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been lost eight of, and although the decision is really a 'final judgment, and allows the parties twelvemonths for appeal, the order on a special case has hitherto been drawn up in like manner as orders on special cases under 13 & 14 Vict. c. 35, were drawn up. On the face of it the order has, therefore, appeared to be an interlocutory order only, allowing the shorter time for appealing. This would appear to have come to the attention of the Appeal Court in a case of Williams v. Williams, which was not reported on the point referred to. Vice-chancellor Hall has done his best to set matters right in Harrison v. The Cornwall Minerals Railway Company (29 W. E. 258), and the Master of the Bolls in a more recent case, not yet reported, has also called attention to the matter. In future, when a special case involves the decision of the whole action, it is to be set down in the cause books together with a motion for judgment, and counsel will move for judgment accordingly, after the court has given its opinion, and this will appear upon the judgment as drawn up.
Lord Justice Bramwell's letter on Mr. Justice Stephen's recent article comes very opportunely, and might have been still more useful if it had arrived before the recent bar meeting. The opinion of the most experienced judge on the bench in favour of the singlejudge system, and his ridicule of Mr. Justice Stephen's apprehension of the existence of a class of parliamentary lawyers who won't take what Mr. Justice Watkin Williams would call an " ordinary judgeship," ought to have weight with Parliament upon the debate on the Order in Council. It is not true, the Lord Justice declares, "that we should not get such men as Mr. Justice Stephen mentions to be judges. When they found they could neither be Chancellor nor Chief Justice, and were not made Lords of Appeal nor Lords Justices, 'because the public interest did not require men of that class to be placed there,' they would quietly take their seats as puisne judges after they had saved a good sum of money by their large practice." We may add, in confirmation of this, that Lord Campbell states that, when AttorneyGeneral, he requested that a puisne judgeship, which was then vacant, might not be filled up until he had had an opportunity of considering whether he would accept the post or not. He appears, however, to have withdrawn his application at the urgent request of Lord Melbourne and Lord John Bussell.
The Date of coming into operation of the Order in Council respecting the abolition of the offices of Chief Justice of the Common Pleas and Chief Baron of the Exchequer, and the consolidation of the common law divisions of the High Court, which was laid on the table of both Houses on the 4th of January last, has been the subject of some controversy. The matter is regulated by section 32 of the Judicature Act, 1873, which proTides that " no such order .... shall come into operation until the same shall have been laid before each House of Parliament for thirty days on which that House shall have sat, &c." The question to be solved if, how are we to couut the days of sitting of the House? Is there a fiction which allowe every day succeeding the meeting of Parliament, including Sundays, and those days, such as Saturdays, over which an adjournment ordinarily takes place, to be counted; or are we to count only the five days a week on which there is business transacted? Unless an address is presented to her Majesty, the Order in Council would, in the former case, come into operation on Friday, the '1th of February, and in the latter case, not before the 16th. This, of course, only applies to the House of Commons; when the House of Lords will have sat thirty days it is not yet possible to anticipate. The language of the section is not quite clear, but we
think there can be little doubt that only days on which the House has ordinarily sat sh ould be counted.
We Lately Noticed that there had been a tendency on the part of workmen and employers to con tract themaelves out of the provisions of the Employers' Liability Act of last year. Two measures have been already introduced into the House of Commons with a view of preventing any 8uch contracts. The Employers' Liability Bill, which has been introduced by Messrs. MACLiVERand Morley, recites that "attempts have been made to impose on workmen contracts exonerating employers from their liability, . . . and it is unjust to workmen, and inexpedient in the interests of public safety, that the operations of the Employers' Liability Act be thus defeated"; and section 1 enacts thatif and so far as any contract purports to derogate from the liability defined or declared by the Employers' Liability Act, 18S0, that contract shall be void." The Employers' Liability Act Amendment Bill of Messrs. Macdoxald, Burt, and Broadhurst is not quite such a sweeping measure. Section 1 enacts that all the provisions of the Act of last year " shall have effect and be enforced by every court in every case, notwithstanding any contract or agreement excluding all or any of the provisions of the said Act, or otherwise interfering with the operation thereof"; but it is provided "(1) that this Act shall not affect any contract or agreement made before the passing of this Act; and (2) that, in determining in any case the amount of compensation payable under the said Act by an employer, the court shall take into consideration the value of any payment or contribution made by such employer to any insurance fund or compensation fund, to the extent to which any person who would otherwise be entitled to compensation under the said Act has actually received compensation out of such payment or contribution at the expense of such employer."
