks, or by the principals, with the best results to the suitor. There seems, however, no reason why chairs should not be provided, as in the chambers of the Chancery Division, for those who attend before the judge, instead of their having to lounge in an uncomfortable and standing position over the high desk which separates them from the judge. Moreover, the judge's clerk should have special

directions not to admit more than two or three cases at a time before the judge, otherwise the judge is tempted to hurry the business before him in order to attend to the cases which are waiting for hearing.

Now, Sir, the summons to which I have referred was an important one, and consequently, though assisted by an efficient clerk, I felt in the interests of my client that I should appear in person; and having been kept some time waiting, and also before the judge, and time having been taken up both in going from and returning to my office, and also my clerk having

There is, of course, still ample room for improvement with regard to business at judges' chambers, which, however, will never be made to the Chancery Division of the High Court. Desirable as the one-judge work satisfactorily until it closely follows the practice which prevails in system may be from many points of view, it is of the essence thereof tion, should be taken before the judge to whom the case may at first have that the practice, from the commencement of the action to its terminabeen assigned.

occasion, with your permission, I will do so.
I could say a great deal about the masters, and perhaps on a future
Some say that they have
become so inured to the practice of transacting business superficially
that they are absolutely unable to carry out any system different
to that, notwithstanding its admitted evils, to which they have been so
long accustomed. This may be the case with some, but I am not
without the expectation that a few at least may be willing to realize that
the interests committed to their charge are not so unimportant as their
method of dealing with those interests would sometimes justly lead one
to suppose. Certainly there is scarcely one who, in the taxation of costs,
has ever yet been able to take into adequate consideration anything but
the length of the document or the time occupied, without the slightest
reference to the skill and ability manifested in their preparation and in the
conduct of the business, the bill of costs relating to which they are called
upon to tax.

With the powerful co-operation of your valuable journal in throwing open your columns to the publication of suggestions from those who are daily engaged in the active discharge of the duties of the profession, and with the results which I have some reason to suppose will be likely to follow from the meeting to be held next Friday at the Law Institution, I do not doubt that if the members of the profession will just for once venture to rise to the dignity and influence of the position which as a body they unquestionably fill, all those defects in the administration of justice which have been so long felt and acknowledged will speedily be removed, and that solicitors, remunerated simply out of regard to the nature and quality of the services rendered, will more readily assist in the future, than they may have done in the past, to bring about those changes and improvements which wisdom and experience may from time to time prove to be a necessity.

I have no desire that anything but its proper value should be attached to what I have said, and therefore I subscribe myself November 16.

A PRACTISING SOLICITOR.

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THE deep interest which is felt by the profession in the provisions of this Act, and the keen discussion which the articles which have appeared in this journal have excited, have given rise to a flood of correspondence. We are desirous that the case both for and against the provisions of the Act should be set forth, but we cannot occupy the whole of our columns with letters on this subject. We propose, therefore, this week, to give the substance of the communications we have received, with brief notes appended stating our own views on the points raised.

"C." writes :

"I have read with interest your articles on the above subject, and wish to call your attention to a point as to the effect of section 9, which is not touched upon in your article of the 12th inst. As the Act enacts that an acknowledgment' and 'undertaking' shall respectively satisfy any liability to give covenants for the production and safe custody of deeds, it appears to me that where property is sold in lots, with the usual condition as to covenant by the largest purchaser, then (unless it should be held that such purchaser is not a person who'retains' deeds within the meaning of the section) he would, notwithstanding anything in the conditions, be enabled by the Act to elect whether he would covenant in the ordinary way, or merely give an acknowledgment' or 'undertaking.''

[This is an important point, which ought certainly to be brought to the notice of our readers.]

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the habendum may not now qualify the general intendment of the premises,' would not the express statement in the habendum, that the lease was for so many years, amount to an expression of intention in the conveyance that the whole fee was not to pass? It does not seem to matter in what part of the conveyance the expression of intention is found." [Our correspondent is not quite accurate in these remarks. The Act says nothing about "an intention in the conveyance that the whole fee was not to Fass." Whether (which is much more to the point) the habendum in a properly drawn lease amounts to the expression of an intention to exclude the operation of section 63, sub-section (1), was the very question we suggested, without in any way deciding it.]

"H." writes :

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"With regard to your inability to see anything in sub-section (1) of section 9in any way to restrict the meaning of the word "person," or the word "another," or the word "documents," or to connect the transaction with a sale or conveyance of land, or any other property,' or 'to restrict the documents to documents of title to land, or to restrict the occasions to sales or conveyances, or to restrict the relation subsisting between the parties to the relation of vendor and purchuser, or to any other definite relation,' is there no significance in the Roman capitals, Sales and other Transactions, marking the second salient division of this Conveyancing and Law of Property Act'? That division comprises sections 3 to 9, which are thrown into six sub-divisions, the first five of which, at all events, indicate explicitly enough the 'transactions' to which they apply-viz., 'sales' or 'conveyances,' the term 'conveyance' including any assurance made by deed on any dealing with or for any property,' and the term 'property, including real and personal property. If section 9, which forms the sixth sub-division, is silent as to the particular transactions to which it applies, may it not fairly be inferred that its scope is co-extensive with the 'transactions' that are indicated in the other sub-divisions? If so, there is DO restriction to documents of title to land, or to the relation of vendor and purchaser, but there is to 'transactions' involving the retention and production of deeds in connection with 'sales' or conveyances,' and to the definite relations subsisting between the parties thereto. And why should this wide range of usefulness be regarded as a demerit ? "

