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order being made, however, no property is vested in the liquidator by virtue of the Companies Acts; and there is no relation back. In order, then, that every right of a creditor of a company in course of being wound up may be the same as the right of a creditor of a bankrupt, the High Court would have to make considerable alterations in the Companies Acta. We come, then, to the conclusion that the Legislature could not have intended what the literal meaning of the words of the section seems to imply.

It is then, we presume, the duty of the court to guess what the Legislature intended by this very remarkable section. Now, before the Judicature Act, a creditor of a company holding security was entitled to prove in the winding up for the whole of his debt (Kellock's ease, 16 W. R. 688, L. E. 3 Ch. 769); whilst the rule in bankruptcy was that he must realize or value his security, and prove for the balance only. We think that the intention of the 10th section of the Judicature Act, as regards the rights of creditors, was merely to make this bankruptcy rule applicable in the winding up of companies and in the administration of estates.

The judges of the High Court entertain curiously different views as to the language of this section. Thus Bacon, V.C., in Be Stockton Iron Furnace Company (27 W. R. 433, L. R. 10 Ch. D. 335), says, " I can hardly conceive any words in which the meaning could be more -distinctly expressed or an enactment more plain and positive" ; and afterwards in Be General Works Company {L. R. 12 Ch. D. 755), he said it was" plain enough in its terms," and yet, in that case, he decided that the rule that a contributory cannot set off a judgment debt due to him from the company against calls made upon him by the official liquidator in the winding up of the company, has been affected by the section—a decision, we venture to think, in direct opposition to the grammatical meaning of the words of the section. On the other hand, Mr. Justice Fry thinks the words somewhat obscure (Re West of England Bank, 27 W. R. 869, L R. 12 Ch. D. 828); and the Master of the Rolls says, "What the precise meaning of the section is, I think, no one can positively say" (Re Printing and Numerical Begistering Company, .26 W. R. 627, L. R. 7 Ch. D. 535).

Three interpretations have been put upon the section by the judges—(1) the literal one; (2) a construction giving a peculiar force to the word "respective," and reading the words "respective rights of secured and unsecured creditors" as if it had been " rights of secured creditors as against unsecured creditors ;" and (3) the one for which we contend.

Vice-Chancellor Bacon, and Mr. Justice Fry have given effect to the literal meaning. Thus Bacon, V.C., in Be Stockton Iron Furnace Company (27 W. R. 433, L. R 10 Ch. D. 335), decided that the reputed ownership rule applied to the winding up of companies. On appeal, the view taken by the court made it unnecessary to decide the point. We may here mention that this case was not followed by the Master of the Rolls in Be Crumlin Viaduct Works Company (27 W. R. 722, L. R. 11 Ch. D. 755). But the reason given by the Master of the Rolls for his decision was that the rule as to reputed ownership did not affect the rights of creditors of the bankrupt at all, but the true owners of property. We would venture to suggest that it does affect their rights; because, if it is not applied, they get so much the less. A very literal construction was put upon the subsequent part of the section by Mr. Justice Fry, in Be West of England Bank (27 W. R. 869, L. R. 12 Ch. D. 823), where he held that a creditor of a banking company in liquidation, who is also a shareholder in the company, is entitled to receive a dividend on his debt, if he has paid all the calls made on him; and that this section bad not altered his right. The ground of the decision was that the only part of the section material to the case was "ai to debts and liabilities proveable," and

that this dealt only with his right of proof, and not with his right to receive dividends. Some judges have, however, refused to apply bankruptcy rules in winding up companies, on the ground that section 10 made them applicable only in the case of insolvent companies (Moor v. Anglo-Italian Bank, 27 W. R. 652, L. R. 10 Ch. D. 681; Be Richards and Company, 27 W. R. 530, L. R. 11 Ch. D. 676; Be Stanhope Silkstone Collieries Company, 27 W. R. 561, L. R. 11 Ch. D. 160). We venture to think that this is not a sufficient reason for deciding once for all that the bankruptcy rule is not to be applied; particularly when, as was the casein Be Bichards and Company, and Be Stanhope Silkstone Collieries Company, there was every reason for thinking that the company would not be able to pay its creditors and the costs of winding up.

