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that he quite concurred in that view. Otherwise when it was necessary to continue a receiver, by reason of a | INFORMATION AS THE BASIS OF MAGIS. judgment being taken in the action, fresh security must

TRATES' JURISDICTION. be given, and fresh expense incurred. Looking at

The case of The Queen v. Hughes (L. R. 4 Q. B. D. the matter from a common sense point of view

614) decides a point of considerable importance with this appears to be correct. How the practice arose of

regard to proceedings before magistrates. The facts putting into a judgment a clause continuing a receiver

were as follows:-A police-constable procured a waracannot probably be now ascertained, but the point to be

rant to be illegally issued, without a written informaremembered is, that if there ever was any occasion for

tion or oath, for the arrest of a man named Stanley, it, that occasion no longer exists.

on the charge of assaulting and obstructing him in the exercise of his duty. Upon such warrant Stanley was.

arrested and brought before justices, and was, without obIT HAS BEEN STATED that the case of Phillips v. Londonjection, tried by them and convicted of an assault on the and South-Western Railway Company, in which the police-constable in the exercise of his duty. The Common Pleas Division refused a new trial applied for policeman was afterwards indicted for perjury committed on the ground of misdirection and excessive damages, on the trial of Stanley, and convicted. It was held will probably go to the House of Lords. It will be by the Court of Criminal Appeal (Kelly, C.B., dissenting) remembered that Dr. Phillips was a London physician in that he was rightly convicted, notwithstanding that large practice, and having sued for injuries by a collision there was neither written information nor oath to and recovered £7,000, had himself obtained a new trial justify the issue of the warrant; and that the (see 27 W.R. 797, L. R. 4 Q. B. D. 406) on the ground of justices had jurisdiction to hear the charge against inadequacy of damages; and at the second trial the jury, Stanley, though the warrant upon which the accused under the direction of Lord Coleridge, awarded the sum was brought before them was invalid. The question of £16,000, the largest damages, so far as we know, that that arose here was whether the magistrates had jurisa railway company has ever been forced by a jury to pay. diction to hear the charge upon which Stanley was Even in the celebrated case of Pym v. Great Northern brought before them, not whether the conviction against Railway Company (10 W. R. 737), the jury awarded him was valid. Hawkins, J., expressed it as his opinion only £13,000, which the court afterwards reduced to that Stanley had probably been wrongly convicted £9,000. Although, perhaps, exception might be taken because the magistrates convicted him on a charge to the direction of Lord Coleridge, on the ground that that never was made against him. He was charged the gifts of wealthy patients were too remote to be taken

| with an indictable misdemeanour under 24 & 25 Vict. into account, we believe the principle of Rowley v. c. 100, whereas the magistrates convicted him sumLondon and North-Western Railway Company (21 W.R.marily, apparently under 34 & 35 Vict. c. 112. But 869), and other cases under Lord Campbell's Act, must the question was whether the evidence of the policeman ultimately be affirmed. That principle is simply that was given on an investigation which the magistrates the jury must take all the circumstances into considera- | had jurisdiction to hold, and the evidence was taken on tion, and without attempting to give the full amount of the charge of the indictable misdemeanour. The fact a perfect compensation, give what damages they think that the magistrates subsequently, instead of committing proper. But-independently of the merits of Dr. the defendant for trial, proceeded to convict him sumPhillips' case-there is little doubt that the capricious-marily, could not affect the question. If the policeman ness of juries presses somewhat hardly upon railway gave his evidence on a charge which the magistrates companies. In 1865 the Royal Commission on Railways, had jurisdiction to hear, then the conviction for perjury while recommending that railway companies should be was right. absolutely responsible for all injuries arising from the

Now, though the question arising in this case has

N conveyance of passengers, except those arising from their

been at various times made the subject of discussion, own negligence, recommended also that their liability

and was at one time considered more or less a doubtful should be limited “ within a maximum amount of com

one, it really turns on very simple considerations. It is pensation for each class of fares, and that any passenger

| laid down in Paley on Convictions that “in all summary should be entitled to require from the company any

proceedings of a penal nature there should be an inforadditional amount of insurance he might desire, on pay.

