FELO DE SE. 45 & 46 VICT. c. 19.-AN ACT TO AMEND THE LAW RELATING TO THE INTERMENT OF ANY PERSON FOUND FELO De se. [3rd July, 1882.] The preamble to this Act recites that a further alteration of the law of its subject-matter is expedient; and a reference to 9 Geo. 4, c. 52, which is repealed but re-enacted with omissions and additions by the Act, will show that considerable amendments were effected long ago. The old law was that the felo de se was buried in a highway with a stake driven through his body. This barbarity was abolished by 9 Geo. 4, c. 52, but that Act still prescribed a private burial between nine and twelve at night within twentyfour hours of the verdict of the coroner's jury. The present Act assimilates the mode of burial, so far as the civil law is concerned, to the ordinary mode of burial "in the churchyard or other burial ground of the parish or place in which the remains of the felo de se might, by the laws or custom of England, be interred if the verdict of felo de se had not been found." The ecclesiastical law is dealt with by sections 3 and 4, which provide for the interment "in any of the ways prescribed or authorized by the Burial Laws Amendment Act, 1880," but also direct that, 66 save as aforesaid, nothing herein contained shall authorize the performing of any of the rites of Christian burial." Turning to the Burial Act of 1880, we find that section 13 of that Act relieves the clergy of the Church of England from any ecclesiastical penalties for using, "in any case where the office for the burial of the dead, according to the rites of the Church of England, may not be used," such service out of the Prayer Book or Bible 66 as may be prescribed or approved of by the Ordinary." Amongst the cases where the regular Burial Service may not be used, the rubric prefixed to that service designates the case of persons who "have laid violent hands on themselves," and the section seems to have reference to this rubric. In cases where the ordinary has prescribed no form, it seems that no service can be performed by a clergyman of the Church of England. If the felo de se should have died out of communion with the Church, however, the burial may take place, by the effect of section 3 of the present Act and section 6 of the Burial Act of 1880, either without any religious service, or with such Christian and orderly religious service (performed by a Nonconforming minister) as the person having charge of the burial shall think fit. POOR RATES. 45 & 46 VICT. c. 20.-AN ACT TO AMEND THE POOR RATE ASSESSMENT AND COLLECTION ACT, 1869. [3rd July, 1882]. This Act is short but important. It contains two enacting sections only, one getting rid of the effect of Werburgh Overseers v. Hutchinson (L. R. 5 Ex. D. 19) and Hare v. Putney Overseers (L. R. 7 Q. B. D. 223), in which it was held that an outgoing occupier was liable for the whole of a rate, although he might not be immediately succeeded in his occupation by an incomer; and the other getting rid of the effect of Reg v. Dyott (L. R. 9 Q. B. D. 47), in which it was held that there could be no publication of a rate within the meaning of 17 Geo. 2, c. 3, as amended by 7 Will. 4 and 1 Vict. c. 45, and therefore no rate at all by virtue of the first-named statute, in a parish which possessed neither church nor chapel. The title of the statute shows that the second enactment was added while the Bill was passing through Parliament. The meaning of it is simply to reverse the case law as laid down in the decisions we have referred to. With regard to the publication of the rate, we may repeat what we said on a former occasion, that publication in a Nonconformist chapel will not be sufficient. 66 Chapel" in an Act of Parliament means a chapel of ease or other chapel in connection with the Church of England. The Legislature has, in some caseseg., for the purposes of the parliamentary registration-recognized the desirability of publication of notices upon the doors of Dissenting chapels, but has, in such cases, employed such unambiguous expressions as " every chapel, including places of public worship which do not belong to the Established Church" (6 Vict. c. 18, s. 23). REVIEWS. WILSON'S JUDICATURE ACTS. WILSON'S SUPREME COURT OF JUDICATURE ACTS, APPELLATE JURISDICTION ACT, 1876, RULES OF COURT AND FORMS, WITH OTHER ACTS, ORDERS, RULES, AND REGULATIONS RELATING TO THE SUPREME COURT. With Practical Notes. THIRD EDITION. By M. D. CHALMERS, Barrister-atLaw, assisted by HERBERT LUSH-WILSON, Barrister-at-Law. Stevens & Sons. The addition of 100 pages or so to this edition of Wilson has not deprived the book of the handiness which has always been one of its characteristics, but we cannot help looking with apprehension on its growing size. So far as this is the result of the ever-increasing mass of parliamentary and judicial legislation and decision, it is, of course, unavoidable, but we regret to discern some tendency in the earlier part of the work to swelling out the notes with unnecessary matter. For instance, in the last edition Mr. Wilson appended to section 25, sub-section (6), a note of a few lines, stating that this sub-section does not make anything an assignment which was not an assignment before, either at about a page in length, commencing with a statement of the rule before law or in equity," referring to Schroeder's case. We have now a note of the Judicature Act as to the assignment of a chose in action; then proceeding to notice the provisions of the Policies of Assurance Act, 1867, the Policies of Marine Insurance Act, 1868, and the provisions of section 27 of the Conveyancing Act. All this information upon the general subject of the assignment of choses in action is, we venture to this general subject, he is not likely to seek it in a book on the Judicature suggest, nearly useless; for if the practitioner wants information as to Acts, and the student is certain to prefer the information given in works specially intended for him. In the first edition of a commentary on a new statute some short reference to the previous state of the law is allowable, but the less there is of it in subsequent editions the better. Even some of Mr. Wilson's admirable notes on the statute of 1873 might, we think, now be abridged in this respect with advantage. We should also like to see removed from the next edition all notes or portions of notes which are mere paraphrases of legislative provisions. Since the Conveyancing Act there has come into vogue a style of note which is wearisome and irritating in the highest degree. If a section were, say, to abolish acknowledgments by married women, a learned commentator would be certain to observe in his note that "by this section provision is made for the abolition of acknowledgments by married women." Chalmers' notes to the Act are not altogether free from this kind of remark, but it is happily very infrequent. Mr. Having said so much in the way of criticism, we may now bear testi mony to the merits of the present edition. The notes to the rules are very well edited. We have often had occasion to remark that if a case is referred to in a book of practice, the reader should always be briefly informed of the effect of the decision, and should not be told to "6 see Jones v. Smith." This rule has been well observed by Mr. Chalmers in his notes to the rules. Usually the exact point decided is stated, and where