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order being made, however, no property is vested in the that this dealt only with his right of proof, and not with liquidator by virtue of the Companies Acts; and there his right to receive dividends. Some judges have, is no relation back. In order, then, that every right of however, refused to apply bankruptcy ruies in winding & creditor of a company in course of being wound up ( up companies, on the ground that section 10 made them may be the same as the right of a creditor of a bankrupt, applicable only in the case of insolvent companies the High Court would have to make considerable altera (Moor v. Anglo-Italian Bank, 27 W. R. 652, L. R. 10 tions in the Companies Acts. We come, then, to the Ch. D. 681 ; Re Richards and Company, 27 W. R. 530, conclusion that the Legislature could not have intended L. R. 11 Ch. D. 676; Re Stanhope Silkstone Collieries what the literal meaning of the words of the section Company, 27 W. R. 561, L. R. 11 Ch. D. 160). We seems to imply.

venture to think that this is not a sufficient reason for It is then, we presume, the duty of the court to guess deciding once for all that the bankruptcy rule is not to what the Legislature intended by this very remark be applied; particularly when, as was the case in Re able section. Now, before the Judicature Act, a

Richards and Company, and Re Stanhope Silkstone creditor of a company holding security was entitled Collieries Company, there was every reason for thinking to prove in the winding up for the whole of his that the company would not be able to pay its creditors debt (Kellock's case, 16 W. R. 688, L. R. 3 Ch. 769); and the costs of winding up. whilst the rule in bankruptcy was that he must realize

The second 'method of construction of the section or value his security, and prove for the balance only. seems to have been adopted by the Master of the Rolls in We think that the intention of the 10th section of the

| Re Albion Steel and Wire Company (26 W. R. 348, Judicature Act, as regards the rights of creditors, was

L. R. 7 Ch. D. 547), and Re Printing and Numerical merely to make this bankruptcy rule applicable in the Registering Company (26 W. R, 627, L. R. 7 Ch. D. 535). winding up of companies and in the administration of By section 32 of the Bankruptcy Act, local rates and estates.

| clerks' salaries have priority. The Master of the Rolls The judges of the High Court entertain curiously

held in Re Albion Steel and Wire Company that section different views as to the language of this section. Thus

10 of the Judicature Act did not give local rates priority Bacon, V.C., in Re Stockton Iron Furnace Company (27

| in the winding up; and yet, in Re Norton Ironworks W. R. 433, L. R. 10 Ch. D. 335), says, “ I can hardly con.

Company (26 W. R. 53) he gave clerks' salaries priority. ceive any words in which the meaning could be more

We are unable to reconcile these decisions. In Re distinctly expressed or an enactment more plain and

Printing and Numerical Registering Company he positive"; and afterwards in Re General Works Company

decided that an execution creditor is a secured creditor (L. R. 12 Ch. D. 755), he said it was “ plain enough in its |

within the meaning of the 10th section, and then he terms,” and yet, in that case, he decided that the rule that

applied that section to him to deprive him of his a contributory cannot set off a judgment debt due to him

security. from the company against calls made upon him by the

The third construction has been put on the section official liquidator in the winding up of the company, has

by Vice-Chancellor Malins in Re Coal Consumers' been affected by the section-a decision, we venture to

Association (25 W. R. 300, L. R. 4 Ch. D. 625), and by think, in direct opposition to the grammatical meaning

James, L.J., in iee v. Nuttall (27 W. R. 805, L. R. 12 of the words of the section. On the other hand, Mr.

Ch. D. 61). In the latter case it was decided that an Justice Fry thinks the words somewhat obscure (Re West

executor's right of retainer was not affected by the of England Bank, 27 W. R. 869, L. R. 12 Ch. D. 823);

section, and James, L.J., said, “ The sole object of the and the Master of the Rolls says, “ What the precise

section, as it appears to me, was to get rid of the rule in meaning of the section is, I think, no one can positively

chancery under which a secured creditor could prove for say(Re Printing and Numerical Registering Company,

the full amount of his debt and realize his security 26 W. R. 627, L. R. 7 Ch. D. 535).

afterwards, and to put him on the same footing as in

| bankruptcy-where he was only entitled to prove for the Three interpretations have been put upon the section

| balance after realizing or valuing his security." Decisions by the judges-(1) the literal one; (2) a construction

in accordance with the limited construction of the giving a peculiar force to the word “respective," and

section have also been given in Re Knott (L. R. 7 Ch. D. reading the words “respective rights of secured and

| 549 (n)); Ex parte Railway Steel and Plant Company unsecured creditors" as if it had been "rights of secured

(L. R. 8 Ch. D. 183); Smith v. Morgan (L. R. 5 C. P. D. creditors as against unsecured creditors ;” and (3) the

337); and Re Bridgewater Engineering Company (L. R. one for which we contend.

