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VI.

IN approaching the questions as to the course of procedure in the courts of first instance, the committee give us some view of the ends to which they suppose their attention to have been

directed.

"In the next place the committee had to consider how far it was possible, in those cases in which litigation was continued after the appearance of the defendant, to adopt a procedure (1) for ascertaining the cases in which there is a real controversy between the parties; (2) for diminishing the cost of litigation in cases which are fought out to judgment.

The

What then are pleadings? They are, in the first place, the THE PROCEDURE COMMITTEE'S REPORT. statement of the plaintiff's case. And in a case where the transaction explains itself, and the details are alone necessary, there is nothing to call for any further or more formal statement. details ought to be given, and if the details are given, everything is given. But it would be a great error to suppose that any large proportion of actions in the High Court, which can come to the stage of pleadings are of this simple description; and if it is the transaction, rather than the relief or claim, that needs to be explained, That they are sometimes particulars are no longer in place. applied for as the cheapest way of remedying your adversary's defective pleading is true; and it is also true that matters which Now, as to the second object, we can accept it as a legitimate be much better given in the way of particulars than in that of Occupy the doubtful regions between "fact" and "evidence" may object, and as the actual object to which, no doubt, the thoughts formal allegation. But in neither of these cases-neither where of all members of the Committee continually turned. But as to the first, we can neither discover that it is a reasonable the pleading ought to have rendered them unnecessary, nor where subject of inquiry, nor what part of the report is directed they are a reasonable supplement to the pleading could to this end. It is an end that legal reformers have frequently lines which are furnished by the pleadings, and within which the particulars properly serve their purpose, without those leading set before themselves; it is one that has produced many attempts to bind the consciences and the tongues of liti-particulars are, as it were, written in. gants, and much perjury. In truth there is a real contro-heading of "Goods sold and delivered" is enough to point out versy whenever either party chooses to raise one; and the true clearly the nature of every one of a hundred items in a tradesman's object should be to raise it clearly and to try it quickly. A case, bill; but it is because they are so headed that the particulars are whether on the part of plaintiff or defendant, which is not well particulars, if necessary, be given; but let a properly pleaded sufficient and instructive. In actions of a different class, let grounded will look the smaller the more it is set in a clear light; statement show what is the case to which those items which are and the hearing is its natural extinction. Those then are the true objects to keep in view, and they were both aimed at by the items of claim are to be referred, and which the opposite party is Judicature Acts and Orders. We must see whether at all, and if

at all how far, they will be more perfectly attained by the proposals of the committee.

There can

On one point we are glad to find ourselves in harmony with the committee-namely, as to the advantage of particulars. While applications for "further particulars" are often frivolous and should be acceded to with reluctance, the original application is of all proceedings in an action one of the most bona fide, the machinery is one of the cheapest and simplest, and its operation is at once the most instructive and the most binding. be no doubt at all that the refusal of particulars which a litigant party needed has frequently led to the use of the expensive and troublesome machinery of interrogatories; stranger still, that when litigants would themselves have preferred the equally effectual and the cheaper method, Judges and Masters have expressly told them that they should deliver interrogatories instead, and have made the application for particulars so perilous that parties have chosen, under this authoritative direction, rather to use interrogatories to which they had a right than to take the chance of having to pay the costs of an unsuccessful application for particulars. We are satisfied that this assertion would be borne out by every practitioner, and we find our view strongly confirmed by a letter signed "One of Them," which appeared in our columns last week, and which we take the liberty of referring to for its valuable practical observations on several important points.

With a sudden revulsion of feeling the committee are now satisfied that particulars are not only useful, but that they are the one thing needful, and that pleadings are of so little use that it needs the order of a judge (and by judge they evidently do not mean master) to sanction their use.

Before approaching this question we will venture to make a few remarks of a purely practical kind as to the function of particulars and their relation to the writ and to pleading. A writ is intended both to summon the defendant before the court, and also to tell him why he is summoned, in order that he may early make up his mind whether to defend the action or to settle with his adversary. If the plaintiff were compelled to set forth his demand fully in the writ he would be unduly hindered; on the other hand, if he is permitted to do so, an opportunity is afforded of challenging the defendant at an early period to show whether he has any ground that will bear statement for disputing the plaintiff's claim.

Next, what are particulars? They are details; primarily details of the claim itself—that is, of the relief asked for. Where the transaction is of a very ordinary kind these details are all that is needed. In an action, for instance, on a tradesman's bill the things supplied, the dates when supplied, and the amount charged are all that require to be known. The transaction explains itself.

to be called upon to meet.

In a word, the short

plaintiff's case, is equally true of pleadings considered as the What has been said of the pleadings, as the statement of the statement of the defendant's defence, of his counterclaim, and of the plaintiff's reply.

