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■-and the visa of the Russian Consul In London. He •visited the fair at Nijni Novgorod, but upon reaching St. Petersburg and presenting his passport, he was summoned to the bureau da Strangers, and was asked whether he was a Jew, and on his answering iu the affirmative , ho was ordered to leave for the frontier within twenty-four hours. Inquiries addressed by Lord •granville to Lord Dufferin elicited a reply that Mr. Lewisohn's "notice to quit" was in accordance with Russian law, and that he could not be allowed to go again to 8t. Petersburg. The 1st article of the Commercial Treaty made between Great Britain and Russia in 1859 provides that " the subjects of each of the two ■contracting parties respectively shall have liberty freely and securely to come . . . to all places, ports, and rivers in the dominions and possessions of the other, to which other foreigners are or may bo permitted to come," but the article concludes with the following words:— "It is understood, however, that the preceding stipulations iu no wise affect the laws, decrees, and special regulations regarding commerce, industry, and police, in force iu each of the two countries, and generally applicable to foreigners." It appears that in the following year the Russian Government issued an ukase which declared that foreigners might enter all the merchants' guilds, and enjoy all the rights of natives, but that in the case of Israelites, only those who were "connus par leur position sociale et par la vaste itendue de leurs retirements commerciaMX," might enter into commerce, and then only as bankers, manufacturers, or holders of leasehold property, and upon the special authorization of the Ministers of Finance and Foreign Affairs. Lord GranVille's application to the Russian Government for redress to Mr. Lewisohn for the pecuniary loss sustained by his expulsion and continued exclusion from Russia appears to have been entirely unsuccessful. Assuming that tho provisions of the 1st article of the Treaty of 1859 can be affected by subsequent legislation on the part of either of the contracting States, it may be questioned whether the ukase of 1860 can relate to a Jewish foreigner who merely visits Russia for the purpose of trading.
The Movement in favour of electing ladies to offices of responsibility appears to be making progress, since it is stated that in the parish of Beeford, Yorkshire, a female •churchwarden has recently been elected. There appears to be no doubt that women are eligible for this office. In Morgan v. The Archdeacon of Cardigan (1 Salk. 166), the Court of King's Bench granted a mandamus to the archdeacon to swear in a churchwarden duly elected, for "as it is in the peril of the parishioners, so they may choose and trust whom they think fit." The grounds of disqualification are apparently not very numerous, but a churchwarden must reside or carry on business within the parish at the time of his election; and in Anthony v. Seger (1 Hagg. Cons. 9), an alien was held to be disqualified. In that case Lord Stowell observed: "If a parish had returned a Papist, or a Jew, or a child of ten years of ago, or a person convicted of felony, I conceive the Ordinary would be bound to reject." The authority of Bex v. Stubbs (1 T. R. 39S), which decided that a woman may be elected overseer of a parish, would doubtless extend to the case of a female churchwarden; but Mr. Prideaux (" Churchwarden's Guide," 14th ed., p. 5) states that "there can be little doubt that the courts would relieve her from the burden of serving, unless the necessity of the case required that she should do so."
Police Witnesses have on various occasions been called to order by magistrates and judges for exhibiting parti zanship. In a case which was tried before Mr. Justice Fry on Tuesday last there were several police
constables examined, and the learned judge had occasion to lecture one of these witnesses for showing bias. In the course of his examination one of the policemen was asked whether he had made a report on the matter in hand, and in reply stated that he had made a report, and that it was under his own control at the present time. The remark of the learned judge may be commeuded to the consideration of the heads of the police. He said, "It is part of the regular duty of police constables to make reports of every matter in which they are engaged, and these reports are always in existence, but in my experience police constables who are witnesses never bring them into court."
STATEMENT OF THE CONSIDERATION IN BILLS OF SALE.
No section of the Bills of Sale Act, 1878 (41 & 42 Vict, c. 31) has given rise to more difficulty than that which provides for the statement in the deed of the consideration for which it was given. By section 8 it is enaoted that " every bill of sale to which the Act applies . . . shall set forth the consideration for which such bill of sule was given," otherwise such bill of sale shall be deemed fraudulent and void as against trustees in bankruptcy and execution creditors.
