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from lack of repair, or (as Mr. Justice Kekewich said in Royal Bristol Permanent Building Society v. Bomash) from damage done by a tenant on the removal of fixtures, or from the breaking of windows or anything of that kind.

But on the question at what time does the vendor's liability cease, we are left very much in the dark by the recent case. If the words of the judgment in Phillips v. Sylvester are to be followed, it continues so long as the vendor, under any circumetances, remains in possession of the property sold. But in that case the vendor refused to give possession to the purchaser. In the recent case the purchaser refused to take possession, or enter, into receipt of rents, until the vendors could give vacant possession, but, as Mr. Justice Kekewich held that the vendors had contracted to give vacant possession, they were in default, and the purchaser was justified in his refusal. It seems to us that no case has yet decided that a vendor's liability continues after he has shewn a good title according to the conditions of sale, and has offered to give possession to the purchaser; and we think that where completion is likely to be delayed owing to questions not relating to the title, the safe course for the vendor is to offer to give such possession or receipt of rent as may be stipulated for in the purchase agreement.

II.

So matters remained from 1818 to 1872. But in the latter year there occurred the decision of Phillips v. Sylvester (21 W. R. 179, 8 Ch. 173). In that case there had been nearly six years' delay in completion, admittedly solely attributable to the purchaser, who had wrongly claimed a small piece of land as included in the purchase contract. There was no question as to the title, but the vendor had (as he was entitled to do) refused to give possession of the property until the purchase-money was paid; and, in the meantime, he had allowed the property to remain unlet and entirely neglected. It was held by Lord Selborne that, although the delay in completion was solely due to the purchaser, and although the vendor, in refusing to give up possession, was acting within his right, yet he was liable to the purchaser for the amount of rent which might have been received, and for the deterioration which had occurred in the property. The grounds of the decision were these:-By the effect of the purchase contract the right to the property passes to the purchaser; the right of the vendor is turned into a right to receive the purchase-money, for which he has a lien on the land until the purchase-money is paid. He is therefore in the same position as any other person would be, who, having security on land, insisted on the possession of the land as further security." That is to say, the vendor who retains possession until completion does so in the character of mortgagee in possession. It may, we think, be safely said that up to this decision no one had dreamt of ascribing this character to the possession of the vendor. In Sherwin IS COMPULSION REALLY NECESSARY FOR THE ESTABLISHMENT OF REGISTRATION OF TITLE? v. Shakspear (5 De G. M. & G. 517) it was expressly decided by the Lords Justices that a vendor who has to account to a purchaser for rents and profits from the time fixed for completion is not, unless a special case be made, liable to account for sums which he might have received but for his wilful default, nor entitled to an inquiry as to repairs or lasting improvements. "There is a vast distinction," said Lord Justice Turner (p. 536), "between the position of a vendor and that of a mortgagee who enters into possession of the estate. The mortgagee, when he enters, enters under a condition imposed on him by this court of exercising the utmost diligence for the benefit of himself and the mortgagor; but in the case of a vendor, the vendor does not take, but remains in, possession of the estate. It may ultimately appear that the estate of which he is in possession may never become the estate of the purchaser at all; and I think that if he continues in the due and ordinary course of management it is not the course of this court to charge him, upon the principle of his having been converted into the position of a mortgagee for the purchase-money." This was the law as understood by one of the most accurate and careful judges who ever sat on the bench; and it will be seen that is is in direct conflict with the singular doctrine laid down by Lord Selborne. It appears, moreover, from Mr. Justice Kekewich's valuable and interesting judgment in the recent case of Royal Bristol Permanent Building Society v. Bomash (35 Ch. D. 390) that, on Phillips v. Sylvester subsequently coming before Sir George Jessel, M.R., on further consideration, that eminent judge expressed a strong disapproval of Lord Selborne's decision, and that the well-known passage in 2 Dart's V. & P. (5th ed.) 650, in which the decision is severely criticized, had the approval of the late Master of the Rolls. Mr. Justice Kekewich in the recent case expressed an opinion that this criticism was sound; and we trust it may be anticipated that the strange notion that a vendor remaining in possession under any circumstances is in the position of a mortgagee in possession, will be discarded.

The true position of the vendor retaining possession was laid down by the House of Lords in Shaw v. Foster (L. R. 5 H. L. 321), where Lord Cairns said that "the vendor was a trustee of the property for the purchaser; the purchaser was the real beneficial owner, in the eye of a court of equity, of the property, subject only to this observation, that the vendor was not a mere dormant trustee; he was a trustee having a personal and substantial interest in the property; a right to protect that interest and an active right to assert that interest if anything should be done in derogation of it." In other words, the vendor is, as Sir G. Jessel said in Earl of Egmont v. Smith (ubi suprà), “a trustee, no doubt with peculiar duties and liabilities, but he is a trustee." His peculiar duties appear to consist in taking reasonable care that the property sold does not suffer serious deterioration, either, in the case of land, from the destruction of the fences or non-cultivation; or, in the case of buildings,

In our last article we reminded our readers of the ill-success of the Act of 1862, and how that had given rise to a suspicion of the selfish opposition of solicitors, and a surmise that the failure of the Act was mainly due to that cause. We also shewed that the best possible judges-namely, the Royal Commissioners of 1868-after giving the matter their very serious attention, entirely acquitted the profession of all blame. We consider this to have a direct bearing on the subject before us-"whether compulsion be really necessary?"-because, as will afterwards appear, we find the principal strength of the demand for compulsion, even at the present day, rests on the ground of this mistrust of solicitors as a body, and so no inquiry into the validity of that demand can possibly be of the slightest value which does not give full weight to this aspect of the matter.