It is impossible, therefore, to assent to the wisdom of the committee's proposals as they stand. Yet they may be assented to in part. It seems reasonable in any case where the plaintiff may properly content himself with delivering particulars (which for many reasons he cannot always indorse on the writ, and therefore cannot use ord. 21, r. 4), he ought to be at liberty to deliver them under such a general heading as is sufficient on the writ, in place of making any more formal statement. And where such particulars are delivered, the defendant should be as much bound to admit or deny the items as he is to admit or deny the separate allegations of a formal pleading. We venture to think that this point was overlooked in drawing the pleading rules, and that if this liberty were given it would be greatly to the advantage of all character of the recommendations of the committee by which parties. But this is a humble proposal; with none of the drastic pleadings are to be practically abolished, and a domestic or paternal system of settling disputes introduced.

"1. The plaintiff shall on his writ indorse the nature of his claim, in a manner similar to that in use on indorsed writs at present. The defendant shall, within, say, ten days after appearance, give notice of any special defences-such as fraud, the Statute of Limitations, payment, &c.; after which he intends to rely.

the plaintiff shall give notice of any special matter by way of reply on which

"2. Every action shall be assigned to a particular master's list. At any time after the writ, appearance, and time for notice of defence, a summons (hereinafter called a summons for directions) may be taken out by either party before the master to whom the cause is assigned for directions as to any one or more of the following matters :-Further particulars of writ, further particulars of defence or reply, statement of special case, venue, discovery (including interrogatories), commissions, and examinations of witnesses, mode of trial (including trial on motion for judgment and reference of cause), and any other matter or proceeding in the action previous to trial.

"3. No pleadings shall be allowed unless by order of a judge."

The plaintiff thus having indorsed his writ in the usual way, and served it, the defendant is to appear and give notice of any special defence; but of no other. But it cannot be intended that he is to be precluded from other defences. For instance, to take the very simplest case, it is, in an action of contract, a question of some importance whether the defendant made the contract sued upon; as to which he may say that he made no contract at all, or that the contract was not such as the plaintiff alleges. But the plaintiff, if he indorses his writ "as at present," will not have stated any contract; he will merely, in a general form of words, have referred to a contract. The defendant may, if he will, ask for further particulars of the contract, which, if he is wise, he will

probably do. But when he gets the particulars he will not be bound to say whether he admits or denies it, indeed, to do so would be an impertinence, and the plaintiff must, therefore, go to trial prepared to prove what, if he had pleaded it, the defendant would very likely have admitted.

But perhaps there is a remedy for this. Under the 7th proposal

"If it be made to appear to the judge, at or after the trial of any case, that one of the parties was, a reasonable time before the trial, required in writing to admit any specific fact, and without reasonable cause refused to do so, the judge should either disallow to such party or order him to pay (as the case may be) the costs incurred in consequence of such refusal; '

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and, if the making and the terms of a contract are a specific fact," the plaintiff may, in writing, call upon the defendant to admit it. The plaintiff must be careful as to the framing of his notice to admit, for the answer to it is simply "yes" or "no"; but when he has carefully framed it, what will he have done? He will have made a pleading; but the defendant will not have been put to plead in answer "fully," but will do that which, in pleadings, the pleading rules forbid. If, however, the defendant should go beyond what is required, and voluntarily commit himself by a detailed answer, he will have also made a pleading. Now, as the plaintiff certainly cannot excuse himself for neglecting so proper a precaution for diminishing costs as that of giving notice to admit facts, there will be in every action such a notice that is, a pleading. But it is easy to see that such a notice will not confine itself to one point, but will cover all matters which the party giving it thinks at the time necessary or material for his case. In short, it will be at once a pleading and interrogatories, which the other party will, at his peril as to costs, refuse to answer. There is, however, no reason why the giving of such notices should be more limited than notices to admit documents; and, indeed, as facts are more complex than documents, it would be more unreasonable to expect the party to omit none of the requisite items. There will then be probably not one, but several of such notices, or mixed pleadings and interrogatories, which the defendant will refuse to answer at bis peril.

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what the committee intended, whether they had already anticipated in imagination the coming race to which Lord Coleridge looks forward, or whether, upon the other hand, time had become for them the punctum stans, where all things are always present, we cannot tell either from the sense or the context of the passage. But we will take the other alternative as more suited to the present necessity, and suppose that the master (one of to-day) refuses to make any order as to particulars of defence before defence, or particulars of reply before reply, or as to interrogatories before the parties have stated their cases, and know what needs to be asked, or as to commissions before the witnesses are ill or absent, or as to mode of trial before the issues are ascertained, or as to "any other matter of proceeding in the action previous to trial" before the occasion arises, and, in short, deals only with the one matter which is properly before him, one of two things must happen. Either this hopeful summons for directions, big with futurity, will suddenly expire, after giving birth to one single ridiculus mus; or else it must be kept alive by an adjournment, with liberty to either side to bring it on upon notice. If this is done, the notice will, according to present methods, inform the other side, and the master, what is the object sought, and what they are to meet to discuss. In other words, the summons will remain an empty sound, to which, from time to time, each party will give articulate meaning; the meaning will be contained in the notice; the notice will have taken the place of the present summons, freed from the present tax; while the summons will have assumed (so history returns upon its footsteps) exactly the function of the old subpoena by which a chancery suit was commenced-a mere announcement to the party that he is required on peril to appear. The doubt that remains is whether, in that case, the summons might not be dispensed with altogether, as the parties are already before the court. We have, however, assumed, perhaps too readily, that it is intended that the summons shall be subject to adjournment, or, if adjourned, that any notice shall explain to the other party what is sought. For in the opportunity of applying for orders, which the committee still reserves to the litigant after the omnibus summons extinct, it is provided as follows:

