whose custody any party may be under a writ de contumace capiendo for the discharge of such party out of custody, and such NON-COMPLIANCE WITH DEBTOR'S SUMgaoler or sheriff shall, on receipt of the order, forthwith discharge such party, "provided no such order shall be made without the consent of the other parties to the suit." Now, here is to be found the only key which can from the outside unlock Mr. Green's prison door. The learned Dean of Arches has no personal desire, it may be assumed, to prolong Mr. Green's punishment; but will the promoters consent to or apply for his discharge? Probably they would not be unwilling to do so if they could feel quite sure as to what would then happen at Miles Platting. Hence arises the importance of appointing a successor to Mr. Green-or, at any rate, of licensing a curate who would not permit an intrusion. Until this is done the promoters are not likely to take any step which would enable Mr. Green to return and repeat his offence. But it may be far from easy to secure an incumbent who will offer an uncompromising opposition to Mr. Green. The patron is here master of the situation. He may present any one he chooses, except only the deprived person (Public Worship Regulation Act, s. 13). Suppose he happens to sympathize with Mr. Green's views, it is scarcely likely that he will appoint a sturdy opponent of Ritualism. At present he does not appear inclined to make any appointment at all, though it is clear that he can do so forthwith and without reference to any notice of the vacancy from the bishop. Section 13 of the Public Worship Regulation Act enacts that, upon avoidance of the living, "it shall be lawful for the patron to nominate as if the incumbent were dead," and the duty of the bishop with reference to giving notice of the vacancy is only important as far as the question of lapse is concerned. By the 1 & 2 Vict. c. 106, s. 58, which is incorporated with section 13 of the Public Worship Regulation Act, the avoidance is to be reckoned, "for the purposes of lapse," from the date of the notice. It is expedient, therefore, that the bishop should give the notice, and thus put himself in the position of being able himself to collate an incumbent in six months' time in case of the patron failing to present. Indeed, the language of the 1 & 2 Vict. c. 106 is imperative, and, in spite of the advice he has received from his chancellor, it seems plain that he is neglecting his statutory duty.

Meanwhile the services at the church have been permitted by the bishop to remain in charge of Mr. Green's former curates, from whom it would be idle to expect any strenuous resistance to Mr. Green's return. How it happens that the same bishop who thought so seriously of the illegality of Mr. Green's practices as to authorize his prosecution, is at the same time satisfied to allow the same unlawful practices to be continued, as in fact they are by the curates in charge, is one of those ecclesiastical mysteries on which we offer no opinion. It is sufficient to point out that, as long as the benefice is vacant and the services in the church are under the control of clergy who certainly will not lend a hand to put down Ritualism," the obstacles in the way of Mr. Green's release are formidable, if not insuperable. Mr. Green will not himself apply to Lord Penzance to be "absolved ' from his contempt, and, under present circumstances, his prosecutors are not unnaturally reluctant to apply for him. Some Act of the Legislature, similar to that which the Archbishop of Canterbury unsuccessfully attempted to carry last session, may prove to be the only way out of the difficulty.

66

The English reports (the Albany Law Journal states) are very little if any better than the American, so far as the reporting goes. "Our reporters are at least never guilty of introducing every remark of the judges on the argument, which remarks seldom tend to edification, and are merely the staggerings of the mind' of the judges, to borrow a phrase of President Garfield."

The United States Supreme Court, says the Canada Law Journal, have given a decision in the case of Knickerbocker Ins. Co. v. Foley (11 Fed. R. 766), which at first sight appears a little startling. In taking out a policy of life insurance, the applicant had answered affirmatively the questions"Are you a man of temperate habits?" "Have you always been so?" The Supreme Court held that this answer was not necessarily untrue, although the jury might find that he had had an attack of delirium tremens, resulting from an exceptional indulgence in drink prior to the issuance of the policy; for that his habits, "in the usual, ordinary, and every-day routine of life," might nevertheless be temperate.

