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Court of Appeal are of opinion that the matter is a criminal one within the rule that forbids an appeal in criminal matters.

A SENTENCE of six weeks' imprisonment recently passed by the Lord Chief Justice upon a navvy found guilty of the manslaughter of his wife has given rise to a considerable amount of adverse comment. We have nowhere seen any very full account of the facts of this case, and consequently are not in a position to express a decided opinion with regard to the propriety or otherwise of the sentence. There is, however, often very great difficulty in duly apportioning the sentence to the relative guilt in the case of these crimes of violence. It is very easy to accuse those who administer the law of being too lenient in respect of crimes of violence as compared with crimes against property. We oftentimes feel strongly inclined to do so, and we think sometimes rightly; but we are disposed, on reflection, to think that there are difficulties in the way of laying down the true principles of punishment in this respect which go far to explain, if not altogether to excuse, the apparent lapses of judicial discretion which from time to time occur with regard to crimes of violence. A thief is, in the great majority of cases, of what may be termed a criminal disposition. Thieving is generally a deliberate crime of a character very mischievous to society, and there is no counterbalancing consideration arising from the fact that the person who commits it may be in general a meritorious member of the community. With regard to crimes of violence, the difficulty arises that the perpetrators of them are frequently persons who, as far as is known, are, save in respect of the particular crime, hard-working, law-abiding members of the community, and so far valuable to it. Cases of the description with which the Lord Chief Justice had to deal sometimes assume a very melancholy aspect. A hard-working, decent, though perhaps somewhat ignorant and rough sort of fellow-a navvy, perhaps, or a bargee, who has usually been kind to and lived happily with his wife and children-takes too much drink some Saturday night-after the manner, unfortunately, of too many of his class-receives, perhaps, some considerable provocation, for it must be remembered that women of the same class are apt to be somewhat free, and certainly not judicious, in the use of their tongues, and a sudden blow or a kick, given on the impulse of the moment, leaves the giver of it deprived of the companion of his life, whom, in his rough way, he may have loved in his sober moments, and with the weight of blood upon his head for the remainder of his life. Of course the natural impulse of anyone who reads the bare facts in the paper is to pity the woman and say that the drunken brute of a man ought to have got more punishment. But such hasty judgments are not always true. The man may not be a bad man, nor, on the whole, a bad member of society, and he may be deserving of pity rather than punishment. It is almost impossible for a person who has not heard the case properly to judge as to the propriety of the sentence in such cases. Notwithstanding, however, what we have written, we are strongly of opinion that the person should be as strenuously protected by the law as property. We think the cases one sometimes reads of at petty sessions, in which the most brutal violence and outrageous lawlessness are considered to be sufficiently met by fines of trifling amount, are a disgrace to our magistracy. The principle which, we think, ought to be followed is that, where there is reason, from the nature and circumstances of the offence itself or the previous history of the prisoner, to suppose that an habitual tendency to lawlessness and violence exists, there the punishment ought to be unsparingly severe; but where it would appear that such is not the case, but that the crime was of a casual nature-the result of exceptional circumstances-then the amount of the punishment may vary largely according to the nature and