After proving that the solicitors were not the cause of the failure of the Act of 1862, the commissioners proceed to say what, in their opinion, the causes were. The two main causes they mention are, first, that the avenue to the register was practically closed to the majority of landowners by the difficulty of proving a perfect title; and, second, that the system pursued in registering subsequent dealings was too complicated to give satisfaction to even the small number of landowners who succeeded in navigating their estates over the formidable "harbour bar " just mentioned.

To remedy the first difficulty the report (paragraph 75) advised the species of registration now known as "Possessory Title," and for the second (paragraph 72) that the system of registration pursued should be limited to registering fee simples and leaseholds, so as to enable the practice to be assimilated more closely to that already in operation in the Register of Stock. Both of these suggestions were, in fact, carried out by the subsequent Act of 1875.

The question of compulsion was not mooted before the commissioners, nor is it mentioned in their report, but it appears to have been a not infrequent concomitant of schemes for registration of possessory title ever since their first appearance. This will be seen from considering the history of the idea of possessory title, which is as follows:

The name is not a very fortunate one; it expresses rather the nature of the evidence on which the registration is to take place than the nature of the registration when made. Mr. R. Wilson, a London solicitor, expounded it in 1847 to the Registration and Conveyancing Commission (Report, 1850), illustrating it with some 200 pages of forms which he had prepared for the purpose, and which are bound up with the report. Paragraph 639 of the evidence runs, "Then your first step would be to have a compulsory registration, in each parish, of the ownership of all the properties? Exactly so." The registration referred to was to be called "provisional registration " (a far better name than " possessory "), and was to remain provisional until the expiration of a

system.

given period (not unlike the Chancellor's five years for "confirma-operated as a most decided check upon landowners adopting the tion," only at that early period ten or twenty years (paragraph 650) was the time suggested for maturing the title), and the evidence was to be possession only (Evidence, page 485). The commissioners, in their report (page 36), abstain from comment on this plan, because it appeared to them to alter existing titles, "to change the character of existing rights and to shorten the periods during which they might be asserted," matters which it was not within their commission to treat.

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For various reasons, most of which have since become the common property of all disputants on the subject, the commissioners declined to recommend the adoption of any of the above modes of compulsion, though not without some difference of opinion as to the last.

(5.) To require that properties once voluntarily registered should not be taken off the register. This they recommend.

As regards the general question, they propose (paragraphs LV. to LXI., pages 33 to 35) that "registration of title should be twofold-one which shall at once enable the registered owner to transfer the estate with a present or immediate statutory title; the other, registration of actual ownership without the power to transfer an immediate statutory title "-possessory title in short. Only the former of these was, in fact, embodied in either of the two Bills introduced into Parliament in 1859, or in the measure adopted by the Legislature in 1862.

Then came the failure of the Act of 1862 (already commented on), which resulted (as we have seen) in the re-appearance of the two-fold system recommended in 1857. It is evident, however, from the language of the Report of 1870 (paragraph 74) that the commissioners then placed much more reliance on the still untried expedient of possessory title than on the absolute title system whose fruits had been so scanty. In fact, it was evidently thought that absolute titles could never be granted on terms short of exorbitant, and so, official assistance having failed to create the ease and security ultimately aimed at, the assistance of old Father Time was called in instead. To a possessory title "lapse of time will confer an ever-increasing validity till it becomes marketable in the technical sense and practically indefeasible," and then follows the now classical "filter" metaphor. "It is as though a filter were placed athwart a muddy stream; the water above remains muddy, but below it is clear, and, when you get so far down the stream as never to have occasion to ascend above the filter, it is the same thing as though the stream was clear from its source (Report of 1870, paragraph 75, page xxviii.).

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The failure of the Act of 1875, however, raised a fresh difficulty,

