RECENT DECISIONS AS TO SETTING FORTH THE CONSIDERATION IN BILLS OF SALE. THE question as to what constitutes a sufficient setting forth of the consideration in a bill of sale within the meaning of the Bills of Sale Act, 1878 (41 & 42 Vict. c. 31), s. 8, has been discussed in several recent cases which we propose to examine very briefly. By section 8 of the above mentioned Act, it is provided that " every bill of sale to which the Act applies shall set forth the consideration for which such bill of sale was given," otherwise the bill of sale is to be void as against the persons therein specified.

The first reported case on the section in question is that of Ex parte Carter, Re Threappleton (27 W. R. 943, L. R. 12 Ch. D. 908), where the recitals in the bill of sale were to the effect that a sum of £340 had been applied for, and granted to the mortgagor in June, 1878; that in the following July an application was made to and granted by the mortgagee for a further loan of £60, both amounts to be secured by a bill of sale to be executed by the mortgagor when called upon to do so. As a fact, £240 out of the £340 had been advanced by the mortgagee to a partnership firm, consisting of the mortgagor and another person, and when the partnership was dissolved in June, 1878, a further sum of £100 was advanced by the mortgagee to the mortgagor alone. Under these circumstances the Chief Judge held that the bill of sale was void, on the ground that, although the transaction was a perfectly honest one, the recitals in the deed did not truly set forth the consideration for which it had been given, so as to satisfy the provisions of what he considered a most imperative statute. This case, as was pointed out by Pollock, B., in Credit Company v. Pott (42 L. T. N. S. 592), is clearly one in which there was an untrue statement.

In Ex parte National Mercantile Bank, Re Haynes (28 W. R. 848), the consideration for the bill of sale was stated to be an advance of £2,050 paid by the bank to the grantor on the execution of the deed. It appeared that the grantor had agreed to apply £550, part of the advance, in taking up two promissory notes and a bill of exchange upon which he was liable to the bank, and which fell due, one in a week, another in a fortnight, and the third in five weeks after the execution of the bill of sale, and that when the £2,050 was paid to him he immediately handed back £550 to the bank for that purpose. The Court of Appeal, reversing the decision of the Chief Judge (28 W. R. 399), held that the consideration was sufficiently set forth, inasmuch as the Act only required that to be stated which, independently of the Act, would have been properly stated as the consideration between the grantor and the grantee, and that it did not require a collateral bargain between the grantor and the grantee as to the application of the consideration to be stated. "If the consideration," said James, L.J., in delivering judgment, "is to be set forth in the bill of sale, it must be set forth truly; probably it need not be stated with minute accuracy, but it must be set forth substantially."

In Credit Company v. Pott (42 L. T. N. S. 592) the bill of sale recited that the consideration was the sum of £7,350 then paid by the grantees to the grantor. No money actually passed between the parties when the bill of sale was executed, but the sum of £7,350 was the balance due to the grantees in respect of certain advances made from time to time by them to the grantor, and Pollock, B., before whom the case was argued on further consideration, gave a liberal interpretation to the words of the section, and held that the consideration was sufficiently set forth.

Hamlyn v. Betteley (28 W. R. 956, L. R. 5 C. P. D. 527) was a case where the bill of sale stated that the consideration was the sum of £182 3s. now paid by the grantee to the grantor. At the trial it was proved that the grantor was paid the sum of £43 1s. 7d. in cash, the remainder being paid with his consent by the grantee in

the following manner:-£112 Os. 8d. to discharge two executions against the grantor's goods; and £25 Os. 9d. to a solicitor (who attested the bill of sale) for money lent and for costs due to him from the grantor. The court (Denman and Grove, JJ.) held that in the absence of any suggestion of fraud, the consideration had been sufficiently stated within the meaning of the 8th section. "The fact," said Grove, J., in delivering judgment, "that part of the money went to other persons with the grantor's assent does not render the statement of the consideration inaccurate; it was quite competent to him to direct what should be paid to himself and what should be paid to others on his behalf. If the misstatement of the transaction is so mixed up with the consideration as to give an untrue impression of what the consideration really was, that might be an improper setting forth of the consideration, but that would be a very different case from this." This case, it may be observed in passing, is directly in point as regards the rule laid down in Haynes' case by the Court of Appeal, that the statute does not require a collateral bargain between the grantor and grantee as to the application of the consideration to be stated, but it differs somewhat from Credit Company v. Pott, for in the one case the grantee actually paid over the sum named as the consideration at the time when the bill of sale was executed, whereas in the other, as has already been pointed out, not a farthing passed between the parties to the bill of sale.

