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Cooper Wyld, and De Colyar; Richmond; Willis, Q.C., and J. Scott Fox. SOLICITORS, R. Wright; T. J. Robisnon; J. G. Dearle.

THE QUEEN v. THE TYNE BOILER WORKS CO.-C. A. No. 1 29th and 30th November.

TO THE FREEhold.

POOR RATE-ASSESSMENT OF MANUFACTORIES-MACHINERY NOT ATTACHED, This was an appeal from the decision of the Divisional Court, reported 34 W. R. 531, discharging a rule nisi to quash the order of the Northumberland Quarter Sessions. It appeared from the special case that the appellants had been assessed to the poor on a gross estimated rental in respect of the land and works occupied by them of £590, the rateable value being set down at £501. It was admitted before the justices that, in arriving at the rateable value of the premises, certain machinery had been taken into consideration as enhancing the value of the premises, and that the whole of such machinery was the property of the appellants and not of the land owners. There was no intention on the part of the appellants of making such machinery part of the soil or hereditaments or permanently annexing it thereto. The machines were all capable of being, and were in fact from time to time, bought, sold, removed, and renewed as separate and distinct articles without injury to themselves or to the main structure. Some of the machinery was not physically attached to the premises at all, but rested upon them by its own weight. In other cases the machinery was attached by brick seatings or by screws fixed into concrete foundations but merely for the purpose of being steadied whilst working. The question for the court was whether, in arriving at the rateable value of the premises, such machinery had been rightly taken into consideration. It was urged for the appellants that it was impossible to take such machinery into consideration without really rating it, and that the test as to what chattels could or could not be rated was whether or not they were permanently attached to the premises so as to become part of the

hereditaments.

THE COURT (Lord ESHER, M.R., and LINDLEY and LOPES, L.JJ), in dismiss ing the appeal and upholding the decision of the Divisional Court, said that the whole of the decisions appeared to be perfectly consistent, and to express the same rule as to rating though in somewhat different words. They considered that things which were on the premises for the purpose of making, and which, in fact, made, them fit as premises for the purpose for which they were used, ought to be taken into account in estimating the rateable value; or, in other words, things which, unless expressly excluded, would pass by a demise of the premises between landlord and tenant. Physical annexation had never been treated as the test, and they considered that the court of quarter sessions had rightly taken into consideration the whole of this machinery as enhancing the rateable value of the premises in question.-COUNSEL, Sir Horace Davey, Q.C., R. T. Reid, Q.C., and Cyril Dodd; Sir R. E. Webster, A.G., W. Graham, and Hans Hamil ton. SOLICITORS, Flux & Leadbitter, for Leadbitter & Harvey, Newcastle-onTyne; Crossman, Crossman, & Prichard, for Kidson, McKenzies, & Kidson, Sunderland.

MILLS. MILLS-Kay, J., 29th November. POWER-EXECUTION SPECIAL POWER OVER REAL ESTATE GENERAL DEVISE -NO REFERENCE TO POWER-WILLS ACT, ss. 24-27.

In this case a question was raised as to which it appeared that there devise operates as an execution of a special power of appointment over real was no direct authority-viz., whether, since the Wills Act, a general estate, the testator having, both at the date of his will and at his death, no other real estate to which the general devise could apply. Under the will and codicil of Thomas Mills, who died in 1865, certain real estate was devised to the use of trustees upon trust for his son W. B. Mills for life. and after his decease upon such trusts as his son should by deed or will appoint, so only that every such appointment be made in favour of some one or more of his children or other issue born in his lifetime, and in default upon trust for such children equally. W. B. Mills, by his will dated in November, 1884, after appointing trustees and executors, devised and bequeathed all his real and personal estate not thereby otherwise disposed of, upon trust for sale and conversion, and to pay his funeral and testamentary expenses and debts and legacies, and to invest the residue and to stand possessed of £7,000, part thereof, upon trust for his wife for life, and then for his children by her or their issue as she should appoint, and in default upon trust for all his children by her, and failing such to his son and daughter by a first marriage. And as to £3,500, upon trust for that daughter, and the residue to his son. W. B. Mills died in March, 1886. He had no real estate other than that devised to him by the will of Thomas Mills, and the question was whether he had exercised the power of appointment thereby given to him. It was contended, on behalf of the son, that the power was exercised by the general devise of real estate, on the ground that, before the Wills Act, a gift of real estate, where a testator had no real estate of his own, but had a power of appointing real estate, was sufficient to pass the land subject to the power. And that although the Wills Act, by making a will speak from the death, removed the reason for this, which was that otherwise there would be nothing else upon which the devise could operate, there was nothing in the Wills Act to alter the existing rule; and that the intention of the Act was to enlarge the operation of devises and bequests. On the other hand it was contended, on behalf of the persons entitled in default of appointment, that the question of whether a power of appointment had or had not been exercised was always one of intention, whether with reference to real or to personal estate, and that as, since the Wills Act, a general devise carried after-acquired real estate, there was no longer any ground for inferring from a general devise any more than from a general bequest an intention of exercising a power of appointment. For this purpose there must in all cases be a reference either to the power or to the property subject to the power.

KAY, J., after taking time to consider the question, decided that the power had not been exercised. His lordship said that it was strange that the question had not been determined before, but that he could not discover any decision in point. The question was one of intention, and the intention of a testator could be inferred only from the words of his will and from the surrounding circumstances known to him at the date of his will, which the cases shewed the court was at liberty to regard. It was noticeable here that the objects of the general devise were, to a great

WILLMOTT. THE LONDON CELLULOID CO. (LIM.)C. A No. 2, 26th November. COMPANY-WINDING UP-FRAUDULENT PREFERENCE-COMPANIES ACT, 1862, extent, outside the terms of the power, and the enlarged operation which

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s. 164.