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To return to the facts. Although the Commissioners' Report of 1870 did not even suggest compulsion, although the Report of 1857 had expressly disapproved of it, and although no really efficient reason had as yet been propounded for recourse to such an expedient, other than the perhaps natural desire of the reformer to have the fulfilment of his project guaranteed by sovereign authority, Lord Selborne, in 1874, thought the compulsory registration of possessory titles on all sales would be a justifiable provision, and accordingly included it in his Bill of that year. But Lord Cairns was of another opinion (which he always afterwards maintained, even in the face of the failure of his own Act), and, accordingly, the Act of 1875 was voluntary, like its predecessor. and was marked by a reappearance of the old suspicion. The report of Mr. Osborne Morgan's Committee of 1878, 1879, does not endorse that suspicion in any way, but it contains the following subject, is next door to admitting the necessity of compulsion :— passage, which, in the present state of the public mind on the "Rightly or wrongly, the public or their professional advisers have deliberately made up their minds that the advantages offered by the new system of registration are too speculative and remote to compensate for the immediate and certain outlay and trouble which are inseparable from it. (page v.). They are informed, on the authority of Mr. Follett and Mr. Holt, that no system of registration of titles can be devised which will be voluntarily adopted" (page iv.). The committee then deprecate compulsion on general grounds, and go on to record their opinion that improvements in conveyancing must be sought in other expedients. Our own belief is that the failure of the Act of 1875 was principally owing to the apathy shewn by all high personages in relation to the matter from the moment the Act was passed down to about this time last year. If the possessory title " system had been properly (or at all) advertised, and if the approaches to the register had been made in the least easy, if local solicitors had been appointed agents of the office, &c., matters would probably by this time have been very different. Lord Thring's evidence given to Mr. O. Morgan's Committee tends to support this view. "First, I consider the passing of Lord Westbury's Act threw a blight over the whole thing; then the feeling of the profession is a very conservative one; it is very difficult to move, and the dead weight of an opposition of that sort is very great" (this we have never disputed); "and, lastly, the public are not acquainted with the provisions of the Act; or, in other words, it has not been properly advertised or made public. I told the Government that I was certain the other Act had thrown a sort of blight upon the whole system, and that unless unusual exertions were used it would not be taken advantage of. Probably there ought to be in the larger places agencies. If it were pushed in the way you or I or a company would push anything we were concerned in, I think it would succeed" (1879, Evidence, paragraphs 7, 8, 25, 67).

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66

Meanwhile a new element was exerting a marked and powerful influence on the minds of the commercial community-who have a very direct interest in land as a marketable commodity, and as a "security for debts and engagements-namely, the success of the Torrens system in Australasia. Untaught to observe the great differences between the Torrens and the Westbury-Cairns system which subsequent study has brought to light, the general public has come to the conclusion that the Act of 1875 cannot have had fair play, or else it would have succeeded as the Colonial Acts have. The subject passed for a time out of the hands of the landowners themselves into those of speculative politicians, whose study and experience are seldom equal to their enthusiasm and self-confidence, and among these there can be no doubt that the demand for com pulsion is most determined, and is founded on the impression (which has much plausibility at first sight) that nothing else will do the necessary work of overcoming professional opposition and prejudice.

Well would it have been for " possessory title" and all concerned it had this simple principle been relied on in its integrity. Unfortunately, among one or two other mistakes which we shall point out further on, it was thought advisable (if we may continue the metaphor) to do a little preliminary dredging above the filter, in the shape of requiring 'as a precaution against the entry of a purely fictitious title " (Report, paragraph 76), the making of a preliminary investigation which, in the practice under the resulting Act, took shape in the making of certain affidavits, the production of the last conveyance, and (presumably) its perusal, and the consideration of the question whether, by stamping certain deeds produced, the fact of the registration could or could not be concealed from a person dealing with the land. What harm (except to the applicant himself) the registration of a purely fictitious title could do is not apparent: nothing was to be guaranteed, so nothing would be assumed from it by purchasers. This left-handed investigation had no effect whatever in clearing the title, and the amount of trouble it involved, or appeared capable of involving,

Thus it is in vain that it has been urged that solicitors opposed registration in Australia quite as much as they are supposed to have-and more than they are proved to have-opposed it in England; in vain is the absurdity pointed out of supposing that, if a really cheap and easy system had been suitably presented to the landowners, the opposition of all the solicitors in the world

would have sufficed to prevent their availing themselves of it. The
multitude cannot be expected to recognize fine distinctions; their
minds seem almost unalterably made up.
For various reasons, however, the accusation against solicitors
(without which the argument for compulsion is robbed of half its
force) has been withdrawn to some extent. Respect for the opinion
which has prevailed with all the Royal Commissions and Parlia
mentary Committees that have considered the matter has prevented
the responsible leaders of the two great parties in the State from
basing their claim for compulsion on this ground. Compulsion
appears to them to be defensible and necessary mainly for another
reason, to be noticed next-namely, that registration is so remote a
benefit that it is not to be expected that any present generation of
landowners should voluntarily adopt it. But when this is con-
sidered carefully, it will not appear to present registration in a
very attractive light, or to account for the fact that compulsory
registration is at present such a popular cry as it is. We venture
to think that, while the leaders are moved by this conviction, their
supporters are still actuated by the suspicion of solicitors which we
have seen to be widely diffused, and perhaps pardonable as an error
of the ignorant.

To turn to the view now propounded by the great leaders in the matter, it amounts to this: No means yet devised will place an absolute title within the reach of an ordinary landowner; possessory title, therefore, is the only resource. But possessory title confers no benefit upon the existing generation of landowners; therefore, it is useless to expect them voluntarily to adopt it; if it is to be established at all, it must be by compulsion; landowners must submit to a burden they would never willingly undertake, in consideration of the benefit to posterity. A more unfortunate statement can hardly be conceived. If it be true, heavy compensation out of the public funds ought to be made to the present generation of landowners for their trouble and inconvenience. No sign of the intention to make such compensation is apparent. If it be not true, then, again arises the old question, Why should a well-educated class of men need to be compelled to do what is for their own benefit, or even (in reason) for the benefit of their

children?

REVIEWS.
MODERN EQUITY.

