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AND CLIENT IN PRESENCE OF A THIRD PERSON.

in the order, are to be the property of the client. The remuneration provided for by schedule 1 is not to include stamps, counsel's COMMUNICATION BETWEEN SOLICITOR fees, auctioneer's or valuer's charges, travelling expenses, search fees, or other reasonable and proper disbursements, nor extra work occasioned by the death or insolvency of a party, but it is to include stationer's charges, parchment, and copying. Where business is "by special exertion carried through in an exceptionally short space of time," additional remuneration may be allowed to the solicitor. A solicitor may accept from the client security for the amount to become due, and he may charge interest at four per cent. after the expiration of a month from the demand upon the client.

THE JUDGMENT of the House of Lords in Kinlock v. The Secretary of State for India in Council (30 W. R. 845) is the termination of a litigation which dates from the time of the Indian Mutiny. There are many barristers still in practice who were fortunate enough to hold briefs in the great Banda and Kirwee Booty case before the late Dr. LUSHINGTON in 1866. It may be remembered that an Order in Council had transferred to the Court of Admiralty the duty of ascertaining the persons entitled to share in the property captured in the towns of Banda and Kirwee in 1857, and that Dr. LUSHINGTON decided in favour of the personal representatives of Lord CLYDE and his staff, and of the officers and men under the command of Sir GEORGE WHITLOCK. By a subsequent Royal Warrant her Majesty granted to the Secretary of State for India for the time being all the booty captured at or in Banda and Kirwee, and its proceeds, "in trust for the use of" all the persons interested, to whom it has been adjudged by the Court of Admiralty, "such booty and proceeds to be distributed by our Secretary of State for India in Council for the time being, or by any other person or persons he may appoint." The plaintiff, who had been an Army chaplain attached to Sir G. WHITLOCK'S column, sued the Secretary of State, alleging that a great part of the fund had not been distributed, and that the accounts which had been furnished were inaccurate. A demurrer to the statement of claim had been overruled by Vice-Chancellor HALL, but his judgment was reversed by the Court of Appeal. The plaintiff's counsel founded his claim to relief upon the words of the Royal Warrant, as creating an express trust, and, therefore, rendering the Secretary of State liable to account. The respondent's counsel were not heard, and the Lord Chancellor went very fully into the question of the trust. He first pointed to the circumstance that the Royal Warrant had not described the then Secretary of State for India by name, but merely as the Secretary of State "in Council," and "for the time being," as negativing the presumption of a trust. Again, the Court of Admiralty had determined only what classes of forces were to share in the booty, and in what proportions inter se, the Crown having reserved to itself the question of the scale of distribution among the respective ranks. The powers given by the Royal Warrant to the Secretary of State, and especially that of determining disputed claims, pointed to an intention to make him an agent for the Crown rather than to constitute him a trustee subject to the jurisdiction of the Chancery Division. Lord O'HAGAN pointed out that there was no precedent for a court of equity assuming jurisdiction over such a fund, that there was "no magic in the word trust,'" and that the fund must get out of the possession of the Crown before any equitable jurisdiction could arise, but that the Royal Warrant did not involve any transfer of it. Lord BLACKBURN rested his decision upon the short point that the Secretary of State was simply made an agent for the Crown to distribute the fund when he was satisfied that the claims upon it were well founded.

From a parliamentary return issued this week it appears that the number of persons imprisoned in Ireland under the Protection Act on the 31st of July last was 170. Of these 52 were confined in Kilmainham, 39 in Enniskillen, 32 in Galway, 21 in Dundalk, 14 in Nans, and 12 in Kilkenny Gaole. The greater number of the prisoners are suspected of being guilty of murder; o'her offences for which suspicion is entertained against the remainder being incitation to murder, shooting and wounding, unlawful assembly, the posting of and sending of threatening notices, intimidation, and arson.

THE doctrine that professional communications made to legal advisers are confidential and privileged is well established in English law. Whether, however, the term " "privileged communication," often used in reference to this doctrine, is the best that could have been selected, is doubtful, when we consider that the natural meaning of the words "privileged communication" is, that the subject-matter of the communication is in itself privileged, not that the communication is one which may, or may not, be privileged, according to the class of persons present when it is made. This ambiguity in the term itself seems to have left the exact limits of the operation of the rule as to privileged communications somewhat undefined, and it is to the question what are the exact limits of this rule that we wish to direct attention.

Now one of the commonest things, indeed an every-day occurence among the lower middle class, is for clients to consult their solicitors in company with a friend. The presence of a third person seems to give them the courage needful for so formidable an interview. What is the position of this third person in regard to "privileged communications"? He is present at the consultation, and becomes acquainted with all the points in the client's case. The client is protected from disclosing any communication made by him to his legal adviser, and his legal adviser is not permitted, save with his client's consent, to make known any such communication. May the third person present at the interview, in the character of a friend, disclose information thus obtained? Is it a wholly "privileged communication," or is it a communication privileged only as between solicitor and client strictly? Before we attempt to answer this question, let us state a case which recently came under our notice.