MONS AS AN ACT OF BANKRUPTCY. A CONSIDERABLE amount of misapprehension appears to exist as to the effect of the decision of the Court of Appeal in the recent case of Hood v. Newby (ante, p. 657). The facts of the case appear to be that the plaintiff in the action had sued out a debtor's summons against the defendant on which the latter made default, whereupon the plaintiff filed a bankruptcy petition against him. Subsequently an agreement of compromise was entered into between them, whereby the defendant undertook to pay the plaintiff a sum of money, and the bankruptcy petition was allowed to drop. But in the meantime the defendant had committed another act of bankruptcy (of which, however, the plaintiff had no notice when he entered into the agreement with the defendant) upon which he was afterwards adjudicated a bankrupt. In the action by the plaintiff against the defendant, the trustee under the bankruptcy of the latter claimed to set aside the agreement, on the ground that at the time it was entered into the plaintiff, although he had no notice of the act of bankruptcy upon which the adjudication proceeded, had notice of an act of bankruptcy "available for adjudication" under section 94 of the Bankruptcy Act, 1869, committed by the defendant in failing to comply with the debtor's summons issued by the plaintiff himself; and this contention was upheld by the court. The very important fact in the case, which we have printed in italics, is not very fully stated in the report of the case, and it has been supposed in some quarters that the act of bankruptcy upon which adjudication proceeded was not committed until after the agreement impeached by the trustee had been concluded. If this had been so, the decision would be in direct conflict with prior decisions of the Court of Appeal in Ex parte Wier, Re Wier (19 W. R. 1042, L. R. 6 Ch. 880) and Ex parte Bouchard, Re Moojen (28 W. R. 129, L. R. 12 Ch. D. 26), but as it is, the decision is reconcileable with those cases, as we shall endeavour to show, although we think it is at the same time open to comment.

Before discussing the precise point raised in the case of Hood v. Newby let us for a moment glance at some of the differences between the present law as to debtors' summonses and the former law as to the same. Section 6 of the Bankruptcy Act, 1869, provides that any one of the acts or defaults therein mentioned shall constitute an act of bankruptcy-viz. (inter alia), "That the creditor presenting the petition has served in the prescribed manner on the debtor a debtor's summons requiring the debtor to pay a sum due, of an amount of not less than fifty pounds, and the debtor, being a trader, has, for the space of seven days, or not being a trader has, for the space of three weeks, succeeding the service of such summons, neglected to pay such bankruptcy is available for adjudication provided a bankruptcy sum, or to secure or compound for the same," and such act of petition be presented within six months from the committal thereof. Under the Act of 1849 (which was not altered in this respect by the Act of 1861) debtors' summonses (therein called trader debtor summonses) were issuable against traders only, and were available for adjudication for two months only after default as therein provided. On the other hand, when once an act of bankruptcy was committed by a debtor under a debtor's summons, any creditor or creditors of the debtor for the requisite amount to constitute a petitioning creditor's debt could present a bankruptcy petition founded thereon. Again, under the present law, as laid down by the decided cases on the point, the act of bankruptcy becomes complete on the expiration of the time stated in the summons-viz., seven days, or three weeks as the case may be, after service thereof and there is no provision for postponing the completion thereof; but by the Act of 1849 provisions were enacted which enabled the creditor and debtor, by arrangement, to stave off the actual committal of an act of bankruptcy. These being the principal differences between the present law and the Act of 1849, we will now proceed to review the various decided cases which appear to us to have reference to the point raised in the case of Hood v. Newby.

The first case is that of Ex parte Wier, Re Wier, to which we have already alluded. In that case the question was as to the time from which the act of bankruptcy would count. The sum

be deemed to commence from the completion of the act of bankruptcy. That must be from the expiration of the time limited for compliance with the debtor's summons. It cannot mean the filing of the petition, for the reason stated by the Lord Justice. The only question then is, whether the case comes within the protection of the 94th section. There is no distinction made in that section between an act of bankruptcy under a debtor's summons and any other act of bankruptcy. I think it must, therefore, apply to that as well as to others."

