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the Bill seem to be hard upon the present holders of mortgages Lord Justice JAMES's well-known declaration in Saffron Walden upon land.

A CORRESPONDENT draws attention to the fact that vendors of lands taken for public purposes by public bodies, under Acts incorporating the Land Clauses Consolidation Act, appear to be included among the persons on whom the Land Transfer Bill would impose the duty of being registered as proprietors before selling them; and we would further observe that the damnatory clause 2, (a), (the effects of which we discussed ante, p. 375), would clearly apply to any public body accepting a conveyance, without insisting on such vendor being so registered as a preliminary step. The wording of clause 2 leaves room for the contention, that the vendor would in such cases be liable to pay the costs of registration. Also it would seem that in case of a block occurring, owing to press of business, in the Land Transfer Office, the public body purchasing would be reduced to the alternative of paying purchase-money for a mere contract shorn of all the attributes which usually enable people to proceed upon contracts (and which would possibly be ultrà vires also), or of deferring the execution of public works until the impediments had been cleared away. These difficulties could probably be somewhat lessened by suitable express provisions inserted in the Bill at some future stage, but the question also suggests itself-why should not such sales and chases be exempted from the operation of the clause altogether? The purposes of the Bill would be sufficiently met by requiring the public body to register if, and when, it has occasion to sell to a private person. But to spend time and money in improving the facilities for selling the sites of newly-constructed public offices, gasworks, railways, and the like, or even in setting time running to cure possible defects in title which purchasers of superfluous lands from public bodies are always willing to shut their eyes to, would appear both a useless and a wasteful proceeding. The question whether the issue of debentures is "mortgaging land" within this same clause 2 is a further point of interest and importance suggested by the above reflections, and one to which we shall probably revert.

Building Society v. Rayner (28 W. R. 687), that "there is no such thing and no such office" as 'an official solicitor," applies) that solicitors who are clerks to public bodies should be careful to obtain an express retainer on each occasion of the transaction of business in respect of which they may have to send in a bill of

costs.

IT IS STATED that Mr. Justice KAY's decision last week in Tom

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kinson v. South-Eastern Railway Co., granting an interlocutory injunction to restrain the company from subscribing £1,000 to the Imperial Institute, is to be appealed against. We do not see how the learned judge could have refused the injunction consistently with the principles which have been laid down as to the exercise of thie jurisdiction. "In order to entitle the plaintiffs to an interlocutory injunction," said Lord Justice COTTON in Preston v. Luck (33 W. R. 317, 27 Ch. D., at p. 506), "it is necessary that the court should be satisfied that there is a serious question to be tried at the hearing, and that, on the facts before it, there is a probability that the plaintiffs are entitled to relief." There can be no doubt as to the existence of the first of these requisites in the recent case; nor can anyone who considers Lord CRANWORTH'S judgment in Hawkes v. Eastern Counties Railway Co. (5 H. L. Cas. 331)-where he says that pura statutory corporation, created by Act of Parliament for a particular purpose, is limited, as to all its powers, by the purposes of its incorporation as defined in its Act" doubt that there was at least a probability that the plaintiff in the recent case was entitled to relief. We are disposed, therefore, to question the wisdom of an appeal from the recent order. But the question to be decided at the hearing is one of enormous importance, well deserving to be settled by the highest Court of Appeal. How far is a statutory corporation justified in expending its funds on objects only indirectly conducive to the purposes defined in its Act? Everyone knows that the great railway companies have for years been in the habit of contributing to objects which are considered likely either to bring traffic to their lines or to benefit their servants, and the tendency of the cases has been to shew that such expenditure as a benevolent employer would be likely to make (see Hampson v. Price's Patent Candle Co., 24 W. R. method of conducting a business" (Taunton v. 754), and expenditure in pursuance of "the generally received Royal Insurance that the cases have hitherto gone further than this. Co., 2 Hem. & M. 135) are justifiable; but we are not aware

IT WOULD SEEM that one of the questions decided by Mr. Justice STIRLING on Saturday in Re Jones was not covered by any reported case; but the reason for this must surely have been that the question was treated as being free from doubt. Where a client obtains the common order to tax, he cannot dispute the retainer of the solicitor as to the whole of the bill of costs, because he is bound by the admission of retainer contained in the application; hence, if he desires to dispute the retainer as to the whole bill, he must obtain a special order giving him leave to do so (Re Eldridge, 12 Beav. 387; Re Thurgood, 19 Beav. 541). But how does this rule apply to the case of a solicitor obtaining the common order to tax in a case where his retainer is disputed? The client is in no way bound by the allegation of retainer in the application, and consequently is not debarred from objecting to the whole bill on the ground that there has been no retainer. How, then, in such a case, can the common order be improper? Mr. Justice STIRLING, in accordance with the practice in the taxing master's offices, held that in such a case the common order is proper. The other point in the case was one of fact rather than of law, but was of some general importance. Put shortly, the question was this:-A solicitor was appointed clerk to the commissioners of a reservoir at a salary of £15 a year, the resolution appointing him stating that this modest payment was to be in satisfaction for his services in giving notices for payment of rates in arrear, &c., but was not to include "money out of pocket or law business arising out of the reservoir affairs, such as preparing conveyances or securities for money borrowed, prosecuting or defending actions." Did this appointment operate as a retainer of the solicitor (who, during his tenure for over forty-four years of office as clerk to the commissioners, had been paid several bills of costs in addition to his remuneration as clerk) as solicitor to the commissioners? Mr. Justice STIRLING held that it did not. The solicitor was, he said, "the officer of the commissioners at a yearly salary, with the expectation, no doubt, on both sides that he would be employed to transact such legal business as the commissioners might properly require, but without any retainer." The moral of the decision seems to be (particularly if