12 Ch. D. 181). But as no reason is given for these Vice-Chancellor Bacon, and Mr. Justice Fry have

decisions, they do not greatly assist the present disgiven effect to the literal meaning. Thus Bacon, 1

cussion. V.C., in Re Stockton Iron Furnace Company (27)

We have only now to refer to the decision in the case of W. R. 433, L. R. 10 Ch. D. 335), decided that

Re Westbourne Grove Drapery Company (25 W. R. 509, the reputed ownership rule applied to the winding up

L. R. 5 Ch. D. 248), that a lessor of a company is not by of companies. On appeal, the view taken by the court

section 10 enabled to prove in respect of future rent made it unnecessary to decide the point. We may here

due under the lease, there being no rent then in arrear. mention that this case was not followed by the Master

The reason given for the decision is that in bankruptcy of the Rolls in Re Crumlin Viaduct Works Company |

the trustee may disclaim, whilst this section did not (27 W. R. 722, L. R. 11 Ch. D. 755). But the reason

enable the liquidator to do so. given by the Master of the Rolls for his decision was

It will be seen, then, that we think the decision of that the rule as to reputed ownership did not affect

Mr. Justice fry in Re Richards and Company correct the rights of creditors of the bankrupt at all, but the ! (although we arrive at the result by a different process of true owners of property. We would venture to suggest reasoning); and that the question at the commencement of that it does affect their rights; because, if it is not this article should be answered in the negative. 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 Re West of England Bank

The following are the circuits chosen by the judges for the (27 W. R. 869, L. R. 12 Ch. D. 823), where he

ensuing Winter Assizes, at which both civil and criminal work

will be taken :-Western Circuit, Lord Justice Baggallay held that a creditor of a banking company in liquida

and Mr. Justice Lopes ; North-Eastern, Lord Jastice Lush tion, who is also a shareholder in the company, is

and Mr. Justice Manisty ; Northern, Mr. Justice Field entitled to receive a dividend on his debt, if he has and a Commissioner; Midland, Mr. Justice Denman and a paid all the calls made on him; and that this section Commissioner ; South-Eastern, Mr. Justice Lindley and Mr. had not altered his right. The ground of the decision | Justice Hawkins ; North Wales, Mr. Justice Fry ; South was that the only part of the section material to the Wales, Mr. Justice Stephen ; Oxford, Mr. Justice Williams case was “as to debts and liabilities proveable," and and a Cominissioner.

may be necessary for payment of debts, nor can he RECENT DECISIONS.

sell a term of years during the minority of the infant."

In the recent case, an administrator durante minore

cetate mortgaged his intestate's share in a general resiDARRELL •. TIBBITTS, C.A., 29 W. R. 66. due, and eventually sold the equity of redemption to The principle that a contract for insurance against fire the mortgagees. The infant next of kin impeached in the ordinary form is a contract of indemnity only, these transactions, and alleged that the mortgages and was finally settled by the Court of Appeal in North the sale were to their prejudice. The Master of the British and Vercantile Insurance Company v. London,

the Rolls held that the limit to the administration, in Liverpool, and Globe Insurance Company (L. R. 5 Ch. the case of an administrator durante minore cetate, D. 576), and in that case it was held that if the assured, is the minority of the person, but there is no other having a right to indemnity against a third person, came

limit. “He is an ordinary administrator. He is apupon the insurance company, the latter were entitled to pointed for the very purpose of getting in the estate, and be subrogated in the place of the assured. The decision paying the debts, and selling it in the usual way, and in the present case is a necessary consequence of the the property vests in him. I am of opinion that he doctrine thus laid down. A landlord let a house by a

clearly can sell for the purpose of paying the debts. In lease which contained a covenant binding the tenant to this case there is no doubt of there being debts, and repair in case of damage to the house by explosion of there is no allegation that he sold for any other pur. gas, and a covenant by the landlord to insure the house.

