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SET-OFF AGAINST CALLS ON SHARES. THE rule in chancery in the winding up of a limited company, established by the decision in Grissell's case (14 W. R. 1015, L. R. 1 Ch. 528), that in such winding up a contributory who is also a creditor of the company is not entitled to set off against calls made on the shares held by him either his debt or any dividend which may, after the date of the call, come to him on his debt, was held in In re Duckworth (15 W. R. 858, L. R. 2 Ch. 578), and Ex parte Strang (L. R. 5 Ch. 492), not to apply to the case where the contributory had become bankrupt. In such case it was held that, the ordinary jurisdiction of the Court of Chancery not extending into bankruptcy, the rules of bankruptcy apply, and that the debt must be set off against the calls, whether the claim be made in the bankruptcy or in the winding up. The reasons for this decision are stated by Lord Cairns in his judgment in In re Duckworth, as follows:-"Where there is no bankruptcy, the Court of Chancery, in winding up a company, has subject to its jurisdiction, the liquidator, the contributories, the creditors, and the other shareholders, and the course which the Court of Chancery is to take is pointed out by the Companies Act, 1862. According to the true construction of that Act, the Court of Chancery is precluded from allowing the application of any set-off as between the liquidator and the persons who have to pay calls. That is the positive enactment of a statute made upon due consideration, the expediency of which is obvious; and such has been the decision of the court. In the case of a bankrupt contributory very different considerations apply; the ordinary jurisdiction of the Court of Chancery does not extend into bankruptcy, and in the administration of a bankrupt's estate the Court of Bankruptcy must pursue the directions given by its own statutes. In the [Bankruptcy] Act of 1849 the enactment of the 171st section is that where there are mutual

debts between the bankrupt and any other person, one debt or demand may be set off against another. Now, putting out of consideration the Act of 1862, would there not in this case be a setoff under this section? My opinion is that there clearly would." That decision was given upon the 171st section of the Bankruptcy Act, 1849, but it will equally apply to section 39 of the Act of 1869, which gives the right of set-off in cases of mutual dealings, &c., so that the law may be taken to be well settled in this respect, so far, at least, as the facts of the case in In re Duckworth carry it; but there appears to be no decided case which carries the effect of that decision any further.

Until the decisions of Bacon, V.C., in Gill's case (27 W. R. 934, L. R. 12 Ch. D. 755), and of Fry, J., in Ex parte Brown (27 W. R. 869, L. R. 12 Ch. D. 823), it was open to question whether, by virtue of section 10 of the Judicature Act, 1875, the whole effect of the decision in Grissell's case was not now done away with. That section provides that, "in the winding up of any company under the Companies Acts, 1862 and 1867, whose assets may prove to be insufficient for the payment of its debts and liabilities and the costs of winding up, the same rules shall prevail and be observed as to the respective rights of secured and unsecured creditors, and as to debts and liabilities proveable, as may be in force for the time being under the law of bankruptcy with respect to the estates of persons adjudged bankrupt; and all persons who in any such case would be entitled to prove for and receive dividends out of the assets of any such company, may come in under the winding up of such company and make such claims against the same as they may respectively be entitled to by virtue of this Act." By section 39 of the Bankruptcy Act, 1869, it is provided that, "where there have been mutual credits, mutual debts, or other mutual dealings between the bankrupt and any other person proving or claiming to prove a debt under his bankruptcy, an account shall be taken of what is due from the one party to the other in respect of such mutual dealings, and the sum due from the one party shall be set off against any sum due from the other party, and the balance of such account and no more shall be claimed or paid on either side respectively." Is not this section (which, according to the ruling in In re Duckworth, provides a right of set-off against calls in the case of the bankruptcy of the contributory), by virtue

of section 10 of the Judicature Act, 1875, incorporated into the law of the winding up of companies so as to give a right of setoff in all cases, whether the contributory becomes bankrupt or not, thereby practically overriding the implication against such a right of set-off in the case of a limited company contained in section 101 of the Companies Act, 1862, and rendering inapplicable to the present law the rule laid down in Grissell's case? And must not the rule of set-off contained in section 39 of the Bankruptcy Act, 1869, be taken to be one of the rules "as to debts and liabilities proveable. in force for the time being under the law of bankruptcy with respect to the estates of persons adjudged bankrupt," and, therefore, within section 10 of

the Judicature Act, 1875 ?

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Startling as this argument may appear in its effect, there seems to be great plausibility in it. If the mutual credit clause of the Bankruptcy Act, 1869, is by the section of the Judicature Act made applicable to the winding up of companies at all, it must be so in its entirety, and all decisions thereon must be equally applicable; ergo, the decision in In re Duckworth would hereafter apply in all cases. But Bacon, V.C., and Fry, J., in the cases we have cited have decided that Grissell's case is still law, notwithstanding that section, and we think those decisions would be upheld if the point ever came before the Court of Appeal. The section, it is well understood, was intended specially to alter the old rule in chancery which gave a secured creditor a right to prove for the full amount of his debt, and receive dividends thereon pari passu with the other creditors, and retain his security against any unpaid balance of his debt; the rule in bankruptcy being that a secured creditor must deduct the value of his security from his debt, and only be allowed to prove for the balance, and, so far, the court has not shown any disposition to extend the application. of the section any further than the words of the section clearly indicate.

