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ing. Registration was refused, on the ground that the resolutions were passed manifestly in the interests of the debtor and could not bind a dissenting minority of the creditors, and the Court of Appeal affirmed that decision. The concluding portion of the judgment of Mellish, L.J., lays down the general principles upon which the court should proceed in such cases as follows:-" Under these circumstances the creditors come to resolutions, not merely that there shall be a liquidation by arrangement, but that the debtor shall receive his order of discharge at once, on his executing a deed by which he is to be allowed to receive £600 a year from any source of income that he may have, and covenants only that all beyond £600 a year he will pay over to his creditors. Practically the first effect of that is, he clears his half-pay from paying anything towards his creditors, and he is to keep enough for him to live upon without the slightest security that the creditors will ever get anything. I do not say that there is anything wrong, morally speaking, in the creditors coming to that resolution. I think that, being likely to get little, under any circumstances, the creditors may have been desirous to discharge him. But it seems to me that it is impossible to suppose that the majority of the creditors would come to such a resolution as that bona fide for what they considered the best for the creditors. It appears to me manifest that the majority of the creditors have been actuated by kindly motives towards Sir William Russell, and I think a resolution of that kind cannot stand against the objection of the dissentient creditors. The Act of Parliament enables a certain majority of creditors to bind the minority, but it must be a majority who are, bona fide, voting for what they consider to be for the benefit of the creditors and with a view of making the best arrangements for the creditors, and if it is made plain that the resolutions come to are not bona fide for the benefit of the creditors, but with the intent to discharge the debtor without any real benefit to the creditors, then, in my opinion, the minority of the creditors are entitled to object to the registration of such resolu

tions."

the debtor, and not upon the amount of assets for distribution;
but it is of some importance upon the point we are discussing
from the fact that the creditors also passed a resolution granting
the debtor an immediate discharge, which resolution was, how-
ever, struck out on registration. Ex parte Terrell, Re Terrell
(25 W. R. 153, L. R. 4 Ch. D. 293), is the next case on the point.
There the liabilities amounted to £11,358, and the assets to £75,
with preferential claims amounting to £127, and the creditors
accepted a composition of one shilling in the pound, payable
within one month from registration without security, and the
Court of Appeal confirmed the decisions of two registrars of the
London Bankruptcy Court refusing to register the resolutions, on
the ground that there were no assets and no security for the com-
position, but they allowed a fresh meeting to be called to give the
creditors an opportunity of passing binding resolutions. Shortly
after the last-cited case the Chief Judge, in Ex parte Williams,
Re Williams (25 W. R. 432), ordered registration of resolutions
accepting a composition of sixpence in the pound, payable by two
instalments unsecured, where the liabilities amounted to £1,366
and the assets to £50; but this case, as well as Ex parte
Elworthy, must now be considered as expressly overruled by the
last case of Ex parte Ball before the Court of Appeal. The
case of Ex parte Aaronson, Re Aaronson (26 W. R. 470, L. R.
7 Ch. D. 713), is the next upon the point. In that case the
liabilities amounted to £1,146 9s. 6d. (including preferential
claims, £47 3s. 6d.), and the assets to £187, including £150 the
value of furniture which had been seized under a bill of sale, the
validity of which, however, was questioned by the debtor. The
creditors resolved upon liquidation, but did not grant the debtor
any discharge. Registration was opposed by a dissentient
creditor and refused by Mr. Registrar Hazlitt, whose decision was
affirmed by the Court of Appeal. In another similar case of
Ex parte Martin, heard the same day (22 SOLICITORS' JOURNAL,
371), the Court of Appeal affirmed the refusal of the registrar
to register liquidation resolutions, although no creditor op-
posed.