mation or complaint, which is the basis of all the subseing for it according to a fixed tariff.” The limitation of

quent proceedings, and without which the justice is not liability already exists in the case of passengers by what

authorized in intermeddling except when he is em. are called "workmen's trains" which are run by the metro- |

powered by the statute to convict on view. As, on the politan companies under their special Acts. (See, for in

one hand, the information is not invalidated by reason of stance, the Great Eastern Railway (Metropolitan Station

the statements being false, so, on the other, it cannot be and Railways) Act, 1864, 27 & 28 Vict. c. ccxci., s. 80.)

rendered valid by the testimony offered in support of it, The limit is usually one hundred pounds, and the com.

for the office of the evidence is to prove, not to supply, pensation is determinable “ by an arbitrator to be ap

a legal charge." This exposition of the law is not in the pointed by the Board of Trade and not otberwise." In

least affected by the decision in The Queen v. Hughes. this latter respect the Regulation of Railways Act,

A definite charge must be made before the magistrates 1868, provides, by section 25, that, “where a person has

of some offence in order to give them jurisdiction. The been injured or killed by an accident on a railway, the

confusion that has arisen in the matter would appear to Board of Trade, upon application in writing made jointly

have been in not distinguishing between the information by the company from whom compensation is claimed, and

as the basis of the summons or warrant to compel appear. the person if he is injured, or his representatives if he

ance, and the information as the basis of the jurisdiction is killed, may, if they think fit, appoint an arbitrator,

to hear the case, the defendant having appeared. who shall determine the compensation (if any) to be paid

The information in The Queen V. Hughes was in. by the company"-an enactment which, from the pro

valid as the basis of proceedings to compel appearverbial unwillingness of plaintiff and defendant to make

ance by way of warrant. But it has been constantly "joint" applications to anybody, has proved a dead

held that the necessity for a summons may be letter.

waived, and if the defendant appear voluntarily to the

information, the conviction is good. (Paley, pp. 88, 97, IT WILL BE OBSERVED that alterations have been made and cases there cited.) This shows that the steps taken which will relieve Mr. Justice Fry from the duty of to procure appearance form no part of the process that is goiog on circuit; it may therefore be assumed that the necessary to give the magistrates jurisdiction to try a full strength of the Chancery Division will be available defendant actually before them. Of course, if a defendant during the whole of the Hilary Sittings.

does not appear, in order that a conviction against him in

his absence may be good, due steps to procure his appear. ance must have been taken. Now, it has been often held

FARM LEASES. that there is no necessity that the information should be

IV. in writing or on oath, unless the statute under which the We have now reached the practical part of our inquiry. charge is made requires it, or unless a warrant is to be We may assume that, under existing circumstauces, issued. All that is necessary to give jurisdiction is a owners of land are desirous of leaving their tenants as verbal information. That being so, the defendant being

free from cultivation restrictions as possible. But how rightly or wrongly, before the magistrates, an information

far can the safeguards against deterioration of the land, for anything over which they have jurisdiction may be

which, as we have seen, have been slowly built up during preferred against him.

the lapse of centuries, be abandoned with safety ? In It will occur at once to everyone that it is a monstrous order to answer this question it is necessary to consider thing that a defendant should be compelled to defend

in some detail the provisions relating to cultivation which himself against a charge that he has not come prepared are ordinarily inserted in farm leases. to meet; but the court, in giving judgment, carefully

With regard to two of these provisions there can, we provided for that difficulty. It is clear that it is the

think, be little difference of opinion as to the advisability duty of the magistrates in such a case, is the defendant

of retaining them. The covenant binding the tenant to applies for an adjournment, to adjourn the case, and if I lay and spread on the farm all the manure produced they did not, their conviction would, no doubt, be

thereon is, we should suppose, in no way disadvantageous quashed as invalid, not because not based on an informa

to him, for farmyard manure is obviously most economi. tion, but because they would have disregarded the

cally applied near to the place where it is produced. common rules of justice that ought to regulate the pro

Restrictions on ploughing up old grass land, again, are ceedings of every tribunal. The case, as we have above put

in general necessary for the protection of the landlord ; it-summarizing in effect the judgments-seems really

for to plough up such land is (on most soils) to lessen almost too clear for argument, but it all depends on the

considerably the letting value of the farm. On soils proposition that no written information was necessary. specially fitted for the growth of artificial grasses, it will It was contended, however, by the prisoner's counsel,

be to the interest of landlords and tenants alike to adapt that Jarvis's Act makes a written information necessary;

their agreements on this point to the circumstances of but the judges gave no weight to the contention, holding

the case. that the matter was concluded by authority.