or

The rule laid down in Grissell's case being then still law, the point has recently arisen whether any limitation can contributory in the following hypothetical case:-A., a conmust be put upon the right of set-off in case of a bankrupt tributory of a company in liquidation, was liable for calls made in the winding up of the company amounting to £10,000, and he was also a creditor of the company on another account for a like sum of £10,000. His assets beyond this claim against the company were valued at £5,000, and he owed to creditors, in addition to his liability for calls, £2,000. He was, therefore, unable to pay the amount of the calls, and these being pressed against him, he became bankrupt. In the bankruptcy the right of set-off arose as laid down in In re Duckworth, and consequently the company was not able to make any proof against his estate. All his other creditors were paid the full amounts of their debts, with interest, under the bankruptcy, and after payment of costs there was a surplus of £2,500. In the winding up of the company a dividend of five shillings in the pound only could be paid to the creditors, but if A. had paid the full amount of the calls for which he was liable, ten shillings in the pound could have been paid to the creditors of the company. In that case A. would have received his dividend of ten shillings in the pound on his debt, which would have amounted to a return of £5,000, his other £5,000 being absorbed in making up the dividend of ten shillings in the pound to the other creditors. Had the company any claim to the surplus of £2,500 arising in the bankruptcy, or the right of setoff having arisen in the bankruptcy-was A. thereby absolutely released from the liability for calls, and so entitled to such surplus under section 45 of the Bankruptcy Act, 1869, and rule 137 of the Bankruptcy Rules, 1870?

The logical conclusion to be deduced from the judgment of Lord Cairns would, at first sight, appear to be that the right of set-off having, under the rules in bankruptcy, once arisen, the claim for calls was thereby absolutely discharged and could Lot, under any circumstances, be again revived. But it must be borne in mind that the prospect of a surplus arising in the bankruptcy was not, in any way, raised in the case, and the decision was only directed to settling the rights as between the company and the creditors in the bankruptcy, and not as between the company and the bankrupt himself. Still, once having decided that the rules in bankruptcy alone were applicable to the case, it is difficult to see how it could afterwards logically be held that, in any

circumstances, those rules should cease to operate and, the other creditors being paid off under the bankruptcy, the surplus assets

of the bankrupt should become liable to a claim which had also been discharged by set-off under the same bankruptcy. And, were it not for the difficulties which we shall proceed to point out, this would certainly be the opinion at which we should, almost unhesitatingly, arrive.

The first objection to such a conclusion which suggests itself is, that if A. were entitled to such surplus, then he would, by reason of his bankruptcy, gain a sum of money at the expense of the company. To make this proposition more clear, suppose he had not become bankrupt, and out of the £5,000 of assets which he possessed he had paid off all his other creditors, the company would then be entitled to enforce payment pro tanto against the remaining £3,000 of assets, thus entirely divesting A. of all his assets. But by getting himself made bankrupt he would deprive the company of that amount for his own benefit. That would clearly be against the policy of the bankrupt laws, which are intended to work justice as between creditors, but not to entirely upset for the benefit of debtors, and to the detriment of creditors or persons claiming against them, express rules and regulations of equity laid down by statute and the courts. Then, to work out the case further, suppose that, in addition to the company, A. had had only one creditor for just sufficient an amount to be able to make him bankrupt, a bankruptcy in such a case, where the liabilities proveable would amount to £50 only, and the assets to £5,000, would appear very like a farce. Still, without bankruptcy A. would be unable to pay his liabilities which would then include the £10,000 for calls, and there is nothing in the Act to prevent a man being made bankrupt in such a case, if he owes sufficient to constitute a petitioning creditor's debt and commits an act of bankruptcy. But the fact that the result of his becoming bankrupt would, if the decision in In re Duckworth were held to apply without limit to all cases of bankrupt contributories, be as we have pointed out, suggests the equity of putting such a limit upon the application of that decision as would prevent such a result from accruing.

THE ELECTRIC LIGHTING BILL.

THE Electric Lighting Bill, which has now been printed as amended by the Select Committee of the House of Commons to which it was referred, may be fairly expected to become law during the present session. The Select Committee appears to have added some half-dozen clauses of importance to the original twenty clauses of the Bill, which we will now shortly abstract and criticize in its amended form.

in

any area.

The Bill begins by empowering (clause 2) the Board of Trade to license any local authority-i.e., any town council or improvement board or or other authority, as defined by the schedule, or any company or person, to supply electricity withThe license, which is to be for five years only, renewable, however, at the end of that time "upon such terms and conditions as the Board of Trade may determine," may not be applied for without previous public notice, and it is particularly provided as follows:

"The license may make such regulations as to the limits within which and the conditions under which, a supply of electricity is to be compulsory or permissive, and for enforcing the performance by the licensees of their duties in relation to such supply, and for the revocation of the license where the licensees fail to perform such duties; and generally may contain such regulations and conditions as the Board of Trade may think expedient."