The main question in this case was whether, in the winding up of a company under the Companies Acts, a transaction can be set aside as a fraudulent preference at the instance, and for the benefit, of a particular class of the creditors of the company, not for the general benefit of all the creditors. Section 164 of the Companies Act, 1862, provides that "any such conveyance, payment, execution, or other act relating to property as would, if made or done by or against any individual trader, be deemed, in the event of his bankruptcy, to have been made or done by way of undue or fraudulent preference of the creditors of such trader, shall, if made or done by or against any company, be deemed, in the event of such company being wound up under this Act, to have been made or done by way of undue or fraudulent preference of the creditors of such company, and shall be invalid accordingly," and the presentation of the winding-up petition is to be deemed to correspond with the act of bankruptcy in the case of an individual trader. In E parte Cooper (10 Ch. 510) it was held that the doctrine of fraudulent preference could in bankruptcy be asserted only for the benefit of the whole body of the creditors of the bankrupt. In the present case the plaintiff, a debenture-holder of the company, sought on behalf and for the benefit of himself and the other debenture-holders, to set aside a payment of £3,000 made by the company shortly before the commencement of the winding-up order to two of their directors, on account of a debt due from the company to them. Bacon, V.C., held (31 Ch. D. 425) that Ex parte Cooper applied, and that the payment could not be set aside for the benefit of some orly of the creditors.

THE COURT OF APPEAL (COTTON, L.J., HANNEN, P., and FRY, L.J.) affirmed the decision. COTTON, L.J., said that section 164 provided that an act which would be a fraudulent preference in bankruptcy should be considered such in the winding up of a company, so that money recovered under a claim on account of fraudulent preference would be recovered for the general creditors as if it had been recovered by the trustee in bankruptcy. That the doctrine of fraudulent preference could not be taken advantage of by a mortgagee, but only for the benefit of the whole body of creditors, was decided in Ex parte Cooper, and the principle of that decision applied to the present case. HANNEN, P., and FRY, L.J., concurred.-COUNSEL, Warmington, Q.C., and J. G. Laing; Bramwell Davis; Marten, Q.C., and Ribton. SOLICITORS, F. H. Honey; E. Lee; Paterson, Snow, & Co.; Lindo & Co.

the Wills Act gave to a general devise was also a very important circumstance to be considered. The testator here had, at the date of his will, no other real estate. If he had afterwards acquired any it would have passed thereby, unless the general devise could have been read as applying exclusively to the property the subject of the power, which, since the Wills Act, seemed impossible. Under the old law the reason for holding that the power was exercised was that otherwise the words could have no operation, but it could not be said now that a general devise was wholly inoperative if it passed real estate afterwards acquired, although the testato had, at the date of his will, no other real estate. In his lordship's opinion anything like a general rule for discovering intention was objectionable, and the suggestion that the Wills Act was intended to enlarge the operation of devises was fallacious, as, the reason for inferring the intention being removed by the Act, the presumption of such intention ceased. The burden of proof was on those who alleged that the power had been exercised. On the evidence, his opinion was that the testator did not intend to exercise the power.-COUNSEL, Ingle Joyce; B. B. Rogers; Cree. SOLICITORS, W. H. Mills; Watson, Newby, & Robson; Cree & Son.

JARRET v. HUNTER.-Kay, J., 22nd and 25th November. VENDOR AND PURCHASER-SPECIFIC PERFORMANCE-STATUTE OF FRAUDS→→→ DESCRIPTION OF VENDOR-" SOLICITOR FOR THE VENDOR"-MISSTATEMENT-NAME OF REAL VENDOR APPEARING ON CONTRACT-VERBAL NOTICE TO PURCHASER.

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A contract for sale stated that the defendant was the purchaser and had paid a deposit to G T. Lawson, and that Lawson, "as the solicitor for the vendor," and the defendant agreed to complete according to the conditions. The conditions spoke of the person selling as the vendor" and described Lawson as the vendor's solicitor. At this time E. N. Jarret was the legal owner and Lawson the beneficial owner of the premises. The fourth condition provided that the title should commence with a conveyance, which, it was asserted, would have shewn on examination that Jarret was the legal owner; and the evidence proved that before signing the contract the defendant was verbally informed that Lawson was the equitable owner.

KAY, J., said that the vendor was not sufficiently described in the contract, from the wording of which indeed it would appear that Lawson was not the vendor. The fourth condition could not be imported into the

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contract, and, even if it could, the conveyance did not shew who was the
vendor. Parol evidence was inadmissible, and the knowledge thus
acquired by the purchaser could not make the contract valid. Action
dismissed, without costs.-COUNSEL, J. Bradford; E. J. Elgood. SOLICITORS,
Hickin & Graham for G. S. Lawson, Sunderland; Stocken & Jupp for C. R.
Walker, Sunderland.

THE BIRMINGHAM AND DISTRICT LAND CO. v. THE LONDON
AND NORTH-WESTERN RAILWAY CO.-Chitty, J., 20th November.
R. S. C., 1883, XVI, 48-THIRD PARTY PROCEDURE-CLAIM OF IN-

DEMNITY.

It appeared that the plaintiffs were the lessees under a building agreement under seal made in 1875, and the covenants of which were to be performed during a period which would expire in 1885. Pending an application by the defendants for power to take the land comprised in the agreement, the plaintiffs entered into a parol agreement with the lessors for extension of the period during which the building covenants were to be performed, and negotiations also took place as to alteration of the class of house to be built. In 1883 the defendants purchased from the lessors the land comprised in the agreement. In 1894 the defendants gave the plaintiffs notice to treat, and in 1886 took possession. The plaintiffs alleged that the defendants had notice of the parol agreement, but this the defendants denied, and stated that they had bought subject to the original agreement only. The plaintiffs claimed compensation and an injunction. The defendants took out a summons for leave to serve on the lessors a thirdparty notice under R. S. C., 1883, XVI., 48. By the affidavit in support of their summons the defendants stated that they were advised that, in the event of the plaintiffs succeeding in establishing their claim to relief in the action on the footing of the alleged parol agreement, they were entitled to be indemnified against such claim by the lessors, either by a reduction of the purchase-money payable to the lessors or otherwise; and the defendants submitted that R. S. C., 1883, XVI., 48, when providing that the defendant applying should claim to be entitled "to contribution or indemnity against a person not party to the action," did not require that the indemnity should be an indemnity in the strict legal sense, and they relied on Carshore v. North-Eastern Railway Co. (29 Ch. D. 344) as an authority shewing that all that was required was that the defendants should have a substantial case of relief as against third parties for the whole or part of the damages claimed in the action.

