would have had no difficulty in proving a minimum cost, and then, if the defendant did not choose to show his books, the judge would have been well warranted in assuming that the defendant's cost of manufacture did not exceed that minimum, and in charging him accordingly. But to disallow the defendant the whole Cost of manufacture was, in fact, to change the judgment from a judgment for profits into a judgment for gross proceeds of sale. JAMES, L.J., said that, assuming that the defendant had acted improperly in throwing obstacles in the way of the plaintiffs, still the court would not be justified in saying judicially that which it knew not to be the fact-viz., that the article cost nothing to manufacture, and in punishing the defendant by depriving him of the whole cost of manufacture. If there was absolutely no evidence of the cost, the court would have to fix a nominal sum for the cost, but that was not so in the present case.-SOLICITORS, E. Woodard; J. & R. Gole.

could not help thinking that the Legislature must have inserted the words in the proviso ex abundanti cautela in case there might possibly be some such provision in a general or special Act, and not with a view of limiting the generality of the section. On the whole, therefore, although not feeling very confident, he was of opinion that the Railway Commissioners had jurisdiction to decide the matters in difference between the two companies, and he should therefore discharge the rule nisi with costs.-SOLICITORS, Nelson ; Terrell & Atkinson; Solicitor to the Board of Trade.

TERCHANGE OF TRAFFIC-AGREEMENT
DIF-
TO REFER
FERENCES TO SINGLE ARBITRATOR-JURISDICTION OF RAIL-
WAY COMMISSIONERS to IntervENE-REGULATION OF RAIL-

WAYS ACT, 1873, s. 8.-In a case of Great Western Railway Company v. Waterford and Limerick Railway Company, noted ante, p. 297, cause was shown against the rule nisi then stated to have been granted in prohibition, before the Master of the Rolls on the 18th inst. The defendants bad applied to the Railway Commissioners to decide upon certain disputes that had arisen between them and the plaintiff ander an agreement entered into for the interchange of traffic in pursuance of a power in a special Act. By the agreement all disputes were to be referred to a single arbitrator, to be appointed as therein mentioned. The Master of the Rolls granted, on the 14th inst., a rule wisi, returnable on the 18th, prohibiting the Railway Commissioners from hearing the application. By section 8 of the Regulation of Railways Act, 1873, "where any difference between railway companies is under the provisions of any general or special Act, passed either before or after the passing of this Act, required or authorized to be referred to arbitration, such difference shall, at the instance of any company party to the difference, and with the consent of the commissioners, be referred to the commissioners for their decision in lien of being referred to arbitration: Provided that the power of compelling a reference to the commissioners in this section contained shall not apply to any case in which any arbitrator has, in any general or special Act, been designated by his name or by the name of his office, or in which a standing arbitrator having been appointed under any general or special Act the commissioners are of opinion that the difference in question may more conveniently be referred to him." The Railway Commissioners had in the meantime been made parties to the action, was shown in their behalf, and on the part of the defendants, the Waterford Company, against the rule. It was stated that the Railway Commissioners had, since 1875, exercised jurisdiction in similar cases, and two cases before them are reported in which they have held they had jurisdiction. The main contention in favour of the jurisdiction was that no general or special Act could be found where an arbitrator was appointed by name or by the name of his office, and it was therefore argued that the words of the proviso were mere surplusage, and that the commissioners had jurisdiction in all cases of disputes between two railway companies. For the plaintiffs it was contended that they came within the words of the proviso, and that the jurisdiction of the com missioners was excluded. JESSEL, M.R., was of opinion that the section was by no means easy to construe, but he must not forget that he was asked, sitting as a single judge, to overrule the opinions of three judges. He should not do so unless he felt very clearly that their construction was wrong, and this he was by no means prepared to say. Although, no doubt, the proviso created great difficulty, still, in his opinion, the meaning of the section was that all disputes between two railway companies could be adjudicated upon by the commissioners. No one had been able to discover any general or special Act in which specific differences between two railway companies had been referred to a named arbitrator, or to an arbitrator by the name of his office, and he