LEADING CASES IN MODERN EQUITY. BY THOMAS BRETT, LL.B.,
B.A., Barrister-at-law. William Clowes & Sons (Limited).
Let us say at once that Mr. Brett's book is an interesting one. It
is interesting because it sets forth concisely a number of decisions of
recent years which to a large extent replace those of a previous
date, and these are followed by short essays on the points of law
involved. It affords the reader a good deal of information, while it
saves him the long arguments and judgments of the cases in White
and Tudor, with the formidable treatises appended to each.
But we doubt whether Mr. Brett has made the book as useful as he
might have done. What we really want in our law is systematic ex-
position, and here we have nothing of the kind. Of course it would
be wrong to judge any book by a higher standard than that which it
aims at, and if the object is merely to give a number of detached
decisions, the author is quite at liberty to confine himself to this.
But he ought, in that case, to refrain from enlarging the book by a
quantity of miscellaneous information which can only be really
useful when properly arranged. Thus the note to Richards v.
Delbridge (p. 8) on Declaration of Trust, which is introduced to shew
how a voluntary gift or settlement can be validily made, finishes up
with a list of persons who may be trustees and with the sections of
the Conveyancing Act on the appointment of trustees. So in the
note to Re Jones (p. 149), which decides that a person may be tenant
for life under the Settled Land Act, 1882, though he receives no in-
come from the land, we have the outline of a treatise on the whole of
the Act.

Indeed, the book gives us not so much leading decisions in modern equity as a great quantity of information on the law relating to cases now assigned to the Chancery Division, and that quite regardless of whether they illustrate equitable doctrines

no.

or

We have already referred to Re Jones, which is a case on the construction of the Settled Land Act. We may also refer to Reid v. Reid (p. 142) on the Married Women's Property Act, 1882. Both of these are highly important and interesting cases, but it is difficult to see their connection with modern equity. The same may be said of the practice cases at the end of the book. Moreover, as Mr. Brett was really dealing with Chancery business, we might

have expected some decisions on company law, and here, although it
depends so largely on statute, he would have found that modern
equity had really been at work. Thus quite a new importance has
been given recently to the possession of share certificates, and the
well have been introduced under this head. But where the field for
case of Société Générale de Paris v. Walker (11 App. Cas. 20) might
selection is so wide, it is clearly invidious to complain of the omission
of particular cases. Let us rather say that the cases which are intro-
duced are really leading cases, and that where the author has
confined his notes to discussions of the real point involved he
frequently gives us a valuable account of the development of the law.
Thus, in Austerberry v. Corporation of Oldham, the manner in which
the equitable doctrine of notice has been applied to restrictive
this could be quoted, as in the quite recent
worked out.
covenants, is well
Many other examples of
cases of National
Provincial Bank of England v. Games (31 Ch. D. 582), on mortgagee's
costs, and Re Corsellis (34 Ch. D. 675), on solicitor-trustees' costs.
There is, indeed, as we said before, plenty of useful matter in the
book. What we complain of is, that the author has not rightly
apprehended the limits of his subject. If he meant to give us a handy
volume on modern decisions in equity, he should have reduced the
points involved, and cut off the miscellaneous matter. While, if he
number of his cases, made his notes somewhat fuller on the particular
Division, he ought to have given up the idea of leading cases
meant to produce a work on the law as applied in the Chancery
altogether, and attempted a systematic arrangement.

LAND TRANSFER.

OBSERVATIONS ON THE LAND TRANSFER BILL, 1887.

By JOHN

BRENNAN, Solicitor. Waterlow & Sons (Limited). This pamphlet is based on letters which have appeared in the columns of the SOLICITORS' JOURNAL. The author is opposed to every item contained in the Land Transfer Bill. He distrusts registration of title altogether, and sees no necessity for the changes in the law of real property. The keynote of the whole is sounded in the following passage (at p. 11):-"Thanks to the admirable Act of 1881, conveyancing has been brought to such a state of extreme simplicity that improvement might well be regarded as impossible; and the authorized scale of charges appears to give general satisfaction, as well to clients as to practitioners. The Settled Land Act of 1882, by the powers conferred on the tenant for life, effected a very valuable alteration, and got rid of the popular objection that land was too much tied up." We think, for reasons which we explained last week, that the discussion of the general objections to registration of title as a whole is now almost futile. Both the great parties in the State are pledged to it, and all that remains for the profession is to make the Brennan's pamphlet some new and valuable suggestions against the best they can of the position. But there will be found in Mr. real property clauses of the Bill, based upon the variable character of the value of land. It is suggested that in view of the general decline in the value of land, this is not a proper moment to place it on a par with Consols and railway shares in the order of administration. On several points connected with the debateable points in the registration system proposed by the Bill, Mr. Brennan is in accord with the general opinion expressed by professional critics who have gone minutely into the matter. He very reasonably asks for a probationary period of six years before the incidence of compulsion; he dwells upon the difference between Consols and real estate; sees no advantage in a possessory title, and sees considerable blemishes in the absolute title now proposed to be established, as not being truly indefeasible. Consolidation with the Act of 1875 is most properly insisted on, the absence of detail is deplored, and the expense of registration to the small purchaser is set forth. The author deprecates the officialism that will ensue on the adoption of the Bill, and objects to the Insurance Fund, which he styles robbing Peter to pay Paul; on this latter point, however, we cannot concur. The regulations as to boundaries he also objects to, in which we cordially agree (see reasons ante, p. 589).