CHITTY, J., said that it was not, of course, sufficient for the defendants merely to state that they claimed indemnity over, but they must shew a reasonable case upon which they might succeed upon their claim for indemnity. The court would not, however, go into the claim and decide finally whether it was well founded or not, but if it saw that there was a fair ground for putting forward the claim as a claim of indemnity, then the court should grant the requisite leave, but not otherwise. The construction put by the applicants on the rule would reduce to silence the condition contained in it that the leave of the court must be obtained. The authorities, however, shewed that the rule used the term indemnity in the sense that the defendant applying for leave must shew the court that he has a claim for indemnity on a contract, either express or implied, or a right to an indemnity founded on some rule of equity. A statement that the issue between the defendant and the third party was analogous to that between the plaintiff and defendant was not sufficient. It might have been perhaps proper that all such questions should be tried in one action. But those who framed the rule in the first instance (Rules of 1875, XVII., 17) found that it would lead to embarrassment of the plaintiff, and the rule was, therefore, modified to its present form. He was satisfied that the applicants were not entitled against the lessors to indemnity in the legal sense of the word. They had no contract, express or implied, for indemnity, nor equitable right to indemnity. He, therefore, held there was no ground for saying that the applicants were entitled to indemnity as against the lessors when they were seeking to join as third parties, and refused their application, with costs.-COUNSEL, Ince, Q.C., and Clare; Romer, QC., and Woodrooffe. SOLICITORS, Mason; Robinson, Preston, & Stow, for Rowlands & Co., Birmingham.

Re THE CAPITAL FIRE INSURANCE ASSOCIATION (LIM.)-Chitty,
J., 26th November.
LIMITED COMPANY-ORDER VESTING ASSETS STANDING IN NAME OF EX-
LIQUIDATOR-TRUSTEE ACT, 1850, ss. 22, 43.

In this case it appeared that a former official liquidator of the company could
not be found, and was bankrupt, and that the court had appointed a liqui-
dator in his place. A motion was made, under the Trustee Act, 1850, for
an order to vest in the present liquidator a sum of Consols, part of
the assets of the company standing in the name of the original liquidator
as official liquidator of the company.
CHITTY, J., said the court could make such a vesting order under section
22 of the Trustee Act, 1850. Such an order could be made either on
petition or on motion. The better mode of procedure was, how-
ever, by petition, except in the very simplest cases. As the winding
up was not terminated, there could be no claim against the fund on the
part of the ex liquidator's trustees in bankruptcy for remuneration for his
services. He should, however, in making an order as prayed, direct that
the order be not drawn up within a week, and that notice be served on the
trustees in bankruptcy.-COUNSEL, Hume C. Pinsent. SOLICITORS, Field,
Roscoe, & Co.

Re EDWARD NIXON-Stirling, J., 20th and 24th November.
ELEGIT-EXECUTION CREDITOR-SALE-RECEIVER.

jurisdiction, in an application under section 4 of 27 & 28 Vict. c. 112, to appoint a receiver. The petitioner had, in July, 1886, recovered judgment against the debtor for £622 12s. 8d. In August he sued out a writ of elegit. On the 3rd of October the sheriff caused an inquisition to be made, and it was found that the debtor was seised in fee of three houses, of which the aggregate yearly rent was £62, and the houses were on the same day delivered in execution. A petition was thereupon presented for sale of the houses as having been "actually delivered in execution" under section 4 of 27 & 28 Vict. c. 112. There was also a prayer in the petition that a receiver might be appointed until the sale, and reliance was placed upon Mason ▼. Westoby (34 W. R. 498, 32 Ch. D. 206). The debtor did not appear. Decrees, at p. 1140). But his lordship held, after consideration, that he STIRLING, J., made an order for sale (see the form given in Seton on had no jurisdiction to appoint a receiver upon a petition for sale under the above-named statute. He therefore refused the application, without prejudice to the right of the petitioner to apply in the action.-COUNSEL, C. T. Mitchell. SOLICITORS, Simpson, Palmer, & Winder.

WARD, LOCK, & CO. v. SCOTT-North, J., 26th November. COPYRIGHT INFRINGEMENT - INTERLOCUTORY INJUNCTION-MINUTE In

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JURY.

This was an interlocutory motion for an injunction to restrain the infringement by the defendant of the plaintiffs' copyright. The plaintiffs were the owners of the copyright in a number of poems written by Praed. The defendant published a selection of Praed's poems which contained some of those in which the plaintiffs had the copyright. The plaintiffs complained of this, and an arrangement was entered into that the defendant should discontinue the sale of his selection, and should pay the plaintiffs a royalty on the copies which he had already sold. This was done, and the defendant afterwards re-issued his selection with the omission from it of twenty-one poems which had been previously pointed out to him as subject to the plaintiffs' copyright. But the selection, as re issued, contained eight other poems which were also subject to the plaintiffs' copyright. The plaintiffs brought this action to restrain the defendant from selling his selection as re-issued, and they now moved for an injunction until the trial. Previously to the issue of the writ the plaintiffs' solicitor had suggested that the defendant should pay a royalty to the plaintiffs. Having regard to this suggestion and to the comparatively small amount of the matter alleged to be pirated in the defendant's re-issued selection,

NORTH, J., on the undertaking of the defendant to keep an account, and to abide by any order which the court might think fit to make as to the payment of a royalty to the plaintiffs, declined to grant an interlocu tory injunction.-COUNSEL, Everitt, Q.C., and G. T. Millar; E. Ford. SOLICITORS, Ashurst, Morris, & Co.; Heather & Sons.

Re GREGSON'S TRUSTS-North, J., 27th November.
PETITION FOR APPOINTMENT OF NEW TRUSTEES-APPOINTMENT OF ADDITIONAL
TRUSTEE WITHOUT ANY VACANCY-TRUSTEE ACT, 1850, s. 32-CONVEYANC
ING ACT, 1881, s. 31 (5).

This was a petition for the appointment of a new trustee of a will in addition to two trustees appointed by the will, they being the only trustees thereby appointed. On the authority of Re Brackenbury's Trust (L. R. 10 Eq. 45),

NORTH, J., held that there was jurisdiction under the Trustee Act to appoint an additional trustee simpliciter, though there was no vacancy in the existing number of trustees to be supplied. His lordship also expressed an opinion that, under sub-section 2 of section 31 of the Conveyancing Act, 1881, which provides that, "on an appointment of a new trustee, the number of trustees may be increased," an additional trustce could not be appointed except when an appointment was being made to fill up a vacancy in the existing number of trustees.-COUNSEL, Farwell. SOLICITORS, Pritchard, Englefield, & Co.