The second method of construction of the section seems to have been adopted by the Master of the Rolls in Be Albion Steel and Wire Company (26 W. R. 348, L. R. 7 Ch. D. 547), and Be Printing and Numerical Registering Company (26 W. R. 627, L. R. 7 Ch. D. 535). By section 32 of the Bankruptcy Act, local rates and clerks' salaries have priority. The Master of the Rolls held in Re Albion Steel and Wire Company that section 10 of the Judicature Act did not give local rates priority in the winding up; and yet, in Re Norton Ironworks Company (26 W. R. 53) he gave clerks' salaries priority. We are unable to reconcile these decisions. In Be Printing and Numerical Begistering Company he decided that an execution creditor is a secured creditor within the meaning of the 10th section, and then he applied that section to him to deprive him of his security.

The third construction has been put on the section by Vice-Chancellor Malins in Be Coal Consumers' Association (25 W. R. 300, L. R. 4 Ch. D. 625), and by James, L.J., in Lee v. Nuttall (27 W. R. 805, L. R. 12 Ch. D. 61). In the latter case it was decided that an executor's right of retainer was not affected by the section, and James, L.J., said, "The sole object of the section, as it appears to me, was to get rid of the rule in chancery under which a secured creditor could prove for the full amount of his debt and realize his security afterwards, and to put him on the same footing as iu bankruptcy—where he was only entitled to prove for the balance after realizing or valuing his security." Decisions in accordance with the limited construction of the section have also been given in Re Knott (L. K. 7 Ch. D. 549 (n) ) ; Ex parte Railway Steel and Plant Company (L. R. 8 Ch. D. 183); Smith v. Morgan (L. R. 5 C. P. L>. 337); and Re Bridgewater Engineering Company (L R. 12 Ch. D. 181). But as no reason is given for these decisions, they do not greatly assist the present discussion.

We have only now to refer to the decision in the case of Re Westbourne Grove Drapery Company (25 W. R. 509, L. R. 5 Ch. D. 248), that a lessor of a company is not by section 10 enabled to prove in respect of future rent due under the lease, there being no rent then in arrear. The reason given for the decision is that in bankruptcy the trustee may disclaim, whilst this section did not enable the liquidator to do so.

It will be seen, then, that we think the decision of Mr. Justice Fry in Re Richards and Company correct (although we arrive at the result by a different process of reasoning); and that the question at the commencement of this artiole should be answered in the negative.

The following are the circuits chosen by the judges for the ensuing Winter Assizes, at which both civil and criminal work will be taken :—Western Circuit, Lord Justice Baggnllay and Mr. Justice Lopes; North-Eastem, Lord Justice Lush and Mr. Justice Manisty; Northern, Mr. Justice Field and a Commissioner; Midland, Mr. Justice Denman and a Commissioner ; South-Eastern, Mr. Justice Lindley and Mr. Justice Hawkins; North Wales, Mr. Justice Fry; South Wales, Mr. Justice Stephen; Oxford, Mr. Justice Williams and a Commissioner.


DARRELL v. TIBBITTS, C.A., 29 W. R 66.

The principle that a contract for insurance against fire in the ordinary form is a contract of indemnity only, •was finally settled by the Court of Appeal in North British and Mercantile Insurance Company v. London, Liverpool, and Olobe Insurance Company (L. B. 5 Ch. D. 576), and in that case it was held that if the assured, having a right to indemnity against a third person, came upon the insurance company, the latter were entitled to be subrogated in the place of the assured. The decision in the present case is a necessary consequence of the doctrine thus laid down. A landlord let a house by a lease which contained a covenant binding the tenant to repair in case of damage to the house by explosion of gas, and a covenant by the landlord to insure the house. Tie landlord insured by a policy which extended to damage by explosion of gas; damage by a gas explosion occurred ; the tenant repaired the damage; the insurance company paid compensation under the policy, but, on discovering that the tenant had repaired the damage, brought an action to recover the compensation. It was held that they were entitled to recover it The chief interest of thia decision lies in its effect on the forms of leases of houses. It is clear that for the future, wherever a landlord is willing to covenant to insure and to apply the insurance moneys in rebuilding, the tenant ought to insist on an exception exactly corresponding to the liability of the insurance company on the policy being introduced into the tenant's covenant to repair. For instance, if the policy renders the company responsible in case, not only of damage by fire, but of explosion by gas, the exception in the covenant to repair should be "damage by fire or explosion of gas excepted." The landlord ought not in reason to object to this exception, far (assuming the solvency of the insurance company) the only result of excluding it would be to benefit the insurance company.