poses. Then it is said that the sale is prejudicial. That The landlord insured by a policy which extended to may be. It very often is prejudicial for a man to pay damage by explosion of gas; damage by a gas explosion

his debts.” The learned judge allowed a demirrer to occurred; the tenant repaired the damage; the insurance the statement of claim. company paid compensation under the policy, but, on dis The case before the Irish Vice-Chancellor does not covering that the tenant had repaired the damage, brought appear to have been brought to the notice of the an action to recover the compensation. It was held that Master of the Rolls, but it will be observed that, although they were entitled to recover it. The chief interest the observations of the learned judge were very sweeping, of this decision lies in its effect on the forms of leases of yet, if the sale was necessary for the purpose of paying houses. It is clear that for the future, wherever al debts, his decision is not inconsistent with the law landlord is willing to covenant to insure and to apply the as laid down by Williams and adopted by the Irish insurance moneys in rebuilding, the tenant ought to insist

Court. on an exception exactly corresponding to the liability of the insurance company on the policy being in. troduced into the tenant's covenant to repair. For instance, if the policy renders the company responsible

REVIEWS. in case, not only of damage by fire, but of explosion by gas, the exception in the covenant to repair should be

MERCHANT SHIPPING. “damage by fire or explosion of gas excepted.” The

A TREATISE ON THE LAW OF MERCHANT SHIPPING AND landlord ought not in reason to object to this exception, for (assuming the solvency of the insurance company)

FREIGHT. By JAMES T. FOARD, Barrister-at-Law. the only result of excluding it would be to benefit the

Stevens & Sons, and Waterlow & Sons, Limited. insurance company.

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

Considering the large number of new treatises or new There has been considerable doubt about the powers editions of works on this branch of the law which have of an administrator durante minore cetate, and it is satis recently been, or are shortly to be, published, we can factory to have this doubt dispelled by the authority of hardly agree with Mr. Foard that a book of reference on the Master of the Rolls, though, if we may say so with the subject “seems most urgently needed." Still, the deference, we should have been better satisfied if it had work which he has just published has its distinctive been necessary for the decision of the case to dispel it, and , merits, the principal being, to our mind, that the book if in dispelling it, the learned judge had avoided the is brought within moderate limits as regards size, and * great-coat and walking-stick” style of decision, a style that the recent decisions on the subjects with which it very unusual at the Rolls. We would humbly submit that deals are noted up with praiseworthy diligence and reCeither Bacon's Abridgment, title Executors, nor Williams search. Indeed, as regards the latter point, Mr. Foard on Executors, is properly described as “ obscure dicta has, we think, erred on the side of excessive industry in some musty old law books.” At all events, this was in collecting and citing American decisions almost as not the view adopted by the Vice-Chancellor of Ireland profusely as those of our own courts. This is a practice in the very recent case of In re Robinson and Sords which is very apt to lead to confusion, and would more (L. R. Ir. 3 Ch. D. 429), where he said that he looked properly, in our opinion, be confined to points of great "upon the authority of Mr. Justice Williams, in his book nicety and difficulty, upon which light coming from any on Esecutors, as being nearly as conclusive as that of a | source is often valuable. Cited in the indiscriminate judicial decision;" and proceeded to adopt the manner which Mr. Foard has adopted, they are apt to be language of Mr. Justice Williams, which he described as misleading, especially for laymen, who cannot be expected laying down the law on this subject as follows: to distinguish between the mystic symbols 5 Pick. and "That an administrator durante minore ætate has | 5 App. C. However, it may, perhaps, be said that a bat & limited and special property in the estate legal treatise is always dangerous reading for the unin. of the deceased, and no interest or benefit in itiated. Another merit of Mr. Foard's book is the the intestate's estate but in right of the infant, carrying out an idea, which had often occurred to us as though he may do all acts which are incumbent a useful one, of setting forth in order the successive on an executor, and which are for the advantage of the clauses in an ordinary charter-party and bill of lading, infant and the estate of the deceased; he may, therefore, with the various decisions noted upon each clause. This sell bona peritura, as a bailiff may such as fat | plan affords great facility of reference, and at the same cattle, grain, or anything else which may be the time is convenient for noting up future cases as they worse for keeping, and may sell goods for the payment occur. of debts, and may sue and be sued. But he cannot do Having said thus much in favour of the work, we feel anything to the prejudice of the infant, and therefore he bound to add that a certain amount of caution will be cannot sell the goods of the deceased any further than requisite for any student, or even practitioner, trusting

