hearing into court. The hearing took place before Kay, J., and he held that he had no jurisdiction to entertain the application, it being in effect an appeal from the decision of Bacon, V.C., and his lordship refused the application with costs, and declined to allow the liquidator his costs out of the company's estate. His lordship said that if a liquidator chose to institute proceedings which were entirely wrong, he did that at his own peril, and it would be quite wrong for the court, unless there were some extraordinary circumstances, to allow a liquidator the costs of an application which was entirely wrong from beginning to end. It was the bounden duty of a liquidator, before he instituted litigant proceedings, to take care that he had at least a reasonable chance of success. The liquidator then applied to Kay, J., in chambers, asking that he might be at liberty to appeal from his lordship's previous order, and also from the order of Bacon, V.C., of August, 1881; and that he might be at liberty to pay the costs of the summons on which the order of the 24th of June was made out of the company's assets, and that the liquidator might be allowed out of the assets his costs of that summons and order. Kay, J., refused this application, with costs, and said (as was stated in the Court of Appeal) that in all liquidations under his control he wished it to be distinctly understood that official liquidators must conduct litigation entirely at their own risk as to costs in the event of failure. The liquidator moved ex parte in the Court of Appeal (Jessel, M. R., and Brett and Cotton, L.JJ.) to vary the last order of Kay, J., so far as it refused to allow costs to the liquidator, and also for leave to appeal from the order of Bacon, V.C. It was urged that the liquidator was in the position of a trustee and was therefore entitled to his costs, unless he had been guilty of misconduct. JESSEL, M.R., said that he would give no opinion whether the order of Bacon, V.C., ought to have been made. He would only say that it was a serious question, and one fit to be argued. He thought, however, that Kay, J., was right in holding that, so long as that order stood, he had no jurisdiction to reject the claim of the shareholders to prove. But he refused the liquidator his costs of the application to reject that claim. The Master of the Rolls thought that the refusal was subject to an appeal. He thought that an official liquidator must be treated as a person who, as a general rule, was entitled to his costs properly incurred. But the question was whether the Court of Appeal ought to interfere with the exercise of the discretion of the judge. Kay, J., thought that the liquidator's application was a blunder. He said it was utterly improper and wrong, and, therefore, deprived the liquidator of costs. The Master of the Rolls thought that the judge had an undoubted discretion to deprive the liquidator of costs, even if he had only made a mistake; a fortiori if he had made a blunder, and still more if his conduct had been improper and wrong. It required a very strong case to deprive a gratuitous trustee of costs. He could only be made to pay costs on account of his misconduct. He might be deprived of costs for neglect, and, no doubt, the Court of Chancery did sometimes deprive a trustee of costs because he had committed an innocent mistake. But his lordship was by no means satisfied that a paid agent like an official liquidator stood in the same position as a gratuitous trustee. He thought the cases in which he ought to be deprived of costs on the ground of mistake were much more numerous. Like other paid agents he was liable for his mistakes. The question was whether there had been such a miscarriage in the decision of the judge that the Court of Appeal ought to interfere with the exercise of his discretion. His lordship thought that there had not. The next point was an entirely different one-the costs of the application for leave to appeal. As his lordship understood the practice, a liquidator might appeal without the leave of the judge; section 95 of the Companies Act did not apply to proceedings in the winding up. But, if he appealed without leave, he did so at his own risk as to costs. The general practice of the Court of Appeal was to leave a liquidator who was unsuccessful in an appeal to apply for his costs of it to the judge who had the conduct of the winding up. No doubt a liquidator did incur considerable risk of losing his costs of an appeal if he did not, before appealing, apply to the judge for leave to do so, though, of course, he might apply to the parties interested for an indemnity. Could the judge refuse such an application with costs? His lordship had no doubt that he could, though he must do so on good grounds. After such a strong expression of opinion by the judge as to the conduct of the liquidator, of course it would be absurd to apply to him for leave to appeal. But the application was also for leave to appeal from the order of Bacon, V.C. There was a serious question as to the correctness of that order. But the application was made after the lapse of so long a time that his lordship was not prepared to differ from the view of Kay, J. The liquidator could still appeal if he could get the parties interested to indemnify him. Bat ought Kay, J., to have made the liquidator pay the costs of the application for leave to appeal ? His lordship differed from his view. The liquidator had done nothing wrong. He was not a party to the order of Bacon, V.C., and his lordship thought that he ought not to have been deprived of his costs. The rule ought not to have been laid down so rigidly that a liquidator must always appeal at his own risk as to costs. There were cases in which leave to appeal ought to be given. His lordship's practice when he was at the Rolls Court was always to give a liquidator leave to appeal when he thought it was an important case and that the decision of the Court of Appeal was necessary as a guide to the judge in the liquidation. In another class of cases, in which, before the Judicature Act, when the Court of Appeal in Chancery had an original jurisdiction, the opinion of the Court of Appeal could be obtained without a formal appeal, his lordship always, after the Judicature Act, when the Court of Appeal had only an appellate jurisdic. tion, directed the liquidator to appeal when he desired to have the opinion of the Court of Appeal for his guidance. In other cases, when he thought the case a clear one, if he gave leave to appeal he expressly stated that the liquidator was not to be entitled to his costs as a matter of course. His reason for doing so was this, that, if the judge once gave simple leave to appeal, he lost all control over the costs, whereas if he reserved the question of costs he retained his control over them, Applying