Covenants binding the tenant to consume on the We cannot help thinking that if the law be that no

farm all hay, straw, and green crops produced thereon information in writing is necessary, the law ought to be

rest on a different footing. They appear to have altered. In proceedings before a tribunal of so informal

survived from a time when the purchase of feeding a character as a court of petty sessions, the existence of

stuffs and artificial manures was unknown. It was a definite charge ought to be secured by making it

reasonable then to provide against any diminution of the essential that the nature of the charge should be com

fodder by the consumption of which alone the fertility mitted to writing before the evidence is gone into. This

of the farm could be kept up; but to prohibit the tenant is quite apart from the substance of the question

now from selling off his produce, when it will often pay involved in The Queen v. Hughes, which was whether

him much better to do so and to buy manure than to' the prisoner's having been illegally compelled to appear,

consume the produce at home, is to debar him from carryprevented the magistrates having jurisdiction. The

ing on his business to the greatest advantage. Is there looseness that appears to have characterized the pro

adequate reason to justify this prohibition ? All that is ceedings in this case, where the prisoner being charged

required for the protection of the landlord is that for all with one offence the magistrates convicted of another,

produce sold off the tenant shall bring back a full shows the desirability of imposing the observance of equivalent in manurial value, either in the shape of certain legal forms upon tribunals exercising summary

manure or feeding stuffs. The practical question is how jurisdiction. The severity of construction to which the

to insure that this equivalent shall actually be retarned. records of summary proceedings were formerly exposed an obvious suggestion is that the tenant should be bound was mischievous and absurd, but it is possible to go too

to produce, for the inspection of the landlord, vouchers far in the other direction. It seems to us always for all sales of produce and receipts for all purchases of desirable that a charge should be, to some extent,

manure or feeding stuffs. It may be objected that this formulated in writing before it is heard. We do not

would leave a considerable loophole for fraud on the mean after the manner of an indictment, nor are we

part of dishonest tenants; for how could the landlord much enamoured of the usual technical form of informa

ascertain that the vouchers produced really covered all tion. But it seems to us that it should be ascertained,

the sales which had taken place ? So long as it is known before the hearing, under what enactment the defendant

in a neighbourhood that a tenant is prohibited from is to be proceeded against, and some brief description of

selling off his hay, &c., without the landlord's consent, the nature of the charge should be recorded in writing,

any sale or carrying off of produce is observed, and 80 as to define the offence.

rumours of it are likely to reach the ears of the landlord or his agent; but when it is known that the tenant has

absolute liberty to sell off produce, no remark will be The Central Laro Journal notices a case in New York, 1

occasioned by his doing so, and no information will be Re Coppers (deceased), wbere an application was made for a conveyed to the landlord. It is notoriously difficult for: peremptory randamus directing the burial of the deceased in the most experienced agriculturalist to estimate accua Catholic cemetery where he bad purchased a lot and had rately the amount of produco on a farm at the beginning expressed in his life a desire to be buried. This the trustees of winter; hence, it may be said, the landlord will have bad refused to permit, on the ground that the deceased was a no means of testing the accuracy of the tenant's stateDon Catholic and a Freemason, and that by the laws of the ments as to the amount of produce sold off. The association Freemasons and non-Catholics were not allowed answer to this appears to be that from the general conto be interred therein. The Supreme Court granted the

dition of the farm, combined with the amount of expendi. mandamus, holding that “a party who deals with a corporate

ture on artificial manure proved by receipts, and the body in matters of contract, and pays bis money for property or rights which it assumes to couvey without restriction, is

amount of dung from time to time in the farmyard, not bound to know of articles of faith or private regulations

a landlord or agent who has his eyes open will be of the corporate body wbich will make the purchase valueless

able to form a tolerably accurate idea as to whether and the written grant of no avail.” A contrary doctrine,

the tenant is honestly fulfilling his engagement to said the court, “would rosettle well-established principles,

bring back a full equivalent in manurial value for and especially that one whicb declares that a writing is pre produce sold off. What remains then is to provide sumed to contain the entire agreement of the parties."

protection for a landlord who, by these means, has satisfied


himself that his tenant is not carrying out his agreement; and this might be done by providing that, after notice in

Rebiews. writing, given by the landlord to the tenant at any time during the tenancy, the latter shall not carry off any more produce until after he has given written notice by regis

DIARIES. tered letter of the description and amount of such PARTRIDGE & COOPER'S ANNUAL DIARY POR 1880. produce to the landlord his agent, and that PARTRIDGE & COOPER'S OCTAVO SCRIBBLING DIARY. POR for every load (or other quantity) of hay or other pro 1880. duce carried off in contravention of this provision, the PARTRIDGE & Cooper's FOLIO SCRIBBLING DIARY FOR tenant shall pay, as liquidated damages, a large sum. 1880. This would appear to provide the landlord with a suf.