This clause is repeated with greater particularity by a "clause B.," ," which will, we presume, be substituted for it, and which provides for securing a sufficient supply of electricity, and for limiting the prices to be charged, and it is added that not only may the Board of Trade from time to time make "such regulations as they may think expedient for securing the safety of the public from personal injury, or from fire, or otherwise," but that they may from time to time "amend or repeal any regulations which may be contained" in the license; and further, that the local authority may, "in addition to any regulations which may be made under the preceding provisions of this section for securing the safety of the public, from time to time make, Again, if the application of the decision in In re Duckworth is rescind, alter, or repeal bye-laws for further securing such not to have any limit placed upon it, what is there to prevent a safety." It will be seen that a very close and lasting supervision is to be intrusted to the Board of Trade, and it may person with assets sufficient to enable him to pay all calls upon him, yet procuring himself to be made bankrupt so as to defeat the perhaps be feared that the ardour of promoters may be too claim of the company, and obtain the application of the right of much damped by these clauses until something positive is known of the manner in which the Board of Trade will administer them. set-off in the bankruptcy for his own benefit, thus opening up a method of entirely evading the provisions of the Companies Act, A five years' license renewable on "conditions," and revocable 1862, and the rule in Grissell's case? If the court were of "where the undertakers have, in the opinion of the Board of opinion that there was collusion in instituting the proceedings Trade, practically failed to carry the powers granted to them in bankruptcy between the debtor and the petitioning creditor into effect within a reasonable time," is not a very satisfactory with this object, then possibly it would consider the whole proceed-authorizes the Board of Trade to make provisional orders having guarantee for the expenditure of capital. Clause 3, however, ing an abuse of the machinery of the court, and on that ground dismiss the petition. But that case, though an extreme one, is in the same effect as the licenses, but not terminable except by principle really no more than the one we have been discussing. In compulsory purchase, as we will mention presently. These proeither case the result would be a pecuniary benefit to the contribu-visional orders may be confirmed by special Act of Parliament in tory at the expense of the company, and this would be an anomaly which we think the court would find some means of defeating.

At the Doncaster Borough Sessions, on Tuesday, the only case for trial was one in which four boys were indicted for house-breaking. Mr. Shirley prosecuted, and Mr. Cordeaux defended. Another member of the bar was also present, but disengaged. Directly the jury had retired to consider their verdict, Mr. Verity, of the firm of Verity & Baddiley, solicitors, rose and requested the recorder (Edgar Meynell, Esq.) to cancel the crder made about a year ago by which exclusive audience was given to the bar in that court. It was a great hardship, he said, on him personally that, though a solicitor, he was not allowed to prosecute or defend criminals in his native town. It was also a great hardship on the prisoners that they should not have a large choice of counsel. Only three members of the bar, he pointed out, had attended these sessions, and there were four prisoners, each of whom had a right to be separately defended. Mr. Cordeaux, as leader of the bar present, said that it was unreasonable to expect more than three barristers to come when there was only one case, and it was known beforehand who had got that. In answer to Mr. Verity's point about each of the four prisoners having the right to be separately defended, the case was not likely to arise; but prisoners should arrange to be defended before the day of trial. Moreover, Mr. Cordeaux blamed the clerk of the peace for not sending circulars round to the barristers usually attending as at other places. Mr. Shirley added that he thought that solicitors had no right of audience at quarter sessions where the bar attended, and that barristers did not need any order to entitle them to exclusive

audience. The recorder, however, differed from this view, saying that, though

he should not vary his order at present, he should do so if more members of the

bar did not attend.

With regard to the prices to be charged, we observe that clause like manner as provisional orders of other kinds are confirmed. 11 provides that, barring undue preference and excess of the limits fixed by the license, the undertakers may "make such charges for the supply of electricity as may be agreed upon." This may give rise to difficulty, as it suggests the possibility of separate bargains with individual consumers, and of frequent changes of price. It should surely be stipulated that prices may not be varied, say, more than once a year, or without a reasonable

notice.

upon com

A clause, "F.," contains the salutary provision that the undertakers shall not be authorized to place any electric line above ground without the express consent of the local authority, and adds that a court of summary jurisdiction, "where any electric line has been placed above ground, plaint made, if they are of opinion that such electric line is, or is likely to become, dangerous to the public safety, may, notwithstanding such consent as aforesaid, make an order directing and authorizing the removal of such electric line by such person and upon such terms as they may think fit." A slight amendment seems needed here. the licensees, it should be the Board of Trade, not the local In case the local authority are themselves authority, whose consent should be required for the above-ground

works.

A clause "G." has been inserted for the protection of canals, and clause 14 most elaborately and effectually protects "any telegraph line of the Postmaster-General," but there is no special provision as to waterworks, and a suggestion which we believe at one time found favour with the Select Committee, that the pipes containing electric wires should be specially marked, has not been inserted in the Bill. Considering that a fifth kind of pipe is now to be added to the four kinds-the drain-pipe, the water-pipe, the gas-pipe, and the telegraph-pipe which already run through our streets, we think this omission is to be regretted. The only special mention of gas is highly significant. It is provided by a clause "O." that in any area where gas undertakers are "under any general or limited obligation to supply gas on demand,"

"The Board of Trade may, upon the application of such gas undertakers, inquire into the circumstances of the case, and if they are satisfied that any specified part of such area is sufficiently supplied with electric light, and that the supply of gas in such specified part has ceased to be remunerative to the undertakers, and that it is just that such gas undertakers should be relieved from the obligation to supply gas upon demand as aforesaid, the Board of Trade may, in their discretion, make an order relieving the gas undertakers from such obligation, either wholly or in part, and upon such terms and conditions as they may think proper." There is, however, no corresponding provision relieving electricity undertakers in their turn from the obligation to supply electricity in cases where the supply has, by the license (see clause "B." (a)), been made compulsory.

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CORRESPONDENCE.

IN RE CLEW.

[To the Editor of the Solicitors' Journal.]

Sir, I wish to call your attention to the judgments delivered by Grove and Lopes, JJ. in the above case, reported in last week's WEEKLY REPORTER, p. 704.

No doubt the particular conviction appealed against was bad, because it simply adjudged imprisonment in default of payment, without stating that it appeared to the court that there were no goods whereon to levy the amount.