The Provisions of Mr. Forster's Bill for the Better Protection of Person and Property iu Ireland are not quite identical with those which were contained in the Habeas Corpus Suspension (Ireland) Act, 1866. The 1st section authorizes the arrest and legal detention during the continuance of the Act, "without bail or mainprize," of any person declared by warrant of the LordLieutenant to be reasonably suspected of having been either before or after the passing of the Act guilty of high treason, treason felony, or treasonable practices, wherever committed, or of auy crime punishable by lawcommitted in a prescribed district, "being an act of violence or intimidation," or the inciting to an act of violence or intimidation, and "tending to interfere with or disturb the maintenance of law and order." Such person is not to be discharged or tried without the LordLieutenant's warrant, which is to be conclusive evidence of all matters contained therein, of the j urisdiction to issue and execute the warrant, and of the legality of the arrest and detention. The Act of 1866 authorized the detention iu safe custody without bail till the ensuing 1st of September of all persons in prison at the time of the passing of the Act for high treason, treason felony, or treasonable practices under a warrant signed by six members of the Irish Privy Council, or by the LordLieutenant, or the Chief Secretary for Ireland, such persons not to be bailed or tried till the aaid 1st of September. By the present Bill every person detaiued is to be treated as an accused person, and not as a convicted prisoner; and a list of persons detained in prison under the Act, with a statement of the place of deteution, and the ground Btatcd for the arrest of each person, is to be laid before each House of Parliament within the first seven days of each month during which Parliament is sitting. There was no provision corresponding to this in the Act of 1866, but a similar enactment was made by the Westmeath Act, 1871 (34 & 35 Vict. c. 25), e. 9. "Prescribed district" is to mean any part of Ireland specified by an order of the Lord-Lieutenant for the time being in force. Such orders may be made, revoked, or varied by the Lord-Lieutenant by or with the advice of the Privy Council. By section 2 a warrant or order of the Lord-Lieutenant may be signified either under his hand or under the hand of the Chief Secretary, and a copy of every warrant is within seven days to be transmitted (as was also provided under the Act of 1866), to the Clerk of the Crown for the city of Dublin, to be by him filed in his public office. The Lord-Lieutenant is empowered, by and with the advice of the Privy Council, to make, revoke, or alter any order prescribing the form of a warrant, all such orders to be published in the Dublin Oazette, a printed copy of which is to be conelusive evidence of the date and contents of the order, and that it was duly made. By section 3 the Act is to remain in force till the 30th of September, 1882, while the Act of 1866 was only in force from February till September of that year.
The Concurrence, in the same number of the London Gazette, of the names of an English and a Scotch peer will draw attention to the Bankruptcy Disqualification Act, 1871 (34 & 35 Vict. c. 50), which enacts that every peer who becomes a bankrupt shall be disqualified from sitting or voting in the House of Lords, or in any committee thereof, and if a peer of Scotland or Ireland, shall be disqualified from being elected to sit and vote in the House of Lords; but a bankrupt peer recovers his rights of sitting and voting upon the determination of bis bankruptcy. It will be remembered that by the Bankruptcy Act, 1869, any member of Parliament adjudicated a bankrupt is suspended for a year from the right of sitting or voting in the House of Commons, unless within that time the ordor is annulled or the creditors proving debts nre fully paid or satisfied, and by section 122, in default of such annulment, payment, or satisfaction, the member's seat is to be vacant at the end of the year.