:

"4. The existing practice of requiring a separate summons for each separate matter shall be discontinued; and upon any summons by either party, it shall be competent for the judge or master to make any order which may seem just at the instance of the other party.

"5. Any application which might have been made upon the summons for direction shall, if granted upon any subsequent application, be granted at the costs of the party so subsequently applying, unless the master or judge other. wise direct."

That the same course will be followed with respect to counter-is claims, the existence of which the committee appears to have forgotten, but which they do not, we imagine, wish to abolish, is manifest. In these the defendant is in the position of plaintiff. But the defendant will not less require the same assistance in his defence, and will certainly give his notices to admit matters which he has no chance of getting admitted otherwise. And there seems no reason why a perpetual cross-fire of notices to admit should not take place during the whole course of the proceedings, since any party will certainly be unwise who omits till a late period, and trusts to a doubtful construction of the lax phrase "a reasonable time before the trial," his chance of saving expense to himself and throwing it on his adversary. There does not appear any reason to anticipate from this ragged muddle of documents, which is to be substituted for pleadings, any results which cannot be better attained by the present system, since pleadings do in fact call for admissions; except indeed this, that, out of this disorderly system, costs will find an easy opportunity of springing up to more than their present size and luxuriance.

But all this is to be checked and restrained by the saving and healing guidance of a master's hand and an omnibus summons for directions. Now, so far as the revenue is concerned, suitors will not complain of being relieved from the necessity of paying more than one stamp. But if it is anticipated by the committee that the various matters referred to will or can be disposed of on one application, they are surely a little sanguine.

But let us consider the two possible alternatives. First, let the summons be dealt with all at once. That it must be taken out early in the cause is plain; for, amongst other matters, it deals with particulars of writ. The master, then, with not less sagacity and prescience than Mr. Micawber, or than the omniscient judges of the future, to whom Lord Coleridge lately referred, is required at once to foresee and provide for all the contingencies up to trial, which may or may not arise in the course of a cause, and to say, for instance, whether the evidence of a witness who is at present neither sick nor absent, nor with any greater prospect than the master himself of being either, should be taken on commission. Now, whether this is really

Now that a summons should be moulded is a matter of course, and if this is all that is meant, nothing need have been said. But that it should be thought just or convenient to put a party to discuss a matter of which he has had no warning till the moment when his adversary springs it on him; that when he comes to ask for particulars of writ he should be put to discuss the question of venue, is so strange a view that we again feel that we are among the shadows of the " coming race," when masters will be always omniscient, or when at least litigants will never be “ sharp."

Such is the new scheme of procedure; a poor copy, with inconsistent additions, from the county court practice; of which one thing only can be confidently predicted, that, if adopted, it would speedily bring about the extinction of the court for which it is designed. Litigants in search of cheapness would resort to the county court; litigants in search of a reasonable procedure, fit for the conduct of cases of less simplicity, would find their way to the Chancery Division, and the Queen's Bench Division would be left, like an exhausted summons for directions, the parent of a single cause successfully carried through to trial. Could we suspect the grave committee of such a design, we should find nothing in their proposal inconsistent with it. But the scheme propounded rather seems to us to bear the marks of a simple goodness and benignity, than of subtlety, astuteness, or guile.

We have not noticed the preliminary disquisition on litigation with which this scheme is introduced; but it confirms our impression that no depth of design can be imputed to the committee. Their few observations leave us with the impression that, in their view, litigation is created by the machinery which it uses, that disputes are best adjusted by naked majesty under a forest tree, that things are simple if you will only call them so in an artless

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winning way, and that the best way to make things clear is not to certainly be considered a great objection by wholesale houses. The see or admit that they are difficult. section as drafted, too, is open to comment. The words "for any amount,' in line 2, ought, we think, to be altered to "for an amount of not less than £20," if that amount is to remain as the amount for which a creditor can present a bankruptcy petition, or otherwise such amount as may be provided as sufficient for a petitioning creditor's debt. "The court," in line 3, will, it is presumed, mean the court having jurisdiction in the bankruptcy; but it might be desirable to give this jurisdiction to the court in which final judgment has been obtained. The advantage of this would be that no new proceeding would be required to be taken until a bankruptcy petition came to be filed, so that costs might be saved if the debtor paid the debt without any bankruptcy petition.