The latest case on the subject is Ex parte Beetenson, Re Rogers (42 L. T. N. S. 808), where a bill of sale, dated October 24, 1879, stated that the consideration was the sum of £560 that day paid by the mortgagee to the mortgagor. In fact, however, £500 only was paid to the mortgagor by the mortgagee, and of the remaining £60, £20 was paid to an auctioneer for a valuation of the debtor's effects, and £40 was retained by the mortgagee in respect of costs incurred in preparing the bill of sale, and other professional charges. The Chief Judge was of opinion that the bill of sale did not truly set forth the consideration, and was therefore void as against the trustee in liquidation. It is somewhat doubtful whether this decision would be supported in the Court of Appeal, as the principle laid down in Haynes' case with reference to collateral bargains seems to apply to the case, although the Chief Judge in the course of his judgment guarded himself against seeming to throw doubt upon the judgment in the Court of Appeal, and distinguished the cases on the ground that in Haynes' case it did not appear that the transaction was a mere contrivance to prefer the bank to the extent of the £500. The rule to be gathered from

the decisions seems to be that if the bill of sale substantially sets forth the consideration for which it has been given, the section of the Act will be held to have been sufficiently complied with.

The Saturday Review of last week, referring to the suggestion to increase the jurisdiction of the Railway Commissioners, says: "The way to deal with railway companies is not to bid them adopt this, that, and the other precaution, and having done that to leave them alone; but to arm some public body with sufficient authority to insist upon the adop tion of such precautions as shall from time to time seem to be reasonable. By this means the progress of science and experience could be allowed for, and railway companies would not be allowed to invite disaster by the use of machinery which, though it was once the best known safeguard against danger, has long ceased to be regarded as any real safeguard at all. Such a tribunal lies ready to the Government's hand in the Railway Commission. All that is necessary is to em power the Commissioners, either of their own motion or at the instance of some one else, to call upon a railway company to adopt any precaution against accident which it seems reasonable to require on behalf of passengers. Armed with this power, the Commissioners need have no hesitation in acting vigorously. They would say to the company-A long series of accidents has shown that, in the particular circumstances of your line, such and such precautions ought to be taken, and accordingly we order you to take them."

CHARGING A TRUSTEE OR EXECUTOR WITH
INTEREST.
II.

WE referred last week to the rule which has been laid down that, where it can be shown to be necessary to meet the exigencies of the testator's affairs that moneys belonging to his estate should be kept uninvested, executors will not be charged with interest on them. What will be considered as an exigency justifying the executor in keeping money uninvested is, to some extent, indicated in the judgment in Tebbs v. Carpenter (1 Mad., at p. 299). In that case it appeared that the executors had in their hands, at the end of the first year after the testator's death, a sum of £790, and they alleged that it was necessary to keep this balance in hand to meet the exigencies of the next year. Sir T. Plumer, M.R., said that this argument would have had weight "if, in fact, it was necessary to keep the balance in hand, and

there were pressing demands which required it, but the current receipts were greatly more than sufficient to answer the current payments"; hence he charged the executors with interest. It is to be observed that in this case there was an express direction to the executors in

the will to invest portions of the estate not required, but

it would seem that, in order to avoid payment of interest, the executor must show that he had reasonable ground for believing that the money kept in hand would be needed to meet pressing demands which subsequent expected current receipts would not suffice to meet. He must consider, at the end of the first year after the testator's death, whether the balance he has in hand is greater than will be required to meet the payments he will have to make within the next year, and he must not suppose that he will be justified in keeping a sum uninvested because he happens to find it so at the testator's death. It has been laid down that if an executor finds a large sum of money at the testator's bankers, and does not invest it for the benefit of the estate, he will be charged with interest (Williams v. Powell, 15 Beav., at p. 467).