IX RE COPE, COPE v. COPE, M.R., 29 W. R 98.

There has been considerable doubt about the powers of an administrator durante minore atate, and it is satisfactory to have this doubt dispelled by the authority of the Master of the Polls, though, if we may say so with deference, we should have been better satisfied if it had been necessary for the decision of the case to dispel it, and if in dispelling it, the learned judge had avoided the ** great-coat and walking-stick" style of decision, a style very unusual at the Rolls. We would humbly submit that neither Bacon's Abridgment, title Executors, nor Williams on Executors, is properly described as " obscure dicta in some musty old law books." At all events, this was not the view adopted by the Vice-Chancellor of Ireland m the very recent case of In re Robinson and Sards (L. R, It. 3 Ch. D. 429), where he said that ho looked "upon the authority of Mr. Justice Williams, in his book on Executors, as being nearly as conclusive as that of a judicial decision ;" and proceeded to adopt the language of Mr. Justice Williams, which he described as laying down the law on this subject as follows: "That an administrator durante minore mtate has but a limited and special property in the estate of the deceased, and no interest or benefit in the intestate's estate but in right ot the infant, though he may do all acts which are incumbent on on executor, and which are for the advantage of the infant and the estate of the deceased; he may, therefore, •ell bona peritura, as a bailiff may — such as fat cattle, grain, or anything else which may be the worse for keeping, and may sell goods for the payment of debts, and may sue and be sued. But he cannot do anything to the prejudice of the infant, and therefore he cannot sell the goods of the deceased any further than

may be necessary for payment of debts, nor can he sell a term of years during the minority of the infant."

In the recent case, an administrator durante minore oetate mortgaged his intestate's share in a general residue, and eventually sold the equity of redemption to the mortgagees. The infant next of kin impeached these transactions, and alleged that the mortgages and the sale were to their prejudice. The Master of the the Bolls held that the limit to the administration, in the case of an administrator durante minore atate, is the minority of the person, but there is no other limit. "He is an ordinary administrator. He is appointed for the very purpose of getting in the estate, aud paying the debts, and selling it in the usual way, and the property vests in him. I am of opinion that he clearly can sell for the purpose of paying the debts. In this case there is no doubt of there being debts, and there is no allegation that he sold for any other purposes. Then it is said that the sale is prejudicial. That may be. It very often is prej udicial for a man to pay his debts." The learned judge allowed a demurrer to the statement of claim.

The case before the Irish Vice-Chancellor does not appear to have been brought to the notice of the Master of the Bolls, but it will be obsorved that, although the observations of the learned judge were very sweeping, yet, if the sale was necessary for the purpose of paying deDts, his decision is not inconsistent with the law as laid down by Williams and adopted by the Irish Court.



A Treatise On The Law Op Merchant Shipping And Freight. By Jambs T. Foard, Barrister-at-Law. Stevens & Sons, and Waterlow & Sons, Limited.

If there is at present, as some of the legal profession complain, a lack of mercantile business, the law of merchant shipping does not, at any rate, lack expositors. Considering the large number of new treatises or new editions of works on this branch of the law which have recently been, or are shortly to be, published, we can hardly agree with Mr. Foard that a book of reference on the subject "seems most urgently needed." Still, the work which he has just published has its distinctive merits, the principal being, to our mind, that the book is brought within moderate limits as regards size, aud that the recent decisions on the subjects with which it deals are noted up with praiseworthy diligence and research. Indeed, as regards the latter point, Mr. Foard has, we think, erred on the side of excessive industry iu collecting and citing American decisions almost as profusely as those of our own courts. This is a practice which is very apt to lead to confusion, and would more properly, in our opinion, be confined to points of great nicety and difficulty, upon which light coming from any source is often valuable. Cited in the indiscriminate manner which Mr. Foard has adopted, they are apt to be misleading, especially for laymen, who cannot be expected to distinguish between the mystic symbols 5 Pick, and 5 App. C. However, it may, perhaps, be said that a legal treatise is always dangerous reading for the unin. itiated. Another merit of Mr. Foard's book is the carrying out an idea, which had often occurred to us as a useful one, of setting forth iu order the successive clauses in an ordinary charter-party and bill of lading, with the various decisions noted upon each clause. This plan affords great facility of reference, and at the same time is couveuient for noting up future cases as they occur.