this is not done the reader is nearly always told the We have missed no case for general subject to which the case relates. which we bave looked, and have found the effect of the decisions stated with accuracy and terseness. The rules, forms, and orders issued since the last edition (including the recent Practice Masters' Rules) are given in full. The index seems to have been entirely re-modelled, and is very convenient and well-arranged. BANKERS. GRANT'S TREATISE ON THE LAW RELATING TO BANKERS. FOURTH EDITION. By CLAUDE C. M. PLUMPTRE, Barrister-at-Law. Butterworths. The first edition of this work was published in 1856, being, as the author stated in his preface, "the result of an endeavour to compile the law relating to the business of banking as gathered from statutes and the decisions at common law, in equity, and in bankruptcy," in which endeavour the author conceived it to be his first duty to aim at practical utility," and gave certain "rules, suggestions, and cautions for the conduct of bankers, as much as possible expressed in the The second and language of business, divested of legal technicalities." third editions were the work of Mr. R. A. Fisher, and the third edition was issued in 1873. In the nine years which have passed since that date many cases of great importance have been decided, and the Crossed Cheques Act and two Bankers' Books Evidence Acts have been passed. The present editor has "endeavoured to follow as nearly as possible the 66 arrangement adopted in the previous editions," with necessary alterations; being "obliged to curtail or merely refer to many cases hitherto cited as authorities, so as to afford space for fresh matter," rewriting the chapter on bankruptcy, and adding a new chapter on bills of sale, together with the Act of 1878 in extenso in the appendix; which new chapter perhaps might have been dispensed with as not sufficiently cognate to the subject-matter of the book. 6 We may state at the outset that only in one instance have we failed to discover any of the cases for which we have searched, but the general mode of execution is best tested by seeing how the particular cases and statutes have been dealt with. The Crossed Cheques Act is very well treated, but we cannot speak so well of the Evidence Act. The heading "Books" finds no place in the index; Harding v. Williams (L. R. 14 Ch. D. 197)-the correctness of which may be gravely doubted -is curtly dispatched in a short note, and the whole Act has only four lines given to it in the text. Next, we will take Hopkinson v. Foster (L. R. 19 Eq. 74), in which it was held, before the Judicature Act, that a cheque is not an equitable assignment of the drawer's balance. Mr. Plumptre, though he cites Schroeder v. Central Bank of London (24 W. R. 710), in which it was held that the Judicature Acts did not alter the law, does not, we think, sufficiently indicate the effect of that decision, and unfortunately adds, after stating the effect of Hopkinson v. Foster, that, "now, by section 25 of the Judicature Act, all debts are assignable." Moreover, the reader would probably like to know whether the effect of Hopkinson v. Foster really is that, if a customer having £1,000 balance draws a cheque for £1,001, the banker is justified in dishonouring the cheque. We find nothing about this under the head Balance in the index. Then, so important a case Suffell v. Bank of England (30 W. R. 48), decided on July 4, 1881, ought to have been fully dealt with in a book bearing 1882 on the titlepage. It is included, though too briefly, in the addenda. On the whole, we regret that we cannot bestow any very high praise on this edition. LIABILITY OF EMPLOYERS. as A SUMMARY OF THE LAW OF THE LIABILITY OF EMPLOYERS FOR PERSONAL We can cordially recommend this little treatise to all persons interested in its subject. The very latest cases will be found, and the important case of Griffiths y. Earl Dudley, at the date of publication unreported, is given at length. There is also a valuable note on "Insurers under the Act of 1880." One fault we have to find, however, is that the authors are much too diffuse. Thus, they anticipated the result of Lord Dudley's case correctly indeed, but at such length that it might be supposed they were doubtful of their own conclusions. Another fault is, that in citing Couch v. Steel (3 E. & B. 402), a well-known decision on the repealed 7 & 8 Vict. c. 112, they omit to say whether or not the decision applies to the corresponding section of the Merchant Shipping Act, 1854, or even to mention whether that Act contains a corresponding section at all. MEW'S DIGEST. A DIGEST OF THE REPORTED DECISIONS OF ALL THE COURTS, INCLUDING A 99.66 CORRESPONDENCE. SURVEYORS OF HIGHWAYS-LIABILITY TO REPAIR [To the Editor of the Solicitors' Journal.] Sir, I have had occasion to consult text-books latterly upon the question of the liability of a surveyor of highways for the repair of fences on the side of a highway, and have been much struck with the absence of either statutory or case authority on the subject. So far as my researches extend, I have not been able to discover any distinct case bearing upon the liability alluded to. A surveyor of highways appears to be in considerable difficulty, for however willing he may be to accept the liability, he is subject to his accounts being audited and surcharged in respect of payments improperly made. At the present time, I know a surveyor of highways who, positively not being able to satisfy himself upon the point of liability to repair fences, has allowed certain fences to remain in a bad state of repair, in order that someone may take proceedings against him, so that his liability may be ascertained. I suppose that the highways have been made, originally, through someone's property, and it would, on the construction of such roads, be neces. sary for fences to be made on each side of the roads to protect the adjoining property, but who would make these feuces originally, and who continue to repair them, seems to be a question of some doubt. I think I read, within the last month, of a case deciding the question of liability of surveyors of highways to repair milestones, wherein a recent Act of Parliament was quoted having reference to milestones and also to fences. Can any reader remind me of this case, and give me the number and reference to the statute, and any other information on the subject of a surveyor of highways' liability to repair fences adjoining highways, or any reference to cases and text-books? ERGO. [The Act referred to is, probably, the Act of the present session, 45 & 46 Vict. c. 27, as to fencing dangerous places near highways: see ante, p. 609.-ED. S. J.] "LAND OF ANY TENURE." [To the Editor of the Solicitors' Journal.] section 18 of the Conveyancing and Law of Property Act, 1881, conSir,-With reference to the doubt expressed by you in the article on tained in your issue of July 15, as to whether the expression “land of any tenure" in the interpretation clause of that Act would include a leasehold interest, allow me to remind you that the same expression, "land of any tenure," occurs in the 23rd section of the Bankruptcy Act, 1869, the section relating to the disclaimer of onerous property. In that leasehold interests in land. It has even been held recently that a dis. case it is, of course, beyond doubt that these words apply to all sorts of claimer under this section will operate as a surrender of personal chattels leased with land to the bankrupt. (See Ex parte Allen, In re Fussell, 30 W. R. 601, L. R. 20 Ch. D. 341.) A. J. SPENCER. Lincoln's-inn, Aug. 1. [See remarks elsewhere.