Before, however, the court will charge executors with interest on balances, it requires clear and distinct evidence that there was a balance in their hands. It will not act upon a mere probability or inference (Davenport v. Stafford, 14 Beav. 319, 333). In the last-mentioned case it appeared that a testatrix, who was herself an executrix, had in that capacity received a sum of £12,510 assets. Her executors, having admitted assets to pay all her debts, the court was asked to infer that this sum had come to their hands, but the Master of the Rolls held that, in the absence of any further proof, the executors were not liable for interest. "It is probable," the court said, as they admitted assets, that they had assets [of their testatrix] in their hands applicable to the payment of this sum; yet it is exceedingly probable that the whole of these assets might have been outstanding at the time, although when got in they might have been amply sufficient for the payment of everything which should be found due from the estate. There is nothing whatever to show that they might have been since recovered from year to year; and there is no evidence whatever that any cash actually came to their hands upon the death of the testatrix, though to charge them it is absolutely essential to have that fact established" (14 Beav. 333).

Moreover, it appears that in order to give a claim for interest against executors there must be a clear case of improper retention of balances to a considerable or substantial amount (Jones v. Morrell, 2 Sim. N. S., at p. 252). In this case the total balance retained arising out of the personal estate amounted to less than £96, and the total share of the rents of the leasehold estate to about £88, and the Court refused to charge the executors with interest. See also Davenport v. Stafford (14 Beav., at p. 330), where the principle upon which the court acts was stated by Romilly, M.R., as being that, if a trustee improperly retains in his hands a large balance, he will be charged with interest

66

on the balance; and Longmore v. Broom (7 Ves. 124), where executors were charged with interest on balances since 1793, no considerable balance appearing to have been in their hands before that period." The question of what is to be deemed a balance of substantial amount improperly retained must, it is apprehended, be decided by a consideration of the total value of the estate. In Melland v. Gray (2 Coll. 295), Knight Bruce, V.C., held that the sum of £356 8s. 4d. was not an unreasonable sum to be retained by an executor nearly two him with interest on that sum: see p. 301. years after the testator's death, and declined to charge But in this case the executor had received over £27,000 on account of the testator's personal estate.

It has often been laid down that a trustee or executor

who keeps trust money in his hands uninvested shall be charged with the same rate of interest as he has actually made or may fairly be presumed to have made by it Burdick v. Garrick, 18 W. R. 387, L. R. 5 Ch., at p. 243; Lee v. Lee, 2 Vern. 547; Rocke v. Hart, 11 Ves., at p. 60; Attorney-General v. Alford, 4 De G. M. & G., at p. 851). The rule which is acted upon, however, seems to be that the court will charge the executor or trustee with simple interest at four per cent. per annum

(Rocke v. Hart, 11 Ves., at p. 61; Forbes v. Ross, 2 Cox, at p. 116; Attorney-General v. Alford, 4 D. M. & G. 843, 15 Beav., at p. 392; Knott v. Cottee, 16 Beav., at p. 80; 851; In re Hilliard, 1 Ves., jun., 89; Jones v. Foxall, Robinson v. Robinson, 1 D. M. & G., at p. 255; Barrett (No. 2) 31 Beav., at p. 350); unless a special Johnson v. Prendergast, 28 Beav. 480; Saltmarsh v. case is made out (Treves v. Townshend, 1 Bro. C. C., at p. 386; Hall v. Hallet, 1 Cox, at p. 138; Tebbs v. Carpenter, 1 Mad., at p. 306; Woodhead v. Marriott, C. P. Cooper, 62), showing that the trustee or executor either has or ought to have made interest on the trust money at a rate exceeding four per cent. per annum. The mere fact that a trustee or executor bas mixed the trust him with a higher rate of interest than four per cent. per money with his own money is no reason for charging Attorney-General v. Alford, 4 D. M. & G. 843, 847; annum (see Perkins v. Baynton, 1 Bro. C. C. 375; Melland v. Gray, 2 Coll. 295, 306.)*

Under the following circumstances an executor or trustee will be charged a higher rate of interest than four per cent. per annum :

(1) If a higher rate than four per cent. per annum has been actually made by the executor or trustee. In this case the court will charge him with the rate of interest he has made (Forbes v. Ross, 2 Cox, at p. 116; Hall v. Hallet, 1 Cox, at p. 138; Gilbert v. Price, 22 SOLICITORS' JOURNAL, 584, W. N. 1878, p. 117; In re Hilliard, 1 Ves. jun. 89 [as to assignees of a bankrupt]; but see Fletcher v. Green, 33 Beav. 426, where trustees, in breach partners in trade, who gave their bond for the sum and of trust, lent trust money to one of themselves and his interest at five per cent.; it was held, in a suit to make the trustees liable for breach of trust, that the trustee to whom the money was lent was liable only to pay four per cent.).