A few months after the decision in Ex parte Russell the question of the acceptance of a trivial composition came before the Up to this time the cases show that the Chief Judge favoured Chief Judge in the case of Ex parte Elworthy, Re Elworthy (23 compositions, however small the amount, but was opposed to liquiW. R. 790, L. R. 20 Eq. 742). In that case the debtor's state-dations where only nominal assets were shown, whilst the Court ment of affairs showed liabilities amounting to £130, and assets of Appeal were equally averse to small compositions and liquida£7 only, and at the first meeting four creditors, whose debts tions with small assets. The next three cases, however, before amounted in the aggregate to £72, attended, and unanimously the Court of Appeal would appear to have modified somewhat the accepted a composition of threepence in the pound, which was very strong views theretofore taken by the court with regard to unanimously confirmed at the second meeting by the votes of the liquidations, and, consequently, we find the court allowing exsame creditors. On the same being presented for registration, the ceptions to the very stringent rules previously laid down by it. registrar and judge of the Greenwich County Court successively The first case is that of Ex parte Hope, Re Hope (27 W. R. 7, refused to register, but on appeal to the Chief Judge he held that, L. R. 9 Ch. D. 398), where the liabilities amounted to £43,897, inasmuch as all the requirements of the Act and Rules had been and the assets to £120, in addition to claims which were being complied with, the resolutions must be registered. This decision prosecuted by the debtor in two suits in chancery. The creditors has, however, been disapproved of, as we shall hereafter see. resolved upon liquidation, and granted the debtor his discharge The next case upon the point is Ex parte Staff, Re Staff (23 upon the trustee certifying his consent thereto in writing. The W. R. 950, L. R. 20 Eq. 775), also before the Chief Judge. In registrar and judge of a county court successively ordered registhat case the debtor's liabilities amounted to £540, and his assets tration, but the Chief Judge reversed that order, and made an to £32. At the first meeting the creditors resolved upon liquida- order of adjudication. The Court of Appeal held that there was tion by arrangement, and granted the debtor an immediate dis-no mala fides in the action of the creditors, and restored the order charge. Although this case came before the Chief Judge within of the county court, ordering registration, with the exception of a month after that of Ex parte Elworthy, he stigmatized it as the resolution for discharge, which was struck out as ultrà vires. "a somewhat audacious case," and confirmed the order of the Again, in Ex parte Early, Re Golding (28 W. R. 310, L. R. 13 court below, refusing registration, and dismissed the debtor's Ch. D. 300), the Court of Appeal ordered registration of resoluappeal with costs. He based this decision upon the fact that the tions for liquidation, and granting the debtor an immediate dismachinery of the court ought not to be employed in a case where charge, under the following circumstances:-The debtor's liabili£32 was all the property which a debtor had to hand over to ties amounted to £534, and his assets to £85, reduced by sheriff's satisfy creditors for £340. In the case of Ex parte Page, Re expenses to £54. There were only five creditors, of whom one, the Page (24 W. R. 502, L. R. 2 Ch. D. 323), the question of the appellant, had issued execution for £95 after the filing of the acceptance of a small composition came before the Court of petition, and an order restraining him had been granted. At the Appeal. In that case the liabilities amounted to £1,257, and the first meeting of the creditors a composition of one shilling in the assets to £371, and the statutory majority of the creditors pound had been accepted, but this was not confirmed at the second accepted a composition of one shilling in the pound, payable in meeting, and the resolutions before mentioned were passed. The twelve months, which was opposed by one creditor. The Court registration was opposed by the execution creditor. In delivering of Appeal held that such a resolution was not passed bonâ fide judgment, James, L.J., said, "No doubt the assets are very small, in the interest of creditors. The decision in Ex parte Walter, and probably they will produce nothing for anyone. But the Re Webb (L. R. 2 Ch. D. 326), also before the Court of Appeal, real contest has been whether one creditor shall take the whole of which is the next in order of date, and in which resolutions for the assets, or whether they shall be distributed among all the liquidation were passed, proceeded upon the construction of rule creditors. The debtor may well have honestly thought that his 301, and the sufficiency of the statement of affairs presented by assets should be distributed equally, and the other creditors may

have honestly thought that they should have a share. It is impossible to say that the proceedings show on their face that there has been any abuse of the procedure of the court, or any fraudulent use of the powers of the majority of the creditors." The other case to which we refer, in which the Court of Appeal modified the rules previously laid down in the decisions we have quoted, is Ex parte Matthewes, Re Sharpe (L. R. 16 Ch. D. 655). În that case the debtor's statement showed liabilities £1,759, and assets £85, subject to a deduction of £41 8s. for preferential claims. The creditors resolved upon liquidation, granted the debtor an immediate discharge, and voted the trustee £10 for remuneration. Registration was opposed by a creditor for £182, who had commenced an action and had been restrained, but who could at once sign judgment and issue execution if the injunction had been dissolved. Both the Chief Judge and the Court of Appeal confirmed the registration of the resolutions, following Ex parte Early. Cotton, L.J., came to this conclusion, "though with reluctance"; but Lush, L.J., stated that he would have come to the same conclusion independently of Ex parte Early.

In the last two cases before the Court of Appeal which we propose to quote, the question of a small composition was dealt with, and the court confirmed its previous decisions in Ex parte Page and Ex parte Terrell refusing to register. The first case was Ex parte Williams, Re Williams (50 L. J. Ch. 741), in which the debtor's liabilities amounted to £1,167 8s. 7d., with assets nil. At the first meeting twenty-one creditors, whose debts amounted in the aggregate to £811 1s. 11d., attended, and sixteen, amounting to £706 7s. 11d., voted for a composition of twopence in the pound to be paid within three months after registration. At the second meeting ten creditors, amounting to £357 15s. 10d., attended, and eight, amounting to £285 15s. 10d., confirmed the previous resolution. No creditor appeared to oppose on the application to register, but, notwithstanding this, the Court of Appeal laid it down that it is the duty of the registrar to inquire into the bona fides of resolutions even though the registration be not opposed before him. The last case of all is the one we mentioned at the commencement of this article-viz., Ex parte Ball. There the debtor's liabilities were £1,293 and assets nil, but on examination he admitted that he was in receipt of a salary of £5 per week. The statutory majority of creditors resolved to accept a composition of sixpence in the pound, payable within one month from registration, and to be secured to the satisfaction of the chairman of the meeting. These resolutions were duly confirmed and registered. Some dissentient creditors then applied to the court to rescind the registration, but their application was refused by Mr. Registrar Hazlitt, sitting as Chief Judge, he basing his decision upon that of the Chief Judge in Ex parte Elworthy. On appeal, however, the resolutions were ordered to be vacated, the Court of Appeal expressly disapproving of the decision in Ex parte Elworthy, which they held to be at variance with the decision of the same judge in Ex parte Staff. Jessel, M.R., described the proceedings as an abuse of the procedure of the court, and Lindley, L.J., said that they were a scandal.

expectation of the debtor acquiring property before the close of the liquidation which would come into the estate? To compel a debtor's affairs to go into bankruptcy does not really punish the debtor. If he can obtain votes of creditors sufficient to pass a special resolution, he can obtain his discharge in bankruptcy under section 48 of the Act just as easily as in liquidation: Ex parte Hamilton, Re Hamilton (26 W. R. 697). And, as was pointed out in our article upon the discharge of a debtor in liquidation (ante, p. 507), his position, if his creditors are hostile, is really better in bankruptcy than in liquidation.

