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BILLS OF LADING.

A TREATISE ON THE LAW OF BILLS OF LADING. By EUGENE LEGGETT, Solicitor and Notary Public. Stevens & Sons.

The present is hardly an opportune moment for the issue of another of those text-books on shipping law with which we have of late been flooded. Mr. Leggett's little volume is an unambitious one, and from his frequent citation of Indian Acts and Indian authorities he seems to have intended it mainly for the assistance of persons practising the legal profession or carrying on trade in India. As an inexpensive handy book for those whose opportunities of consulting more recognized authorities are limited it may be useful, but we fear that we cannot credit the author with unimpeachable accuracy; nor when he commits himself to stating the effect of a decision is his meaning always intelligible. An example of both defects will be found in his exposition on p. 15 of the effect of Gabarrow v. Kreeft (L. R. 10 Ex. 274). Another objection to the book is the author's inability to resist the temptation to wander into other branches of the law far too wide to be dealt with in a summary manner; the result being sometimes very misleading to the reader unless he has more legal knowledge of his own than is likely to be possessed by those who would consult a work of this kind. Thus, on the question of the liability of an agent who has signed a contract, Paine v. Walker (18 W. R. 789, L. R. 5 Ex. 172) is cited as an authority without any reference to the later cases of Gadd v. Houghton (24 W. R. 975, L. R. 1 Ex. D. 357) and Hough v. Manzanos (27 W. R. 536, L. R. 4 Ex. D. 104), where that decision was discussed, James, L.J., expressing an opinion (in which Pollock, B., afterwards apparently declined to concur) that Paine v. Walker ought to be overruled. The appendix of forms of bills of lading used in various trades may be found useful.

CORRESPONDENCE.

MORTGAGE OF LAND IN NEW ZEALAND.

[To the Editor of the Solicitors' Journal.] Sir,-If any of your readers who have acted with reference to a mortgage of land in New Zealand can give me any information as to the registration of such mortgage, when the money is borrowed in England, I hall feel obliged. N. Z.

STATUTE OF MORTMAIN.

[To the Editor of the Solicitors' Journal.] Sir,-Can you or any of your readers inform me whether the Statute of Mortmain or de religiosis, 7 Edw. 1, which provides that no conveyance can be made to a corporation, except when, under an Act of Will. 3, a licence is obtained from the Crown, applies to the colony of New South Wales?

9 Geo. 2. c. 36, erroneously, as I think, called the Statute of Mortmain, but which is in reality an Act to prevent dispositions of lands by will to charitable uses, has been held by Whicker v. Hume (7 H. L. Cas. 124) not to apply to the colony in question, notwithstanding 9 Geo. 4, c. 83, s. 24, an Act still in force, and which provides that English law shall prevail in New South Wales unless altered by the Legislative Council of that colony. There is a doubt however, whether 7 Edw. 1 does not still apply, which I cannot solve. Scottish Club, London, Feb. 3.

JOHN GRAHAM.

CASES OF THE WEEK.