(2) If the trust fund has been taken by the trustee or executor from a proper state of investment, in which it was producing five per cent., and used by himself. In this case he will be charged with interest at the rate of five Stace, 4 Ves. 620; Mosley v. Ward, 11 Ves. 581; per cent. (Jones v. Foxall, 15 Beav., at p. 392; Piety v. Raphael v. Boehm, 13 Ves. 407, 411: see Taylor v. Gerst, Moseley, at p. 99; Pocock v. Reddington, 5 Ves., at P. 799). In Crackelt v. Bethune (1 Jac. & W. 586) an exe. cutor who had unnecessarily sold out and retained funds

*An attempt has been made to explain the different rates of interest with which executors are charged as depending upon the distinction between negligence and misfeasance (Tebbs v. Carpenter, 1 Mad., at p. 306); but this distinction does not correspond with the circumstances under which the different which, in recent times, the charging of interest in these cases rates have been charged, and is contrary to the principle on has been based.

invested in the three per cents. was charged with interest at five per cent. per annum " for a direct breach of trust," but it is apprehended that this is inconsistent with the principle of the recent decisions; unless (as rather appears from the judgment, see page 588) the executor had employed the money in trade. On principle it would seem that if the trust fund at the time it was sold out was producing, on a proper investment, more than five per cent. per annum, the trustee or executor must be charged with the rate of interest which the fund was producing before the sale. This does not seem to have been laid down in any judgment, but probably this is due to the fact that few authorized investments will produce a higher rate of interest than five per cent.

(3) If the trustee or executor has employed the trust money in trade or speculation for his own benefit, whether he has employed it in a separate business or adventure, or mixed it with his own money and employed it in a business of his own (Docker v. Somes, 2 My. & K. 665, 667), he will be liable for all losses and will be charged with all the profits actually obtained by him from the use of the money (Docker v. Somes, 2 My. & K. 655), or at the option of the cestui que trust, or in case it cannot be ascertained what profits have been made (Montgomery v. Wauchope, 4 Dow., at p. 131; Walker v. Woodward, 1 Russ. 107), with interest at five per cent. per annum, on the presumption that this rate of interest will be made on money employed in trade (Jones v. Foxall, 15 Beav. at p. 392; Heathcote v. Hulme, 1 J. & W. 122; Ex parte Watson, 2 Ves. & B. 414; AttorneyGeneral v. Solly, 2 Sim. 518; Western v. Chapman, 1 Coll. 177, 181; Brown v. Sansome, 1 McCl. & Y. 427, 434; Sutton v. Sharp, 1 Russ., at pp. 150, 151; Saltmarsh v. Barrett (No. 2), 31 Beav., at p. 350; Flockton v. Bunning, L. R. 8 Ch., at p. 223, note; Vyse v. Foster, L. R. 8 Ch., at p. 329). The cestui que trust cannot claim both interest and profits in respect of the money employed in trade; he must elect between them (Vyse v. Foster, L. R. 8 Ch., at p. 334); and it has been said that in general he must elect to take either the profits for the whole period during which the money has been employed in business, or interest for the whole period, but there may be cir

cumstances which would be sufficient to divide such period (Heathcote v. Hulme, 1 J. & W. 122, 133; Burdan v. Burdan, cited Ib. at p. 134). The ground on which this right rests is this. The employment in trade is unwarrantable; but if it turns out to have been profitable the cestui que trust has a right to follow the money, as it is said, into the trade. In such a case the trade profits have, in fact, been produced by the employment of the money of the cestui que trust, and it would be manifestly unjust to permit the trustee to rely on his own misconduct in having exposed the funds to the risk of trade as a reason for retaining the extra profits beyond interest for his own benefit. Even where no such extra profits have been made, the cestui que trust is in general at liberty to charge his trustee who has allowed the trust money to be employed in trade with interest at five per cent., that being the ordinary rate of interest paid on capital in trade (Robinson v. Robinson, 1 D. M. & G., at p. 257).