and cause

WILL-GENERAL POWER OF APPOINTMENT EXERCISED BY GENERAL DEVISE-SUBSEQUENT WILL REVOKING DeviseWILLS ACT, s. 27.-In a case of Sotheran v. Dening, before the Master of the Rolls on the 21st inst., a question arose whether a power to appoint by will had been well exercised under the following circumstances:-By a settlement made in 1870, certain real estate was directed to be held on trust for such persons as A., whether covert or sole, should by will fee. A. made a will in 1871, and thereby, in exercise of the power, appointed the real estate to the plaintiff in fee. In 1877 A. made another will, commencing "I revoke all former wills," which contained a general devise of all her real estate in favour of the defendant, but not in terms referring to the power. In 1878 A. made a third will, dealing with her personal estate only, but concluding with the words, "Hereby revoking all former or other wills, I declare this to be my last will and testament." The real estate subject to A.'s power was claimed (1) by the plaintiff, on the ground that the appointment by the will of 1871 was not affected by the appointment in the first will was revoked by the general later wills; (2) by the defendant, on the ground that the devise operating as an exercise of the power in the will of and (3) by the representative of B., on the ground that the 1877, and that this will was not affected by the will of 1878; appointments contained in the prior wills had been revoked. that the property went as in default of appointment. JESSEL, by the revocatory clause in the will of 1878, and consequently M.R., was of opinion that the third will had revoked both the former wills, and that the property remained unappointed. -SOLICITORS, Gunnet & Son; J. W. Smith.

PRACTICE-ORD. 16, R. 17-CROSS-CLAIM AGAINST CODEFENDANT.-A summons in an action of Benecke v. Craddock, adjourned into court and heard before ViceChancellor Hall on the 19th inst., raised a point of practice as to the determination of questions between co-defendants. The action was brought by a mortgagee for foreclosure and sale of the interest of Messrs. Craddock and Smith in the plant, machinery, and agreements for leases of a colliery, under an agreement made between themselves and one Senior. Senior had been made a co-defendant in the action with Craddock and Smith, and claimed sums due to himself under the agreement, and the right to retain possession of the property until he was paid. Craddock and Smith set up in their statement of defence a cross-claim in respect of certain money balances against Senior. The present application was by Craddock and Smith that they might have the leave of the court that service of their statement of defence upon Senior might be notice of their cross-claim. The rule (ord. 16, r. 17) under which the application was made provides that "where a defendant is, or claims to be, entitled to contribution or indemnity, or any other remedy or relief over against any other person, or where from any other cause it appears to the court or a judge that a question in the action should be determined, not only as between the plaintiff and defendant, but as between the plaintiff, defendant, and any other person, or between any or either of them, the court or a judge may, on notice being given to such last-mentioned person, make such order as may be proper for having the question so determined." His lordship, in the present case, considered that it would be highly inconvenient that the question between the co-defendants should be tried in the action, and doubted, moreover, whether the application was right in form. The summons was therefore dismsised, with costs.-SOLICITORS, Bradford & Farish; Torr & Co.

SOLICITOR AND CLIENT-CUSTODY OF TITLE DEEDS-LIEN FOR COSTS-ABSCONDING SOLICITOR.-On the 24th inst., & motion was heard before Vice-Chancellor Hall in an action of Molloy v. Kilby, whereby the plaintiff sought to obtain

and, at the adjourned first meeting, held on the 26th of January, the creditors passed a resolution to accept a composition of two shillings in the pound, one-half payable forthwith, and the other half by instalments. The resolution was duly filed, and the second general meeting appointed to be held on the 8th of February, when four creditors whose debts amounted to £157 voted for the confirmation of the resolution, and foar creditors to the amount of £106 dissented from it. The resolution was not, therefore, carried by the statutory majority.

Thomas Noton (solicitor), for the debtor, applied for leave to convene a new first meeting of creditors, He stated that one creditor had taken proceedings against the debtor and was in a position to sign judgment, and two others had obtained orders of committal against him, and it was desirable they should be restrained.

Mr. REGISTRAR HAZLITT.—I do not see any special circumstances to justify the application. The creditors have met, and the creditor has not carried the resolution. I cannot allow a new first meeting to be convened, but leave may be given to file a fresh petition for liquidation.

Feb. 18.-Re Nobbs.