Having said thus much in favour of the work, we feel bound to add that a certain amount of caution will be requisite for any student, or even practitioner, trusting to Mr. Foard as a guide ia this difficult subject. Brevia esse laboro, obscurus fio is, we fear, a criticism to which he not unfrequently lays himself open; whilst here and there the light which he holds forth seems to us, to say the best of it, a very dangerous one. To take one instance. Mr. Foard has, with great good sense, abstained from attempting to deal with marine insurance, a subject far too large to be considered in a treatise of this kind. In the chapter, however, upon general average, he seems to us to produce hopeless confusion by neglecting here and there to distinguish between, on the one hand, the mutual claim in this respect of ship, cargo and freight, and on the other, the right to reimbursement which these various interests may have at the hands of their underwriters in case they happen to be insured. Thus, under the heading of "Losses and Sacrifices," which "legal decisions have excluded as not fufilling the required conditions of general average," he states, as one instance (at p. 100), "Goods jettisoned which are insured," citing Dickenson v. Jardine and Kemp v. Halliday, per Shee, J. We really are at a loss to know what is meant by this. We can hardly suppose it to be seriously suggested that the right to contribution for goods jettisoned as between the goods jettisoned and the rest of the adventure, is in any wayjaffected by the fact that the former happen to be insured, and yet it is difficult to attach any other meaning to the words we have cited. That this is the author's meaning is corroborated by the note to another of the "Excluded Losses and Sacrifices"—viz., "Expenses incurred as extra wages, &c, by reason of a detention by princes." The authorities for this are contained in a foot-note as follows :—" Casaregis, 46, 49, 121; Benecke 234; Hall v. Janson (4 E. & B. 500). Policy being against sea risks; and on grounds that the underwriter is liable, and loss cannot be twice recovered: Kidston v. Marine Insurance Company (1 L. B. C. P. 535)." The italics are our own; we need say no more. So, again, in the same chapter, on page 94, in enumerating "some of the chief elements which constitute a general average loss and the conditions which are necessary to establish it," he mentions as a limitation (inter alia) that the sacrifice must be "4. To avert a greater loss—viz., a loss for which the underwriter would have been liable where the ship is insured." Here, again, the meaning of the canon is extremely obscure, whilst a reference in the note to Harris v. Scaramanga would lead the unwary reader to imagine that the rights inter se of the co-adventurers may be affected by the insurance of one of the contributory interests.

It is an invidious task to pick holes in a work of this kind, which has, as we have said, its merits, but we will give one more instance of the obscurity or inaccuracy which no careful reader can fail here and there to detect. At page 437 of the chapter headed "The Express Terms in Charter-parties" there is in the note to the ordinary clause of a charter-party, "And there deliver at freighter's risk and expense the same, &c, on being paid freight," the following statement of the law: "Whether the contract is for freight proper or for a certain sum due, independently of carriage, on the receipt of the goods, as on the words 'payable in London,' is a question for the jury: Lidgeit v. Perrin, 11 C. B. N. S. 362." The natural meaning to be attributed to this note, placed as it is, would surely be that the question whether freight is contracted for in a charter-party, or in other words the construction of the charter-party, is for the jury, a very startling proposition. All that Zidgett v. Perrin really decides, and probably all that Mr .Foard means, is that in some cases there is a question for the jury such as he indicates. In that case there was no charter-party at all. There was a verbal conversation as to the terms of shipment, followed by the signing of a bill of lading which was lost; and it was contended on the one side and denied on the other, that the true contract between the parties was that

stipulated for in the verbal conversation. All that the court decided was that "there clearly was a question for the jury whether the defendants (the shippers) had entered into a contract for the payment of the stipulated sum whether the vessel arrived or not." Mr. Foard's general statement founded upon this case is certainly misleading.