BANKRUPTCY LAW REFORM.
[COMMUNICATED.]
II.

CONTINUING Our comments upon the Government Bankruptcy Bill of last session, we now take up clause 5, relating to acts of bankruptcy. Subclauses (a.) and (b.) are in precisely the same words as sub-sections 1 and 2 of section 6 of the Act of 1869, and require no comment.

Sub-clause (c.) is in place of sub-section 3 of the same section, and the only alterations are the introduction of the words "place of business and " in lines 4 and 5, and the omission of the words " or suffered himself to be outlawed" from the end of that sub-section. Speaking generally, we think it wise to adhere strictly to the words of the present Act where no actual change is contemplated, inasmuch as almost every word of the statement of these acts of bankruptcy has been litigated, and the incautious introduction of new words only tends to unsettle everything which has already been settled at the cost of so much money aud litigation. The effect of the introduction of the new words here proposed will be seen from the following quotation, the new words being printed in italics:-"That the debtor has, with intent to defeat and delay his creditors, being a trader, departed from his place of business and dwelling-house, or otherwise absented himself." Now, it might tend to make the law, as it at present stands, more explicit if the word "" or were substituted for the word "and;" for it is well settled that a trader departing from his place of business with intent to defeat or delay his creditors comes within the words or otherwise absented himself.' But what effect will the words proposed have? Will the old decisions upon the words "or otherwise absented himself" become inapplicable? If so, it will certainly not, to our mind, be a desirable change. But it is anything but clear that such will be the effect, and if not, then the new words will be simply valueless, whilst they will introduce an element of doubt which will probably lead to considerable litigation sooner or later to settle the question. The omission of the suffering to be outlawed will not be likely to make any difference in the practice at the present day, as that act of bankruptcy, though very familiar in sound to the practitioner's ear, is never heard of in actual practice.

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"Sub-clause (d.).—That execution issued against the debtor on any legal process has, within fourteen days before the presentation of the petition, been levied by seizure and sale of his goods."

This will work a great change in the law from what it at present is. At present seizure and sale under an execution, to be an act of bankruptcy, must be against the goods of a trader, and for a sum not less than £50. By this it is proposed to abolish the distinction between traders and non-traders, and also to do away with the limit of £50. We think the proposal an improvement upon the present law, but that it goes too far, and we would suggest a limit of £20. Another change which will be effected by this clause, as drafted, will be that seizure and sale will be an act of bankruptcy available for adjudication for fourteen days only, whereas now (if against a trader for not less than £50) it is available for six months, although if it take place more than fourteen days before a petition for adjudication be presented, the trustee cannot claim the proceeds. Will such a change be advisable? We are not at all satisfied that it will, and think that the law should not be altered in this respect without some good reason, which we fail to perceive. But even if the clause be passed as drafted, there will be nothing to prevent a trustee's title relating back to such an act of bankruptcy within twelve months so as to impeach transactions with persons who had notice of such an act of bankruptcy; for instance, an execution with knowledge by the execution creditors of a prior execution levied by seizure and sale.

"Sub-clause (e.).-That the petitioner has obtained final judgment against the debtor for any amount, and has in the prescribed manner served on the debtor in England, or, by leave of the court elsewhere, a bankruptcy notice in the prescribed form requiring him to pay the judgment debt, or to secure or compound for it to the satisfaction of the petitioner, and that the debtor has failed to comply with the requirements of the notice within fourteen days after service thereof, if the service is effected in England, and if the service is effected elsewhere, then within the time limited in that behalf by the order giving leave to effect the service."

Upon clause 5 generally we would further remark that, as it is proposed to repeal section 6 of the Act of 1869, and substitute this section therefor, a comparison of the two sections will show that, in addition to the changes we have already pointed out, the filing by a debtor of a declaration of his inability to pay, which is now an act of bankruptcy, will be abolished. Now, we do not think this advisable, as cases may often occur where it will be desirable that a debtor should be adjudicated a bankrupt upon a creditor's petition instead of on his own petition, and this act of bankruptcy is a ready and inexpensive way of doing so. As an instance of this, we have in mind a case of considerable magnitude, in our own experience, where the junior partner in a firm consisting of two partners, after involving his firm in heavy liabilities upon bills of exchange, absconded (thereby committing an act of bankruptcy), and the other partner, in order that immediate adjudication might be made against the firm, filed a declaration of inability to pay. If that course had not been open, the more expensive and cumbersome act of bankruptcy of an assignment for benefit of creditors would have had to have been resorted to.

Clause 6 provides for the abolition of proceedings by debtor's summons. This, like clause 3, sub-clause 3, appears to be unnecessary, it being covered by the general repealing clause. We have already discussed the propriety of abolishing proceedings by debtor's summons.