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"ALL PREMISES in which intoxicating liquors are sold by retail" must, by section 3 of the Licensing Act, 1874, be closed at certain hours. The premises of a spirit merchant on which spirits are sold by retail are premises on which intoxicating liquors are sold by retail. Therefore the premises of a spirit merchant must be closed at the hours prescribed. So it was held by the justices of Barrow-in-Furness in Martin v. Barker, and two judges of the High Court have recently (see Weekly Notes, 1881, p. 86), affirmed a conviction of the spirit merchant for a sale in closing hours. The case is of so much practical importance to competing trades that we suppose it was worth while, when a question once arose upon it, to get it solemnly decided, but it is a matter of some surprise to us how such a question could have been raised at all. The spirit merchant, it appears, held a licence for the sale of spirits by wholesale, and also a retail licence for the sale of spirits by retail, under 24 & 25 Vict. c. 21, s. 2; and also used his premises exclusively for the sale of intoxicating liquors. It is expressly enacted by section 73 of the Licensing Act, 1872, that a licence, as defined by that Act [i.e., by section 74, a licence for the sale of intoxicating liquors granted by justices in pursuance of the Intoxicating Liquor Licensing Act, 1828, including a certificate of justices granted under the Wine and Beerhouse Acts, and including a licence for the sale of sweets, which is hereby authorized to be granted in the same manner as if sweets were wine, and including a licence for the retail of spirits granted to a wholesale spirit dealer by the justices in pursuance of this Act], "shall not be required for of spirits by retail, not to be consumed on the premises, by a wholesale spirit dealer whose premises are exclusively used for the sale of intoxicating liquors " in pursuance of a licence under 24 & 25 Vict. c. 21. It was considered, we suppose-perhaps by a misapprehension of the curious interpretation clause above cited-that, as the justices' licence, which is in some sense a police requirement, was not required, so neither could the closing regulations, which are undoubtedly of a police character, be applied to the case. So far is this from being the scheme of the Acts, that we find it enacted by section 27 of the Act of 1872 that the consumption of intoxicating liquor in refreshment houses not licensed for the sale of wine is forbidden "during the hours during which" the refreshment houses "would, if they were the licensed premises of licensed victuallers, be closed by law for the sale and consumption of intoxicating liquors," and by section 11 of the Act of 1874 the same refreshment houses must close at the same hour as if a liquor licence were attached to them. It seems that an attempt was made to rely on the marginal note to section 3, which is "hours of closing premises licensed for sale of intoxica. ting liquors," and so, by the combined aid of the marginal note and the interpretation clause, to confine the operation of the section to premises for which the justices' licence is required. But it may now be considered as settled by the decision of the Court of Appeal in Attor ney-General v. Great Eastern Railway Company (L. R. Ch. D. at p. 461), that a court "cannot properly look at the marginal note of an Act of Parliament."

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AN ANXIOUS CORRESPONDENT inquires, Can a witness be lawfully sworn on the Revised Version? He thinks that "in these days of conscientious objections to oathswhich may perhaps derive some additional force from

II.

the Revisers ascribing whatsoever is more than Yea, yea, or Nay, nay, to "the evil one" (Matt, 5 xxxvii.)– (Matt, 5 xxxvii.)-STATEMENT OF THE CONSIDERsome critical witness may claim to be sworn on the Revised, instead of on the Authorized Version." We may ATION IN BILLS OF SALE. perhaps suggest that a witness who objects to oaths would not be likely to raise the question, but it is abundantly clear that any such witness will be entitled to be so sworn, if he considers that the oath so taken will be more binding on his conscience. A Jew is sworn on the Pentateuch, and we believe that some Scotchmen do not kiss the Book.

EFFECT OF DISCLAIMER OF LEASE ON SUB-LEASE.

Ar length, more than ten years after the passing of the Bankruptcy Act, 1869, the question of the full effect of the disclaimer of a lease by a trustee in bankruptcy upon the rights of the lessor against a sub-lessee has been decided by the Court of Appeal in Ex parte Walton, In re Levy, which will be found noted in another column. The recent case of Smalley v. Hardinge (29 W. R. 554) having decided that where a lease has been disclaimed the lessor cannot eject a sub-lessee, the point necessarily arose on what terms the sub-lessee was entitled to hold the property.

CONTINUING our summary of the recent decisions on this subject, we come to the case of Ex parte Challinor, In re Rogers (29 W. R. 205, L. R. 16 Ch. D. 260), in which the consideration stated was £560 that day paid by the grantee to the grantor. In fact only £500 was paid to the grantor, £40 being retained by the grantee, a solicitor, in payment of his costs of preparing the deed and some other costs previously due, and £20 being paid to an auctioneer who had valued the goods with a view to the making of the loan. The Chief Judge held, upon these facts, that the consideration was not truly stated, but the Court of Appeal reversed this decision. Lord Justice James in giving judgment said, "Whether the whole of the mortgage money is actually paid by the lender into the hands of the borrower, or whether part of it is, with his privity or by his direction, employed in payment of a debt due by him, it is equally in a legal sense paid to him. . . The question is whether the transaction was a sham. That which was in the contemplation of the Legislature was the very thing which occurred in Ex parte Charing Cross Advance and Deposit Bank, where a man says that, he has advanced £100 when he has in fact kept back £10 for interest or discount." These observations, besides containing the principle upon which the court decided the case, show clearly that the ground of their decision in Ex parte Charing Cross Bank was, as above suggested, the retaining interest in advance. With reference to the deductions in the case before the court his lordship said, "It appears to me quite right to deduct the costs of pre