this rule, his lordship thought that, though the application for leave to appeal from the order of Bacon, V.C., was not granted, the costs of it ought to be provided for out of the company's assets. BRETT, L.J., said that if a liquidator had been advised to do something which was clearly a gross blunder, the judge was not obliged to allow him his costs out of the assets, and thus make other people pay for the gross blunder of the liquidator's solicitor. In such a case the liquidator had a remedy against his solicitor. His lordship doubted whether Kay, J., really intended to lay down as a general rule that a liquidator must conduct litigation in all cases at his own risk as to costs if it failed. The result would be that in every proceeding in which a liquidator failed, however reasonable his application might have been, he must pay the costs personally. Such a rule would be a great deal too rigid. COTTON, L.J., said that in his opinion a liquidator was as a rule entitled to his costs, but that he was not a trustee. He was an agent appointed by the court, and to some extent he had the rights and was subject to the liabilities of a trustee. But he was not simply a trustee. Being appointed as an agent, he was bound to have reasonable skill and knowledge, and his costs were liable to be cut down, not only, as in the case of an ordinary trustee, for his misconduct, but for want of reasonable skill and knowledge. His lordship thought that Kay, J., had laid down an erroneous rule as to appeals by a liquidator. He thought that as a rule, under section 95, a liquidator was not wrong in going to the judge for directions whether he should appeal. His lordship did not wish to encourage litigation by liquidators, and if the judge saw that the application was frivolous he would be quite right in refusiug leave to appeal, and in refusing to allow the liquidator costs. But it was reasonable that a liquidator should be entitled to apply to the court for directions whether he should appeal or not. No doubt, if leave to appeal was given, the judge to a certain extent lost his control over the costs. But all his control was not lost, for the costs were subject to taxation. The judge however, ought to be cautious not to encourage unnecessary costs.-SOLICITORS, Beall & Co.; Snell & Greenip.

EXECUTED TRUST - VOLUNTEER - POWER OF SETTLOR TO REVOKEMARRIAGE SETTLEMENT OF WIFE'S PROPERTY-TRUST FOR WIFE'S NEXT OF KIN-FAILURE OF POSSIBILITY OF ISSUE.-On the 15th inst. the Court of Appeal affirmed the decision of Fry, J., in Paul v. Paul (L. R. 19 Ch. D. 47), upon which we commented ante, p. 18, thus in effect overruling the prior decision of Malins, V.C. in Paul v. Paul (29 W. R. 281, L. R. 15 Ch. D. 580). By a marriage settlement property of the wife was settled on the husband for life, then upon the wife for life, with remainder to the children of the marriage. In default of children the capital was to go to the wife absolutely, if she survived her husband, but, if she pre-deceased him, she had a general power of appointment by will, and in default of appointment the capital was to go to her next of kin, excluding the husband. The husband and wife afterwards separated by mutual consent, and a separation deed was executed which provided that, during the husband's life, half of the income should be paid to the wife for her separate use. The action was brought by the wife, against the husband and the trustees, for the administration of the trusts of the settlement and the separation deed. There had been no children of the marriage, and the wife was past the age of child-bearing. On the motion of the plaintiff, with the consent of the husband, Malins, V.C., ordered that part of the capital should be applied in payment of debts incurred by the wife. Malins, V.C., made this order on the ground that the wife's next of kin were mere volunteers, and not within the marriage consideration. Afterwards a petition was presented by the wife, with the husband's consent, asking that the remainder of the trust fund, which was in court, might be divided in certain proportions between herself and her husband. The petition came on for hearing before Fry, J., and he, after taking time to consider, declined to follow the decision of his predecessor, and refused to accede to the application (except by giving the trustees their costs out of the fund), on the ground that the law is clear that a settlor cannot revoke an executed trust, even though it be in favour of a volunteer. The Court of Appeal (JESSEL, M.R., and BRETT and COTTON, L.JJ.), affirmed the decision on the same ground, observing that, the trust being completely executed, it would be a breach of trust for the trustees to pay the fund in the way proposed, and that the court would not sanction a breach of trust.-SOLICITORS, Meynell & Pemberton; Godden S. Hare; Munns & Longden.

PRACTICE-INTERROGATORIES-LIMITED COMPANY-MEMBER OR OFFICER OF COMPANY-ADVERSE INTEREST-RULES OF COURT, 1875, ORD. 31, R. 4.In the case of The Manchester Val de Travers Paving Company ▼. Slagg and The Val de Travers Asphalte Paving Company, a motion was made by the plaintiff company that an order made in chambers directing the secretary of the defendant company to answer interrogatories might be discharged, and that in lieu thereof, one Marriott, who was a director of the defendant company, or some other officer of the company, or other person who had cognizance of the business matters of the company, might be ordered to answer the interrogatories. It appeared that the plaintiff company in their action claimed to recover from Slagg, and especially the defendant company, a sum of £50,000, and that there was another action by one McClure against Marriott and two others, claiming £400 interest and costs, and that both actions covered the same transactions. Marriott was a holder of fifteen shares in the defendant company, and also held in the plaintiff company three hundred shares of an equivalent value. CHITTY, J., said that the proper officer of the company to give the informa tion was the secretary of the company, but there was no doubt but that a director could be called on to give it. Marriott, however, although a director of the defendant company, was shown to have an interest clearly adverse to a result in its favour of the action. It was also said that if the company should succeed in the present action, the result would be that Marriott would be relieved from his liability to McClure. The object of the application seemed