Sin. Aston, Q.C., writing to a daily contemporary, suggests that the Temple Bar Memorial, when removed from its present position, should be replaced by a subway for the purpose of enabling foot-passengers to cross with safety from the Royal Courts of Justice to the other side of the Strand; and another correspondent states that the subway was part of the original plan which the architects of the building were instructed to provide for. There can be no doubt that the subway or bridge was part of Mr. Street's original plan, made in pursuance of the printed instructions to competing architects to which we referred some months since. The want of the subway is due, not to Mr. Street, but to the modifications introduced by Mr. Atrton, when, as Chief Commissioner of Works, he applied his ingenuity to reducing the cost cf the New Law Courts.
The Annual Expenditure for wages of servants and guardians of the Koyal Courts of Justice after that building becomes fully occupied has been officially estimated at £10,000.
Lord Sband, says the Scottman, having been named a member of the Committee of Judges and others appointed to advise the Lord Chancellor in reference to proposed improvements in the practice and procedure of law courts in England, attended a meeting of the committee in London on Tuesday. We learn, on excellent authority, that the information which Lord Shand communicated to the judges as to Scotch procedure was gTeatly appreciated.
THE BENCH AND THE BAR.
The bench lately, by a considerable majority (as will be seen from the minutes of the Council of Judges, which we print elsewhere), assented to the Lord Chancellor's proposal for the abolition of the two vacant chiefships; the bar has now, by an inconsiderable majority, expressed in the meeting lately held in the Middle Temple Hall, dissented from that view. It ought, however, to be remembered, to the honour of the profession, that those members of it who might reasonably expect to succeed, ii anyone succeeded, to the vacant posts, did not cast their opinion and influence 011 the side of their interests—indeed, the expression of opinion may be fairly called a disinterested one, and seems to find its source wholly in sentiment. This may account for the fact that the speakers in favour of the extinction of these ancient offices seem not, as a rule, to have been those who are most concerned with current business; and that the eminent gentleman who led the opposition to the proposed change is one who has for many years sought fame rather as a scholar and an author than in the courts of justice. It is, indeed, hardly credible that those who are sufferers by the disorder and confusion that now reign among the relics of a system which is in the course of vital change, should wish to perpetuate those varieties in the administration of justice which are the cause of their miseries. Yet we seem almost driven to the bolief that men who are acquainted with the legislation of the last thirty years fancy it yet possible to restore the past as it once existed, and to start the legal coach along the old road, just as if nothing had happened. It is true that the bar, as a body, have not taken much part in bringing about these changes. Bodies of men, however trained and educated, rarely do so. But then it is surely rather late to begin to interfere; and it is unfortunate to take an opportunity of doing so which seems to afford no other motive for speech than the fact that they have been silent so long, and that as there is nothing else just now to say, they must say just that or nothing.
There is indeed something strange, and almost weird, in the interest which thus gathers the bar to their ancient hall to defend these superannuated offices. It recalls the silent mariners in the enchanted ship, which has been moving on, rather from some unknown impulse than under any guiding hand:—
The loud wind never reached the ship,
Yet now the ship moved on!
Beneath the lightning and the moon
The dead men gave a groan.
They groaned, they tlirred, they all uprose—
but only the first half of the next line is true—
Nor epoke, nor moved their eyes. Yet let us hope that they will after a time "move their eyes" enough to see how much it will conduce to the real dignity and power of the administration of justice to dispense with these useless and now meaningless titles rather than offices; and will throw their energios into the attempt to assist in forcing the chariot of law out of the ruts where it now drags its wheels. If they will do this, we do not despair of seeing once again an united bench and bar under the control of a powerful chief, and some of that true dignity restored which idle attempts to withstand "manifest destiny," and to cling to the old remnants and patches of the past, can only diminish and impair.