Again, how can all the anxiety expressed by the court to prevent abuse be reconciled with the decisions in Ex parte Early and Ex parte Matthewes? That anxiety seems in those cases to have vanished in the greater anxiety felt by the court to prevent a particular creditor from reaping the reward of his diligence, though his doing so would not be in any way at the expense of the other creditors, for in any event they would not get anything out of the estate. What is there, then, to prevent a debtor who is possessed of only a small amount of assets from delaying the filing of his petition until one or more of his creditors is, or are, in a position to sign judgment and issue execution, and then to institute his proceedings so as to come within the rule laid down in those cases? In fact, a premium is directly held out by those cases for a debtor so situated to act as we have suggested. And in that event, what becomes of all this indignation about the abuse of the machinery of the court? If the present Act remain law for much longer, this point may come more prominently before the court, and, probably, if it should do so, we may have some better rule laid down than it is possible to extract from the (as it seems to us) utterly conflicting cases of Ex parte Russell and Ex parte Aaronson on the one hand, and Ex parte Early and Ex parte Matthewes on the other. We can fully understand the earlier decision of Ex parte Russell, for in that case the creditors, in addition to resolving on a liquidation, passed other resolutions which were clearly for the benefit of the debtor, by giving him property which ought properly to be divided amongst his creditors. But even in that case it would have been sufficient to have struck those resolutions out as clearly ultrà vires, and to have registered the resolutions for liquidation.

Then, with regard to compositions, we would inquire what minimum limit of composition does the Court of Appeal intend to fix? Sixpence in the pound, even though secured, and where the assets are nil, will not be sanctioned by the court; that is clear. But would a shilling in the pound have been approved in the case of Ex parte Ball? It is hard to say whether it would or not, but we should gather from the decision in Ex parte Terrell, and the fact that leave was given in that case to call a fresh meeting of creditors, that a shilling in the pound would have been registered if proper security had been provided. Now, what is there in the Act to fix an arbitrary limit of a shilling in the pound, or any other amount? We are not aware of anything. We fully admit the evil of these nominal compositions, and therefore cordially approve the proposal contained in the Government Bill of last year to provide a minimum limit of five shillings in the pound, but there being no such provision in the Fresent Act, we think that it is straining that Act for the court to which has frequently registered resolutions for liquidation where the assets have not been more than from £30 to £50, on the personal undertaking of the solicitor, given in court, that a dividend of not less than sixpence in the pound would be paid. Whatever justification there may have heretofore been for taking this course, it is clear, since the decision in Ex parte Ball, that the Court of Appeal would not affirm the registration in such cases in the future. But is there any reason why it should withhold registration if the undertaking were extended to a shilling in the pound? The idea of obtaining such a personal undertaking from the solicitor would no doubt be a novelty to the Court of Appeal, and it might refuse to be influenced by any such undertaking, possibly on the ground that it could not be enforced in any way in case the dividend guaranteed were not reached. But that is a point which has yet to be decided, and in the meantime it appears to us that the amount of dividend has only to be raised to a shilling in the pound to meet the last case of Ex parte Ball.

Having thus collated all the reported authorities upon the subject, let us consider what is their practical effect, first, with regard to liquidations, and, secondly, with regard to compositions. Whilst sympathizing heartily with the desire of the court to pre-fix a limit. We are acquainted with one county court, at least, vent mere "whitewashing " by means of these proceedings, it yet appears to us that the court, in laying down the rule it has laid down in liquidation, has somewhat strained both the words and the spirit of the Act of Parliament. For, after all, what is liquidation but another kind of bankruptcy with a slightly different form of procedure? And what is there in the Act of Parliament from beginning to end to prevent the statutory majority of creditors from adopting that form in preference to the regular procedure of an ordinary bankruptcy? A debtor is subject to the same penalties in liquidation if he has committed any act made criminal by the Debtors Act, 1869, and he can at any time be summoned for examination in court under section 96. The great distinction attempted to be drawn between the two is more a fancy of the court than a reality. The Act of Parliament places no limit either on the amount of composition which it is competent for the creditors to accept, or upon the amount of assets which shall exist in liquidation. And why should not the creditors resolve on liquidation without giving the debtor a discharge, in the

REVIEWS.

CONVEYANCING.

HAYES' CONCISE CONVEYANCER, WITH PRECEDENTS ADAPTED TO THE NEW CONVEYANCING ACT. FOURTH EDITION. By W. B. COLTMAN, ESQ., Barrister-at-Law. H. Sweet.

[SECOND NOTICE.]