On the whole, however, while we consider that his work may prove a staff to pierce the hand of anyone leaning too heavily upon it, we think that for the practitioner who can walk with wary steps it may be found a useful book of reference. We doubt, however, whether such a work can be considered complete when not containing (as this does not) the existing Merchant Shipping Act set out in extenso.


Horse Warranty. The Law Relating To The PurChase, Sale, Letting, And Hiring Of Horses, Anz> The Bights And Liabilities Op Innkeepers, LiveryStable Keepers And Others Using Horses. By F. H. Lascelles, Barrister-at-Law. Second Edition. Beeves & Turner.

There is an opening for a book on this subject. Oliphant's work, which was a valuable compendium of the law at the time it was published, is now out of date, and we know of no subsequent attempt to supply the wants of practitioners until Mr. Lascelles published the first edition of his book on horse warranty in 1877. It was a very unpretending, but pleasantly written and practical little treatise, intended apparently more for the horse-buying and owning public than for the lawyer; and aimed especially at the knavish horse-dealer. Inv the present edition, Mr. Lascelles has enlarged the scope of his work, and has included the purchase and sale of horses, the rights and liabilities of innkeepers, liverystable keepers and others; the law as to hiring and letting horses, and the law as to driving and riding. The requisites for a valid contract for the sale of a horse are shortly stated in chapters 1 and 2. A legal readei will find them intelligible enough; but for the general public, it might have been desirable to explain the meaning of the phrase, "a valid bargain and sale at common law"; and of the expression, "the party to be charged " whose signature is required. In the chapter on the rights and liabilities of innkeepers, we observe aa extraordinary omission. We find no mention made of the statute passed in 1878 (41 & 42 Vict. c. 38) which enables an innkeeper to sell horses and carriages kept by him, after giving certain notices, and to repay himself out of the proceeds of sale the amount of the debt for their keep or expenses. The writer would seem to be entirely unaware of this Act, for he says (p. 97), referring to 26 & 27 Vict.c. 41, that the latter Act "exempts a horse or other live animal, or any gear appertaining; thereto, or any carriage. The law, therefore, so far as regards horses and carriages left at an inn, is much as it was before the passing of that Act"! And on p. 101 he says: "Nor can he [the innkeeper] sell the horse and so pay himself." This is certainly a moot unfortunate ovensight. On another matter in the same chapter, Mr. Lascelles has also gone far astray. He says (p. 107— the italics are ours): "Many questions arise between farmers and railway companies, by reason of the trains of the latter running over horses and cattle getting on to the line. There is no special law or rule on this subject. The great point for farmers or agisters to prove is that they have not been guilty of negligence in leaving their fences broken or unmended. Every man is bound to keep his horses or cattle properly confined." Is it possible that Mr. Lascelles is net aware of the statutory liability of railway companies to keep up their fences and to keep their gates shut P lathe chapter on riding and driving, some reference should have been made to the provisions of section 78 of the General Highway Act upon this subject. Wedo not observe many additions to the useful summary of decisions which constitute unsoundness, which was given in the former edition, nor does Mr. Lascelles seem to have kept a look•out on the horse cases reported in the Timet since his last edition was published. Such cases rarely find their way into the law reports, but they are nevertheless of considerable importance to the practitioner. For instance, a trial at the Surrey Assizes last year, relating to a " sandcrack " in the hoof, would have furnished some points of interest. This omission is excusable, but what is to be said of the want of all reference to the important case of Einehcliffe v. Barwick (28 W. E. 940), decided rjy the Court of Appeal in February last, which certainly ought to have followed the statement of Head v. Tattertoll (20 W. E. 115, L. E. 7 Ex. 7), on p. 41?

We regret to have to find so much fault with the new ■edition of this book, because we have always had a ■considerable admiration for the former edition. Mr. Lascelles would have done well either to keep the book within its former modest limits, or to take more care with his additions.


PRINCIPLES OF THE ADMINISTRATION OF ASSETS IM PayJibxt Of Debts. By A. S. Eddis, Esq., Q.C. Stevens & Suns.

