CORRESPONDENCE.

COMMISSIONERS TO ADMINISTER OATHS,

[To the Editor of the Solicitors' Journal.] Sir,-As an old master extraordinary in chancery, and commissioner for taking affidavits in the Court of Queen's Bench, &c., I am appointed for 66 so long as it shall please us," which is practically for my life, and authorizes me to take affidavits upon which perjury might be assigned, without regard to my being in practice, or to my occupation; for instance, were I to go into another profession, or enter into trade, I may still, I take it, lawfully administer oaths until my appointments are specially revoked.

By the Judicature Act, 1873, commissioners to take oaths or affidavits in the Supreme Court are now appointed by the Lord Chancellor, and the form of appointment used appoints "A. B., of ——, being a practising solicitor, to be a commissioner to administer oaths in the Supreme Court of Judicature in England so long as he shall continue to practise as a solicitor." The validity of the oath and the consequent result of a prosecution for perjury in respect of an affidavit sworn before a commissioner appointed under the Judicature Acts, appears to me, so far, to depend upon whether or not the commissioner, before whom such affidavit is sworn, was at the time" practising as a solicitor."

How is this fact to be ascertained? in other words, when does a solicitor cease to "practise as such? Does it depend on his keeping an office or clerk, or painting up his name, or taking out his annual certificate, or what? Not altogether the latter I take it, for a solicitor may surely advise and do many other matters without a certificate, though he may not be able to sue for costs, and, perhaps, may be liable to penal ties, but still may he not "practise," and lawfully administer an oath or take a declaration (not charging for it), though uncertificated at the time ?

say, for example, about your observation last week in reference to a form of assignment of leaseholds in " Prideaux" containing an express power of sale and leasing, and to a foot-note which runs, "As this power of sale and leasing is somewhat special, it is retained instead of relying on the statutory power"? Upon that you remark, "We do not pretend to be quite sure that any opinion about the power of leasing has been expressed." But this by the way- I only mention it 'as a sample of an exegetical method" which puzzles over verbal niceties, while ordinary people, concerned about substance rather than symbol, accept the language if practically clear and workable.

Your latest perplexity is to know how leaseholds for years can be shown to be within section 18, so as to confer on mortgagors and mortgagees of leaseholds the statutory powers of leasing. Does "land," you ask, in the light of the interpretation clause (which says it includes "land of any tenure and tenements and hcreditaments "), include a term of years? That is, does "land of any tenure" include a term of years? Well, that seems very much like asking whether there is such a thing as leasehold land. Davidson and other authorities have familiarized us with the expression "leasehold hereditaments," and the definition of a lease for years as a contract for possession of hereditaments and for a recompense, &c. (Bac. Abr. tit. "Leases "), seems to describe a holding or tenure. But let us turn to the Conveyancing Act, and there we find that it speaks of "freehold land" ; "leasehold land"; "land held by lease" (section 3, sub-section 4); "land not of inheritance" (section 58, sub-section 2); "land comprised in a term of years" (section 65, subsection 2); "land held for the residue of a term' (section 65, subsection 5); 'land subject to any incumbrance" (section 5) [and “incumbrance includes a mortgage in fee or for a less estate"]; and, in this very section 18, "a mortgagor of land, as against every incumbrancer"; "the term whether subject to any incumbrance or not " (section 65, sub-section 2); and the list might easily be extended.

[To the Editor of the Solicitors' Journal.] Sir, I am glad to find by the copy of counsel's opinion appearing in your last issue that he entirely concurs in my view that the limitations in the old commissions are now "swept away by the Act" (the Judicature Act, 1873). If it were otherwise it would be impossible to estimate the vast amount of mischief already caused, and the inconvenience which would arise in future, to say nothing about the anomaly of recently appointed commissioners enjoying greater privileges than the old commissioners.

As regards "the express official prohibition as to taking affidavits within the precincts of the offices of the court," I venture, with great deference, to submit that no official, even of the highest standing, can prohibit what an Act of Parliament sanctions.