66

The Times Paris correspondent says that term opened in the Paris Law Courts on the 17th inst., and although attendance at the so-called Messe Rouge absentees. " is no longer binding on the judges, there were few Archbishop Richard gave the benediction at the mass in the Sainte Chapelle, after which the courts met and the usual historical essays on legal celebrities were delivered.

A committee has been appointed by the Home Secretary to report upon the accommodation for prisoners awaiting trial at police courts and courts of petty sessions; and also on the question of providing food for destitute prisoners who are tried there. The committee consists of the Hon. Mr. Justice Wills, Sir R. Fowler, M.P., Sir T. Evans, Sir E. F. Du Cane, K.C.B., and Mr. H. J. Bushby. Mr. J. S. Sandars is appointed secretary.

CASES BEFORE THE VACATION JUDGE. COMPANY-PETITION-CREDITORS - PRIORITY-ADVERTISEMENT - LONDON GAZETTE-NOTICE.

In the case of the Alliance Supply Stores (Limited), before Charles, J., on the 14th inst., the question arose whether the petitioner presenting a second petition had notice of a petition previously presented, and whether he had any priority by virtue of his petition being advertised first in the London Gazette. Two petitions were presented to wind up the company, one by a creditor to the amount of £5 33. 8d., being also a debenture holder to the amount of £300, the other by a creditor to the amount of £160. The petitions were opposed by creditors to the amount of £518, but the company consented to a winding up order being made. For the first petition it was said that the company was insolvent, and ex debito justitia should be wound up. This petition was presented on the 21st of September, the second petition on the 23rd of September. Reference was made to the Globe Steel Co. (23 W. R. 823, 20 Eq. 337). Creditors opposed the petition, but the company said the business could not go on. In the cases where the creditors successfully opposed the company also opposed. Reference was made to The Uruguay Co. (27 W. R. 571, 11 Ch. D. 372), Middlesborough Assembly Rooms Co. (28 W. R 868, 14 Ch. D. 104), Langley Mill Steel and Ironworks Co. (19 W. R. 674, 12 Eq. 26), London and Suburban Bank (19 W. R. 763, 6 Ch. 641), Great Western Forest of Dean Coal Consumers' Co. (30 W. R. 885, 21 Ch. D. 769), Chapel House Colliery Co. (31 W. R. 356, 13 Eq. 474). The company was in the nature of a partnership, and could refuse to go on. As to the petitions, this one was advertised first of the two in the Daily Chronicle, but the second petition was advertised first of the two in the London Gazette. Under the new practice it was not a question of advertisement, a second petition now could not be presented without notice of a first petition, because it was the duty of the officer of the court to search and find out whether any previous petition had been presented. For the second petitioner it was said that several bills of exchange remained due and dishonoured. The first petitioner was a small creditor and was also an officer of the company. The second petition was advertised first in the London Gazette. United Ports General Insurance Co. (20 W. R. 356, 13 Eq. 474). Creditors to the amount of £518 opposed. On their behalf it was said that the company was not insolvent; the assets consisted of 5s. uncalled capital on each £1 share, stock in trade £500, valued at £400, being originally bought for £1,800, book debts £2,500, valued at £500. These valuations were incorrect, and it had not been made out that the company was insolvent.

CHARLES, J., made one order on both petitions, and the usual order as to costs, and gave the conduct of the winding up to the petitioner who advertised first in the London Gazette.-COUNSEL, D. L. Alexander; B. E. Lawrence; Cooper Wyld; and Gatey. SOLICITORS, K. Powles; J. Godfrey & Hickson; Thomas Durant; and Thomas W. Hall.

ATTACHMENT ORDER ΤΟ PAY-DISOBEDIENCE INABILITY DEBTORS ACT, 1869, s. 4.

ΤΟ PAY

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In the case of Re Magnay, Tipper v. Tipper before Charles, J., on the 14th inst., the question arose whether a writ of attachment should issue against the defendant for disobedience to an order made by Chitty, J., on the 3rd of August, whereby the defendant George Tipper was ordered to pay £1,304 19s. 9d. into court. In 1881 Mrs. Eloisa Magnay was burnt to death in the fire at the Opera House at Nice. The defendant George Tipper, a first cousin of the deceased, who died intestate, then took out letters of administration and obtained the papers and jewellery of the intestate and a sum of £1,304 19s. 9d. The plaintiff Clara M. Tipper and a sister, both sisters of the intestate, then brought this action, and Chitty, J., on the 3rd of August, made the order above referred to, which had not been complied with. For the defendant it was contended that he could not be imprisoned since the Debtors Act, 1869. Reference was made to Middleton v. Chichester (19 W. R. 299, 6 Ch. 152). The proceedings had been taken four years after the defendant had received the money; he was not aware that the plaintiffs were alive, he had since done all he could to get the letters of administration revoked. If the defendant were not sent to prison he could get employment and pay off the money by instalments.

CHARLES, J., said that all the considerations urged on behalf of the defendant were very relevant to his release, but the plaintiffs were entitled to their order, the order not to be drawn up for ten days; the defendant to pay the costs.-COUNSEL. De Courcy Atkins; Cagney. SOLICITORS, Hare & Co., for C. A. Wade, Henfield, Sussex; A. T. Benning.