We come now to the consideration of the precedents in this edition of Hayes, and we will commence with the conditions of sale. The first thing to be observed is that in these Mr. Coltman still makes the vendor agree to deliver an abstract within a specified time. No doubt the precedent books almost invariably contain such a condition, but we believe that in practice (except in the case of sales by the court) this condition is now frequently omitted, and we do not see why the vendor should incur an obligation to deliver the abstract within a specified time. All that seems to be necessary is to require the purchaser to send in his objections and requisitions within a specified time after the delivery of his abstract. We observe also that Mr. Coltman inserts, in the form of general conditions for freeholds or copyholds in one lot, a provision relating to retention by the vendor of muniments of title relating to the property sold and also to other property retained by the vendor. Does he consider the provision of the Vendor and Purchaser Act, 1874, inadequate; or is it the object of the insertion of an express provision on this subject to introduce the stipulation, with which the condition ends, that the vendor will give at the purchaser's expense "the usual acknowledgment of the purchaser's right to the production thereof," so excluding the giving of an undertaking for safe custody? We do not see why the vendor (not being a fiduciary owner) should not give this undertaking; and we observe that in the form of conditions for sale of freeholds in lots the vendor is made to agree to give both an acknowledgment and an undertaking as to deeds retained by him. The condition as to incum. brances is full and satisfactory, providing (as the forms in the books seldom do) for "the claims of tenants to compensation for acts of husbandry or otherwise," and for "liabilities to maintain fences and other liabilities of the like description." In the form of conditions for leaseholds in one lot we observe an excellent condition, which, besides providing for the production of the lease and fire policies and counterparts of underleases, or copies, and providing that the purchaser shall be deemed to purchase with full notice of everything contained therein, goes on to say that the purchaser shall be deemed to buy "with full notice of the past and present state of the property as regards repairs and insurance; and such notice shall not be abridged or affected by any partial or inaccurate statement in the particulars." Some well-drawn special conditions of sale will be found at the end of the general conditions. With regard to the general conditions we have said enough to show that they are usually careful and often original. We are not sure, however, that the editor has been quite wise in varying the familiar language of the ordinary introductory conditions.

Some simple forms of wills have been added, mostly adapted from Hayes and Jarman. They appear to be full and accurate, but might probably have been shortened in places with advantage. There is nothing the average testator, and especially the commercial testator, seems to value so much as a terse will, and any eminent editor of a book of precedents who would give a series of forms of wills prepared on the plan of cutting out every unnecessary word would confer a considerable benefit on the profession.

The collection of precedents of mortgages is full and varied. Mr. Coltman gives first the old forms, with the omission of covenants for title, following these with the forms in the schedules to the Conveyancing Act. He justly remarks that the number of cases in which these latter forms can be used is somewhat limited, for the provisions as to statutory mortgages do not apply to copyholds or to personal property except chattels real. In all the precedents Mr. Coltman inserts the clause we quoted last week providing that the mortgagor shall not exercise the statutory powers without the consent of the mortgagee.

The forms of leases present little subject for observation. The number of the forms is somewhat limited, and we think might have been increased with advantage. In particular a precedent of an underlease should have been added. Without going further with our examination of these precedents, we may say that we regard the book as a very valuable addition to the conveyancer's library.

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together the cases and discussed the difficulties arising upon the language of the different provisions. Since his first edition was published a remarkable crux has arisen, owing to the repeal of the Settled Estates Act, 1855, and its re-enactment with variations. Section 8 of the Partition Act, 1868, provides that sections 23 to 25, inclusive, of the Settled Estates Act, 1856, "shall extend and apply to money to be received on any sale effected under the authority of this Act." Which set of enactments is to be considered as incorporated in the Partition Act, sections 23-25 of the Settled Estates Act, 1856, or those sections as altered and re-enacted by the Settled Estates Act, 1877? Mr. Walker, we think correctly, comes to the conclusion that the repeal of the old Act by name cannot operate to repeal for the purposes of the Partition Act the sections which by virtue of the 8th section are to be read into it.

CORRESPONDENCE.

COMMISSIONERS TO ADMINISTER OATHS.

[To the Editor of the Solicitors' Journal.] Sir,-Referring to the letter signed “G. B.” which appeared in your issue of the 15th inst., on the subject of commissions to administer oaths, I am directed to send you the enclosed copy of an opinion on two questions submitted to counsel on the point referred to. E. W. WILLIAMSON, Secretary.

The Incorporated Law Society, Chancery-lane, W.C., July 18.
Counsel was requested to advise―

1. Whether a commissioner to administer oaths appointed before the Judicaturs Act, and whose commission limited him to a particular area, is still confined to such area.

2. Whether commissioners generally are empowered to take declarations in matters not pending in court with or without any limit of locality.

OPINION.

I think it is clear that all new commissioners for taking oaths of affidavits in the Supreme Court, appointed by the Lord Chancellor under section 84 of the Judicature Act, 1873, by commissions in the general form now in use, have power to take oaths or affidavits in all parts of England in causes or matters pending in the Supreme Court. They have also, in my opinion, power to take in all places declarations of all kinds (and not merely in causes or matters in the Supreme Court) under 5 & 6 Will. 4, c. 62. The word "now," as used in section 18 of that Act ("officer now by law authorized"), must be construed to refer to the kinds of officers then authorized, which included common law commissioners in towu and country, and chancery commissioners in London. These old commissioners could, within their limits of locality, take declarations whether in causes or otherwise. The new commissioners inherit the powers of all such old commissioners without the old limits of place, and I think that they have the same power to take declarations, and either in causes or otherwise, but without limit of place. They have also for the same reason power under 32 & 33 Vict. c. 38, to take bails and recognizances.

With regard to commissioners appointed before the Judicature Act there is more difficulty, but I am of opinion that section 82 of the Judicature Act is not limited by anything in section 77, and that the operation of section 82 would probably be held to be perfectly general, like that of section 84, and such as in effect to strike out of the old com. missions all limitations of place, just as it certainly strikes out all limitations of court (other than the Bankruptcy Court), and this, not only in relation to causes and matters in the Supreme Court, but also in relation to declarations under 5 & 6 Will. 4, c. 62, because (on the same reasoning as in the former answer) the power to take declarations, whether in causes or otherwise, is attached to the power to administer oaths. Similarly the old common law commissioners, in my opinion, continue to have power to take bails and recognizances under 32 & 33 Vict. c. 38, and the old chancery commissioners have acquired the same power by being invested with the authority of common law commissioners.