But the judges go much further than merely quashing the conviction, and say that section 21 of the Summary Jurisdiction Act, 1879, does not apply at all to cases under the Licensing Acts, but refers to other Acts under which persons may be convicted and punished by fine, and, in default of payment of the fine, by imprisonment. But these last are Acts under which no distress warrant could issue at all, and section 21 expressly deals with cases (such as those under the Licensing Acts) where a distress warrant is authorized, and with no others. The judges are, therefore, reported to have said that section 21 applies solely to Acts to which it can have no possible application. The judges must be supposed to have meant something by their observations, and I should be very glad if any of your readers can give any clue to what their real meaning was. The matter is one of considerable importance.

A JUSTICES' CLERK.

[The report of the judgments is, we are assured, correct. We propose to be solved.-ED. S. J.] hereafter to consider how the crux propounded by our correspondent is

66

CASES OF THE WEEK.

The remaining clause which calls for notice is that which provides for compulsory purchase of an electricity undertaking by a local authority. It is first to be observed that this clause applies only to cases where the undertaking was originally authorized by special Act or provisional order, and has no application to the licensees working under the renewable license of the Board of Trade. The effect of the COPYRIGHT-InfringemenT-" BOOK "-ADVERTISEMENT — ILLUSTRATED clause is that within six months after the expiration of a CATALOGUE-COPYRIGHT ACT, 1842 (5 & 6 VICг. c. 45), s. 2.—In a case of period of fifteen years from the date of the Act authorizing the Maple & Co. v. The Junior Army and Navy Stores, before the Court of Appeal undertaking, and within six months after the expiration of every on the 29th ult., a question arose upon the effect of the Copyright Act of 1842subsequent period of five years the local authority may force a viz., whether the protection given by it extends to a book published by a sale to them of the undertaking, 66 upon terms of paying the trader as an advertisement of the goods which he sells. The Act gives copyright to "every book," and by section 2 "book" is defined as including then value of all lands and plant suitable to every volume, part, or division of a volume, pamphlet, sheet of letter-press, and used for the purposes of the undertaking, such value to be, sheet of music, map, chart, or plan, separately published." In this case the in case of difference, determined by arbitration, without plaintiffs were cabinet-makers, upholsterers, and general furniture dealers in any addition in respect of compulsory purchase or of goodwill or Tottenham-court-road. They had for some time past issued, by way of advertisement, to their customers and the public an illustrated catalogue, called of any profits which may, or might have been, or be, made from their "Illustrated Catalogue of Furniture," containing engravings and plates the undertaking, or of any similar circumstances." These pro- of the articles of furniture sold by them. They complained that the defendvisions are plain enough. They are to a certain extent copied ants had issued a catalogue containing engravings and plates copied from, or from the provisions in pari materia of the Tramways Act, 1870. which were a colourable imitation of, those in the plaintiffs' catalogue, and By section 43 of that Act local authorities may force a sale of they claimed an injunction to restrain the defendants from printing, publishing, issuing, and distributing any catalogues containing any engravings, plates, tramways" upon terms of paying the value exclusive of any allow-or illustrations of furniture copied from, or which were a colourable imitation of, ance for past or future profits of the undertaking, or any compen- those for the first time published in the plaintiffs' catalogue. The plaintiffs' sation for compulsory sale, or other consideration whatsoever," engravings had been prepared for them at great expense from sketches taken but the period after the expiration of which the powers of pur-registered at Stationers' Hall under the Act. Hall, V.C., held that this by artists employed by them, and the plaintiffs' catalogue had been duly chase may be exercised, is fixed at 21 and 7 instead of 15 and 5 catalogue was a subject of copyright, that it was a book, and, as such, within years. The exorbitant price, which was calculated as payable the Copyright Act. His lordship accordingly granted an injunction. On the upon a proposed compulsory purchase of the metropolitan appeal it was contended, on behalf of the defendants, that a book which was waterworks which has now fallen into abeyance, will no used merely as an advertisement was not within the Copyright Act, and could doubt be urged as an argument for the insertion of these clauses of Lord Romilly, M. R., in Cobbett v. Woodward (20 W. R. 963, L. R. 14 Eq. 407). not be the subject of copyright, reliance being placed on the decision to this effect into the Electric Lighting Bill. If promoters choose to set on JESSEL, M.R., said that, in his opinion, this catalogue was the subject of copyfoot electricity undertakings with such provisions staring them in right. The first question was whether it was a "book." It was clearly a the face, the Legislature cannot be reproached with unfairness. "book," and so it came within the very words of the Act. There were such But we fear that the closeness of this prospective bargain may had been pressed with an argument founded on the words of the preamble of things as "picture-books," and they were always called books. The court prove to be an additional means of unduly checking that private the Act. But the rule was that the preamble did not override the enacting commercial enterprize without the aid of which neither railways, part of an Act when the latter was quite clear. In the present case his tramways, gasworks, or waterworks would have been constructed. lordship thought the enacting part was quite clear. In the definition of the word "book" an 66 engraving" was not mentioned, but there was nothing to exclude an engraving when it was in a book. The preamble did not help the defendants at all. It spoke of amending the law of copyright generally, and there was nothing in it to cut down the enacting part to books containing letterpress only, or to exclude books which contained pictures as well as His lordship could see no reason for cutting letterpress, or pictures alone. defendants who were copying other people's pictures, which was not a very down the words of the Act, and especially in order to protect persons like the honest thing to do. Ae to the decided cases, some of them were rather diffi cult to understand, and they were not quite consistent with each other. His lordship thought that the decision of Lord Romilly in Cobbett v. Woodward was not good law. There was no sound distinction as regarded copyright by reason of the use to which the book was put. You might use your book as an advertisement if you liked. A very common form of testimonial on application for an office was a statement that the applicant was the author of such a book. That would not deprive him of copyright in his book. The purpose for which a book

In the current Biennial Report of the Chief Justice of the Supreme Court of the Sandwich Islands, says the Albany Law Journal, we find several novel criminal offences noted; for example, selling eau de cologne as a beverage, fishing with giant powder, playing truant from school, disobedience to parents, suppression of offences, Hoomanamana, deserting parents, refusal to leave

house.