LEIGH. LEIGH-Stirling, J., 27th November.

"REAL SECURITIES "-INVESTMENT ON TERM OF 1,000 YEARS TO RAISE PORTIONS.

The question in this case was whether a power of investing in "real securities," enabled trustees to advance the trust funds upon the security of a portions term of 1,000 years. The will of H. B. Leigh, deceased, empowered his trustees to make certain investments in The "real securities in England or Wales, but not elsewhere." trustees of the will of H. B. Leigh, deceased, agreed, subject to the approval of the court, as the testator's estate was being administered in an actior, to advance the sum of £10,300 on the security of a mortgage upon an estate valued at £80,000. Kay, J., in the administration action, directed an inquiry whether a good title could be made to the hereditaments. Mr. Casson, the conveyancing counsel before whom the title was laid, observed that the mortgagors, who were trustees of a portions term, were only empowered to mortgage for the term of 1,000 years, and stated that, unless arrangements could be made for the mortgage being in fee (which was not done), the opinion of the judge would have to be taken, and referred to the decision in Re Boyd's Settled Estates (14 Ch. D. 626). The point now came before Stirling, J., to whom the action had been transferred.

STIRLING, J., refused to allow the investment to be made, as he was unable to regard the long term as a "real security."-COUNSEL, Methold;

This was a petition in which the question arose whether the court had Butcher. SOLICITORS, Gregory, Rowcliffes, & Co.; Lowe & Co.

OLLEY v. FISHER-North, J., 30th November. RECTIFICATION OF WRITTEN EXECUTORY AGREEMENT MISTAKE-ADMISSION OF PAROL EVIDENCE-SPECIFIC PERFORMANCE OF AGREEMENT AS RECTIFIED-STATUTE OF Frauds.

the borough of Leamington, on information preferred by the respondent, convicted the company. On appeal from that decision,

REG. v. JUDGE OF THE CITY OF LONDON COURT.-Q. B. Div., 26th November.

COUNTY COURT-COSTS ON HIGHER SCALE-CERTIFICATE.

THE COURT (STEPHEN and A. L. SMITH, JJ.) held that the provisions of the special Act had not been repealed by the Gasworks Clauses Act of 1871. A definite provision had been made by the special Act and that This was an action for the rectification of a written agreement, and for fact rendered the case distinguishable from the case of Dudley Gas Light damages for the breach by the defendant of the agreement as rectified. Co. v. Warmington (29 W. R. 680), where there were no special proThe agreement as it stood provided for the building by the plaintiff, visions as to accounts contained in the special Act. Their lordships within nine months from its date, of six houses on a piece of land belong-reversed the decision and quashed the conviction.-COUNSEL, Shiress Will, ing to the defendant, and that, within three months from the completion Q.C.; Dugdale, Q.C., and Noble. SOLICITORS, Henry Tyrrell for H. C. of the houses, the defendant would build a bridge over a river. He also Passman, Leamington; Gregory, Rowcliffes, & Co. agreed to grant the plaintiff a lease at a certain rent. The plaintiff alleged that the agreement really entered into was that he should build | four houses, and that, by a mistake for which the defendant was responsible, the word "six" had been written in the agreement. The defendant had not built the bridge within three months from the completion of the four houses. The plaintiff asked to have the agreement rectified by substituting the word "four" for "six," and he claimed damages for the non-building of the bridge by the defendant. The defendant alleged that the real agreement was for the building of six houses on the land, and that he had committed no default in not building the bridge. He did not plead the Statute of Frauds. On behalf of the defendant it was contended that parol evidence could not be admitted to vary the terms of a written executory contract, and that, at any rate, the plaintiff could not in one action obtain rectification of the agreement and relief in the nature of specific performance of the agreement as rectified; and it was urged that the doctrine of part performance did not apply when the possession of the plaintiff was referable to, and consistent with, the written agreement. NORTH, J., held that parol evidence was admissible. He said that he did not feel the slightest difficulty in admitting evidence for the purpose of shewing that the word "six" in the agreement ought to have been written four," " nor, if he should hold that the agreement ought to be rectified, the case being one in which the Statute of Frauds was not pleaded, or could, by reason of the part performance, be pleaded, in going on to give consequential relief on the footing of the agreement as rectified, on the principle pointed out in Fry on Specific Performance (2nd ed.), par. 799. COUNSEL, Cozens-Hardy, Q.O., and C. Easton Jolliffe; Cookson, Q.C., and Bush, Q.C. SOLICITORS, Hepburn, Son, & Cutcliffe; H. S.

Winnett.

Re HETHERINGTON'S TRUSTS-North, J., 29th November. APPOINTMENT OF NEW TRUSTEES-DISTINCT SETS OF TRUSTEES-TRUSTEE ACT, 1850-CONVEYANCING ACT, 1882, s. 5.

This was a petition for the appointment of new trustees cf a will on the letirement of the only surviving trustee. Part of the trust property was given on trust for J. for life, with remainder to her daughter at twentyone, with remainder as J. should appoint, with remainders over. Another part of the property was given on trust for J. for life, with remainder to her daughter at twenty-one; with remainder in trust for E. and M. at twenty-one, with benefit of survivorship, with remainders over. Another part of the property was given on trust for E. and M. in equal shares, with benefit of survivorship in case of death under twenty-one, with remainders over. Another part of the property was given on trust for M. at twenty-one, with remainder on trust for E. at twenty-one, with remainder on the trusts declared of the first part of the property for J. and her daughter, with remainder over. The daughter of J. was under twenty-one; E. had attained twenty-one, but M. was under twenty-one. The petition asked for the appointment of A. and B. as trustees of the will as to those parts of the property in which J. and her daughter were primarily interested, and for the appointment of B. and C. as trustees as to those parts of the property in which E. and M. were primarily interested.

NORTH, J., at first felt some doubt whether the trusts could be said to be "distinct," inasmuch as in certain events the trusts of different parts of the property would become identical, but ultimately he made the appointment asked for.-COUNSEL, Waggett; F. Bagshawe; G. Miller. SOLICITORS, Van Sundau & Co.; Mason & Son.