The Chicago Bar Association have had a dinner, says the Albany Law Journal, and a question arose as to the meaning of a verse in the programme said to be in Latin, and after an animated discussion no t*o could agree as to its meaning, and no one could be found who could give a correct translation of it.
THE ATTORNMENT CLAUSE.
suppose we must consider the judgment of the Court of Appeal in the recent case of Ex parte Jackson, In re Bowes (29 W. R. 253), as a final explanation of one main test to be applied to ascertain the validity of an attornment clause in a mortgage. As our readers will remember, we haye often drawn attention to the vacillations of judicial opinion on this subject. In In re Williams (26 W. K. 274) Lord Justice James rested his decision that the attornment clause was invalid on the ground that looking at the whole scope of the deed, and the intention of the parties, it was a mere contrivance to give the mortgagee an additional benefit in case of the mortgagor's bankruptcy. Bat Lord Justice Thesiger laid it down that section 34 of the Bankruptcy Act, 1869, is intended only to protect a bona fide rent, and not a rent which does not in any way represent the real letting value of the premises. In In re Stockton Iron Furnace Company (27 W. R. 433), Lord Justice Bramwell said that the intention and object of the arrangement in In re Williams was to commit a fraud on the bankruptcy law, since practically the effect of the provisions of the mortgage in that case was that the attornment clause should come into operation only in the event of bankruptcy. That is to say, he adopted the view of Lord Justice James in the earlier case. But the latter Lord Justice propounded the view (in which he was supported by the Master of the Rolls) that the reservation in the attornment clause of a rent very much above the value of the property might show that the attornment clause was a device to enable the mortgagee to obtain, in the event of the mortgagor's bankruptcy, something which he would not otherwise obtain. In Ex parte The Bank of Whitehaven, In re B*wes (28 W. R. 523), Bacon, C.J., refused to admit the excessive amount of rent reserved as a test of whether an attornment clause was a fraud on the bankruptcy law. He thought that no such proposition could be drawn from the earlier decisions. When the case came before the Court of Appeal, however (sub. nam. Ex parte Jackson), the court (Baggallay, Cotton, and Thesiger, LJJ.) held, unequivocally, that the validity of an attornment clause in a mortgage depends on whether the tenancy created, and the rent reserved, are a real tenancy and a real rent; and that the proportion the rent reserved bears to the true lettable value of the property is the chief test of the reality of the rent.
The process by which this conclusion is reached is something like this:—there is clearly a right, as between mortgagor and mortgagee, where the former is in possession of the mortgaged property, to insert in the mortgage deed an attornment by the mortgagor to the mortgagee. The object of this clause is to give the mortgagee an equivalent for the benefit which he would have derived from the rent if a third person had been in possession of the mortgaged property. In the latter case the mortgagee could at any time have demanded payment of the rent in arrear. He could have applied the rent which might be paid to him under such demand in discharge, or part discharge, of the interest in arrear on his mortgage, and if it was more than sufficient for the discharge of the interest due, it could be applied in discharge or satisfaction, pro tanto, of the principal debt itself. The equivalent for this is an attornment at what the court call "a real rent"—i.e., a rent corresponding to the true lettable value of the property. If the property is in possession of the mortgagor, the mortgagee may turn him out and let it to a stranger, and, therefore, there is nothing unreasonable, nothing that can be called a fraud on the law of bankruptcy, in allowing the parties to make a contract in the mortgage deed which they might afterwards validly and effectually make. Au attornment at a sum called rent, but which is infinitely in excess of any rent which any tenant would give for the premises, is far more than an equivalent for the benefit of the tenancy
of a third person. "In this case," said Lord Justice Thesiger, " the rent is not a real rent but a mere sham; the tenancy is not a real tenanoy but a mere sham; and the attornment clause is a mere device to give the mortgagee a hold, in the event of bankruptcy, over the goods and chattels of the mortgugor which would otherwise have been distributed amongst the general creditors, and the attornment clause is invalid and inoperative because it is a fraud upon the bankruptcy law."