These scribbling diaries are certainly a marvel of ficient check, for after his suspicions have been aroused, and any sale of produce without previous notice to him

cheapness. The folio diary contains fifty-six pages, folio has been prohibited, it would be very difficult for the size, interleaved with blotting paper, for one shilling. The

annual diary is printed on good paper and bound in tenant to carry off produce without being soner or later

cloth for the same price. detected, and detection would practically mean the inflic.

We have also received a copy of the Remembrancer, tion of a heavy fine. The landlord could probably be trusted not to give the prohibitory notice without good Cooper, containing the month, date, and day of week,


for hanging up in offices, published by Partridge & reason, or to withdraw it on being satisfied that his

notes of the events of the day. Buspicions were unfounded.

The actual form of the provisions we suggest, so far as regards the specification of the equivalent in manurial

THE LEGAL Pocket-BOOK AND CALENDAR. 1880. Comvalue to be brought back, would require to be settled by a practical farmer, but we imagine that some such

piled by ALFRED LAYTON. Waterlow Brothers &

Layton. provision as that half the selling value of the produce sold should be expended in the purchase of dung or There is a wonderful amount of legal and other informatown manure, bones, or good artificial manure, or in tion very well put together in the introduction to this linseed or cotton or rape cake, beans, or peas, would pocket-book, and the paper for the diary is of excellent suffice. Of course, feeding stuffs of less manurial value quality. than those above specified, should either be excluded, or the proportion of money to be spent on them should be increased. With regard to covenants prescribing a particular

Cases of the week. rotation of crops, there is more difficulty in arriving at a general conclusion. It seems to be admitted that on soils LIQUIDATION PETITION-REGISTRATION OF RESOLUTIONS known in agricultural language as “strong land,” the -DEBTOR'S STATEMENT-SMALL AMOUNT OF ASSETSrestrictions as to cropping are inconvenient and in BONA FIDES OF CREDITORS—BANKRUPTCY Act, 1869, s. jurious to the tenant without being necessarily advan 125-BANKRUPTCY RULES, 1870, RR. 295, 301.-In a case tageous to the landlord. It does not seem reasonable, for

of Ex parte Early, before the Court of Appeal on the 4th instance, to compel such a tenant in every fourth

inst., a question arose as to the registration of liquidation fifth year to

resolutions. The debtor, a trader, filed a liquidation grow roots (an uncertain and unprofitable crop ou such land) instead of growing an


petition on the 25th of July. The first meeting of the

creditors was held on the Ilth of August. The statement extra white crop-say of barley, which could be best

of affairs produced by the debtor showed that his debts grown,' and (as Mr. Lawes has shown) if suitably amounted to £534 and his assets to £85. His assets conmanured, without deterioration to the land. On light soils, sisted entirely of goods, the whole of which had been on the other hand, it is, we believe, the fact that a four seized by the sheriff under an execution issued by a judg. course system of husbandry is generally the best mode ment creditor named Early. This execution had been of cultivation, and some system of rotation is probably issued after the filing of the petition, but an injunction to neceseary in order to prevent such land from deteriorating, restrain the proceedings under it had been granted. The But even on these soils it is obviously undesirable to creditors resolved to accept a composition. At the second restrict the tenant from making the most money he meeting this resolution was not confirmed, but a liquida. can on his farm, if only the landlord can be insured

tion by arrangement was resolved on. The registration of the against the land being impoverished. The question of resolution was refused on the ground of an informality in whether this can be done, and if so, how it can be done,

the proceedings, but leave was given to summon a fresh must be left for discussion next week.

first meeting of the creditors. This meeting was held on the 29th of October. The injunction against Early had been continued from time to time, but had expired before the 29th of October, and the sheriff had sold the whole of

the debtor's goods for £85. At the meeting the debtor proAt the Mansion-house Police Court on Friday the resigna- duced the same statement of affairs which he had produced ion was announced, after five years' service, of Mr. J.