The decisions upon this section are already rather numerous, and at first sight somewhat conflicting, but we think that, with two or three exceptions, they are capable of being reconciled. We propose to consider the most recent cases ou the subject, and to endeavour to deduce from them principles which may be useful for future guidance; but before doing so it may be well briefly to advert to some of the earlier decisions.
In Ex parte Carter, lie Threappleton (27 W. R. 943, L. R. 12 Ch. D. 908), the Chief Judge in Bankruptcy held that the consideration of a bill of sale was not sufficiently set forth to satisfy the requirements of section 8 under the following circumstances :—The bill of sale recited that in June the mortgagor had applied to the mortgagee for a loan of £340. In fact it appeared that £240 had been advanced in different sums iu the months of March and April by tho mortgagee to a firm consisting of the mortgagor and another persou, and that the remaining £100 was advanced in June, after dissolution of the partnership, to the mortgagor alone. The Chief Judge appears to have thought that the striugeut language of the section left him no alternative but to hold the bill of sale void. For reasons, however, which will be presently given, it may bo doubted whether this decision would now be followed. The question came before the Court of Appeal soon afterwards in Ex parte National Mercantile Bank, Be Haynes (28 W. R. 84^ L. R. 15 Ch. D. 42), where the consideration was stated to be £2,050 paid by the bank to the grantor at or before the execution of the bill of sale. It appeared that the grantor had agreed to apply £550 in taking up certain acceptances on which he was liable to the bank, but which were not due at the time tho deed was executed. When the £2,050 was paid to him he at once handed back £550 to the bank for that purpose. The Chief Judge again held that the consideration was insufficiently set forth, and that the deed was therefore void, but the Court of Appeal reversed this decision, on the ground that, although the consideration must be truly stated, it is not necessary that a collateral agreement as to the application of the consideration should be set forth; and with respect to Ex parte Carter, Baggallay, L. J., observed that he was by no means satisfied that he should have agreed with the decision in that case. A similar point was raised iu the case of Hamlyn v. Bttteley (28 W. R. 956, L. R. 5 C. P. D. 327), where the court held that the consideration for a bill of Bale was sufficiently stated as " the sum of £182 3s. now paid by the grantee to the grantor," though in fact, at the request and with the assent of the latter, the money was paid as follows :— £8 3s. 3d., and £103 17s. 3d., to discharge two executions against the grantor's goods; £25 0s. 9d. to the attesting solicitor for money lent to the grantor, and for costs as his solicitor, and the balance only of £15 Is. 7d. to the grantor.
It will be seen, therefore, that with the exception of Ex parte Carter, the cases, so far, are perfectly consistent with the principle laid down by James, L.J., in Ex parte National Mercantile Bank, that "the Act requires the real consideration to be set forth, but does not require that any bargain between the parties relating to it should be stated." The Lord Justice was, indeed, careful to except from this rule cases where it appears that the transaction is a sham one, but, subject to this qualification, we believe the principle has ever since been acted upon. The effect of the qualification received an instructive illustration from the case of Ex parte Charing Cross Advance and Deposit Bank, In re Parker (29 W. K. 204, L. R, 16 Ch. D. 35), the facts of which were shortly as follows:—A bill of sale stated that it was given in consideration of the sum of £120 paid by the mortgagee to the mortgagor at or before its execution. Iu fact only £90 was paid to the mortgagor, £30 being retained by the mortgagee for interest and expenses. Under these circumstances the Court of Appeal held that the consideration was not truly set forth, and that a receipt after the attestation clause, signed by the mortgagor, being no part of the deed, could not be looked at for the purpose of showing how the £120 was made up. "It is clear," observed James, L.J., " that the true consideration is not set forth in the bill of sale. The very object of the Act was to prevent the setting forth as part of the consideration that which was retained by the grantor in the shape of interest and expenses. . . . Iu the present case there was really an evasion of the provisions of the Act, and it is not at all like Ex parte National Mercantile Bank." It appears, therefore, that the Lord Justice considered that the retention of a sum fur interest and expenses was an evasion of the Act, or, in other words, a sham transaction; and both his lordship mid Cotton, L.J., seem to have drawn a distinction between the retention of a debt arising out of the loan uud one existing independently of it. By the light of subsequent cases, however, it would appear that the real ground of the decision was the retention by the grantee cf the interest in advance, and that the retention of a dt bt bond fide arising out of the loan will not avoid the bill of sale.