I regret to differ from you, Sir, as to the meaning of the words "place of business" (although in the view taken by the learned counsel and myself this point is immaterial), for I consider the solicitors' waiting room in the Royal Courts of Justice is as much his place of business as the Corn Exchange or Stock Exchange is that of the corn miller or farmer and stockbroker respectively. As to the exception ("other than the Bankruptcy Court") mentioned by Mr. Wright in his opinion, I would, for the information of your readers, draw attention to the Bankruptcy Rules of Procedure, 1869. Rule 157 provides that "any affidavit used in any matter of bankruptcy may be sworn as follows ":" (1) ́. or before a person authorized to administer oaths in any of the superior courts of law or equity." G. B. Bedford-row, July 27.

[We may, probably, safely leave our correspondent's preliminary remarks upon our tendency to hair-splitting to take care of themselves. With regard to the rest of his observations we reply that :

1. The phrase "leasehold land," when it is used to denote the quantum of the interest, is, in our opinion, a very loose and inaccurate sort of language; but we understand what it means. The Act sometimes says "leasehold land" when it means "leasehold land"; therefore (argues our correspondent), it probably means "leasehold land" when it says something else.

2. The Act has lumped together a most extensive definition of land, containing among its heterogeneous components several things (corrodies and personal annuities, for instance) which need perpetual exclusion by a "contrary intention." We have a right to expect that such a definition shall, at all events, not lack anything needful. Moreover, since the Act frequently declines to rely upon its definition, by substituting special phraseology in numerous places, we have a right to expect that, in the few places where it does use the phrase "land," it shall use the phrase in its own elaborately prescribed sense.

3. It might easily be denied that "land of leasehold tenure" is referred to in the passages cited by our correspondent, for the simple reason that no such tenure was ever known to the English law. The rest of our correspondent's remarks exhibit, in great perfection, those qualities which characterize the style of the Act itself. How does a meaning assigned to mortgage and property, or to incumbrances, fix the meaning to be given to mortgagor of land? Would it not, at all events, have been much better if the latter phrase's meaning had been fixed by the meaning assigned to its own words? And if what the Act says in section 6 "is absurd," that is really no business of ours.-ED. S. J.)

SECTION 18?"

[To the Editor of the Solicitors' Journal.] Sir,-You contrive to extract encouragement from the recent decision of the Court of Appeal in In re Hall Dare's Contract-although the Master of the Rolls characterized section 70 as "a very plain enactment" -to continue a line of criticism upon the new Act, too often, in my humble opinion, hardly distinguishable from "mere hair-splitting," although you are careful to explain that it is not that. What shall we

Hon. Stephen Longfellow, of Maine, says the Central Law Journal, when any objection or qualification was made by the court to a point he was pressing upon its attention, being too courteous to question or oppose the judge, would honour," which distinction, when it came to be stated, was often so thin that its existence could only be discerned by the learned gentleman himself. This little mannerism was observed by his friends in the profession, one of whom com. posed and passed round this epitaph: "Here lies Stephen Longfellow, LL.D. The epitaph reached the bench, and Mr. Longfellow, not long afterwards, Born, &c. Died, &c. With this distinction, That such a man can never die." your honour, there is this dis-" "Out with it, brother Longfellow," said on an argument, was met by a question from the judge. "But may it please Judge Story, with a good-humoured smile. But it would not come. The epitaph records the death of the distinction.

CASES OF THE WEEK.