A testator who had made a valid will leaving all his property to a brother, was near death, and desired to make another will. The village schoolmaster, A., and his son, B., were called in, and a will leaving everything to D., a sister of the testator (who was keeping house for him), was drawn up and executed. The testator died, and D., accompanied by A., went to a neighbouring solicitor to instruct him to obtain probate of the second will. The solicitor put certain questions to A., and, finding that the will had been irregularly attested, he declined to act in the matter. Subsequently the brother of the testator brought to the same solicitor the first will, and this having been properly executed, the solicitor undertook to get it proved. Probate of the first will was opposed, on the ground that it was revoked by a subsequent will, and the action was remitted by the Probate Court to the assizes for trial. On the trial of the action the solicitor who was acting for the brother was called, and evidence of what passed between him and D. and A. was objected to, on the ground of privilege. D. on being called swore that she was in and out of the room at the time the will was executed, and did not see it signed, but knew they were signing it; and as to what passed at the solicitor's office, she claimed privilege. B., the son of A., swore that the will was properly attested. A. swore the same, and on being cross-examined as to what passed at the solicitor's office, counsel for D. claimed privilege. The judge was inclined to think that there was privilege, and so ruled, but reserved the point at the request of counsel. It was never cleared up, as the case was compromised. Here, then, we have a case where the whole issue depended upon the question of privilege or no privilege. No doubt it is a case which can very seldom arise, but still it seems strange that the text-books contain no reference to any single case bearing directly upon the presence of a third person present at an interview between solicitor and client.

If, however, we may apply the rules of common sense to such a case, we should be inclined to say that, if a client wished his communications with his solicitor to be secret, he should take measures to secure their privacy. It seems difficult to draw a distinction between such a case and that of a client saying something in a loud voice to his solicitor in court, so that it may be overheard by a dozen other people. And surely, if this

occurred, the mouths of a dozen people could not be stopped. The only decision which seems to be at all near the case in point is that of Fountain v. Young (6 Esp. 113), where it was held that a communication made to one who was not a solicitor, under the mistaken idea that he was one, was not privileged. Whether this would be still considered to be good law is, perhaps, doubtful, but if it goes rather far in declaring that privilege cannot be extended in cases of mistake, it seems, at any rate, to lay down the principle that the doctrine of privilege must not be carried beyond the strict limit of solicitor and client. At the same time there is, doubtless, much to be said in favour of the view that communications between a client and his solicitor are absolutely privileged. But considering the doubt which exists in the matter, solicitors will do well to caution clients who consult them in company with a friend, as to the possibility of danger in this respect, for it may easily happen that matters disclosed in consultation should be made the foundation of purely vexatious litigation.

LEGISLATION OF THE YEAR.

DOCUMENTARY EVIDENCE.

45 VICT. C. 9.-AN ACT TO AMEND THE DOCUMENTARY EVIDENCE ACT, 1868, AND OTHER ENACTMENTS RELATING ΤΟ THE EVIDENCE OF DOCUMENTS BY MEANS OF COPIES PRINTED BY THE GOVERNMENT PRINTERS. [19th June, 1882.] The Documentary Evidence Act (31 & 32 Vict. c. 37), and many other Acts applying it (see, for instance, the Elementary Education Act, 1870, 33 & 34 Vict. c. 75, s. 83, the Local Government Board Act, 1871, 34 & 35 Vict. c. 70, s. 5, and the Prison Act, 1877, 40 & 41 Vict. c. 21, s. 91) provide that regulations and orders issued under the authority of the Treasury or other public offices "may be proved"-i.e., prima facie evidence may be given of them-by production of copies purporting to be printed by the "Government printer, Queen's printer, or a printer authorized by her Majesty." Private and local Acts of Parlialiament also are, by virtue of the earlier 8 & 9 Vict. c. 113, proveable by Queen's printer's copies. The present Act, which is to be called the "Documentary Evidence Act, 1882," has merely the effect of reading into all such Acts of Parliament the words" Stationery Office" in addition to the words "Government printer" or the like, "whatever may be the precise expression used" in the particular Act. All documents, therefore, printed under the superintendence of the Stationery Office are henceforth, by virtue of this Act, receivable in evidence. The Act applies to Ireland, and also extends the Act of 1868 to Ireland.

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This Act is to a certain extent modelled upon corresponding provisions in the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), s. 326, and the Regulation of Railways Act, 1871 (34 & 35 Vict. c. 48), s. 6, et seq., but it goes far beyond those provisions in minuteness of detail. The scheme of the statute which does not apply to certificated steamships, or mines, or boilers used exclusively for domestic purposes is that notice of every boiler explosion—that is, of the explosion of "any closed vessel used for generating steam, or for heating water, or for heating other liquids, or into which steam is admitted for heating, steaming, boiling, or other similar purposes "-is to be sent to the Board of Trade, and that the Board of Trade, either upon or without a preliminary inquiry, may or may not, in their absolute discretion, direct a "formal investigation" of the causes and circumstances attending the explosion. This notice, which is to be sent within twentyfour hours of the explosion, is to state very definitely the place and time of the explosion, the number of persons injured or killed, "and generally the part of the boiler which failed," with "such other particulars, if any, as the Board of Trade may require." It is to be sent by the owner or user, or the person