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WE LEARN that the Lord Chief Justice the other day took occasion to renew his protest against the style of the House of Lords in its judicial capacity as decreed by the Appellate Jurisdiction Act, 1876-viz., "Her Majesty the Queen in her Court of Parliament." This nomenclature was, it appears, adopted by Lord CAIRNS "in opposition to the opinions of several of her Majesty's judges." From the historical point of view the accuracy of the description may be questioned, but it is clear that, under the Act of 1876, the House of Lords in its appellate capacity is not less the "Court of Parliament " than it was before that Act, inasmuch as section 5 does not exclude peers not having the qualification mentioned in that section. It is stated in the Annual Practice, 1887 (p. 68), that, in Bradlaugh v. Clarke (31 W. R. 677), Lord DENMAN, a peer not so qualified, took part in the hearing, voting with the minority.

THE HOUSE OF LORDS cannot be accused of legislative inactivity this session. They have already sent fifty-one Bills to the Commons, including such important measures as the two Lunacy Bills, the Law of Evidence Amendment Bill, the Glebe Lands Bill, the Railway and Canal Traffic Bill, the Solicitors (Ireland) Bill, and the Sheriffs (Consolidation) Bill. Fourteen Bills are at present in progress in the House.

pleaded guilty to eight indictments for forgery, embezzlement, and stealAt the Exeter Assizes, on the 6th inst., Joseph Edward Curteis, solicitor, ing, and was sentenced to five years' penal servitude.

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(b) The extra costs occasioned by legatees having assigned or incumbered their legacies or shares. In an administration action each legatee and his assignee or incumbrancer are entitled to one set of costs only (Greedy v. Lavender, 1848, 11 Beav. 417; Re Bright's Trusts, 1855, 3 W. R. 544; Remnant v. Hood, 1860, 27 Beav. 613). "It would be a great hardship and injustice," said Romilly, M.R., in Greedy v. Lavender (ubi suprà), "to make those who retain their shares in the funds contribute to the expenses of other persons who, for their own convenience, and by their mode of dealing with their shares, have occasioned additional expenses." Accordingly he allowed one set of costs only to each legatee, and then gave the costs which the assignor would have had if he had made no assignment to his assignee. The same rule applies where the legatee has assigned or incumbered a part only of his legacy or share, the assignee or incumbrancer being allowed his costs in full out of the sum allowed for costs (Turner v. Gowdon, 1871, 19 W. R. 403). It is not very easy to see how this rule is to be completely applied in the case of the administration of an estate out of court, but it is conceived that in strictness any extra costs occasioned by ascertaining the title of an assignee or incumbrancer ought to come out of the legacy or share which has been assigned or incumbered.

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Chancellor Kindersley was well founded in the observation he made in Randfield v. Randfield (ubi suprà), that there was no case in which, there not being a mixed fund by conversion, the court had determined that there should be an apportionment."" Shortly after Mr. Justice Fry's decision, however, the question came before the Court of Appeal in Patching v. Barnett (ubi suprà), when Jessel, M.R., laid it down that, "in the administration of real and personal estate, the modern rule is that the costs exclusively occasioned by the administration of the real estate are thrown upon the real estate; and the general costs of suit are borne by the personal estate. But what I will call the increased costs arising from administering the real estate are, as a rule, thrown upon the real estate; and the court has been in the habit for several years past of apportioning those costs between each estate at the hearing." Accordingly, when Re Middleton, Thompson v. Harris was afterwards brought before the Court of Appeal, Mr. Justice Fry's decision was reversed, and it was held that the costs of administration, so far as they had been increased by the administration of real estate, should be borne by that real estate. The rule must, therefore, now be taken to be settled that, where real and personal estate are not devised and bequeathed so as to form a mixed fund, the administration costs exclusively relating to the real estate-e.g., the costs of settling the construction of the devise in the will-will fall on such real estate. This appears to be a considerable inroad on Lord Thurlow's doctrine that, "wherever a testator has expressed himself so ambiguously as to make it necessary to come into this court, his general assets must pay the costs" (Jolliffe v. East, 1789, 3 Bro. C. C., at p. 27; see also Wilson v. Brownsmith, 1803, 9 Ves. 180).

(d) The costs of investment in the purchase of land under a direction in a will to accumulate and lay out a specified sum of money in the purchase of land. Such costs are payable out of the sum directed to be invested (Gwyther v. Allen, 1842, 1 Hare, 505). The reason for this decision seems to have been that the sum specified was the extent of the gift for the purpose of the investenlarge the gift. It is presumed that a similar rule is applicable to a direction to executors to invest a sum of money in the purchase of stock in the name of a legatee.