Iu Carrard v. Meek (29 W. R. 244) the bill of sale was expressed to be made "in consideration of tne payment of £81 18s. by the said C. Carrard to the said W. Blin, and in further consideration of the payment of £16 38. by the said C. Carrard to the sheriff of Surrey, ior and at the request of the said W. Blin," and it was held by Lindley and Lopes, JJ., that this was a sufficient statement of the consideration, although all that was paid by the grantee was the £16 3s., the £S1 18s. being a debt incurred two months previously. This decision, it is submitted, is quite in accordance with the uutlinritiee already referred to, but the case of Ex parte Berwick, In re Young (29 W. R. 292), seems incapable of being reconciled with them. The consideration was there stated to be "the sum of £65 now paid" to the grantor by the grantee. This sum had really been advanced iu instalments some time before the execution of the deed, and, for that reason, the Chief Judge held that the consideration was not truly set forth.
THE IRISH LAND BILL.
Those of our readers who have followed our previousarticles will not, we think, be at any loss to discover the causes of the " failure" of the Land Act of 1870.
At first sight this Act would seem to have conferred upon the tenantry throughout Ireland an inestimable boon: to have raised them from a position of entire dependence upon the will, even the caprice, of the landowners to one of complete independence, an independence secured, in the case even of tenants having no pecuniary claim of an appreciable nature—a not uncommon case in the south and west—by the imposition of an arbitrary fine (called compensation for disturbance) upon the exercise by the owner of his undoubted right of resuming, at will, the possession of his land. To the northern tenant the Act offered complete, though tardy, justice; and in assuring him that the implied term, which lay at the foundation of his tenure would henceforth be observed inviolably, it would appear to have given him all he could desire, and did, in fact, give him all that he had ever demanded. But he was not long in discovering that the independence thus gained was of little practical importance to him: the sufferers from any disregard of the customs had never been numerous, and it was only here and there—principally upon estates which had lately changed hands—that the new legal right was of any greater practical value thau the old moral one, while,, on the other hand, the immediate result of the Act wa9 to put an end to all those indulgences which had grown up in the manner already described, and the want of which was a serious loss to the smaller tenants. That the Act should put a stop to these indulgences was inevitable. In the first place, as the tenant could not, by any arrangement, forego the privileges given him by the Act, there was always tha danger of an increase to the "tenant-right" arising from any such benefit: secondly, the joint operation of this Act and the Ballot Act of 1872 was to deprive the landowner of that political inducement which had operated in this respect so largely in favour of the tenants, who henceforth could not, eveu if they would, assuro the landlord of that return which had been one of his principal incentives to stand well with his tenantry: and, thirdly, the Act was passed in a manner provocative of resistance, and so as to excite a large number of the landlords to set themselves, and set themselves successfully, to minimize its effects.
In the south, the result was even more pernicious to the tenant: for as he, as a rule, had paid nothing for goodwill on entering'his farm, and had no tangible "improvements " to rely upon, the sole right given him by the Act was to receive his " compensation" if arbitrarily evicted. Such evictions were, however, of very rareoccurrence, even for political causes, before the Act, andpractically unknown on any other ground. Even when a tenant was so hopelessly " broken " that it was necessary to get rid of him, it had been usual to give him "assistance," "to take him to America," or on some such pretext, the amount of which was ordinarily little, if at all, less than the maximum amount now recoverable as compensation for disturbance. On the other hand, very few indeed of the tenants were in a position to claim this compensation at all: not one in a thousand could ever have paid up all his arrears of rent on demand: and, except in some rare instance of personal animosity, no landowner in Ireland would ever have been so insane as to part with a tenant who paid his rent regularly as it became due if he could by any possibility keepbioi on. Moreover, in the few cases in which, from any cause whatever, a landlord was so determined to get rid of a particular tenant as to give him an enforceable right to compensation, he never had any difficulty in recouping the sum, if he desired it, in the shape either of increased rent* or a payment for possession, from the next incoming tenant. The practical outcome of the Act, therefore, so far as the south was concerned, was to embarrass the landlord in the management of his property, and to embitter the relationship of landlord and tenant, without conferring any tangible pecuuiary benefit on the latter. Above all, it did not even pretend to give him the only thing he really wanted, a right to permanent occupation on equitable terms. But the defect in the Act, which which was perhaps of even greater practical importance thou any other, was that it provided no measure of the tenant's interest—when he had any—other than an action at law, and no means of raising such an action until the parties were already in a position from which neither of them could recede. In effect, the Act found the Irish tenant a petted dependent, and left him a soured litigant.