In another recent case of Ex parte 1'unnelt, In re Kitchen (29 W. R. 129), a curious question was raised as to the attornment clause. The first mortgagee of a leasehold public-bouse took an attornment as tenant from the mortgagor to securo the interest on his mortgage; the second mortgagee did the same, and it appeared on the face of the second mortgage that the first mortgage was still outstanding and undischarged. The questiou was whether, under these circumstances, the second mortgagee had a right to distrain after the liquidation of the mortgagor for rent accrued under his attornment before the liquidation. The court held that he had. "If," said the Mas ter of the Rolls, "by a condition, notwithstanding the facts are known that the legal estate is outstanding in a mortgagee, and that the mortgagor is not really the owner of the reversion, you can create a tenancy by what may be called estoppel, or juast-estoppel (it does not matter what term we use), it appears to me there is nothing, either iu law or iu good sense, to prevent the same arrangement being made with more than one mortgagee."
REGISTRATION OF TRADE-
On more than one occasion we have briffly called attention to the subject of colour in connection with the registration of trade-marks, but the recent case of In re Robinson (29 W. R. 31) throws so much additional light upon the matter that we take this opportunity of recurring to it and dealing with it in greater detail.
It is well known that the Trade-Marks Registration Act of 1875, by which the registration of trade-marks in the United Kingdom is regulated, contains no allusion to the question of colour, but that question was tacitly reserved for the consideration of the Lord Chancellor and his advisers when the rules under the Act should have to be framed. In those rules, when they were prepared and made public, no express mention of colour was made, but the silence of the rules was easily interpreted to mean that colour was to be eliminated. Among other provisions contained in the rules, the 8th rule requires an applicant for registration to supply the registrar with a description of his trade-mark in writing, accompanied, when practicable, by a representation of the trade-mark in duplicate. By the 13th rule the registrar is to require the epplicant to insert an advertisement of the application in the official paper (now published under the title of the Trade-Marks Journal), and by the 15th rule the applicant may, for the purposes of Buch advertisement, be required to furnish tiie printer of the journal with a wood-block or electrotype of the trade-mark, or with such other information or means of advertising the trade-mark as the registrar may allow. It is also material to notice that by another part of the 8th rule the registrar may, in exceptional cases, deposit in the Patent Museum a specimen or copy of a trade-mark which cannot conveniently be placed on his register, and may refer thereto in hi* register in such manner as he thinks advisable. With respect to deposited marks, it is apparent that they will be seen by those who inspect them in the same colours and arrangement as they present in actual use. i With respect to cotton goods, a special set of rules. numbered from 57 to 63, was made, whioh appeared in the new edition of the rules issued in 1876, having been drawn up subsequently to the original framing of the rules in 1875. By the 57th rule, an office is to be established at Manchester for the exhibition of all trade-marks used in the cotton trade. By the 58th rule, as amended by the rule of December 1, 1876, every proprietor of an old cotton mark is required to send to the Manchester office three representations of such cotton mark, in such form and with such a description as may be from time to time required by the Commissioners of Patents. By the 60th rule, the Committee of Experts at Manchester, appointed under rule 59, are to form a list of the cotton marks sent to the Manchester office in two classes (the first class consisting of such cotton marks as they conaider to be trade-murks within the Act, and the second class consisting of such cotton marks as they consider not to be trade-marks within the meaning of the Act), and to transmit such list to the Commissioners of Fatents, accompanied by two representations of each of the marks specified in the second class in such list. The third representation of each of the marks in the second class is to be retained for reference in the Manchester office. By rule 62, proprietors of marks not placed in the second class may apply for registration in the ordinary way. By the additional rules of February 26, 1877, rules 13, 15, and 17 are not to apply to trademarks in respect of cotton goods in classes 23, 24, and 25, and the registrar is to advertise applications under the rules, for the registration of trade-marks in the cotton classes, showing, among other particulars, the places in London and Manchester where specimens of the marks are deposited for exhibition, and provision is made for consequent registration. By the further rule of December 28, 1878, it is provided that proprietors of old "combination stamps" for cotton piece goods, are to send to the Manchester office four representations of such combination stamps in such form and with such a description as may be from time to time required by the Commissioners of Patents. The additional rule of October 21, 1879, clears up a doubt which had been generally entertained, and declares that rules 57 to 63 do not apply to new cotton marks, and that applications for the registration of trade-marks for cotton goods, not being old marks, are to be made in the ordinary manner, subject to the proviso that marks which have been placed in the second class shall not be registered except by order of the court.