This was an application for a prohibition to the judge of the City of London Court, and a question arose as to the sufficiency of a certificate for costs on the higher scale given by that judge. An action had been brought for goods sold and delivered, and was twice tried, once before the judge alone and afterwards by the judge with a jury. The defendant obtained a verdict and judgment on both occasions, and the judge certified finally as follows:-"Costs on the higher scale. Question of character." The plaintiff applied for a prohibition to the Divisional Court, and the matter was sent back to the judge below, the court desiring further information. Thereupon the judge of the City of London Court sent up a statement of his reasons to the effect that he "considered it a question of general or public importance that a defendant accused practically of swearing falsely should not be punished in costs while he succeeded on the merits.' The learned judge added that "he intended to certify under 45 & 46 Vict. c. 57, s. 5, as well as under the London (City) Small Debts Extension Act, 1852"

THE COURT (STEPHEN and A. L. SMITH, JJ.) held that the certificate was insufficient. STEPHEN, J., said that the statute 45 & 46 Vict. c. 57, s. 5, permitted a certificate for costs on the higher scale to be given when there was a novel or difficult point of law involved, or when the question was of general or public importance. It could not be said that it was a question of public importance whether a defendant in such an action had spoken the truth. Probably the only certificate which could satisfy the court would be one which followed the exact words of the statute. Whether such a certificate could be upset on affidavit the learned judge declined to say. A. L. SMITH, J., concurred.-COUNSEL, Stephen Lynch. SOLICITOR, Moojen.

BRITISH MARINE ASSOCIATION v. MACINNES-Q. B. Div.,
29th November.

SERVICE OUT OF THE JURISDISTION-DEFENDANT RESIDENT IN SCOTLAND-
INJUNCTION.

This was an application for leave to serve a writ out of the jurisdiction. The proposed action was one by underwriters against a policy-holder, claiming a declaration that the policy was void on the ground of fraud, and asking for an injunction to restrain the defendant from taking any proceedings on the policy. The defendant resided in Scotland. Day, J., made an order giving leave to the plaintiff to serve a writ in Scotland. Subsequently Field, J., rescinded the order, and set aside the writ issued under it. It was argued, on behalf of the plaintiffs, that they were entitled to leave to serve a writ out of the jurisdiction under R. S. C., 1883, ord. 11, r. 1, sub-section (f). It was necessary for underwriters to take the initiative in cases like this: Lisbon-Berlyn Gold Field Co. v. Heddle, 52 L. T. N. S. 796, and Tozier v. Hawkins, 15 Q. B. D. 650, were relied on. THE COURT dismissed the appeal. HUDDLESTON, B., said the main question was whether this sort of claim came within ord. 11, r. 1, subsection (f). The words of the sub-section might seem to suggest that it would sometimes apply to such a claim as this. But the cases cited differed from the present case. There the plaintiffs were threatened with imminent danger, in one case of having a winding-up petition presented, in the other the publication of libellous post-cards. But here there was no impending danger or threat of damage. It was an action of quia timet, because at some time an action may be brought. MANISTY, J., said it was clear

LEAMINGTON PRIORS GAS CO. v. DAVIS.-Q. B. Div., 26th that this case did not come within sub-section (f), which applied where an

November.

GASWORKS-ACCOUNTS-SPECIAL AND GENERAL ACTS.

injunction was sought as to anything to be done within the jurisdiction. but what the plaintiff here sought to restrain was something which may be done without the jurisdiction. It could not be intended that they should restrain the defendant from bringing an action in England and yet leave him free to proceed in Scotland.-COUNSEL, J. G. Barnes; Hollams. SOLITORS, Stocken & Jupp; Waltons, Bubb, & Johnson.

FLEMING v. FLEMING AND LEMON-P. D. & A. D., 30th
November.

(49 & 50 VICT. c. 27), s. 5.

The question in this case was as to whether the special Act under which the appellant company was formed had been repealed as to the regulations as to keeping the annual statement of account by section 35 of the Gasworks Clauses Act of 1871. By section 3 of the special Act of 1865 the company were bound to make up their accounts to a certain date and publish them in some newspaper, and also to transmit a copy to the clerk of the peace for the county of Warwick. Other and very different regulations are provided by the Gasworks Clauses Act of 1847, under DIVORCE-CUSTODY OF CHILDREN-GUARDIANSHIP OF INFANTS ACT, 1886 which undertakers of gasworks have to furnish to any applicant a copy of their annual statement of account on demand at their office. That Act was incorporated in the special Act, save in so far as it was inconsistent with it. By section 1 of the Gasworks Clauses Act, 1871, that Act and the Gasworks Clauses Act of 1847, are to be construed together, and the provisions of the Act of 1871 are to repeal and supersede such of the provisions of the earlier Act as are inconsistent with those of the latter. It was contended that the provisions of the Act of 1871, as to furnishing a statement of the accounts to applicants similar to those of the Act of 1847, were binding upon the company, and that a neglect of these provisions had rendered them liable to certain penalties. The justices for

This was an application by a wife for an order giving her the custody of her two daughters, of the respective ages of four and two years. The husband and wife were living apart, and cross-petitions for dissolution of the marriage were now pending. The children were in the care of their father's unmarried sister, who was head mistress of a board school at Woolwich, and it was alleged that she was absent from home during the greater part of the day, leaving the children in the care of her younger sister. On the other hand, it was alleged by the husband that the wife, being now engaged in the management of a public-house in London, ought not to have the custody of the children while the suits were pend

ing. The counsel for the husband relied upon the provisions of section 5 of the Guardianship of Infants Act, 1886 (49 & 50 Vict. c. 27), which authorizes the court on the application of the mother of any infant," to "make such order as it may think fit regarding the custody of such infant, and the right of access thereto of either parent, having regard to the welfare of the infant and to the conduct of the parties, and to the wishes as well of the mother as of the father." Barnes v. Barnes and Beaumont (16 W. R. 283, 1 P. & D. 463) was referred to.

BUTT, J., said it was clear that the section relied upon had no bearing on the case, as it could not affect the discretion of the court in dealing with questions as to custody of children in pending divorce suits. He declined to make any order for the removal of the children from their aunt's custody.-COUNSEL, Witt; Man. SOLICITORS, Hanbury, Hutton, & Whitting; R. B. Barrett.