SALE BY COURT-RESTRICTIVE COVENANT-QUALIFICATION.-In a case of Pollock v. Rabbits, before the Court of Appeal, on the 21st inst., a question arose as to the mode in which a restrictive condition upon the sale of land under the direction of the court was to be carried out in the conveyance to the purchaser. One of the conditions of sale was as follows:-"The freehold lots are sold subject to the reservations and stipulations mentioned in the particulars, so far as the same affect such lots respectively, and the respective conveyances of such lots shall contain proper reservations and provisions and covenants by the purchasers for the purpose of securing the liabilities and rights under such reservations and stipulations, the form of such reservations, provisions, and covenants, in case of dispute, to be settled by the judge." The purchaser of one of the lots sent to the vendor a draft conveyance which contained a covenant by the purchaser that he would observe and perform the stipulations mentioned in a schedule (and which corresponded with those referred to in the conditions), but the covenant was qualified by the following proviso: "But this covenant is not to be held personally binding upon [the purchaser] his heirs or assigns, except in respect of breaches committed or continued during his or their sole or joint Beisin of or title to the land in respect of which such breaches shall have been committed." The vendor objected to this qualification, and insisted that he was entitled to an absolute and unqualified covenant. The matter was referred to the judge in chambers, and Kay, J., held that the covenant should be qualified by the following proviso:-"Provided that when and so often as the said [purchaser] or his heirs shall sell or dispose of the said lots, &c., or any part thereof, to a purchaser or assign who shall have notice of the aforesaid covenants, and shall take from such purchaser or assign like covenants in the conveyance to him or them, then and in such case the said [purchaser] or his heirs so conveying shall be freed from any further liability in respect of a breach of the aforesaid covenants which shall happen after such conveyance with regard to the land so conveyed." The Court of Appeal (JESSEL, M.R., and BRETT and COTTON, L.JJ.) held that the covenant ought to be an unqualified one. JESSEL, M.R., said that he could see no ground whatever for inserting the proviso. The contract between the vendor and purchaser was contained in the condition of sale, and it came to this, that the purchaser was to covenant to perform the stipulations mentioned in the particulars of sale. There was no bargain that his covenant should cease at any time. If he sold the property he must get an indemnity from his purchaser. A proviso limiting his covenant would be contrary to the conditions of sale. BRETT, L.J., concurred. COTTON, L.J., said that the contract between the parties was that the covenant of the purchaser should be the mode of enforcing the stipulations in question, and that contract was entirely contrary to the proviso which had been inserted.-SOLICITORS, Pollock & Co.; Armstrong & Lamb; Sut cliffe & Summers.

MORTGAGE ATTORNMENT CLAUSE-VALIDITY-BANKRUPTCY OF MORTGAGOR-FRAUD ON BANKRUPTCY LAW-MORTGAGE TO BUILDING SOCIETY DEBT PAYABLE IN INSTALMENTS-ATTORNMENT AT MONTHLY RENT-BANKRUPTCY ACT, 1869, s. 34-STATUTE OF FRAUDS, SS. 1, 2.-In a case of Ex parte Voisey, before the Court of Appeal on the 20th inst., a question arose as to the validity of an attornment clause in a mortgage to a building society, the mortgagor having become a bankrupt. One Knight was a member of a building society, holding 750 shares, in respect of which he, in August, 1875, received an advance of £7,500 from the society. By the rules of the society this sum was to be repaid, with interest at seven per cent. per annum, in monthly instalments of £71 17s. 6d. If default was made in payment of the monthly instalments the member was liable to pay a fine at the rate of five per cent. per month on the total amount in arrear at each monthly meeting. On the 3rd of August, 1875, Knight executed a mortgage to the trustees of the society, to secure the payment of the instalments and fines which should become due from him. The deed comprised land, fixed machinery and engines, and also engines and machinery, stock-in-trade, and effects of the nature of personal estate. The mortgage was made redeemable in case the mortgagor should duly make all the payments, and observe and perform all the regula. tions provided by the rules of the society. The deed provided that, in case the mortgagor should at any time thereafter neglect for three monthly meetings of the society to pay all or any of his subscriptions, interest, fines, and other moneys, or to observe and perform the regulations of the society, or in the event of his becoming bankrupt, or filing a liquidation petition, or making any assignment for the general benefit of his creditors, the mortgagees might enter into possession or receipt of the rents of the mortgaged property, and, if the rents should be insufficient, in their judgment, to satisfy the purposes of the deed, might sell the property, and apply the proceeds of sale in paying what should be due by the mortgagor. There was a further provision that, if the mortgagees should at any time become entitled to enter into possession or receipt of the rents of the property, and the mortgagor should then or afterwards be in occupation of the property, he should, during such occupation, be tenant thereof from month to month to the mortgagees, at a monthly rent of such a sum as should be equal in amount to the moneys which ought to be paid monthly by the mortgagor from time to time for subscriptions, interest, fines, and other moneys under the rules, and that the tenancy should commence on the day up to which the mortgagor should have fully paid all and every part of such subscriptions, interest, fines, and other moneys, and the rent for the period intervening between the time of such commencement of the tenancy and the day upon which the trustees should be entitled to enter into possession or receipt of the rents of the property should be payable and paid on such last-mentioned day, and the monthly rent due upon and subsequently to