to be, not for the purpose of obtaining discovery, but of obtaining information which would bind the defendant company. The defendant company had also offered to name other persons equally cognizant of the company's affairs as proper persons to answer the interrogatories, but this offer had been declined. Under the circumstances his lordship was of opinion that the application was within the principle of the decision of the Master of the Rolls in Berkeley v. Standard Discount Company (28 W. R. 125, L. R. 13 Ch. D. 97), and that Marriott was not a proper person to give the information, and the order in chambers being right the motion would be dismissed, with costs.-SOLICITORS, Bolton, Robbins, & Busk; Drake, Son, & Parton.

PARLIAMENTARY ELECTION-EXPENSES AGENT-EXPENDITURE BY LOCAL SUB-AGENT-SOLICITOR-COSTS-CORRUPT PRACTICES PREVENTION ACT, 1863, s. 2.-In a case of In re Parker, before the Court of Appeal on the 14th inst., a question arose as to the right of a local sub-agent employed in a parliamentary election to recover from the candidate money disbursed on his behalf. Section 2 of the Corrupt Practices Prevention Act, 1863 (26 Vict. c. 29), enacts that:-"No payment (except in respect of the personal expenses of a candidate) and no advance, loan, or deposit shall be made by, or on behalf of, any candidate at an election, before, or during, or after such election, on account of or in respect of such election, otherwise than through an agent or agents whose name and address, or names and addresses, have been declared to the returning officer on or before the day of nomination, or through an agent or agents to be appointed in his or their place as herein provided; and any person making any such payment, advance, loan, or deposit, otherwise than through such agent or agents, shall be guilty of a misdemeanor, or, in Scotland, of an offence punishable with fine and imprisonment." At the general election of 1880, Colonel Surtees, who was a candidate for South Durham, appointed as his central agent Mr. W. Watson. Messrs. Trotter, Bruce, & Trotter were employed by Watson as sub-agents for certain districts, and Mr. Parker, a solicitor, was retained by them to take charge of and other wise concern himself with the voters in some of the sub-districts. In this capacity, Parker employed several persons as runners and canvassing agents, whom he paid for their services. An account of his charges and disbursements having been sent in to Colonel Surtees' expenses agent, who disallowed certain of the items and sent him a cheque for the balance, Parker returned the cheque and brought an action in the district registry to recover the whole amount claimed by him. An order to refer the account to taxation under the common order to tax was obtained by Colonel Surtees, and an order was thereupon made by the district registrar to stay proceedings in the action pending the taxation. The taxing master allowed the items which had been disallowed by the expenses agent, and an application was made to Chitty, J., on behalf of Colonel Surtees, for a review of the taxation in this respect. Chitty, J., held that, having regard to section 2 of the Act, Parker had no authority to make these payments except through the expenses agent, and that in the face of that section such an authority could not be implied, or assumed to have been given by Colonel Surtees. The Court of Appeal (JESSEL, M.R., and BRETT and COTTON, L.JJ.) affirmed the decision. JESSEL, M.R., said that it was admitted that Parker had no express authority from Surtees to make these payments. But then it was said that, as agent, he had the ordinary authority of an agent, and, therefore, an implied authority to pledge his employer's credit by making these payments. The answer to that was, that, in the absence of the Act of 1863, such an authority might be implied, but the Act was clear and express, that no payments could be made on behalf of a candidate otherwise than through his expenses agent. Parker was not Colonel Surtees' expenses agent, and, therefore, these payments by Parker out of his own moneys on behalf of Colonel Surtees were illegal, and no authority to make them could be implied. If they were not made on behalf of Colcnel Surtees, then Colonel Surtees was not liable, and in any case an authority to do that which was an illegal act could not be implied. It was said that if no moneys for legitimate and necessary expenses could be disbursed by a sub-agent, it would be impossible to conduct an election. But, however inconvenient the result might be, it was not for the court to say that the Act did not mean what it clearly and distinctly said. It was said that the result of a literal construction was so absurd that this could not have been the intention of the Legislature, but the court was not told how it could read the section in any other way. The only remaining point was remarkable for its ingenuity. It was said that these payments were made by Parker on his own behalf, and that after the payments had been made, then for the first time Parker had the right to recover the amount from Colonel Surtees on the principle of fair remuneration for the performance of his duties as agent. There might, no doubt, be such a bargain by express contract, but that was a special agreement which must be made out by expressed terms and could not be implied from the mere fact of the existence of an agency. BRETT, L.J., said that the real question was whether Parker had authority from Colonel Surtees to pay these canvassers and runners. It was not contested that he had no express authority, and the question was whether he had an implied authority to do so. The Act was express upon the point, and made it a misdemeanor for any person to make any payment on behalf of any candidate on account of, or in respect of, the election otherwise than through the expenses agent. Was, then, the court entitled to assume that Colonel Surtees employed Parker to do that which was directly contrary to the Act, and would expose Parker to the penalties of a misdemeanor ? No such assumption could be made, and it must be held that Parker had no authority, express or implied, to make these payments on behalf of Colonel Surtees, and that they ought not to be allowed in taxation. COTTON, L.J., gaid that if a thing was ordinarily done by an agent, but was prohibited by statute in the case of election agents, then the mere appointment of a man to be an election agent did not give him implied authority to do that which the Act said should not be done if done on behalf of the candidate. In his lordship's opinion any payment made on behalf of a candidate was a payment

on his behalf within section 2 of the Act.-SOLICITORS, Crowdy, Son, & Tarry; Hatton & Westcott.