-ED. S. J.] CASES OF THE WEEK. This is certainly in design one of the most complete digests in existence. It not only contains all the English cases of the year (with references to all the series of reports), and the leading Irish cases arranged under general headings with numerous sub-heads, but also a short statement of the effect of the statutes of the year and the orders and rules of court. The Digest is not confined to the head-notes of cases, for numerous dicta are collected under various headings. The Digest is followed by elaborate tables of cases in the Consolidated Digest for 187080, affirmed, reversed, or varied by the decisions reported in 1881; cases in the Digest for 1880 affirmed, reversed, or varied; cases followed and approved, and, lastly, very valuable lists of "cases not followed, over- COMPANY-WINDING UP- -DIRECTOR-BREACH OF TRUST-MISFEASANCE ruled, and questioned," cases explained and commented on," and "cases-PAYMENT OF DIVIDENDS OUT OF CAPITAL-COMPANIES ACT, 1862, s. 165. distinguished." With regard to the execution of the work, the general headings are sufficient in number and usually well selected. The reader is tolerably sure to find his way very speedily to any class of cases he may wish to examine. The sub-heads to the more important heads do not appear to have been always selected with equal judgment, or arranged very carefully. Thus, to take the heading "Landlord and Tenant," the sub-heads are (1) creation of tenancy, which is again subdivided into agreements for leases, leases, and implied tenancies; followed by (2) covenants; (3) rent; (4) rights and liabilities of landlord and tenant; and (5) termination of tenancy. The second and third heads should have been sub-heads to the fourth head. Similarly, under the head "Trust and Trustee" the case placed under the sub-head "Relation of Co-trustees" should clearly have come under the sub-head Liability of Trustees." The statement of the cases is generally very satisfactory. The cross-references are numerous, and usually accurately express the substance of the case referred to, though to this we must make an exception in the case of Oceanic Steam Navigation Company v. Sutherberry (column 437), which we should not recognize by the description, Trust created by parting with leaseholds of deceased by executor or administrator." The several tables of cases followed, overruled, and explained represent a large amount of labour, and although we have applied various tests to them we have not found them deficient. 66 In a case of In re The Exchange Banking Company, before the Court of Appeal on the 26th ult., the question arose whether, in the winding up of a company, the directors could, under section 165 of the Companies Act, 1862, be compelled to pay to the liquidator moneys which they had improperly paid by way of dividend to the shareholders out of the capital of the company, no profits having been made, on the ground that they had been guilty of a breach of trust or misfeasance in so doing. Bacon, V.C, held that the directors were jointly liable to pay the moneys in question, and the Court of Appeal JESSEL, M.R., and BRETT and COTTON, L.JJ) affirmed his decision, except that they heid that the directors were severally as well as jointly liable. It was contended that In re The National Funds Assurance Company (27 W. R. 302, L. R. 10 Ch. D. 118) would have been differently decided if it had been decided after the decision of the Court of Appeal in Coventry and Dizon's case (28 W. R. 775, L. R. 14 Ch. D. 660); that section 165 created no new right against directors, but was intended only to provide a summary mode of enforcing an old right, and it was said that in an action by the liquidator, as representing the company, against the directors, it would have been a good answer that all the shareholders, by receiving the dividends, had acquiesced in the breach of trust. At any rate, only the dividends received by the direc tors themselves could be recovered. JESSEL, M.R., said the question was whether the Vice-Chancellor had authority to make the order. Tae directors bad for several years before the winding up of the company, been in the habit of providing false balance-sheets. They had entered a number of deb's, which they knew to be bad, among the assets of the company as good debts, and had thus made it appear to the shareholders that there had been a profit, when they knew there had been none, and had induced the shareholders to declare dividends out of these assumed profits, and had paid those dividends to the shareholders. The liquidator, after the winding up, applied for an order that the directors should pay to him the sums thus paid away as divi. dends, and the Vice-Chancellor, following In re The National Funds Assurance Company, had made the order. The ground of the appeal was that that case was decided before the decision of the Court of Appeal in Coventry and Dixon's case, and that that case had decided (as his lordship thought it did decide) that, under section 165 of the Companies Act, 1862, directors could not be made liable for anything for which they would not have been liable independently of the section, but that that section only provided a summary mode of enforcing the liability. It did not, however, decide that directors could not be made liable for anything for which they would not have been liable independently of the Act of 1862. If the decision in In re The National Funds Assurance Company had been founded only on some new equity arising under section 165 it could not now stand. But it appeared to his lordship that it was founded on an equity quite independent of that section. The case might be put shortly thus :-A company formed under the Act of 1862, with limited liability, declared by its memorandum of association that its capital of a certain amount was to be appropriated to the carrying on of its business. It could not alter the memorandum by diminishing the amount of the capital, and, looking at the machinery supplied by the subsequent Act of 1867 for the reduction of the capital of a company with the sanction of the court, it was plainly the intention of the Legislature that the capital of a company was not to be returned to the shareholders without the sanction of the court. The capital could not be returned to the shareholders at all so long as the company was carrying on business. It followed that no sanction to such a return of capital, given by a general meeting of the shareholders, was of any validity at all. It being beyond the powers of the company, the sanction of a general meeting could not make it within its powers. Therefore, even if the sbareholders knew the facts, they could not authorize such a thing to be done. And there was another reason why it could not be done. There was either an implied contract with the creditors, or a representation made to them, upon which they acted, and on the faith of this implied contract or representation they gave credit to the company. There was no other debtor to them; the impalpable corporation had no property but its capital. The creditor trusted to the capital, or to the company, on the