Clause 7, relating to proceedings on a creditor's petition, proposes to re-enact sections 8 and 9 of the present Act. Formerly adjudication was made by the court ex parte upon a creditor's petition, but the debtor was allowed seven days in which to give notice to dispute the adjudication. But by sections 8 and 9 of the Act of 1869, the whole practice was changed in this respect, and before adjudication can now be made it is necessary that the petition should be served upon the debtor seven days before the hearing, whilst the form of bankruptcy petition, instead of being a simple statement that the debtor is indebted to the petitioner in the requisite sum to constitute a petitioning creditor's debt, and has committed an act of bankruptcy, as was formerly the case, is now a lengthy and complicated document, and requires the consideration for the debt, full particulars of any security held, and of the act or acts of bankruptcy co mmitted, and other particulars to be set out. Theoretically we admit the present practice may be more correct, but practically we consider that the old one was more satisfactory. The risk of incurring the penalties attaching to filing an unfounded petition for adjudication was sufficient to deter creditors from petitioning except upon clear evidence, and the advantages of being able to obtain immediate possession of the bankrupt's property are obvious. At present great delay often occurs, and if the way of being served with the petition, he may cause very great a debtor against whom a petition is filed only contrives to keep out of old practice. It is just such changes as this which are the chief cause of expense, inconvenience, and delay, all of which were avoided under the the great increase of costs in many cases.

the debtor's estate after the presentation of a crediitor's petition and Clause 8 provides for the appointment of a receiver and manager of before adjudication. If the former practice, referred to in our last remarks, were reverted to, this would not be necessary, which would be another considerable saving of expense.

Clause 9 relates to proceedings on a debtor's petition, and is as follows:

"(1.) A debtor's petition shall allege that the debtor is unable to pay his debts, shall show whether he is a trader, and shall be verified by affidavit. "(2.) On the presentation of a debtor's petition, duly verified, the court shall forthwith adjudge the debtor a bankrupt."

trustee's title under a debtor's petition to relate back to prior acts of A further sub-clause might, we think, be added to provide for a bankruptcy in the same way as under a creditor's petition. Clause 10 takes the place of section 13 of the present Act, and is as follows:

This appears to be in the place of proceedings by debtor's summons, which are proposed to be abolished entirely. With the changes effected in the law by the Judicature Acts, which prevent a debtor keeping off his creditors by defending an action without having the slightest grounds of defence, as he formerly could, this change may be very desirable, as debtors' summonses are often improperly made use of to put the "screw on debtors. But it ought not to be overlooked that the change proposed by this clause will cause greater delay in forcing into court an insolvent debtor who may not have committed any act of bankruptcy, of. and who may obstinately refuse to file a petition himself. This will

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"When on a bankruptcy petition there has been made an order for the appointment of a receiver or an order of adjudication, all proceedings to recover any debt proveable under the petition shall be stayed on notice of the order being given in the prescribed manner, but the court may, on application by any creditor or person interested, allow any proceedings commenced to be continued on such terms and conditions as it thinks just." The principle of this will, we think, be generally and heartily approved The present practice of obtaining restraining orders is simply a means of enabling the solicitors having the conduct of the proceedings to

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"make" costs, and is, there is too much reason to fear, often made the most of for that purpose. In fact, the enormously large solicitors' bills of costs for proceedings under liquidation up to the choice of trustee, which at times startle the commercial mind, are generally made up of charges for obtaining restraining orders against suing creditors; and with the abolition of such orders one great ground of complaint against the cost of the present proceedings would, to a very great extent, be at once done away with. In framing any rules, however, under this section, care should be taken not to make the "prescribed manner giving the notice so cumbersome as to be as bad as the present system. Why leave it to rules at all? Why not, instead of the words "in the prescribed manner," say, "by sending such notice under the seal of the court by registered post to the address of the suing creditor, or his solicitor, as stated upon the record in the action," or something to that effect.

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The developments of modern ingenuity in the construction of locomotive machines have given a good deal of trouble to the courts. Having held, in Taylor v. Goodwin (27 W. R. 489) that a bicycle is a "carriage" within the Highway Act of Will. 4, and in Williams v. Ellis (28 W. R. 41) that a bicycle-rider is not a beast drawing any coach, sociable, chariot," &c., within the provisions of a local Turnpike Act, the Queen's Bench Division were, in the present case, called upon to decide whether a steam tricycle was a "locomotive propelled by steam" within the Locomotives Act. The steam tricycle was described as being "like an ordinary tricycle, and capable of propulsion in the ordinary way by the feet of the rider, but with auxiliary steam power to assist the rider, which steam power was, however, sufficiently powerful to move the vehicle if desired without the foot motion." There was, however, no smoke, and "the exhaust steam, instead of being blown off into the atmosphere, producing the puffing noise common to locomotives, is discharged into a coiled pipe in another metal case behind the rider's seat, and is there condensed and returned by a small pump to the boiler as hot water, thus at once economizing water and fuel, and preventing escape of steam into the atmosphere." There was therefore nothing more to frighten horses than in the ordinary tricycle, and as the weight was only about two hundred-weight, and the tires of the wheels were only one and a-half inches in width, there was no reason to apprehend damage to the surface of roads. But the definition of "locomotive" in the Act is "a locomotive propelled by steam, or any other than animal power." This machine, although it might be propelled by the foot, was capable of propulsion exclusively by steam power, hence it was held to be a locomotive within the Act.