A movement has been set on foot for commemorating the jubilee year of the United Law Clerks' Society by the presentation of a portrait to Mr. H. G. Rogers, the esteemed honorary secretary. Mr. William May, of 3, Serjeants'inn, has undertaken to act as hon. treasurer, and it is desired that intending subscribers should send their names to him before Saturday, the 8th inst.

was used could not affect the copyright of it. The view of Lord Romilly would not bear legal examination. The majority of the authorities was against the notion that the use of a book as an advertisement would affect the copyright. Was there any reason why the court should not adopt the literal meaning of the Act? Was not the reason the other way? What had the appellants to say for themselves? Simply this, that they thought they might copy the plaintiffs' engravings with impunity, and thus appropriate the labours of others without paying for them. They were not persons who were entitled to call on the court to narrow the meaning of an Act of Parliament. It was the duty of the court to construe an Act of Parliament in a rational way, and in furtherance of the interests of justice. LINDLEY, L.J., was of the same opinion. The plaintiffs' book was an original one, and originality of design, as distinguished from literary merit or skill, was the test in regard to copyright. The plaintiffs' catalogue was a book, and it came within the definition in the Act. There would be no difficulty in the matter but for the decision in Cobbett v. Woodward. If that case could be reconciled with others, and had been followed, his lordship would have been very slow to dissent from it. But it appeared very difficult to reconcile it with other cases of equal authority, such as Hotten v. Arthur (1 H. & M. 603) and Grace v. Newman (23 W. R. 517, L. R. 19 Eq. 623), and his lordship thought it could not be reconciled on any intelligible principle. He thought that a book containing literary matter with illustrations, all put together, was fairly within the Act. And there was no reason why the court should be astute to discover a loophole by which to protect defendants who had done that which could not be justified. The appeal must be dismissed, with costs. In the course of the argument a question arose as to the effect of the case of Bogue v. Houlston (5 De G. & S. 267). It was said that the report of that case showed that the plaintiff claimed copyright in certain stories, as well as in the illustrations which were published with them. JESSEL, M.R., sent for the original record, and said that it appeared from the bill that the plaintiff in that case claimed copyright in nothing but the illustrations.-SOLICITORS, Lewin & Co.; Lumley & Lumley.

It was

PRACTICE-TRIAL OF ACTION - CHANGE OF VENUE-DISCRETION OF COURT-APPEAL-ORD. 36, R. 1.-In a case of Mutch v. Wilson, before the Court of Appeal on the 29th ult., a question arose as to the change of venue in the action. The action was brought by a husband and wife, who resided at Leicester, against the proprietors of a colliery in Cumberland, and of a tramway which crosses at a level a public highway leading from Maryport to Workington. On the 17th of November last the wife, who was then staying with an aunt at Mary port, was being driven in a phaeton by her aunt's coachman along this highway, when, on crossing the defendants' tramway, a collision took place between the phaeton and an engine and trucks belonging to the defendants, which were being driven along the tramway, and the wife was seriously injured. The plaintiffs claimed £25,000 damages, on the ground that the accident was caused by the negligence of the defendants and their servants. The plaintiffs gave notice of trial at Leicester. The defendants denied the alleged negligence, and alleged contributory negligence on the part of the coachman. They also alleged that the laying and working of the tramway across the public highway was not unlawfal, because the right to lay and work it had been claimed and enjoyed from time immemorial, without interruption by the public, by the defendants and their predecessors in title. The defendants also alleged that the tramway was justified under a private Act of Parliament. The defendants applied to the court to have the venue changed, and the trial ordered to take place at Carlisle. The application was refused by a master, then by Lopes, J., and again by a divisional court consisting of Grove and Mathew, JJ. The defendants appealed. JESSEL, M.R., said that a change of venue was dependent on the preponderance of convenience-i.e., with a view to the attainment of justice. practically a matter within the discretion of the judge to whom the application was made. He must know, partly from the evidence and partly from his own experience, whether there was such a preponderance of convenience in favour of changing the venue as to justify him in changing it. No doubt an appeal would lie from his decision, but it was certainly the duty of the Court of Appeal to say that such an appeal would not be entertained—that is, that it would be dismissed, unless the court was satisfied that there had been a gross miscarriage, a mistake which amounted to a denial of justice. If no such rule were laid down, the court would be encouraging the wealthy litigant to wear out his opponent and overlade him with costs by appealing from every order. His lordship did not say this was so in the present case; indeed, he was satisfied for other reasons that the present appeal was a bona fide one, and that the defendants really wished to have the venue changed. But it was necessary to adhere to the rule. Indeed, in the present case, his lordship was not persuaded that the order was wrong; on the contrary, he thought it was right. The defendants said that this was a county action; that the locus in quo was near Carlisle; and that their witnesses, who were numerous, all resided in or about Carlisle. They also said it was essential the jury should have a view of the place. They said again that many of the plaintiffs' witnesses also resided at Carlisle. On the other hand, the female plaintiff resided at Leicester, and was in such a state of health owing to this unfortunate accident that she was unable to go to Carlisle. She was an important witness at the trial for the plaintiffs, perhaps the most important. It was said that she would be called only to excite the sympathies of the jury. His lordship was not sure that she would not be able to testify to many of the material facts. Ought the court to deprive the plaintiffs of this important witness? Certainly not. It was said that the trial of the action might be postponed to the next spring assizes. His lordship did not think that the defendants had a right to call for a postponement of the trial. The female plaintiff might die in the meantime, and then her evidence would be lost altogether. A postponement of the trial could not be allowed. If so, was it conducive to the interests of justice t at the plaintiffs should be deprived of their most material witness? Clearly