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In this case a question arose on the construction of section 48 of the Bankruptcy Act, 1883, which provides that "Every conveyance or transfer of property, or charge thereon made, every payment made by any person unable to pay his debts as they become due from his own money in favour of any creditor with a view of giving such creditor a preference over the other creditors, shall, if the person making the same is adjudged bankrupt on a bankruptcy petition presented within three months after the date of making

the same, be deemed fraudulent and void as against the trustee in the bankruptcy.' In the present case the bankrupt was a stockbroker, and he had, in December, 1884, been employed by the trustees of a marriage settlement, one of whom was T., his own solicitor, to sell some securities and reinvest the proceeds of sale in other specified securities. The bankrupt effected the sale and received the purchase-money, but the re-purchase was not completed because, as the bankrupt represented, and as was really the fact, the jobber with whom he had contracted was not able at once to procure the required stock. On the 26th of March T. had an interview with the bankrupt, in the course of which he admitted that he had misappropriated some securities which had been in his hands as one of the trustees of a will, and that he had obtained money from his bankers by means of transfers which he had forged. On learning this T. told the bankrupt that he could not trust his statement as to the reason for the non-completion of the re-investment of the purchase-money of the securities which he had sold for the trustees of the marriage settlement, and demanded immediate payment of the purchase-money, threatening that, if it was not paid, he would at once issue a summons against the bankrupt before the Lord Mayor. The bankrupt thereupon gave T. a cheque for £3,000. On the 28th of March the bankrupt committed an act of bankruptcy by absconding from his place of business, and on the 21st of April he was adjudicated a bankrupt on a petition presented on the 8th of April. The trustee in the bankruptcy sought to set aside the payment of the £3,000 as a fraudulent preference, and also on the ground that it was made with notice to T. of a prior act of bankruptcy, that act of bankruptcy being the execution by the bankrupt on the 23rd of March of a mortgage to T. by way of security to him in respect of a breach of trust which the bankrupt had committed by misappropriating some bonds which had been in his possession as co-trustee with T. of another will. The execution of this mortgage was said to be a fraudulent preference, and, therefore, an act of bankruptcy. Cave, J., refused to set aside the payment of the £3,000 on either ground, and the Court of Appeal (Lord Esher, M.R., and Lindley and Lopes, L.JJ.) affirmed the decision. It was argued on behalf of the trustee that, under section 48, as interpreted by Ex parte Griffith (23 Ch. D. 69), the court has not now to inquire into the motives of a debtor who makes a payment which is alleged to be a fraudulent preference, but that, if the debtor is insolvent and the effect of the payment is to prefer the creditor, the payment is void as a fraudulent preference whatever the debtor's actual motive may

have been.

Lord ESHER, M.R., said that the effect of this argument was to strike out of section 48 the words, "with a view of giving a preference." It was essential that the payment should be made with the view of giving a preference-that is, with the intent to give a preference. The court must look at the debtor's mind and try to find out what his intent was, and in order to do that it could not throw over the tests which had previously to the Act been adopted by great judges. The court must take into account the fact that the debtor was threatened with something which he did not like, in order to see whether he paid the creditor to get rid of that thing, or simply to prefer him to the other creditors. The court must take into account his intention to repair the evil he had done, and, if that was the predominant motive in his mind, the court could hardly say that he intended to prefer the creditor. He did it to satisfy his own conscience. It was impossible to lay down all the matters that should be taken into account. Here the bankrupt, when he paid the £3,000 to T., was in a position of danger, when exposure was imminent. He was threatened with a criminal prosecution. He made the payment, not to prefer T., but to get rid of that exposure and danger with which he was threatened. The payment, therefore, was not a fraudulent preference. As to the deed of the 23rd of March the bankrupt, as trustee, had been guilty of gross and fraudulent breaches of trust. The relation between him and T. was not that of debtor and creditor, but that of defaulting trustee and honest co-trustee. Therefore the case, as to this deed, was not within section 48 at all. LINDLEY, L.J., said that Ex parte

Stubbins (17 Ch. D. 58), shewed that, if a debtor voluntarily made good trust money which he had misapplied, the payment could not be set aside as a fraudulent preference. LOPES, L.J.. concurred.-COUNSEL, Horton Smith, Q.C., and Whinney; Cooper Willis, Q.C., and Yate Lee. SOLICITORS, Gregory, Rowcliffes, & Co.; S. F. Taylor.

Ex parte CARR, Re CARR-C. A. No1, 26th November. BANKRUPTCY-RECEIVING ORDER-RESCISSION-DISCRETION OF REGISTRARSTAY OF PROCEEDINGS-BANKRUPTCY ACT, 1883, ss. 104, 109. This was an appeal from two orders made by Mr. Registrar Giffard-the C., and the other refusing an application for a stay of all proceedings one refusing to discharge a receiving order which had been made against under the order. The first application was made under section 104 of the Bankruptcy Act, 1883; the second was made under section 109. Section 104 provides that "every court having jurisdiction in bankruptcy under this Act may review, rescind, or vary any order made by it in its bank. ruptcy jurisdiction"; and by section 109, "The Court may at any time, for sufficient reason, make an order staying the proceedings under a bankruptcy petition, either altogether or for a limited time, on such terms and subject to such conditions as the court may think just." The debtor had been engaged in building operations. A receiving order was made against him on the 2nd of November. There had been 167 bankruptcy petitions against him, but 152 of them had been dismissed before the 2nd of November, and three others had been adjourned sine die. Ten were appointed to come on for hearing on the 2nd of November, and two to come on on the 12th and 19th of November respectively. The debts amounted in all to about £150,000. On the 2nd of November eight out of the ten petitioning creditors were content to have their petitions dismissed if all the ten were dismissed, while the other two wished for time. The registrar made a receiving order, refusing to grant an adjournment which was asked for. An appeal from this order was dismissed on the 12th of November. Subsequently to this the debts of the ten petitioning creditors were satisfied, and on the 15th of November an application was made to the registrar to rescind the receiving order, when all the petitioning creditors, except the three whose petitions had been adjourned sine die, consented, creditors to the amount of £100,000 consenting to the applica tion. The other creditors had not then had any notice of the application. On the 22nd of November the registrar refused to rescind the receiving order, on the ground that the consent of all the creditors ought to have for a stay of all proceedings under the receiving order for two months, in been obtained, and he also refused a subsequent application by the debtor order that the consent of the other creditors might be obtained. The consent of creditors to the amount of £136,700 had by this time been obtained. Before the hearing of the present appeal the consent of creditors to the amount of £143,000 out of £150,000 had been obtained to the rescission of the receiving order. There only remained creditors to the amount of £7,000, the number of whom exceeded thirty. The debtor's assets consisted almost entirely of houses, which were mortgaged, the mortgagees being in most cases in possession.