faith of the implied contract or representation as to the amount of the capital, it did not matter which it was called. And the creditor bad the right to compel the corporation to keep its capital, and not to return it to the shareholders, and had a remedy against the directors if they misapplied the capital in that way, though possibly that remedy might not be available without a judgment. It seemed to follow that directors who had improperly paid away assets of the company in that way were liable to repay what they had so paid, and it was immaterial whether the shareholders could compel them to do so if there was no winding up. Were the directors the less liable because the liquidator represented, not only the whole company, but also the creditors? In an ordinary case-i.e., when the shareholders had acted on the representation of the directors, the liquidator, as representing the company, eould compel the directors to repay. It was quite possible that a company might have been ruined by a return of capital improperly made in consequence of the false representations of the directors, and it might well happen that the sbareholders as such might have a right to complain. It was not necessary to refer to previous decisions to show the principles on which directors were liable in such cases, but his lordship thought the true view was that of an implied contract with the creditors, and, if so, Evans v. Coventry (8 D. M. & G. 835) was in point. His lordship thought the Vice-Chancellor's order was right, except that the directors should be made jointly and severally liable, and not merely jointly. BRETT, L.J., did not doubt that the payment of the dividends out of capital was a breach of trust. It was said that the shareholders, by accepting the dividends, had acquiesced in or ratified the pay. ment. But their assent was obtained by means of untrue accounts shown to them, which they did not know to be untrue, and there could be no ratification in that way. Even if they had known the facts, his lordship thought that the shareholders acting as such could not ratify the payments. If they could do so, the liquidator could still complain as the company itself could have done, for the aggregate shareholders were not the corporation. The individua shareholders might change from time to time, and if the shareholders remained the same, still the company could sue the directors, who were trustees for the company, and not for any individual members of it. His lordship thought that the liquidator represented the company for the purpose of obtaining any thing to which the company was entitled, and also in regard to its duty to its creditors. It was his duty to do that which the company ought to do to obtain the return of assets which ought to be applied in paying the creditors. The case was clearly within section 165, not on the ground that there had been a tort or misfeasance by the directors, but a breach of trust. These might be persons who came within section 165 who were not guilty of a breach of trust, because they were not trustees for the company, but whenever the act which came within section 165 was committed by a trustee for the company there must be a breach of trust more or less virulent, and the Statute of Limitations could not apply. COTTON, L.J., said that there had been a misappliIcation of the funds of the company. The funds ought to be dealt with for the purpose of the business of the company, and they had teen misapplied, and the court had power to direct that the funds which had been misapplied should be brought back by the directors who had misapplied them. It was said that they were liable to repay only what they had put into their own pockets, not what they had paid to other shareholders. But a trustee who committed a breach of trust was liable for what he paid to other persons. Then it was said that the payment was made to all the members of the corporation, that it had been confirmed by a general meeting of the shareholders, and that the corporation could not, after that, sue for it. But there could be no con 66 firmation unless the facts were known, and the allegation was that the balance-sheets were fraudulent, and the shareholders did not receive any in. formation as to the real state of the case. Then it was said that the corpora tion could not sue the directors, because it was the aggregate of the shareholders who had received the money. But the corporation was something very different from the individual shareholders, or the aggregate of the shareholders. The case would be very different if the money was now wanted for the purpose of dividing it among the shareholders, but it was wanted to pay the debts of the company.-SOLICITORS, Goldring & Mitchell; Clarke, Wood cock, & Ryland. RESTRICTIVE COVENANT-USE OF PROPRIETARY CHAPEL-"REGULAR" CLERGYMAN.-In a case of The Governors of the Foundling Hospital Dunbar, before the Court of Appeal on the 28th ult., the decision of Chitty, J. (noted ante, p. 531), was affirined. The question was as to the meaning of the words "regular clergyman of the Church of England" in a covenant by the lessee of a proprietary chapel restricting the use of the building. The appeal was from an order restraining the defendant from officiating or performing Divine service in the chapel in question. The plaintiffs were the lessors of the chapel, the defendant was an assignee of the lease. The lease, which was made in 1802, for a term of ninety-nine years, contained a cove. nant that the lessee "should not at any time during the term permit any clergyman or person to officiate in the chapel or perform public Divine service therein but such as should be a regular clergyman of the Church of England." In January, 1880, the defendant wrote to the Bishop of London, resigning the licence granted to him in 1877, and this resignation had been accepted, and he had, in fact, been prohibited by the bishop from performing service in the diocese. The vicar of the parish, in answer to a question whether the defendant had asked his leave to officiate in the parish, bad written that he had not done so, and that such leave would have been refused if he had asked for it; but, on the other hand, the defendant asserted that he obtained the vicar's consent, and that such consent, when given, could not be revoked or annulled. Shortly after the revocation of his licence the defendant registered the chapel as a place of meeting for religious worship, but the RegistrarGeneral afterwards cancelled the registration, having received a report that the chapel had ceased to be used for religious worship. Chitty, J., was of opinion that the word "regular was used as a qualification of the word person," and said that, as he understood the law, a clergyman of the Church of England must be duly ordained and also licensed by the bishop before he was at liberty to perform Divine service or to preach. That was the ecclesiastical law, and the law of the land. The defendant was not licensed, and, in fact, had been prohibited, and there was, therefore, in his case an absence of some of the legally requisite qualifications. It was urged on the appeal that as the defendant had been duly ordained by a bishop of the Anglican Church (the Bishop of Ceylon), there was no sense in which it could be said that he was not a "regular" clergyman of the Church of England. The mere fact that he had himself