[We do not know why our correspondent says that we "now put" the casǝ which we always did put; but we are glad that he now seems to see what we meant. He apparently does not see that his attack upon our interpretation of sub-section (3) involves a much more formidable attack upon sub-section (1). If "the mortgages" in sub-section (3) must be confined to two only, one sought to be redeemed and the other sought to be consolidated, we find ourselves obliged to conclude, from the words of sub-section (1), "a mortgagor seeking to redeem any one mortgage," that, if he seeks to redeem two, even though both be made after the commencement of the Act, he will be left to the hardships of consolidation. It will follow that a mortgagor must in future bring as many separate redemption actions as he has mortgages to redeem thus repealing (so far) ord. 17, r. 1. We were driven to our interpretation because we did not wish to father these anomalies upon the framers of the Act; and we must beg permission to leave the whole responsibility of the affiliation upon our correspondent. Our correspondent then devotes more than thrice the same space to the citation of cases upon a question connected with the suspension or extinction of appurtenants, into which we do not think it necessary to enter-because the dispute upon this point between ourselves and the Act can be ettled by a much shorter method. In his first letter our correspondent cited from our article a passage which contemplated not merely the suspension or extinction of appurtenants in construction of law by unity of seisin, but their manifest and visible interruption and destruction in fact. Suppose the quasi-appurtenant to be a right of way from one house through the garden of the next house to a public road; and that the owner of both houses, having contracted by bare open contract (for this was our hypothesis) to sell the first house, takes away the gate through which the right of way was enjoyed, blocks up the opening with a brick wall, plants a promising quick-set hedge on both sides, and then executes the conveyance. Our correspondent will hardly assert that the right of way is under such circumstances "at the time of conveyance demised, occupied, or enjoyed with " the first-mentioned house. We conceive that this example alone suffices to justify our distrust of the forms given in section 6 of the Act.] "E. L. J. W." writes :

"You have not yet discussed in your articles on the Conveyancing Aot [We are at a loss to understand how the words "sales or other transac-section 8. In the first place, is the section applicable 'notwithstanding tions" can be thought to restrict the matters to which they refer to sales any stipulation to the contrary' contained in the contract of sale? The alone; and if they import no such restriction, they seem to have no "sig- section does not expressly say so; but it is couched in general terms, and nificance" in opposition to what we said, but to agree therewith remarkably contains no saving of the rights of vendors to contract themselves out of' well.] it. In the second place, what is the precise difference between 'his soli"H." also writes:-"You disparage section 9 because it does not citor, as such,' and 'some person appointed by him, who may, if he thinks contain a definition of undertaking' corresponding with the definition of fit, be his solicitor'? Does this mean that the person appointed by the acknowledgment,' but if you will calculate you will find that there would vendor, although not a solicitor, may, if the vendor thinks fit, be his solicitor have been absolutely no gain in brevity, as there could not be in clearness, pro hac vice?"" while it would have been open to the objection that it gave co-ordinate importance to an 'undertaking' instead of assigning it its natural place as usually an appendage to an acknowledgment.'"

[We cannot agree that there would have been no gain in clearness, and we would remind our correspondent that brevity counts for nothing in drafting an Act of Parliament as compared with the importance of clearness.]

Lastly, "H." says:-"In the case you suppose of a vendor retaining deeds, and then handing them over to a pro forma mortgagee of the property retained, and refusing to disclose the name of the mortgagee, I apprehend that he might be visited with costs under sub-section (7). . . . The Chancery Division may, I think, be trusted to prevent a person who has given a written acknowledgment of the right of another to the production of documents from deliberately and dishonestly rendering such right nugatory in the manner suggested; and, if necessary, to give a new meaning to the words under the control of the person who retains' the documents.' [Our correspondent should consider whether these opinions might not more properly bave been embodied in the letter of the law, instead of being left to be inferred from the court's high moral tone.]

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Our correspondent "G. C." has written us another letter, dealing with two separate points-(1) our interpretation of section 17, sub-section (3), of the Conveyancing Act; and (2) the nature of quasi-appurtenants, which have been suspended or extinguished by unity of seisin: a subject which is connected with our remarks upon section 6. Both these points are treated by our correspondent at most unmerciful length; but we will allow him to state the first in his own words:"As to section 17:-You now put the case of a mortgagee entitled to the benefit of several old mortgages (or mortgages made before the commencemeat of the Act), taking a grant or transfer of a new mortgage (or mortgage made since the Act), not expressly excluding section 17, and you say that in such a case the mortgagor will, notwithstanding section 17, be able, by picking out those which he desires to redeem and including among them the new mortgage, to prevent the mortgagee from consolidating the rest of the old mortgages." This conclusion seems to rest on your interpretation of the words the mortgages,' in sub-section (3) of the section under consideration; they mean, you say, the mortgages which the mortgagor seeks to redeem, and which, if an action is brought, are the subject of the redemption action.' I have looked at the section again, and I cannot help thinking your interpretation incorrect: the mortgages' referred to in sub-section (3) are the mortgages already referred to-viz., the one mortgage' which the mortgagor does seek to redeem, and the 'separate mortgage' which he would rather not redeem, but which the mortgagee (under the doctrine of consolidation) seeks to force him to redeem. If this be so, the section only enables the mortgagor in the case you suppose to redeem the new mortgage without being forced to redeem the old ones; and the old mortgages not included in the redemption action could still be consolidated with the old mortgages which are included in it. Divide the mortgages mentally into pairs, as is done in the section, and all difficulty vanishes."

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Act, and we do not think that the provision referred to by our correspondent [We do not propose to comment on all the sections of the Conveyancing offers much difficulty of constraction. It can, we should think, only relate to the rights of the purchaser in the absence of express stipulation. The last part of the clause is awkwardly worded, but we apprehend that our correspondent's interpretation is jocular],

CASES OF THE WEEK.