If section 23 of the Bankruptcy Act, 1869, is to be read literally, the original lease must be taken to have been surrendered, it has no existence for any purpose; but the interest of the sub-lessee continues; the estate of the lessor, "to the extent and for the purpose of preserving such incidents to, and obligations on, the surrendered reversion as, but for the surrender thereof, would have subsisted," being deemed to be the reversion expectant on the sub-lease. The lessor, on that construction, could not distrain upon the sub-paring the bill of sale and the auctioneer's charges, for lessee for rent due upon the surrendered lease, nor enforce upon him the covenants in that lease.

The Court of Appeal, by a strong piece of judicial legislation, forming a singular contrast to the literal construction adopted in Smalley v. Hardinge, have avoided the injustice which would thus arise to the lessor. They have re-constructed section 23 so as to provide that the lease is to be deemed to have been surrendered so far only as regards rights and liabilities as between the lessor on the one hand, and the trustee and the bankrupt and his estate, on the other hand so far only, that is, as is necessary to relieve the bankrupt and his estate and the trustee from liability under the lease. They have not, however, given the lessor rights against the sub-lessee which he had not before the disclaimer. The sub-lessee does not become upon the disclaimer an assignee of the lease, directly liable for the rent therein reserved, and upon the covenants therein contained. The lease is to be deemed to have been surrendered only so far as to free the trustee, and the bankrupt, and his estate, from liability, leaving any pre-existing rights of the lessor as against the sub-lessee untouched. The result of this is that, although the sub-lessee is not directly liable to the lessor for the rent or covenants in the original lease, yet, by means of the proviso for reentry in that lease, the lessor is able practically to obtain, as a condition of the continuance of the lease, payment by the sub-lessee of the rent reserved by, and perform ance of the covenants contained in, the original lease. If the sub-lessee declines to pay the rent or perform the covenants, he will have no just cause of complaint of the exercise by the lessor of the power which he had before the disclaimer, and subject to which the sub-lease was taken. And as the original lease still exists, the lessor is able to distrain, on the goods of the sub-lessee which are on the demised premises, for rent reserved in the original lease.

This is, as we understand it, the effect of the recent decision, but we must wait for a full report before we can absolutely say that we are right in our view.

that is what happens upon every mortgage transaction." And Cotton, L., after pointing out that there was nothing like fraud in the circumstances of the case, proceeded to say that the £20 might be fairly treated as a payment to the grantor, just as if it had been actually paid to him, and then paid by him to the valuer. His lordship then went on to say that "the £40 was not a payment of interest or bonus to the person who was making the advance, but was paid, as to part of it, in respect of costs which were due to him by the grantor, and as to the rest, in respect of the costs of preparing the deed, the lender of the money happening to be also the borrower's solicitor."

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The question of the sufficiency of the statement of the consideration came again before the Court of Appeal in The Credit Company v. Pott (29 W. R. 326, L. R. 6 Q. B. D. 295), where the grantor gave a bill of sale to secure the sum of £7,350, which, on a statement of accounts between him and the grantee, was found to be the balance due. The deed provided that this sum be paid by the grantor, with interest, on demand in writing. It recited that the grantee had agreed to lend the grantor £7,350, and the consideration was stated to be" £7,350 now paid" by the grantee to the grantor. The court held, although no money actually passed, that the consideration was truly set forth. Lord Selborne, C., in giving judgment said, "As between the parties to the deed, it appears to me that, as there was no fraud, the deed is conclusive evidence of the previously existing debt being satisfied, as much as if the money for it had been actually handed over; because when the company treat the £7,350 as a new advance (and no money was in fact advanced except by treating the previous debt as paid), the company could not then have said to the debtor that he owed the debt which had been previously contracted." His lordship then cited with approval an observation of Mellish, L.J., in Spargo's case (21 W. R. 306, L. R. 8 Ch. D. 407), to the effect that where there are mutual debts between two persons, "they need not go through the form of handing

the money backwards and forwards." Brett, L.J., who concurred with the Lord Chancellor, observed that the effect of what had taken place was to wipe out the old debt, which was payable at once, and constitute a new one which was payable only after a written demand. The only distinction, indeed, between this case and Ex parte National Mercantile Bank was that there the advance was greater than the debt deducted.