THE COURT (Lord ESHER, M.R., and LINDLEY and LOPES, L.JJ.) held that the registrar was right in refusing to rescind the receiving order, but they granted a partial stay of proceedings under the order. Lord ESHER, M.K., said that it was not alleged that the receiving order was wrongly made. The registrar, when asked to rescind the order, was exercising a judicial discretion in the matter, and the court ought not to interfere unless it was clear that that discretion had been wrongly exercised. The registrar did not intend to say that unless all the creditors consented he could not, as a matter of law, in any case rescind the order, but he only refused, under the circumstances of the present case, to rescind it. His lordship was of opinion that it was not essential, as an absolute rule applicable to every case, that the consent of every creditor must be obtained before a receiving order could be rescinded, but in the circumstances of the present case he thought the registrar was right. It was startling to find creditors to the amount of £143,000 consenting, with nothing to rely upon except the promise of the debtor. It was the duty of the court not to accede to every rash wish of creditors. Creditors to the extent of £7,000 had not consented, and had had no notice of the application, and the registrar was right in refusing to rescind the receiving order without any notice to them. The effect of staying all the proceedings under the receiving order would be to give the debtor absolute control over his property, when he might mortgage it further. It would, however, be hard on the debtor if he had not the opportunity of obtaining The court would pursue a middle course, and would stay all advertisethe consent of the other creditors, and applying to the registrar again. ments in the Gazette for two months, the result of which would be to stay the first meeting of the creditors. In this way the official receiver would still be able to exercise his powers for the benefit of the creditors and to protect the property, and all unnecessary publicity would be avoided. LINDLEY, L.J., said that it would not be right in this case to rescind the receiving order, which was made for the benefit of all the creditors, without giving notice to the creditors for the £7,000. If the court stayed all proceedings it would paralyze the action of the official receiver, and the best course was to stay all advertisements for two months, with liberty to any party to apply to the registrar. LOPES, L. J., concurred.- COUNSEL, Goldring, Mitchell, & Phillips; Hurford & Taylor. Sir Edward Clarke, S.G., and F. Cooper Willis; Atherley Jones. SOLICITORS,

On the 25th inst. Mr. Justice Kekewich announced that none of the cases in his new list would be taken before Monday, the 6th of December. They would not necessarily be taken then, but they would not be taken before that date.

LEGAL NEWS.

APPOINTMENTS.

Mr. JUSTICE STEPHEN has been elected Treasurer of the Inner Temple

for the ensuing year.

Mr. LUIGI CANADO, LL.D., has been appointed one of Her Majesty's Judges for the Island of Malta.

Mr. Justice STIRLING and Mr. Justice KEKEWICH have received the honour of Knighthood.

Mr. ARTHUR GRIFFITH POYER LEWIS, barrister, has been appointed a Magistrate for the town and county of the town of Haverfordwest. Mr. Lewis is the only son of the Right Rev. Richard Lewis, D.D., Bishop of Llandaff, and was born in 1848. He was educated at Eton and at University College, Oxford. He was called to the bar at Lincoln's-inn in Michaelmas Term, 1873, and he practises on the South Wales and Chester Circuit, and at the Glamorganshire, Pembrokeshire, and Carmarthenshire Sessions. Mr. Lewis is registrar of the diccese of Llandaff, and official of the Archdeaconry of St. David's.

Mr. THOMAS HENRY BELCHER, Solicitor, of Cardiff and Penarth, has been appointed a Commissioner to administer Oaths in the Supreme Court of Judicature.

Mr. MATTHEW RIGHTON WEBB, solicitor (of the firm of Webb & Sons), of Barbican-chambers, Barbican, has been appointed a Commissioner to administer Oaths in the Supreme Court of Judicature.

Mr. JAPHETH TICKLE, solicitor, of 4, Grocers' Hall-court, has been elected a Common Councilman for the Ward of Cheap.

Mr. GEORGE ENGLAND, solicitor, of Goole and Howden, has been appointed Clerk to the Goole School Board. Mr. England was admitted a solicitor in 1866.

Mr. HENRY ANDREWS, solicitor (of the firm of Tindall & Andrews), 18, Essex-street, Strand, has been appointed a Commissioner to administer Oaths in the Supreme Court of Judicature.

PARTNERSHIP DISSOLVED.

CHARLES EDMUND BAKER, FRANCIS JOSEPH WEBSTER, and ARTHUR HENRY BATTCOCK (Baker, Webster, & Battcock), 22, Great George-street, Westminster, Solicitors and Parliamentary Agents. Nov. 1. [Gazette, Nov. 26.]

GENERAL.

Mr. Henry Matthews, M.P., was entertained at dinner on Wednesday in the Inner Temple-hall by the members of the Oxford Circuit on his appointment as Home Secretary. Mr. Staveley Hill, Q C., M.P., presided, and was supported, among others, by Mr. Baron Huddleston, and Sir Henry James, M.P.

The following are the circuits chosen by the judges for the ensuing winter assizes, which are expected to commence about the 11th of January next-viz., South-Eastern Circuit, Grove, J.; Home Circuit, Denman, J.; Western Circuit, Denman and Mathew, JJ.; Midland Circuit, Field, J., and Huddleston, B.; Oxford Circuit, Manisty and Grantham, JJ.; Northern Circuit, Hawkins and A. L. Smith, JJ.; North Wales Circuit, Stephen, J.; South Wales Circuit, Wills, J.; North-Eastern Circuit, Cave and Day, JJ.