If the new legislation, then, is to have any better fate than the old, these are the errors which it has to avoid:—
(1) It must not interfere with future express contracts at all: the sole result of this interference in the Act of 1870 was to prevent landowners from giving a class of temporary accommodation very valuable to the tenants "for fear it might grow into a right."
(2) It must not attempt to secure the occupation of the tenant merely by fining the landlord for evioting him: apart from the gross injustice of such a proceeding it would be utterly futile; the working of the Act of 1870 has shown more than one easy method of shifting the burden of any such fine off the shoulders of the landlord on to those of the incoming tenant, the place where, of all other?, it is most undesirable to put it.
(3) It must provide some machinery, other than an action at law, for determining, at any given time, the amount of the tenant's interest in a manner by which both parties shall be bound: the failure of the Act of 1870 in this respect is well illustrated by the widely known case of the farm lying in two counties, so as to necessitate actions before two different chairmen upon an eviction, when one chairman (the facts being necessarily identical) dismissed the tenant's claim with costs, and the other awarded him the maximum compensation.
(4) It ought to provide, in some reasonable way, for future fluctuations in the value of the land. As the law ttood prior to 1870 these practically inured for the benefit of the landlord, but not for his disadvantage. The rent might, and did, go up from time to time, but it never went down; and though in periods of temporary distress large remissions were made, and much assistance of different kinds habitually given, by almost all landlords, there does not seem to have been, even in the terrible crisis of 1846-7, anything like a permanent reduction of rent over any extensive area. This was the case even in Ulster, where, although it was always the rule that the rent could not be raised "so as to interfere with the tenant-right," the landlord could always obtain the benefit of any increase of general value, while, on the other band, he was effectually protected against loss from any depreciation so long as the tenant-right remained of any value whatever. For it is obvious, that so long as the right of occupancy at a given rent retained a saleable value, there was nothing to enable the tenant to effect a reduction of rent, which he could only do by throwing up his holding and so sacrificing whatever tenant-right he still possessed. And the Act of 1870 does not seem to have interfered with this right directly, though, as it is a right which can only be enforced by means of notices to quit, it has rendered the exercise of it somewhat more difficult. But it is at least doubtful whether the right ought, as an abstract proposition, to be maintained in its integrity: even without adopting Mr. Mill's view of the "unearned increment," there is at least as much to be said in favour of admitting the tenant to participate in any future increase of value, as for bestowing upon him a present interest in the land. We reject, as absurd, the
claim made by some of the advocates of the tenants to the whole of this prospective increase, a claim which would reduce the owner's interest to a fixed rent-charge, and would, by converting him from a quasi-partner into a mere creditor, inflict a very serious injury on all struggling tenants, that is, on nineteen-twentieths of the tenantry of Ireland.
The Act of 1870, as we have said, made no attempt to solve this problem, indeed, it is, at least, doubtful whether its importance was then recognized. Its existence was, however, as we happen to know, brought at the time under the notice of the framers of that Act, and a scheme for its solution propounded, which had all the advantages of being fair in working, not unjust in principle, and completely self-adjusting: which has sinco been tried, upon a limited scale and by express contract, with the most satisfactory results, but which was then rejected, and is now ignored, for no reason that we can divine except that fatality which seems to attend all proposals for the benefit of Ireland, emanating from Irishmen unconnected with political life. It is true that, in the measure now before Parliament, a provision has been inserted, apparently alio intuitu, which might, if fairly worked, attain the desired end through the clumsy machinery of an action at law once in every fifteen years, but besides the other formidable objections to this proposal, nothing is more to be deprecated in the relationship of landlord and tenant than an atmosphere of litigation " perpetually renewable."