(e) The costs exclusively occasioned by the administration of the real estate of the testator not devised so as to form a mixed fund with the personalty. Such costs are to be borne by the real estate ex-ment, and that to give the costs of the investment would be to clusively (Patching v. Barnett, 1881, 51 L. J. Ch. 74; Re Middleton, Thompson v. Harris, 1882, 30 W. R. 293, 19 Ch. D. 552). There has been a singular change in the current of decision on this subject. In Ripley v. Moysey (1837, 1 Keen, 578), Lord Langdale, M.R., held that "all costs and charges occasioned by the will" should be paid out of the residuary personal estate, although some of them were incurred in proceedings affecting the real estate only. In Pickford v. Brown (1856, 2 K. & J. 426, 436) there were two suits to obtain the decision of the court upon the construction of a will, one as to the testator's real, and the other as to his personal, estate. Wood, V.C., directed that the costs of both suits should be paid out of the residuary personal estate of the testator. The same rule was adopted by Romilly, M.R., in Stringer v. Harper (1859, 26 Beav. 585), and by Kindersley, V.C., in Randfield v. Randfield (1863, 11 W. R. 847), though he remarked that "if the matter were res integra his tendency would be to hold that, inasmuch as the real estate went one way and the personal estate another, so far as the costs were incurred by determining the rights of the real and personal estates, prima facie, those two estates ought to bear some portion of the There was, therefore, a series of decisions of eminent and careful judges, extending over a period of between forty and fifty years, in favour of the view that the costs falling on the residuary personalty should include the costs of administering the real estate. On the other side there were only Sanders v. Miller (1858, 25 Beav. 154), which seemed to have been decided on the mistaken supposition that the testator had formed a mixed fund of real and personal estate, and a case of Barnwell v. Iremonger (1860, 1 Dr. & Sm. 242, 258), in which it was held that special costs incurred in relation to the real estate, irrespectively of the personalty-e.g., the costs incurred in selling part of the real estate ought to be charged on such real estate. The costs of the suit generally were directed to be paid out of the personal estate, but the costs and expenses of the sale were directed to be borne out of the particular estate sold.

cost."

It is not surprising that, in this state of the authorities, Fry, J., in Re Middleton, Thompson v. Harris (ubi suprà), should have felt himself bound to decide that the entire costs of an action for the administration of real and personal estate should be borne by the residuary personal estate. He said that, in his opinion, "Vice

(6) Where real and personal estate are devised and bequeathed so as to form a mixed fund, the administration costs will be apportioned between the real and personal estate according to their relative values (Walter v. Maunde, 1815, 19 Ves. 423, 429; Christian v. Foster, 1846, 2 Phil. 161). In the last-mentioned case the question was raised whether, instead of a direction that the costs should be paid out of the realty and personalty according to their value, there should not be a direction to separate the costs, and to pay so much as had arisen on account of the real estate out of the realty, and so much as had arisen on account of the personal estate out of the personalty, but Lord Cottenham, C., said that "the inquiry asked-How much of the costs had been incurred in respect of the real and how much in respect of the personal estate ?-would be attended with great difficulty, nearly all the proceedings being common to both," and he affirmed the direction of the Master of the Rolls, that the costs should be paid rateably out of the realty and personalty according to their value. This rule applies where, owing to the dispositions of the will having failed for want of objects to take, the real and personal estate go in different directions. This state of things occurred in Christian v. Foster (ubi suprà); and in his judgment Lord Cottenham deals a8 follows with the question:"It must be observed that, although during the lives of the tenants for life the funds were kept separate, they were united and blended upon the death of the survivor; and, had not the dispositions of the will failed for want of objects to take, the proceeds of the realty and personalty would from thenceforth have formed but one fund. The testator directed their union; events which he did not contemplate have prevented it. What, in such cases, is the rule as to costs? There is no question here as to residue, for both parts of the fund were intended to be given, and in both the gifts have failed for want of objects. Why, in such a case, is one part of the fund only to bear the costs of litigation common to both"? Assuming, therefore, that these cases are still law (which there seems to be no reason to doubt), there is this somewhat anomalous state of things: If, owing to the failure of a testator's dispositions, his real and personal estates go in different directions, the costs of

administration of both the real and personal estate will be apportioned between the persons entitled to each in proportion to their relative value. If, on the other hand, a testator's real and personal estates go in different directions under the dispositions of his will, the costs will fall upon the property in respect of which they have been incurred.

REVIEWS.

COUNTY COURT FORMS.

A COUNTY COURTS FORMULIST. By RICHARD AUSTEN DALE, Solicitor. William Clowes & Sons (Limited).

This is a book which supplies a want rather widely felt, and, we are glad to say, supplies it very efficiently. It contains a singularly complete collection of forms for use in proceedings in the county courts, whether under their ordinary, equitable, or special statutory jurisdictions, other than admiralty and bankruptcy. The forms commence with examples of forms in ordinary proceedings; then follow forms relating to the officers of the courts; to solicitors; to the control exercised by the High Court over the county court; and then we come to a most elaborate collection of forms relating to all the proceedings preliminary to, and needed in the course of, and subsequently to, an ordinary action. Next there are given forms in proceedings in actions and matters of a special nature; and, lastly, we have the forms relating to proceedings under the jurisdiction in equity. The forms we have examined are accurate, and we can speak in high terms of the notes and directions which are added on the different subjects. They are concise, practical, and thoughtful, and collect and state with care and intelligence the material decisions on practical points. The work constitutes an admirable companion to the standard books on county court practice, and may be commended to the notice of practitioners.

The new judge required in the Chancery Division, I would most respectfully submit, should be appointed from the equity bar. The common law judges at present number fitteen, the chancery judges only five.