ORDER IN CHAMBERS-TIME FOR APPEALING TO Judge-JUDICATURE ACT 1873, s. 50-ORD. 58, R. 15-ACTION TO SET ASIDE CONTRACT FOR FRAUDPARTIES-AGENT.-In a case of Heatly v. Newton, before the Court of Appeal on the 15th inst., the question arose within what time an application ought to be made to a judge of the Chancery Division in court to discharge an order previously made by himself in chambers. On the 23rd of June, Jessel, M.R., made an order in chambers, upon a summons taken out by some of the defendants. The order was not drawn up, passed, and, entered till the 14th of July. On the 18th of July the plaintiffs gave notice of a motion in court to discharge the order. Jessel, M.R., refused the motion, on the ground that it was his invariable rule that notices of motion to discharge orders made in his chambers must be given within twenty-one days from the date of the pronouncing the order, and not from the date of its being perfected, whether the order was a simple refusal of an application or not. The notice of motion had therefore been given too late in the present case. The Court of Appeal (BAGGALLAY, LUSH, and LINDLEY, L.JJ.) reversed this decision, and heard the appeal on its merits, holding that the notice of motion to discharge the order in chambers had been given in time. They said that section 50 of the Judicature Act of 1873 provided that orders made by a judge in chambers (except the discretionary orders mentioned in section 49) may be set aside or discharged upon notice by any divisional court, or by the judge sitting in court, according to the course and practice of the division of the High Court to which the particular cause or matter in which such order is made may be assigned," not the practice of the particular judge of the division. There did not appear to be any settled practice of the Chancery Division as to the time within which such appeals from the judge in chambers to the judge in court should be brought. The case of Dickson v. Harrison (26 W. R. 730, L. R. 9 Ch. D. 243) was not an authority that twenty-one days ought, necessarily, to be the limit, whether the order was a simple refusal or not. Their lordships thought that the analogy of rule 15 of order 58 as to appeals to the Court of Appeal from interlocutory orders should be followed, and that appeals to the judge from orders in chambers should be brought within twenty-one days from the date of the pronouncing of the order in the case of a simple refusal, and in other cases within twenty-one days from the date of the perfecting of the order.

66

On the merits a question arose as to parties. The action was brought to set aside a contract for the purchase of a leasehold house. The defendants were the vendors and the auctioneers who had conducted the sale, and who had received the deposit paid by the plaintiffs on signing the agreement for purchase. The property was sold subject to a condition that the highest bidder should be the purchaser, the vendors reserving the right of bidding once or oftener by themselves or their agents. The plaintiffs by their statement of claim alleged that they attended the auction for the purpose of bidding thereat for the property. The property was put by the auctioneer in the ordinary way, and what appeared to be a very brisk and eager competition between bidders ensued. Ultimately the auctioneer announced that the biddings had reached £12,950, and had already said the words "going, going," when the plaintiffs, who up to that time had made no bid, being induced by the language and manner of the auctioneer to believe that the property was about to be knocked down to a bona fide bidder at £12,950, bid £13,000, and, there being no subsequent bidding, the property was knocked down to them at that price, and they paid a deposit of £1,300 to the auctioneers in accordance with the conditions of sale. The plaintiffs alleged that they had since discovered that, for the purpose of obtaining a higher price to be paid to the vendors, and consequently a higher remuneration for the auctioneers than could be obtained by a fair sale in the market, the defendants had combined to run up the price in the following manner :-The auctioneers were not to bid, but were to pretend to accept fictitious biddings from all quarters of the room, so as to induce the public to believe that there were many eager and anxious bidders desirous of purchasing, whereas, in fact, there was no bidding whatever for the property except that of the plaintiffs. All the rest of the transaction was a pure fiction and deceit. On these grounds the plaintiffs claimed to have the agreement for purchase rescinded, and to have the £1,300 repaid to them by the auctioneers, with interest. They also claimed the costs of the action and damages against all the defendants. The auctioneers took out a summons, asking that they might be at liberty to pay the £1,300 into court to the credit of the action, and that thereupon the action might stand dismissed as against them, and that their costs of the action might be provided for. They had not filed any affidavit denying the charges made against them. Jessel, M.R., on the undertaking of the vendors to pay the applicants their costs of the action, without prejudice to any question by whom those costs were ultimately to be borne, and also to pay any interest and damages to which the plaintiff's might be held to be entitled, and the auctioneers undertaking, in the event of the vendors not carrying out their undertaking, to pay the plaintiffs interest up to the date of the payment of the £1,300 into court, and also the costs of the action up to and including the summons, in the event of the court holding that the plaintiffs were entitled to such interest and costs, gave the auctioneers liberty to pay the £1,300 into court to the credit of the action, and that thereupon all further proceedings in the action should be stayed as against them, except so far as might be necessary to enforce their undertaking. The plaintiff's moved in court to discharge this order, except so far as it ordered the pay ment into court. Jessel, M.R., refused the motion with costs. The COURT of APPEAL discharged both the orders of the Master of the Rolls and dismissed the summons, ordering the auctioneers to pay all the costs. They held that the auctioneers were properly made parties to the action, and that the plaintiffs were entitled to go on against them to trial, unless they gave them all the relief to which they would be entitled if they should succeed at the trial. If the plaintiffs made out their case they would be entitled to have the deposit, not paid into court, but paid to them, and to have an order for costs against all the defendants, jointly and severally.-SOLICITORS, Last & Sons; Lewin & Co.; A. F. & R. W. Tweedie.