not. Then it was said that a view of the place by the jury was necessary. If it was essential, of course it must be provided for in some way. But, in the first place, if it was desirable, though it could not be obtained legally if the trial was at Leicester, it could no doubt be managed by arrangement between the parties. And, in the next place, in his lordship's opinion, a view was not absolutely necessary. He had had a good deal of experience in trials of actions relating to interference with roads or with light, and he had never found any difficulty in trying them. if the parties took care to produce models of a proper size and proper photographs. In this way the positions of physical objects could be ascertained, and therefore a view was not really necessary. Another point was that Leicestershire being what might be described as a grass county, while Cumberland might be called a mining county, the views of a Leicestershire jury about tramways crossing a public road might be very different from those of a Cumberland jury. But the venue could not be changed on any such ground. A postponement of the trial being out of the question, and the hardship of depriving the plaintiffs of their most material witness being much greater than any hardship which would result to the defendants from the trial taking place at Leicester, the order of the divisional court was right, and the appeal must be dismissed. LINDLEY, L.J., said that some limit must be imposed on the right of appeal, and the court ought to discourage such appeals unless they were brought on very cogent grounds. The question of changing a venue was a matter of discretion. It was the right of the plaintiff to fix the place of trial, but this right was subject to the control of the court, and if it could be shown that, on the whole, justice required that the venue should be changed, the court would change it. But after the decisions of a master, a judge, and a divisional court, it was an abuse to appeal, except under very cogent circum stances. In the present case it appeared to his lordship absolutely essential that the female plaintiff should be put in the box at the trial, if she could be got there, and that, to his mind, concluded the case. The appeal ought not to have been brought.-SOLICITORS, Bompas, Bischoff, & Dodgson; Thomas Wright.

RAILWAY COMPANY-NEGLIGENCE-DAMAGES-LIABILITY TO REPAIR AND

At

LIGHT PUBLIC HIGHWAY.-In a case of Lancaster v. The South-Eastern Railway Company, before the Court of Appeal on the 30th ult., a question arose as to the liability of a railway company for an injury resulting to a passenger in consequence of the defective state of a footpath leading to a station of the company, which had been constructed by them on land of their own. The plaintiff, on January 2, 1881, took a return ticket from London Bridge to the Greenhithe Station of the company. From this station a footpath leading to a neighbouring village ran along the side of the railway, on land belonging at one spot interrupted by an artificial cleft, down the siles of which, which to the company, for a distance of about five hundred yards. This path was were steep chalk banks, the path was carried by wooden steps. In returning st night by this footpath to the station to take the train to London, the plaintiff, not being able to see the steps from the extreme darkness of the night, miss d his footing and was precipitated from the top to the bottom of the steps, thereby sustaining considerable injury. He claimed compensation from the company on the ground that, being on the premises of the company, by their invita tion, for the purpose of travelling by their line, they were liable for the damage occasioned by their not having placed a light at the steps. the trial, Lord Coleridge, C.J., gave judgment for the defendants. It appeared that the plaintiff had been in the habit of using the footpath on previous visits to Greenhithe, but, until January 2, 1881, always by daylight. On the first occasion he had asked the station-master the nearest way to the village, and was told that he could go by the footpath if he liked. JESSEL, M.R., said that the company had provided a public highway which was open to the use of all persons, and when that way was once provided they had nothing brought, except on the principle that railway companies were fair game on more to do with it. He could not understand how this action could have been questions of compensation. The footpath in question was clearly a public highway, with no liability on the part of the company to repair or light it. The fact that the plaintiff was told more than a year before that it was the nearest way to the place to which he wanted to go was no invitation to him to use i', and certainly be was not invited to go along it by night in the dark. There was, in point of fact, no invitation, nor anything like an invitation, on the part of the company so as to affect them with any liability. It would be not only contrary to law, but also contrary to reason if the court were to allow the railway company to be mulcted in damages in a case like this. The judgment was perfectly right. LINDLEY, L.J., and BOWEN, L.J., concurred.— SOLICITOR, W. H. Herbert.