A Bristol paper states that a young gentleman who has been for some months an inmate of a lawyer's office, entered with the determination, as he announced to his family, to become Secretary of State. There would seem to be some probability of his succeeding, to judge from the following note sent the other day to his anxious mother, who had inquired why he did not come home to see them oftener :"The impossibility of my absence will be readily apparent when I convey the intelligence that my senior principal is at the current juncture exhaustively engaged in the preparation of a voluminous series of intercalatory interrogatories to be propounded to a supposedly recalcitrant witness whose testimony is of cardinal importance in the initial stages of an approaching preliminary investigation involving the most momentous consequences."

General Correspondence.

COUNTY COURT EXECUTIONS. [To the Editor of the Solicitors' Journal.] Sir,-The county court system has long been payment in advance for all court fees, and as the poundage for a warrant of execution is 1s. 6d. on the debt, court fees previously paid, and solicitor's costs, there are many debts which amount to over £19 and therefore pay 30s. Now, for this fee, it is presumed that the bailiff will do all the sheriff's officer does at his own risk, and on realizing at once pay into his court for the creditor's use, but this unfortunately is rarely done. The sheriff's officer levies, and if told of a bill of sale is obliged to get instructions before withdrawing, and failing, has to interplead at his own expense. The county court bailiff appears to accept any notice of a bill of sale and even without a formal claim, probably a month afterwards, returns simply "bill of sale." If a sheriff's officer acted in this way, solicitors would know what to do; but there seems a difference with high bailiffs, who claim a month before making any return; but is this legal? Has not the county court bailiff the same responsibility as sheriffs when on levy he finds a bill of sale? Should this not, at least, be communicated to the creditor, even if an interpleader summons (which by the way costs the high bailiff nothing) is not at once issued? In foreign courts-and the metropolitan are foreign to each other and the City for this purpose-it is difficult to get any return, and when obtained, many weeks after issue, it is simply "bill of sale," without a word of explanation. G. MANLEY WETHERFIELD.

Gresham-buildings, E.C.

Sir,

"MASTERISM."

[To the Editor of the Solicitors' Journal.]

I venture to call your attention to an example of what, for want of a better term, I shall designate "Masterism," which I think may well deserve the attention of your readers and the public generally.

66

This is the case :-Our client recovers judgment for a large sum, and the only chance of realizing it is a garnishee order upon one of the defendant's debtors. Armed with the usual affidavit (which plaintiff came a long distance to make in order to save time), I attended at the Royal Courts this morning to make application for an order. No master was sitting in chambers," however, so I went "upstairs" to a learned master, who was "sitting" as "taxing master." That learned master was, at the time, doing absolutely nothing. Nobody was in his room but himself, and nobody was waiting to enter it. I asked him, as the case was urgent and there was no master below, to hear my application. His answer was, "No, certainly not!" Of course, technically, he was sitting as "taxing master," and, had he been engaged in that capacity, there would have been some reason for his peremptory refusal; but, seeing that my application would not, literally, have taken two minutes, whilst the delay of twenty-four hours may cost the plaintiff £200, I think that the lex loci (if any) which allows a master to evade his duty, under the circumstances mentioned, should be brought to the notice of the judges, and so altered as to enable parties at all reasonable times to obtain that relief and justice which the masters are paid and supposed to administer. September, 1880.

W. H.

It is announced that the Attorney-General has written to the commissioners appointed to inquire into corrupt practices at elections, suggesting that the investigation should be held as early as possible-certainly not later than the first week in October-and also speaking of the desirability of the secretaries to the several commissions proceeding without delay to the different localities respec tively, in order to prepare the evidence to be laid before he commissioners.

New Orders, Etc.

PROBATE, DIVORCE, AND ADMIRALTY
DIVISION.

Additional and Amended Rules and Regulations for the Probate, Divorce, and Admiralty Division of her Majesty's High Court of Justice in Divorce and Matrimonial Causes.

"205. It shall not be necessary in any case to apply to the court by motion for directions as to the mode of hearing or trial of a cause. When the pleadings are concluded, the parties to a cause may proceed in all respects as though upon the day of filing the last pleading a special direction had been given by the court as to the mode of hearing or trial to the effect following:

"1. In cases in which damages are not claimed, that the cause be heard by oral evidence before the court itself, without a jury.

2. In cases in which damages are claimed, that the cause be tried before the court with a common jury.

"And any party to a cause may apply by summons for a direction that the cause may be heard or tried otherwise than is hereby provided.