There can be no doubt that economists are startled when it is

proposed to increase the number of the judges; but it must be apparent that, although there are so many judges in the Queen's Bench Division, there are so few in the Chancery Division. To get rid of the "Divisional Courts" should be the anxious desire of every economist, the more so as these courts are not appellate courts in the full sense of the word. Some of the judges might weli be taken from the Queen's Bench Division to form an Appeal Court No. 3, or be added to the present Appeal Courts No. 1 and No 2.

the reverse.

The scheme for amalgamating the offices of chancery taxing masters and registrars with that of the chief clerks of the chancery judges I hope will be resisted. I do not believe it would work so well as the present system, by which there is a division of labour which is beneficial to the suitors, and to destroy which would, I believe, be If it should be determined to give a staff of chief and other clerks to Mr. Justice Kekewich, and "economy" stands in the way, I think that might be got over by appointing only two chief clerks and dividing the alphabet by two instead of three; the principal clerks, or as they are called by classification, "first class clerks," might be selected from the chambers of the existing chief clerks, and a sufficient number of second class clerks from those chambers who are qualified for promotion might be appointed first class clerks to Mr. the decline in the number of orders directing administration accounts Justice Kekewich. This might more easily be done as, by reason of to be taken in chambers, many of the clerks who were appointed to take, or who usually did take these accounts, could easily be spared, and might devote their energies to the work of the chambers of Mr. Justice Kekewich. JAMES RAWLINSON.

Upper Holloway, N., May 11.

CORRESPONDENCE.

THE LAND TRANSFER BILL.

To the Editor of the Solicitors' Journal.]

Sir, I do not observe in the Bill, or in the remarks of the learned author of your recent articles upon this subject, any reference to the effect of the proposed compulsory registration before selling (see clause 2 of the Bill) on the taking of land for public purposes under Acts incorporating the Lands Clauses Consolidation Acts.

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This is a matter of some importance to all public bodies, railway companies, &c., engaged in carrying out undertakings of public nature; and the proposed legislation should, at any rate, make it clear, by express enactment, what is intended on this point.

It appears to be clear that all compulsory powers should be preserved intact; and the effect of requiring a preliminary registration of title, in cases of an agreement to sell to a public body, before a conveyance could be taken would, to say the least, be to very seriously hamper, if not to bring to a dead lock, the existing somewhat complicated machinery of the Lands Clauses Acts, and great delay and loss might be occasioned, without, it is submitted, any compensating advantage.

Perhaps, sir, in a future number you may kindly favour the profession with some remarks upon this portion of the subject. Spring-gardens, S. W., May 9. F. H. BARTLETT. [See observations under head of "Current Topics."-ED. S.J.]

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THE CHANCERY DIVISION.

[To the Editor of the Solicitors' Journal.] Sir,-It is generally admitted that the appointment of an additional judge for the trial of witness causes in the Chancery Division would be of great benefit to the suitors; but we live in days when economy" is not only talked about: it is to be realized and practically studied. It is to be hoped that the question of economy will be subordinated to the interests of the suitors. There is ample scope for the study of economy in other directions. The abolition of "Divisional Courts" in the Queen's Bench Division would enable the authorities to create more judges of appellate rank; and set at Liberty other judges for the trial of actions all the year round. The judges to set free would keep under the work of the Queen's Bench Division. The additional appellate judges would keep down the appeals of both divisions; and in consequence the chambers would have more work to do, and the suitors' fees would be greatly increased.

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This was an appeal from a divisional court (Day and Wills, JJ.). The plaintiffs had recovered judgment against the defendant Lewis for £108, but the sheriff was unable to levy execution. They accordingly applied to Manisty, J., at chambers to appoint a receiver of Lewis's salary, but the application was refused. They then applied, ex parte, to the Divisional Court, who granted the application, and appointed a receiver of the whole of Lewis's weekly salary. It appeared that Lewis was a managing clerk behalf that the order for a receiver ought not to have been made in his to a firm of solicitors at a salary of £4 per week. It was now urged on his absence, and that this was not a proper case for making such an order. THE COURT (FRY and LOPES, LJJ.) allowed the appeal. FRY, L.J., said that orders of this kind affecting a person's maintenance and livelihood ought not to be made in the absence of the defendant. The court had no doubt jurisdiction to make an order for a receiver upon an ex parte appli cation, but that jurisdiction ought to be exercised with the greatest caution, and only in cases of emergency. The order was borrowed from the Chancery practice, and it was there almost unknown to make such an assist the sheriff in levying execution on his goods by declining to open order on an ex parte application. The mere fact that Lewis had refused to his absence. It was the duty of the court under ord. 50, r. 15a, to see if such an the door to him was no ground for making such an order against him in order would be just or convenient. In this case it would fulfil neither of those requisites since it gave equitable execution against the whole of Lewis's means of maintenance. It would, therefore, make it impossible for him to continue in his employment, and would thus defeat its own ends by destroying the very fund it was intended to receive. LOPES, L.J., said he wished entirely to indorse the remarks of Lindley, L.J., in Lucas v. Harris (35 W. R. 112, 18 Q. B. D. 127), where he said, ex parte applications for a receiver ought not to be granted even after judgment except in mind, and not be lightly departed from."-COUNSEL, Lewis Edmunds; cases of emergency, and it is desirable that this rule should be borne in J. E. Bankes. SOLICITORS, Maddison; Mason & Trotter.