We noticed last week the lectures recently published *bj Mr. Joshua Williams, Q.C, and we have here a course delivered by another professor to the Council of Legal ■Education. Mr. Eddis has wisely re-cast his lectures And presents them in the form of an elementary treatise, retaining a good deal of the ease and familiarity of the lecture, while gaining in conciseness of statement and clearness of arrangement. The book is indeed an excellent manual for the student; the principles are well brought out and illustrated, and the style is interesting. There are subjects—as, for instance, "executor's retainer "—on which we think more information might have been given, but in general the author has succeeded in avoiding baldness of statement on the one hand, and overloading with detail on the other. Commencing with a sketch of the origin and history of the jurisdiction of the Court of Chancery in the administration of assets, he considers the order of priority in payment of debts, secured and unsecured creditors, the rights of the creditor plaintiff, relief against the personal representative, administration of real estate, order of application of assets, marshalling and contribution, and the effect of the Judicature Acts. It is this last chapter which will be chiefly interesting to the practitioner. Mr. Eddis obviously prefers the interpretation of the 10th section of the Judicature Act, 1875, for which we have always contended—namely, that it is intended merely to substitute the rule in bankruptcy for the rules in Kellock's aue, and Maton v. Bogg. He says (p. 107), "There would be no real difficulty if it were held that the only object of this branch of the 10th section is to substitute, in the case of secured creditors, the rule of administration in bankruptcy for the rule of Mason v. Bogg, which had been previously established in equity. It would then only affect the amounts of the debts proveable and the consequent proportion of the dividends, and would leave the mode in which the proveable debts were to be paid, inter se, still governed by the previous practice. And this construction would be in harmony with the test of the section, for it is not said that the persons who under the preceding words may have acquired the title to prove and receive dividends, are to make the claims which they would be entitled to make according to the bankruptcy rules, but are to make those claims to which they would be entitled under the Judicature Act —according to the rules and practice of equity."

There has been," he adds, " at present, no judicial decision precisely defining the limits within which this part of the section is to operate; but all the cases which have occurred have shown a strong disposition to adopt

the more limited construction suggested above, however inconsistent it may be with the striot grammatical construction." The fact is, that the section is a bungle, and the only way out of the difficulties which arise on every hand with reference to it is to limit its operation as suggested. In his concluding chapters, Mr. Eddis deals with the Statutes of Limitations, and Further Consideration, and Costs.

CANADIAN LAW. Constitution Of Canada. The British North America Act, 1867; Its Interpretation, &c.; The Quebec Eesolutions Of 1864, And The Constitution Op The United States. By Joseph Doutre, Q.C., of the Montreal Bar. Montreal: Lovell & Sons London: Stevens & Haynes.

The Supreme Court of the United States, which Da Tocqueville described as at the head of all known tribunals, both by the nature of its rights and the class of justiceable parties which it controls, is no longer the only court which regulates the sphere of action of State Governments and a Federal Government. When the federation of the North American Colonies was effected by the Act of 1867, the want of such a judicial authority was felt, and it appears that the provincial courts assumed the jurisdiction of pronouncing upon the validity of the laws enacted by the Provincial Legislatures and the Parliament of Canada. A considerable number of the cases in the notes in the present volume, under different sections of the British North America Act, 1867, relate to this jurisdiction. Many of them are stated much more fully than is usual, and are, in fact, reported rather than stated. In addition, a large number of United States coses are given, and the notes also contain extracts from speeches, and, occasionally, apparently from newspaper or magazine articles. The author appears to have gathered together everything which can elucidate the object or construction of the sections of the Act.


[To the Editor of the Solicitors' Journal.']

Sir,—At the present time an important problem to be solved is how to make the Supreme Court of Judicature work with the greatest efficiency and, at the same time, with the greatest economy of j udicial time and labour.

That this result is not yet arrived at is, I think, obvious from the report in last Saturday's Times of the decision on an application for a new trial in Latter v. Braddell and wife and another. The action was for an assault and battery. The plaintiff was a domestic servant in the employment of the Braddells, and the action was grounded on her having been subjected to medical examination by the third defondant against her will. The report says: "At the trial the learned judge [Lindley, J.], at the end of the plaintiff's evidence, withdrew the case as against the Braddells, holding there was no evidence against them upon which a jury could reasonably act; and as against the remaining defendant, the case being tried out, a verdict in his favour was returned by the jury." A rule nisi was obtained for a new trial, on the grounds of misdirection as against the Braddells, and of the verdict being against evidence as against the remaining defendant. On cause being shown (before Lopes and Lindley, JJ.), Lopes, J., thought there should be a new trial on both grounds. Lindley, J., was of a contrary opinion, and of course the rule was refused.