mons was served on a non-trader on the 21st of July, 1870. Within three weeks from service thereof the debtor applied to the court to dismiss the summons, on the ground that the debt was not owing, and the registrar made an order that if, on or before the 12th of August, 1870, security were given for payment of the debt and costs, all proceedings on the summons should be stayed until after the trial of an action to be brought by the creditor. The debtor made default in finding security, and within six months from such default, but more than six months after the expiration of three weeks succeeding the service of the summons, the creditor presented a bankruptcy petition. The objection was raised that it was too late, being more than six months after the committal of the act of bankruptcy. On behalf of the creditor it was contended that the act of bankruptcy was not concluded until the failure to find security; but Mellish, L.J., in a considered judgment, upheld the objection of the debtor, and decided that the act of bankruptcy was complete at the expiration of three weeks after service of the summons, although the creditor could not proceed upon it until failure to find the security ordered. In the course of the argument for the petitioning creditor section 11 of the Bankruptcy Act, 1869, which has a most important bearing upon the point we are discussing, was referred to. That section runs :"The bankruptcy of a debtor shall be deemed to have relation back to and to commence at the time of the act of bankruptcy being completed on which the order is made adjudg-ing the £125 paid into court. He then applied to the Court of ing him to be bankrupt; or, if the bankrupt is proved to have committed more acts of bankruptcy than one, to have relation back to and to commence at the time of the first of the acts of bankruptcy that may be proved to have been committed by the bankrupt within twelve months next preceding the order of adjudication." In the course of his judgment, Mellish, L.J., said: "It was also argued that if an act of bankruptcy was committed in all cases at the end of the three weeks, the creditor afterwards could not safely receive payment of the debt, because he would receive it with notice that an act of bankruptcy had been committed, and that if the debtor was after-L.J., in the course of his judgment, said: "I am of opinion that wards adjudicated a bankrupt on the petition of another creditor, the title of the trustee would relate back to the act of bankruptcy which was completed at the expiration of twenty-one days. We do not think this consequence would follow. When the debt is paid, the act of bankruptcy committed at the expiration of the time mentioned in the debtor's summons ceases to be an act of bankruptcy on which the debtor can be adjudicated a bankrupt, and we think it at the same time ceases to be an act of bankruptcy to which the title of the trustee can relate back under the 11th section."

The next case is the one on which reliance appears to have been placed by the trustee in the case of Hood v. Newby-viz., Ex parte Hankin, Re Buchan (23 W. R. 401, L. R. 10 Ch. 267). There the facts were precisely similar to those in Hood v. Newby, with the single important exception that the creditor who issued the first debtor summons, and afterwards received payment of his debt, had, at the time he received such payment, express notice of a second act of bankruptcy committed by the debtor, in failing to comply with a debtor's summons issued by another creditor, upon which act of bankruptcy he was subsequently adjudicated bankrupt. It was contended, on behalf of the creditor who had received payment of his debt, that the act of bankruptcy upon which the debtor was subsequently adjudicated bankrupt was not completed until the creditor who had sued out the summons had followed it up by filing a bankruptcy petition, which was not done until four weeks after the payment to the other creditor of his debt. In delivering judgment, James, L.J., said: "The act of bankruptcy is complete on the expiration of seven days from the service of the summons. It is impossible to contend that it is not complete till the filing of the petition; if so, there would be no time from which the six months within which the petition must be filed would run. That being so, the payment must be void unless it came within the 94th section, which protects payments made in good faith to a creditor without notice of an act of bankruptcy, and available against him for adjudication. The Act does not say available for all the creditors generally'; if so, there might have been a difficulty." Mellish, L.J., also said :"The 11th section of the Act provides that the bankruptcy shall

In Ex parte Bouchard, Re Monjen, to which we have also already alluded, the facts were, that in December, 1877, the creditor presented a bankruptcy petition against the debtor, the act of bankruptcy being the non-compliance with a debtor's summons issued for a disputed debt of £100 odd. On the hearing of the petition on the 11th of January, 1878, an order was made adjourning the further hearing until the 18th, on the debtor undertaking to pay into court, by the 17th, £125 to abide the result of an action to be brought by the creditor. The amount was paid in on the 18th, and the hearing of the petition by consent adjourned sine die. In May following the debtor was adjudicated bankrupt on the petition of another creditor presented in February. Under an order made in January, 1879, in the action which had been commenced by the creditor in the preceding January, the debtor withdrew his defence, and the creditor signed judgment for his debt and costs, together exceedBankruptcy and obtained an order for payment out to him of the £125 paid in by the debtor, and the trustee appealed therefrom. On behalf of the appellant, the contention was that the title of the trustee related back to the act of bankruptcy committed by the debtor in failing to comply with the debtor's summons issued by the creditor himself, and that, therefore, the subsequent payment into court was not protected as a security to the creditor. The Court of Appeal, following the remarks of Mellish, L.J., in Ex parte Wier, Re Wier, which we have quoted, upheld the decision of the court below and dismissed the appeal. James, the equitable title of the petitioning creditor to the money was complete when it was paid into court to abide the event of the action. The only question then was, What was the event of the action? The money was to be the creditor's if he established his title to it, and he did so. Such a provision would be idle if the whole thing could be afterwards defeated by the relation back of the title of the trustee appointed on another creditor's petition to the act of bankruptcy committed on the debtor's summons. The case is really decided by what Mellish, L.J., said in Ex parte Wier in delivering the considered judgment of the court. The act of bankruptcy committed on a debtor's summons is only a qualified act of bankruptcy, and that is what Mellish, L.J.'s, judgment really amounted to." Baggallay and Thesiger, L.JJ., who with James, L J., constituted the Court of Appeal, also concurred.