such last-mentioned day should become due monthly in advance, and be payable at the place and on the day where and when the monthly meetings of the society should, from time to time, be held, and the first payment of such rent should become due on the day on which the trustees for the time being of the society should first become entitled to enter into possession or receipt of the rents, but all moneys received by them for rent should be accepted in or towards satisfaction of the subscriptions, interest, fines, and other moneys then in arrear or payable under the rules; provided that it should be lawful for the mortgagees, on giving fourteen days' previous notice in writing, to enter on the property, and to determine the tenancy thus created. The deed was not registered under the Bills of Sale Act. In August, 1881, Knight was in default in his payments, and he continued in default for three months afterwards. At the monthly meeting of the society in November, 1881, there was due from him £633, and, on the 2nd of December, 1881, the trust es, acting under the attornment clause, put in a distress for the sum of £664 14s., which was then due under the rules. On the same day a bankruptcy petition was presented against Knight, founded on an act of bankruptcy committed by him on the previous 26th of November, and on the 5th of December he was adjudicated a bankrupt. The trustees of the building society put in other distresses subsequently for further sums which had become due from the bankrupt under the rules. The trustee in the bankruptcy applied to the court to declare the attornment clause and the distresses levied under it void as against him, on the ground that the rent reserved was not the fair letting value of the property, and that the clause was not intended bond fide to create the relation of landlord and tenant, but was a mere device to secure a preference to the society in the event of the bankruptcy of the mortgagor, and to evade the bankruptcy law. There was evidence that, before the mortgage was given, the property had been valued for the purpose of the mortgage at £12,000, and that the rent for the property ought to be estimated at seven per cent. on that value. Other valuers said that the rent ought to be taken at ten per cent. on the 12,000. On the other hand, there was evidence that at the time of the application to the court the property would not let for more than £500 a year, and that it was assessed for the purpose of poor rate at a gross annual value of £288. Bacon, C.J., held that the attornment clause and the distresses levied under it were valid as against the trustee, and this decision was affirmed by the Court of Appeal (JESSEL, M.R., and BRETT and COTTON, L.JJ.). JESSEL, M. R., said that, according to the doctrine of Ex parte Williams (26 W. R. 274, L. R. 7 Ch. D. 138), if it was never intended by the parties to create the relation of landlord and tenant between the mortgagee and the mortgagor, but they only used words to that effect, there would be no such relation in law. In Ex parte Williams the evidence on which the court came to that conclusion was the absurdity of the rent reserved by the attorment clause as compared with the real value of the property, and the court came to the conclusion that it was not a genuine rent, and that it was never intended that it should be paid, but only that the mort gagee should be able to distrain for it in the event of the bankruptcy of the mortgagor. In that case the rent reserved was seven times the real letting value of the property; in Ex parte Jackson (29 W. R. 253, L. R. 14 Ch. D. 725) it was fifty-seven times as great. In the present case not only the value of the property, but the peculiar nature of the security must be considered. The monthly instalment payable to the society was £71 17s. 6d. Of course, if default were made in payment of the instalments, the amount of the monthly rent would be increased by fines, and might be a great deal more than £71 17s. 6d., but the ordinary payment would be £71 17s. 6d. The valua tions made for the purpose of the mortgage made the value of the property about £12,000. The amount of the rent which could have been obtained then must be a matter of opinion. Some of the valuers said that the rent would have been seven per cent., others said ten per cent., on the value of the property. Taking it as seven per cent., the rent would have been £840. On the other hand, there was evidence that it would now let for not more than £500 a year. But, in order to judge of the bona fides of the parties to the contract, regard must be had to the valuation which they had made at the time. Taking the annual rent at £900, it would be a little more than twelve times the monthly instalment of £71 17s. 6d. But the tenancy was not to begin till the mortgagor had been in default for three months. He might have been in default for a part only of his instalments. It would not be fair to try the thing by the event which actually happened. The first payment under the tenancy might be a good deal more than £71 17s. 6d., but the subsequent payments need not be more, because the society could distrain at once, and not allow the instalments to fall into arrear. In substance, the rent reserved was one which a tenant, on the one hand, might honestly agree to pay, and which a landlord, on the other hand, might honestly expect to receive. There being no evidence of any want of bona fides, his lordship thought there was no ground for saying that the attornment clause was a mere device to enable the society to obtain a preference in the event of the bankruptcy of the mortgagor; but, on the contrary, he thought it was intended that, in case of default in making the monthly payments, the society should have the power of distraining, whether the mortgagor was bankrupt or not. BRETT, L.J., said that the contract was not a fraud as between the parties; it was not intended to defraud any known individual. The only way in which it could be said to be not bona fide would be if it was not intended to be acted on between the parties, except in the case of the mortgagor's bankruptcy, if it was an attempt to evade the bankruptcy law. The fraudulent intention, if it existed at all, must have existed at the time when the contract was made. The question was whether the contract for a tenancy was made for the purpose of being acted on between the parties, whether the mortgagor became bankrupt or not, or only if he became bankrupt, whether the parties had the bankruptcy of the mortgagor in their contemplation, and intended, in that case, to evade the fair distribution of his property in bankruptcy. That was the principle of law laid down in Ex parte Williams and Ex parte Jackson, and those cases served as guides to one state of facts, but they did not exclude other states of facts. Those decisions showed that, in the absence of any countervailing circumstances, if the rent was