LIQUIDATION-GENERAL SCHEME FOR SETTLEMENT OF DEBTOR'S AFFAIRS-ACCEPTANCE OF COMPOSITION-DEFAULT IN PAYMENT-RIGHTS OF TRUSTEE-Surety-SECURITY GIVEN BY DEBtor-BankrupTCY ACT, 1869, s. 28.-In a case of Ex parte Allard, before the Court of Appeal on the 3rd inst., a question arose as to the rights of the trustee in a liquidation after the creditors had, under the provisions of section 28 of the Bankruptcy Act, 1869, accepted a composition, and the debtor had subsequently made default in payment of the composition. The debtors, who were partners in trade, filed a liquidation petition in January, 1880, and on the 14th of February, the creditors resolved On the 16th of March a meeting of the creditors was held, upon a liquidation by arrangement and appointed a trustee. which had been convened by the trustee under the provisions of section 28, to consider a general scheme for the settlement of the debtors' affairs which had been proposed by them. The creditors resolved to accept an offer of a composition of seven shillings in the pound, to be paid in four equal instalments at three, six, nine, and twelve months respectively from the 23rd of February, 1880, the whole of the instalments to be secured by the promissory notes of the debtors, and £150, part of the fourth instalment, to be secured by the promissory note of one Allard. As a further security for the due payment of the composition, V., one of the debtors, who was going to continue the business alone, February, 1880, until he should have paid the whole amount agreed to pay the trustee £30 weekly from the 23rd of of the composition. In the event of his neglecting to make the weekly payments, or any of them, for ten days after the same should be due, the trustee was to be at liberty to take possession of V.'s stock-in-trade, assets, and effects, and realize the sum for the benefit of the creditors of the debtors. It was resolved that the discharge of the debtors should be granted, the liquidation be closed, and the trustee be released so soon as the trustee should certify to the court in writing that V. had paid him an amount sufficient to pay the composition. This scheme was on the 11th of May approved by the court. V., in the first instance, paid the weekly instalments, and the trustee, by means of them, paid the creditors the first instalment of the composition on the 23rd of May, 1880. Afterwards, V. made default, and on the 9th of August the trustee took possession of his stock-in-trade and effects, intending to sell it, and to collect the book debts, and distribute the proceeds among the creditors. But it then appeared that, on the 3rd of August, the debtors had executed a deed by which they had assigned all the book debts to Allard and another person as a security to the assignees for the repayment of moneys which they had since the 16th of March advanced to V., and which had been applied partly for the purpose of carrying on the business and partly in payment of the first instalment of the composition. The assignment was also given as a security to Allard in respect of his liability upon his promissory note for £150. The deed contained recitals of the liquidation proceedings, and of the scheme of settlement. Upon discovering this deed the trustee applied to the court for an order declaring it void as against him, and Mr. Registrar Pepys made a declaration accordingly, and ordered the assignees to pay over to the trustee all moneys which they had received under the deed. decision was reversed by the Court of Appeal (JAMES, BRETT, and COTTON, L.JJ.), who held that the assignees were entitled to the benefit of the assignment as a security for the advances which they had made to the debtors, but that the deed was not valid as a security to Allard for his liability on his promissory note. The court said that the case was distinguishable on the latter point from Ex parte Burrell (24 W. R. 353, L. R. 1 Ch. D. 537), in which a debtor had given security to a person who had become surety for the payment of an ordinary composition. There, as JAMES, L.J., said, the property of the debtor had never vested in a trustee. And on the main point his lordship said that, by the scheme of settlement, an implied authority was given to the debtor to carry on the business in the ordinary way, and to deal with the assets by raising money for the purposes of the business, or for the purpose of paying the composition.-SOLICITORS, H. W. Christmas; Phelps, Sidgwick, & Biddle.

This

virtue of sub-section 6 of section 83 and section 125) passed from the registrar to him, and when the bankruptcy trustee was afterwards appointed there was no property to vest in him; whereas in the case of composition resolutions no trustee was appointed, and there was nothing to devest the property from the registrar upon the passing of such resolutions after an adjudication. The court (JAMES, BRETT, and COTTON, L.JJ.), however, held that the case could not be distinguished from Ex parte Milward. JAMES, L.J., said that the decision in that case did not depend on the fact that the resolutions were for a composition, but on the general ground that, after an ordinary adjudication had been made, the proceedings under it not being there was nothing upon which proceedings, either for liquidation or for composition, could be founded. BRETT, L.J., said that the case was within the very words used by all the judges who decided Ex parte Milward. The two cases were in truth identical. COTTON, L.J., said that the principle of the decision in Ex parte Milward was this, that, after an ordinary adjudication had been made (not an adjudication made under rule 266 for the mere purpose of protecting the debtor's assets, pending proceedings for liquidation or composition), the power of the creditors to pass resolutions for either liquidation or composition was gone. The court accordingly dismissed the appeal, and gave costs to both the petitioning creditor and the bankruptcy trustee, who had both been served with notice of the appeal.-SOLICITORS, H. Aird; Gush & Phil lips; Lumley & Lumley.

LIQUIDATION PETITION-REGISTRATION OF RESOLUTIONS -DEBTOR'S STATEMENT NOT DISTINGUISHING BETWEEN JOINT AND SEPARATE DEBTS AND ASSETS-Ban KRUPTCY RULES, 1870, R. 287.-In a case of Ex parte Buckley, before the Court of Appeal on the 3rd inst., a question arose as to the registration of composition resolutions. The debtor described himself in his petition as carrying on business alone, and as having formerly carried on business in partnership with some persons whom he named. His statement of affairs, produced at the meetings of the creditors, appeared on the face of it to be a statement of only separate debts and assets. It did not in any way distinguish between joint and separate debts and assets, and there was nothing to show when the former partnership had come to an end, or whether any of its debts were still unpaid, or any of its assets still outstand-stayed, ing. The creditors resolved to accept a composition, but the registration of the resolutions was opposed by a dissentient creditor, and Mr. Registrar Murray refused to register them, on the ground that the statement of affairs ought to have distinguished between joint and separate debts and assets, thus following the decision of Bacon, C.J., in Ex parte Cockayne (21 W. R. 749, L. R. 16 Eq. 218). On the hear. ing of the application to register, the debtor filed affidavits, which showed that the former partnership had been dissolved as long ago as December, 1873; that all the joint debts had been either paid, or, with the assent of the creditors, converted into separate debts, and that there were no outstanding joint assets; and that ever ever since the dissolution the debtor had carried on business alone. The court (JAMES, BRETT, and COTTON, L.JJ.) affirmed the registrar's decision, on the ground that the only safe course was that the fact whether there were any joint debts or assets should appear on the face of the debtor's statement produced to the creditors, which ought not to be supplemented by affidavits filed after the meetings of the creditors. If, as JAMES, L.J., said, there was nothing to be stated but that the assets of the former partnership were nil and the debts nil, still this ought to appear in the statement of affairs. Leave was, however, given to the debtor to summon a fresh first meeting of the creditors.-SOLICITORS, Trinders & Curtis Hayward.