It follows from the cases which we have cited that if the debtor in Hood v. Newby had not committed a second act of bankruptcy until after the transaction impeached had been concluded, such transaction would have been unassailable. The remarks of James and Mellish, L.JJ., in the case of Ex parte Hankin, Re Buchan, clearly had reference to the second act of bankruptcy committed by the debtor, and of which the creditor had express notice at the time when he received payment of his debt, and had no reference whatever to the previous act of bankruptcy committed by him in failing to comply with the first debtor's summons served upon him. The real point in the case of Hood v. Newby then, was, that the debtor having, before the transaction impeached by the trustee had been completed, committed an act of bankruptcy, to which the trustee's title related back under section 11 of the Act, the transaction was clearly covered by that act of bankruptcy, so as to avoid it unless the creditor could bring it within the protection of section 94. Compelled to argue from that point of view, therefore, reliance was placed on his behalf upon the decision of the Court of Appeal in Ex parte Crosbie, Re Bedell (26 W. R. 119, L. R. 7 Ch. D. 123), in which the court interpreted the words "notice of any act of bankruptcy available for adjudication against the bankrupt," in section 31 of the Act, to mean (according to James, L.J.) notice of "an act of bankruptcy available for adjudication at the date of

So much for the principal section of this Act, which created considerable excitement in the House of Lords, and which has already, probably, caused almost equal excitement in tramping circles. A further section appears to re-enact, with an almost unnecessary amendment (for it seems only to express what was implied before), the enactments of section 7, sub-section 5, of the Act of 1871, and of section 44 of the Poor Law Amendment Act, 1876 (39 & 40 Vict. c. 61), which impose upon a person who obtains poor relief by false statements all the pains and penalties which are imposed upon "idle and disorderly persons by the Vagrant Act (5 Geo. 4, c. 83).

ARTIZANS AND LABOURERS DWELLINGS.

45 & 46 VICT. c. 54.-AN ACT TO AMEND THE ARTIZANS AND LABOURERS DWELLINGS ACTS.

REVIEWS.

SOLICITORS' REMUNERATION.
CONVEYANCING Costs under thE SOLICITORS' REMUNERATION ACT, 1881, AND
THE GENERAL ORDER MADE IN PURSUANCE THEREOF, BEING A COMPLETE
GUIDE TO THE NEW SCALE OF CHARGES. By J. S. RUBENSTEIN, Solicitor.
Waterlow Brothers and Layton.

This is a very useful handbook of the new Order. It consists, first, of a summary of the Act and Order and notes thereon. The notes are generally careful and shrewd. They bring out many of the points to which we have drawn attention, and notice one or two others which we have not stated. For instance, on rule 6, which gives the solicitor the option to elect before undertaking the business whether he will be paid by scale or according to the present system, as altered by Schedule II., Mr. Rubenstein points out that its main operation will be in cases where the solicitor is to be paid by a person for whom he is in no way concerned, as, for instance, in the preparation of a lease by the lessor's solicitor. The summary is followed by the Act and Order in full, and then comes, perhaps, the most useful part of the book, in which the scales are worked out, and elaborate tables are given of the commission payable on various amounts under and have found them accurate. There is, however, a misplaced bracket in the heading on page 66 which may mislead, and should be altered in the next edition. There are a few forms of statements of charges appended and extracts from statutes relating to costs.

CORRESPONDENCE.

AUCTIONEERS' COMMISSIONS.

[To the Editor of the Solicitors' Journal.] Sir,-Most, if not all, of the Liverpool auctioneers are mere sellers of

household furniture, and their cpinions as to the value of any real property which they may be called upon to offer are not asked for, and

I would be useless.