resigned his licence, or even that the licence had been revoked by the bishop, could not undo his orders. The word regular," so far as it was not surplusage, merely meant "duly constituted," and if it had been intended by the lessor that this chapel should only be served by "licensed" clergymen, it would have been so expressed in the lease. Neither the bishop nor the vicar had taken any proceedings to restrain the defendant from officiating in this chapel. JESSEL, M.R., said that what was the meaning of the draftsman and what was the meaning of the lessor and lessee when they signed that lease he did not know, nor was be concerned to inquire. All he had to find out, if he could, was what was the meaning of the expression used. The expression "regular clergyman" was a new expression, and one be never saw before; and, as far as he could find out, nobody ever saw it before, for his lordship had looked at a great many books on the subject, and the expression was not to be found in any of them. The first difficulty in the appellant's way was that Chitty, J., had put a rational meaning on the word "regular." He had held that "regular" meant a person who could officiate in that place without being guilty of irregularity, or could properly officiate. That was an intelligible meaning, and it gave effect to the word. The appellant gave no effect to it, and could not suggest any other meaning. Therefore, if it was to have any meaning at all, that was the meaning. What the appellant wanted the court to say was that it was mere surplusage, and had no meaning at all. That was a very difficult task, because being a word put in, not as a common form, but upon a subject quite extraordinary and new, it must be assumed it was to have some mean ing; and, no other meaning being suggested, and that being a rational meaning, he thought it ought to prevail. The facts were very strong in favour of that view. No one had a right to perform Divine service in this chapel, however regularly ordained as a clergyman of the Church of England, without having obtained two things-the licence of the bishop, and the consent, which was a licence in law, of the vicar of the parish. If without these he performed Divine service in that chapel, he was not performing it regularlythat is, according to law. He was guilty, if he had been inhibited by the bishop, of an ecclesiastical offence; and he was guilty of a common law invasion of the rights of the vicar of the parish in performing Divine service in his parish without his consent. That being the position of the matter, it seemed to his lordship plain that the defendant was, both according to English law and according to ecclesiastical law, which, for this purpose, was part of the English law, disabled from performing Divine service in this chapel. It was no answer to say that the persons who had a right to interfere viz., the bishop and the vicar-had not interfered. That did not make him a bit more regular or proper. A man might have a legal right, and he might not chocse to go to the expense and trouble of enforcing it in a court of law. It must be taken that the bishop had a right to prevent the defendant from officiating, and that being so, it was a breach of this covenant, and the meaning attributed to the word "regular" by Chitty, J., was correct. BRETT, L.J., said that if the word "regular" was used abstractedly with regard to a clergyman of the Church of England it had no meaning, because a clergyman of the Church of England must be a regular clergy inan of the Church of England, or else he was not a clergyman at all. But the word was part of a Covenant in a lease of a proprietary chapel, and, therefore, it was used with regard to the clergyman who was to perform duty in that chapel in relation to the chapel. The meaning of it then was that he must not only be a clergyman of the Church of England, but a clergyman of the Church of England who might perform duty in that church without its being irregular that he should do so. It had not, his lordship thought, anything to do with the doctrines which he might preach, whether his doctrine might be irregular or not, but it was with relation to his doing duty at all in the church; and, therefore, it was a covenant that he should not do duty in that church if it would be irregular for him to do duty at all as a clergyman of the Church of England in that church. That was a question of ecclesiaatical law, and he could not perform duty in such a chapel regularly unless he had the licence of the bishop and the consent of the vicar of the parish. Therefore, no other meaning could be attributed to the covenant than that the person must not only be a clergyman of the Church of England, but must also be a clergyman who could, without ecclesiastical irregularity, perform service in that chapel-that is, he must be a person licensed by the bishop, and who had the consent of the vicar. COTTON, L.J., said that the term 66 regular clergyman' was not confined to a clergyman who was duly ordained, but it required that he should be regular in performing Divine service, not with reference to the doctrine he preached, but regular ia performing in the proper way the service in the chapel. He could not do that without the licence of the bishop. Therefore, if that had been withdrawn, he was not, in his lordship's opinion, within the meaning of this covenant, a regular clergyman of the Church of England. SOLICITORS, Simpson, Hammond & Co.; A. D. Smith & Wood; Hume, Bird, & Co. PRACTICE - ADMINISTRATION JUDGMENT-SUBSEQUENT DISCOVERY OF LATER WILL OF TESTATOR AND REVOCATION OF PROBATE-APPEAL.-In a case of Dean v. Wright, before the Court of Appeal on the 2nd inst., a question arose as to the proper mode of procedure under the following circumstances. On the 12th of April, 1881, probate of a will, dated the 16th of November, 1869, of a testator was granted to his sister, who was named as executrix. An action was afterwards brought by some of the beneficiaries, against the executrix and other beneficiaries, to administer the estate of the testator, and judgment for administration was pronounced on the 14th of January, 1882. After this judgment had been passed and entered a will of the testator, dated the 8th of May, 1875, was discovered, which made different dispositions. Application was then made to the Probate Division, and the probate of the earlier will was revoked, and letters of administration, with the later will annexed, were granted to a daughter of the testator, who was one of the plaintiffs in the action. An application was then made to the Court of Appeal, by way of appeal, to discharge the judgment for administration and to dismiss the action. Advertisements had been issued, but no creditor had come in to prove under the judgment. The defendants did not oppose the application, but asked that provision might be made for the payment of their costs. The court at first doubted whether it could entertain an appeal, on the ground that the judgment was wrong only by reason of a fact (the revocation of probate and the grant of administration) which had happened after the judgment was pronounced, and suggested that it would be sufficient to stay all proceedings under the judgment. It was, however, urged that the judgment would affect the title to real estate of the testator, and that, in fact, the judgment was erroneous, because the earlier will had been revoked by the later one before it was pronounced, though the discovery of this fact was not made, and the grant of probate was not revoked till after the judgment. Ultimately the ourt (JESSEL, M.R., and BRETT and COTTON, L.JJ.), discharged the adminis tration judgment and dismissed the action, on the undertaking of the administratrix to pay the costs of the defendants out of the testator's assets. SOLICITORS, Chester, Mayhew, & Co. MORTGAGE-SECURITY ON TWO ESTATES-CONTRIBUTION.