I am inclined to think that even before the Judicature Acts there was power to issue commissions to both London or country commissioners unlimited in respect of locality; both at common law under 29 Charles 2, c. 5, and 22 Vict. c. 16, and in chancery under 16 Vict. c. 78. The reasoning in the Case of the Record Clerks (3 De G. M. & G. 723, not so well reported in 23 L. J. Ch. 1002) appears to me to involve this, but for the actual limitations in the old commissions, and these actual limitations are now, in my opinion, swept away by the Act.

The Fines and Recoveries Act (3 & 4 Will. 4, c. 74, ss. 81, 82), as to acknowledgments of married women, does not appear to be affected by the Judicature Acts. The perpetual and special commissions under these Acts must be obtained from the Lord Chief Justice as representing the Chief Justice of the Common Pleas (see the Judicature Act, 1881, s. 26). Ordinary commissioners cannot, under the Lord Chancellor's commission,

take such acknowledgments, because they are not causes or matters in directing the trustee to take no further steps in the examination of witnesses the Supreme Court, and are not oaths, affidavits, or declarations. Tem ple, Feb. 18.

ADMINISTRATION ACTIONS.

R. S. WRIGHT.

[To the Editor of the Solicitors' Journal.] Sir,-In your issue of the 15th inst. you comment on Mr. Justice Manisty's refusal to make the usual administration order in the case of In re Cottrell, Woods v. Cottrell. The facts of the case are not stated, except that the plaintiffs were specific legatees, that the writ was issued in 1880, a receiver appointed in 1881, and that the hearing came on in January, 1882; but we may infer from the quoted remarks of Mr. Justice Manisty that the trustees of the will were respectable persons, and that the plaintiffs did not allege fraud, breach of trust, or misconduct of any kind on the part of the trustees. Neither are we told who the residuary legatees were, or whether they approved of the estate being administered under the direction of the court. Assuming, as I imagine I may fairly do, that the residuary legatees would have preferred that the trusts of the will should be carried out by the trustees, I confess that I am not surprised that Mr. Justice Manisty should consider it "contrary to all notions of justice" and "gratuitously cruel to the parties" to make the order asked for.

Now I am well aware that it is the rule in the Chancery Division for administration orders to be made as a matter of course, and this entirely irrespectively of the question whether the trustees have shown themselves unworthy of confidence, or whether the majority of the parties interested under the will oppose the application or not. I am aware, for instance, that a pecuniary legatee of £500 may, without alleging any reason, have an administration order, although all the other legatees (pecuniary, specific, and residuary) may be quite content to leave the winding up of the estate in the hands of the trustees; and it is against this rule that I protest. In my humble judgment it would be more to the interest of the public if the judges of the Chancery Division were, in such cases, to exercise a discretion, and not suffer themselves to be bound by what is, at the most, the practice of the chancery courts, and not the effect of any legislative enactment.

I am only suggesting that each case should be decided on its own merits. If the judge thinks it a case in which it will be for the advantage of the parties generally that the estate should be administered under the direction of the court, or if the plaintiffs show that their interests are likely to be prejudiced by the administration being left to the trustees, then by all means let the order be made; but, on the other hand, I think it extremely cruel that such an order should be made, when it manifestly will not be for the benefit of any one of the legatees, and although nine

tenths of them resist it.

In the case of Woods v. Cottrell we are told that "there was no opposition to the plaintiffs' claim at the bar." Very likely. Counsel invariably advise that such a claim cannot be successfully resisted, and, therefore, however much their clients dislike the idea of administration by the court, when the case is called on they do not oppose. I should much like to see this question ventilated in your columns by those more competent to deal with it than I am, and I firmly believe it would be found that very many solicitors will indorse the remarks of Mr. Justice Manisty in, Woods v. Cottrell. T. P. July 17.