PARTNERSHIP-DISPUTE-RECEIVER-ASSETS IN DANGER.

cock (16 Ves. 49). Here the assets were in jeopardy, and the plaintiffs were entitled to have the interim injunction continued, and to have a receiver appointed. For the defendant it was said that there was a bond fide dispute as to the existence of a partnership, and the court would not, under these circumstances, appoint a receiver. Reference was made to Tucker v. Prior (ante, p. 784), where the law was carefully_gone into, and Charles, J., refused to appoint a receiver; also to Lindley on Partnership, 4th ed.. vol. 2, p. 1012; Peacock V. Peacock (16 Ves. 49), Chapman v. Beach (1 Jac. & W. 594), Fairburn v. Pearson (2 M. & G. 144). The affidavit on which the interim injunction was granted was misleading and the injunction should be dissolved: Castelli v. Cook (7 Hare, 94). If a receiver was appointed it should be the defendant, who had managed the business.

In the case of Longbottom. Woodhead, before Charles, J., on the 19th inst, the question arose whether, where the existence of a partnership was disputed, but the assets were in jeopardy, a receiver should be appointed. This was a motion on behalf of Messrs. Longbottom, hot water engineers, of Leeds, asking that the interim injunction granted on the 21st of September last by Charles, J., might be continued and a receiver appointed. The action was brought for an account of the moneys received by the defendant in respect of a partnership alleged to have been entered into between the plaintiffs and the defendant in January, 1876. The plaintiffs also asked for an injunction restraining the defendant from dealing with the partnership assets or pledging the credit of the partnership, and for a receiver to be appointed. The defendant denied that there was a partnership. Evidence was given that the assets were in danger. For the plaintiffs it was said that there was ample evidence that there was a partnership; the case was different from Peacock v. Pea

CHARLES, J., said that this was one of those exceptional cases where, though the partnership was in dispute, in his opinion a receiver should be appointed. It had been proved that the book debts were in danger, and he did not see that the receiver would injure the plaintiff. He should refuse to appoint the defendant as receiver, but continued the interim injunction, referring it to chambers to appoint a receiver.-COUNSEL, George Henderson: Decimus Sturges. SOLICITORS, Bell, Brodrick, & Gray, for Walker & Tweedale, Leeds; Hamlin, Grammer, & Hamlin, for B. C. Pullen, Leeds.

ATTACHMENT —

ANCIENT LIGHTS-OBSTRUCTION-INJUNCTION CONTEMPTAFFIDAVIT-CROSS-EXAMINATION-R. S. C., 1883, XXXVII., 20.

In the case of Plake v. Hall, before Charles, J., on the 14th inst., the question arose whether counsel on behalf of the defendant had a right in the vacation to cross-examine the plaintiff on a motion for leave to issue a writ of attachment against the plaintiff. The action was brought by Hermann Plake, cane blind manufacturer, against the defendant to restrain him from execting or permitting to remain on the Whitfield Burial Ground, Tottenham-court-road, a booth or tent so as to darken, injure, or obstruct the ancient lights of the plaintiff. On the 9th of September last Kekewich, J., made an order restraining the defendant in the terms of the notice of motion. This order was not obeyed, as the plaintiff alleged, and a motion was now brought for leave to issue a writ of attachment against the defendant. The plaintiff said that the original tent had been removed, but another was put there which darkened the plaintiff's windows. The defendant's counsel then claimed as his right to cross-examine the plaintiff on his affidavit, under rule 20 of order 37, and was allowed to do so by the judge. The plaintiff in his cross-examination admitted that the old tent had been removed, but was unshaken in his evidence that a tent was darkening his rooms.

CHARLES, J., said that he was satisfied that an impudent contempt of court had been committed, and made an order that the writ should issue, the order not to be drawn up for two days, the defendant to pay the costs. Subsequently Charles, J., gave leave to the defendant's counsel to move in chambers the following day on giving notice to the other side.

On the 15th inst. Charles, J., on the defendant satisfying the court that he had removed the tent, and had paid the costs, discharged the order, and on the defendant submitting to a perpetual injunction, the action came to an end. --COUNSEL, Eustace Smith; C. H. Turner. SOLICITORS, S. B. Abrahams; W. W. King.

COMPANY-DIRECTORS-REMOVAL-NOTICE

In the case of Browne v. La Trinidad (Limited) and Others before Charles, J., on the 19th inst., the question arose as to the sufficiency of notice to a director of a meeting at which it was decided to remove him from being a director. This was a motion on behalf of James Thomas Browne, a director of the company, to restrain the company and the directors from holding a meeting on the 12th of October, 1887, and from hindering the plaintiff from acting as director, and attending the meetings of the company. A meeting had been held of the board of directors at which it was resolved to convene an extraordinary general meeting of the company to pass certain resolutions. The first resolution was to remove the plaintiff from the directorate. The meeting of the board of directors was held at 3.30 in the City, and notice of the meeting was given to the plaintiff at 3.28. Article 91 of the Articles of Association gave the company power to remove a director, but article 6 provided that Browne should remain a director until 1888. The first meeting had been held and the first resolution had been passed, but the second meeting, to confirm the resolutions, was fixed for the 28th of October. On behalf of the plaintiff reference was made to Pulbrook v. Richmond Consolidated Mining Co. (9 Ch. D. 610); Imperial Hydropathie Hotel Co., Blackpool v. Himpson (23 Ch. D. 1); Harben v. Phillips (23 Ch. D. 14). The company had no power to remove Browne before 1888, and the second meeting should be restrained. For the defendants it was contended that the motion was practically to enforce specific performance of an agreement to employ the plaintiff. The court was asked to compel the company against their wili to take the plaintiff back when he was engaged in litigation against them. would not do this. Reference was made to Walker v. The London Tramways Co. (12 Ch. D. 705). Notice to a director was not really necessary; if Browne had had notice, the resolution would have been passed all the same, so he was not damaged.