Lord Chelmsford. Therefore the court was entitled now to look at the words of section 62, and his lordship could not imagine any words plainer to exempt the charities mentioned in it from the operation of any part of the Act, including section 17. In this particular case the exemption was also given by section 9 of the Act 18 & 19 Vict. c. 81 (which provides that every place of meeting for religious worship, certified to the Registrar-General and bona fide used as a place of religious worship, shall be wholly freed and exempted from the operation of the Charitable Trusts Act, 1853), which did not apply to the case before Lord Chelmsford, and which was not brought to the attention of Kay, J. BRETT and COTTON, L.JJ., Concurred. -SOLICITORS, A. D. Smith & Wood; Young & Sons.

MORTGAGE-REDEMPTION ACTION-MORTGAGEE IN POSSESSION-EXPENDI TURE ON PERMANENT IMPROVEMENTS-NOTICE TO MORTGAGOR.-In a case of Shepard v. Jones, before the Court of Appeal on the 21st inst., the question arose whether, on the redemption of a mortgage as against a mortgagee in possession, the mortgagee ought to be allowed moneys which he has expended in permanently improving the property, no notice of the expenditure having been given to the mortgagor. The judgment of Lord Langdale in Sandon v. Hooper (6 Beav. 246) was relied on as showing that it was essential that notice of the expenditure should have been given to the mortgagor. JESSEL, M. R., said that there were some words in the judgment of Lord Langdale in that case which appeared to be inconsistent with what Lord Lyndhurst said in the same case when it came before him on appeal (14 L. J. N. S. Ch. 120). But his lordship thought that Lord Langdale did not really mean to say that notice was material. His lordship thought that notice to the mortgagor was not necessary if the expenditure was reasonable and produced a benefit to the estate. And, on the other hand, if the expenditure was unreasonable, and produced no benefit to the estate, he did not see why the mortgagor should be charged with it merely because he had notice of it. Notice might be material, if after it the mortgagor expressly agreed to the expenditure, or tacitly assented to it, because then the mortgagee need not prove that it was reasonable. But, if the mortgagor simply did nothing, notice could not alter the rights of the parties. BRETT, L.J., said that, interpreting Lord Langdale's judgment with reference to the facts which were before him, he thought that he meant that notice was not material when the expenditure was reasonable, and for the lasting improvement of the property, but that it was material only when the expenditure was unreasonable, and then for the purpose of showing acquiescence on the part of the mortgagor, COTTON, L.J., COLcurred.-SOLICITORS, Abbott, Jenkins, & Co.; Field, Roscoe, & Co.

profess to understand why the limitation of six months was imposed, but the court found it there and could not alter it. The appeal must be dismissed with costs. BRETT, L.J., thought it was a clear case. COTTON, L.J., said it might or might not be right for the Legislature to interfere, but, in his opinion, the court would be acting contrary to the law if it were to allow the appeal.— SOLICITORS, Pitman & Lane; J. W. Sykes.