and not to commence litigation, the creditors being of opinion that no good would result to the estate by further examination or litigation. The creditors, moreover, directed the trustee to distribute the estate left in his hands with. out delay, and to take the necessary steps to close the liquidation as speedily as possible, and that he should within four weeks call a meeting of creditors to consider the close of the liquidation, the release of the trustee, and the disrealized all the assets, except what he might be able to recover by the contemcharge of the debtor. When this resolution was passed the trustee had plated proceedings, and had paid a dividend of 2s. in the pound. The assets which remained in his hands were sufficient, after payment of expenses, to pay a further dividend of 2d. in the pound. The persons against whom the trustee had contemplated taking proceedings voted in favour of the resolutions (they having proved as creditors) and so did a number of creditors for very small sums. One creditor for a large amount dissented from the resolutions. The trustee applied to the court for directions in the matter, and Mr. Registrar Hazlitt made an order directing him not to act on the creditors' resolutions. The registrar was of opinion that the resolutions had been passed for the sole purpose of favouring the debtors. In the Court of Appeal it was contended directions after the creditors had given him directions, and that in such a case that section 20 did not authorize the trustee to apply to the court for its the court could not interfere, or that, at any rate, the resolutions being intra vires, the court could not interfere unless it was shown that there had been actual fraud in the passing of them. The court (JESSEL, M.R., and BRETT and COTTON, L.JJ.) affirmed the decision of the registrar. JESSEL, M.R., said that section 20 could not mean that the court was to be subordinate to the creditors; the decision of the creditors must be subordinate to the power of the court. He should have come to that conclusion on the words of section 20 alone. But it must be taken in conjunction with section 14, which was in pari materia. It was impossible to suppose that the same words, when used with reference to a subsequent meeting of the creditors, were to be dealt with differently from the way in which they were to be dealt with when used with reference to the original meeting. The court must decide whether there was tors' resolution. In the present case his lordship agreed with the registrar 'just cause"-i.e., some substantial reason for not carrying out the credithat there was just cause for not carrying out the resolutions. BRETT, L.J., observed that section 20 said that the trustee was "to have regard to" the directions of the creditors; it did not say absolutely that he was to obey them. His lordship did not mean to say that it would be proper for the trustee, with out coming to the court, to take on himself to act contrary to the resolution of the creditors. The section assumed that he might summon a general meeting of the creditors and ascertain their wishes. It did not say in the alternative that he might apply to the court for directions, but that he might also apply to the court-i.e., having ascertained the wishes of the creditors, he might apply to the court for its direction, and if he might apply to the court, the court might make an order. COTTON, L.J., agreed in the construction of The exercise of the power given to the majority of the creditors must be caresection 20, and he thought that the registrar had rightly exercised his power. fully watched. It must be exercised for the benefit of all the creditors as such-i.e., for the administration of the estate, so as to provide the best possible dividend at the earliest time. In the present case the majority of the creditors appeared to have exercised the power for some indirect purpose, and this could not bind the dissentient minority.-SOLICITORS, Lumley & Lumley; M. Abrahams & Co.

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EXTRADITION ACT, 1870, s. 8—” APPREHENSION OF FUGITIVE CRIMINALDETENTION OF PERSON ALREADY IN CUSTODY-HABEAS CORPUS APPEALJURISDICTION-JUDICATURE ACT, 1873, s. 19.-In a case of The Queen v. Weil, before the Court of Appeal on the 13th inst., a question arose as to the power of issuing a warrant under the Extradition Act of 1870 for the detention of a person already in custody who is charged with having committed a crime

[Perhaps the remarks, but hardly the decision. Judges are appointed coming within that Act. And there was a further question as to the jurisdicto administer the law, not to alter it.-ED. S. J.]

CASES OF THE WEEK.

TRUSTEE IN BANKRUPTCY-DIRECTIONS OF CREDITORS-Power of COURT -RESOLUTION NOT PASSED Bona fide-BANKRUPTCY ACT, 1869, ss. 14, 20. -In a case of Ex parte Cocks, before the Court of Appeal on the 14th inst., a question arose upon the construction of section 20 of the Bankruptcy Act, 1869, which provides that "the trustee shall, in the administration of the property of the bankrupt and in the distribution thereof amongst his creditors, have regard to any directions that may be given by resolution of the creditors at any general meeting," and that "subject to the provisions of this Act, and to such directions as aforesaid, the trustee shall exercise his own discretion in the management of the estate, and its distribution amongst the creditors. The trustee may from time to time summon general meetings of the creditors for the purpose of ascertaining their wishes, he may also apply to the court, in manner prescribed, for directions in relation to any particular matter arising under the bankruptcy." Section 14 also provides, with reference to the first general meeting of the creditors, that the creditors "may, by resolution, give directions as to the manner in which the property is to be administered by the trustee, and it shall be the duty of the trustee to conform to such directions, unless the court for some just cause otherwise orders." In Ex parte Cocks the trustee in a liquidation had examined some witnesses with the view of obtaining evidence to enable him to set aside as fraudulent preferences certain payments which had been made by the debtors shortly before they filed their petition. Before he had commenced any proceedings for this purpose, a meeting of the creditors was summoned by him in pursuance of a requisition of some of the creditors. At the meeting resolutions were passed

tion of the Court of Appeal to entertain an appeal from the refusal of a divisional court to issue a writ of habeas corpus at the instance of a person who has been arrested or detained under the Extradition Act, and who alleges that the proceedings have been irregular. Section 7 of the Act provides that "A requisition for the surrender of a fugitive criminal of any foreign State, who is in or suspected of being in the United Kingdom, shall be made to a Secretary of State by some person recognized by the Secretary of State as a diplomatic representative of that foreign State. A Secretary of State may, by order under his hand and seal, signify to a police magistrate that such requisition has been made, and require him to issue his warrant for the apprehension of the fugitive criminal." Section 8 provides that :-"A warrant for the apprehension of a fugitive criminal, whether accused or convicted of crime, who is in, or suspected of being in, the United Kingdom may be issued-(1) by a police magistrate on receipt of the said order of the Secretary of State, and on such evidence as would, in his opinion, justify the issue of the warrant if the crime had been committed or the criminal convicted in England; and (2) by a police magistrate, or any justice of the peace in any part of the United Kingdom, on such information or complaint and such evidence or after such proceedings as would, in the opinion of the person issuing the warrant, justify the issue of a warrant if the crime had been committed or the criminal convicted in that part of the United Kingdom in which he exercises jurisdiction. Any person issuing a warrant under this section without an order from the Secretary of State shall forthwith send a report of the fact of such issue, together with the evidence and information or complaint, or certified copies thereof, to a Secretary of State, who may, if he think fit, order the warrant to be cancelled and the person who has been apprehended on the warrant to be discharged." The question arose thus:One Weil, on his arrival on the 25th of May last at Queenstown from the United States, was arrested before he landed by an Irish police-constable, on a charge of having committed a forgery at New York, The arrest was made