COMPANY-WINDING UP--COMPANIES ACT, 1862, s. 115-EXAMINATION OF WITNESS BY CONTRIBUTORY-DISCRETION OF JUDGE-APPEAL-LOCUS STANDI. In a case of In re The Silkstone and Dodworth Coal and Iron Company, before the Court of Appeal (Jessel, M. R., and Baggallay and Lush, L.JJ.) on the 16th inst., a question arose as to the right to examine a witness under section 115 of the Companies Act, 1862. An order having been made to wind up the company, the liquidator obtained leave in chambers to issue a summons under section 115 against a director of the company to attend and be examined. One of the contributories then obtained an order in chambers giving him liberty to attend on the examination on behalf of the liquidator, and to examine the witness himself. The person summoned attended and was examined on behalf of the liquidator, and, when the examination was concluded, counsel on behalf of the contributory put questions to the witness which he refused to answer. Fry, J., then made an order (29 W. R. 866) that the witness should attend at his own expense and answer questions put to him on behalf of the contributory. From this order the witness appealed, and it was urged on his behalf that it was contrary to the practice to make an order for the examination of a witness under section 115 by a contributory, unless it was shown that the liquidator was not doing his duty, and that it would be very oppressive to compel a witness to submit to two examinations on the same matter. In fact, a similar order had been made on the application of another contributory, and the witness might be compelled to attend for examination a great many times. JESSEL, M.R., said that the appellant had no locus standi to appeal from the order. He was a mere witness summoned under the order of the court to attend and give evidence. He had refused to answer questions which he admitted to be lawful questions, and then he appealed against the order that he attend and answer. The only possible objection which he could make would be that the court had no jurisdiction to make the order, but that was not even suggested. It was said that the order was oppressive. But section 115 gave the judge a discretion as to the person who should examine the witness. The object being discovery, it was usual to intrust the examination to the liquidator, who was an officer of the court and who represented the creditors and the contributories. But there might be cases in which he declined to interfere, or in which it was not fit that a particular examination should be intrusted to him, though there

might not be a sufficient ground for removing him from his office, and the judge had a discretion to intrust the whole or a part of the examination to other persons. It was also entirely within the discretion of the judge whether the examination should be general or limited. If there had been a slip or a gross miscarriage, the Court of Appeal might interfere, but it would require a very strong case to induce them to interfere with the exercise of the discretion of the judge of first instance. BAGGALLAY and LUSH, L.JJ., concurred. But the order of Fry, J., was varied by directing that the witness should attend only one day at his own expense.-SOLICITORS, James Burn; Flux & Leadbitter.

BILL OF SALE-ASSIGNMENT of After-acquired ChattelS--BANKRUPTCY AND DISCHARGE OF GRANTOR-RIGHTS OF GRANTEE-BANKRUPTCY ACT,

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1869, ss. 12, 31, 49.-In a case of Collyer v. Isaacs, before the Court of Appeal on the 16th inst., a question arose as to the rights of the grantee of a bill of sale of chattels against chattels acquired by the grantor after the execution of the deed, and after the subsequent liquidation of the grantor in which he had obtained an order of discharge. By the deed the grantor assigned to the grantee, as security for an advance, all the chattels mentioned in a schedule belonging to the grantor, and then in or upon a house occupied by him, and all other chattels which might at any time thereafter be brought therein in addition to or in substitution therefor. After the execution of the deed the grantor filed a liquidation petition, under which his creditors granted him an order of discharge. He subsequently brought new chattels into the house, and the grantee took possession of these chattels and advertised them for sale. The grantor then brought the action, claiming an injunction to restrain the grantee from taking possession and selling. Hall, V.C., refused to grant the injunc tion. The Court of Appeal (JESSEL, M.R., and BAGGALLAY and LUSH, L.JJ.) held that it ought to have been granted. JESSEL, M.R., said that he thought the Vice-Chancellor's decision was contrary, not only to the spirit and meaning, but also to the words of the Bankruptcy Act, 1869. An assignment of after-acquired chattels was nothing more than a contract to give them to the assignee when they should come into existence. Neither at law nor in equity could you assign that which was existent. In equity the result was the same whether there was a contract to assign after-acquired chattels, or the assignment of them in form; in either case there was only a contract, but the property would be bound in When the property came into existence equity when it came into existence. there was a contract for the breach of which the contracting party would incur a liability, and, if he became a bankrupt, the liability would, under section 31 of the Bankruptcy Act, be proveable in the bankruptcy. And then, by section 49, the effect of an order of discharge was to relieve the bankrupt also an agreement to give security for it, it would be a very strange thing if from all proveable debts (with certain exceptions). If there was a debt and the debt was barred by the discharge in bankruptcy of the debtor, and the agreement to give security for it was not barred. Section 12 of the Bankruptcy Act, in preserving the right of a creditor "holding a security upon the to realize his security, notwithstanding the bankproperty of the bankrupt ruptcy, manifestly intended to except only property which could be then realized by the creditor. The order of discharge got rid of all liabilities which result if there was a definite agreement to charge definite property) in the case were proveable in the bankruptcy, and (without saying what would be the of a general liability proveable in the bankruptcy, the bankrupt was, by his order of discharge, released both from the debt and the ancillary contract to give security for it. His property was discharged as well as his person. BAGGALLAY and LUSH, L.JJ., concurred.-SOLICITORS, Grueber & Co.; H. Levy.