New first meeting of creditors allowed in a case where, partly owing to the confusion and noise which prevailed at the first meeting, no resolution was put, and creditors to a large amount desired to accept a composition.

The debtor presented a petition for liquidation on the 27th of January, and the first meeting of creditors was appointed to be held on the 15th of February. The debts amounted to about £5,500 in the aggregate, and creditors to the extent of £575 resided in Germany. At the first meeting considerable confusion and noise prevailed. The proxies of some of the foreigu creditors did not appear to be aware of their rights or duties, and the proceedings terminated without any resolution being put to the meeting.

H. Wyatt Hart applied for leave to convene a new first meeting of the creditors. He produced an affidavit which showed that creditors to the extent of £4,600 out of a total of £5,500 desired to avoid the expenses of a bankruptcy by accepting a composition from the debtor; and he contended, upon the authority of Ex parte Terrell (25 W. R. 153, L. R. 4 Ch. D. 293), that the court might properly allow a new meeting to be held. The omission to pass a resolution was a mistake on the part of the creditors, consequent upon the confusion and noise which prevailed at the meeting.

Mr. REGISTRAR HAZLITT held that, as no resolution had been put to the creditors at the first meeting, and a large body of the creditors now desired to accept a composition, a new first meeting might be allowed.

Solicitor, Greening.

SOLICITORS' CASES
COMMON PLEAS DIVISION.

(Sittings in Bancs, before GROVE and LINDLEY, JJ.)
Feb. 21.-Barker v. Stone.

The facts of this case were as follow:-An action for

damages had been brought in a county court by the plaintiff against a man named Wearn, the present defendant Stone being employed to conduct the action as the plaintiff's solicitor. The judge intimated at the conclusion of the case that his judgment would be for the plaintiff, in any event, for £25, but reserved formal judgment in order to consider whether the plaintiff was not entitled to £15 more. At the next sitting of the court judgment for the full amount was given; but in the interim between the sittings of the two courts, one Harris, hearing that an action had been brought, consulted Stone with reference to a claim which he had on Wearn's furniture and effects. Stone, without consulting the plaintiff or telling Harris that he had been solicitor in the action, advised Harris to obtain a bill of sale with a view to perfect his title, and Harris, taking this counsel, procured and registered a bill of sale to the prejudice of Barker, who thus lost the fruits of his judgment. Barker then sued Stone in the county court for negligence, and the judge, though negativing negligence, held that there had been a distinct breach of faith on the part of the defendant, and gave judgment for the plaintiff. Against this judgment the defendant now appealed.

Cave, Q.C., and Stone appeared for the defendant; Kerans for the plaintiff.

After considerable argument,

GROVE, J., gave judgment in favour of the plaintiff. -There were three grounds of action against the defendantviz., neglect, breach of duty, and misconduct. Those terms might or might not be applied to the same kind of action, but, in his judgment, whether the defendant's conduct was more properly described as breach of duty or as neglect, either was sufficient to support the action. It could only not be a breach of duty by the defendant alleging ignorance, in which case it would be negligence; but to his mind it seemed hardly credible that a solicitor should be ignorant of so manifest a duty as, having been actually retained for one client, to accept duties for another in direct conflict with the interests of the first. It was not necessary that there should be collusion between the solicitor and his second client. The judgment of Chief Justice Tindal in the case of Taylor v. Blacklow, which had been cited in the argument, sufficiently showed that a breach of duty might be actionable. That was a case where the defendant, an attorney, being employed to raise money on mortgage for the plaintiff, disclosed to the proposed lender certain defects in the plaintiff's title, in consequence of which the plaintiff was exposed to certain actions at the suit of the proposed lender and suffered certain damage. Chief Justice Tindal in discussing the conduct of the defendant, said that, instead of faithfully discharging his duty of raising money upon his client's deeds, he disclosed defects of title to the very person who was about to lend. In consequence of this disclosure the plaintiff sustained certain injuries. There was, therefore, a breach of duty on the part of the defendant which there was no ground for saying, was not actionable. This judgment he (Grove, J.) adopted as strictly applicable to the present case. A pregnant instance of the hardship on the plaintiff had been afforded by the defendant's own conduct, for, according to the evidence, he admitted that he felt himself incapacitated from taking any part in impugning the bill of sale, which it might have been his imperative duty to do on behalf of the plaintiff in securing to him the fruits of his judgment. It had been argued that if the defendant had not advised Harris some other solicitor would have done so and to the