without any warrant, on the receipt of a telegram from a private inquiry agent in London. Weil was then taken before the resident magistrate at Queenstown, who, after hearing depositions, committed the prisoner for further examination. The magistrate on the 28th of May reported the arrest to the Home Secretary. On the 31st of May, on further investigation, the magistrate issued a warrant to take the prisoner before the chief magistrate at Bowstreet, to show cause why he should not be surrendered under the Act. The matter came before Sir Janes Ingham on the 2nd of June, and he remanded the prisoner till the 8th of June, and again to the 15th of June. It was then objected by his counsel that he was illegally in custody, because he had been arrested without a warrant, and Sir James Ingham again remanded him for a week, and represented the matter to the Home Secretary. The Home Secretary, on the 19th of June, issued an order to the chief magistrate, stating that a requisition had been made to him by the Minister of the United States in this country for the surrender of Weil, and requiring the magistrate to proceed in conformity with the provisions of the Act. The prisoner was brought up at Bow-street on the 22nd of June, and Sir James Ingham then issued a warrant for his detention under the Act. It was read over to the prisoner while he was in the dock, and he was again remanded. On the 29th of June Weil was finally committed, and an pplication was then made to the Queen's Bench Division for a writ of habeas corpus, and was refused. In the Court of Appeal it was contended that the original arrest was illegal, and that all the subsequent proceedings were consequently irregular, and that there could not be an "apprehension "under the Act of a person who was already in custody. The court (JESSEL, M.R., and BRETT and COTTON, L.JJ.) affirmed the decision. JESSEL, M.R., said there was a serious question to be considered at some time, if the case should ever arise, whether, having regard to the Judicature Acts, the Court of Appeal had jurisdiction to entertain an appeal from a divisional court in a case of this kind. This depended on a careful consideration of the various sections of the Acts, and it was far too serious and grave a matter for his lordship to give an off-hand opinion on it. If it were necessary to decide it, he should take time to consider it, and he should desire to hear further argument. For the present purpose he would assume the court had jurisdiction. It did not, however, appear to him that the only objection which could be fairly argued was one of such weight that the court ought to interfere by granting a habeas corpus. The question turned on the proper construction of section 8 of the Extradition Act. All the proceedings in this case had been strictly regular, with the exception of the fact that the original arrest was made without any warrant. The whole objection, then, was that the magistrate's subsequent warrant was not a warrant for the "apprehension" of the prisoner within the Act. His lordship thought that such a construction would give too narrow a meaning to the word " apprehension." Strictly, it meant seizing or laying hold of a man and detaining him with a view to his surrender. His lordship was not inclined to limit it to taking hold of a man who was not already in custody. If it was to be thus limited, it would follow that a man who was already in lawful custody could not be arrested at all under the Act, unless he was first set at liberty. This would not be a rational mode of construing the Act. Consequently, it appeared to his lordship that the whole of the proceedings were regular. BRETT, L.J., said that he would give no opinion on the very important question whether there was any jurisdiction to entertain an appeal in such a case. If there was jurisdiction, he thought there was no ground for exercising it. He doubted whether there had been any irregularity in the proceedings, and whether the policeman was not justified in arresting the defendant on reasonable grounds of suspicion for that which would have been a felony if committed in this country. But, if he was wrong in making the arrest without a warrant, his lordship thought that the magistrate's warrant for the prisoner's detention was a warrant for his apprehension within the Act. At any rate, if, when the prisoner was before the chief magistrate at Bow-street, there was evidence sufficient to justify his apprehension, the chief magistrate was justified in issuing a warrant for his detention. COTTON, L.J., said that he would not intimate any opinion one way or the other on the question of jurisdiction. He thought that the warrant issued by the Irish magistrate was a warrant for the apprehension of the prisoner within the Act, and that the requirements of the Act had been in substance complied with.-SOLICITOR, W. D. Smyth.

PRACTICE INJUNCTION - UNDERTAKING AS TO DAMAGES TIME TO ENFORCE-ERROR OF COURT.-In a case of Smith v. Day, before the Court of Appeal on the 17th inst., a question arose as to the enforcing of an undertaking as to damages, given by the plaintiff on the granting of an interlocu. tory injunction. The action was commenced on the 4th of November, 1879, to restrain an alleged interference by the defendant with the access of light to the plaintiff's premises. On the same day the plaintiff applied ex parte for an injunction, which was granted by Hall, V.C., on the plaintiff's giving the usual undertaking as to damages. On the 27th an injunction was granted until judgment in the action, a similar undertaking being given by the plaintiff. On the 18th of February, 1880, the Court of Appeal dissolved the injunction. On the 11th of November, 1880, the action was tried by Fry, J., and he granted a perpetual injunction. On the 21st of June, 1881, the Court of Appeal reversed his decision and dismissed the action. On the 17th of March, 1882, the defendant applied by motion to Bacon, V.C. (to whom the action had been transferred), for an inquiry as to the damages sustained by him by reason of the orders of November, 1879, and for payment to him by the plaintiff of the amount of damages when ascertained. Bacon, V.C., refused the motion, and his decision was affirmed by the Court of Appeal (JESSEL, M.R., and BRETT and COTTON, L.JJ.), who held that no damage for which the plaintiff was responsible had been proved. The court said that, as a general rule, an application to enforce such an undertaking ought to be made, either when the injunction is dissolved before the trial of the action, or when judgment is given in the action, though, under special circumstances, the application might be made later. JESSEL, M.R., expressed an opinion that

under such an undertaking damages could not be given for the error of the court of first instance in granting the injunction improperly. COTTON, L.J., however, said that, as at present advised, he could not concur in that view, and BRETT, L.J., declined to express any opinion on the point.-SOLICITORS, R. H. Ward; F. & T. Smith & Sons.