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In Ex parte Andrews, Re Allison (ante, p. 336), Mr. Registrar Murray held, in accordance with the above principles, that the consideration of a bill of sale expressed to be" £235 owing to, and £75 paid by, the mortgagee' was truly stated, although the £235 formed part of the consideration of a former bill of sale repayable by instalments, some of which were not due at the date of the second bill of sale.

The last reported case on the subject is Hamilton v. Chaine (29 W. R. 488), where the consideration for a bill of sale was stated to be £700. Of this sum £271 had been previously paid by the grantee to the holder of a prior bill of sale. A cheque for the balance, £429, was, at the time of execution, handed to the grantor, and, at her request, cashed and applied as follows:-£350 to one of her creditors, £21 5s. 6d. to the attesting solicitor for preparing the bill of sale, and for incidental expenses, and £7 10s. was paid to, or retained by, the grantee for commission on the loan and expenses in connection therewith, in respect of which he also received from the grantor her promissory note for £10. The balance of the £700 was paid to the grantor. Upon these facts the court held that the consideration was not truly stated. Lindley, J., after referring to Ex parte The Charing Cross Bank and Ex parte Challinor, observed, “We have to see to which of those two cases this case belongs; to my mind it is most like Ex parte Charing Cross Bank, as the principle seems to be the same. The deduction here was not for a pre-existing debt, nor was it for costs contracted in relation to this advance, and, that being so, it comes within the principle of Ex parte Charing Cross Bank." This decision has recently been affirmed by the Court of Appeal.

The real question in every case of this description appears to be whether the consideration is so stated as to make the transaction virtually a fraud, or, in the words of Lord Justice James, " a sham." When this is the case, it follows that the bill of sale is void under section 8 of the Act, but, as was remarked by Lindley, J., in Hamilton v. Chaine, the consideration is truly stated "if the whole of the money for which the bill of sale is given is paid for the grantor's use, and for expenses incurred by the lender in rendering his services."

From the cases above noticed the following rules may be laid down :

(1) It is not essential that the whole or, indeed, any part of the money mentioned as the consideration should actually pass from the grantee to the grantor; it is sufficient (provided the transaction be not a sham) if the consideration money is paid to third persons with the privity and consent of the grantor, it being unnecessary that a collateral arrangement as to the application of the consideration should be set out in the bill of sale.

(2) It appears from the decision in Credit Company v. Pott that a consideration expressed to be "now paid " is sufficiently set forth, although, in fact, it consists of previous advances. The decision of the Chief Judge in Ex parte Berwick must therefore, it is submitted, be considered as virtually overruled.

(3) The retention of a sum for the costs of the preparation of the bill of sale, and for an auctioneer's charges for valuing the goods comprised in it, is allowable.

(4) The retention of part of the consideration money by the grantee to meet securities on which the grantor is liable to him, will not invalidate the deed, although the securities are not due at the time it is executed. This was clearly established with regard to negotiable instruments in Ex parte National Mercantile Bank, and

with respect to instalments under a former bill of sale in Ex parte Andrews.

(5) The retention of part of the consideration money for interest in advance or commission will avoid the bill of sale.

THE IRISH LAND BILL.

Y.