LIMITED COMPANY-WINDING-UP - BANKRUPTCY OF PETITIONER-COMPANIES ACT, 1867 (30 & 31 VICT. c. 131), s. 40.-In the case of In re The Wala Wynaad Indian Gold Mining Company, before Chitty, J., on the 20th inst., a petition by a contributory having been presented for the winding up of the company, a preliminary objection was taken that the shares in respect of which the petitioner was a contributory had not, within the provisions of the Companies Act, 1867, s. 40, been held by him and registered in his name for a period of at least six months during the eighteen months previously to the commencement of the winding up. It appeared that the petitioner was registered a shareholder on the 18 h of May, 1881, and filed a pet tion for liquidation of his affairs on the 26th of August, under which a trustee was appointed on the 29th of September. On the 28th of October a deed of composition was executed, and on the 7th of January the shares were re-assigned by the trustee to the petitioner, who presented the winding-up petition on the 28th of February. CHITTY, J., overruled the objection, saying that the word "held," as used in section 40, had no technical meaning, and that the meaning of the section was that the name of the contributory should be on the register as the holder of the shares during the period prescribed.-SOLICITORS, Michael Abrahams & Co.; H. Montagu; T. H. Evans; Robbins & Cameron; Beale & Co.; F. D. Thompson.

On her death

STATUTE OF LIMITATIONS (3 & 4 WILL. 4, C. 27), ss. 12, 34-WRONGFUL POSSESSION-JOINT TENANCY-EXTINGUISHMENT OF RIGHT.-In the case of Bolling v. Hobday, before Chitty, J., on the 17th inst., it appeared that a testatrix who died in 1817 by her will devised real estate to trustees, their heirs, and assigns, in trust for her daughter for life, and after her death to sell the same and divide the proceeds between M. A. Smith, S. Smith, Thomas Smith, and John Smith, share and share alike. On the death of the testatrix the tenant for life took possession of the estate and occupied it until her death, which took place in 1857. Thomas and John entered and remained in possession until the death of John in 1874, when Thomas remained in sole possession until his death, which occurred in 1880. The trustees never in any way acted, and the property was enjoyed by Thomas and John, and after John's death by Thomas, without interruption and acknowledgment. Under these circumstances the real representatives of Thomas claimed the whole estate, and those of John either onehalf or one-fourth. CHITTY, J., said that it was clear that the estate of the trustees was barred by the expiration of twenty years from the death of the tenant for life which occurred in 1857 (Burrows v. M'Creight, 1 J. & L. 290). On behalf of John's representatives it was said that, as to the possession of John and Thomas, it was a possession by tenancy in common, but it was clearly established that where a possession was acquired under the Statute of Limitations by a possession originally wrongful, the estate thus acquired was a joint tenancy (Ward v. Ward, L. R. 6 Ch. 789). Therefore, assuming that John was entitled to the benefit of the possession of Thomas, yet John being dead, Thomas would be entitled to the whole. Then it was said that John could, at least, claim one-fourth part of the estate, for John and Thom's under the will were, at least, tenants in common of onefourth share each, and John's possession should be ascribed to his lawful title, so that Thomas did not oust John nor did he acquire John's share under the Statute of Limitations, s. 12. To this, in bis lordship's opinion, there were two answers. The first was that the trustees' right to enter was barred by the 34th section of the statute, which says that "the right and title shall be extinguished," or as Lord St. Leonard, says in Burrows v. M Creight, the statute transferred the estate. Therefore the result was that the right and title of the trustees, or, in other words, the legal estate in fee which they would have taken under the will, was extinguished, and with it the trusts by which the estate was affected. This was a conclusive answer to the claim. Moreover, John and Thomas were not tenants in common even under the will. They were not equitable tenants in common of an estate, but entitled simply to shares of its proceeds, and in that sense only had they any equitable estate in the land. Therefore it was wrong to ascribe their possession, which was, for all the purposes of the will, unlawful, to the supposed lawful title which they had each in respect of one-fourth share of the proceeds of the sale. The representatives of Thomas were, therefore, entitled to the estate.-SOLICITORS, Hughes & Co.; Doyle & Sons; Duncan, Warren, & Gardiner.