BANKRUPTCY PETITION-ACT OF BANKRUPTCY-" TRADER"-ONUS OF PROOF-DISCONTINUANCE OF TRADE-INTENTION-BANKRUPTCY ACT, 1869, 13th inst., the question arose whether, when a bankruptcy petition alleges ss. 6, 8.-In a case of Ex parte Salaman, before the Court of Appeal on the the commission of an act of bankruptcy which can be committed only by a trader, the onus of proving that the debtor was a trader at the time when the Act in question was committed lies on the petitioning creditor. It was urged that, if the debtor had once been a trader, the onus was on him to show that he had ceased to be a trader. The court (JESSEL, M.R., and BRETT and COTTON, L.JJ.) held that the onus was on the petitioner. Another question was whether, when a debtor, who has carried on trade, is not actually carrying it on at the time when the act is committed, he can, under the present law, be said to be a trader. The court held that it is a question of intention, to be decided on the evidence, whether the debtor has discontinued his trade permanently, or whether he has only temporarily ceased to carry it on with the intention of resuming it. In the latter case he is still a trader within the meaning of the Bankruptcy Act, 1869. JESSEL, M.R., said that the law on this point is still as it was laid down by Lord Eldon in Ex parte Paterson (! Ro. 402), and Ex parte Cundy (2 Ro. 357). In Ex parte Paterson Lord Eldon said (1 Ro. 405), "That the bankrupt has ceased to be a trader does not depend on the fact whether or not you can find any specific acts of trading; but whether or not, in point of intention, he had ceased to be a trader. It is a question for a jury, whether there was an entire cessation of trading, or merely an interruption, with an intention of resuming it when an opportunity should offer."-SOLICITORS, Joel Emanuel, & Co.; Tippetts & Son.

WILL-CONSTRUCTION-CLASS OF Children-Portions-VESTING-SUR VIVORSHIP.-In a case of Notlage v. Buxton, before Kay, J., on the 17th inst., a question arose as to the term of vesting of portions given to a class of children by will. A testatrix gave real estate to trustees on trust that the rents thereof should be divided equally among her three daughters, as tenants in common, for respectively their own sole and separate use. And at the decease of either of her daughters the testatrix directed her trustees to apply the deceased's portion or share of the rents to the education and support of the child or children of the deceased parent who might be living at their mother's death, until they became twenty-one, "then they will be entitled to their mother's portion; and if the children or child die (if but one) before they become of that age, then I bequeath their mother's portion of the rents to my other daughters." One of the daughters had only one child, a son, who at tained twenty-one, but died before his mother. The question arose whether his mother's share of the real estate vested in him at twenty-one so that it passed to his heir-at-law. KAY, J., held that the son took a vested interest at twenty-one. He held, following Jackson v. Dover (12 W. R. 855, 2 H. & M. 209), that the rule laid down with relation to settlements in Swallow v. Binns (1 K. & J. 417) and similar cases, that the court will lean to a construction which gives the portions to all of a class of children who may live to require them, is not confined to settlements, but extends also to wills.-SOLICITORS, Bower, Cotton, & Bower.

SOLICITORS' CASES.

HIGH COURT OF JUSTICE.-QUEEN'S BENCH DIVISION. (Before FIELD and STEPHEN, JJ.)

July 6.-In re a Solicitor.

In this case a rule had been granted calling on a solicitor, of Sheffield, to handed over moneys due to a lady, towards whom he acted in the capacity of answer matters in affidavits which, in effect, charged him with not having

trustee.

Wilberforce showed cause against the rule, which was supported by StuartWortley.

FIELD, J.,in giving his judgment, said :- This is one of the most painful duties we have to discharge, and we should be glad enough if we could avoid it; yet we cannot but feel that the power is put into our hands of protecting the members of an honourable profession from being discredited by the conduct of men like this solicitor. It is clear that, he being a solicitor, his position recommended him to the office of trustee, and so he was intrusted with it by the parties, and in that character he had to receive the rents to which the family were entitled. It has been urged on his behalf that his misconduct was not as solicitor but only as trustee, but we cannot proceed on any such distinction. We have to deal with his character as a solicitor, one of the parts of whose duties is that of honesty ; and whether he has violated that duty as trustee or as solicitor, criminally or morally, can make, in that view, no difference. He was trustee for this family, and as such trustee he received this sum of £240, which belonged to them, and which had been received by him for them, they placing confidence in him and relying on his honesty. But he, instead of paying the money to them, kept it in his own hands and applied it to his own use. It has been urged by his counsel that there had been no application to him for payment (prior to this application) and that some rule should be laid down as to that. But it is to be hoped that no other members of the profession would require a rule to be laid down as to the duty of sny man who receives money for others to pay it over to them. It was not necessary to lay down any such rule, for honesty is to be observed by everyone. Then it was urged that there had since been restitution of the money, but that was under pressure of these proceedings. There were cases of this class in which the court considered that the solicitor ought not to remain any longer on the roll, which ought to be stainless and free from the reproach and discredit