Thus the matter stands upon the rules, and it is interesting to consider the historical explanation given of these regulations by the Master of the Bolls. This is what he says in In re Bobinson :—" The rules do not allow the registration of colour except in special cases as .provided by rule 8, and the rules and additional rules applicable to cotton goods. There is nothing in the Act of Parliament about it at all. The Trade-Marks Act allowed the Lord Chancellor to make certain rules. He made rules after consultation with a great many people, and they became part of the Act. The difficulty of advertising was so great, and the difficulty of getting the shade of colour with chromo-lithography was so great, that colour was abandoned simply for practical purposes. But it was found necessary to treat all cotton marks as exceptional under rule 8, and to exhibit them at the Patent Museum, South Kensington, and also at certain places in London and Manchester, which are mentioned in the advertisement in the official paper under the Additional Rules, r. 1." So that it was only on account of certain practical ■difficulties in the way of advertising ordinary trademarks in colour that the rule was established and enforced by the Commissioners of Patents or the Registrar of Trade Marks, that such ordinary mark should be registered without colour. But with regard to certain descriptions of mark.-), the whole distinctiveness of which consisted in the colour in whica they were represented, ■registration in colour was essential, and for such marks
alone, therefore, was registration in colour permitted. The selvage mark on cotton goods, consisting of threads variously coloured and arranged, running through the selvage of the goods, afford a good example of such mark; or reference might be made, by way of illustration, to such marks as those appropriated by the Public Stores Act, 1875, to the public stores, such as white,black, or coloured worsted threads laid up with the yarns and the wire, respectively, for hempen cordage and wire rope; or blue or red cotton threads in each wick, or wicks of red cotton for candles. With respect to such marks, it is easy to see that registration in any other mode than by deposit would be futile, as the whole essence of the trade-mark consists in colour; but then we have the authority of the Master of the Rolls for saying, and, indeed, his whole decision in In re Robinson turned ou the fact, that all marks for cotton goods are registered by deposit, so that very ordinary marks, if applicable to goods of that description, are registered in their usual colours, and arc to be inspected at the places of deposit—i.e., according to the usual practice at present, at the Patent Museum, South Kensington, at the Trade-Marks Registry, Southampton-buildings, and at the Royal Exchange, Manchester. It certainly appears to be rather invidious that manufacturers of cotton goods should be placed on so differout a footing from manufacturers of goods in other classes, and that marks which in any other class would be advertized and registered as devoid of colour, should be admitted to registration in a coloured form; but the case becomes still more anomalous when it is considered that in other classes manufacturers who adopt one form of trade-mark will obtain registration by deposit, while those who adopt another description of mark will have to put up with black and whito. No doubt there is a certain advantage in having au abstract device protected, in whatever colour it may naturally be used in practice; but, after all, it is not so very great an advantage to have protection awarded for that which it is not desired to use.
COLLISIONS AT SEA. A Treatise On The Law Of Collisions At Sea. By RegiNald G. Mabsden, Esq., Barrister-at-Law. Stevens & Sons.