to Mr. Foard as a guide in this difficult subject. stipulated for in the verbal conversation. All that the Brevis esse laboro, obscurus fio is, we fear, a court decided was that “there clearly was a question for criticism to which he not unfrequently lays himself the jury whether the defendants (the shippers) had open ; whilst here and there the light which he holds entered into a contract for the payment of the stipulated forth seems to us, to say the best of it, a very dangerous sum whether the vessel arrived or not.” Mr. Foard's one. To take one instance. Mr. Foard has, with great general statement founded upon this case is certainly good sense, abstained from attempting to deal with misleading. marine insurance, a subject far too large to be considered | On the whole, however, while we consider that his in a treatise of this kind. In the chapter, however, upon work may prove a staff to pierce the hand of anyone general average, he seems to us to produce hopeless con. leaning too heavily upon it, we think that for the prac.. fusion by neglecting here and there to distinguish titioner who can walk with wary steps it may be found between, on the one hand, the mutual claim in this a useful book of reference. We doubt, however, respect of ship, cargo and freight, and on the other, the whether such a work can be considered complete when right to reimbursement which these various interests may not containing (as this does not) the existing Merchant have at the hands of their underwriters in case they Shipping Act set out in extenso. happen to be insured. Thus, under the heading of Losses and Sacrifices," which “legal decisions have

HORSE WARRANTY. excluded as not fufilling the required conditions of general average," he states, as one instance (at p. 100),

HORSE WARRANTY. THE LAW RELATING TO THE PUR“ Goods jettisoned which are insured,” citing Dickenson CHASE, SALE, LETTING, AND HIRING OF HORSES, AND V. Jardine and Kemp v. Halliday, per Shee, J. We THE RIGHTS AND LIABILITIES OF INNKEEPERS, LIVERY. really are at a loss to know what is meant by this. We STABLE KEEPERS AND OTHERS USING HORSES. By can hardly suppose it to be seriously suggested that the F. H. LASCELLES, Barrister-at-Law. SECOND EDITION. right to contribution for goods jettisoned as between the Reeves & Turner. goods jettisoned and the rest of the adventure, is in any There is an opening for a book on this subject. Oliway affected by the fact that the former happen to be phant's work, which was a valuable compendium of the insured, and yet it is difficult to attach any other mean

other mean- | law at the time it was published, is now out of date, and ing to the words we have cited. That this is the author's

we know of no subsequent attempt to supply the wants meaning is corroborated by the note to another of of practitioners until Mr. Lascelles published the first the “Excluded Losses and Sacrifices"- viz., “Expenses edition of his book on horse warranty in 1877. It was incurred as extra wages, &c., by reason of a detention

a very unpretending, but pleasantly written and pracby princes." The authorities for this are contained in a tical little treatise, intended apparently more for the foot-note as follows:-" Casaregis, 46, 49, 121; Benecke

horse-buying and owning public than for the lawyer; 234; Hall v. Janson (4 E. & B. 500). Policy being

ouicy being and aimed especially at the knavish horse-dealer. In against sea risks; and on grounds that the underwriter the present edition, Mr. Lascelles has enlarged the scope is liable, and loss cannot be twice recovered : Kidston v. of his work, and has included the purchase and sale of Marine Insurance Company (1 L. R. C. P. 535).”