of criminality or misconduct. But that is an extreme punishment, and there are circumstances which enable the court to abstain from inflicting it. But the offence is very serious, and under the circumstances the solicitor must be suspended for a considerable period-five years—and pay all the costs of these proceedings. STEPHEN, J., concurred. He entirely agreed, he said, in every word which had fallen from his learned brother, and thought that a sentence of suspension for five years was the least that could meet the justice of the case. No doubt there were some circumstances which enabled the court to stop short of the extreme sentence of striking the solicitor off the rolls. There had been restitution, though under pressure, and there had apparently been a hope that restitution would be made. But it could not be too impressively or emphatically stated that the honour of a solicitor (especially as to the payment of money intrusted to him) is what courage is to a soldier or what chastity is to a woman, and that if a solicitor acts dishonestly towards those who trust him, he must expect when he comes before this court to meet with severe censure and severe punishment. In this case there had been dishonesty, and I can see nothing, said the learned judge, to distinguish it from cases which come before us from day to day in the criminal courts. I can call to mind cases of poor criminals who have not had the advantage of education and the credit of belonging to a honourable profession-of men who have said they stole to satisfy their necessities or that they had embezzled the money of their employers in the hope of being able to pay it back, and these cases differ from the present in nothing, except in this, that here the delinquent was a solicitor, which ought to have made him more strictly honest, and that he became trustee, thus adding to the obligations of common honesty the special obligations imposed upon a trustee. It cannot be too clearly understood what is the duty of a trustee who comes into possession of trust money-which is, to keep the fund safely for the shortest possible time and to pay it over intact on the very first opportunity to the persons who are entitled to it. And a man who uses trust money which comes into his possession for purposes of his own, even in the hope of paying it back again, stands morally (and I am not sure he does not legally) very much in the position of the man who embezzles money in the hope of being able to repay it. It was urged that the rule had not been yet laid down, but it is comprehended, according to common sense, in a rule laid down a very long time ago-"Thou shalt not steal."-Times.

July 6.-In re A Solicitor.

In this case the solicitor had failed to pay a sum of about £60, part of a sum of £350 he had received for his client, but the balance had been paid, and there

were circumstances which tended to excuse him.

Edward Pollock appeared on his behalf and earnestly urged these topics in mitigation.

Stuart-Wortley appeared for the parties complaining.

FIELD, J., said, upon the whole, the court would abstain from punishment, but the solicitor must pay the costs.

STEPHEN, J., observed that he had had the benefit of a doubt.-Times,

July 6.-In re Francis Hewitt.

Keith Frith showed cause against a rule for an attachment which had been granted against Dr. Francis Hewitt, at the instance of the Law Society, for having personated Mr. James Grayston, a solicitor, by issuing a writ in the action of Roberts v. Smith. The learned counsel said that Dr. Hewitt was an intimate friend of Mr. Grayston, and when the latter had to leave his offices in Bow-street, allowed him to make use of his premises at 101, Drury-lane, where he carried on his practice as surgeon to the St. John's Medical Aid Society and saw patients. Mr. Grayston had his name as solicitor on a plate on the door, and asked Dr. Hewitt to see persons for him in his absence, so that he might not lose their cases. On the occasion complained of Dr. 'Hewitt had signed a writ as Grayston & Co., which was taken out by Roberts, the plaintiff in an action, but he had done this without any payment or reward, and it was his only offence. The learned counsel moved on the affidavits of Dr. Hewitt, Mr. Grayston, and another independent person, stated to be a chemist.

Murray appeared for the Incorporated Law Society, but was not called on. FIELD, J., in giving judgment, said that this case had been most properly taken up by the Law Society. It was quite clear that when Mr. Grayston, for causes not referred to, had to leave his premises in Bow-street, he put up his name on premises where bis friend, Hewitt, was constantly in contact with poor persons who had suffered injuries from railways and other causes, and thus an easy mode for conducting such cases was afforded to Grayston, whose name was merely put up as a blind. The court felt it their duty to make absolute the rule for an attachment, and then Hewitt could come before a judge and purge himself of contempt, for contempt it was. STEPHEN, J., concurred, observing that Hewitt was in contempt, and of that he would have to purge himself and pay the costs. Rule absolute for an attachment.-Morning Post.

COUNTY COURTS.

SALISBURY.

(Before Mr. SERJEANT TINDAL ATKINSON, Judge.) July 3.-Ex parte The Red Lion Hotel Company (Limited), In re Edmonds and another, Trustees.

Application by purchasers of debtor's estate in liquidation to tax trustees'

costs after release-Jurisdiction of court to order.