The court

CHARLES, J., said that their was an initial infirmity in these proceedings, the plaintiff, Mr. Browne, had had no notice whatever of a meeting at which the directors came to the conclusion that an extraordinary general meeting of the company should be summoned to remove the plaintiff from being a director. Giving no opinion as to the rights of the plaintiff under the articles, he granted an injunction to restrain the defendants from holding a meeting to confirm the first resolution, and to restrain the defendants from hindering the plaintiff from acting as a director.—

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In the case of Re Fassett, Wells v. Dearle, before Charles, J., on the 19th inst., the question arose as to the issue of a writ of attachment against a solicitor, pending the hearing of a summons taken out by him to vary the taxing master's certificate. This was a motion for leave to issue a writ of attachment against the defendant Dearle, a solicitor, for disobedience to an order made on the 6th of May, 1887, whereby the defendant was ordered to pay £308 18s. 2d. into court. This sum consisted of £185 198. 9d. balance found due from the defendant to the estate of Fassett, after deducting £216 2s. 7d. costs. About £100 of these costs had been disallowed, and the defendant had taken out a summons to vary the certificate of the taxing master. For the plaintiff it was said that after fourteen days the taxing master's certificate was conclusive, and he was entitled to his order. For the defendant it was said that, pending the summons, the order ought not to be made. Reference was made to R. S. C., 1883, LXV., 39, and Middleton v. Chichester, 19 W. R. 299, 6 Ch. 152.

At all events, the defendant ought to have liberty to apply to Stirling, J.,

to reduce the amount. One judge could not alter another's order. CHARLES, J., ordered the writ to issue, to lie in the office for a fortnight, the defendant to pay the costs.-COUNSEL, A. Beddall; A'Beckett Terrell. SOLICITORS, B. Burton; J. G. Dearle.

MANCHESTER COUNTY COURT.

Re WALTER LOWE-12th October.

or the Board of Trade. So long, however, as the tendency of Parliament was in the direction of making these matters public they ought to assist the press, and if public opinion was against the system let it be expressed so as to bring pressure to bear on the proper authorities. The official receiver said he always tried to act impartially, and do that which he believed was the intention of the Legislature. The registrar said he did not think anyone could say a word against that view. The official receiver said he would be glad if Mr. Newman would have the point properly tested. Mr. Newman promised to write to the Board of Trade on the subject.

CORONERS' INQUISITIONS.

In

MR. HERBERT STEPHEN has addressed a letter under this heading to the standing current as to the effect of the verdict of murder returned by the Times, in which he says:-There seems to be a good deal of misundercoroner's jury at Michelstown against those of the police whom Mr. Harrington did not compliment. This inquisition, unless it is quashed. or the Irish Attorney-General enters a nolle prosequi, will have to be tried jury find a true bill or ignore a bill, or do not have any bill sent up to before a jury as if it were an indictment, and that whether the grand them. It often happens in England that persons are committed by coroners to be tried for manslaughter where the magistrates have refused to commit them, or where they have not been charged before magistrates. In such cases a course sometimes taken is that the judge directs that a bill should be submitted to the grand jury. If the grand jury find a true bill they present the bill submitted to them, which is thereafter properly described as an indictment, and then the accused may be tried indifferently on the presentment of the grand jury or on the coroner's inquisition. If the grand jury find no true bill it is usual for counsel for the prosecution - i.e., for the Crown-to ask the leave of the judge to offer no evidence on the trial of the inquisition. The prisoner is then arraigned, the jury are sworn, and, no evidence being offered, the judge directs a verdict of not guilty, usually explaining to the petit jury that he allows this course to be taken in consequence of the decision of the grand jury that there is not enough evidence to justify them in putting the prisoner on his trial. Sometimes the judge does not trouble the grand jury in the matter at all, but merely advises that no evidence should be given on the inquisition, but in every case the accused has to be formally tried and a verdict given on the inquisition. the present instance a bill may be sent before the grand jury and ignored, but the accused will still have to be tried, and a petit jury will have to return a verdict. If it is the opinion of the Executive in Dublin that presumably innocent men ought not to be tried for their lives by a jury upon no stronger grounds than the proceedings which have made Mr. Coroner Rice and Mr. Harrington, M.P., notorious, the right course for them to pursue is to move to have the inquisition quashed. This is, happily, not a sort of application for which our legal bistory furnishes many precedents. But it seems to be clear that the High Court has power to quash an inquisition and issue a writ ad melius inquirendum on the ground that the coroner misbehaved himself. It is laid down in Corner's Crown Practice (p. 203), quoting from Hawkins's Pleas of the Crown (vol 2, c. 9, s. 56), that "if it appear that a coroner hath been guilty of any corrupt practice in the taking of an inquisition, it seems that a melius inquirendum shall be awarded for the taking of a new one by special commissioners, who shall not proceed on the view of the body, but on the testimony of witnesses; and the coroner shall have nothing to do in the taking of such new inquest, because it appears from his former misbehaviour that he is not to be trusted. But where his inquisition is quashed for a defect in a point of form only, he may, and ought, to take a new one, in like manner as if he had not taken any before." Among the authorities which Hawkins gives for this proposition are Barclay's case, mentioned by Hale (Pleas of the Crown, I., 415, and II., 60), and the case of R. v. Hetheral, reported in 3 Mod. 80, and decided about 1685. In Barclay's case the subject of the inquest had drowned himself, and the coroner was said to have refused to hear evidence that he was insane, in consequence of which the verdict was felo de se (which involved forfeiture of his goods to the Crown). The inquisition was quashed, and a melius inquirendum granted. In R. v. Hetheral the complaint was that the man had been found insane when he was really felo de se. The application was refused, but the court told the counsel who made it that "if he could produce an affidavit that the jury did not go according to their evidence, or of indirect proceedings of the coroner, then they would grant it." The other cases on the subject that I have been able to collate all turn on the point of suicide or insanity, but these appear to make it clear that misconduct or partiality by a coroner is a ground of application for a melius inquirendum which the court will entertain.