horses, the rights and liabilities of innkeepers, livery. The italics are our own; we need say no more. stable keepers and others; the law as to hiring and So, again, in the same chapter, on page 94, in

letting horses, and the law as to driving and riding, enumerating “some of the chief elements which The requisites for a valid contract for the sale of a horse constitute a general average loss and the conditions

are shortly stated in chapters 1 and 2. A legal reader which are necessary to establish it," he mentions as will find them intelligible enough ; but for the general a limitation (inter alia) that the sacrifice must be

public, it might have been desirable to explain the “4. To avert a greater loss- viz., a loss for which the

meaning of the phrase, “ a valid bargain and sale at underwriter would have been liable where the ship is

common law "; and of the expression, “ the party to be insured.” Here, again, the meaning of the canon is ex charged " whose signature is required. In the chapter tremely obscure, whilst a reference in the note to on the rights and liabilities of innkeepers, we observe an Harris v. Scaramanga would lead the unwary reader to extraordinary omission. We find no mention made of imagine that the rights inter se of the co-adventurers may the statute passed in 1878 (41 & 42 Vict. c. 38) which be affected by the insurance of one of the contributory

e of one of the contributory | enables an innkeeper to sell horses and carriages kept by interests.

him, after giving certain notices, and to repay himself It is an invidious task to pick holes in a work of

vidious task to pick holes in a work of out of the proceeds of sale the amount of the debt for this kind, which has, as we have said, its merits, but their keep or expenses. The writer would seem to be we will give one more instance of the obscurity or entirely unaware of this Act, for he says (p. 97), referinaccuracy which no careful reader can fail here and ring to 26 & 27 Vict. c. 41, that the latter Act “exempts there to detect. At page 437 of the chapter headed a horse or other live animal, or any gear appertaining “ The Express Terms in Charter-parties" thero is in thereto, or any carriage. The law, therefore, so far as the note to the ordinary clause of a charter-party, regards horses and carriages left at an inn, is much as it “ And there deliver at freightor's risk and expense was before the passing of that Act”! And on p. 101 he the same, &c., on being paid freight,” the following says: “Nor can he [the innkeeper] sell the horse and so statement of the law : “Whether the contract is for pay himself.” This is certainly a most unfortunate overfreight proper or for a certain sum due, independently sight. On another matter in the same chapter, Mr. of carriage, on the receipt of the goods, as on the words Lascelles has also gone far astray. He says (p. 107–

payable in London,' is a question for the jury: Lid the italics are ours) : “Many questions arise between gett v. Perrin, 11 C. B. N. S. 362.” The natural meaning farmers and railway companies, by reason of the trains to be attributed to this note, placed as it is, would surely of the latter running over horses and cattle getting on be that the question whether freight is contracted for in a to the line. There is no special law or rule on this charter-party, or in other words the construction of the subject. The great point for farmers or agisters to charter-party, is for the jury, a very startling pro prove is that they have not been guilty of negligence position. All that Lidgett v. Perrin really decides, and in leaving their fences broken or unmended. Every probably all that Mr.Foard means, is that in some cases man is bound to keep his horses or cattle properly conthere is a question for the jury such as he indicates. In fined.” Is it possible that Mr. Lascelles is not that case there was no charter-party at all. There was a aware of the statutory liability of railway companies to verbal conversation as to the terms of shipment, followed keep up their fences and to keep their gates shut ? In by the signing of a bill of lading which was lost; and it the chapter on riding and driving, some reference should was contended on the one side and denied on the other, have been made to the provisions of section 78 of the that the true contract between the parties was that General Highway Act upon this subject. We do not observe

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many additions to the useful summary of decisions which the more limited construction suggested above, however .constitute unsoundness, which was given in the former | inconsistent it may be with the strict grammatical con.

edition, nor does Mr. Lascelles seem to have kept a look-struction." The fact is, that the section is a bungle, and out on the horse cases reported in the Times since his | the only way out of the difficulties which arise on Last edition was published. Such cases rarely find their every hand with reference to it is to limit its operation way into the law reports, but they are nevertheless of as suggested. In his concluding chapters, Mr. Eddis considerable importance to the practitioner. For in. | deals with the Statutes of Limitations, and Further Con. stance, a trial at the Surrey Assizes last year, relating to sideration, and Costs. a "sandcrack" in the hoof, would have furnished some points of interest. This omission is excusable, but what

CANADIAN LAW. is to be said of the want of all reference to the important

CONSTITUTION OF CANADA. THE BRITISH NORTH AMERICA case of Hinchcliffe v. Barwick (28 W. R. 940), decided

Act, 1867 ; ITS INTERPRETATION, &c.; THE QUEBEC by the Court of Appeal in February last, which certainly

RESOLUTIONS OF 1864, AND THE CONSTITUTION OF THE ought to have followed the statement of Head v. Tatter

UNITED STATES. By Joseph Doutre, Q.C., of the soll (20 W. R. 115, L. R. 7 Ex. 7), on p. 41 ?