REVIVOR-DEATH OF DEFENDANT-RIGHT TO CONTINUE ACTION AGAINST EXECUTORS-ACTION FOR NUISANCE-3 & 4 WILL. 4, c. 42, s. 2-ORDER 50.-In a case of Kirk v. Todd, before the Court of Appeal on the 21st inst., the question arose whether an action in respect of a nuisance injurious to property could be continued against the executors of the defendant who had died more than six months after the issue of the writ. The Act 3 & 4 Will. 4, c. 42, provides, by section 2, that "an action of trespass, or trespass on the case, as the case may be, may be maintained against the executors or administrators of any person deceased for any wrong committed by him in his lifetime to another in respect of his property, real or personal, so as such injury shall have been committed within six calendar months before such person's death, and so as Euch action shall be brought within six calendar months after such executors or administrators shall have taken upon themselves the administration of the estate and effects of such person." The plaintiffs were dyers. Their works abutted on a stream. The defendant carried on business as a woolcomber, at a mill closely adjoining the same stream, but a little higher up the stream than the plaintiffs' works. The plaintiffs alleged by their statement of claim that it was essential to the proper carrying on of their business that they should have a large and constant supply of pure water, and that they had been in the habit for many years of drawing that supply from the stream. They alleged that the defendant had lately been discharging into the stream a noxious fluid, thereby polluting the water, and rendering it unfit for the purposes of the plaintiffs' business, and the plaintiffs claimed an injunction and damages. The action was commenced on the 7th of April, 1880. On the 17th of January, 1881, the defendant delivered his statement of defence, and on the 11th of June, 1881, he died. On the 14:h of September, 1881, his will was proved by his executors. On the 3rd of November, 1881, the plaintiffs obtained the common order, giving them liberty to carry on the further proceedings in the action against the executors as the representatives of the defendant. The executors did not move to discharge this order, but when the action came on for trial before Hall, V.C., the objection was taken that it could not be maintained against them. The Vice-Chancellor held that this was so, and on this ground he dismissed the action, with costs, as against the executors. The Court of Appeal (JESSEL, M. R., and BRETT and COTTON, L.JJ.) affirmed this decision. JESSEL, M.R., said he could not help feeling that this was a very hard case, but the court must not allow hard cases to make bad law. The action was brought for a simple tort. It did not even appear that the defendant got any benefit by fouling the stream, he only injured the plaintiffs. As his lordship understood the rule at common law it was this: you could not sue executors for a tort committed by their testator for which you could only recover unliquidated damages. That law had never been altered except by the Act 3 & 4 Will. 4, c. 42, s. 2, which allowed the executors to be sued in certain cases, but with the limitation that the injury must have been committed within six months before the death of the testator. Therefore the statute did not apply to the present case, in which the injury sued for was committed more than six months before the death of the testator, and the Vice-Chancellor had no option but to dismiss the action, and his lordship could not say that he was wrong as to the costs. His lordship did not

PRACTICE-EXAMINATION OF WITNESS DE BENE ESSE-COSTS.-In the case of Vicary v. Stroud, before Chitty, J., on the 21st inst., a motion was made for the examination of a witness de bene esse. The affidavit in support stated that the witness was suffering from chronic infirmities, disabling her from ever being able to leave her residence. The application was opposed, on the ground that it did not come within any of the three cases mentioned by Lord Eldon in Bellamy v. Jones (8 Ves. 31)-viz., that the witness pro. posed to be examined should either be over seventy years of age or the only witness to a particular fact, or if upon the ground of health in a dangerous state. It was also said that the applicant must pay the costs in any event. CHITTY, J., said that the practice had altered since the case cited, which was eighty years old. The common law practice was also to be considered now. It was, moreover, much doubted whether it was a requisite that the witness should be the only witness. The affidavit was not in quite the right form, but the order would be made upon the applicant paying the costs of the applica