WILL-CONSTRUCTION-DEVISE ON CONDITION THAT DEVISEE SHOULD RELINQUISH DEBT DUE TO HIM BY TESTATOR-DEATH OF DEVISEE BEFORE TESTATOR.-On the 18th inst. the Court of Appeal affirmed the decision of Fry, J., in a case of Kirk v. Kirk (ante, p. 245). A testator devised land to his son R., in fee, on the express condition that he, his executors or administrators, should, within three months after the death of the testator, give up all claim to a sum of £3,400 which the testator owed him. And the testator devised some other real estate to trustees on trust for sale and to apply the proceeeds of sale, after payment of the deficiency (if any) of his residuary personal estate, to pay his debts (except a mortgage-debt and the debt due to R.), on trust for the testator's wife for her life, with remainder to some grandchildren of the testator. And he bequeathed the residue of his personal estate to the trustees on trust for conversion, and to apply the proceeds in payment of his debts (except the mortgage debt and the debt due to R.), and to retain the surplus for the benefit of two sons of the testator. But, ia case the residuary personal estate should be insufficient to pay his debts (except as aforesaid), he directed that the deficiency should be paid out of the proceeds of sale of the real estate which he had directed to be sold. R. died before the testator, leaving no issue. Fry, J., held that the testator's intention was that, in any event, his residuary personal estate should be increased by the £3,400, and that the land which he had devised to R. must, notwith standing the death of R., be charged with the payment of the £3,400. The Court of Appeal (JESSEL, M. R., and BRETT and COTTON, L.JJ.) took the same view of the construction.-SOLICITORS, W. R. A. Kime; G. A. Hall.

PRACTICE TRIAL-ORDER THAT WITNESSES IN WAITING SHOULD WITH. DRAW-RIGHT OF PARTY TO REMAIN.-In a case of Usher v. Henwood, before the Court of Appeal on the 19th inst., the application being for leave to adduce fresh evidence on the hearing of an appeal, it was mentioned in the course of the argument that at the trial of the action an order was made that the witnesses, other than the one under examination, should leave the court, and that the defendant, who was to be a witness on his own behalf, remained in court notwithstanding this order. JESSEL, M.R., said that the defendant ought to have withdrawn. Formerly it was supposed that when such an order was made a party to the action was entitled to remain, bat that had been altered, and the practice now was settled that the parties must withdraw like any other witness.-SOLICITORS, S. Roberts; R. Chapman.

APPEAL. In a case of The Ship Douglas, before the Court of Appeal on the 19th inst., an important question was raised as to the authority of a solici tor to compromise an action-viz., whether the client is bound, under the general authority of the solicitor, by a compromise for a consideration outside the action. In the present case the solicitor was acting for the client in two actions by different plaintiffs, and he gave an undertaking not to appeal from the judgment in one of the actions, the consideration for the undertaking being the promise of the solicitor for the plaintiff to supply him with some information as to evidence in relation to the other action. Notwithstanding the undertaking an appeal was brought in the first action, and the plaintiff applied to have the appeal dismissed, on the ground that it was brought in breach of the undertaking. The Court of Appeal (JESSEL, M.R., and BRETT and COTTON, L.JJ.) raised the question whether such an undertaking could bind the client without his express authority, and some difference of opinion between the members of the court was manifested, but, after a good deal of discussion, the case was adjourned to the Michaelmas Sittings, to enable the authorities to be fully investigated.-SOLICITORS, IV. Batham; W. A. Crump & Son.

SOLICITOR-AUTHORITY TOCOMPROMISE ACTION-UNDERTAKING NOT TO

COMPANY-WINDING UP-COSTS OF LIQUIDATOR-DISCRETION OF COURT -APPEAL BY LIQUIDATOR-APPLICATION FOR LEAVE OF JUDGE-COMPANIES ACT, 1862, s. 95.-In a case of In re The Silver Valley Mines Company, before the Court of Appeal on the 12th inst., a question arose as to the power of the judge who has the conduct of a winding up to disallow the liquidator's costs out of the assets of the company, and there was the further question whether it is proper that a liquidator should apply for the leave of the judge before appealing from any order made in the winding up. In July, 1881. several shareholders in this company applied to Bacon, V.C., to have their names removed from the register, on the ground that they had been induced to take sbares by fraud. On the 29th of July, 1881, the Vice-Chancellor made an order removing the names, and directing that the moneys which the applicants had paid on their shares should be repaid to them. This order was not drawn up until the 24th of August. Before the order was made a petition had been presented to wind up the company, but this fact was not known to the parties to the application. A winding-up order was made by Hall, V.C.. on the 26th of August. In the winding up the shareholders whose names had been removed claimed to prove as creditors for the sums which had been ordered to be repaid to them. The liquidator resisted the claim, but it was allowed by the chief clerk. The liquidator was advised that, under the circumstances, he was bound to contest the right of the shareholders in question to be treated as creditors, and that the whole matter ought to be argued in court. mons was then taken out on behalf of the liquidator, in the chambers of Hall, V.C., to reverse the decision of the chief clerk, Hall, V.C., adjourned th

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