Bearing these four points in mind, it will be seen, without much difficulty, that the present Bill, complete a departure as it is in some respects from the Act of 1870, unfortunately adheres to the lines of that Act precisely in those very characteristics which have mainly caused its "failure ;that it, too, offers to the tenants large boons which are not what they want; that it, too, inflicts upon the landowners disadvantages out of all proportion to the benefits conferred on the tenantry: opening to both an endless vista of interminable litigation: litigation moreover to be conducted before tribunals of inferior standing and authority, with the aggravation in the present case (from which the Act of 1870 was free) of the very most objectionable Court of Appeal ever devised by the most perverse ingenuity. We propose, in our next article, to examine these allegations in detail.
CASES OF THE WEEK.
Set-ops'—Executor—Legates.—Costs.—In a case of Knapman v. Wreford, before the Court of Appeal on the 19th in at., a question of set-off arose. The action was an administration one. Some of the legatees had brought an action in the Probate Division for the revocation of the probate of the testator's will. The executor resisted this action successfully, and the plaintiffs were ordered to pay his costs. The legatees assigned their legacies, and the assignees gare notice of the assignments to the executor. The executor claimed to set off his costs of defending the action in the Probate Division against the legacies. The court (jessel, M.K., and James and Lush, L.JJ.), affirming the decision of Hall, V.C., held that the assignees could only take the legacies subject to the paramount right of the executor to set off against them the costs which he had incurred on behalf of the testator's estate.—Solicitous, £. W. Reeves; Say <£• Cather; Fox <fc Co.
Dissolution Of Partnership—Differences Betwehn Partners—Date Op Dissolution.—In a case of Lyon v. Tvxddell, before the Court of Appeal on the 19th inst., a question arose as to the date from which a partnership ought to be dissolved. The deed of partnership provided that the partnership should continue during tbe joint lives of the partners, or until it should be dissolved, but the deed contained no provisions for dissolution. The action sought a dis%olution, on the ground of differences between tbe partners. Bacon, Y.C., decreed a dissolution as from tbe
data of the issue of the writ. The Court of Appeal (jessel, M.K., and James and Lush, L.JJ.) held that in such a case the proper date of the dissolution was the date of the judgment.—Solicitous, Rogerton <fc Fori; Shum, Crossman, % Co.
Appeal — Death Op Appellant — Application For Order Op Revivor—Judicature Act, 1873, s. 52—Ord. 60, Rr. 2, 4.—In a case of Bawson v. Patton, before the Court of Appeal on the 20th inst., a question arose as to the proper mode of obtaining an order for the continuance of an appeal after the death of the appellant. The defendant had delivered a counter-claim, and at the trial it was dismissed, with costs. The defendant gave notice of appeal, and before the appeal came on for hearing he died. His executrix obtained an order of course at the Rolls that the appeal should be carried on and prosecuted by her. On the opeuing of the appeal the respondent's counsel took the objection that, as the counter-claim had been dismissed, there was no proceeding pending in the High Court, and that that court had no jurisdiction to make any order with regard to the prosecution of the appeal. And it was said that under section 52 of the Judicature Act, 1873, which provides that "in any cause or matter pending before the Court of Appeal, any direction incidental thereto, not involving the decision of the appeal, may be given by a single judge of the Court of Appeal," an order for the continuance of the appeal might have been obtained from one of the judges of the Court of Appeal. The court (jessel, M.R., and Jahes and Lush, L.JJ.) held that the order had been properly made by the High Court. They said that section 52 did notapply, and the) Court of Appeal had no original jurisdiction.—Solicitors, Paterton, Snow, 4- Bloxam ; McDiarmid.