"206. Before a cause is set down for hearing or trial the pleadings and proceedings in the cause shall be referred to one of the registrars, who shall certify that the same are correct and in order, and the registrar to whom the same are referred shall cause any irregularity in such pleadings or proceedings to be corrected, or refer any question arising thereupon to the court for its direction; any party to the cause objecting to such direction of the registrar may (subject to any order as to costs) apply to the court on summons to rescind or vary the same.

"207. Application to make absolute a decree nisi for dissolution or nullity of a marriage need not hereafter be made to the court by motion as directed by rules 80 and 194, but it shall be a sufficient compliance with the said rules to file in the registry, with the affidavit or affidavits therein required, a notice in writing setting forth that application is made for such decree absolute, which will thereupon be pronounced in open court at a time appointed for that purpose."

[The rules take effect from the 10th of last month.]

WINTER ASSIZES ACTS.

The London Gazette of the 14th inst. contains Orders in Council in pursuance of the Winter Assizes Acts, 1876 and 1877, constituting the following Winter Assize Counties for the Winter Assize of 1880.

No. 4.-Lincolnshire, Nottinghamshire, and the City of Lincoln: assizes held at Nottingham. No. 6.-Northamptonshire, Bedfordshire, and Buck. inghamshire: assizes held at Northampton.

THE EXTRADITION ACT.

An Order in Council is published in the Gazette of the 14th inst. giving effect to an Ordinance of the Legislature of St. Vincent (the Extradition Ordinance, St. Vincent, 1880), extending the provisions of the Ex. tradition Act, 1870, to that colony.

A correspondent informs the Pall Mall Gazette that the case of Mr. T. E. Lefroy, the judge of the Dorset and Somerset County Courts, regarding whom a deputation of solicitors and newspaper proprietors recently waited upon the Lord Chancellor, has received the fullest consideration, and it is now understood that his Honour will retire on a pension. Mr. Lefroy has not sat in any of the courts since the deputation waited upon the Lord Chancellor, nd Mr. Oppenheim has been officiating as deputy-judge.

Cases of the Week.

Мотрон то RESTRAIN SUING ON BILL · ACTION IN ANOTHER DIVISION.-In a case of Ross v. Semple, before Lindley, J., sitting as Vacation Judge, on the 16th inst., a motion was made in the Chancery Division to restrain a defendant from suing on a certain bill as to which he had commenced an action in another division. The notice of motion did not go beyond this, and the objection was taken on behalf of the defendant that no such order could be made, and that the motion should be dismissed with costs. LINDLEY, J., was of opinion that the notice of motion on this point was irregular in asking for the stay of proceedings of an action in another division, and he accordingly refused the motion, and directed the costs to be the defendant's in any event.-SoLICITORS, G. H. Terrell; G. B. Bathurst Norman.

PARTNERSHIP-Receiver-LIBERTY FOR PARTNER TO PROPOSE HIMSELF AS RECEIVER.-In a case of Jepps v. Pritchard, also before Lindley, J., on the 16th inst., a motion was made in a partnership action for the appointment of a receiver. A question arose as to the form of order, and it was proposed that there should be the usual reference to chambers with liberty to each party to propose himself. For the defendant, one of the partners, it was stated that this liberty would be of no use, as he had been recently injured in a railway accident, and could not undertake the management of the property. It was contended, therefore, that the effect of the liberty would be to have the plaintiff appointed. For the defendant, it was also stated there were objections to the appointment of the plaintiff. LINDLEY, J., said that he thought the justice of the case would be met by giving both of the parties liberty to nominate himself. It was not the plaintiff's fault that the defendant was injured, and the objections to the plaintiff could of course be brought before the chief clerk when the receiver was nominated.-SOLICITORS, Piesse & Son ; H. F. § E. Chester,

ADMINISTRATION-RECEIVER-INTESTACY-HEIR-AT-LAW --ADMINISTRATOR.—In a case of Re David Roberts' Estate, Silverton v. Roberts, also before Lindley, J., on the 16th inst., a motion was made in an administration action by a creditor for a receiver. The defendant was heir-atlaw and administrator, and, although not desiring to admit assets, yet desired to contest the validity of the debt. For him it was submitted that the motion for a receiver against

an

beir-at-law was entirely novel, and that as to the personal estate no case was made against the administrator. The defendant, however, offered to consent to have a reference to chambers as to the existence of the debt without prejudice to any question. LINdley, J.. said he thought the motion was not regular and was nɔvel to him, but that, as the defendant consented, he would direct a reference to inquire as to the plaintiff's debt without prejudice to any question. The costs of the motion and all questions as to its propriety would be reserved.-SOLICITORS, H. S. Harris & Godwin; J. McDiarmid.