His HONOUR, who had reserved judgment in this case, said :-This is a motion made on behalf of the Red Lion Hotel Company (Limited), asking the court

to declare that certain resolutions of the 20th of October, 1880, in which the creditors audited and passed the trustees' accounts and charges, are not binding on the company, and that the accounts, charges, and disbursements, so passed, be re-opened and inquired into by the court, in order to their being referred to the proper officer for taxation. On the hearing of the motion on the 5th of June, Mr. Sidney Woolf, of counsel for the trustees, objected that the court trustees, having had their accounts audited and passed by the committee of had no jurisdiction to entertain the application, on the ground that the inspection, the proceedings in the liquidation being closed, and the trustees released, the court had no power to order such an inquiry, and the remedy, if the company had any, must be sought elsewhere. The facts not in dispute, sufficient to raise the question to be decided between the parties, are, that the debtor, William Henry Matthews, had for some time up to the 22nd of July, 1880, carried on at Salisbury the business of an hotel proprietor. His affairs having become embarrassed, he, on that date, filed a petition in this court for liquidation by arrangement. The usual steps were taken, the creditors met and passed resolutions, and appointed a committee of inspection and two trustees. On the 13th of September following the whole of the debtor's interest in the Red Lion Inn was purchased from the trustees by Mr. Edward Waters for several persons who subsequently became incorporated under the title of be for an amouat sufficient to pay the creditors a sum of 3s. in the pound, and the Red Lion Hotel Company (Limited). The parchase-money was agreed to also all wages, taxes, interests on mortgages, and the costs of the liquidation, including solicitors and trustees. Payments were from time to time made by the purchasers, amounting in the whole to £1,516, and the company were placed in possession of the property. On the 20th of October, 1880, the trustees presented the accounts of their charges and disbursements in the liquidation to the committee of inspection, who passed them without reduction or having them taxed, declaring at the same time a dividend of 38. in the pound, which dividend the creditors have received, and the trustees' costs so submitted and passed have been defrayed out of the moneys advanced by the company. The proceedings in the liquidation were closed on the 30th of October, and on the 30th of the following November the trustees were duly released. Upon these facts the question to be determined is, has the court jurisdiction, the proceedings being closed, and the trustees released, to re-open these accounts and send them to the taxing officer in order to be taxed, and also in the event of any overcharge being found, order such overcharge to be refunded by the trustees? Mr. Powning, the solicitor for the company, in support of the motion, relied upon the extensive powers given to the court for this purpose by the 72nd section of the Bankruptcy Act, 1869, under which every bankruptcy court has full power to decide all questions, whether of law or of fact, arising in any case of bankruptcy coming within its cognizance, or which it may deem expedient or necessary to decide for the purpose of doing complete justice, and he urged that unless jurisdiction was exercised in this case his clients would be without remedy. In support of this view he relied upon Ex parte Ranby, In re Ranby (14 Ch. D. 467); in that case, during the proceedings in liquidation, an offer was made by the debtor to pay a composition, he paying also the costs, charges, and expenses of the solicitors, receiver, and trustee in relation to his affairs, and of the scheme of arrangement to be approved of by the court. The Court of Appeal held that after the confirma. tion of the scheme the court had jurisdiction to tax the trustees' costs and charges, notwithstanding his account had been audited and passed by the by the court, on the ground that after the composition had been accepted committee of inspection, after the confirmation of the composition arrangement under the provisions of the 28th section of the Bankruptcy Act and approved by the court, the committee of inspection had no power to interfere. In notwithstanding the release of the trustee, that, when after the release has been Ex parte Cockrill, In re Prager (3 Ch. D. 115), it was held that, granted, there remains a duty to be performed by the trustee, the release does not discharge him, and that the court has jurisdiction to call upon him to perform such duty, the trustee in that case having undistributed money of the motion was to set aside a bill of sale given by the debtor to secure the costs of estate in his hands. In Ex parte Lyons, In re Lyons (L. R. 7 Ch. 494), the the receiver, the late Lord Justice James in his judgment saying, "I should be sorry to limit the jurisdiction of the court as to anything relating to the distribution of the estate or otherwise arising in, or really connected with, or incident to, bankruptcy proceedings; and I do not say that the court ought to have jurisdiction to tax the costs if the receiver were holding the property until they were paid," and so in the case before me, if the trustees had refused to convey unless the Red Lion Company paid their untaxed costs, the court, on the principle of the cases cited, would have sent the accounts to the taxing officer. The case of Ex parte Carter, In re Ware (8 Ch. D. 731), approaches very closely to the present one in its facts. There the debtor filed a petition in liquidation, and the creditors resolved that the trustee should sell the estate for a sum sufficient to pay a dividend of 4s. in the pound, together with the costs of the liquidation, and that the release of the trustee should take place on the 28th of January, 1878. The debtor was tenant of some business premises for a term which expired on the 25th of December following. The trustee took possession of the premises and remained in possession until the expiration of the term, but did not pay the landlord the rent due on the 25th of December. On the 26th of February, after the release of the trustee had been granted, the landlord applied to the Court of Bankruptcy for an order directing the trustee to pay to him the quarter's rent. It was there held that either the landlord's remedy was a personal one against the trustee, in which case the Court of Bankruptcy had no jurisdiction in the matter, or if there were a remedy in the Court of Bankruptcy, then that the trustee had done nothing more than commit a default in the administration of the assets from a liability for which he was protected by his release, the Court of Appeal deciding that, in the absence of fraud, the 53rd section of the Bankruptcy Act, 1869, applied to a release given by the creditors to a trustee in proceedings in liquidation by arrangement, and that such release discharges him from all liability in respect of any act done or default made by him in the administration of the affairs of the debtor, or otherwise in relation to his conduct as