-In a case of Dunlop. Dunlop, before the Court of Appeal on the 2nd inst., a question arose as to contribution between two properties liable to the payment of the same debt. The action was brought for the administration of the real and personal estate of a testator, who died in August, 1878. He had some real estate in Westmoreland, and he held some shares in the Manchester and Liverpool District Bank. ing Company. The deed of settlement of the company, dated February 22, 1843, provided that every shareholder should, on demand by the directors, pay to the company all debts due from him, and that the shares of every shareholder who should omit so to do, and every dividend and bonus declared upon them should be liable to be forfeited to the company for the benefit of the other shareholders, and that every proprietor whose shares should so become forfeited should be thereupon considered as expelled from the company, but the forfeiture of the shares and the expulsion of the proprietor should not be considered as discharging him from the payment of the debt due from him to the company, or from any action for obtaining payment of the same, or from any further liability in respect of the shares, but that he should remain liable in respect of the debt and the shares as if there had been no such forfeiture or expulsion. There was another provision that the holder of shares might transfer the shares, provided that he should have previously paid every sum of money due from him to the company, including calls on shares. The testator had borrowed £10,000 from the bank, without any security, except such as arcse out of the above-mentioned provisions of the deed of settlement. He afterwards borrowed a further sum of £24,000 from the bank, depositing with them as security the title deeds of his Westmoreland property. At his death there was more than £30,000 due from him to the bank. The bank had made no demand for payment. The devisee of the testator's Westmoreland estates claimed to have the debt due to the bank borne rateably by that property and the bank shares, which were included in the testator's residuary bequest. Chitty, J., decided against the clain. He was of opinion that the above provisions of the deed of settlement did not give the bank any charge or lien on the shares, and that, if there was any charge or lien, it did not stand on an equality with the specific charge created by the equitable mortgage, and that, consequently, there was DO right in the owner of the mortgaged estate to call on the owner of the shares to contribute to satisfy the debt. The Court of Appeal (JESSEL, M.R., and BRETT and COTTON, L.JJ.) affirmed the decision. JESSEL, M.R., said that the provisions of the deed of settlement were somewhat peculiar, but he was unable to imagine any language more clear than that of the forfeiture clause, whatever might be thought of its abstraot justice. It was clear that if the company forfeited shares for non-payment of a debt due by the shareholder the debt still remained due; not a sbilling of it was paid by the forfeiture. His lordship did not see how this provision could be called a security for the debt. The forfeiture was a penalty for non-payment of the debt. The other clause of the deed carried the matter no further. It did not impose any penalty on the shareholder, but it conferred on him the privilege of transferring the shares on the condition of his paying all debts due by him to the company. It did not provide for payment of the debt. It was only an inducement to the shareholder to pay it. His lordship could not see how it created any charge or lien on the shares. If the forfeited shares were sold by the company, there was no provision that the proceeds of sale should be applied in payment of the debt. But, assuming that a charge or lien on the shares was created, what was its nature? It could not be pat higher than a general charge or lien, which would be the right of the bank to keep all securities in their hands belonging to their customer till he bad paid all debts due from him to them. That was quite a different thing from a specific charge on specific real or personal estate. As a rule the equitable doctrine as to contributions between two properties which were security for the same debt, applied only when the two charges stood on an equality, when the two properties were a common fund for the payment of the debt. The doctrine did not apply when the one charge was general and the other specifc. When an estate was mortgaged for a specific sum, that was evidence of an intention that that estate should be the primary fund for the payment of the debt, although the mortgagee might be entitled by custom or otherwise to a general lien on other property belonging to the mortgagor. His lordship agreed with the decision of Chitty, J., and the reasons he had given for it. BRETT, L.J., concurred, but said that he did not intend to decide whether, if a shareholder owed the bank £10,000, and his shares were forfeited for nonpayment, and were sold by the bank for £10,000, they could afterwards sus him for the debt. His lordship said he should struggle hard to avoid such a construction of the provisions of the deed of settlement. But it was not necessary to decide the point now, for the bank having made no demand for payment of the debt of the testator, the power of forfeiture never arose, and, therefore, could not give any security to the bank. And the power of preventing a shareholder from transferring his shares only arose if he wished to do so. If he did not, the company would be helpless, and that power could not, therefore, be said to create a charge or lien on the shares. COTTON, L.J., said that the provisions of the deed of settlement did not create any charge or lien on the shares for a debt due by the shareholder to the company, but only enabled the company to put a pressure on the shareholder to compel him to pay the debt, and the proper inference from a mortgage of property for a specific debt was that the testator intended the mortgaged property to be the primary fund for the payment of the debt.-SOLICITORS, Murray, Hutchins, & Stirling. TO PROOF IN BANKRUPTCY-ADMISSION BY TRUSTEE-Right to Apply to EXPUNGE-LAPSE OF TIME-BANKRUPTCY RULES, 1870, RR. 72, 73.