same effect. This argument might possibly affect the question of damages, but it did not touch the main question, his answer being that it was not the defendant's business to consider whether or not Harris would consult anybody else. His one and only duty was to protect the interests of his client, the plaintiff. Upon the whole question, therefore, he was clearly of opinion that there had been a palpable breach of faith, and that the judgment of the county court judge was right, not only in respect to his decision on the merits, but also with regard to the damages, which ought not to be disturbed.

LINDLEY, J., concurred. The duties of a solicitor to a client were positive and negative, and the latter were as clear and as definite as the former. It was the duty of a solicitor to abstain from doing all acts inconsistent with his positive duty towards his client and from any act which might prejudice or defeat that client's interests. Mr. Cave had relied on various instances which he had referred to of solicitors acting for different clients with different interests, such as creditors to a bankrupt's estate, and no doubt these cases occurred every day and properly; but the answer was that in such cases there was no direct conflict of interests. Here there was, and he had no doubt whatever that the defendant's conduct was manifestly on the wrong side of the line.

Cave asked for leave to appeal, but

GROVE, J., said that, although he agreed the case was important, yet the court were so absolutely without doubt in this decision that they could not encourage such a course.— Times.

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REFRESHERS.

THE following correspondence has been published :"New-court, Temple, Feb. 17. "My dear Mr. Clabon,-My attention has been called by members of the bar to the fifth paragraph in the suggestions made by the Council of the Incorporated Law Society, published in the Times of yesterday. It is as follows:

5. There can be no reasonable doubt that the main

cause of the heavy expense of modern litigation is due to the largely increased fees paid to counsel of late years, and especially to the comparatively recent practice of giving daily refresher fees, which were all but unknown a quarter of a century ago. It is therefore recommended that daily refreshers should be abolished, as being one of the principal causes of the undue lengthening of trials, and the increased expense thereby occasioned.'

"It appears to me and others that most persons would regard the above statement as containing a direct charge against the honour-even the honesty-of every member of the bar; for it apparently means that barristers who are in the habit of receiving refreshers intentionally prolong cases to an unnecessary length (and, therefore, injurious to their clients), for the sake of pecuniary advantage to themselves.

"I cannot think that the Council of the Incorporated Law Society intended to prefer such a charge. But still, the words employed are so likely to be construed in the sense I have indicated, that I venture to address you, as President of the Incorporated Law Society, and to express the hope that the meaning which has been attached to the above suggestion is incorrect, and that the council had no intention of making any accusation against an important section of the profession to which they themselves belong.

"I shall be glad if you will place this letter at your early convenience before the Council of the Incorporated Law Society. "I am, dear Mr. Clabon, yours very truly,

"HENRY JAMES.

"J. M. Clabon, Esq., President of the Council of the Iccorporated Law Society."

"Chancery-lane, W.C., Feb. 18. "Dear Mr. Attorney-General,-I have laid before the council your letter of the 17th inst., referring to the fifth paragraph of the suggestions made by the Council of the Incorporated Law Society with regard to the expense of and delays in proceedings under the Judicature Acts, and saying that it appears to you, and others, that most persons would regard the statements contained in that paragraph as containing a direct charge against the honour-even the honesty -of the bar, as apparently meaning that barristers who are in the habit of receiving refreshers intentionally prolong cases to an unnecessary length (and, therefore, injuriously to their clients), for the sake of pecuniary advantage to themselves.

"The council unanimously direct me to assure you, and through you the whole bar, that they did not intend to prefer such a charge, and that the meaning which has been attached to the suggestion in paragraph 5 is incorrect. The council had no intention of making any accusation against so important a section of the profession to which they themselves belong. "I have the honour to be, dear Mr. AttorneyGeneral, your faithful servant,

"JOHN M. CLABON, President. "To her Majesty's Attorney-General, Q.C., M.P., &c., 1, New-court, Temple."