trustee of such debtor. Here it is not alleged or contended that there has been any fraud on the part of the trustees, or any undue means used to procore the passing of their accounts at the hands of the committee of inspection. The utmost, as it appears to me, that can be said is, that, seeing they were dealing with the money of others, the committee of inspection should have been just before they were generous, and have dealt with these accounts, in the manner they probably would have done, had the creditors had an interest in their being taxed. But be this as it may, after the best consideration I have been able to give to the facts of this case, the arguments, and the authorities cited, I can see no duty which the trustees owe to the "Red Lion Company," for the non-performance of which their release is not an answer, and the motion must, therefore, be dismissed. The question of costs to be adjourned until Thursday, when, if the registrar is informed that the case goes no further, each party pay their own costs; if otherwise, the trustees to have their costs.

Powning, for the applicants.

Sidney Woolf, barrister, for the trustees.

CHRISTCHURCH.

(Before Mr. SERJEANT TINDAL ATKINSON, Judge.)
June 21.-Hassan v. Lacey.

Set-off-Absence of mutuality-Parties contracting-Mistake. In this case his HONOUR delivered judgment as follows:-The fact in this action have, by the consent of the parties, been turned into a specia case— namely, that one C. H. Sheppard, who carried on the business of a cabinetmaker, in Bournemouth, died in the early part of January, 1877, leaving, by will, to his widow, his stock and trade debts. She carried on the business for some time, but, ultimately, in June, 1878, she sold to the present plaintiff the remainder of the stock she had on hand, for which he paid her £400, partly in money and the balance by cheques of various amounts, given at various times, under her direction, to different creditors of her late husband. In September, 1878, a marriage took place between the plaintiff and Mrs. Sheppard; but, beyond this being advertised in the local papers, no special notice was given to the creditors, who remained unpaid till the business had changed hands. In October, 1878, the defendant, Mr. C. J. Lacey (the surviving partner of the firm of Lacey & Son, solicitors), had an undischarged partnership claim against the estate of Sheppard, and went to the place of business of the plaintiff and purchased the goods, the subject of the present action. The plaintiff was then in possession, carrying on the business on his own account. The goods so purchased had never formed any part of the testator's stock, but had, in fact, been bought by the plaintiff from manufacturers and various other persons. Sheppard's name remained still painted over the door. The defendant, when he gave the order for the goods, had no personal knowledge of the plaintiff, nor was be aware that the marriage had taken place, or that any change had occurred in the parties carrying on the business. His intention was, in making the purchase, to set-off the debt due to him from Sheppard's estate against the amount of the goods. There being a mistake on both sides as to the parties really contracting, the question is raised whether the plaintiff can claim the amount of the goods sued for as against the defendant, and, if so, can the defendant in law support his claim of set-off, and I am of opinion that, upon the authorities, a set-off under the above facts cannot be pleaded. Even had Mrs. Sheppard sued as executrix for a debt due to the estate of the testator, a plea of set-off would not be available to the defendant. It was held in Shipman v. Thompson (Willes Reports, 103) that in an action by an executor in his own name to recover money due to the testator in his lifetime, and received by the defendant after his death, the defendant cannot set off a debt due to him by the testator; and the same rule holds when the plaintiff declares as executor for a debt due after the death of the testator: Schofield v. Corbett (11 Q. B. 779), Rees. Watts (in error, 11 Ex. 410); and, what is strongly in point, where a creditor had purchased part of an intestate's goods from the administrator, the creditor could not set off the price against the debt due to him from the intestate at his decease: Lumbarde v. Holder (17 Beav. 369); the ratio decidendi in all the cases being the absence of mutuality, which the Statute of Set-off declares to be essential. The remaining question to be answered is-do the facts of the case before me raise an implied promise on the part of the defendant to pay the plaintiff for the goods supplied? It is settled law that where a purchaser buys from one whom he supposes to be his debtor, and against whom he would have the right to set off the price, a mistake as to the person dealt with prevents the contract from coming into existence for want of assent. The authority for this is found in the case of Boulton v. Jones (2 H. & N. 564). There the plaintiff had bought the stock-in-trade and business of one Brocklehurst; the defendant, ignorant of the fact, sent to the plaintiff a written order for goods, addressed to Brocklehurst, on the very day of the transfer to the plaintiff. The goods were consumed by the defendant, he not knowing that they were supplied by the defendant instead of Brocklehurst. When payment of the price was afterwards demanded the defendant refused to pay, on the ground that he had a set-off against Brocklehurst, and had not contracted with the plaintiff. The court was unanimously of opinion that the action was not maintainable, Pollock, C.B., observing that the rule of law is clear that, if you propose a contract with A., then B. cannot substitute himself for A. without your consent and to your disadvantage, securing to himself all the advantage. In commenting upon this case, the learned author of Benjamin on Sales observes : "It can hardly be doubted that, if the goods had not been consumed before the discovery of the mistake, the defendant would have been bound upon demand, if he did not choose to pay for them, to return them. The basis of the decision was that there had been no contract between the parties, and if so, on no conceivable ground could the defendant have kept, without payment, another man's goods seat to his house v mistake." Applying this test here, when the plaintiff sent to the defendant