CONTRACT OF APPRENTICESHIP-PLACE OF PERFORMANCE-REMOVAL OF Appeal on the 4th inst., the question arose whether there had been a breach MASTER-BREACH.—In a case of Eaton v. Western, before the Court of of a contract of apprenticeship by reason of the removal of the business of the master to a place different from that at which it was carried on at the time when the contract was entered into. The action was brought by a father and his infant son for damages for breach of the covenants and agreements con tained in an indenture of apprenticeship entered into between the plaintiffs and the defendants on the 12th of January, 1877. At that time the defend ants were carrying on their business of mechanical engineers in Lambeth, in which place, also, the infant resided with his father. By the deed the infant was bound apprentice to the defendants in the ordinary way for six years, and covenanted with the defendants that he would, at all times during the term, was to serve them and to obey their lawful commands. And the father provide his son with suitable board and lodging, washing and clothes, and all their apprentice during the term. And, in consideration of this, the defendan's other necessaries, and that the son should fathfully serve the defendants as contracted with the infant and his father to teach the infant their business in the usual manner, and to pay him certain wages. In 1879 the defendants re

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moved their business to Derby, and required all their apprentices to remove
there, offering to pay their railway fare there and to pay them, if they removed,
increased wages during the remainder of their terms, or, in the alternative, to
have their indentures cancelled, and to make them a present of four weeks'
wages. The infant plaintiff, with the consent of his father, refused to go to
Derby, and the defendants thereupon refused to continue him as their appren-
tice. This action was then brought in the Surrey County Court, and judg-
ment was given for the plaintiffs. On appeal to the Queen's Berch Division
this judgment was reversed. The divisional court (Mathew and Cave, JJ.)
were of opinion that they were bound by the decision of the Queen's Bench
Division (Grove and Bowen, JJ.) in the recent case of Royce v. Charlton
(30 W. R. 274, L. R. 8 Q. B. D. 1). In that case a deed of apprenticeship
contained the usual provision that the master should teach the apprentice,
but there was no express provision as to the place where the contract was to
be performed by the master. The apprentice's mother, with whom he resided,
agreed to provide him with board and lodging during the term. And it was
held that no stipulation could be implied that the contract of the master was
to be performed at the place where the master carried on business and the
apprentice and his mother resided at the date of the deed, and that there was
no breach by reason of the master removing his business to a distant place.
In Eaton v. Western the Court of Appeal (JESSEL, M.R., Sir JAMES HANNEN,
and LINDLEY, L.J.) disapproved of this decision, and reversed the decision of
Mathew and Cave, JJ., which was founded on it. They said that the case
was quite different from that of an indoor apprentice in which the master was
bound to provide the apprentice with board and lodging. It would not be a
reasonable construction to hold that the father was bound to provide the son
with board and lodging at any place to which the master might choose to re-
move his business. The master's command to the apprentice to remove to
Derby was not lawful and reasonable, and the apprentice was not bound to
obey it. The decision of the county court was accordingly restored.-SOLICI-
TORS, Bordman & Co.; Western & Sons.

the presentation of any other winding-up petition, and of any proceeding being taken by any other mortgagee or debenture-holder to enforce his security. FRY, J., said that the court ought, no doubt, to have regard to the wishes of the creditors, but it ought not to regard merely the number of the creditors, and the value of the debts due to them, but it should consider also the reasons which they gave for their wishes. In the present case the opposing creditors had shown good reasons for their opposition to the making of an immediate winding-up order; they were also more in number and value than the creditors who supported the petition, and, therefore, the court ought to attend to their wishes, and not make an immediate winding-up order. Another reason for coming to this conclusion was, that the petitioners would not gain anything by a winding-up order. In the winding up, the court would have to administer only the equity of redemption of the mortgaged property, and substantially the whole of the company's property was included in the mortgage, and in the security of the debenture-holders. Therefore no practical benefit would result to the petitioners from a winding-up order.-SOLICITORS, Clarke, Woodcock, & Ryland; Wilkins, Blyth, & Dalton; Jones, Blaxland, & Son.

SHERIFF'S OFFICER-Negligence-DeLIVERY OF WRIT.-In a case of Truninger v. Keene, before the Court of Appeal on the 3rd inst., a question arose as to the liability of a sheriff's officer for negligence in not obtaining a warrant to levy under a writ of elegit. It appeared that it is a not uncommon practice for the solicitor of a party who has issued a writ of elegit, instead of delivering it in due course at the office of the under-sheriff in order that a warrant to levy may be issued to the sheriff's officer, to deliver the writ to one of the sheriff's officers in order that he may obtain the warrant, a small fee being paid to him for the purpose. Some advantage is supposed to be derived from thus securing the personal attention of the officer. In the present case a writ of elegit was delivered in this way to a clerk of the defendant, who was a sheriff's officer, in order that a warrant to levy might be obtained. The procuring of the warrant was so much delayed, that, before it was issued, the execution debtor had filed a liquidation petition, and the plaintiff (the execution creditor) thus lost the priority which he would have obtained if the levy had been made in time. The plaintiff claimed damages from the sheriff's officer for negligence in not procuring the warrant in time. At the trial without a jury Mathew, J., ordered judgment to be entered for the defendant, on the ground that it was not proved that the defendant's clerk had any authority from him to receive the writ. An order nisi for a new trial was obtained, on the ground that the judge had refused an application to postpone the trial in order to enable the plaintiff to procure the attendance of a witness whose evidence was alleged to be material. The Court of Appeal (JESSEL, M.R., and LINDLEY, L.J.), discharged the rule, on the ground that it is not part of the duty of a sheriff's officer to receive writs of execution directly from the execution creditor or his solicitor, and that, consequently, the defendant's clerk in receiving the writ was not acting in the ordinary course of the business of a sheriff's officer, and his act could not, therefore, bind his principal in the absence of express authority from him. The evidence did not prove any such authority, and if the absent witness had proved all which it was stated that he could have proved, his evidence would not have amounted to more than this, that it was a common practice for sheriffs' officers to allow their clerks to receive writs from the solicitors of execution creditors. There was, therefore, no ground for a new trial.-SOLICITORS, M. Abrahams & Co.; Abbott, Jenkins, & Abbott.