ADJUDICATION OF BANKRUPTCY-LIQUIDATION RESOLUTIONS AND APPOINTMENT OF LIQUIDATION TRUSTEE BE FORE APPOINTMENT OF BANKRUPTCY TRUSTEE - VESTING OF DEBTOR'S PROFERTY-BANKRUPTCY ACT, 1869, ss. 17, 83 (SUB-SECTION 6). 125-BANKRUPTCY RULES, 1870, R. 266. In a case of Ex parte Bennett before the Court of Appeal on the 3rd inst., a question arose as to the validity of liquidation resolutions which had been passed after an adjudication of bankruptcy had been made against the debtor. On the 7th of May an adjudication of bankruptcy was made against a debtor, upon the petition of a creditor which had been presented on the 20th of March. The debtor had filed a liquidation petition on the 6th of May, and for this reason the registrar, when he made the adjudication, was asked to stay the proceedings under it, but he declined to do so. On the 24th of May, the creditors, at their first meeting under the liquidation petition, resolved upon a liquidation by arrangement, and appointed a trustee. These resolutions were registered on the 4th of June, the registrar considering that, by virtue of the decision of Bacon, C.J., in Ex parte Davis (24 W. R. 684, L. R. 2 Ch. D. 231), he was bound to register them. On the 9th of June, at the first meeting of the creditors under the bankruptcy, another person was appointed trustee. The liquidation trustee applied to the court for an injunction to restrain the bankruptcy trustee from taking possession of or dealing with the bankrupt's property; and also for an order staying further proceedings under the bankruptcy and annulling the adjudication. Mr. Registrar Pepys refused the application, and made an order declaring that the bankrupt's property was vested in the bankruptcy trustee, and restraining the liquidation trustee from interfering with the property. This decision was affirmed by the Court of Appeal (JAMES, BRETT, and COTTON, L.JJ.). It was contended on behalf of the liquidation trustee that the case was different from Ex parte Milward (29 W. R. 167), because there composition (not liquidation) resolu tions had been passed after the debtor had been adjudicated a bankrupt. And it was said that, though, on the making of the adjudication the bankrupt's property vested (by virtue of section 17) in the registrar as trustee, yet on the appointment of the liquidation trustee, the property (by

PRACTICE-LEAVE TO APPEAL-REPRESENTATIVE ACTION -PERSON NOT NAMED AS DEFENDANT-COSTS.-In a case of Watson v. Cave, an action brought by the plaintiff on behalf of himself and all the other holders of certain bonds of a foreign Government, except such of them as were named as defendants, to ascertain the rights of the bondholders, an application was made on the 5th inst., to the Court of Appeal, by a bondholder who was not named as a defendant, for leave to appeal from an order made by Jessel, M. R., on the application of the plaintiff, appointing receivers of certain property to which the bondholders claimed to be entitled. The applicant was dissatisfied with the persons who had been appointed receivers, and alleged that the plaintiff did not really represent the interests of the bondholders, and that the action was not brought bona fide on their behalf. The Court (JAMES, and COTTON, L.JJ.), held that the application was irregular and contrary to the practice. JAMES, L.J., said

that if the court were to accede to the motion it would be destroying the representative character of the action. In such actions difficulty was always liable to arise if the plaintiff did not really represent the views of the persons whom be professed to represent. But, if a proper case could be established, an application could be made to the court of first instance to make the applicant a defendant to the action, or to take the conduct of the action away from the plaintiff, on the ground that he did not represent the bondholders generally. This court could not deal with such an application except by way of appeal. COTTON, L.J., said that the case was not like one in which an order had been made binding an estate which was represented by certain persons, and some person who was interested in the estate was absent. Then the court would allow the absent person to come in and appeal from the order. In the present case, the action was a representative one, and the plaintiff sued on behalf of all the other bondholders (except the defendants), not merely on behalf of those who took the same view as himself. An

application ought to be made to the court below; not to the Court of Appeal. The application was accordingly refused, with costs to the plaintiff, but with only one set of costs among the defendants who appeared.-SOLICITORS, Rooks & Co.; Smiles & Co; T. Cave; Markby, Stewart & Co.; James Neal; Harrison, Beal, & Harrison; Batten & Co.; G. & S. Brandon; Travers Smith, & Braithwaite.