This is a useful and well-written summary of tha law relating to a subject the importance of which is Bhown by a statement in the preface, that in the year 1878 there were in collision 1,790 sailing ships, and 836 steamships, in other words that about fifteen per cent, of the steam vessels and 3'6 per cent, of the sailing vessels of the world suffered loss from this cause alone. Mr. Marsden sets forth in small compass, and in a very readable shape, the general rules of law applicable to the subject of maritime collision, as laid down by statutes, or determined and defined in decided cases. The rule of the road at sea as it existed in itB customary and unwritten form before it had become embodied and modified by Act of Parliament is also briefly stated, and the various changes which that rule has from time to time undergone are fully set out in their chronological order. The reported cases upou each division of the subject are intelligently collated; but with regard to one important matter of practice wo wish to say a word. The question of costs in the Admiralty Division and on appeal is somewhat complicated. It seems, however, from the judgment of the Court of Appeal in The Swaniea and The Condor (L. R. 4 P. D., at p. 120), that the Court of Appeal will now apply the ordinary rules of costs following the event; and the judgment of the same court in The City of Manchester (L. R. 5 P. D. 221) applies the general rule as to the discretion of the court. These cases throw doubt upon the decision of Sir Robert Phillimore In The Matthew Cay (49 L. J. Frob. 47)' We think that Mr. Marsden might with safety have been more distinct upon this point than he has ventured to be; but, to do him justice, he refers to all the decisions down to the date of his publication, noting that the case of The Daisy was not followed in The Swansea and The Condor; and when he wrote, the decisions of Sir Robert Fhillimore in The City of Manchester had not come before the Court of Appeal. In an appendix Mr. Marsden places in parallel columns the regulations for preventing collisions issued in 1863 and 1880; and also includes the local regulations of the principal porta of the United Kingdom. The whole book is marked by a thorough practical acquaintance with the subject, and ought, in our opinion, to be of great value to persons concerned in navigation as well as to lawyers.
STATUTE LAW. Statute Law: The Principles Which Govern The Construction And Operation Of Statutes. By E. Wilbehforce, Barrister-at-Law. Stevens & Sons.
This is the third treatise upon the subject of the construction of statutes which has appeared in the last few years. We have frequently regretted the ignorance of statute law, as compared with case law, which tends to spoil many who pass for good lawyers, and wo are glad to believe that the literary liveliness of the subject may be some evidence of increased professional interest in it. Mr. Wilberforce's book bears throughout conspicuous marks of research and care in treatment, but is wanting in originality and in criticism of the decisions which he has so well strung together. The little controversy about marginal notes, for instance, where we have Willes, J., in Claydon v. Green (L. B. 3 C. P. 522), and the Court of Appeal in Attorney-General v. Great Eastern Railway Company (28 W. B. 759, L. B. 11 Ch. D. 460) on the one side, and Jessel, M.B., in Be Venom's Settled Estates (L. B. 2 Ch. D. 525) on the other, might well have been treated more critically, and so might the question of "headings," and the question whether utterances in Parliament may or may not be referred to in construing a statute, and the question whether a statute is directory or im. perative. We miss also any allusion to the Statute Law Bevision Acts. There is a complete table of cases— which are numerous and sufficient, the only one which we have missed being Reg. v. Uaslingfield Overseers (L. B. 9 Q. B. 209), in which the court referred to the Parliament Boll—but there is no table of statutes, and, though there is a good table of contents, the index is rather meagre. In spite of these faults the book is a good one, and we welcome its publication.
CASES OF THE WEEK.