acting on behalf of the owner or user, and " if default is made in complying with the requirements" of the section prescribing it, the person in default is liable to a penalty of £20. We presume that the maxim "lex non cogit ad impossibilia" would come to the aid of persons failing to comply with the requirements of the section through genuine inability to discover all the details, but no express provision is made for such a case, which justices would probably attempt to meet by the infliction of a nominal penalty, whether legally recoverable, with costs, might perhaps be doubtful. This investigation is to be held locally" by a court consisting of not less than two commissioners appointed by the Board, of whom one at least shall be a competent and practical engineer, specially conversant with the manufacture and working of steam boilers, and one a competent lawyer "-a constitution which was probably suggested by that of the Railway Commissioners under section 4 of the Regulation of Railways Act, 1873. The court is armed with very full powers of entry and inspection of places and documents, besides having "all the powers of a court of summary jurisdiction when acting as a court in the exercise of its ordinary jurisdiction." For these powers, reference would have to be made to the Summary Jurisdiction Acts of 1848 and 1879, but the additional powers seem to be so sufficient and adequate that we cannot imagine a case where reference would be necessary. A very important provision is that "the court may order (section 7) the costs and expenses of a preliminary inquiry or formal investigation, or any part thereof, including therein the remuneration of persons holding such inquiry on investigation, to be paid by any persons summoned before it, or by the Board of Trade," so that it will be in the power of the court to mulet any person who may be proved to be in default in a very heavy sum of money. Šuch are the main provisions of the stringent-if the Board of Trade so please "Boiler Explosions Act, 1882." It remains to point out that, in event of death being caused by an explosion, an inquiry by the coroner will still be necessary, and that if there be evidence of manslaughter by any person, there may be also an inquiry before justices, before a grand jury, and before a petty jury. There is no power even to shorten an investigation before a coroner, however long the "formal investigation" might be, and the same witnesses would almost certainly be required. This is inconvenient and unfortunate, and we would hope that the next statute of a similar kind will provide for the case.

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Of all the minor Acts passed in the late session, this one, which bears the short title of "The Highway Rate Assessment and Expenditure Act, 1882," will require the most careful study. It contains ten sections only, but each of them will be found to present features of some little difficulty, owing to the incorporation by reference of other statutes, the difficulty of fusing Highway with Poor Law Acts, and the general complexity of the subject. We will deal with the sections in their order. Section 3 applies the provisions of the Act of 1869, as to composition with owners of small tenements, to highway rates, and it is noticeable that the principle of composition was introduced into rating for highway purposes by local Acts anterior to the Highway Act, 1835, as appears from the concluding portion of the section which repeals section 30 of that Act relating to the composition for rates under local Acts. By section 4 the "valuation list" (see Union Assessment Committee Act, 186225 & 26 Vict. c. 103), is made conclusive for the purposes of the highway rate. Section 5 provides for the recovery by an outgoing surveyor from his successor of moneys which may be due to him for expenditure lawfully incurred, but which the rate levied in his own term of office has proved insufficient to meet. This is surely in affirmance of the common law, but we know of no authority bearing on the point. The section, we presume, would receive a very liberal construction. The great milestone grievance is next dealt with by section 6, by legalizing the erection or repair of these useful little structures in a mode and manner which we have already criticized. Section 7 subjects

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CORRESPONDENCE.

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INTERPRETATION OF "LAND" IN THE CONVEYANCING
ACT.

[To the Editor of the Solicitors' Journal.]

Sir,-In an article in your number of the 15th ult., headed "Are leaseholds within section 18 of the Conveyancing Act?" it is maintained that the interpretation given by the Act to the word "land" is insufficient to embrace leaseholds for years.

I will not here follow the reasoning by which this result is reached, but will simply call your attention to the construction put upon similar

words in the Statute of Frauds.