the debit note for the goods in November, 1880, the goods -the subject of the present action-being furniture, were still in existence, and, therefore, there was a possibility of avoiding the contract on the ground of mutual mistake. This was not done; and I am of opinion that, by the retention and use of the furniture from that time, a right of action on an implied assumpsit has arisen, and the plaintiff is entitled to recover from the defendant the amount sued for, leaving the defendant in the position of recovering from Sheppard's estate the debt due from it. Looking at the peculiar character of the facts in this case-namely, that the purchase was made under a mistake, that the defendant thought he was dealing with the executor of Sheppard, that there was an absence of publicity of the change in the business, and that the goods would not have been purchased had the real facts been known-I do not think that this is a case in which I should give the costs against the defendant. Solicitor for the plaintiff, Druitt. Solicitor for the defendant, Lacey.

OBITUARY.

MR. HENRY CROFT CHAMBERS.

Mr. Henry Croft Chambers, solicitor, of Lincoln and Market Rasen, died suddenly at Sutton, Lincolnshire, on the 10th inst., aged forty. Mr. Chambers was the eldest son of Mr. Henry Thomas Chambers, of West Kensington-gardens, and was born in 1842, He was admitted a solicitor in 1866, and bad for several years resided and practised at Market Rasen, having also an office at Lincoln. He took an active part in all local business, and he had been for several years a member of the Market Rasen Local Board. Mr. Chambers was also a leading member of the local Masonic body. He was highly esteemed by all classes at Market Rasen, and his premature death (which appears to have been the result of a blow from a cricket ball a few years ago) has occasioned a feeling of general sorrow.

LEGAL APPOINTMENTS.

Mr. WALTER JAMES WESTCOTT BEARD, solicitor (of the firm of Beard & administer Oaths in the Supreme Court of Judicature. Sons), of 10, Basinghall-street, has been appointed a Commissioner to

wich, has been elected President of the Kent Law Society for the ensuing Mr. WILLIAM BRISTOW, solicitor, of 13, John-street, Adelphi, and Green. year. Mr. Bristow was admitted a solicitor in 1855. He is solicitor to the wich Parish, and clerk to the Commissioners of Land and Assessed Taxes for Greenwich Hospital Department of the Admiralty, vestry clerk of Green

Blackheath.

Mr. BENJAMIN THOMAS WILLIAMS, Q.C., judge of county courts, has been appointed a Magistrate for Glamorganshire.

Mr. JAMES RAPER, solicitor, of Pontefract and Methley, has been elected Coroner for the Borough of Pontefract, in succession to his partner, the late Mr. John Foster. Mr. Raper was admitted a solicitor in 1879.

MR. HORATIO BREVITT, solicitor, of Wolverhampton, has been elected Town Clerk of that borough, in succession to Mr. Henry Underhill, deceased. Mr. Brevitt is clerk to the county magistrates at Wolverhampton, and deputy-coroner for the Wolverhampton Division of Staffordshire. He was admitted a solicitor in 1870.

Mr. GEORGE MACKENZIE MACKAY, solicitor, of Shepton Mallet, has been appointed Chief Conservative Registration Agent for Mid-Somersetshire. Mr. Mackay was admitted a solicitor in 1850. Mr. WILLIAM THOMAS HINDMARSH, solicitor, of Alnwick, has been appointed Clerk to the Councillors of that borough. Mr. Hindmarsh was admitted a solicitor in 1870.

Mr. JOHN ARTHUR GODLEY, barrister, has been appointed a Commissioner of Inland Revenue. Mr. Godley was formerly scholar of Balliol College, Oxford, where he graduated first class in classics in 1870. He obtained the Chancellor's Prize for Latin verse in 1867, the Hertford Sobolarship in 1868, the Gaisford Prize for Greek verse in 1869, the Ireland Scholarship and the Gaisford Prize for Greek prose in 1870, and the Eldon Law Scholarship in 1874, and he was afterwards elected a fellow of Hertford College. Mr. Godley was called to the bar at Lincoln's-inn in January, 1876, and he has been for several years private secretary to Mr. Glad

stone.

appointed a Commissioner for taking Affidavits and Acknowledgments of Mr. ALFRED BENJAMIN CARPENTER, of Devereux-court, Temple, has been Married Women for the Colony of Western Australia.

DISSOLUTIONS OF PARTNERSHIPS. EDWARD BANNISTER, FRANCIS BANNISTER, and CHARLES JAMES FACHE (E. and F. Bannister & Fache), solicitors, 13, John-street, Bedford-row, so so far as regards the said Charles James Fache. June 30.

JOHN TURNER BILLING and ALDWYN PELHAM KENT, solicitors, 3, Church. court, Old Jewry, London. July 11.

FREDERIC THOMAS HALL and HENRY Fox, solicitors, 15, Gray's-inn-square, Middlesex. June 30.

JOSEPH PRIOR, EDWARD FRANCIS BIGG, EDMUND FRANCIS BLAKE CHURCH, and FRANCIS CADWALLADER ADAMS (Prior, Bigg, Church, & Adams), solici tors, 61, Lincoln's-inn-fields, as regards the said Edward Francis Bigg. April 1, [Gazette, July 14.]