at the meeting on the 11th of August. The creditors resolved ranville Layard, the assistant clerk at the justice-room of

on a liquidation by arrangement, and gave the debtor an imme. Ghe Mansion-house. Mr. Layard retires in order to practise the only dissentient. He opposed the registration of the resolu

diate discharge. There were but five creditors, and Early was tas a solicitor ; and his resignation occasions much regret to hose presiding in and practising before the Court. The

tions, but the registrar ordered them to be registered. On the appointment vacated is in the gift of the Court of Aldor appeal it was contended that the statement of affairs pro

duced at the meeting of the 29th of October was, on the

face of it, an insufficient one, because the nature and amount An inquest was held at Cockermouth, on Tuesday, on the of the debtor's assets and liabilities must of necessity bave body of Henry Philip Wicks, solicitor of that town, who met changed between August and October. Moreover, 'it was with his death on Sunday under melancholy circumstances. He said that, looking at the amount of the assets compared resided some little distance from Cookermouth, and was in the with that of the liabilities, the proceedings were an abuse babit of taking a short cut into town by crossing a private of the procedure of the court, add the resolutions could bridge over the River Derwent, belonging to Messrs. Harris not have been passed bona fide in the interest of the and Son. There is an iron gate with spikes at one end of creditors, but must have been passed solely in the interest this bridge, which is locked on Saturday night and over of the debtor ; reliance being placed on the cases of Ex parte Sunday Mr. Wicks appears to have been climbing this Staf (23 W. R. 950, L. R. 20 Eq. 775), Ex parte Sir W. gate when by some means he impaled himself upon one of Russell (23 W. R. 817, L. R. 10 Ch. 255), Ex parte Aaronson this spikes. He bled to death in less than balf-an-hour. A (26 W. R. 470, L. R. '7 Ch. D. 713), and Ex parte Hope verdict of accidental death was returned.

(L. R. 9 Ch. D. 398). The court (JAMES, BAGGALLAY, and


THESIGER, L.JJ.) affirmed the registrar's decision. JAMES, designedly shat himself out from a part of his security, he L.J., said that the assets were very small, and in the resolt should have been disposed to help him. He thought that would probably produce nothing for anyone. But the the case could be distinguished from Ex parte Ashworth real contest was whether the execution creditor should take and Ex parte King, even agguming that those cases were all the assets, or whether they should be equally distributed not open to reconsideration. But in the present case his among all the creditors. The debtor might well honestly lordship thought that the original intention was to give up think that they should be distributed equally, and the the claim to the fixtures altogether. other creditors might well have thought that they should have a sbare. It was impossible to say that the proceedings showed 6x facie any abuse of the procedure, or any MORTGAGOR AND MORTGAGEE-TRUSTEE IN BANKRUPTCY frandulent use of the power of the majority. The statement ProCEEDINGS TO IMPeach Security-Costs.--In a case of the debtor's affairs appeared to be an honest one. There of Ex parte Parnall, before the Court of Appeal on the was no evidence of any change in the state of his affairs 4th iost., proceedings had been taken unsuccessfully by between August and October. It would have been the

a trustee in a liqnidation to impeach a bill of sale which had easiest thing in the world to have asked him at the meeting

been given by the debtor. These proceedings took place whether there had been any such change.

partly in an action at law, and partly in the Bankruptcy Court. The mortgagee obtained in the action an order for

the payment of his costs as between party and party. He BANKRUPTCY-LIQUIDATION-SECURED CREDITOR-PROOF afterwards claimed to be paid his extra costs in the action, - VOTING-VALUATION OF SECURITY-FORPEITURE OR ABAN- bis full costs of the proceedings in the Court of Bankruptcy, DONMENT – BANKRUPTCY ACT, 1869, ss. 16, 40—BANKRUPTCY and his charges and expenses, out of the proceeds of the RULES, 1870, RR. 99, 100, 136, 272.-Io a case of Ex parte

mortgaged property. The court (JAMES, BAGGALLAY, and Bagshau, before the Court of Appeal on the 4th inst, the TuesiGER, L.JJ.) disallowed the claim. JAMES, L.J., said question was raised whether a secured creditor, who, in that the rule is that, when a mortgagee defends the title to proving his debt in the bankruptoy or liquidation of his the mortgaged property for the benefit of all the persons debtor, by mistake omits to mention a part of his security, interested in it, he is entitled to his costs, charges, and exis entirely precluded from afterwards claiming the security penses in the same way as a trustee. But that rule had which he has omitted, or from applying to the court to have never been applied to direct litigation between mortgagor his proof reformed. One Ker filed a liquidation petition and mortgagee. In such a case the mortgazee was entitled on the 6th of Jane, and on the 27th of June the first meet to party and party costs, and to nothing more.