WILL-CONSTRUCTION-WORDS DESCRIPTIVE OF MOTIVE OF GIFT.-In a case of Farr v. Hennis, before the Court of Appeal on the 9th inst., the question arose whether certain words in a gift by will of an annuity were merely descriptive of the testator's motive in making the gift, or whether they created a trust in favour of other persons. The testator gave to his niece an annuity of eight shillings

week "towards the support and maintenance of her two children until they shall attain the age of twenty-one years." This was the only provision made by the will for the niece. By a codicil the testator gave some leasehold property to the niece, "to enable her to provide for her children," and referred to his will as "my said will in her favour." One of the children of the niece died, and the other attained twenty-one, and Hall, V.C., held that the words in the gift of the annuity referring to the support and maintenance of the children were merely descriptive of the testator's motive in making the gift, and that they did not cut down the life estate of the niece, and this decision was affirmed by the Court of Appeal (JESSEL, M.R., and JAMES and BRETT, L.JJ.) JESSEL, M.R., said that, standing alone, the words in question might either be only descriptive of the motive of the gift, or create a trust for the children. But the words which the testator had used in the codicil in referring to the will showed that he intended the niece to take the annuity for her life. JAMES, L.J., concurred in this view, and BRETT, L.J., said that he should have been of the same opinion independently of the codicil.—SOLICITORS, W. W. Brown; A. Rutter.

LIMITED COMPANY-RegistrATION-SIMILARITY OF NAME -FRAUD-INJUNCTION-COMPANIES ACT, 1862, s. 20.-In an action of Hendriks v. Montagu, before the Master of the Rolls on the 4th inst., a motion was made by the plaintiff who sued on behalf of the "Universal Life Assurance Society," which was incorporated by statute in 1836, to restrain the defendants from registering a new company of which they were directors under the name of the "Universe Life Assurance Association (Limited)," or any other name likely to mislead the public into the belief that the defendant company was the plaintiff company. The defendant company had not yet been registered or commenced business, and had only temporary offices. Affidavits were filed on behalf of the plaintiff company stating that, in the opinion of the deponents, if the defendant company were allowed to carry on business under their intended name it would be calculated to injure the plaintiffs. By the 20th section of the Companies Act, 1862, it is provided (inter alia) that "no company shall be registered under a Dame identical with that by which a subsisting company is already registered, or so nearly resembling the same as to be calculated to deceive." The plaintiff company was not registered under the Companies Act, 1862. The plaintiffs during the argument asked for leave to amend by raising a case of frand against the defendants. JESSEL, M. R., was of opinion that the motion was founded on a slip made in the construction of the 20th section, inasmuch as that section only applied to prevent one company from registering by a name identical or similar to a name by which a company was already registered under the Act. In the present case the plaintiff company was not registered under the Act, and, therefore, the plaintiffs had DO locus standi under the section. Another equity was attempted to be raised based on the doctrine that the defendants were attempting to appropriate the plaintiffs' business. Whatever right to an injunction the plaintiffs might have hereafter, when the defendants had commenced business, in bis opinion, there was no equity to restrain them from registering under the Act, or from carrying on their business under any name they liked, provided it were not done with the fraudulent intent of taking the plaintiffs' business. At present there was no certain evidence before him that such would be the case, for in a case like the present he could not act on inere opinion, and it might well be the defendants would carry on their business so as to show they did not intend to appropriate that of the plaintiff company. The whole of the plaintiffs' case was, in effect, based upon the section, and he should not allow them now to raise an entirely new case of frand against the defendants. The motion must be refused, and the costs would be costs in the action.-SOLICITORS, Pollock & Co.; W. F. Nokes.

PRACTICE-ACTION FOR SPECIFIC PERFORMANCE-COMPLICATED ISSUES-MIXED LAW AND FACT-NOTICE OF TRIAL BY JURY-TRIAL BEFORE JUDGE WITHOUT JURY-RULES OF COURT, 1875, ord. 36, R. 26-DAMAGES.-In a case of Eerp. Duke of Devonshire, also before the Master of the Rolls, on the 4th inst., the plaintiff had given notice of trial