Was there not in this case a failure both of efficiency and of economy of judicial time and labour? Surely, if a court to which an application is to be made for a new trial is to conbist of only two judges, neither of those judges should be the judge who presided at the trial?

Temple, Dec. 6. A. J. W.


Bill Of SaleStatement Of ConsiderationBills Of Sale Act, 1878, s. 8.—In a case of Ex parte Challinor, before the Court of Appeal on the 2nd inst., the question arose whether the consideration for a bill of sale had been set forth in it in complianoe with the provisions of section 8 of the Bills of Sale Act, 1878. The deed was expressed to be made in consideration of £560 then paid by the grantee to the grantor. In fact on'y £500 was paid in money to the grantor, £60 being retained by the grantee, who was the grantor's solicitor. Of this £60, £40 was retained in payment of the solicitor's costs of the preparation of the deed, and some other costs which the grantor owed him in respect of professional business previously transacted, the bill for which had not, however, been delivered; and the remaining £20 went to pay the charges of an auctioneer who had been employed to value the property with a view to the making of the advance. BacoD, C.J. held that the consideration had not been truly stated, and that the deed was void as against the trustee in the liquidation of the grantor. The Court of Appeal (james, Cotton, nnd Lush, LJJ) reversed the decision. They said that the satisfaction of the prior debt for costs was equivalent to payment to the grantor of the amount of it, and that a mortgagor is always liable to pay the costs of the preparation of the mortgage deed and the expenses of a valuation of the mortgaged property with a view to the advance, and that it is always the practice to deduct those costs and expenses from the mortgage money. The grantee therefore had received the £560 in money or its equivalent, and the consideration had been truly stated. The court distinguished the case from Ex parte The Charing Cross Advance and Deposit Bank {ante, p. 47), on the ground that there the retainer by the grantees out of the sum stated as the consideration was made in respect of bonus and prospective interest on the sum actually advanced. Another point, upon which Bacon, C.J., had expressed no opinion, arose thus: the bill of sale was given to seenre, not only the £560, but also the amount for the time being due upon a mortgage of real estate which had been previously given by the grantor to the grantee, and the bill of sale contained a recital that there was then due on the mortgage the sum of £1,045. There was, in fact, at the time of the execution of the bill of sale, a further sum of £321 dnc on the mortgage, but that sum was also secured by a bill of exchange which had not matured. It was contended that the whole sum due on the mortgage ought to have been stated. But the court said that the consideration for a deed is that which the grantor receives for executing it, and that the amount secured by the deed is not the consideration intended by section 8.— Bclicitobs, /. Teace; Pitmin <fc Lane.

Bankruptcy PetitionDisputed Debt—Stay Of ProCeedingsBankruptcy Rules, 1870, R. 43.—In a case of Ex parte Yeatman, before the Court of Appeal on the 2nd inst., a question arose npon the construction of rnle 43 of the Bankruptcy Ilnles, 1870, which provides that, "where proceedings on a [bankruptcy] petition have been stayed for the trial of the question of the validity of the petitioning creditor's debt, and snch question has been deoided in favour of the validity of the debt, the petitioning creditor may apply to the registrar to fix a day on which further proceedings on the petition may be had, and the registrar, on prodnction of the judgment of the court in whioh the question was tried, or an office copy thereof, shall give notice to the petitioner by post of the time and place fixed for the hearing of the petition, and a like notice to tbe debtor at the address given in his notioe to dispute." Tbe oonrt (james, Cotton, and I.uph, L J J.) held, that under this rule, after the validity of the debt has been established by the judgment of tbe court of first instance, the registrar has a judicial discretion to fix a time for the further hearing ot the petition, and that he is not bound to await the final determination of the validity of the debt by the Court of Appeal or the HouBe of Lords, even though notioe of an nppeal has been given. In the particular oase the order fixing the time for the further hearing was obtained irregularly. But the debtor's solicitor attended at the time fixed, and took no objection on the gronnd of irregularity, and an order was made in his presence again adjourning the bear