,, waywardens to the supervision of the with grass growing at the sides. It had at the time of the action a cindered Poor Law, or to speak more correctly the district, auditor. By footpath along the whole of both sides, except for a very short portion on the section 8 all the provisions of the Poor Law (see Poor Law Audit westerly side. The footpath on the easterly side was made by the board in 1880; that on the westerly side in 1881. New Lane was repaired by the board Act, 1848-11 & 12 Vict. c. 91, s. 9) as to the recovery of as a highway repairable by the inhabitants at large. In 1876 and 1877 the moneys, goods, or chattels certified at the audit of the poor rate board made a sewer along the roadway, and in 1880 they channelled and accounts," are applied to the cases of " moneys, &c., certified by paved it along the whole length and width. The population of the district an auditor at a highway audit to be due from any person.' had increased in the last ten years from 15,126 to 21,785, and the number of houses from 3,205 to 4,057. On the west side of New Lane were twenty houses, Section 9 applies only to the peculiar case where a part of a some detached, others standing two, three, or four together. Of the land on parish is excluded from an urban sanitary district," and gives the west side not actually built on several plots besides the plaintiff's had power to the owners and ratepayers therein to decide "in manner been let for building purposes. On the east side there were sixty-seven houses, provided by schedule three of the Public Health Act, 1875," including a row of twelve cottages in course of erection, another row of sixteen cottages, a row of nine houses, another row of eight houses, another row of that the excluded part shall be a "highway parish," where- nine cottages, and another row of four cottages. Other land on the east side upon "if the resolution is approved by an order of the Local had been let for building purposes. The board in 1871 made some bye-laws as Government Board," such excluded part is to be, for all to the "level, width, and construction of new streets," and these bye-laws highway purposes, "considered and treated as a separate highway were allowed by the Local Government Board on January 1, 1872. The first of these bye-laws provided that "every new street shall be laid out and formed of parish.' Lastly, section 10, the interpretation clause, defines such width and at such level as the board shall in each case determine." highway audit," "highway parish," and other expressions; By-law 36 required that every person should, before beginning to make or lay defining "highway parish as a place separately maintaining its out any new street, give a month's notice in writing of his intention to the own highways, and, in a highway district (see as to formation of board, and should leave with their surveyor certain plans and sections. Bye. highway districts, section 5, et seq., of the Highway Act, 1862), intend to erect any new building. Bye-law 42 provided that the board should law 37 made similar requirements with regard to every person who should a place for which a waywarden may be elected or a separate high-approve or disapprove any proposed new works or buildings within the time way rate be made.” specified, and that the owner or person intending to erect any new street or building should give the notices thereby required, and that, if any owner or person should construct any works contrary to the provisious therein contained, the board, after calling on such owner or person to show cause, might, if they should think fit, have such works removed, altered. or pulled down, as the case might require. The plaintiff gave notice to the board of his intention to erect new buildings on his land, and left plans and sections at their office, showing the intended building line of his proposed new buildings. The board dis approved the proposed new buildings, on the ground that the houses would contravene the building line, and would be built within the line of the existing buildings on that side of the street, and they required the proposed building line to be thrown further back about ten yards from the roadway of New Lane. The plaintiff commenced to build according to his plans, and the board called on him to show cause why his works should not be removed. The plaintiff disputed the right of the board to disapprove of his plans on the ground that his intended building line was too near the roadway, or to pull down his new buildings if erected in accordance with his plans. The action was brought to restrain the board from doing what they proposed to do, and a special case was then stated for the opinion of the court, raising the question whether New Lane was a "new street" within the meaning of the Acts, and whether the board were entitled to disapprove of the plaintiff's new buildings the ground stated, or to pull them down. Fry, J., held that the term "new street" in the Acts applied only to a street constructed for the first time out of grass land or other vacant land, and not to an old country road in the neighbourhood of a town, which, by the building of houses on each side of it, had become, or was gradually becoming, a street, and that New Lane was not a "new street," and therefore the board had no power to disapprove or to pull down the plaintiff's new buildings. The Court of Appeal (JESSEL, M.R., and BRETT and COTTON, L. JJ.) reversed this decision. JESSEL, M. R., said that the Act was fairly open to more than one construc tion. The case was a very difficult one, and was fairly open to a difference of opinion; but regard must be bad to what must be presumed to have been the intention of the Legislature. The intention must have been to give to a local authority the power of regulating the laying out of new streets-a power to be exercised for the public benefit. What was the meaning of the term "new street"? His lordship should say it meant a street where there was no street before, though it might include more. This might take place in one of two ways. A street might be made out of a grass field, and, in his lordship's view, it would make no difference whether or not an old country lane or road was thrown into it. In such a case as this a person who designed to build houses along the street was to build them in a particular way and subject to the by-laws of the board. But then there was another case, where the street was not laid out in a formal way, but, so to speak, grew of itself. When did it become a street? At some time or other it must do so. But when? You could not tell unless you knew the locality. It was a question of fact in each case. Section 157 of the Act of 1875 plainly empowered the board to make bye-laws before the street was made, and the moment the street became a "new street it was subject to the bye-laws. Upon the facts of the present case his lordship thought there could be no doubt that New Lane was a "new street. It was a very young street indeed. The beard had in substance called on the plaintiff to build the street of a certain width. He was laying ship was satisfied that the defendants were acting within their powers. BRETT, L.J., said that the construction of the Act and the bye-laws, and their application to this particular case, was a matter of extreme difficulty. The Act dealt with two totally different kinds of streets-one which no one, without an Act of Parliament, would have called a street; the other which no one, without the Act, would have doubted was a street. Could you, by altering a street of the one kind into a street of the other kind, make it a new street"? It would be substantially altered, and it would certainly be new. His lordship thought that that which everybody would have called a street could be altered into a new street—e.g., an old narrow street in a town, if it was widened, would become a 66 new street." It was clear that New Lane was a street now without the aid of any interpretation clause in the Act. Was it a "new street"? It was said it was not, because, by virtue of the interpretation clause of the Act, it had been a "street" ever since the first Act was passed. But if it was altered into a totally different kind of street,

tenements, or hereditaments."

The words in the 7th section of the Statute of Frauds are "lands, Those of the interpretation clause referred to, omitting words of amplification, are “land, . . . tenements, and hereditaments." It is too well settled to need reference to cases that the 7th section of the Statute of Frauds includes leaseholds for years. It seems to me to follow that the same construction must be put upon the words of the interpretation clause of the Conveyancing Act. I may add that I am aware of nothing in the Statute of Frauds beyond the words I have quoted to influence the construction I have mentioned; on the contrary, the use of the word "conveyance" only, in the 8th section, might be supposed rather to point in the contrary direction. Temple, Aug. 15, A. J. WOOD.

CASES OF LAST WEEK.

66

on

POWERS OF LOCAL BOARD-" NEW STREET"-LOCAL GOVERNMENT ACT, 1858, s. 34-PUBLIC HEALTH ACT, 1875, s. 157.-In a case of Robinson v. The Local Board for Barton, before the Court of Appeal on the 7th inst., a question arose as to the powers of local boards with regard to new streets". viz., what is the meaning of the term "new streets" in the Local Government Act of 1858 and the Public Health Act of 1875. Section 34 of the Act of 1858 provides that, "Every local board may make bye-laws with respect to the following matters (inter alia) (1) with respect to the level, width, and construction of new streets, and provisions for the sewerage through." Section 157 of the Act of 1875 gives the same powers "to every urban authority." Section 2 of the Public Health Act of 1848 (with which, by section 4 of the Act of 1858, the latter Act is to be construed) provides that "the word 'street' shall apply to and include any highway (not being a turn-out a "new street," building a continuous line of houses. His lordpike road), and any road, public bridge (not being a county bridge), lane, footway, square, court, alley, passage, whether a thoroughfare or not, and the parts of any such highway, road, bridge, lane, footway, square, court, alley, or passage within the limits of any district." Section 4 of the Act of 1875 contains a similar definition of the word "street." There was at Eccles, within the district of the defendant board, a public highway called Newlane, which had existed for many years. It was 885 yards in length, running in a direction nearly north and south. The plaintiff had agreed to take a lease for a long term of a plot of land on the west side of New Lane for building purposes. Fifty years ago Eccles was a small country village, but at the time of the action it was a kind of suburb to Manchester. New Lane was not a turnpike road; it was formerly a country lane, with no well-defined footways, and it was usually repaired by having cinders thrown upon it. The board had repaired it since the date of their formation, about the year 1850. Until the last ten years it was a cinder roadway, with no well-defined footways, and