Practice — Appeal Por Costs — Judicature Act, 1873, s. 49.—In a case of Dicks v. Tatfi, before the Court of Appeal on the 20th inst., the preliminary objeotion was taken that the appeal was for costs. The action was brought to restrain an alleged infringement by the defendant of the plaintiff's copyright. Bacon, V.C., held (29 W. R. 135) that there had been an infringement; but, as the defendant had discontinued the infringement, it was unnecessary to grant an injunction, and. therefore, without making any declaration of the plaintiffs right, the judgment simplv ordered the defendant to pay the costs of the action. The Court of Appeal (jessel, M.R., and James and Lush, L.JJ.) held that this was not an appeal for costs within section 49. Jessel, M.R., said that tbo costs of an action were not in the discretion of the court, to the extent of ordering the defendant to pay them if the plaintiff had no title to relief. The Vice-Chancellor had ordered the defendant to pay the costs as a result of his decision that the plaintiff had a title to relief. It was for this purpose immaterial whether there was an actual declaration of the plaintiff's right, or a declaration by necessary inference. But his lordship did not intend to say that the court bad no discretion to deprive a successful defendant of his costs of the action.—Solicitors, Lewis tfc Lewis; Montagu, Scott, <fc
Practice — Change Of Judge—rehearing Order Made In Chambers.—In a case of Stuekeg v. Warlon, before the Court of Appeal on tho 25th inst., the question arose whether, when an order had been made by a judge of the Chancery Division personally in chambers, and he afterwards resigned bis office, his successor ought to hear an application in conrt to discharge the order. Malins, V.C., before his resignation had personally settled in chambers a certificate of the chief clerk in the action. A summons was taken out to vary the certificate, and it came on to be heard in conrt before Fry, J., after the business attached to Malins, V.C., bad been transferred to him. He thought that he ought not to rehear a matter which the ViceChancellor had personally decided, and he, therefore, pro found dismissed the summons, leaving the parties to go to the Court of Appeal. The Court of Appeal (jessel, M.R., and James and Lush, L.JJ.) were of opinion that Fry, J., ought to have heard the summons just as Malins, V.C., must have done if he had retained his office. The result of his not hearing it was that the parties were compelled to incur double costs. They might have been content with
the decision of Fry, J., on the merits without earning to the Court of Appeal.—Solicitors, Patty <fc Warren; Gellatly, Son.,<b Warlon; R. Miller $ Wiggins.
Undischarged Bankrupt—Right Op Trcstie—PropEhtt—Personal Earnings — Practice — Addition Op Plaintiff—Obder 16, R. 13.—On the 25th inst. the Court of Appeal (jessel, M.R., and James and Lush, L.JJ.) affirmed the decision of Fry, J., in the case of Emden v. Carte (29 W. R. 600). The action was brought by an undischarged bankrupt, who was an architect, to recover a sum of £1,790, which he alleged to be due to him for services rendered by him as an architect to the defendant, since the adjudication of bankruptcy, under an agreement entered into before the bankruptcy, and a sum of £8,000, which the plaintiff claimed as damages for his wrongful dismissal by the defendant. The trustee in the bankruptcy took oat a summons in the action, asking that he might be substituted as plaintiff for the bankrupt, and be at liberty to carry on the proceedings. Fry, J., held that the sums claimed in the action were not the mere results of the personal labour or service of the bankrupt, and that they wonld pass to tho trustee, and he made an order joining the trustee as co-plaintiff, and giving him the conduct of the action. The Court of Appeal agreed as to the title of the trustee, and held that he had been rightly joined as co-plaintiff.—Solicitors, F. C. Tudor; J. J, Winner; Beyfiu <fc Beyfus.