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ACT OF BANKRUPTCY-CONVICTED FELON-DEBTOR'S SUMMONS-ADJUDICATION OF BANKRUPTCY-33 & 34 VICT. c. 23, s. 8.-In a case of Ex parte Graves, before the Court of Appeal on the 10th inst., the question arose whether a convicted felon can commit an act of bankruptcy by not complying with the requirements of a debtor's summons, issued and served on him after his conviction, in respect of a debt contracted before, and, consequently, whether he can be adjudicated a bankrupt by reason of such default. The question arose upon the construction of section 8 of the Act of 1870 (33 & 34 Vict. c. 23), which abolished forfeiture for felony. Section 1 of the Act provides that:-"From and after the passing of this Act no confession, verdict, inquest, conviction, or judgment of or for any treason or felony or felo de se shall cause any attainder or corruption of blood, or any forfeiture or escheat, provided that nothing in this Act shall affect the law of forfeiture consequent upon outlawry." Section 6 defines the word "convict "" " as meaning any person against whom, after the passing of this Act, judgment of death or of penal servitude shall have been pronounced or recorded by any court of competent jurisdiction upon any charge of treason or felony." Section 7 provides that, "When any convict shall die or be made bankrupt, or sha'l have suffered any punishment to which sentence of death, if pronounced or recorded against him, may be lawfully commuted, or shall have undergone the full term of penal servitude for which judgment has been pronounced or recorded against him, or such other punishment as may by competent authority have been substituted for such full term, or shall have received her Majesty's pardon for the treason or felony of which he may have been convicted, he shall thenceforth, so far as relates to the provisions hereinafter contained, cease to be subject to the operation of this Act." By section 8, "No action at law or suit in equity for the recovery of any property, debt, or damage whatsoever shall be brought by any convict against any person during the time while he shall be subject to the operation of this Act; and every convict shall be incapable during such time as aforesaid of alienating or charging any property or of making any contract, save as hereinafter provided." By section 9 and following sections power is given to the Crown to appoint an administrator of the convict's property, and provision is made for the vesting of the property in the administrator and the applica

tion of it by him, and the re-vesting of the property in the convict or his representatives upon his ceasing to be subject to the operation of the Act. Section 21 provides that, if no administrator shall have been appointed, an interim curator of the property of the convict may be appointed by justices of the peace in petty sessions. And by section 27," All judgments or orders for the payment of money of any court of law or equity against such convict which shall have been duly recovered or made, either before or after his conviction, may be executed against any property of such convict, under the care and management of any such interim curator as aforesaid, or in the hands of any person who may have taken upon himself the possession or management thereof without legal authority, in the same manner as if such property were in the possession or power of such convict; and all such judgments or orders may likewise be executed by writ of scire facias, or otherwise, according to the practice of the court, against any such property which may be vested in sny administrator of the property of such convict under the authority of this Act." In the present case a debtor's summons was, after a conviction for felony, issued and served on the convict. He denied the debt, and applied to the court to dismiss the summons, but his application was refused. He failed to pay or compound the debt within the time limited by the summons, and the creditor thereupon filed a bankruptcy petition against him, alleging the noncompliance with the summons as an act of bankruptcy. Mr. Registrar Brougham refused to make an adjudication, on the ground that, inasmuch as section 8 of the above Act made the convict incapable of alienating his property so long as he was subject to the operation of the Act, he could not lawfully pay the sum claimed by the summons, and therefore his non-payment of it was not an act of bankruptcy. The Court of Appeal (JESSEL, M. R., and LUSH and LINDLEY, L.JJ.) reversed the decision, and held that an adjudication must be made. JESSEL, M. R., said that the convict was liable to pay his debts, and section 27 expressly reserved to any creditor the right to issue execution against his property. If the suggested construction of the Act were right, the creditor who first issued execution against an insolvent convict would get paid to the detriment of his other creditors, and the equitable distribution of his property in bankruptcy for the benefit of all his creditors could not take effect. When section 27 said that the convict should be incapable of alienating his property, it meant that he should not make away with it; it did not mean that he should not pay his debts. The court would not attribute an absurdity to the Legislature. LUSH, L.J., said that the Act put a convict for felony in the same position as a convict for misdemeanor. He was restrained from improperly making away with his property, so as to prive his family or his creditors of it. The Crown might intervene by appointing an administrator, but the rights of the creditors were not interfered with. There was no reason why a convict should not be liable to bankruptcy like any other person. LINDLEY, L.J., said that it would be extremely hard upon the felon if he could not pay a debt which he owed to a creditor, and thus avoid the costs of a judgment and an execution. This would be a cruel construction of section 8, and, when the other sections of the Act were looked at, it was clear that section 8 did not mean what the registrar thought it did. SOLICITORS, Lewis & Lewis; Carr, Son, & Thornton.

property. In this action an order was made on the 23rd of November, 1880, that the plaintiff should deliver written particulars of breaches to the defendant, and that, unless they were delivered within a week from the date of the order, all further proceedings in the action should be stayed. No particulars were delivered, and no further proceedings had been taken in the action, and no fresh proceedings had been taken by the lessor against the vendor, though he had told the purchaser that he intended to go on with his action. The vendor deposed that, to the best of his knowledge and belief, there had been no breach of the covenants, and the purchaser, who had had an opportunity of inspecting the premises, did not allege that there had been any breach. The vendor had been in undisturbed possession of the property. Under these circumstances FRY, J., held that the vendor could not be called upon to give any further evidence of the performance of the covenants, and that the purchaser must complete bis purchase.-SOLICITORS, H. T. Gastrell; Spyer & Son.