Montreal Bar. Montreal : Lovell & Sons London : We regret to have to find so much fault with the new

Stevens & Haynes. edition of this book, because we have always had a considerable admiration for the former edition. Mr.

The Supreme Court of the United States, which De Lascelles would have done well either to keep the book

Tocqueville described as at the head of all known tri. within its former modest limits, or to take more care

bunals, both by the nature of its rights and the class of with his additions.

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 ADMINISTRATION OF ASSETS.

federation of the North American Colonies was effected PRINCIPLES OF THE ADMINISTRATION OF ASSETS IN PAY

by the Act of 1867, the want of such a judicial authority MENT OF DEBTs. By A. S. Eddis, Esq., Q.C. Stevens

was felt, and it appears that the provincial courts & Sons.

assumed the jurisdiction of pronouncing upon the

validity of the laws enacted by the Provincial Legisla. We noticed last week the lectures recently published tures and the Parliament of Canada. A considerable by Mr. Joshua Williams, Q.C., and we have here a course number of the cases in the notes in the present volume, delivered by another professor to the Council of Legal under different sections of the British North America Education. Mr. Eddis has wisely re-cast his lectures Act, 1867, relate to this jurisdiction. Many of them and presents them in the form of an elementary treatise, are stated much more fully than is usual, and are, in retaining a good deal of the ease and familiarity of the fact, reported rather than stated. In addition, a large lecture, while gaining in conciseness of statement and number of United States cases are given, and the notes clearness of arrangement. The book is indeed an ex

also contain extracts from speeches, and, occasionally, cellent manual for the student; the principles are well apparently from newspaper or magazine articles. The brought out and illustrated, and the style is interesting author appears to have gathered together everything There are subjects—as, for instance, “executor's re- which can elucidate the object or construction of the tainer"-on which we think more information might sections of the Act. 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 & sketch of the origin and history of the jurisdiction of the Court of Chancery in the administration of assets, he

DIVISIONAL COURTS. considers the order of priority in payment of debts, secured and unsecured creditors, the rights of the

[To the Editor of the Solicitors' Journal.] creditor plaintiff, relief against the personal representa- Sir,-At the present time an important problem to be tive, administration of real estate, order of application solved is how to make the Supreme Court of Judicature of assets, marshalling and contribution, and the effect work with the greatest efficiency and, at the same time, of the Judicature Acts. It is this last chapter which with the greatest economy of judicial time and labour. will be chiefly interesting to the practitioner. Mr. Eddis That this result is not yet arrived at is, I think, -obviously prefers the interpretation of the 10th section obvious from the report in last Saturday's Times of the of the Judicature Act, 1875, for which we have always decision on an application for a new trial in Latter v. contended-namely, that it is intended merely to sub-Braddell and wife and another. The action was for an stitute the rule in bankruptcy for the rules in Kellock's assault and battery. The plaintiff was a domestic servant -case, and Mason v. Bogg. He says (p. 107), “There in the employment of the Braddells, and the action was vould be no real difficulty if it were held that the only grounded on her having been subjected to medical exobject of this branch of the 10th section is to substitute, amination by the third defondant against her will. The in the case of secured creditors, the rule of administra- report says: “At the trial the learned judge (Lindley, J.], tion in bankruptcy for the rule of Mason v. Bogg, which at the end of the plaintiff's evidence, withdrew the case had been previously established in equity. It would as against the Braddells, holding there was no evidence then only affect the amounts of the debts proveable and against them upon which a jury could reasonably act; the consequent proportion of the dividends, and would and as against the remaining defendant, the case being leave the mode in which the proveable debts were to be tried out, a verdict in his favour was returned by the paid, inter se, still governed by the previous practice. jury.” A rule nisi was obtained for a new trial, on the And this construction would be in harmony with the grounds of misdirection as against the Braddells, and of rest of the section, for it is not said that the persons the verdict being against evidence as against the remain. who under the preceding words may have acquired the ing defendant. On cause being shown (before Lopes title to prove and receive dividends, are to make the and Lindley, JJ.), Lopes, J., thought there should be a claims which they would be entitled to make according new trial on both grounds. Lindley, J., was of a conto the bankruptcy rules, but are to make those claims to trary opinion, and of course the rule was refused. which they would be entitled under the Judicature Act Was there wot in this case a failure both of efficiency -i.e., according to the rules and practice of equity." | and of economy of judicial time and labour ? Surely, if « There has been," he adds," at present, no judicial de- a court to which an application is to be made for a new cision precisely defining the limits within which this trial is to consist of only two judges, neither of those part of the section is to operate; but all the cases which judges should be the judge who presided at the trial ? have occurred have shown a strong disposition to adopt Temple, Dec. 6.