DISTRESS BY MORTGAGEES ON GOODS OF COMPANY FOR INTEREST DUE BEFORE COMMENCEMENT OF WINDING UP.

(In re Brown, Bayley, & Dixon, Limited, Fry, J., 30 W. R. 5.) In this case a limited company had executed a mortgage deed to trustees for debenture-holders containing a power of distress for arrears of interest, but no attornment clause. Upon the winding up of the company the trustees moved that they might be at liberty to exercise the power of distress in respect of arrears of interest due before the commencement of the winding up. Their main contention seems to have been that, according to the principle laid down in Loyd v. Lloyd & Co. (25 W. R. 872, L. R. 6 Ch. D. 339), the mortgagee ought to be allowed to realize his security and enforce all his remedies. Now, in that case there are observations which undoubtedly, if taken without regard to the facts of the case, might be thought to bear out the contention in the present case. Thus, Lord Justice James said that "power was given to the court to interfere with actions by restraining them or not allowing them to proceed, but this power was given because it was understood that the court would exercise it with a due regard to the rights of third persons, persons who were not members of the company, and who had not to come in and claim to share in the distribution of the company's assets among the creditors, and who were not therefore quasi-parties to the winding-up proceedings. The court would have due regard to the rights of independent persons. A mortgagee is, to my mind, such an independent person, and his rights ought

not to be interfered with because his mortgagors have chosen to become insolvent and to have a winding up." But these observations must be taken to have reference to the case in which they were made, in which a mortgagee was seeking to continue a foreclosure action, not to enforce a claim which could be proved for in the winding up. It has long been settled that section 163 of the Companies Act, 1862, is to be considered as applicable whenever the person who distrains on effects of the company distrains as a creditor of the company, and it is difficult to see on what ground of principle a distress by a mortgagee under an express power is to be distinguished in this respect from a distress levied by a railway company under a statutory power to recover arrears of toll, to which it was held, in In re Traders' North Staffordshire Carrying Company (23 W. R. 255), that the provisions of sections 87 and 163 were applicable. Mr. Justice Fry, in the recent case, adopted this view, and held (following In re Silkstone, &c., Company, 29 W. R. 484, L. R. 17 Ch. D. 158) that a distress for interest due before the commencement of the winding up cannot be distrained for.

USUAL COVENANTS IN A SEPARATION DEED.
(Hart v. Hart, Kay, J., 30 W. R. 8.)

This case will be memorable for the spectacle of a number of learned conveyancers routed out of their seclusion and arrayed before the court in the novel capacity of witnesses to testify to the meaning of a provision in an agreement for a separation deed that the deed was to contain the "usual covenants." The question was whether these words authorized the insertion of a clause providing that the deed should be valid only so long as the wife continued to lead a chaste life. Mr. Justice Kay held that such a provision should not be inserted. The principal interest of the case lies, however, in the mode adopted by the learned judge to arrive at a decision on the point of what are usual covenants. In Hampshire v. Wickens (26 W. R. 491), where a similar question arose upon an agreement for a lease "on all usual covenants," the Master of the Rolls said that " usual " means "according to the usual practice of mankind;" and in order to ascertain this practice he looked at the books of precedents. We ventured at the time to express a doubt whether precedent books were always a safe guide as to the actual contents of deeds, for the authors give all the clauses which may be required, without much regard to the question of what are or are not quite usual; and we added that "the general practice can only be ascertained from practitioners." We cannot complain of Mr. Justice Kay's having carried out our suggestion, but we are not without apprehension as to the effect on the costs of legal procedure if a cloud of conveyancers is to be summoned to assist in the decision of cases turning on the question of what are usual covenants.

REVIEWS.

BANKRUPTCY LAW.