That was ing of the creditors was held, and a liquidation by the case in a foreclosure or redemption action, and it was arrangement was resolved upon. One Bagshaw held a equally so in the present case. mortgage on a leasehold house of the debtor to secure £4,000 and interest. Early in June he advertised the property for sale by auction on the 26th of Jane. The PRACTICE-ADVANCING APPEAL IN BANKRUPTCY--ADparticulars of sale stated that the fixtures, according to an JUDICATION OR REGISTRATION OF LIQUIDATION RESOLUinventory to be produced at the time of sale, were to be TIONS.-In a case of In re Loog, an application was, on the taken at a valuation in the usual way. On the 18th of 4th inst., made to the Court of Appeal to advance the hearJune the solicitors of the receiver, who had been appointed | ing of an appeal relating to the registration of resolutions under the petition, wrote to Bagsbaw's solicitors that these passed under a liquidation petition. The court (JAMES, fixtures were not included in the mortgage, and were part BAGGALLAY, and THESIGER, L.JJ.) said that the application of Ker's estate. Bagshaw's solicitors replied that it was was unnecessary, inasmuch as a general direction had been not their intention to include the ixtures in the sale, and recently given that all appeals relating to adjudications and that they would arrange for their withdrawal at the to the registration of resolutions under liquidation petitions anction. At the auction on the 26th of Jane the anction shall bave priority. ter withdrew the fixtures, and the house was sold for £3,000. At the creditors' meeting on the 27th of June Bagshaw tendered a proof for £4,385, as due to him on

LIGAT—"CONSENT OR AGREEMENT IN WRITING".-Prethe mortgage, stating in his affidavit that he had no seou

SCRIPTION ACT (2 & 3 Will. 4, c. 71), s. 3.-On the 5th rity for his debt except the property comprised in the

inst. the Court of Appeal (JAMES, BAGGALLAY, and THESIGER, mortgage, which had been sold the previous day for L.JJ.) affirmed the decision of Hall, V.C., in the case of £3,000. "His proof was admitted for £1,385, the balance brought to restrain an alleged obstruction by the defendant

Bewley v. Atkinson (27 W. R. 452). The action was of the mortgage debt, and he voted at the meeting in of the plaintiff's ancient lights. The defence was that the respect oi that som. person wbo bad been receiver) sold the fixtares to the lights had been enjoyed under, and by virtue of, an agreeparchager of the house for £220. Bagabaw then set up a

ment entered into in the year 1814 between one Kirkbride,

a predecessor in title of the plaintiff, and one Spencer, a claim to the £220, on the ground that the fixtures were incladed in the mortgage. Among other objections to his predecessor in title of the defendant. The agreement relied

on was a written doounient by which Kirkbride declared claim, it was orged that, by bis proof and voting in respect that the windows in question " are put out and remain of it, he bad abandoned or forfeited any security he might upon the leave or indulgence of the said H. Spencer, and have had beyond the £3,000, the value of the house ;

that I will, upon the request of him, or his heirs or assigns, reliance being placed on the cases of Ex parte Ashworth (22 W. R. 925, L. R. 18 Eq. 705) and E:c parte King (23 same, and in the meantime, until such request is made as

to be made at any time hereafter, wall and block up the W. P. 681, L. R. 20 Eq. 273). The court (James, BAG- agreed, I hereby promise to pay unto the said H. Spencer, GALLAY, and THESIGER, L.JI.) were of opinion, upon the his heirs and assigos, the sum of 6d. yearly, and every year, facts of the case, that there had been no mistake on the

in consideration of such indulgence.” This document was part of the creditor, but that the fixtures had been uncondi; signed by Kirkbride alone. The evidence showed that the tionally withdrawn from the sale, and that the proof bad

rent of 6d. had been paid up to the year 1859. The defend. been deliberately made on the footing that the creditor ant commenced to block up the windows in 1877. The was only entitled to security on the value of the house. plaintiff alleged that neither he nor his immediate predeJAMES, L.J., intimated that it might at some future time