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WILL-CONSTRUCTION MORTGAGE DEBTS - CHARGE ON MORTGAGED PROPERTY-EXONERATION OF PERSONALTY-CONTRARY INTENTION-LOCKE KING'S ACT-30 & 31 VICT. c. 69.-In a case of In re Trevelyan, deceased, Perceval v. Trevelyan, before Chitty, J., on the 16th inst., an important question was argued whether certain mortgaged debts were payable out of the personal estate, notwithstanding Locke King's Act, and the 30 & 31 Vict. c. 69, under the following circumstances:-By his will the testator in the cause, after reciting that an estate, called the Wallington Estate, was subject to two mortgages for £25,000 and £12,000, and also that the testator might become subject to some liability as residuary legatee under the will of his father, he declared that the Wallington Estates should be exclusively charged with the two mortgages in exoneration of his personal estate. The testator subsequently made a gift of the residue of his estate after payment of his debts other than those for which he had previously made provision. It was alleged on behalf of the devisees of the Wallington Estates that another mortgage debt of £18,000 on that estate was payable out of the personal estate, and not out of the Wallington Estate. It was contended that in the will a sufficient "contrary or other intention," within the meaning of section 1 of the 30 & 31 Vict. c. 69, was declared by words "expressly or by necessary implication referring to all or some of the testator's debts or debt charged by way of mortgage on any part of his real de-estate." CHITTY, J., was of opinion that a sufficient contrary intention was shown by the will so as to exclude the application of Locke King's Act. The only debts referred to by the testator (except his liability as residuary legates to his father) were mortgage debts, and therefore, in his opinion, when the testator said that his personal estate should bear “debts" other than those he had already otherwise provided for, the word "debts" included mortgaged debts, and therefore that the mortgage for £18,000 was not primarily payable out of the Wallington Estates, but out of the residuary personalty. SOLICITORS, Williamson, Hill, & Co.; Gregory & Co.

MORTGAGE-FORECLOSURE-ACCOUNTS-INTEREST.-In a case of Elton v. Carteis, before Fry, J., on the 7th inst., a question arose as to the proper mode of computing subsequent interest in taking the accounts under a foreclosure decree. The action was a foreclosure one by a first mortgagee against the mortgagor and the second and third mortgagees. The ordinary decree having been made, the chief clerk certified the amount due to the first mortgagee for principal and interest down to six months after the date of the certificate. The second mortgagee paid this amount at the end of the six months, and the first mortgage was transferred to him. The chief clerk then certified the amount due to the second mortgagee for what he had paid to the first mortgagee, and interest thereon down to three months after the date of the certificate, and also what was due to him on the second mortgage for principal and for interest down to the same date. The third mortgagee failed to pay what was due to the second mortgagee, and the decree for foreclosure was made absolute against him. The chief clerk then took the accounts as against the mortgagor, and certified the total amount due from him to the second mortgagee, and, in so doing, he computed interest down to three months after the date of the certificate upon the whole amount which the third mortgagee bad been ordered to pay and had failed to pay; thus, in fact, computing interest for the period subsequent to the date fixed for redemption by him upon interest as well as principal. The mortgagor took out a summons to vary the certificate, on the ground that, according to the ordinary practice, the subsequent interest ought in such a case to have been computed only on principal. The practice did not appear to have been anywhere very clearly laid down, but reference was made to Whatton v. Cradock (1 Keen 267); Whitfield. Roberts (7 Jur. N. S. 1268); Wilkinson v. Charlesworth (2 Beav. 470); Bickham v. Cross (2 Ves. sen, 470); and Harris v. Harris 3 Atk. 722). FRY, J., held that the chief clerk was right in computing interest on the whole amount found due from the third mortgagee, interest as well as principal.—SOLICITORS, J. L. Morris ; A. F. & R. W. Tweedie.

VENDOR AND PURCHASER-CONTRACT FOR SALE OF LEASE-EVIDENCE OF PERFORMANCE OF COVENANTS IN ORIGINAL LEASE.-In a case of Ringer to Thompson. before Fry, J., on the 5th inst., a question arose as to the evidence which ought to be furnished by the vendor of a lease to the purchaser of the performance of the covenants in the lease. The contract was an open one. The vendor produced the lessor's receipt for the payment of the rent down to Michaelmas, 1879, but after that date the lessor had refused to receive the rent when tendered to him. He alleged that there had been breaches of the Covenant to repair contained in the lease, and in November, 1880, he commenced an action against the vendor to recover possession of the demised

TRADE-NAME-PIRACY-INJUNCTION.-In a case of Clayton v. Day, before Chitty, J., on the 11th inst., a motion was made by the plaintiff, the owner of an old-established blacking manufacturing firm of "Day & Martin," to restrain the defendants Day & Martin from selling goods manufactured by them as goods of the plaintiff's manufacture, and from using any labels or marks only colourably differing from those of the plaintiff's firm, also from circulating advertisements representing that the defendants were carrying on the plaintiff's business. It appeared that in September, 1881, the defendant Day, an ironmonger's assistant at Southsea, and the defendant Martin, a tobacconist at the same place, entered into an arrangement to carry on a blacking-making business under the name of "Day & Martin," and they had prepared certain labels and wrappers similar to those used by the plaintiff's firm. CHITTY, J., was of opinion that this was an upprincipled attempt to obtain the benefit of the plaintiff's long-established business, granted an injunction in the terms asked until the trial.-SOLICI TORS, Farrar & Farrar; A. W. Mills.

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For the

USER. In a case of Re Hodson's Trade-Mark, before Chitty, J., on the 14th
TRADE-MARK-SIMILARITY-OLD MARK - REGISTRATION - CONCURRENT
inst., an application was made under the Trade-Marks Registration Act,
1875, by Hodson & Co., brewers, for liberty to register as their trade-mark
opposed the registration, having registered in January, 1876, a lozenge or
a lozenge or diamond with a lion in the centre. Bass & Co., brewers,
applicants evidence was adduced that they had been in the habit of using
diamond of a plain character. Both marks were usually red.
their trade-mark for eight years prior to the present application. CHITTY,
J., was of opinion that the mark of the applicants so nearly resembled that
used by Bass & Co. as to be calculated to deceive. In his opinion, more-
over, the evidence of user was of so slight a kind as not to give the appli-
cants a concurrent right to use their trade-mark. He therefore refused the
application with costs.-SOLICITORS, De Jersey, Micklem, & Co.; Jennings,
Son, & Burton.