that, notwithstanding the notice, the action might be tried before the judge without a jury. The action was one for the specific performance of a contract for sale and for the construction and maintenance of a road. There was an issue upon the pleadings as to what passed at certain interviews, and whether there had been a waiver of the plaintiffs' rights under the agreement. The defendant had constructed the road, but not at the agreed levels, and the plaintiff asked that he might be ordered to restore and maintain the road according to the contract. JESSEL, M. R., was of opinion that the action was within ord. 36, r. 26, and that it was a case which it was desirable to try before a judge without a jury. It was one of those cases complicated as to its parts, involving mixed questions of lew and fact, and difficult questions of law, and which on all three grounds came within his decision in Budier v. Burrell (L. R. 5 Ch. D. 512), and was therefore unfit for a jury to try. One question of law would be whether the court had jurisdiction to enforce a perpetual covenant to maintain and repair. He did not know of a case where such a covenant had been enforced, but he was, on the contrary, aware of several where it had been refused, and it would be for serious consideration whether damages would not be the right relief. Another issue was raised whether the defendant had not maliciously carried out his works. That would be a question of expert evidence, and as to such evidence being matters of opinion, he thought a judge was better qualified to deal with them than a jury. It had also been argued that the question of damages was one properly for a jury, and no doubt a jury was the only tribunal to settle the amount of sentimental damages, such as in actions for breach of promise, and the like, but where the amount of damages had to be assessed on expert evidence, he thought a judge or referee was the proper tribunal to do so, inasmuch as he could give resons for his decision, and such damages were capable of being accurately weighed and stated. He therefore acceded to the motion, and directed a trial before himself without a jurv, and made the costs costs in the action.SOLICITORS, Ullithorne, Currey, & Villiers, for Currey, Holland, & Currey; Combe & Wainwright.

BILL OF SALE-SETTING ASIDE-STRINGENT PROVISIONS -EXPLANATION OF CLAUSES TO GRANTEE-FRAUD.-In a case of Long v. Brown, before the Mister of the Rolls, on the 8th inst., the plaintiff, a spinster, claimed to set aside a bill of sale of certain furniture, executed in February, 1878, on the ground that the same had not been properly explained to her, and on the ground of the stringent provisions therein contained. It was contended that the bill of sale was fraudulent on the face of it in consequence of these provisions. The bill of sale gave the grantee the right to take immediate possession at any time, and continue in possession at the expense of the grantor, and also, in addition tɔ the usual powers of sale by public auction and private contract, a power for the grantee to take the furniture at the valuation of a competent valuer. It was admitted that the plaintiff knew the amount of the loan, and that it was o be secured by a bill of sale of ber forniture, and that the amount of the loan was to be repaid in thirty-six monthly instalments. There was a conflict of evidence as to whether the plaintiff knew the terms of all the clauses. The bill of sale used was a lithographed form. JESSEL, M.R., was of opinion that the bill of s le was not fraudulent. He said that, although some of the clauses were very stringent and all in favour of the lender, still he did not see that they were too stringent, having regard to the state of the law at the time when the bill of sale was executed. He was satisfied that the defendant would not have lent the money unless those clauses had been inserted, and he did not think the defendant would have had a good security without them. admitting the plaintiff did not know of the existence of the clauses as to taking possession and taking the furniture at a valuation, he did not think that of itself sufficient to set the bill of sale aside, or that these clauses in themselves made the same fraudulent and void. The plaintiff very well understood the material facts of the transaction, and that the defendant could take possession on default by her in payment of the instalments, or in payment of the rent of the house where the furniture was. In his opinion, therefore, the action failed, and must be dismissed with costs.-SOLICITORS, Richard Davies; W. Maynard.

Even

PROOF IN BANKRUPTCY - GUARANTEED DEBT-RIGHT PAYMENT BY SURETY. In a case

before a jury, and the defendant moved under ord. 36, r. 26, OF PROOF AFTER

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of Ex parte The National Provincial Bank of England, before the Chief Judge in Bankruptcy on the 7th inst., a question arose as to the extent of the right of a creditor, who had taken the guarantee of a surety for his debt, to prove in the liquidation of the principal debtor after the surety had paid the creditor the full amount for which he was liable. The debtor and the surety had given to the debtor's bankers a joint and several bond for £1,000, to secure the balance which might be from time to time due from the debtor to the bankers. The bond contained a clause limiting the total liability of the surety to £500; and a proviso that, in case the debtor should become bankrupt or enter into any arrangement with his creditors, any dividends received by the bankers from his estate should not, so far as concerned the surety, go in discharge of his liability, but that the bankers should, notwithstanding, be entitled to recover on the bond against the surety to the full extent of £500, or so much thereof as should, together with the dividends, amount to 20s. in the pound on the debts for which the bond should be a security. The debtor having filed a liquidation petition, the bankers proved in the liquidation for the whole amount due to them from him. Afterwards the surety paid the bankers £500, and the bond was given up to him. He then proved in the liquidation for £500, and the trustee gave the bankers notice that he rejected their proof to the extent of £500. It was contended, on the authority of The Midland Banking Company v. Chambers (17 W. R. 598, L. R. 4 Ch. 398), that, by virtue of the proviso in the bond, the bankers were entitled to retain their proof for the full amount of their debt. BACON, C.J., held that the trustee was right in reducing the proof. He said that the agreement between the bankers and the surety had nothing to do with the administration of the debtor's estate in bankruptcy. According to the ordinary rule of administration, when the creditor had realized a security, his proof must be reduced by the amount which he had thus received. But this did not affect any right which the creditor might have against the surety in respect of his proof.-SOLICITORS, Wilde, Berger, & Co.; Jones, Blaxland, & Co.

