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In Sheane v. Fetherstonhaugh ([1914], 1 Ir. R. 268), we have a useful reminder of a qualification which must be be put upon the well-known rule, that "an order of sale rightfully made by the Court causes an equitable conversion from the date of the order "-see, for instance, In re Dodson ([1908], 2 Ch. 638). That qualification arises from the broad principle that the act of the Court will not interfere with the rights of individuals further than is strictly neces sary. In the present case the Land Judge had made an absolute order, on the petition of an incumbrancer, for the sale of realty to discharge incumbrances. This was held to operate only as an order for the sale of so much of the realty as was required to discharge the incumbrances; a residue which was unsold was held still to devolve as realty. "So soon as sufficient is sold as is necessary, the absolute order is dead. There never has been an absolute order for the sale of all, but only of an undetermined part" of the property. The case is distinguishable from In re Stinson's Estate ([1910], 1 Ir. R. 13), where, in pursuance of a similar order, more of the realty had been actually sold than was necessary to pay off incumbrances, and the Court held that neither heir-at-law nor next-of-kin had any equity to re-convert the residue so sold, as both were volunteers; it must devolve according to its actual condition; see Burgess v. Booth ([1908], 2 Ch. 648).

A neat illustration of the principles of marshalling may be noted (In re Archer's Estate [1914], 1 Ir. R. 285) as "a student's case." There were two funds, which may be called x and y. A. had a first charge upon both; B. had a second charge on y only. A. subsequently took a further

charge on x and y; after that, a third person C. acquired a charge on x only. x only. Each had notice of all the prior charges. If A.'s first charge had been paid rateably out of both the funds, the residue of y would be insufficient to pay B.'s second charge in full. It was held that B. was entitled to marshal A.'s first charge, and to have so much of it paid out of x as would leave enough of y to pay B.'s second charge in full, even though the effect of doing so would prejudice C.'s puisne charge on x. "What was the right or equity of B. at the time A. took his second mortgage? He clearly had a right to marshal A.'s first mortgage, and the mortgagor could not create a further charge on x so as to prejudice that right. Even after A. got his second charge, B. could at any time have redeemed A.'s first charge alone, and claimed an assignment of both securities; and A., by virtue of his second charge, would be entitled to redeem B., but on the terms of paying in full, not only B.'s own charge but the amount B. had paid for the redemption of the first mortgage. In the same way, the mortgagor could not, by a subsequent mortgage to C., affect or prejudice the then existing rights of A. and B., of which C. had notice." Probably if C. had not had notice, the ordinary principle would have applied, that marshalling of securities between creditors is not allowed to the prejudice of a third person; see Flint v. Howard ([1893], 2 Ch. 54).

The Irish law as to fraudulent preference in bankruptcy, under sect. 53 of the Bankruptcy (Ireland) Amendment Act 1872, is virtually the same as that in England under sect. 48 of the Bankruptcy Act 1883, substantially re-enacted in the Bankruptcy Act 1914. Although cases under these sections must be very largely questions of fact, In re Oliver ([1914], 2 Ir. R. 356) may be mentioned as an example of a

transaction at first sight doubtful, but proving quite valid. The bankrupt had acted as agent in Ireland for the sale of cattle on behalf of W. who lived in England. On January 30th, the bankrupt sent to W. in England a cheque for the proceeds of certain sales. W. did not cash this cheque, and on February 3rd came over to Ireland, leaving the cheque behind him in England. On February 4th, the bankrupt came to W. and told W. of his insolvency; and at W.'s request, the bankrupt then gave him another cheque for the same amount and bearing the same date as the cheque of January 30th, which cheque W. immediately cashed. Earlier that day, the bankrupt had instructed his solicitor to file a petition for an arrangement with his creditors under the control of the Court; this petition was filed on the same day and the protection of the Court obtained, but the arrangement was subsequently turned into bankruptcy. It was held by the Court of Appeal that the giving of the second cheque did not amount to a fraudulent preference of W. The burden of proof is on the assignees (the Irish equivalent of trustees in bankruptcy) to show that a transaction is a preference, and that it is fraudulent. Merely showing that the bankrupt had knowledge of his insolvency at the time of the transaction, is not of itself enough to discharge this burden, or to shift the onus of proof. They must establish that the "dominant motive" of the bankrupt was to prefer this particular creditor. Difficult as speculations about a man's motives may be, there seemed in the present case sufficient indications to negative a suspicion of fraud. Apparently the bankrupt's intention was to do effectively what would have been already effectively done on January 30th if W. had been prompt in cashing his cheque; and the transaction seemed to proceed on the view that the money represented by the cheque, which was always W.'s money, and in respect of which the bankrupt stood in a fiduciary relation to him,

should be made his as from January 30th. On this view, the observation of Vaughan Williams, L. J., in In re Lake ([1901], I K. B. 710), becomes important: "If a payment made by a man on the eve of his bankruptcy to a particular creditor is made in order to repair a breach of trust on the part of the debtor, the presumption is that the payment was made, not with an intention to prefer that creditor, but from a sense of duty."

The issues in Hunter v. Coleman ([1914], 2 Ir. R. 372)— the action brought to test the validity of the proclamation restricting the importation of arms into Ireland—have of course passed under the eclipse which has covered so many other questions that were important, before the war. If the case does proceed as it was meant to proceed, it can hardly stop short of the House of Lords, so that detailed comment upon it is unnecessary at present. It need only be said that, so far, a majority of a Divisional Court has held that, under sect. 43 of the Customs Consolidation Act. 1876, a proclamation is not invalid merely because it limits an area within the United Kingdom into which the importation of arms is prohibited.

J. S. B.




Year Books of Edward II, Vol. VI, 4 Edward II, A.D. 1310 -1311. Edited for the Selden Society by G. J. TURNER. London: Bernard Quaritch. 1914.

It is now seven years since the preceding volume of this series of the Year Books appeared-the last work of the late Professor Maitland-under the editorship of Mr. Turner. The publication of the present volume, which contains all the reports of Hilary term, and all save a few of those of Easter term (4 Edw. II), has been delayed, owing to the prolonged research necessitated for identifying a large number of these reports with versions in other manuscripts, or with cases on the records of the Court, and thus determining their date. In the preparation of the text two new manuscripts have been used, one recently purchased by the British Museum and the other now in the University Library at Cambridge. The former called Y., which contains a considerable number of reports of the first three years of the reign not printed here, was unknown to Professor Maitland when he published his first volume. The Editor in this volume has been more lavish with variant readings, in the hope that they may help to solve some of the problems of the origin and purpose of the Year Books. In his scholarly introduction, Mr. Turner discusses at considerable length some of these problems. He warns us that Maitland's opinion that they were the product of private enterprise, "student's note-books and nothing more," referred only to the earliest of them, and that Maitland refused to speak of an age he had not observed. The time has now come, declares Mr. Turner, when an attempt should be made to study the origin of the Year Books in the light of this later history. This he proceeds to do by examining the statements of Plowden and Coke, relating to the four official reporters and to the appointment, by James I, under the advice of Bacon, of Edward Writington and Thomas Hetley, barristers of Gray's Inn, as reporters in the Courts at Westminster at a salary of £100 a year apiece. In view of this and other evidence, Mr. Turner suggests that, although the earlier Year Books of Edward I may

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