LIMITED COMPANY-FRAUDULENT PROSPECTUS-RECTIFICATION OF REGISTER-LACHES OF PLAINTIFF-COMPANIES ACT, 1862, s. 35.-In the case of Levy v. United Horse Nail Company (Limited), before Chitty, J., on the 30th ult., a motion was made by the plaintiff for the rectification of the register of shareholders of the company by the removal of the plaintiff's name therefrom in respect of 500 shares applied for by and allotted to him, and also for the return to him by the company of £250 paid in allotment. The ground of the motion was that the plaintiff was induced to take the shares in consequence of fraudulent representations contained in the prospectus issued by the company. From the evidence produced by the plaintiff it appeared that on the 2nd of June, 1881, he believed, and stated his belief, that the company was not a bona fide one, but the present proceedings were not instituted until March of the present year. CHITTY, J., said that the plaintiff had not shown that he was misled by any representation of the kind he alleged, or, indeed, that there was any fraudulent misrepresentation at all, and that the motion, on these grounds, must be dismissed with costs. There was also another ground which was a sufficient one for dismissing the motion, and that was the delay of the plaintiff in making his application to the court.-SOLICITORS, Walter B. Styer; Heritage & Co.

COMPANY-WINDING UP-WISHES OF CREDITORS-COMPANIES ACT, 1862, 8. 91. In a case of In re The Great Western Coal Consumers' Company, before Fry, J., on the 1st inst., a question arose as to the regard which the court should pay to the wishes of the creditors of a company in reference to the making of a winding-up order. The petition was presented by the first mortgagees of the company's property, who were also the holders of some debentures of the company. The petition was opposed, not only by the company and by some of the shareholders, but also by a large number of the creditors. The amount of the debts due to the opposing creditors was considerably more than double the amount due to the petitioners and those creditors who supported the petition, Substantially the whole of the company's property was mortgaged, and it did not appear that there was much probability of a surplus. There was evidence that the position of the company was improving, and that, if it was allowed to continue its business, it was probable that it would be able to pay the interest on the mortgages, which had been in arrear for some years, and gradually to extinguish the mortgage debt. Under these circumstances FRY, J., declined to make an immediate windingup order, but directed that the petition should stand over for six months, or until the petitioners should, within the six months, take some proceedings to enforce their security, the company giving an undertaking, as was given in In re St. Thomas' Dock Company (24 W. R. 544, L. R. 2 Ch. D. 116), not to wind up voluntarily, and not to consent to a winding-up order on the petition of any other creditor, and also to give notice in writing to the petitioner of

PETITION-APPOINTMENT OF NEW TRUSTEE-TRUSTEE ACTS, 1850, 1852 before Chitty, J., on the 1st inst., a petition was presented by the tenant -CONVEYANCING ACT, 1881.-In the case of In re Oakden's Trusts, for life of trust funds comprised in the will of a deceased testator for the appointment of a new trustee of the will in substitution for one of the two original trustees who was dead. CHITTY, J., said that the proper course was to appoint a new trustee under section 31 of the Conveyancing Act, 1881, order with the view of sparing the parties expense, but similar petitions would, without coming to the court. In the present instance he would make the in future, be dismissed with costs.-SOLICITORS, Aldridge, Thorn, & Morris, for Leech, Smith, & Broughall, Derby; Geare & Son; G. F. Hudson, Matthews, & Co.

PARTITION ACTS-SALE FREE FROM INCUMBRANCES-CONVEYANCING ACT, 1881, s. 5.-In the case of Dickin v. Dickin, before Chitty, J., on the 1st inst., a consent order was sought under the Partition Acts for the sale of hereditaments which were subject to an annuity of £20 in favour of a person not made party to the action, and it was proposed that the property should be sold under the provisions of the Conveyancing Act, 1881, s. 5, free from the incumbrance of the annuity. CHITTY, J., made the order asked for, with a direction that out of the purchase-money to be paid into court such an amount as, when invested in Government securities, the court should consider sufficient to provide for the annuity of £20 and costs should be set aside and invested as a provision for sach annuity, and thereupon that any party should be at liberty to apply for a declaration that the hereditaments were free from the annuity.-SOLICITORS, Milne, Riddle, & Mellor, for Withington, Petty, & Boutflower, Manchester; C. W. Dommett.

CASES BEFORE THE BANKRUPTCY REGISTRARS. (Before Mr. REGISTRAR MURRAY, acting as Chief Judge.) April 26; May 17; June 28.-Re Currie.

A pension of £90 13s. 10d. per year granted by the Madras Medical Fund to the bankrupt, as the unmarried daughter of a deceased medical officer in the Indian Army, held to pass to the trustee under the bankruptcy, subject to the provisions of section 90 of the Bankruptcy Act. But the amount to be set apart involves a question of discretion.

This was an application on behalf of Cecilia Cadogan Currie, spinster, a bankrupt, for an order that, notwithstanding the appointment of James Holah as trustee of the estate and effects of the bankrupt, the annual pension of £90 13s. 10d. derived from the Madras Medical Fund, and payable quarterly to the bankrupt during her life, or until her marriage, might be paid to her as the same became due. There was also a cross-application on behalf of the trustee for an order on the Director of Military Funds to pay to the trustee so much of the pension (subject to existing charges) as the court might think fit, to be applied in such manner as the court might direct.

The bankrupt stated that she was entitled to the pension in question, which was derived from the Madras Medical Fund, as the daughter of an Indian medical officer, her father having been a subscriber to the fund during his life

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