SOLICITOR'S LIEN FOR COSTS-DEEDS DEPOSITED WITH SOLICITOR ON BEHALF OF MORTGAGEE-SUBSEQUENT RETAINER OF SOLICITOR BY MORTGAGOR. In a case of Ex parte Fuller, before the Chief Judge in Bankruptcy on the 7th inst., the question arose whether a solicitor was entitled to a lien for costs under the following circumstances:-The solicitor acted for a mortgagee, and on the execution of the mortgage the title deeds of the property were delivered to the solicitor to hold them on behalf of the mortgagee. Afterwards, the deeds being still in the solicitor's custody, the mortgagee instructed him to sell the property for him, and the solicitor then obtained a promise from the mortgagee to concur in the sale. The solicitor made use of the deeds in preparing particulars and conditions of sale. The property was put up for sale, but no bidding came up to the reserved price, and consequently it was not sold. The mortgagor soon afterwards filed a liquidation petition, and the trustee in the liquidation entered into a contract to sell the mortgaged property. The solicitor claimed a lien on the deeds as against the mortgagor's estate, in respect of the costs of the abortive sale, and it was contended that, after the instructions given to him by the mortgagor, he held the deeds, subject to the rights of the mortgagee, for the mortgagor. BACON, C.J., held that there could be no lien. He said that a lien could attach only where there was a lawful possession of the thing on which the lien was claimed. In the present case the solicitor had no rightful possession of the deeds except for the mortgagee. They were the deeds of the mortgagee, and came into the solicitor's hands only for safe custody on his behalf. The solicitor did not hold them in any right of his own; his possession was that of the mortgagee and nothing more. No lien in his favour could attach by virtue of his accidental possession of the deeds.-SOLICITORS, Torr & Co.; C. Sawbridge.

Lord Justice Lush, at the opening of the Leeds Assizes, announced that he should, at the earliest moment, read through the pleadings in order to ascertain whether any of the causes were unfit for trial by jury, so that in cases where other modes of trial were alone possible the parties might be at once informed of it, and the expense of bringing witnesses to the court be spared them.

CASES BEFORE THE BANKRUPTCY
REGISTRARS.

(Before Mr. REGISTRAR Pepys, acting as Chief Judge.)
Feb. 1.-Re Gotobed.

The court has no power to limit the time prescribed by rule 258 for posting the notices to creditors of the first general meeting under a liquidation petition.

But where, through an oversight on the part of the solicitor's clerk, some of such notices have been brought into the office late, the court will allow a new first meeting to be convened.

The debtor presented a petition for liquidation under the 125th and 126th sections of the Bankruptcy Act, 1869, on the 15th of January, 1881, and the first meeting of creditors was appointed to be held on the 29th.

By rule 258 it is provided that notices summoning any first general meeting shall be posted at least fourteen days before the day on which the meeting is to be held.

Some of the notices in this case were brought into the liquidation office on the 15th, and were sent to the creditors on the same day, but, through an oversight on the part of the solicitor's clerk, the remaining notices were not carried in until the 17th. At the first meeting resolutions were passed, there being only one dissenting creditor, accepting a composition of sixpence in the pound, to be secured to the satisfaction of a creditor. On the 31st the resolutions were filed, when the chief clerk took the objection that some of the creditors had received only twelve days' notice of the meeting at which they were passed, and he declined to allow the notices of the second meeting of creditors to go out unless the court ordered it.

Brough, for the debtor, applied in the alternative, either for leave to issue the notices of the second meeting, or to.convene a new first meeting of creditors. He referred to rule284, and to the common practice of extending the time allowed by it for filing the resolutions of creditors.

Mr. REGISTRAR PEPYS was of opinion that the court had no power to limit the time prescribed by rule 258 for giving notices to the creditors of the first meeting. In the present case some of the notices were insufficient, and the resolutions passed by the creditors were informal, and could not be registered. It was useless, therefore, to send out notices for the second meeting, and all he could do, under the circumstances, would be to allow a new first meeting of creditors to be convened. Solicitor, Abbott.