Obituary.

MR. JOHN GWYNNE.

Mr. John Gwynne, solicitor (of the firm of Gwynne & Stokes), town clerk of Tenby, died at that place on the 2nd inst. Mr. Gwynne was born in 1808, and was admitted a solicitor in 1840, and had practised for forty years at Tenby. During part of that time he also had offices at Pembroke and Narberth. He had for the last few years been associated in partnership with Mr. Charles William Rees Stokes. He was a commissioner to administer oaths in the Supreme Court of Judicature, and a perpetual commissioner for Pembrokeshire. He was elected town clerk of the borough of Tenby in 1865, and held that office until his death. He was also clerk to the borough magistrates, to the Commis sioners of Land, Assessed, and Income Taxes; to the South Wales Highway Board, and solicitor and treasurer to the Tenby Charity Trustees. Mr. Gwynne was buried at the Tenby Cemetery on the 7th inst., the Mayor of Tenby and most of the members of the corporation being present at the funeral.

JUVENILE OFFENDERS.

IN a circular letter to the metropolitan police magistrates as to the punishment of juvenile criminals, the Home Secretary points out the undesirability-where it is possible for any other course to be adopted-of sending offenders of tender years to prison, and advises that wherever practicable the punishment of the birch should be awarded in preference to incarceration.

Mr. Rawlinson sends to the Times the following statistics as to the number of juvenile offenders sent to gaol. He says, "At page 37 of the Judicial Statistics for 1878' (issued 1879), statistics as to 'Prisons,' they will find that the following are the numbers of children under 12 years of age, and of those of 12 years and under 16, committed to prison in the year ending the 31st of March, 1879, and in each of the seven preceding years:

Aged 12 and under 16 years:Mles. 5,270..5,629..5,292 5,303 Fems. 820 .. 888.. 818 .. 825 Totl. 6,090..6,517..6,140 .. 6,128 Total under 16 years :

..

6,692 .. 6,508 965 1,185

1,467

6,629 6,180 1,173 1,030

7,473.. 7,877 7,801

7,510

.8,977

6,810 ..7,682..7,138.. 7,212 .. 8,913 9,359 The table at pages 92 and 93 shows the birthplace of those committed and the counties and places in which they were so committed.

It is both humbling and depressing to find that in eight years 65,384 children under 16 years of age should have been sent to gaol in England and Wales."

In connection with this subject Mr. T. Cousins, of Portsmouth, has drawn attention to what he considers a serious mistake in the Summary Jurisdiction Act, 1879, the conseqence of which is that justices have now no power to fine children under the age of 12 years for most indictable offences. He has addressed to the Home Office the following letter, in reply to which no opinion has been offered :

"Justices' Clerk's cffice, Portsmouth, "December 17, 1879. "Sir, I beg to draw your attention to an omission in the 10th section of the Summary Jurisdiction Act. Take a very ordinary case. A 'child' is charged with larceny. The section provides that the court, if the parent, &c., does not object, may deal summarily with the offence and inflict the same description of punishment as might have been inflicted had the case been tried on indictment.' Now upon a trial on indictment a fine may be inflicted for some offences-e.g., for an assault (24 & 25 Viot. c. 100, s. 71). But for larcenies and a very large majority of other offences the court has no power to inflict a fine upon trial on indictment. And section 10 of the Summary Jurisdiction Act confers no such power upon the justices. It merely limits the amount 'where a fine is awarded '-i.e., in cases where there is power to inflict a fine upon trial on indiotment, but in no other cases. No doubt it was intended to confer a power to fine by section 10, but such power cannot be given by presumed intention, or by implication. present moment justices have the power to fine juvenile offenders' for offences comprised in the Juvenile Offenders Acts, but these Acts are repealed by the second schedule to the Summary Jurisdiction Act, 1879. The above contention is supported by the fact that powers to fine are expressly conferred as regards 'young persons' (section 11) and as regards 'adults' (section 12).

At the

"As the above is a very important point of practice, may I venture to ask your views upon it for our guidance here?