Re THE LANCASHIRE COTTON SPINNING CO., Ex parte COMPANY-WINDING UP-DISTRESS FOR RENT-LEAVE OF COURT-ATTORNCONELLY-C. A. No. 2, 5th May. MENT CLAUSE IN MORTGAGE-COMPANIES ACT, 1862, ss. 87, 163. The question in this case was whether, notwithstanding the winding up the company to distrain for rent due to them by virtue of an attornment of a company, leave ought to be given to the mortgagees of property of clause in their mortgage deed. The mortgage was for £22,000 on certain cotton mills belonging to the company and the machinery therein. The deed contained a clause by which the company attorned tenants to the mortgagee at an annual rent of £1,595. In November, 1885, an order was made to wind up the company, and the official liquidator remained in

possession of the mills with the view of selling them as a going concern.
He expended money in keeping up the mills and the machinery, but he
did not actually work them. The mortgagees acquiesced in this arrange-
ment, believing it to be for the benefit of all parties interested. The
mortgagees applied to the court for leave to distrain for a year's rent
due under the attornment clause on the 31st of December, 1886. North, J.,
refused the application.
THE COURT OF APPEAL (COTTON, LINDLEY, and BOWEN, L.JJ.) affirmed the
decision. COTTON, L.J., said that, in order that such an application
should be granted, some special circumstances must be shewn justifying
the court in depriving the company's creditors of the benefit of section
163. In his lordship's opinion the landlord was bound to shew, either
that there was some special equity making it unjust that he should not be
allowed to distrain, or that the premises had remained in the occupation
of the liquidator for the sole benefit of the company. In the present case
no special equity in favour of the mortgagees had been proved, and it was
clear from the evidence that the premises had remained in the occupation
of the liquidator for the joint benefit of the company and the mortgagees.
Moreover, a mortgagee with an attornment clause did not stand in so
favourable a position as an ordinary landlord. LINDLEY and BowEN, L.JJ.,
concurred.-COUNSEL, Buckley, Q.C., and Phipson Beale; Napier Higgins,
Q.C., and Chadwyck-Healey. SOLICITORS, Field, Roscoe, & Co., for Rigby
Claydon, Oldham; Gregory, Rowcliffes, & Co., for A. & G. W. Fox, Man-
chester.

APTHORPE v. APTHORPE-C. A. No. 2, 11th May.
NAVAL OFFICER-ASSIGNABILITY OF PAY-ATTACHMENT FOR COSTS.
The question in this case was whether the full pay of an officer in the
Royal Navy on active service could be attached for the payment of his
wife's costs of a divorce suit. Section 141 of the Act 44 & 45 Vict. c. 58
expressly makes void any assignment of the deferred pay of any officer in
the army, but section 5 of the Act 28 and 29 Vict. c. 73, applies only to
assignments of the pay of a "subordinate officer, seaman, or marine in the
navy," and not to assignments of pay made by commissioned officers. In
the present case the husband was a surgeon in the navy on active service,
his rank being that of a lieutenant. The wife sought to attach his pay for
the payment of her costs in the suit, which he had been ordered to pay
and had not paid. Butt, J., held that the pay could not be attached.
THE COURT OF APPEAL (COTTON, LINDLEY, and BOWEN, L.JJ.) affirmed
the decision. COTTON, L.J., said that, assuming that the pay of an officer
in the navy was not protected by statute from assignment, he thought
that it was protected by the general law. The pay was intended to keep
the officer in a position to discharge his duties properly. It had been held
that an officer's half-pay could not be assigned. And if half-pay, which
was intended to keep the officer in a proper position to discharge his duties,
when he should be called on to do so, could not be assigned, it followed
that full pay, which was given to the officer to enable him to discharge
his present duties, could not be assigned. And if the pay could not be
assigned, it would be equally wrong to attach it by any order of the court.
LINDLEY, L.J., was astonished that the question should have been raised.
If half-pay could not be assigned, it would be a startling thing if full pay
could. BOWEN, L.J., said that an assignment or attachment of an officer's
pay would be contrary to public policy.-COUNSEL, Bargrave Deane; Searle.
SOLICITORS, Langlois & Biden; Bramall & White.

CHARLES v. JONES-Kay, J., 7th May.
MORTGAGE-POWER OF SALE-INTEREST ON SURPLUS PROCEEDS OF SALE-

COSTS OF INQUIRIES.