BILL OF SALE-STATEMENT OF CONSIDERATION-BILLS OF SALE ACT, 1878, s. 8.-In a case of Ex parte Rolph, before the Court of Appeal, on the 10th inst., the question arose whether the consideration for a bill of sale was properly stated in compliance with section 8 of the Bills of Sale Act, 1878. The bill of sale was executed on March 23, and it comprised the grantor's household furniture, and was expressed to be made in consideration of £50 paid by the grantee to the grantor "at or before the execution hereof." Only £21 10. was paid to the grantor on the execution of the deed. retained £3 10s. for the cost of preparing and registering the bill of sale, and

The grantee

£25 for two quarters' rent (up to June 24) of the grantor's house, in which the furniture was, and he paid this £25 to the landlord on March 30. These sums were retained in accordance with a request in writing by the grantor. On April 25, the grantor filed a liquidation petition. The grantee had a few days previously taken possession of the furniture. The trustee in the liquidation claimed a declaration that the bill of sale was void as against him, on the ground that the consideration was not truly stated in it. Bacon, C.J., held that the consideration was sufficiently stated. This decision was reversed by the Court of Appeal (JESSEL, M.R., and LUSH and LINDLEY, L.JJ.). JESSEL, M.R., said that, passing over the deduction of £3 10s. for expenses, the real consideration for the deed was partly a payment of £21 10s. by the lender, and partly an agreement by bim to pay £25 for rent. No rent at all was due till March 25. But, assuming that the whole £25 would then become due for rent, did the borrower ever receive the £25, or have a chance of receiving it? Certainly not. The meaning of the retention was, that the lender did not wish to trust the borrower with the money; he wished to avoid the chance of a distress for rent being levied by the landlord on the goods which were assigned by the deed. That being the real nature of the transaction, was the consideration truly stated in the deed? The real consideration was the payment of so much money at the time, and a covenant by the lender to pay a further sum on a future day, and this was not stated. On this ground, therefore, the consideration was not stated as required by section 8. But there was another ground. In the deed the £50 was stated to be paid " at or before the execution hereof." The £25 was not paid till seven days afterwards. And, though the word "at" had a somewhat elastic meaning, it had never been extended so far as that. There was nothing more than a contract to pay the £25. The cases of Ex parte National Mercantile Bank (28 W. R. 848, L. R. 15 Ch. D. 42), and Ex parte Challinor (29 W. R. 205, L. R. 16 Ch. D. 260), were distinguishable, and did not support the proposition that anything in the shape of a bond fide loan, if the borrower had the benefit of the money, was sufficiently stated if it was stated as a cash payment. This was not the intention of the Act, and so to hold would be an evasion of it. LUSH, L.J, said the transaction was a mere sham, a device by the lender to protect his own goods from the landlord. The Act would be defeated if it was held to be good. LINDLEY, L.J., said that it was impossible to stretch the previous decisions so that they could apply to the present case.—SOLICITORS, Crews Dudley; Wakeford May.

PLEADING-DEMURRER-OBJECTION FOR WANT OF PARTIES-ORD. 28, R. 1-ORD. 16, R. 13.-In a case of Werdermann v. The Société Générale d' Electricité, before the Court of Appeal on the 11th inst., the question arose whether the objection of want of parties to an action can now be raised by demurrer. Rule 1 of order 28 provides that "any party may demur to any pleading of the opposite party, or to any part of a pleading, setting up a distinct cause of action, ground of defence, set-off, counter-claim, reply, cr as the case may be, on the ground that the facts alleged therein do not show any cause of action, or ground of defence to a claim or any part thereof, or set-off, or counter-claim, or reply, or as the case may be, to which effect can be given by the court as against the party demurring." The defendants bad demurred to the plaintiff's statement of claim on the ground (among others) that some other persons ought to have been made parties to the action. The Court of Appeal (JESSEL, M.R., and LUSH and LINDLEY, L.JJ.) held that, since the Judicature Act, the objection of want of parties cannot, as it could under the old practice of the Court of Chancery, be raised by demurrer. JESSEL, M.R., said that no doubt the old practice was preserved when no other provision was made by the Judicature Act or Rules. But rule 1 of order 28 was a special rule as to demurrer; there was no other rule at all which allowed a party to demur. Consequently, so far as the rules went, there was no power to demur for want of parties. That would seem to be quite conclusive. The subject, however, had not been overlooked, and another provision was made for it. It must be remembered that there was formerly no such thing at common law as a demurrer for want of parties. Rule 13 of order 16 provided what was to be done now by a person who wanted to have another party added; he had only to take out a summons asking that the party be added. The proceeding by demurrer could not, therefore, be allowed. LUSH, L.J., said that rule 1 of order 28 defined the office of a demurrer, and showed that it was a mode of challenging the validity of a point of substance. And this was the only point which could now be taken by a demurrer.-SOLICITORS, G. S. & H. Brandon; S. F. Weall.