SINCE We last wrote on this question, the House of Com. mons has gone into committee on the Bill, and has made progress to the extent of a part of the 1st clause. Small as this progress is, it has already afforded a conspicuous illustration of the complete state of fog in which both sides of the House are enveloped, both as to the provisions of the Bill itself, and the probable results of its working. Mr. Brand moved, from the Government side of the House, an amendment excluding "future" tenancies from the right of free sale given by the 1st clause. This was opposed by the Government, on the ground that, as the present tenants were to be enabled to sell, it would be unjust that a purchaser from them should not be able to sell in his turn, Mr. Gladstone himself saying, among other things, that the object of the Act was that the tenant's interest should pass freely from hand to hand "for all generations to come." The amendment was, on the other hand, supported from the Conservative benches on the ground that the purchaser would know that he had only bought a tenancy, not a right of sale, and that the Act of 1870, on the lines of which the Bill professed to go, contemplated the extinc. tion of the tenants' interests by purchase by the owners. It was in vain that Mr. Brand and Mr. Gibson (who alone, among the speakers on either side, seemed to understand the point) showed that, under the interpretation clauses of the Bill, a purchaser of a tenant's interest would be a "present tenant himself, and unaffected by the amendment. Even the AttorneyGeneral for Ireland, who, if anyone, ought to know what the Bill means, declared that the amendment would be fatal to its principle, immediately after which Mr. Gladstone promised to assent to a clause which will effect, in a somewhat cumbrous form, exactly what would have been neatly effected by the amendment and the interpretation clause taken together.

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But this is not all: the amendment was introduced avowedly in the landlords' interest, and was, as such, supported by the Conservatives, and opposed by the Government, and yet the Liberal members for Ulster must have known (what some of the Conservatives may certainly know, but, as they did not wish to defeat the amendment, it was not their interest to say it) that the amendment was really for the benefit of the tenants; anyone the least conversant with the management of land in Ulster (and the avowed object of the Bill is to assimilate the rest of the country to Ulster in this respect) must have known of the practice which has lately (since the Act of 1870) been adopted by such of the landlords as look merely to their pecuniary interest in dealing with their estates-a class greatly on the increase since other interests have been so considerably shaken of requiring intending tenants of farms in possession to purchase the tenant-right from them for money down, just as if they had bought from an outgoing tenant. The practice is an inconvenient one to both parties, but it has been found the only effectual means of getting rid of the provision in the 1st clause of the Act of 1870, which prevents a tenant from agreeing to waive his tenant-right. If the extension of the right of free sale to "future" tenancies should be-as we anticipate -to extend this practice to them also, the practical result will be to preclude a landowner, who might desire to merge the tenant's interest in his own, from doing so, and to compel him to require this interest to be separately purchased, in order to prevent the creation

of a new tenant's interest, without consideration, which he might have to buy over again.

precisely what this Bill does not do, what Mr. Gladstone, so late as Tuesday last, directly refused to do, being no doubt supported in this refusal by those whose object is not so much to benefit the tenantry as to injure the landowners an object of which we entirely acquit Mr. Gladstone himself-but to the great disappointment of every man, be his party politics what they may, who desires to see, in the present Bill, some alleviation at least of the existing difficulty in Ireland.

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It would not, however, be sufficient to fix aud value the tenant's interest once for all: whether this were done as proposed by the minority on Lord Bessborough's commission, by fixing now "fair rents' to be paid in perpetuity-which would hand over all future accretions to the tenant-or by the introduction of terminable leases in purchase of tenant-right, as attempted upon the Duke of Leinster's estates-which practically reserves these accretions to the landlord. Under the existing circumstances of Ireland, the tenant's interest, if fairly fixed, ought to rise and fall with, and in some proportion to, the total agricultural value of the land; we cannot see any ground whatever for handing over to him any portion of any exceptional value which the land may acquire, as building or accommodation land, or otherwise, but if its value as an agricultural machine increase or diminish in the future, even though the tenant may not have, by any action of his own, contributed to such increase or diminution, we think that he ought to be so far recognized as a partner in the farm, as to share alike the benefit and the loss. The Bill before us recognizes this right, but refuses-or at any rate fails-to adopt the proper means for giving effect to it. There was offered to the notice of the framers of the Bill a simple, self-acting arrangement by which, if the value of the tenant's interest were at any moment agreed or determined, it would be equitably regulated for all time to come merely by the mutual action of the parties themselves, and they have deliberately preferred, as we remarked in a former article, to leave the parties with no better remedy than litigation, perpetually renewing at intervals of fifteen years, before a court of which the spokesmen of both parties concerned have expressed the most profound distrust.