Imperial Institute; provided that any shareholder who declines to be a
party to any such donation shall have his proportion returned to him with
his next dividend warrant." This resolution was carried by a large
majority. The plaintiff was not present at the meeting, but after reading
a report of the proceedings, he wrote to the secretary of the company, on
the 11th of March, protesting against the company's funds being applied
as was proposed, and threatening legal proceedings. The secretary replied,
pointing out that the directors were accustomed to act in obedience to the
orders of their shareholders, and not otherwise, and that, having regard
to the amount of the plaintiff's holding, his proportion of the subscription
would be about 13d. After further correspondence the plaintiff com-
menced this action, and now moved for an injunction to restrain the
company from subscribing the £1,000 in the manner proposed. In oppo-
sition to the motion, the general manager of the company made an affidavit
stating that, in recommending the proprietors to contribute to the funds
of the Institute, the directors desired to further its establishment in the
belief that a great number of visitors would be thereby drawn from the
districts served by their railway, and their traffic largely increased; and
that, inasmuch as the previous exhibitions at South Kensington had, by
the issue of through tickets from their system of railways, increased the
traffic revenue of the company by many thousand pounds, the directors
believed that the establishment of the Institute at South Kensington
would lead to a similar result. Further, that railway companies in general
had been accustomed to contribute to the funds of objects likely to en-
courage traffic upon their lines, such as race-meetings and regattas, and also
to hospitals and other public institutions which might benefit their ser-
vants. It was contended, on behalf of the defendant company, that the
proposed subscription, being conducive to the prosperity of the railway,
was not ultrà vires, on the authority of the cases of Taunton v. Royal
Insurance Co. (12 W. R. 549, 2 H. & M. 135), where it was held to be
within the power of insurance companies to pay in their discretion risks
which they were not legally liable to pay: Hampson v. Price's Patent Candle
Co. (24 W. R. 754), where a payment by the directors of extra wages to
the company's workmen was allowed; and Hutton v. West Cork Railway
Co. (31 W. R. 542, 827, 23 Ch. D. 654), where a similar gratuity would
have been allowed if the company had still been a going concern.
KAY, J., said that he had no doubt that it was the duty of the court to
grant the injunction. It was well settled that, if a proposed act were
outside the powers of a company, any shareholder might ask the court
to stop it, and the court had no discretion in the matter. In this case, so
far as his lordship was informed, the Imperial Institute had no more
connection with the railway company than the exhibition of pictures at
Burlington House, or at the Grosvenor Gallery, or Madame Tussaud's, or
any other exhibition in London. The only ground suggested for allowing
the proposed payment was that the traffic would be thereby increased; but
this result would follow from any exhibition which people wished to see,
and, as he understood the law, to apply the funds of a railway company
towards such an exhibition would clearly be improper. The proposed
payment was, therefore, in his opinion ultrà vires. The resolution pro-
vided that any shareholder who objected to the donation should have his
proportion returned to him; but a shareholder had a right to say that he
did not want his money spent in this way at all, and that he objected to
the whole of the proposed expenditure. The cases cited were really
authorities against the company. In Taunton v. Royal Insurance Co. it was
shewn that risks, for which insurance companies were not legally liable,
had long been considered by managers to be payable at their discretion,
and were paid in order to impress the public with an idea of their liber-
of vesting such a discretion in directors to the very verge to which it could
ality. He had always considered that this case had carried the doctrine
go, and that the court merely meant to decide that it would not restrain
one company from doing what others had always done. The other cases
only held that directors who, acting as good masters often did, gave extra
wages to workmen with whom they were satisfied in order to encourage
them in diligent and faithful service, were not acting beyond their powers.
None of these cases touched the present one, and he should be the last
judge on the bench to extend their meaning. It was important to keep
incorporated companies within the limits of their powers, and the court
had always done so. To argue from the cases cited that any expenditure
which would indirectly conduce to the prosperity of a company was intrà
vires was an extravagant proposition. No kind of objection could be made
to inviting the proprietors to subscribe out of their own funds, as was
authorized by the resolution, but the other alternative of a donation from
the company's moneys was ultrà vires.-COUNSEL, A. Young; Sir R. Web-
ster, A.G., C. T. Mitchell, and Worsley Taylor. SOLICITORS, F. W. Reynolds;

A mortgagee in possession sold the mortgaged property in 1884 under a power of sale contained in the mortgage. In an action brought against him for an account, he admitted that £600, and that only, was due from him in respect of rents and profits and surplus proceeds of sale, and he subsequently paid this amount into court. The chief clerk, by his certificate, found that, in addition to this, there was due from him a further sum of £591 38. 11d. The question was whether he ought to pay interest on these two sums from the date of the completion of the sale, and whether he ought to have his costs of the inquiries. KAY, J., said that he could not, under the circumstances, give the mortgagee his costs of the inquiries. The mortgagee was in the position of a trustee of the surplus proceeds of sale, and ought to have paid them into court if he did not know to whom to pay them, or, at least, to have set them apart so as to be fruitful. He must, therefore, pay interest at four per cent. on the surplus from the date of the completion of the sale.COUNSEL, Ince, Q.C., and Rawson; Marten, Q.C., and Arkcoll; Renshaw Q.C., and Ford. SOLICITORS, Mead & Daubeny; R. Blackett Jones; W. P. BARTON v. NORTH STAFFORDSHIRE RAILWAY-Kay, J., 7th Barton Browne.

TOMKINSON v. SOUTH-EASTERN RAILWAY CO.-Kay, J.,

6th

May.
COMPANY-APPLICATION OF COMPANY'S FUNDS-SUBSCRIPTION BY RAILWAY
COMPANY TO IMPERIAL INSTITUTE-ULTRA VIRES.

This case raised the question whether it was ultrà vires of a railway company to subscribe moneys of the company, by way of donation or otherwise, for the purposes of the Imperial Institute. At a meeting of the proprietors of the defendant railway company, held on the 5th of March last, to consider a circular issued by the Executive Council of the Imperial Institute, which invited railway companies to subscribe to the funds of the Institute, a resolution was passed, by which the directors were authorized "either by way of donation from the company, or by an appeal to the proprietors, as they may be advised, to subscribe the sum of £1,000 to the

W. R. Stevens.

May.

PRACTICE EVIDENCE DE BENE ESSE-FORM OF ORDER R. S. C., 1883,
XXXVII, 5.