cessor in title, who was a bona fide purchaser for value, ever require further consideration whether Ex parte Ashworth knew of the document in question until it was set up in and Ex parte King bad been rightly decided, and whether justification. The main question in this case was whether, there is any positive rule that a mortgagee who has made a within ihe meaning of section 3 of the Act, 2 & 3 Will. 4, mistake in his proof cannot, on making a proper applica c. 71, the lights in question had been enjoyed" by some tion, have it corrected. BAGGALLAY, L.J., said that he consent or agreement, expressly made or given for that pur. was by no means disposed to say that a mortgages could pose by deed or writing."" Hall, V.C., held that the right in do case be allowed to remodel his proof. On the con- given by the document in question was not limited in trary, his lordship thought that he ovald do so in a proper duration to the life of Kirk bride ; that there was a case and on proper terms. But that could only be on the sufficient consent or agreement in writing, within the meanground that he had acted on a mistake throughont. ing of the Act, though the document was signed only by the THESIGER, L.J., said that, if he had seen clearly that the person to whom the licence was given ; and that, at any mortgagee bad made a mistake in his proof, and bad on- I rate, the agreement was one which would be enforced by a

court of equity. This decision was affirmed by the Court of had to get his costs from the plaintiff, and then the plainAppeal on all the points.

tiff had to get them over from the solicitor. The result

was that the nominal plaintiff, who had never given any MANDATORY INJUNCTION-BREACH OF BUILDING COVE

authority to use his name in the action, might have NANT-PULLING DOWN COMPLETED BUILDING-JUDICATURE

to pay a large som for the defendant's costs, and might, Act, 1873, s. 25, SUB-SECTION 8.-In a case of Gaskin v.

by reason of the insolvency of the solicitor, be Balls, before the Court of Appeal on the 5th inst., the

unable to recover it. On the other hand, the practice in the action was brought for a mandatory injunction to compel the

courts of common law was to serve the defendant with notice removal of buildings which had been erected in breach of a

of the application, and to order the solicitor to pay the costs ovenant entered into on the sale of an estate in lots for

| of both plaintiff and defendant. Now, under the Judicature building purposes. Part of the buildings complained of bad

Act, it was for the court to say which practice ought to be been erected more than six years before the commencement of

followed. And his lordship bad no hesitation in saying that the action by the defendant's predecessor in title, and no

which he had already said at the Rolls, though not with complaint had been made at the time. The remainder of the

the same authority as he now said it in the Court of Appeal, buildings had been erected quite recently by the defendant

that the common law practice was founded on natural justice, himself. Bacon, V.C., had granted the injunction asked for

and ought to be followed for the fature. JAMES, L.J., said as to both the buildings. The Court of Appeal (JAMES,

that it must be understood that the common law practice is BAGGALLAY, and THESIGER, L.JJ.) discharged the injunction

to be observed in future. BRETT, L.J., said he was very so far as it related to that part of the buildings which had

glad to hear the Master of the Rolls affirm what he had been erected more than six years before the action. THESIGER,

himself often said since the Judicature Act came into operaL.J., said that, as a general rule, a mandatory injunction / tion, that in questions of practice that practice which, ought not to be granted where no complaint has been made

upon consideration, appears to be the best ought to prevail. before the completion of the buildings. And, though the Judicature Act has enlarged the power of the court as to the granting of injunctions, the principles on which the court



ORD. 36, RR. 3, 26.-In a case of Wedderburn y. Picker. Lunacy REGULATION Act, 1862 (25 & 26 Vict. C, 86), 8. ing, before the Master of the Rolls on the 5th inst., a motion 12 - SUMMARY JURISDICTION -- AMOUNT OF LUNATIC's was made by the plaintiff, under ord. 36, r. 26, that, notPROPERTY.-In a case of In re Faircloth, before Baggallay, withstanding the notice of trial before a jury given by the L.J., on the 6th inst., the question arose whether, in

defendants, the trial might take place before the judge withestimating the amount of a lunatic's property, for the out a jury. The action was one to obtain possession of the purpose of determining whether it falls below £1,000, so as site of an old wall taken by the defendants and built upon. to give the conrt a summary jurisdiction under the provisions or about to be built upon by them; to restrain the defendants of section 12 of the Lunacy Regulation Act, 1862, sums due from trespassing upon such site, and from interfering with a in respect of the past maintenance of the lunatic may be right of way claimed by the plaintiff ; and for damages. The deducted from the gross value of the property. BAGGALLAY, plaintiff had given notice of trial before the judge without a L.J., held that the deduction might be made, observing that. I jury, and the defendants then, under ord. 36, r. 3, gave upon a comparison of all the reports of In re Adams (12 notice of trial before a jury. The defendants in their atitiW. R. 291, 4 De G. J. & S. 182, 9 L. T. N. S. 626, 3 N. R. davit in opposition to the motion stated that a view of the 339, 10 Jur. N. S. 137). he considered the decision of Lord premises was essential for a determination of the issues in Westbury, in that case, to be an authority in favour of the case, that the premises were situated within a hundred making the deduction.