(Before Mr. REGISTRAR HAZLITT, acting as Chief Judge.) Feb. 4.-Ex parte Harness, Re Kight.

The Court of Bankruptcy has no jurisdiction to order the holder of a valid bill of sale, executed by a person who becomes bankrupt, to render an account of the property sold, or to tax the charges in reference thereto.

This was an application on behalf of C. B. Harness, the trustee under the bankruptcy of Walter M. Kight, for an order for the delivery to the applicant of an account of the sale of property comprised in a bill of sale, dated November 2, 1880, given by the bankrupt to one Feast; and also for an account of the charges of Feast (an auctioneer) of the sale of such property, and that such charges be taxed by one of the masters of this court'; and for an order that Feast pay over to the applicant such sum as might be found to be due from him to the bankrupt's estate.

It appeared that on the 2nd of November, 1880, W. M. Kight executed a bill of sale comprising his stock-in-trade, fixtures, &c., of the estimated value of £1,500, to Feast, as security for the sum of £115.

On the 4th of November Feast took possession, and on the 23rd he sold the property included in the deed. On the 4th of November Kight was adjudicated a bankrupt. Feast paid to the trustee under the adjudication a sum of £167, and he had been required to furnish an account of what the sale realized, and the expenses, but he had not done so. The trustee stated that Feast had informed him the sale had. realized about £500, but he paid over £167 only.

E. C. Willis, for the applicant.

H. Reed, for the respondent.-The court has no jurisdiction to entertain this application. All that appears from the evidence is that a bill of sale was given by a person who became bankrupt to Feast. The validity of that deed is not impugned, either as an act of bankruptcy or a fraudulent preference, or under the Statute of Elizabeth.

The present claim'does not arise by reason of the bankruptcy, and the trustee has no higher right than the bankrupt, Ex parte Brown, Re Yates (L. R. 11 Ch. D. 148). The court had no jurisdiction whatever to tax the charges of the holder of a bill of sale. Ex parte Dicken, Re Pollard (27 W. R. 731, L. R. 8 Ch. D. 884) was a somewhat similar case. He also cited Ex parte Musgrave (27 W. R. 372, L. R. 10 Ch. D. 94).

Willis in reply.-The trustee is at all events entitled to an account of the sale of the property.

Mr. REGISTRAR HAZLITT said the case might be a proper one for an account, but he thought Ex parte Musgrave applied. That was the decsion of a superior court, and was binding upon him. The Court of Bankruptcy had no jurisdiction to entertain the application, and it must be dismissed, with costs.

Solicitor for the trustee, H. E. Kisby.
Solicitor for the respondent, E. Lloyd.

(Before Mr. REGISTRAR HAZLITT, acting as Chief Judge). Feb. 4.-Ex parte Williams and another, Re Payne and Kenneth.

Trustees under a liquidation allowed to disclaim a debtor's interest in a lease, although they have been been in possession of the property for nearly two years, but the court ordered them to pay rent up to the date of the disclaimer.

This was an application on behalf of the trustees of the separate estate of William Payne, a liquidating debtor, for an order that they might be at liberty to disclaim all their interest in certain premises situate in Lowndes-street.

By an indenture of lease dated the 30th of March, 1861, and made between Joseph Clarkson of the one part, and Edward Owens of the other part, the premises in question were leased to E. Owens for a term of nineteen and a quarter years from Christmas, 1862, at a rental of £200 per year. The premises were, on the 9th of March, 1867, assigned by Owens to William Radermacher, since deceased, and afterwards by an assignment dated October 3, 1876, assigned by Mary Louisa Radermacher and John Radermacher, the executrix and executor of W. Radermacher, to William Payne the elder, and William Payne the debtor, subject to the payment of the rent, and to the covenants and conditions by and in the said indenture reserved and contained, and also subject to an additional rent of £120 for the residue of the term.

By an agreement dated in October, 1872, made between Wm. Payne, sen., and the debtor of the one part, and Elizabeth Sparrow and Ann Pryce of the other part, the upper portion of the premises was let to them for the residue of the term, excepting a few days, at an annual rental of £200, Wm. Payne, sen., died on the 28th of May, 1877, and the debtor had proved the will as one of the executors. The lease formed part of the partnership property of Wm. Payne, sen., and the debtor, and it appeared that by his will W. Payne, sen., bequeathed his moiety in the lease to the debtor. On the 21st of April, 1879, the debtor, W. Payne, conjointly with T. R. Kenneth, filed a petition for liquidation by arrangement with creditors, and at the first meeting the creditors passed a resolution that the affairs of the debtor, W. Payne, should be liquidated by arrangement, and two trustees were appointed. The lease formed part of the separate estate of the debtor, and it appeared that the trustees had, since their appointment, used the premises, and the lessor alleged that, during that period, the premises had become deteriorated in value, and were now out of repair.