—In a case of Ex parte Harper, before the Court of Appeal on the 27th ult., the question arose whether the trustees of an inspectorship deed, executed in 1869 under the provisions of section 192 of the Bankruptcy Act, 1861, and which provided that the estate of the debtors should be administered as in bankruptcy, could apply in May, 1882, to expunge the proof of a debt which it was said that they had admitted in May, 1879. Rule 73 of the Bankruptcy Rules, 1870, provides that "if, at any time after the admission of any debt by the trustee, he shall have reason to believe that such debt has been improperly admitted, he may apply to the registrar, upon affidavit setting forth the facts, for a day to be appointed for the court to consider the propriety of expunging the proof or reducing the amount thereof." JESSEL, M.R., said that rule 73 had no direct bearing on the case, because the deed was executed before the Act of 1869 came into operation. But that rule only expressed the old rule of prac tice in the Court of Bankruptcy. There was no limit to the time within which an application might be made to expunge a proof of debt, and there were numerous cases in which proofs had been expunged after the lapse of years, on the ground that the original admission was wrong. The new rule was in accordance with the old practice. No injustice would be done, for dividends already paid in respect of the proof would not be disturbed. The expunging only affected future dividends. BRETT, L. J., could see no reason why delay should estop the trustee from expunging that which ought never to have been admitted. Rule 73 adopted the old practice in the largest possible terms, and under both the old practice and the new rule, if the trustee had admitted a proof in the most formal way, it could, at any time afterwards, however long, be expunged, if it had been originally improperly admitted. COTTON, L J., concurred.-SOLICITORS, Simpson & Cullingford; Peacock & Goddard. setting aside a deed which had been executed by the bankrupt about a year and a half before the commencement of the bankruptcy, and which the trustee in the bankruptcy alleged to be fraudulent under the statute 13 Eliz. c. 5. By the deed in question the bankrupt had conveyed to his father, professedly in consideration of £100, some land which was worth about £500, and the trustee alleged that after the execution of the conveyance the bankrupt continued to deal with the property as absolute owner, and that the conveyance was executed only for the purpose of defeating and delaying the bankrupt's creditors. The bankruptcy proceedings were in a county court, and the trustee applied to the court for a declaration that the deed was void as against him. The father objected to have the question tried in the county court, and insisted that it might be determined in an action in the High Court, where be would have the advantage of a jury of twelve men. The judge overruled the objection and made an order declaring the deed void. Bacon, C.J., held that the case was one in which the Court of Bankruptcy ought not to exercise its jurisdiction under section 72, but ought to leave the matter to the ordinary tribunals. This decision was affirmed by the Court of Appeal (JESSEL, M. R., and BRETT and COTTON, L.JJ.). It was urged, on the authority of Ex parte Brown (L. R. 11 Ch. D. 148), that, inasmuch as the trustee was claiming, not through the bankrupt, but by a higher and better title, the Court of Bankruptcy ought to decide the question itself. JESSEL, M.R., said that after the decision in Ex parte Armitage (L. R. 17 Ch. D. 13), it must be held that section 72 enabled the Court of Bankruptcy to try all cases of this kind itself if it was desirable to do so. But the court had a discretion whether it would try them or not, and the mode in which that discretion ought to be exercised was fairly pointed out in Ex parte Armitage. In the present case there was an allegation of gross fraud against the father and the son-viz., that they conspired together to sell the property to the father in order to cheat the creditors of the son. Property worth £500, and questions seriously affecting character were involved. The father, who was not a bankrapt, and who was not directly amenable to the jurisdiction of the Court of Bank ruptcy, desired that the question should not be tried in the county court, but by the ordinary tribunals, where it would be tried by a judge of high rank, and there would be a jury of twelve men (instead of only five), and he could have the assistance of a higher class of counsel. Was this an unreasonable objection? Ought the court to compel the father to submit to the jurisdiction of the county court in a case in which the amount at stake was so much beyond the ordinary jurisdiction of a county court, except in bankruptcy matters, and such serious questions of character were involved? The judge of the county court appeared to have thought that he had no discretion in the matter, and not to have exercised any. Therefore there was nothing in the objection that the Chief Judge had interfered with the exercise of discretion by the county court judge. His lordship thought that the Chief Judge had come to a right conclusion. BRETT, L.J., said that, assaming that the objection to the deed arose only under the Statute of Elizabeth, he thought that the Court of Bankruptcy had jurisdiction to try the question, and the only ground on which the order of the county court judge could be interfered with was that he had a discretion which he did not exercise. If the matter in dispute had been of small amount-say, under £50-his lordship should have thought that the court ought not to interfere with the discretion of the county court judge, if he had exercised it by saying that he would try the case himself. In the same way, if the amount in dispute had been a large one in a case within the district of the London Bankruptcy Court, and the Chief Judge had said that he would try it himself with a jury, his lordship would not have been inclined to interfere. He thought the case would not stand on any different footing if the allegation was that the deed was void, not under the Statute of Elizabeth, but as a fraudulent preference. No doubt the fact that the allegation of fraud was made under the Statute of Elizabeth had something to do with the question whether the jurisdiction should be exercised, but his lordship did not wish to preclude himself from saying that, even if the question to be tried was one of fraudulent preference, it might not be right, if the party objected, that it should not be tried in the Court of Bankruptcy. But here there was a charge of personal fraud, and the father objected to have a question affecting his character and his right to property worth £500 decided in a county court, not from any personal objection to the judge, but because he wished to have the case decided by a jary of twelve of his countrymen under the superintendence of a judge of the High Court. Moreover, if it was tried in that way, it would be tried at the assizes by a jury of neighbours of his own who knew his character. This was of immense importance to him, if he was an honest man, and it would be a strong thing to deprive him of this right. Ex parte Armitage was a direct authority for such a case. COTTON, L.J., concurred.-SOLICITORS, W. W. Wynne & Son; Ullithorne, Currey, & Villiers. BILL OF SALE-STATEMENT OF CONSIDERATION-REGISTRATION-AFFIDAVIT -EXPLANATION TO GRANTOR-BILLS OF SALE ACT, 1878, ss. 8, 10.