In this case the proper form of an order for the examination of witnesses de bene esse came under the consideration of the court. The object of the action was to compel the defendant company to replace certain sums of stock which the plaintiff alleged had been transferred out of his name by means of a forged transfer. One of the witnesses who had attested the execution of the transfer being dangerously ill, the plaintiff moved, ex parte, that his examination might be taken de bene esse.

KAY, J., in granting the application, observed that he was surprised to find that the form of order given in Seton on Decrees (4th ed., p. 1635) contained the words: "And it is ordered that the plaintiff be at liberty to give such depositions in evidence at the trial of this action," &c. In his opinion these words ought not to be inserted, for at the trial the

witness might be capable of being examined, and it would then be necessary for the plaintiff to shew that he was incapable of being examined before leave would be given to use the evidence. In other respects the form of order given in Seton on Decrees was correct. His lordship, in reply to a question whether the order should direct a special examiner, said that the matter would go to the examiner in rotation.-COUNSEL, Whitaker. SOLICITORS, Stephens & Stephens, for Henry Hand, Macclesfield.

BOLTON v. MILLS-Chitty, J, 6th May. PRACTICE-MORTGAGOR AND MORTGAGEE-FORECLOSURE ABSOLUTE-RECEIVER UNDIscharged.

This was a motion for foreclosure absolute. It appeared that a receiver had been appointed in the action, and that the plaintiff had written to the defendants, stating that the receiver had received up to date a sum of some £500, and had expended some £100, and that the plaintiff was willing to take such amount, and any further amount which should be received by the receiver, in reduction of a sum of £5,000 found due to the plaintiff by the chief clerk's certificate, and was willing also to allow a deduction to the defendants of a sum of £500 if the residue of the £5,000 should be paid at or before the date fixed for foreclosure absolute. It was stated that the mortgaged property was deficient, and that no answer had been received to the plaintiff's letter, and that the plaintiff had served on the defendants notice of the present motion. It was stated that the plaintiff had adopted the above-mentioned course as a means of obviating the difficulties arising from the decision in Jenner-Fust v. Needham (31 Ch. D. 500). CHITTY, J., said that although there was nothing to shew that the defendants had accepted the plaintiff's offer, yet he should make an order as asked, and the defendants might, if they thought fit, move to discharge the order. He would make the order more readily because the defendants had had notice of the motion.-SOLICITORS, Harvey, Oliver, & Capron, for E. C. Newey, Birmingham.

Re MORGAN, OWEN v. MORGAN-North, J., 6th May. R. S. C., 1883, XIX., 27-STRIKING OUT EMBARRASSING PLEADINGThis was a summons by the plaintiffs, under rule 27 of order 19, to strike out some of the defences raised by the defendant in his statement of defence, on the ground that they tended "to prejudice, embarrass, or delay the fair trial of the action." The action was brought by the administrators of a wife against the executor of her husband, claiming to recover from the husband's estate certain sums of money which they alleged that he had received on trust for the separate use of the wife. By his statement of defence the defendant denied that the husband had ever received the moneys in question, and said that, if he had received them, he had not received them upon any trust. The defendant also alleged in the alternative that, if the moneys had been received, they had been repaid to the wife, or that she had made a gift of them to her husband. The defendant also pleaded accord and satisfaction, set off, and the Statute of Limitations and delay. The plaintiffs asked that the defences of repayment, gift, accord and satisfaction, and set off might be struck out as embarrassing and inconsistent.

INCONSISTENT ALTERNATIVE DEFENCES.

NORTH, J., held that the defendant was not entitled to plead inconsistent alternative defences of fact, and that the defence was embarrassing; but he gave the defendant leave to amend.-COUNSEL, Cozens-Hardy, Q.Č., and B. Eyre; Upjohn. SOLICITORS, Crouch, Spencer, & Edwards; Morgan, Son, & Upjohn.

nominally and personally a party; and the court could not make a personal order for costs against the liquidators where, as here, they were only sued in the name of the company. The order for costs must therefore be in the ordinary form against the company only.-COUNSEL, Warmington, Q.C., and G. F. Hart; Barber, Q.C., and Townsend. SOLICITORS, M. Abrahams, Son, & Co.; Hurford & Taylor.

BANKRUPTCY CASES.

Re BETTS, Ex parte THE BOARD OF TRADE-C. A. No. 1, 2nd May. BANKRUPTCY-REALIZATION OF BANKRUPT'S ESTATE-DUTY OF BANKRUPT to AID IN REALIZATION-CONTINGENT REVERSIONARY INTEREST-MEDICAL EXAMINATION-POLICY OF INSURANCE-ORDER OF DISCHARGE-BANKRUPTCY ACT, 1883, ss. 24, 28.