ALLEGATIONS OF CAUSES OF FAILURE IN DEBTOR'S STATEMENT. During the public examination of this debtor, before Mr. Registrar Lister, Mr. Newman, who appeared for creditors, referred to a statement appended to the official summary of the debtor's affairs, in which the debtor alleged, amongst other things, "that the cause of his failure was due to unwarrantable pressure from Woolley and several other creditors withdrawing their credit from him." To this allegation Mr. Newman objected, and in examination the debtor said he informed the official receiver, or some members of his staff, that one of the causes of his failure was the pressure already described, but that, to the best of his knowledge, the official receiver had not made any inquiries into the truth of his allegation. Mr. Newman contended that it was a libellous statement, and was calculated to injure the excellent reputation which Messrs. Woolley possessed. He thought that inquiries ought to be instituted before the official receiver published, on debtors' statements, allegations of that kind, because Mr. Dibb occupied an official position, and the public were too apt to think that such statements were correct. The official receiver said he acted under the directions of the Board of Trade, and Mr. Newman could test the point by bringing an action. The registrar said he could not say that the official receiver was wrong, but he should be glad if the point was properly tested. The official receiver said he should be glad to get rid of the annoyance, and he wished Mr. Newman would write to the Board of Trade on the subject. Mr. Newman said he would do so, and suggested that in the meantime the official receiver should put at the end of such statements that they were made without any inquiry having been instituted as to their genuineness. He contended that there was not the slightest justification for putting Messrs. Woolley's name in the statement. The registrar pointed out that the causes of the debtor's failure were only "alleged." Mr. Newman: Suppose the debtor said that his failure was due to the official receiver's mismanagement of some property. Would he insert that? The official receiver: Certainly. May I say that I adopted that form in consequence of some observations which a judge made? The question was whether my phraseology was what the debtor actually said, and the judge advised me to quote from what they said in future. The registrar thought it very desirable that the point should be inquired into. Mr. Newman remarked that Mr. Dibb's name being attached to the debtor's statement gave it an official tendency. The registrar agreed that the name being appended to the statement gave it a degree of importance. The official receiver said the object of the Bankruptcy Act was not only to find out what the debtor had done, but also whether some of the creditors were not open to criticism. The registrar said it was doubt less a hardship when creditors should not only lose their money, but be bandied before the public. There were many men who would rather lose their money than have their names given in that way. That was a weak point of the Bankruptcy Act, but he did not know how they could get over it. The official receiver said he had no desire to say that which would harm anyone. Mr. Newman said the debtor had admitted that no questions were asked by anyone in the official receiver's office whether his statement was justifiable. He contended that it was a libellous statement, and he did not see how the official receiver was privileged. The registrar: If you feel this is a public question, I do not think you ought to sit down with what the Board of Trade say. The official receiver : By the Bankruptcy Act the Board of Trade have power to put forward the forms, and they prescribe this very form. The registrar thought there was no doubt it was rather hard upon creditors. He did not know whether the examinations of debtor sought always to be public, but to open that question would be to go to the root of the whole Bill. Parliament had said they ought to be so, but he had great misgivings about it, and he thought some discretion ought to be allowed to the court as to how far matters should be made public. Some people whose names were brought before the court felt the circumstances acutely, and he had had many complaints, but it was not his fault, or the fault of the official receiver,

The vacancy caused in the office of taxing master of the Irish Supreme Court by the sudden death of Mr. Archibald Robinson has caused universal regret. Mr. Robinson was, says the Dublin correspondent of the Times, for many years a solicitor in extensive and lucrative business, and last year was appointed one of the taxing masters in the Supreme Court. The following high tribute to his character, which was paid by the Lord Chancellor and published at his lordship's request, expresses feelings which are generally shared :-"I knew him intimately for many years. He was one of my truest and most valued friends. I entertained for him the most sincere esteem and respect. The public have lost a most able, upright, and painstaking official, one who did his work with all his heart loyally and well. I am truly and sincerely sorry, very sorry, for his death."

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