it was a 66
new street." That term in the Act must have a very elastic
meaning. The question was, When did the street begin to be a "new street"?
When did it change its character? If the land on both sides belonged to one
owner, and he had a plan for laying it out for building, he would begin to
lay out a new street when he built the first house, having the intention of
going on building. If the land belonged to a number of owners, no one of
them could make a plan for the others. But each might be intending to build
with regard to a particular roadway, and each would be laying out a
"new
street" with reference to what he was doing himself. He who begin first
would be first laying out a "new street," there being a common intention, or
design, to build. There might, of course, be cases in which no one could
say there was any common intention of building, where only one owner of
land had shown his intention. In such cases the street formed itself by suc-
cessive acts, without any common intent. It grew of itself. In the present
case it was obvious that all the landowners had an intention of building.
Some time ago New Lane began to be a street, and not so long ago as to
prevent its being a "new street." Then the board had made bye-laws, and his
lordship did not see anything to prevent them from determining in the case
of each house how it should form part of the street-i.e., how far it should be
set forward or backward. It was said that if they could do this they could
act capriciously as to the width of the street. But the Legislature had given
them the power. If they acted dishonestly, no doubt the law was strong
enough to control them. But, so long as they were acting honestly, they
had power to determine the width of the street at each particular point. His
lordship thought that the defendants were acting within their powers.
COTTON, L.J., thought that the construction of the Aet was very difficult, but
he had arrived at the same conclusion. The questions were, whether the
Board had power to make bye-laws, and whether they had done so. In
ordinary parlance, there could be no doubt that New Lane was a street, or
that, four or five years ago, it was not a street but a country lane, and in
common parlance it was a "new street." The ordinary parlance was not
excluded by the interpretation clause of the Act, which was intended to
include that which, in ordinary parlance, would not be a street. SOLICITORS,
Le Riche & Son; Byrne & Lucas.

PRACTICE-SPECIALLY-INDORSED WRIT-LEAVE TO DEFEND-COUNTERCLAIM-ORD. 14, R. 1.-In a case of The Zoedone Company v. Barrett, before the Court of Appeal on the 8th inst., a question arose as to giving leave to defend an action in which the writ was specially indorsed under order 14. The defendant alleged that he had a defence which was really in the nature of a counter-claim. JESSEL, M. R., said that it was not intended that on applications of this kind the court should try the action. There might be no defence to the action, but the court might think that such facts were disclosed as were sufficient to entitle the defendant to be permitted to defend the action. As Lord Blackburn said in Wallingford v. The Mutual Society (L. R. 5 App. Cas. 704, 29 W. R. 81), "there may very well be facts brought before the judge which satisfy him that it is reasonable, sometimes without any terms and sometimes with terms, that the defendant should be able to raise this question, and fight it if he pleases, although the judge is by no means satisfied that it does amount to a defence upon the merits." In the present case his lordship said that, before he could be satisfied that there was no defence on the merits, he should have to try several questions, all of which were susceptible of fair argument. The divisional court was right in saying that this was not a case for entering judgment under order 14. COTTON, L.J., said that for the purpose of such an application as this a counter-claim was a defence, though the refusal of leave to defend would not prevent the defendant from setting up his claim in a separate action. Still, for this purpose, a ground of counter-claim ought to be treated as a defence. An application under order 14 was not meant to be the means of determining brevi manu questions which ought to be argued at the trial, where the defendant showed a bona fide intention of raising these questions there.-SOLICITORS, F. Heritage & Co.; Coode, Kingdom, & Cotton.

RAILWAY COMPANY-DEBENTURE HOLDERS-PRIORITY-RECEIVER-PAYMENT OF WORKING EXPENSES AND PROPER OUTGOINGS-RAILWAY COMPANIES ACT, 1867 (30 & 31 VICT. c. 127), ss. 4, 23.-In a case of In re The Cornwall Minerals Railway Company, before the Court of Appeal on the 4th inst., a question arose upon the construction of sections 4 and 23 of the Railway Companies Act, 1867. Section 4 provides that, on the appointment of a receiver or manager of the undertaking of a company, "all money received by such receiver or manager shall, after due provision for the working expenses of the railway and other proper outgoings in respect of the undertaking, be applied and distributed under the direction of the court in payment of the debts of the company and otherwise, according to the rights and priorities of the persons for the time being interested therein." Section 23 provides that, with certain exceptions (such as rent-charges and claims for land taken for the purposes of the railway or injuriously affected by the construction thereof), all money borrowed or to be borrowed by a company on mortgage, or bond, or debenture stock under the provisions of any Act authorizing the borrowing thereof, shall have priority against the company, and the property from time to time of the company, over all other claims on account of any debts incurred or engagements entered into by them after the passing of this Act." In the present case the Cornwall Minerals Railway Company sold their rolling stock to a company called the Yorkshire Railway Wagon Company, and afterwards the wagon company let it on hire to the railway company. The bona fides of this arrangement was impeached, but the Court of Appeal decided that it was a bona fide transaction (vide The Yorkshire Railway Wagon Company v. Maclure, ante, p. 434). The railway company were thus in possession of a large quantity of rolling-stock belonging to the wagon company, for which they had agreed to pay rent. Then an agreement