A TREATISE ON THE LAW OF BANKRUPTCY; CONTAINING A FULL EXPOSITION OF THE PRINCIPLES AND PRACTICE OF THE LAW. FOURTH EDITION. By GEORGE YOUNG ROBSON, Esq., Barrister-at-Law. Butterworths. We think Mr. Robson is right in his decision to wait for no more Bankruptcy Bills before publishing his new edition. Even if Mr. Chamberlain's consolidating and amending Bills should be passed next session, little alteration will be effected in the principles of the law; and in the meantime there is certainly much need for a re-issue of a work which we law. There are few subjects on which decisions accumulate so rapidly believe is now generally deemed the standard authority on bankruptcy as this, and the five years which have elapsed since the last edition have produced some more than usually important judicial interpretations of the law. The effect of these is concisely stated in the text. Mr. Robson does not content himself with a bare reproduction of headhis text. Nor does he hesitate, when occasion requires, to express an notes, but carefully weighs the decisions before incorporating them with opinion. Thus, at p. 440, he states as follows the effect of Ex parte Walton (L. R. 17 Ch. D. 740):-" In accordance with the principle of the cases on this subject, a construction has been put on the [disclaimer] clause in question, which, if not altogether consistent with the language of it, is at all events recommended by justice and common sense, and is probably what was really intended by the Legislature—namely, that a disclaimer by a trustee of a lease or other onerous obligation of a bankrupt, operates only so far as is necessary to relieve the bankrupt and his estate and the trustee from liability, and does not otherwise affect the

rights and liabilities of other parties. And that if a bankrupt lessee has granted an under-lease, a disclaimer of the original lease will not affect the rights of the original lessor to distrain, as against the under-lessee, for rent reserved by the original lease, or to re-enter for a breach of covenant or non-payment of rent. And that if the under-lease is at a rent less than that reserved by the original lease, the under-lessee will be entitled to prove in the bankruptcy for the value of the difference between the two rents." Nor has the point, to which we recently drew attention in connection with this decision, whether the landlord, after disclaimer, could take advantage of section 9 of 8 & 9 Vict. c. 106, as giving him the rights of the reversioner on the under-lease, and at the same time maintain against the under-lessee his rights under the original lease, escaped Mr. Robson's attention. The chapter on Bills of Sale has necessarily been re-written, and contains an excellent summary of the decisions on the recent Act. We see no reason to qualify in any way the praise we have before bestowed on this work as by far the most convenient to the practitioner of all the treatises on bankruptcy law.

PROBATE.

BROWNE'S TREATISE ON THE PRINCIPLES AND PRACTICE OF THE COURT OF PROBATE IN CONTENTIOUS AND NON-CONTENTIOUS BUSINESS. Revised, enlarged, and adapted to the Practice of the High Court of Justice in Probate Business. By L. D. PowLES, Barrister-at-Law. INCLUDING PRACTICAL DIRECTIONS TO SOLICITORS FOR PROCEEDING IN THE REGISTRY. By T. W. H. OAKLEY, of the Principal Registry, Somerset House. H. Sweet; Stevens & Sons.

By far the best part of Mr. Browne's book was that which treated of contentious business, and Mr. Powles has altered and modified this so as to adapt it to the practice under the Judicature Acts. He has also done a good deal in the way of correcting and improving, by additions of omitted cases, the portion relating to non-contentious business. The portion of the work relating to the practice in matters of common form, so far as relates to matters taking place within the walls of the Principal Registry, has been revised by Mr. Oakley, whose long experience in that department is a guarantee of accuracy and completeness. But a good deal more remains to be done in subsequent editions. In particular the editor should remodel the notes. At present some of them are singularly compiled. Thus, on page 42, to establish the proposition that as a general rule a will disposing of realty but containing an appointment of an executor is entitled to probate, notwithstanding the renunciation of the executor, we are first referred to In the Goods of Jordan (16 W. R. 407); then we are told to "see also" three other cases; then follows "But see" two other cases, and finally we are informed that in the last of the cases named "the following further cases are cited as to authority of court to grant probate of wills of realty, a string of four cases being appended. This practice of stating the case s cited in argument is not uncommon in the book, and is greatly to be deprecated. It is the duty of a text-book writer to satisfy himself that every case he cites in his notes has some direct bearing on the proposition in the text, and he has no right to burden his readers with all the cases which counsel think fit to bring before the court. An appendix covering 377 pages contains the statutes, rules and orders, and fees of the Principal Registry and district registries', also the provisions relating to probate and administration of the Customs and Inland Revenue Act of June last, and the new fees. We think that the forms under the Judicature Acts might well have been omitted.

HIGHWAYS.

PRATT'S LAW OF HIGHWAYS, COMPRISING THE HIGHWAY ACTS, 1835, 1862, 1864, THE SOUTH WALES HIGHWAY ACTS, AND OTHER STATUTES, &C., ALSO THE TRAMWAYS ACT, 1870. TWELFTH EDITION. By SAMUEL PRENTICE, Q.C. Shaw & Sons.

The chief feature in this new edition is of course the Act of 1878, which is printed in full and carefully annotated, and supplied with crossreferences by the editor, whose plan does not, however, embrace the offering of much independent opinion on moot points. Thus, as to "extraordinary traffic" under section 23 of the Act of 1878, he contents himself with summarizing the decisions in Aveland v. Lucas and Wallington v. Hoskins; nor have we found any discussion of the matter in the introduction. The Tramways Act, 1870, and the provisions of the Public Health Act, 1875, relating to highways, have been added, together with the orders of the Local Government Board relating to highways. The work is a very complete collection and digest of all the existing law relating to highways.