"I have the honour to be, Sir, your obedient servant, "THOMAS COUSINS, Clerk to the Justices of the "Borough of Portsmouth.

"A. F. O. Liddell, Esq., Q.C., her Majesty's UnderSecretary of State for the Home Department, Whitehall, London, S.W."

Appointments, Etc.

Mr. ARTHUR CHARLES, Q. C., who has been appointed a Commissioner to inquire into the existence of corrupt practices in the City of Canterbury, was educated at University College, London, and graduated B. A. of the University of London in 1858. He was called to the bar at the Inner Temple in Hilary Term, 1862 (having in the previous November obtained a first-class certificate of honour), and he is a member of the Western Circuit. Mr. Charles became a Queen's Counsel in 1877, and he is recorder of the city of Bath, a bencher of the Inner Temple, ing. and a member of the Incorporated Council of Law Report

Mr. EDWARD HARRY ADCOCK, solicitor (of the firm of Starkey & Adcock), of 19, Palmerston-buildings, Old Broadstreet, in the city of London, has been appointed a Commissioner to take Affidavits, &c., in the High Court of Jadicature at Fort William, in Bengal, and also to take the Acknowledgments of Married Women in respect of property in British India.

Mr. ERNEST BAGGALLAY, barrister, has been appointed Secretary to the Sandwich Election Commission. Mr. Baggallay is the son of the Right Hon. Sir Richard Baggallay, Lord Justice of Appeal. He was educated at Marlborough, and at Caius College, Cambridge, and was called to the bar at Lincoln's-inn in Easter Term, 1873. He practises on the South-Eastern Circuit, and at the Sarrey Sessions. In 1875 he was secretary to the Boston Election Commission.

Mr. JAMES WILLIAM BOWEN, Q.C., who has been ap pointed a Commissioner to inquire into the existence of corrupt practices in the Borough of Boston, was called to the bar at the Middle Temple in Hilary Term, 1851, and is a member of the South Wales and Chester Circuit. He became a Queen's Counsel in 1873, and is a bencher of the Middle Temple.

Mr. HUGH COWIE, barrister, who has been appointed a Commissioner to inquire into the existence of corrupt practices in the City of Oxford, was educated at Trinity College, Cambridge, where he graduated as a wrangler in 1851. He was called to the bar at Gray's-inn in Hilary Term, 1862, and practises on the South-Eastern Circuit. Mr. Cowie was secretary to the commission on the Criminal Code Bill, and he is chancellor of the diocese of Durham, recorder of Maldon and Saffron Walden, and prosecuting counsel to the Post-office at the Central Criminal Court.

Mr. CHARLES MARSHALL GRIFFITH, Q.C., who has been appointed a Commissioner to inquire into the existence of corrupt practices in the Borough of Knaresborough, was educated at Wadham College, Oxford, where he graduated second class in Litera Humaniores in 1852. He was called to the bar at the Inner Temple in Michaelmas Term, 1855, aud is a member of the South-Eastern Circuit. He became a Queen's Counsel in 1877, and he is a bencher of the Inner Temple, a magistrate and deputy-lieutenant for Cardigan. shire, and chairman of quarter sessions for that county.

Mr. WILLIAM HAWORTH HOLL, Q.C., who has been apappointed a Commissioner to inquire into the existence of corrupt practices in the Borough of Sandwich, was called to the bar at the Inner Temple in Michaelmas Term, 1851, and is a member of the South-Eastern Circuit. He became a Queen's Counsel in 1877, and is a bencher of the Inner Temple.

Mr. GEORGE HIGINBOTHAM, barrister, has been appointed a Paisne Judge of the Supreme Court of the Colony of Victoria. Mr. Justice Higinbotham was called to the bar at Lincoln's-inn in Trinity Term, 1853, and was called to the bar at Melbourne in the following year.

Sir JOSEPH GEORGE LONG INNES, knight, has been appointed Minister of Justice for the Colony of New South Wales. Sir J. Innes is the eldest son of Captain Joseph Long Innes, and he was born in 1834. He was called to the bar in Lincoln's-inn in Michaelmas Term, 1859, having in the previous May obtained a first-class certificate of honour, and he was called to the bar at Sydney in 1862. He was Solicitor-General of New South Wales from May, November, 1873, till February, 1875. He is a member of

that date.