There are two sets of enactments dealing with labourers' dwellings. The principal Act of the first set is "The Artizans and Labourers Dwellings Act, 1868 (31 & 32 Vict. c. 130)." This deals with dwellings owned by individual owners. The principal Act of the second set is "The Artizans and Labourers Dwellings Improve-different circumstances. We have verified these tables on many items ment Act, 1875" (38 & 39 Vict. c. 36). This deals with dwellings owned by a body of owners by means of a "scheme" for pulling them down when unhealthy and replacing them by more proper dwellings. Each of these Acts was amended by a separate Act in 1879-the Act of 1868 by 42 & 43 Vict. c. 64, and the Act of 1875 by 42 & 43 Vict. c. 63. The present Act, which has quickly followed the recommendations of a Select Committee of the House of Commons, which reported only so recently as (we believe) July last, amends both the Acts of 1868 and 1875 in a separate "Part" allotted to each. The main object of the Act is to cut down the expenses which were found to attend the working of the parent Acts, and this is done in two ways. First, it is provided (and this provision is common to both "parts") that, in estimating compensation to owners affected by the Acts, an arbitrator is no longer to take into account "all circumstances affect ing the value" of the premises affected, in addition to the elements of compensation particularly specified in the enactments themselves such as (see section 19, sub-section 2, of the Act of 1875) "the fair market value, due regard being had to the nature of the property, and the probable duration of the buildings," &c. The second provision, which affects the Act of 1875 only, is a very elaborate one. It will be remembered that section 5 of the Act of 1875 required local authorities to provide accommodation for persons of the working classes who might be "displaced" by a "scheme." This requirement, notwithstanding an amendment by the Act of 1879 to the effect that a provision of dwelling "other than within the area" inhabited by the displaced ones should be sufficient, was found (as might have been expected) to entail a very great burden upon the rates. The present Act, therefore, further cuts down the new accommodation to be required. This object is effected by a very great expenditure of words, which shortly come to this, that in the metropolis the accommodation is reducible by one-half, and elsewhere altogether, if the "confirming authority i.e., in the metropolis, the Metropolitan Board of Works, in the City of London, a Secretary of State, and elsewhere, the Local Government Board-think fit to dispense with the obligations imposed by the Act of 1875.

An amusing definition reaches us, says the Albany Law Journal, from the Pacific. In People v. Gray, California Supreme Court (9 Pac. C. L. J. 778), the jury had in their room, on tap and in daily use, three or four kegs of beer, and also consumed two demijohns of wine; and "two bottles of whisky at each meal, including breakfast"; this was held not to be "suitable and sufficient food," and the consumption thereof was held to be improper conduct calling for the setting aside of the conviction, although it did not appear that any juryman was thereby unfitted for the discharge of his duty.

The London correspondent of the Manchester Guardian says that, with a view to rendering the parcels post perfect, the Postmaster-General is now considering an important scheme for the general insurance of parcels, which will probably be submitted to Parliament next year, and these in turn will in all probability be followed by the adoption of the proposal for the insurance of letters containing valuables, to which Mr. Fawcett gave approval last year, but which he was compelled to postpone for more immediately pressing matters.

The practice of even the leading auctioneers here as regards sales of real estate at the public auction-rooms is to charge a fee of one guinea for each lot if bought in, or of two guineas if sold; and this no matter how large the purchase-money may be.

If there be many lots it is usual to stipulate that the fees in respect of those bought in shall not exceed four or five guineas. The auctioneer incurs no trouble except to attend at the auction-room for about an hour and read the particulars and special conditions of sale. The public sale conditions of our local law society are generally used and are never read. If the solicitor feels any doubt as to his auctioneer's ability to read or pronounce such words as "hereditaments" or "muniments," occurring in the manuscript, or considers him "shaky" in the matter of the aspirate, he wisely reads the particulars and conditions

himself.

Sometimes, but not often, the auctioneer takes the trouble to visit the property; his name is not, however, usually inserted in the advertise. ment among the list of those from whom "further particulars" may be obtained.

The solicitor prepares and inserts the advertisements. The printer sees to the posting of the sale placards on the walls. The solicitor distributes a portion of them among the members of the profession, and the estate agent engages the auction-room and, in fact, does all except actually offer the property; and why, when he has done so much, he should refrain from qualifying himself to do what little remains by taking out the necessary license, and should, at the critical moment, hand over the disposal of his client's property to a person whose chief occupation is to "knock down" chairs and tables, is quite incomprehensible to Liverpool, September 26. A LIVERPOOL SOLICITOR. P.S.-As regards the omission to prescribe the remuneration of a vendor's solicitor when acting for the purchaser, I suppose that the framers of the scale did not like to appear to sanction such a practice by providing for the case. They were perhaps under the impression that if a purchaser found he had to pay as much to the vendor's solicitor for preparing his conveyance as he would have to pay to his usual solicitor, he would prefer employing the latter.