This practice, however, might easily, and in bad hands would inevitably, grow so as to revive the old, exploded, and most pernicious custom of lettings at low rents in consideration of exorbitant fines; on this ground, if on no other, we think that the interests, not only of the tenantry, but of the public at large, are opposed to any provisions likely to produce or foster it. The practical result of "free sale," however, will obviously be in the same direction: it would, indeed, seem that whatever benefit it may prove to "present" tenants to enable them to sell that which, out of Ulster, few or none of them have given any value for, it can make very little difference-except as a matter of class-feeling-to any one hereafter taking a farm whether he pays a full rent to the landlord, or a lower rent, plus a sum of money equal to, often greater than, the capital necessary to produce the difference, paid to his predecessor in occupation under the right of free sale, and, therefore, it might, at first sight, be supposed that the course which is obviously the best for the tenant, that by which he keeps his capital in hand to work his farm, paying the equivalent in rent, would, in the long run, prevail over the less profitable one experience, however, proves the contrary to be the case, even under the existing law; the tendency of the tenants, where tenantright prevails, has always been to prefer to pay heavy sums for low-rented lands rather than comparatively small sums and heavier rents, and it is only where the landlords-who have hitherto considered this detrimental to their interests-have intervened to check them that the payments for tenant-right (which are obviously in their nature fines for entry) have been kept within moderate limits. But although it may have been the interest of those owners in fee simple who looked rather to the good of their estates than the benefit of their private pockets, to discourage any attempt to "fine down" rents, and therefore, when land "in hand" was to be let, to exact full rents without premiums, the contrary was always the interest of limited owners, who could only, as a rule, be kept from the practice by stringent provisions if now the law, by limiting the extent to which rent can be raised while placing no limit on the fines which may be exacted, makes it the pecuniary interest of any owner having land in hand to fine down his rents, and by recognizing the occupancy as having a separate saleable existence, enables limited owners to evade the provisions against fines (because a letting from year to year would not be touched by them), it is not difficult to foresee the time when the possession of a farm in Ireland, even though the rent reserved may sound most moderate, will not be to be had without a preliminary payment which will leave the average tenant hopelessly in debt for the rest of his life, not indeed to the landlord, who will have taken care to get his money down, but the local usurer, the character who has, in the past, obtained the largest benefits from the legislation of 1870, and for whose benefit especially this part of the present Bill seems to have been framed. Nor is this opinion based wholly upon inference, however logical; the experi-emption, at the full price, either on his own behalf or ence of "free sale" in Ulster has ever been that it tended to impoverish the tenants and prevent improvements upon the estates, but that it nowhere inflicted any pecuniary injury upon the owner: insomuch so that we have known more cases than one of well-managed estates in which the owners have offered to introduce free sale if the tenants desired it, and in which the majority of the tenants preferred the continuance of the restrictive rules. [Of course, the rules in question were really judicious, not arbitrary or oppressive.] Logic, common-sense, and experience all point in the same direction: the first thing that ought to be done is to determine what the tenant's interest is, and to regulate its amount, and, when that is properly done, there will be little difficulty in making proper rules for its transmission. But this is

The arrangement in question has been explained more than once in these columns, but we propose to describe it again when we come to the consideration of section 7, for which it would be the actual substitute. In the meantime, it may be necessary, for avoiding of misapprehensions, to reiterate, that we fully concur in the object of the 1st section, so far as it means to create, in every tenant, a saleable interest, the amount of which it shall not be in the power of the landlord to control, but that, in order that this should work otherwise than disastrously to both parties (but especially to the tenant), its amount ought to be capable of ascertainment at any moment, without litigation and without actual sale, and further, that if the tenant, from any cause whatever, aud whether voluntarily or by operation of law, parted with his interest, the landlord ought to be entitled to the pre

for any other tenant then in occupation of a holding on the same estate. Careful provision, however, ought to be made to prevent a landlord from compelling an unwilling tenant to part with his interest so long as he observed the 'statutory conditions" of his tenure.

A Connecticut lawyer at Bridgeport, the other day, says the Western Jurist, took exception to a judge's ruling that some evidence was inadmissible. He said, "I know that it is proper evidence. Here I have been practising at the bar forty years, and now I want to know if I am a fool ?'' "That," replied the court, "is a question of fact and not of law, and so I won't pass upon it, but will let the jury decide."

REVIEWS.

BANKING.