was entered into between the railway company and the Great Western Rail-
way Company for the working of the Cornwall line by the latter company,
and it was part of this agreement that rolling-stock of the wagon company to
the amount of £40,000 should be handed over to the Great Western Company
to enable them to work the line. But it was also agreed that if the Great
Western were called on to pay anything for the wagons they should deduct it
from the rent which they were to pay for the line. Part of the rolling-stock
was not taken by the Great Western Company, and some of that part was sold
by the Cornwall Company, and the purchase-money was in court. The rest of
the rolling-stock was let by the Cornwall Company to another company, and
another sum in court was rent paid by the last-mentioned company. A third
sum in court represented rent paid by the Great Western Company. After-
wards a receiver of the Cornwall Company's undertaking was appointed, and
under this receivership the moneys came into court. The wagon company
claimed to be paid out of these moneys the rent which was due to them, and
Kay, J., granted the application. A debenture holder, who had taken his
debentures subsequently to the agreement between the Cornwall Company
and the wagon company, appealed. The Court of Appeal (JESSEL, M.R.,
and BRETT and COTTON, L.JJ.) affirmed the decision. JESSEL, M.R., said
that, whatever might be the legal rights of the appellant, what was his moral
position? He wished to take away the money which had been earned by the
use of the wagons belonging to the wagon company, without paying them the
hire of their wagons. If he had a legal right to do this, of course he could do
it. The legal right depended on the Railway Companies Act of 1867. The
appellant said that section 23 of that Act gave him a right to payment in
priority to claims on account of any debts of the company. But, whatever
that section might mean, and whatever charge or preference was thereby given
to debenture-holders, it was subject to the provisions of section 4. The
moment a receiver was appointed all rights became subject to those provisions.
Whatever right or priority, therefore, the appellant had, it was subject to the
provisions of section 4. What was the meaning of "working expenses"?
His lordship had not the slightest hesitation in saying that it must include
rent for the rolling-stock used in working the line, and, if that rent was not a
working expense," it must certainly be a proper outgoing. Kay, J., had,
therefore, decided rightly. BRETT and COTTON, L.JJ., concurred.-SOLI-
CITORS, Maples, Teesdale, & Co; Singleton & Tattershall; Murray, Hutchins,
& Stirling; Norton, Rose, & Co; Cope & Co.

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BANKRUPTCY-PROTECTED TRANSACTION-NOTICE OF ACT OF BANKRUPTCY AVAILABLE FOR ADJUDICATION "-FAILURE TO COMPLY WITH DEBTOR'S SUMMONS-BANKRUPTCY ACT, 1869, ss. 6, 94.-In a case of Hood v. Newby, before the Court of Appeal on the 4th inst., a question arose, apparently for the first time, on the construction of section 94 of the Bankruptcy Act, 1869. That section protects "any contract or dealing with any bankrupt made in good faith and for valuable consideration, before the date of the order of adjudication, by a person not having, at the time of making such contract or dealing, notice of any act of bankruptcy committed by the bankrupt and available against him for adjudication." The question was whether notice of an act of bankruptcy committed by the failure of a debtor to comply with a debtor's summons, the debtor being afterwards adjudicated a bankrupt on the petition of a creditor who did not issue the summons, is sufficient to deprive the creditor who receives the notice of the protection of section 94-i.e., whether, in fact, the notice must be of an act of bankruptcy "available" for the making of the particular adjudication which is, in fact, made. By section 6 of the Act it is provided that a bankruptcy petition founded on an act of bankruptcy committed by non-compliance with a debtor's summons can be presented only by the creditor who has issued the summons. In the present case the trustee in the bankruptcy of the defendant claimed to set aside an agreement between him and the plaintiff, which was entered into at a time when the plaintiff had notice of an act of bankruptcy committed by the defendant in failing to comply with a debtor's summons issued by the plaintiff himself, been made on the petition of another creditor who had issued a second the adjudication not having proceeded on that act of bankruptcy, but having debtor's summons, which had not been complied with by the bankrupt. Chitty, J., held that the notice must be of an act of bankruptcy available for the making of the adjudication actually made, and therefore decided against the claim of the trustee. The Court of Appeal (JESSEL, M. R., and BRETT and COTTON, L.JJ.) held, on the contrary, that notice of an act of bankruptcy available at the time when the actual adjudication was made, for the making of any adjudication was sufficient to deprive the creditor who received the notice of the protection. On the one side reliance was placed on the dicta of James, Baggallay, and Thesiger, L.JJ., in Ex parte Crosbie (26 W. R. 119, L. R. 7 Ch. D. 123), that the notice must be of an act bankruptcy "which would have been available for the making of the particular adjudication-i.e., any act of bankruptcy upon which the adjudication might have proceeded.' On the other hand, reliance was placed on the dicta of James and Mellish, L.JJ., in Ex parte Hankin (23 W. R. 401, L. R. 10 Ch. 267), that "no distinction is made in section 94 between an act of bankruptcy under a debtor's summons and any other act of bankruptcy." In neither of these cases, however, did the point now raised arise. JESSEL, M.R., said that the question was whether the transaction in question was protected by the 94th section, which said that a transaction could be protected only in favour of a creditor who had no notice of any act of bankruptcy "available for adjudication." Now, certainly at the time when this contract was made the creditor had notice of the first debtor's summons, for he had taken it out himself. But was that an act of bankruptcy "available for adjudication" within the section? He thought it was. The section did not say "available on the petition of every creditor." It was sufficient that it was available on the petition of some creditor. The only other question was at what time the act of bankruptcy must have been available at the date of contract or at the date of the adjuication-and the court had already decided that it meant at the date of the adjudication. That being so, it was plain that, according to