The following appointments have been made by the Council of Legal Education, for the year ending the 10th of January, 1888:-Jurisprudence, including International Law, Public and Private-Roman Lawand Constitutional Law and Legal History-Joint Professors, Frederic Harrison, Esq., James Bryce, Esq.; Joint Examiners, W. A. Hunter, Esq., J. E. C. Munro, Esq. Equity-Professor, H. A. Giffard, Esq., Q.C.; Examiner, Wm. Speed, Esq., Q.C. The Law of Real and Personal Property-Professor, Thos. C. Wright, Esq.; Examiner, C. J. Elton, Esq., Q.C. The Common Law-Professor, Frederick Pollock, Esq.; Examiner, R. G. Arbuthnot, Esq.

It is stated that application is intended to be made in the ensuing session of Parliament for an Act to authorize the Commissioners of Works to acquire, by compulsory purchase or otherwise, certain lands and buildings in the parish of St. Clement Danes, and to construct on the site buildings to be used as offices in connection with the Bankruptcy Court, or such other purposes as may be necessary for the public service, and as may be prescribed by the Treasury or by the intended Act. The property to be acquired is described as lying to the south of King's College Hospital, and bounded respectively on the north-east by Carey-street, on the south-east in part by vacant ground belonging to the commissioners, and forming part of the site acquired for the Royal Courts of Justice, and in part by Clement's-inn chambers; on the south-west in part by Clement's-inn gardens and chambers, and in part by buildings on the south-side of Clement's-inn passage; on the north-west in part by the south-east wall of the vestry-hall of the parish of St. Clement Danes, and in part by property belonging to and occupied by the buildings of King's College Hospital; and on the north by property also belonging to the hospital and similarly occupied.

Applications are invited for an issue of 30,000 preference and 30,000 ordinary shares of £5 each of the Thames, Medway, and Orwell Steam Navigation Co (Limited). The company is formed to provide an entirely new fleet of passenger steamers, fitted with all modern appliances and improvements, for the traffic on the River Thames. The preference shares will be entitled to a cumulative preferential dividend of 5 per cent. payable out of the profits of the company.

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ABERCORRIS SLATE AND SLAB CO, LIMITED.-Petn for winding up, presented Nov 20 directed to be heard before Chitty, J., on Dec 4. Carr & Son, Rood lane, solors for petner

ALEXANDRA (NEWPORT) DOCKS AND MAINDEE OMNIBUS CO, LIMITED.-By an order made by North, J., dated Nov 20, it was ordered that the company be wound up. White, Gracechurch st, solor for petner

GITTENS, LICKFOLD, & CO, LIMITED.-North, J., has fixed Thursday, Dec 9, at 12,
at his chambers, for the appointment of an official liquidator
LIVERPOOL AND ISLE OF MAN STEAMSHIP Co, LIMITED.-Kay, J., has fixed Dec 7,
at 12, at his chambers, for the appointment of an official liquidator
NATIONAL TRUST CO, LIMITED.-North, J., has fixed Thursday, Dec 9, at 11, at
his chambers, for the appointment of an official liquidator
PATENT IVORY MANUFACTURING CO, LIMITED.-By an order made by Bacon,
V.C., dated Nov 6, it was ordered that the company be wound up. Solomon,
Finsbury pavement, solor for petner

PRIMROSE PRESS AGENCY CO, LIMITED.-Stirling, J., has fixed Wednesday, Dec
8, at 12, at his chambers, for the appointment of an official liquidator
COUNTY PALATINE OF LANCASTER.
UNLIMITED IN CHANCERY.

No. 1 RAILWAY HOTEL BENEFIT BUILDING SOCIETY.-It being discovered that the registered name of the society is the No. 1 Railway Hotel Benefit Building Society, and not the No. 1 Railway Hotel Benefit Building, Accrington, his Honour has, by an order dated Nov 8, directed that the said petn should be amended as to the name of the society, and be advertised again, and that the order for winding up should be drawn up at the expiration of seven days after such advertisement. Slater & Sons, Manchester, agents for Hall & Co, Accrington, solors for the joint official liquidators and the petner

FRIENDLY SOCIETIES DISSOLVED. HUSBANDS BOSWORTH INDUSTRIAL AND PROVIDENT SOCIETY, LIMITED, Husbands Bosworth, Leicester. Nov 22 NORTHAMPTON EQUITABLE FRIENDLY INSTITUTION, 50, Broad st, Northampton.

Nov 19

MIDLAND SICK AND BENEFIT AND PHILANTHROPIC SOCIETY OF HAIRDRESSERS,
White Horse Hotel, Congreve st, Birmingham. Nov 24

MUTUAL BENEFIT SOCIETY, Sun Inn, Waterbeach, Cambridge. Nov 24
WHO WOULD HAVE THOUGHT IT FRIENDLY SOCIETY, Old Bush Inn, Level st,
Brierley hill, Kingswinford, Stafford. Nov 23

JOINT STOCK COMPANIES. London Gazette.-TUESDAY, Nov. 30,

LIMITED IN CHANCERY.

DIRECT MEAT SUPPLY, LIMITED. Stirling, J., has fixed Dec 9, at 12, at his chambers, for the appointment of an official liquidator NOTTINGHAM MALLEABLE IRON CO, LIMITED.-By an order made by Stirling, J., dated Nov 20, it was ordered that the company be wound up. Stileman & Co, Southampton st, Bloomsbury sq, agents for Toynbee & Co, Lincoln, solors for petner THOMAS BURNETT & CO, LIMITED.-Creditors are required, on or before Dec 29, to send their names and addresses, and the particulars of their debts or claims, to Oscar Berry, 6, Arthur st, E. Friday, Jan 7, at 12, is appointed for hearing and adjudicating upon the debts and claims

TRAMWAYS TRUST CO, LIMITED.-Creditors are required, on or before Jan 18, to send their names and addresses, and the particulars of their debts or claims, to Baker Philip Daniels, 57, Moorgate st. Tuesday, Feb 1, at 11, is appointed for hearing and adjudicating upon the debts and claims WHEELER HORSE SHOE AND NAIL CO, LIMITED.-Petn for winding up, presented Nov 26, directed to be heard before North, J., on Nov 26. Reep & Co, Queen st place, Cannon st, solors for petner

FRIENDLY SOCIETIES DISSOLVED.

LOVE AND UNITY FEMALE BENEFIT SOCIETY, Red Lion Inn, Red Lion st, RedUNITED FRIENDLY SOCIETY, Star Inn, Guildford, Surrey. Nov 25

ditch, Worcester. Nov 25

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