Building Agreement—Licence To Seize Materials— Forfeiture—Waiver—Act Op Bankruptcy—Bills Of Sale Act, 1854 (17 & 18 Vict. c. 36), ss. 1, 7.—In a case of Ex parte Hewitt, before the Court of Appeal on the 27th nit., the question arose whether a stipulation in a building agreement tba', if the builder should not in all thiDgs observe and perform all things contained in the agreement, or if the intended boildings, or any of them, should not he commenced, or should at any time be left in an unfinished state, and for the spaoe of twenty-eight days not regularly proceeded with, as therein provided, then, notwithstanding that no lease should have been granted in pursuance oi the agreement, it should be lawful for the landowner to re-enter on the land and the houses then bnilt or begun to be built thereon, and to expel therefrom the builder, and that on Bnch re-entry all such buildings, materials, and things then in and abont the premises should be forfeited to and become the property of the landowner "as and for liquidated and Bettled damages"—whether this stipulation required registration under the Bills of Sale Act in order to render it effeotual as against the
trustee in the liquidation of the builder. The agreement provided for the ereotion by the builder of a number ois houses upon a corresponding number of plots of land belonging to tho landowner. The houses were to be completed at specified dates, and time was to be of the essence of the oontraot. Leases of the plots were to be from time to timq granted by the landowner to the builder, as the houses were covered in to the satisfaction of the landowner. There was also a proviso that nothing in the agreement should operate as an actual or present demise of the premises or any part thereof, it being the tree intent of the agreement that the builder should have the right only to enter upon the land for the purpose of the due performance of the agreement, and not otherwise, and that, in default of such due performance, the right and interest of the builder under the agreement should absolutely cease. Some of the houses were not completed at tbe specified dates, and, moreover, those houses had not been for the space of twenty-eight days regularly proceeded with according to the agreement, and the landowner re-entered on the plots on wbioh those houses were being erected, and took possession of tbe buildings and materials thereon, but he had not taken more than a merely formal possession before tbe builder filed a liquidation petition. The agreement had not been registered as a bill of sale, and the trustee in tbe liquidation olaimedthe materials whioh had been seized by the landowner. Bacon, C.J., held that this olaint was well founded, on the ground that the stipulation for forfeiture of the materials to the landowner was a "bill of sale " within the definition contained in section 7 of tbe Bills of Sale Act, 1854, as being " a licence to take possession of personal chattels as security for any debt." This decision was reversed by the Court of Appeal (james, Brett,. and Cotton. L.JJ.), who were of opinion that, though the stipulation in question was a licence to take possession of personal chattels, there was no debt for which the possession was to be a security. Brett, L. J., said that, even if there was a debt, the possession was taken, not as a security for it, hut in discharge of it. It was argued ou behalf of the trustee that, as the materials were to be forfeited to the landowner as liquidated damages, and damages are, by seotion 31 of the Bankruptcy Act, 1869, made provable in bankruptcy as &■ debt, it might be properly said that the possession was taken as security for a debt. But Cotton, L.O., said that the mere fact that the Bankruptcy Act made damages provable as a debt did not make damages a debt for the purposes of another statute. Another point raised was that the landowner had waived the forfeiture wliioh had arisen from the non-completion of the houses at the specified dates, by making advances of money to the builder for the purposes of the agreement after that forfeiture had taken place. It was not necessary to decide the point, because the court was satisfied on the evidence that there was another continuing forfeiture by reason of the houses not having been regularly proceeded with for twenty-eight days. But their lordships intimated an opinion that the making of advances to the builder for the purposes of the agreement, after the expiration of the time appointed for the completion of the houses, would be strong evidence of waiver of tbe forfeiture by the landowner. And James, L.J., said that it would require a good deal of consideration before he could assent to the decision of the Court of Common Pleas in Doe v. Brindky (12 Moore, 37), that allowing a builder to proceed with the work after the expiration of tbe time limited for the completion of houses under a similar agreement, was not a waiver of the forfeiture. A third point raised was this: it was alleged that no possession of the materials was taken by tbe landowner until after the filing of the liquidation petition, and it was said that the landowner had no property in the materials until he had seized them, and that the licence only authorized him to seize that which was the property of the builder at the time of the seizure, and before the seizure the materials had become the pruperty of the trustee, inasmuch as hit title related back to the filing of the petition. The court, however, held that this objection was unfounded. James, L.J., said that the trustee took all the property of the debtor, but he took it with all the liabilities which affected' it in the debtor's hands, unless the property which he took as the legal representative of the debtor was enlarged by some express provision of the bankrupt law. There was no such provision applicable to the present case. The stipulation in the agreement was that in a certain event the