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the natural meaning of the section, this contract was not protected. Then

were there any authorities binding on the court, which prevented it from CASES BEFORE THE VACATION JUDGE. coming to this decision? He was of opinion that, although some of the words used by the judges in previous cases were very general, this point was not then before them, and that they had not decided it. The question which they then decided related to the time at which the act of bankruptcy was to have taken place. The present question was a new one, and had never yet been decided. BRETT, L.J., said that the argument for the respondent involved reading the latter words of section 94 as "notice of an act of bankruptcy available for the adjudication actually made." But the Legislature had omitted in this section the very article "the" which was necessary to support that argument. If the omission had made the section absurd for the purposes of business, it might have been the duty of the court to imply the word. But when the omission made the provision sensible and applicable to all acts of bankruptcy, the proper inference was that the word was left out designedly for the purpose of including acts of bankruptcy arising from default in complying with a debtor's summons. No doubt such an act of bankruptcy could berelied on for the purpose of supporting a hostile petition only by the creditor who had issued the summons. But it would be a strange thing if a man, who had notice of an act of bankruptcy committed by his debtor by disobedience to a debtor's summons, could enter into a valid transaction with him, and yet that he could not do so if he had notice of any other act of bankruptcy committed by him. The business necessity showed what was the meaning of the Legislature in leaving out the definite article in section 94. COTTON, L.J., said that, taking the words "available for adjudication' in their widest sense, there would be no limit at all. But that would be unreasonable. It could not be meant that notice of an act of bankruptcy committed ten years before would do. There must be some limit, and the natural limit would be one of time; that is, if the creditor had no notice of an act of bankruptcy, which at the time of the making of the adjudication would have been available for making an adjudication, he was protected; if he had notice, he was not protected. It was said that the court was precluded from coming to this conclusion by reason of what was said in Ex parte Crosbie ; but there the court was dealing only with the question of the time at which the act must have been committed, not with the question which arose on the present occasion.-SOLICITORS, Harper & Battcock; Ashurst, Morris, &

LIMITED COMPANY-WINDING UP-PETITION BY COMPANY-CONSENSUS OF SHAREHOLDERS-COMPANIES ACT, 1862, 8. 91.-In the case of In re The Central Wynaad Gold Mining Company (Limited), before North, J., sitting as Vacation Judge, on the 16th inst., a petition was presented by the company for a winding-up order. It appeared that the company was incorporated in May, 1881, with a capital of £100,000 in 100,000 shares of £1 each, for the purpose of acquiring and working gold mines in Southern India. New directors had been recently appointed, and by the allegations in the petition it appeared that they had ascertained that it was impossible to successfully work the property of the company, and that under the circumstances it could not carry out its undertaking, and that the company was in fact commercially insolvent, and the only prospect of recovering any money for its shareholders was by means of a winding up. The winding up was opposed by a large number of contributories and creditors, who submitted that the petition must be treated as a petition by the directors and not as a petition by the company, and that it should be ordered to stand over for the purpose of enabling the view of the general body of shareholders to be ascertained. NORTH, J., said that the statements of the persons who had been appointed new directors should be paid attention to. He was satisfied from a perusal of the petition that the winding. up order prayed for should be granted. There would be the usual order as to costs.-SOLICITORS, Snell, Son, & Greenip; J. Holmes; J. Vernon}Musgrave; Beall & Co.; Sheffield & Co.

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INJUNCTION PUBLIC BODY-NUISANCE-UNDERTAKING.-In the case of Selous v. The Wimbledon Local Board of Health, before Chitty, J., on the 7th | inst., a motion was made by the owner and occupier of a private house and grounds for an injunction to restrain the local board from depositing on land adjacent to that of the plaintiffs', and discharging into the river Wandle, Sewage matter. The plaintiffs case was that an intolerable nuisance of a most injurious character was caused by the local board depositing sewage in an unpurified state on an adjacent sewage farm belonging to the board, and from thence discharging it into the river, which bordered on the plaintiffs' property. CHITTY, J., said that the nuisance, if any, appeared to have been in existence some considerable time before the action was commenced, and the defendants had almost made out a case for the injunction being refused on the ground of delay. It was to be borne in mind that the defendants were a public body, having important and onerous duties to discharge in the interest of the public generally, whilst the plaintiffs were private persons. It was, no doubt, true that a distinction of this kind in no way impeded the court from interfering in cases where these duties were not properly discharged in accordance with the law; but the court was, nevertheless, slow to grant an injunction in a case like the present against a public body if the injunction Bought for was in any way likely to operate in breeding pestilence and causing public calamity. The plaintiffs, no doubt, said that the nuisance complained of was injurious to their personal health, but the plaintiffs had their remedy in their own hands. They could leave the scene of the nuisance, possibly at serious personal inconvenience; but then, if the action should result in their favour, they would be entitled to adequate compensation. His lordship's judgment was that, upon the evidence as taken together with the balance of convenience and inconvenience, the present case was not one in which the court would be willing to interfere by granting an interim injunction if an undertaking was offered by the defendants. With respect to the evidence, there was the usual conflict. This was easily accounted for. Those who went to smell, smelt offensive smells; those who went with the wish not to smell, smelt none, the reason being that, when the mind was set in a particular direction, senses were apt to follow the mind, and thus a conflict of testimony easily arose, although the statements of witnesses were made in perfect honesty. The whole case was one which could be better decided at the trial of the action. He should, therefore, upon the defendants giving an undertaking to cleanse out the sewage-carriers forthwith in the most approved manner, so as not to create during such cleansing any nuisance, make no order except that costs of the motion be costs in the action.-SOLICITORS, Learoyd & Co.; W. II. Whitfield; Tibbitts & Son.