Land Drainage Act, 1861—"drain"—Artificial on Natural Watercourse—Power Of Landowner To Alter Drain.—In a case of Bealey v. Bates, before the Master of the Rolls on the 21st inst., a question arose as to the meaning of the term "drain" in the Land Drainage Act, 1861. By section 72 of that Act, "any person interested in land who is desirous to drain the same, and in onler thereto deems it necessary that new drains should be opened through lands belonging to another owner, or that existing drains in lands belonging to another owner should be cleansed, widened, straightened, or otherwise improved, msy apply to such owner, who is hereinafter referred to as the adjoining owner, for leave to make such drains, or improvements in drains, through or on the lands of such owner." Section 73 provides that the application is to be m«de by notice in writing stating the naiure of the intended improvements, and to be accompanied by a map. If the adjoining owner fail to express his assent within a month after service, he shall, by section 76, be deemed to have dissented, and then the questions shall be decided by two or more justices, in petty session?, whether the propo«ed drains or improvements will cause any injury to the persons interested in the lands, and whether such injury will admit of compensation iu money. The defendant Bates had given a former notice to the plaintiff in August, 1879, of certain intended alterations to a stream running through the plaintiff's land, but such notice was held to be invalid, and an injunction was granted to restrain the defendant from proceeding under it before the justices (see Healey v. Bait; L. R. 13 Ch. D. 498). The defendant had recently served another notice under the Act, aa to alterations ti the same stream, upon the plaintiff, and his notice showed that considerable improvements were intended. The plaintiff now moved for an injunction to restain the defendant from proceeding under his notice, on the ground that the stream was not a "drain " within the meaning of the Act, but was a natural watercourse, and therefore outside section 72 altogether. Jessel, SLR., although not desiring to express a final opinion as to the meaning of the Act, which was by no means clear, said that his present impression, after hearing the arguments, was that the term "drain," as used in the Act, referred to an artificial, and not a natural, watercourse. Iu the 72nd section, a new drain must clearly be artificial, and the words for reference to existing drains—namely, that they might be "cleansed, widened, straightened, or otherwise improved" —showed that an artificial drain was referred to. The other sections, some of them, pointed to the conclusion that artificial drum were the only ones that would be interfered with without the consent of the owner, and that if a natural stream was desired to be diverted, the owner's consent must be obtained. The plaintiffs had shown B. prim A facie case that the stream was a natural one, and therefore he should grant an injunction to restrain the defendant from proceeding with his notice, the plaintiff giving the usual undertaking in damages.—Solicitors, Nash #• Fieli; Robins, Burgee, &• Co.
Partnership—Receipt Bt One Partner—Accounts— Liability—Motion To Tart Referee's Report—Notes or Evidence Before Referee—Use Of Notes For Judge And Parties—Practice.—In a case of Fowler v. Murray, before the Master of the Rolls on the 23rd inst., the defendant had taken out a summons to vary the report of the official referee under the following circumstances:—It was referred to the official referee to take the accounts of an old partnership commencing in 1863, and continued subsequently in 1878, by taking the cashier of the firm into partnership. It appeared that in the year 1865 the banking account was not properly posted up in the cash-book of the firm, the entries being all in the cashier's handwriting, so that a sum of £442 more was received from the bank than had been entered up in the cash-book. A sum was entered in the cashbook at the end of the half-year to make it balance, and a sum was also shown as due at the end of the half-year to the defendant. The defendant submitted before the referee that the £442 ought to be treated as a defalcation by the cashier, bnt the referee in his report treated it as due from the defendant. The defendant was the active partner and signed the cheques during 1865, but in the name of the firm. Before the referee the defendant was examined vivd voce, but did not positively swear that he did not receive the money—in fact, he stated he could rot explain the matter. He said he had, however, duly accounted for all sums received by him. Sams received for the firm were received by the defendant or the cashier. On the summons to vary the report as to the £442, Jessel, M.R., said that as the defendant bad not positively sworn he had not received the money, he could not treat the £442 payable by the cashier as a partnership loss, and he saw no reason for differing from the finding of the referee. In reference to the mode in which the summons was heard, considerable difficulty was experienced by all the parties in knowing what the evidence had been before the official referee, as the referee had refused to furnish a copy of his notes of the evidence, and none of the parties bad an effective note. The referee had, however, sent his book with the evidence and arguments to the judge, who read out the evidence as giveD. Jessel, M.R., stated it was not the practice of the referee to furnish his notes to the parties, and that it was the duty of the counsel or solicitors before the referee to take notes of the evidence themselves for futnre use.—Solicitors, Ullithonie, Currey, .«* Villiers; 0. B. Wooler.