The question in this case was whether it was the duty of a bankrupt, part of whose property consisted of a contingent reversionary interest, to submit to a medical examination to enable the trustee in the bankruptcy to insure his life, and then sell the reversionary interest with the policy. The bankrupt was entitled to a contingent reversionary interest in the event of his surviving his mother, who was aged sixty-nine. The trustee had an opportunity of selling this interest for £800 if the bankrupt's life could be insured, and the trustee called upon the bankrupt to submit for this purpose to a medical examination. The bankrupt refused. Before the bankruptcy he had tried to raise money upon the reversionary interest for the purpose of carrying on his business, and at that time he submitted to a medical examination for the purpose of insuring his life, and his life was accepted, but the insurance was not carried out. The bankrupt applied for an order of discharge, and the official receiver reported that, to the extent of refusing to submit to a medical examination, the bankrupt had failed to aid to the utmost of his power in the realization of his property as required by sub-section 3 of section 24 of the BankBullock (16 Q. B. D. 698), in which Cave, J., held that a bankrupt could not ruptcy Act, 1883. Mr. Registrar Giffard, on the authority of Ex parte be ordered to submit to a medical examination for the purpose of insuring his life, declined to take this refusal into account, but suspended the bankrupt's discharge for six months on another ground. The Board of Trade and the trustee appealed. It was contended that the bankrupt had not complied with sub-section 2 of section 24, which requires that a debtor shall "generally do all such acts and things in relation to his property and the distribution of the proceeds amongst his creditors as may be reasonably required by the official receiver, special manager, or trustee, or may be prescribed by general rules, or be directed by the court."

THE COURT OF APPEAL (Lord ESHER, M.R., and FRY and LOPES, L.JJ.) affirmed the decision, FRY, L.J., dissenting. Lord ESHER, M.R., said that the question was not whether the conduct of the bankrupt was reasonable, but whether it was brought within the Bankruptcy Act, 1883 Section 28 said that "the court shall take into consideration a report of the official receiver as to the bankrupt's conduct and affairs, and may grant, or refuse, or suspend the order of discharge." In his lordship's opinion, "conduct" there referred to, if it did not come within the cases specified in section 28, must be something mentioned in section 24. The question, therefore, was whether the refusal to be medically examined was a refusal to do an act within the meaning of section 24. The object of the medical examination was to enable a policy to be effected on the bankrupt's life, so as to give a greater value to his contingent reversionary interest. The

FRASER v. PROVINCE OF BRESCIA STEAM TRAMWAYS CO. policy never would be the bankrupt's property. It would be sold with

(LIM.)-Kekewich, J., 2nd May.

PRACTICE-COSTS-"HIGHER SCALE"-R. S. C., 1883, LXV., 9-PER

SONAL ORDER ON LIQUIDATOR TO PAY COSTS.

In this case two questions arose with reference to the costs of the action, which had terminated in favour of the plaintiffs. The first question was whether the plaintiffs' costs ought to be taxed on the higher scale; the second was whether the liquidators of the defendant company should be ordered personally to pay the costs of the action incurred since their appointment. The action was of a complicated nature, involving the consideration of a number of foreign contracts and judgments; the subject-matter being a sum of about £4,500.

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KEKEWICH, J., hoped that some guide would soon be afforded for the application of ord. 65, r. 9. Here there was admittedly no "urgency." The meaning of " "importance was not plain, it could not be confined to importance in a public point of view, nor could it refer merely to the value of the property in dispute; at any rate, the amount at stake in this action was not enough to enable him to award costs on the higher scale under that head. But under the head of "difficulty" his lordship thought that the comparative simplicity of the case as actually presented to the court was the result of special industry and learning and much time and expense employed in preparing it for trial. He therefore made a direction empowering the taxing master to allow all or any part of the plaintiff's costs on the higher scale, if he thought fit, on the ground of the " nature or "difficulty" of the case. On the second question, his lordship said he should have had no doubt but for the dictum of Mellish, L.J., in Ex parte Angerstein (9 Ch. 479), and a passage in the judgment in Pitts v. La Fontaine (6 App. Cas. 482). However, these remarks must be taken to refer to cases where liquidators were actually personally parties to litigation, as in the various applications in a winding up, and not to cases such as this, where they were merely suing or defending in the name and on behalf of the company. In the latter case they were in a different position from that of a trustee in bankruptcy, who was always

the reversionary interest to the purchaser. The act which the bankrupt would be part of the bankrupt's property. The act which he was required was required to do would relate to the creation of property which never to do had no relation to his property or the distribution of it, but was required for the purpose of adding a new value to his property. Subsection 4 of section 24 made a wilful failure to perform the duties imposed by that section upon the debtor a contempt of court, and it would be extremely dangerous to bring within that section any case which was not clearly within it. In his lordship's opinion Ex parte Bullock was rightly decided. FRY, L.J., differed from the rest of the court and from Ex parte Bullock. He founded his judgment upon the particular facts of the case. The bankrupt before the bankruptcy proposed to raise money on the reversionary interest, and submitted himself for examination. He had stated that he had contracted no disease since then, and without any reason he refused to submit to a medical examination. Was the case within sub-section 2 of section 24? The act required of him was an act "in relation to his property.' The property depended upon his life, and would realize a far larger sum if the contingency upon which it depended could be got rid of. The act was one which could be reasonably required, for a reasonable man would feel under an obligation to do it. And under sub-section 3 the bankrupt was bound to aid to the ut. most of his power in the realization of his property, which must mean so that it might produce the greatest amount of money, and this could only be done in the present case by a policy being effected. No doubt the bankrupt could be committed to prison for contempt, but this bankrupt. having taken so unreasonable a course, would be very properly committed if he persisted in his refusal; whereas, on the other view, he could deprive his creditors of a valuable property. LOPES, L.J., agreed with the Master of the Rolls.

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Leave was asked to appeal to the House of Lords. On this point the court reserved their judgment, but on the 6th inst. the court gave leave to appeal.-COUNSEL, Sir E. Clarke, S.G., and J. E. Linklater. SOLICI TOR, Solicitor to the Board of Trade.

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