The number of failures in England and Wales gazetted during the week ending Saturday, August 12 was 180. The number in the corresponding week of last year was 229, showing a decrease of 49, being a net decrease in 1882, to date, of 593. The number of bills of sale published in England and Wales for the week ending August 12 was 814. The number in the corresponding week of last year was 960, showing a decrease of 146, being a net decrease in 1882, to date, of 1,143. The number published in Ireland for the same week was 23. The number in the corresponding week of last year was 36, showing a decrease of 13, being a net decrease in 1882, to date, of 259,-Kemp's Mercantile Gazette.

INJUNCTION-TRADE-MARK-BOTTLES INDELIBLY IMPRESSED.—In the case of Allen v. Richards, also before North, J., on the 16th inst., a motion was made by the plaintiff, a vendor and manufacturer of mineral and aerated waters, for an interim injunction to restrain the defendant, a keeper of a beer-shop, from selling ginger beer not manufactured by the plaintiff in mark. The bottles in question were bought at second-hand by the defendant, bottles stamped or marked with the plaintiff's name or registered tradewho filled them with his own ginger beer and labelled them with an adhesive label bearing his own name. The defendant contended that the plaintiff had parted with the whole property in the bottles and also denied any fraudulent user. The plaintiff relied on the decision of Malins, V.C., in a similar case: Rose v. Loftus (47 L. J. Ch. 576, 27 W. R. Dig. 242). NORTH, J., said that if the defendant chose to buy second-hand bottles bearing a trade name and filled them with the same liquid as the owner of the name was in the habit of filling them with, the defendant was not in a position to resist an injunction if applied for. The affixing of the defendant's own label did not affect the question, for the label might get removed in a variety of likely ways-for instance, if the bottle were plunged in ice. If the label under such circumstances were to come off, there would be nothing to prevent the public from believing that they were purchasing, in the bottles stamped with the plaintiff's name, ginger beer manufactured by the plaintiff. The injunction must, therefore, be granted.-SOLICITORS, David. son & Morriss; Charles Mallam, for T. P. G. Mallam, Oxford.

PRACTICE-LIMITED COMPANY-WINDING UP-Petitioner outside JurisDICTION-SECURITY FOR COSTS-SIMULTANEOUS ADVERTISEMENT OF PETITIONS. -In the case of In re The Carta Para Gold Mining Company, also before North, J., on the 16th inst., two petitions were presented for the winding up of the company, one by a shareholder, and the other by the directors of the company. Objection was taken to the shareholder's petition on the ground that the petitioner, although addressing from a London club, was resident in Scotland, and it was contended that, as he was outside the jurisdiction of the court, he ought to give security for costs. It also appeared that, although both peti tions were advertised in the same number of the London Gazette, the directors, petition was presented on August 3, and the shareholder's on August 4. NORTH, J., overruled the objection on the ground that it was too late to take it at the hearing, and made a winding-up order on both petitions, the carriage of the order to be given to the petitioners in the directors' petition, such petition being entitled to priority as having been the first presented.-SOLICITORS, J. Vernon Musgrave; Beall; E. Kimber; S. H. Behrend.

PUBLIC COMPANY-CONTEMPT OF COURT-BREACH OF INJUNCTIONSEQUESTRATION.-In the case of The Attorney-General v. The South-Eastern and The Submarine Continental Railway Companies, also before North, J., on the 16th inst., a motion was made that a commission of sequestration might issue against the personal estate and rents and profits of the defendants, on the ground of disobedience to an injunction granted on the 5th of July last by Kay, J., restraining the defendants until the trial of the action from further proceeding with the excavations under the bed of the sea between Folkestone and Dover, in connection with the Channel Tunnel works, beyond ordinary low-water mark, without the consent of the Board of Trade. The order referred to enabled the defendants, subject to the supervision of the Board of Trade, to execute any works which might be necessary for the pur poses of draining and ventilating the tunnel. On the 17th of July last an inspection was made on behalf of the Board of Trade, when it was found that the boring had been carried 600 yards beyond the low-water mark, and from the report made by Colonel Yolland it appeared that the works had been carried seventy-two yards further since the date of the order of Kay, J., but the defendants only admitted having carried the works a distance of thirtytwo yards since that order. NORTH, J., upon it being stated by the Attorney-General that there was no desire to proceed to extremities with the defendants, but only to protect the rights of the Crown and to uphold the order of the court, said that the defendants had, so far as they admitted

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