A Western constable, says the Canada Law Journal, held an execution against a farmer, and when he called for a settlement, the agriculturalist took him out into a big pasture and pointed out a wild steer as the particular piece of property that could be levied upon. The constable chased the steer around for awhile and then sat down, and taking out his book commenced to write. "What are you doing there?" asked the farmer. "Charging mileage," replied the constable, without looking up. "Do I have it all to pay?" gasped the farmer." "You have." "Then take this tame heifer here."

CORRESPONDENCE.

THE CONVICTIONS FOR BRIBERY.

[To the Editor of the Solicitors' Journal.] Sir,-No doubt the attention of the Council of the Incorporated Law Society will be drawn to these convictions, so far as they affect the solicitors who have been sentenced to a very severe punishment. When the council was first consulted on the matter, I think they. returned a very judicious answer, declining to deal with the question which was then sub judice.

Now that the sentences have been pronounced, the council will probably be invited to re-consider the matter. I have a great detestation of bribery and corruption in any form, but I have as much detestation of anything approaching injustice. I think that those who supply the means for bribing are as culpable, if not more blameworthy, than the agent, who, probably without much consideration, and in a moment of excitement, has been the intermediary.

Probably I am only speaking the sentiments of many of your professional readers if I venture to express a hope that the council will not, by any action on their part-or at least, not without the maturest consideration add to the horrors and ignominy which the unfortunate gentlemen are now enduring in consequence of the infliction upon them of a long sentence of imprisonment. Dec. 7. A MEMBER OF THE INCORPORATED LAW SOCIETY.

DISCLAIMER OF LEASE BY TRUSTEE.
[To the Editor of the Solicitors' Journal.]

Sir, To me the decisions in the cases you referred to last week of If, as was decided in the former case, the effect of a disclaimer is not Ex parte Walton and Ex parte Glegg appear to be entirely inconsistent. that of an absolute surrender of the lease, but only of a qualified surrender, for the purpose of relieving the bankrupt and his estate and the trustee from liability, without affecting the rights and liabilities of other partier, how can it be right or consistent to hold that the effect is and which, perhaps, constitutes the whole of his assets? A disclaimer to give up to the lessor property which belongs to the bankrupt's creditors, the decision in Ex parte Walton cannot be right. If it does not, Ex either operates as a surrender of the lease, or it does not. If it does, parte Glegg, as well as Ex parte Stephens, Re Lavies, and Ex parte Brooke, Re Roberts, must be wrong. Prior to any statutory enactment as to disclaimer, the assignees of a bankrupt were entitled to disclaim an terms of the lease to the bankrupt lessee, and it cannot be reasonably onerous lease without sacrificing fixtures, or crops, &c., belonging by the supposed that the object of the Legislature was to attach to the right to disclaim a penalty by way of forfeiture so injurious to creditors. It is to anticipate (I imagine rather too sanguinely), the rights of creditors will be hoped that if a Bankruptcy Act is passed next session, as you seem to be properly protected, and the release of the bankrupt and his estate provided for at a less costly price and more consistently.

Lincoln's-inn, December 3.

G.

claimer operates as a surrender only as between the lessor on the one [We understand the principle of Ex parte Walton to be that a dishand, and the bankrupt, his trustee, and his estate on the other hand. In his judgment in that case, Lord Justice Lush said: "The word 'surrender' must be read in a qualified sense, the object being merely to put the trustee in the same position as if the lease had never become vested in him, have had any right to the fixtures ?-ED., S.J.] vested in him." Would the trustee, if the lease had never become

BANKRUPTCY LAW REFORM.

[To the Editor of the Solicitors' Journal.] Sir,--There seems to be a prospect of another Bankruptcy Act next session; and, that being so, it will not be amiss that your columns should contain suggestions for amendments of that department of the law. Three points occur to me on which I would elicit the opinion of your readers as to whether they should or should not be adopted.

The first point is this: it is common, on making an advance of money, for the lender to retain a portion for commission, and to charge interest at an exorbitant rate. It is common also, for a trader supplying goods to another, to allow a trade discount and a cash discount, if they are paid for in ready money, but to claim the full price if credit is given. The result of these practices is to swell the amount of the creditor's claim, so that if the debtor eventually comes to grief, and pays only a small dividend, the creditor's loss is diminished; indeed, in many cases, the creditor suffers no loss at all, if two or three of his bills are paid, as the gain upon these will cover the loss on a subsequent bill. Now, it may have been quite right to repeal the usury laws, and hold all bargains to be good between debtor and creditor; but is it clear that the same principle should apply when the debtor is not concerned in the matter, and the only question is to adjust the rights of his various creditors against each other?

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