-In a case of Ex parte Bolland, before the Court of Appeal on the 27th ult., a question arose as to the statement of consideration in a bill of sale, and there was the further question whether the affidavit which has to be filed on the registration of a bill of sale ought to contain a statement that the effect of the deed has, before its execution, been explained by the attesting solicitor to the grantor. Section 8 of the Bills of Sale Act, 1878, provides that "every bill of sale to which this Act applies shall be duly attested and shall be registered under this Act within seven days after the making or giving thereof, and shall set forth the consideration for which such bill of sale was given," otherwise the bill of sale is to be void as against a trustee in bankruptcy of the grantor, unless apparent possession of the property is taken by the grantee before the filing of the bankruptcy petition. Section 10 provides that "a bill of sale shall be attested and registered under this Act in the following manner :-(1) The execution of every bill of sale shall be attested by a solicitor of the same was Supreme Court, and the attestation shall state that before the execution of the bill of sale the effect thereof has been explained to the grantor by the attesting solicitor. (2) Such bill, with every schedule or inventory thereto annexed or therein referred to, and also 8 true copy of such bill and of every such schedule or inventory, and of every attestation of the execution of such bill of sale, together with an affidavit of the time of such bill of sale being made or given, and of its due execution and attestation, and a description of the residence and occupation of the person making or giving the and of every attesting witness to such bill of sale, shall be presented to, and the said copy and affidavit shall be filed with, the registrar within seven clear days after the making or giving of such bill of sale.' The questions arose thus :-In October, 1879, Roper agreed to purchase a leasehold brewery from Booth for £2,500. An assignment to Roper was executed. dated the 21st of October, 1879, by which Booth acknowledged the receipt of the £2,500. In fact, only £500 was paid by Roper, it being agreed that the balance of £2,000 should remain on the security of a mortgage to Booth of the property, and a bill of sale to him of the stock-in-trade and other loose chattels and effects in the brewery belonging to Roper. This mortgage deed was executed immediately after the assignment, and was dated the 22nd of October, 1879, and it was expressed to be made in consideration of £2,000 "paid by the grantor to the grantee immediately before the execution of these presents," the receipt whereof the grantor did thereby acknowledge. No part of the £2,000, in fact, passed between the parties, but it was the balance due to Booth upon the purchase of the brewery. The execution of this deed by Roper was attested by & solicitor, and the attestation clause stated that, before the execution, the effect of the deed was explained by the solicitor to Roper. The deed was registered under the Bills of Sale Act, the affidavit filed on the registration being made by the attesting_solicitor. The affidavit stated that the deponent was present and saw Roper sign and execute the deed on the 22nd of October, 1879, but it did not state that the effect of the deed explained to him by the solicitor before he executed it. Roper filed a liquidation petition in the Liverpool County Court in August, 1880, and the trustee in the liquidation applied to the court to declare the mortgage deed void as against him, as regarded the chattels comprised in it, on the grounds (1) that the consideration for the deed was not truly stated in it; and (2) that the affidavit ought to have stated that the effect of the deed was explained by the solicitor to the grantor before he executed it. The county court judge held that the deed was void against the trustee on the latter ground. Bacon, C.J., reversed the decision, holding that neither objection was tenable. The Court of Appeal (JESSEL, M.R., and BRETT and COTTON, L.JJ.) affirmed the decision of the Chief Judge. JESSEL, M.R., thought that both points were covered by previous decisions. As to the first point, the consideration stated in the bill of sale was £2,000 paid by the grantor to the grantee immediately before the execution of the deed. What did these words mean, having regard to the facts? The grantor owed the grantee £2,000, part of the purchase-money of the leasehold property. He had paid him £500 in cash, and he gave him the bill of sale as security for the balance of £2,000, and this was accepted by the grantee instead of payment. Was this in law a payment of the £2,000 by the grantor to the grantee? His lordship had no doubt that it was, or that it would support a plea of payment in an action. It was not necessary that anyone should attend with the £2,000 in bank-notes or sovereigns, and that they should be handed over and then handed back. When the transaction was a bona fide one such an arrangement had always been held to be a payment. And Ex parte Challinor (29 W. R. 205, L. R. 16 Ch. D. 260) was an express decision of the Court of Appeal, which had been since recognized, that such a mode of payment was a payment, and was properly so described. As to the other point, the word "attestation" in sub-section 1 of section 10 of the Act meant the "attestation clause," and that sub-section provided that the same clause should state the fact of attestation, and also the fact of explanation. The explanation was no part of the attestation; it was to take place before the execution of the deed. Then, in subsection 2, the word "attestation " meant the attestation itself, and what was required was an affidavit of the attestation-that is, that the deed was signed, sealed, and delivered in the presence of the attesting witness. The words of the Act, therefore, were satisfied by the affidavit made in the present case. It was suggested that the affidavit should go on to say that before the execution But there was no the deed was explained by the solicitor to the grantor. such provision in the Act, and it would be wholly unnecessary, for a copy of the attestation clause must be filed on the registration and could be seen by any creditor of the grantor. Indeed, the very point was decided by this court in Ex parte National Mercantile Bank (28 W. R. 848, L. R. 15 Ch. D. 42), in which it was held that the Act did not require that any actual explanation should be given to the grantor, but only that the attestation clause should state that an explanation had been given. That could not be so if it was necessary that there should be an affidavit that the explanation was given. The present argument was wholly inconsistent with the decision in that case. BRETT, L.J., said that what took place in the present case would be said by any man in business, and would be held in any court of law, to be a payment of £2,000, and if it was necessary to plead payment in an action, the plea would be proved by that which had taken place. As to the other point, it was decided by the very words of the Act. The execution of the bill of sale was to be attested by a solicitor, and when section 10 said that the "attestation " should state that, before the execution of the deed, its effect had been explained to the grantor, it must mean that the attestation clause should state this. The explanation could not be part of the execution, which was the thing to be attested. Then sub-section 2 said that there was to be an affidavit of the "due execution and attestation" of the deed—i.e., of the fact, not of the clause, of attestation-that the person who attested was present and saw the deed executed. In order to support the present argument, sub-section 2 ought to require that the affidavit should state that, |