J ing of tbe petition. No proper notice of the day appointee? for the adjourned hearing was afterwards given to the debtor, and he, in faot, did not know of the appointment, and did not attend it, and an adjudication was made against him in his absence. The court held that the original irregularity had been cured by the attendance of the debtor's solioitor without objeotion at the first adjourned hearing, and that, oonseqnently, the order for the second adjournment must be treated as having been made in the debtor's presenoe, and it was nnnecessary to give him any farther notice of the time fixed for the second adjourned hearing. Bat the appeal from the adjudication was ordered to stand over on another ground, the advertisement of the adjudication being stayed meanwhile—Solicitors, E. Hawkins; Bolton, Rabbins, & Busk.

Appeal Jsy Trustee In Bankruptcy Removal Of TrusteeCosts.—In a case of Ex parte Sheard, before the Court of Appeal ou the 2nd inst., the trustee in a bankruptcy had given notice of appeal from the admission of a proof against tbe bankrupt's estate. Before the appeal came on for hearing the appellant had by the order of the conrt been removed from his office, and a new trustee had been appointed, who declined to prosecute the appeal. The court then held that the appellant had no locus standi, but they ordered the appeal to stand over for a fortnight, to ascertaiu whether any of tbe creditors were desirous of prosecuting it (ante. p. 72). At the end of the fortnight no creditor had come forward to adopt the appeal, and the respondent's counsel asked that a personal order might be made against the appellant, dismissing the appeal with costs. The court (james, Cotton, and Lush, L.JJ.), however, held that the appellant could not be made personally liable for the costs. But they held that the appeal must be taken to have been presented by the appellant, as the agent of , the creditors, and the sum deposited on setting down the appeal to have been the creditors' money. Consequently, the respondent was entitled to an order for the payment ot his costs out of the deposit, so far as that would extend.—Solicitors, Harper, Broad, <Si Battcock; S. Toppin.

PracticeApplication To Dismiss Appeal ?cr Waht Op ProsecutionConstitution Of Court Op AppealJudicature Act, 1875, s. 4.—In a case of In re Stanbank, before the Conrt of Appeal on the 1st inst., an application was made by the plaintiff to dismiss for want of prosecution an appeal which had been presented by the defendant more than three years ago. The defendant had been ordered to give security for the costs of the appeal, and had not done so. The appeal was from a decision of Jessel, M.R., and the question was raised whether, having regard to tbe fact that Jessel, M.R., was one of the members of the Court of Appeal as then constituted, and to the provision of section 4 of the Judicature Act, 1875, that "no judge of the Court of Appeal shall sit as a judge on the hearing of an appeal from any judgment or order made by himself," the court Bo constituted was competent to deal with the application. The court (jessel, M.R., Cotton and Lush, L.JJ.) held that section 5 did not apply. And they dismissed the appeal, with costs, observing that after the lapse of time tbe order was a matter of course.—Solicitors, Bower $ Cotton.

PracticeAssignment Of Subject-matter Of Actioni Substitution or Assignee As PlaintiffTitle op ActionOrd. 50, R. 3—Ord. 16, R. 13.—In a case of Seear v. Lawson, before the Court of Appeal on the 1st inst., the question arose whether, when an order has beeu made, snbstituting a new plaintiff in an action for the original plaintiff, who has lost his interest in the subject-matter, any alteration ought to be made in the title of tbe action. The action was brought by the trustee of a bankrupt, claiming on behalf of the estate to redeem that which be alleged to have been a mortgage executed by the bankrupt. The trustee afterwards assigned his interest in tbe subject-matter of the action to H. \V. Chatterton, for value, and Cbatterton obtained the common order of course at the Rolls, under rule 3 of order 50, giving him liberty "to carry on and prosecute the action and the proceedings therein in like manner as the same might have been carried on and prosecuted by tho plaintiff if he had not assigned bis interest." The Conrt oS Appeal afterwards decided (28 W. R. 763, L. R. 15 Cb. IV

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