A. J. W.


{ing of the petition. No proper notice of the day appointed CASES OF THE WEEK. for the adjourned hearing was afterwards given to the

debtor, and be, in fact, did not know of the appointment, BILL OF SALE-STATEMENT OF CONSIDERATION-BILLS

and did not attend it, and an adjudication was made against OF SALE Act, 1878, 8. 8.-In a case of Ex parte Challinor,

him in his absence. The court held that the original irregabefore the Court of Appeal on the 2nd inst., the question larity had been oured by the attendance of the debtor's arose wbether the consideration for a bill of sale had been

solicitor withont objection at the first adjourned hearing, set forth in it in compliance with the provisions of section

and that, consequently, the order for the second adjourn8 of the Bills of Sale Act, 1878. The deed was expressed

ment must be treated as having been made in the debtor's. to be made in consideration of £560 then paid by the gran.

presence, and it was unnecessary to give him any further tee to the grantor. In fact on'y £500 was paid in money

notice of the time fixed for the second adjoarned hearing. to the grantor, 260 being retained by the grantee, who But the appeal from the adjudication was ordered to stand was the grantor's solicitor. Of this £60, £40 was retained over on another ground, the advertisement of the adjudi. in payment of the solicitor's costs of the preparation of the cation being stayed meanwhilo-SOLICITORS, E. Howkins; deed, and some other costs which the graptor owed him in Bolton, Robbins, &: Busk. respect of professional business previously transacted, the bill for which had not, however, been delivered ; and the re

APPEAL BY TRUSTEE IN BANKRUPTCY - REMOVAL OF maining £20 went to pay the charges of an auctioneer who had been employed to value the property with a view to the

TRUSTEE-Costs. In a case of Ex parte Sheard, before the making of the advance. Bacon, C.J. held that the considera.

Court of Appeal on the 2nd inst., the trustee in a bankruptcy tion had not been truly stated, and that the deed was void as

had given notice of appeal from the admission of a proof against the trustee in the liquidation of the grantor. The

against the bankrupt's estate. Before the appeal camo on for Court of Appeal (JAMES, COTTON, and LUSH, L.JJ) re

hearing the appellant had by the order of the court been reversed the decision. They said that the satisfaction of the

moved from his office, and a new trustee had been appointed,

who declined to prosecute the appeal. The court then held prior debt for costs was equivalent to payment to the gran. tor of the amount of it, and that a mortgagor is always

that the appellant had no locus standi, but they ordered the liable to pay the costs of the preparation of the mortgage

appeal to stand over for a fortnight, to ascertain whether any deed and the expenses of a valuation of the mortgaged

of the creditors were desirous of prosecuting it (ante, p. 72). property with a view to the advance, and that it is always

At the end of the fortnight no creditor had come forward to the practice to deduct those costs and expenses from the

adopt the appeal, and the respondent's counsel asked that a mortgage money. The grantee therefore had received the

personal order might be made against the appellant, dis£560 in money or its equivalent, and the consideration had been

w.issing the appeal with costs. The court (JAMES, COTTON, truly stated. The court distinguished the case from Ex parte

and LUSH, L.JJ.), however, held that the appellant could The Charing Cross Advance and Deposit Bank (ante, p. 47),

not be made personally liable for the costs. But they held on the ground that there the retainer by the grantees out

that the appeal must be taken to have been presented by the

appellant, as the agent of the creditors, and the sum deof the sum stated as the consideration was made in respect of bonus and prospective interest on the sum actually ad.