Father And Cfiild—Undue Influence—Action To Set Aside Deed—Onus Of Proof—Purchaser For Value Without Notice.—In a case of Baiubringe v. Browne, before Fry, J., on the 18th inst., a question arose as to the onus of proof in an action brought by a child to set aside a deed exeonted by him nnder the influence of his father, and for the father's benefit. The aotion was bronght by a daughter and two sons to set BBide a dead which they had executed, at the request of their father, when they were respectively of the agas of twenty-five, twenty-four, and twenty-two, charging their reversionary shares under the marriage settlement of their father and mother with the payment of the interest on some previously existing mortgage debts of the fatber (the interest on whioh had been allowed to fall into arrear), and covenanting person, ally for the payment of the interest. The deed also empowered the mortgagees to sell the reversionary shares in the event of the interest not being punctually paid. The consideration for the deed was an agreement by the mortgagees to reduce the rate of interest on the mortgage debts in the event of punctual payment. At the date of the execution of the deed the daughter was usually resident in her father's house, though she was then aotually on a temporary visit to an aunt. One of the Bons was a medical stndent at Edinburgh ; the other was an undergraduate at Oxford. They were staying at home for a vacation, and executed the deed in the presence of their fattier and mother and of a clerk of their father's solicitor, the olerk attesting their execution. The daughter's execution was attested by the aunt. The deed was ap
proved on behalf of the father and the children by the father's solicitor, who represented to the solicitors of the mortgagees that he was acting for the father and the children. The defendants to the action were the mortgagees and the father. The father put in no pleading, and did not appear at the trial. The plaintiffs at the trial deposed that they executed the deed at their father's request, in ignorance of its contents ; that they had given no instructions to the solioitor; and that they had no independent advice. The mortgagees adduced no evidence, relying by their pleading simply on the faot that the deed had been approved by a solicitor who professed to be aoting for the father and the children; that the defendants were ignorant of the exercise of any improper influence by the father; and that they were purchasers in good faith and for value. Pry, J., said it was plain that the plaintiffs had not, when they executed the deed, been fully emancipated from their father's oontrol, and, though there was no distinct evidence of pressure by him, yet the plaintiffs bad proved the existence of a state of things from whioh the court would infer pressure and undue influence. The burden was therefore cast on the father of Bhowing that the deed was executed by the children after independent advice, with full knowledge of its oontents, and with a free intention of giving him the benefits conferred by it. He had not attempted to discharge this duty, and therefore, as far as he was coucerned, the deed must be set aside. But this inference of undue influence, though it operated as against the person who could exeroise the influence, and as against any volunteer who claimed through him, and any person who took the property with notioe of the oironmstances which raised the equity, did not operate as againBt a purohaser for value without notioe of those oiroumstacoes. In the present case there was no evidence that the mortgagees knew that any undue influence or pressure had been exercised by the father, or that the plaintiffs were not emancipated from his ooutrol. A solicitor professed to be acting for them, and his letters Bhowed that he realized the nature of the dnty whioh was imposed upon him. It was impossible to conclude that he did not discharge his duty properly. Unless it was to be hold that in such a case it was absolutely necessary that the ohild should be advised by a different solioitor from the father, it oould not be said that the mortgagees had notice of any of the oironmstances necessary to raise an equity to set aside the deed. Therefore, as against the mortgagees, the aotion must be dismissed.—Solicitous, J. H. Lydall; Roberts at Barlow.
CASES BEFORE THE BANKRUPTCY
(Before Mr. Registrar Murray, acting as Chief Judge.)
Seizure by the sheriff under an elegit before notice to the elegit creditor of an act of bankruptcy committed by the defendant is sufficient to confer upon the elegit creditor a good title to the chattels seized, notwithstanding that the delivery by the sheriff takes place after such notioe.
This was an application on behalf of the trustee under the bankruptcy of G. Bannister, sen., for an order that the Retford and Bassetlaw Loan and Invostment Company (Limited) and the sheriff of Middlesex, or one of them, should be ordered forthwith to pay to the trustee the value of the furniture, goods, chattels, and effects seized by the sheriff under a writ of elegit.
On the 15th of December, 1880, Bannister (a trader) oom« mitted an act of bankruptcy by non-compliance with the terms of a debtor's summons issued at tbo instance of Mr. Boord, one ol his creditors.
On the 24th of January, 1881, the sheriff of Middlesex seized the furniture and goods of Bannister under an elegit issued by the Retford and Bassetlaw Loan and Investment, Company (Limited), in respeot of a judgment for about £300. At that time the company had no notice of the act of bankruptcy committed by the debtor on the 15th of December.
On the 2nd of February, Bannister committed another act of bankruptcy by filing a liquidation petition, of which the company had notice on the 5th.
On the 10th of February, the furniture and gooia of whioh