TRUST FOR CHARITY-VALIDITY-STATUTE OF CHARITABLE USES (9 GEO. 2, c. 36). In a case of Emley v. Davidson, before the Court of Appeal on the 14th inst., a question arose as to the validity of a trust in favour of a charity. On the 8th of August, 1868, one Robson executed a deed, by which he covenanted with Emley and Gray that he would, at or before the expiration of twelve months from the date of the deed, pay to them the sum of £20,000. And it was thereby agreed and declared that Emley and Gray should hold the £20,000 upon trust to pay the annual income thereof to Robson's wife for her life, upon her separate receipt, and after her death to Robson for his life, and after the decease of the survivors upon such trusts as the wife should by will appoint. The same day the wife executed a will by which, in exercise of the power given to her by the deed, she appointed to Emley and Gray the £20,000, subject to the life estate of her husband, upon trust to pay thereout certain legacies and annuities. And, as to all the residue of the trust fund, she directed that the trustees of her will should pay the same to such persons as she, by a deed poll to be executed by her, should direct and appoint for the purposes in the deed poll mentioned. And she appointed Emley and Gray executors and trustees of her will. By a deed poli executed the same day the wife directed that the trustees of her will should, so soon as the trustees thereinafter named should have

been duly elected and appointed, transfer to them all the residue of the £20,000, and that the same should be held by the trustees thereinafter named upon certain trusts therein declared for the benefit of a charity. The wife died on the 26th of April, 1870. Robson died in July, 1877. He had not paid the £20,000 to the trustees of the first deed of August, 1868. His estate was insufficient. The action was brought by the trustees of the first deed, on behalf of themselves and the other creditors of Robson, asking for the administration of his real and personal estate, and also that the trusts of the two deeds of August, 1868, and of the will of the wife should be executed. Bacon, V.C., decided that the charitable provisions contained in the two deeds and the will of the wife were valid so far only as they could in a due course of administration be satisfied out of such part of the personal estate of Robson as had not arisen from, or was not connected with, land; and that such charitable provisions ought to abate in the proportion which the value of the testator's personal estate, at the time of his death, bore to the value at the time of his death of so much of his personal estate as had not arisen from, or was not connected with, land. His lordship was of opinion that there had been a scheme to evade the Mortmain Act, and that the decision of the House of Lords in Jeffries v. Alexander (8 H. L. C. 594) applied. In that case B. in August, 1846, executed a deed by which he covenanted with the other parties to the deed that he would in bis lifetime, and within twelve montbs from the date of the deed, invest a sum of £60,000 in the names of certain persons therein mentioned, or, in case he should not make the investment in his lifetime, that his executors, within twelve months after bis death, and subject to the payment of his del ts and legacies, should invest the £60,000 in the same names, to be held by the persons named upon certain charitable trusts therein declared. On the same day B. executed his will. He did not communicate the deed to anyone before his death in 1851. It was executed only by himself. The House of Lords (though not unanimously) held that the trust for the charity was void, so far as the money would be parable out of the chattels real of the testator. The Court of Appeal (JESSEL, M.R., and LUSH and LINDLEY, L.JJ.) held that this decision did not apply to the present case, and that it was immaterial out of what property of Robson the £20,000 might have to be satisfied. The covenant only created a debt, and there was nothing to prevent the settlement of a debt on a charitable trust.SOLICITORS, Hare & Co.; Williamson, Hill, & Co.; Waterhouse & Winterbotham.

JUDGES' CHAMBERS.

(Before KAY, J.)

Oct. 6.-Marcussen v. Bonham.

This was an action brought by Louis Marcussen, of No. 6, London-road, Southwark, in the county of Surrey, stationer, against Messrs. William and Frederick Charles Bonham, auctioneers, of 409 and 410, Oxford-street, for money had and received by the defendants belonging to the plaintiff. The facts were as follows:-On the 27th day of November, 1878, the plaintiff made an advance to one Joseph Bentote, and took as security for the repayment an unregistered bill of sale over the goods and chattels of the said Bentote, at 36, Arlingford-road, Tulse-bill. The instalments under the bill of sale were not regularly paid, and the plaintiff took possession of Bentote's goods, but afterwards withdrew from possession upon certain terms. After this Bentote disappeared, and the plaintiff was unable to ascertain his whereabouts until the 2nd day of July, 1881, when the plaintiff found out that he had removed to Arundel Cottage, Loughborough-park, Brixton, when the plaintiff seized and removed the goods under his bill of sale to the defendants' auction rooms, and instructed them to sell the same. The goods were accordingly sold, and the proceeds received by the defendants. On the 9th day of July, 1881, the defendants received a notice from a Mr. Hollingsworth, claiming the proceeds of the sale under a registered bill of sale dated the 6th day of May, 1881, upon the same goods. The defendants refused to part with the proceeds to the plaintiff and the present action was brought. The defendants interpleaded and the summons was referred by the master to the judge in chambers for final decision. The nature of the opposing claims to the goods are set out in the learned judge's judgment (a written one), which was delivered in chambers and a copy of which was supplied to the plaintiff's solicitors by the judge's clerk.

Moresby-White, for the plaintiff.

J. S. Matthews, for the defendants. Poncione, for the claimant.

KAY, J.-On the 27th of March, 1878, Bentote gave bills of sale of goods to plaintiff, Marcussen, which was not registered. On the 6th of May, 1881, Bentote gave another bill of sale of same goods to Hollingsworth which was duly registered on the 9th of May. In July, 1881, the plaintiff took possession and sold these goods. The question is between the holders of these bills of sale which has right to the proceeds. There is no bankruptcy or execution against the goods now existing. The Bills of Sale Act, 1878, does not affect the question. It is settled that the former Bill of Sales Act of 1854 did not alter priorities as between mortgagees, who must rank according to the dates of the execution of their respective mortgages. Primâ facie, therefore, the plaintiff must succeed.

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However, Hollingsworth alleges that on the 6th of February, 1879, Ben. tote's mother purchased these goods under a sale by the landlord, who had distrained for rent, and shortly afterwards gave them to Bentote. denied, and it seems that the mother claimed them on her own account on May, 1881, and was then examined before the Lord Chief Justice in an interpleader, and this claim, which should have prevailed had it been true, was barred. Her claim then was inconsistent with her present story, and I consider both to be fictions.

Hollingsworth resists the claim of the plaintiff on another ground. He states that in the early part of this year one Blaiberg, a judgment creditor, levied execution on these goods, when the interpleader which I have mentioned

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