posited on setting down the appeal to have been the creditors'

money. Consequently, the respondent was entitled to an vanced. Another point, upon which Bacon, C.J., had expressed no opinion, arose thus: the bill of sale

order for the payment of his costs out of the deposit, so far

as that would extend.-SOLICITORS, Harper, Broad, & Batt.. was given to secure, not only the £560, but also the amount for the time being due upon a mortgage of real

i cock ; S. Toppin. estate which had been previously given by the grantor to the grantee, and the bill of sale contained a recital that i PRACTICE—APPLICATION TO DISMISS APPEAL FCR WANT there was then due on the mortgage the sum of £1,045. OF PROSECUTION-CONSTITUTION OF COURT OF APPEALThere was, in fact, at the time of the execution of the bill of JUDICATURE ACT, 1875, s. 4.- In a case of In re Stanbank, sale, a further sum of £321 due on the mortgage, but that before the Court of Appeal on the 1st inst., an application sum was also secured by a bill of exchange which had not was made by the plaintiff to dismiss for want of prosecution matured. It was contended that the whole sum due on

le sum que on an appeal which had been presented by the defendant more the mortgage ought to have been stated. But the court said

| than three years ago. The defendant had been ordered to

than three pears that the consideration for a deed is that which the grantor

give security for the costs of the appeal, and had not done receives for executing it, and that the amount secured by

so. The appeal was from a decision of Jessel, M.R., and the the deed is not the consideration intended by section 8.

question was raised whether, having regard to the fact that SOLICITORS, J. Peace; Pilman & Lane.

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 Appeals BANKRUPTCY PETITION—DISPUTED DEBT-STAY OF PROCEEDINGS-BANKRUPTCY RULES, 1870, R. 43.--In a case of

shall sit as a judge on the hearing of an appeal from any Ex parte Yeatman, before the Court of Appeal on the 2nd

judgment or order made by himself,” the court so consti..

tuted was competent to deal with the application. The court inst., a question arose upon the construction of rule 43 of the Bankruptoy Roles, 1870, which provides that, “where

(JESSEL, M.R., Cotton and LUSH, L.JJ.) held that section

5 did not apply. And they dismissed the appeal, with costs, proceedings on a (bankruptcy] petition have been stayed for the trial of the question of the validity of the petitioning

observing that after the lapse of time the order was a matter creditor's debt, and such question has been decided in

of course.-SOLICITORS, Bower & Cotton. favour of the validity of the debt, the petitioning creditor may apply to the registrar to fix a day on which further

PRACTICE-ASSIGNMENT OF SUBJECT-MATTER OF ACTION proceedings on the petition may be had, and the registrar,

- SUBSTITUTION OF ASSIGNEE AS PLAINTIFF-TITLE OF on production of the judgment of the court in whioh the

| ACTION-ORD. 50, R. 3—ORD. 16, R. 13.-In a case of Secar question was tried, or an office copy thereof, shall give

v. Lawson, before the Court of Appeal on the 1st inst., the notice to the petitioner by post of the time and place fixed

question arose whether, when an order has been made, for the hearing of the petition, and a like notice to the

substituting a new plaintiff in an action for the original debtor at the address given in bis notice to dispute.” The

plaintiff, who has lost his interest in the subject-matter, any court (JAMES, COTTon, and LUSH, LJJ.) beld, that under this

alteration ought to be made in the title of the action. The rule, after the validity of the debt bas been established by

action was brought by the trustee of a bankrupt, claiming on the judgment of the court of first instance, the registrar bas

behalf of the estate to redeem that which he alleged to have a judicial discretion to fix a time for the further hearing

| been a mortgage executed by the bankrupt. The trustee oí the petition, and that be is not bound to await the final afterwards assigned his interest in the subject matter of the determination of the validity of the debt by the Court of action to H. W. Chatterton, for value, and Chatterton Appeal or the House of Lords, even though notice of an obtained the common order of course at the Rolls, under rale appeal has been given. In the particolar case the order 3 of order 50, giving him liberty “ to carry on and prosecute fixing the time for the further hearing was obtained irrego. | the action and the proceedings therein in like manner as the larly. But the debtor's solicitor attended at the time fixed, same might have been carried on and prosecuted by the and took no objection on the ground of irregularity, and an plaintiff if he had not assigned his interest.” The Court of order was made in his presence again adjourning the bear- | Appeal afterwards decided (28 W. R. 763, L. R. 15 Ch. Dol.

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