yards of the assize court at Leeds where the trial would be held, and that all the witnesses were resident at Leeds.

They also stated that the expense of a trial in Leeds would be CHARTER-PARTY-FREIGHT-INTEREST-3 & 4 WILL. 4, | much less than of a trial in London. The plaintiff, in answer, c. 42, s. 28.-In a case of Nelson v. Dahl, before the Court said that no view would be necessary, as the locus in quo could of Appeal on the 8th inst., an application was made to rary I be sufficiently understood from some photographs which had the minutes of the judgment. The action was brought to been taken before the premises had been altered by the recover freight and demurrage due under a charter-party. defendants for the purposes of an interlocutory application. The plaintiffs succeeded in the Court of Appeal, but in the The plaintiff also alleged that the issues would entirely minutes of the judgment as settled by the registrar, no pro. depend on an examination of the various deeds and the plans vision was made for giving interest on the freight. It was | attached to the conveyances. JESSEL, M. R., said urged that the freight was, by virtue of the charter-party, | that he was very unwilling to interfere with the right payable at a certain time, and that consequently, under given to persons by the Judicature Act to have their cases triec section 28 of the Act 3 & 4 Will. 4, c. 42, the plaintiffs were | by a jury, and he also considered that no judge should tako entitled to interest on it. The court (JAMES, BAGGALLAY, I away that right from mere caprice, or because he might him: and BRETT, L.JJ.) held that there was no right to interest, self think a jurv not the best tribunal. He quite approved except from the date of the judgment. BRETT, L.J., said l of what Hall, V.C., said in Clark v. Cookson (L. R. 2 Ch. D: that in a common law action for freight the judgment was i 747), that rule 26 of order 36 was framed “ to meet cases which always for the freight without interest. The statute did not would under the old system have been tried in the Chancery apply, for the freight was payable on delivery of the cargo, Division, and which might be considered by reason of and that was not a time certain within the meaning of the involving a mixture of law and fact, or from great complexity, Act. The plaintiffs could not alter their rights by bringing or otherwise, not capable of being conveniently tried before the action in the Chancery Division instead of in one of the a jury." In the present case, the action-he might almost common law divisions.

call it a conveyancing action-depended on the construction

of certain deeds and plans, and could be far better determined PRACTICE-ACTION BROUGHT BY SOLICITOR WITHOUT

by a judge than by a judge and jury. In reference to the AUTHORITY OF NOMINAL PLAINTIFF-Costs—LIABILITY OF

question of a view, he thought the photographs which bad in SOLICITOR-FORM OF ORDER-JUDICATURE Act, 1873.-In

fact been prepared by the defendant would give the judge a case of The Newbiggin Gas Company v. Armstrong, before

quite as good an idea as any view. Then, on the question of the Court of Appeal on the 10th inst., the question arose

expense, he was by no means sure that, looking at the whole which was raised before the Master of the Rolls recently in

course of the action, the liability to its being made a remanet the case of Nurse v. Durnford (ante, p. 88). Fry, J., had,

and to tbe liability to motions for a new trial, he did not apon the motion of the plaintiffs, ordered the solicitor, who

think a trial in London would be more expensive, where, had issued the writ, to pay their costs of the action, on

moreover, the case would be quickly heard, and probably with the ground that he had issued the writ in their name with

one appeal only. He should, 'therefore, exercise the discretion

| given him by rule 26 in favour of the plaintiff. The costs. out tbeir authority. The Court of Appeal (JESSEL, M.R., and James and BRETT, L.JJ.) affirmed the decision upon

would be costs in the action, as it was a fair case for discus-the facts. And JESSEL, M.R., said that, under the old prac

sion, tion of the Court of Chancery, the defendant was not served with notice of an application of this kind, and he

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