"House of Commons, February 18. "My dear Mr. Clabon,-I have to acknowledge the receipt of your letter of to-day's date.

"The members of the bar will, I am sure, be glad to learn that the meaning which had been attached to the suggestion contained in paragraph 5 of the communication from the Council of the Incorporated Law Society to the Judicature Acts Committee is incorrect. I hope you will forgive me for saying that I think your letter would be read with greater pleasure if we could learn from it what meaning the members of the Council of the Incorporated Law Society attach to the words contained in their suggestion.

"Believe me, yours very truly,
"HENRY JAMES."

"J. M. Clabon, Esq."

"Incorporated Law Society, Chancery-lane, W.C., Feb. 23, 1881.

"Dear Mr. Attorney-General,-I have laid your letter of the 18th inst. before the Council of the Incorporated Law Society, and with reference to the concluding passage, in which you intimate that my letter would have been read with greater pleasure if the bar could learn from it what meaning the members of the council attach to the words contained in their suggestions (paragraph 5), I have been requested to state that their meaning and intention were to point out the objections to the system, and not to make personal charges against those who use it.

"In making the suggestions the council were guided simply by a desire to reduce, in the interests of the public, the expenses of legal proceedings; and as their own branch of the profession has frequently been charged with unneces sarily lengthening legal documents, because the payment for their preparation is according to length, the fault being in the system (which they have long striven to get altered) and not in themselves, so the suggestion was that the system of 'refreshers' has an inevitable tendency to the result indicated, the system again, and not the individuals, being at fault.

"It must be obvious that any change reducing expenses in the mode under discussion would diminish the fees of solicitors as well as the fees of the bar to the benefit of the suitor.

"I have already assured you that the council in making the suggestion had not the least intention to bring any accusation against the bar or any member of it, and I will only add that it would give the council pleasure if in any way they could act jointly with the bar in diminishing the cost of legal proceedings for the public advantage. "I am, dear Mr. Attorney-General, yours very faithfully, "JOHN M. CLABON, President. "To her Majesty's Attorney-General, Q.C., M.P., 1, New-court, Temple.'

OBITUARY.

MR. GERALD WOLFE LYDEKKER. Mr. Gerald Wolfe Lydekker, barrister, died at his residence, The Lodge, Harpenden, on the 12th inst. Mr. Lydekker was the only son of the late Dr. Richard Lydekker, of St. Albans, and was born in 1811. He was educated at Eton and at Trinity College, Cambridge, where he graduated in the first class of the classical tripos in 1833. He was called

to the bar at the Inner Temple in Hilary Term, 1841, and he practised for several years on the Home Circuit, and at the Essex, Herts, and St. Albans Sessions. He had a fair criminal business at the assizes and sessions, but he retired from practice a few years after his call to the bar, on succeeding (by his father's death) to the estates at Harpenden. Mr. Lydekker was a magistrate for Bedfordshire, Hertfordshire, and the Liberty. of St. Albans, and since 1875 he had been deputy-chairman of quarter sessions for the St. Albans Division of Hertfordshire. He was also a director of the Clerical, Medical, and General Life Assurance Company. Mr. Lydekker was buried in the family vault at St. Peter's Church, St. Albans, on the 16th inst. He was married in 1848 to the daughter of the late Mr. Serjeant Peake, and he leaves four sons.

MR. JOSEPH AUGUSTUS YORKE.

Mr. Joseph Augustus Yorke, barrister, died on the 14th inst. Mr. Yorke was the only son of the late Hon. and Very Rev. Grantham Munton Yorke, Dean of Worcester, and was grandson of the third Earl of Hardwicke. His mother was the daughter of Sir Henry Conyingham Montgomery, Bart. He was born in 1831, and was called to the bar at the Inner Temple in Easter Term, 1854. He formerly practised on the Home Circuit, and for several years he held a commission in the Inns of Court Rifle Volunteers. He was secretary of presentations to Lord Chelmsford when Lord Chancellor, and in 1867 he was appointed one of the registrars of the Leeds Bankruptcy Court, but the office was abolished by the Bankruptcy Act, 1869, and he retired upon a pension. In 1875 he was appointed by Sir Richard Cross