H. Reed, in support of the application, admitted that the trustees had been in possession of the premises, but he contended that the right to disclaim, given by the 23rd section, was not thereby affected.

E. C. Willis, for the lessor.-The trustees have occupied the premises for nearly two years, and the court ought not to sanction a disclaimer after the property has been allowed to deteriorate in value: Saint v. Pilley (23 W. R. 753, L. R. 10 Eq. 137). The trustees must now be taken to have elected to accept the lease. If a trustee neglects to give notice of the rejection of a proof, he will be taken to have admitted it: Ex parte Kemp (42 L. J. Bkcy. 26).

W. A. Pocock, for W. Radermacher's executors, and th sub-tenants. The disclaimer will operate to the injury of the sub-tenants, and the court ought not to exercise its discretion in favour of the trustees. In Re Wilson (20 W. R

363, L. R. 13 Eq. 186), a somewhat similar case, Bacon, C.J.,. refused to allow a trustee to disclaim a lease.

Caldecott, for the personal representatives of W. Payne, senior.

Upjohn, for Owens.-The object of section 23 is to give the trustee a reasonable time to sell or dispose of the lease. In the present case the trustees practically made their election two years ago, and they ought not now to be at liberty to disclaim: rule 28 (of 1871). Assuming that the case fell within section 23, Owens would be in the position of the 242), and would remain liable to the rent. defendant in Smyth v. North (20 W. R. 683, L. R. 7 Ex. Under the circumstances the court might order a surrender of the lease. Reed, in reply.-The disclaimer when executed will operate as a surrender: section 23; and it is contrary to the practice to order a surrender. With reference to Re Wilson it is stated in Robson's Law of Bankruptcy (3rd ed.), p. 407, "The circumstances of this case were very special, and cannot be regarded as furnishing a precedent of general utility. Indeed, it would be rather difficult to say what would be the legal effect of a disclaimer in the terms of the order." Section 23 was introduced into the present Act to get rid of the difficulties existing under the old law, and a trustee may now disclaim, although he has endeavoured to sell, or had taken possession, or exercised any act of ownership in relation to the property: Ex parte Davis, Re Sneezum (L. R. 3. Ch. D. 463). If the respondents suffered any damage by reason of the disclaimer, they might prove as creditors.

Mr. REGISTRAR HAZLITT held that, notwithstanding the occupation of the premises by the trustees, they were now entitled to disclaim in accordance with the terms of section 23. The complication which existed in this case was really the very reason why the trustees desired to disclaim. He thought the trustees were entitled to an order, which would be to disclaim whatever interest they had in the lease, but they must pay the rent up to the date of the disclaimer. Solicitors for the trustees, Reed & Lovell. Solicitors for the lessor, Kays & Jones.

Solicitor for Rademacher's executors, G. H. Child. Solicitors for W. Payne's, sen., representatives, Thomson & Edwards.

Solicitors for Owens, Schultz & Son.

SHERIFF'S COURT, KIRKCUDBRIGHT.

(Before SHERIFF NICHOLSON.)

Brown v. Thomson.

Ground Game Act, s. 6.

The facts of this case are explained in the following note by the sheriff:

"Ground Game

Note.-The prayer of the petition is to have the defender interdicted (1) from preventing the pursuer's gamekeeper, and others having his authority, from entering on the lands occupied by the defender, as farmer, in pursuit of game, and (2) from employing spring traps for the purpose of killing rabbits on the said lands, except in rabbit-holes. The facts on which this application is based are admitted by the defender, and, as regards the first part of the prayer, he expresses his regret that he interfered with the pursuer's gamekeeper and friends in the exercise of their right to enter on the lands in pursuit of game, and does not object to the granting of interdict. But, as regards the second, he pleads that the statutory probibition of the Act, 1880," founded on by the pursuer, does not control the common law right to kill rabbits possessed by him at the date of the passing of the Act. The prohibition in question is contained in section 6 of the Act, which is in these terms:-" No person having a right of killing ground game under this Act or otherwise shall use any firearms for the purpose of killing ground game between the expiration of the first hour after sunset and the commencement of the last hour before sunrise; and no person shall, for the purpose of killing grouad game, employ spring traps except in rabbit holes, nor employ poison; and any person acting in contravention of this section shall, on summary conviction, be liable to a penalty not exceeding two pounds." The defender has a right as tenant of his farm to kill rabbit, and he has exercised it since 1872, when his lease began, without any restriction as to the means used. The above enactment, from and after 7th of September, 1880, prohibited him, and every other person in the United Kingdom, having any right to kill ground game, "to employ spring traps except in

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