THE PRACTICE OF BANKING, EMBRACING THE CASES AT LAW
AND IN EQUITY. By JOHN HUTCHINSON. Effingham
Wilson.

This book belongs to a class of works which it is difficult for a lawyer to criticize fairly, because when a bank manager has the courage to write what is in substance, if not in name, a legal treatise, it is almost inevitable that his work should be disfigured by defects perhaps more distressing to the mind of the professional lawyer than important as regards the class of readers for whom the book is intended.

From the author's constant injunction to "refer to head office," and the very elementary truths as to caution and credit which he inculcates, we presume that his work is intended as a guide for very young bank managers. Thus, for instance, at p. 50, he lays down the rule that "with account holders of small means, great caution should be exercised in allowing overdrafts," and again, at p. 88, he says that "The manager should exercise very great care and discretion in the reception of bills, and none but those of the most unexceptionable character should be discounted by him." On the other hand, cases are sometimes cited at a length quite unnecessary for lay purposes, and more than half the book is devoted to a purely legal resumé of the law of bills of exchange, for which the inquirer would find a guide quite as practical and much more reliable in Byles on Bills. Indeed, the defect of the whole work seems to us to be that it is neither one thing nor the other. We took up the book expecting, from its title page, some valuable information as to the practical internal working and organization of a bank. But we confess to have risen from its perusal unsatisfied in this respect, whilst, as a book of reference for lawyers, we fear that it is not, by any means, exhaustive, and sometimes not altogether exact. Thus, to give an instance or two, the rule in Clayton's case (1 Mer. 608), perhaps one of the most cardinal decisions in banking law, though mentioned in a long judgment of Jessel, M.R., which is set out in a foot-note, is nowhere explained or discussed in the text. Again, though Rothschild v. Currie (L. R. 1 Q. B. 43) is cited, no reference is given to the more recent and important cases of Rouquette v. Overmann (L. R. 10 Q. B. 525); Hirschfield v. Smith (14 W. R. 455, L. R. 1 C. P. 340); and Horne v. Rouquette (26 W. R. 894, L. R. 3 Q. B. D. 514) on kindred points. The term "negotiable security" is used without any adequate explanation of the meaning of that expression in law; whilst, except by a casual reference in a foot-note to the judgment of the Exchequer Chamber, the important decision of Goodwin v. Robarts is not in any way dealt with, the judgments in that case in the House of Lords being altogether ignored. An example of inaccuracy will be found in the rule laid down on p. 372 as to estoppel by negligence, that common pitfall to lay expositors of the law.

It is, no doubt, a thankless task to pick faults of this kind in a book which certainly reflects no little credit upon the author's knowledge and industry. But we certainly cannot view it as an addition of much value to the list of our legal text-books or handy books. At the same time it contains a great deal of information, and is written in an easy style, which would make it more readable for the beginner in the legal or the banking profession than many works of the kind. however, of the legal student will be taxed by the The patience, author's practice of giving in many, if not the majority, of the cases which he cites, the dates upon which they were decided, without any reference to the reports by which his statement of them may be verified. The suggestions on p. 85 as to the improvement of the law in bankruptcy seem to be sensible and practical.

CORRESPONDENCE.

THE ATTORNMENT CLAUSE IN A MORTGAGE. [To the Editor of the Solicitors' Journal.] Sir, I should be glad to know whether other convey. ancers were as little prepared as I was for the doctrine lately put forward on the highest authority, that the mere insertion of an attornment clause in a mortgage had made the mortgagees 66 as much mortgagees in possession for all purposes of taking the account of what was due on the mortgage as if they had granted the lease to some new lessee, and had given notice to that lessee to pay the rent to them"; and that " one of the consequences would be this-to give a second mortgagee a right to charge them with the rent they might have received." So say Lords Justices James and Bramwell, in Re Stockton Iron Furnace Company (27 W. R. 433, L. R. 10 Ch. D. 335, 356-7); and the Master of the Rolls adopts their view in Ex parte Punnett, 29 W. R. 129, L. R. 16 Ch. D. 226, 235).

The previous understanding of the profession appears clearly enough in the treatise on Mortgages by the late Mr. Waley, prefixed to the second volume of Davidson's Conveyancing (2nd ed., pp. 567-8), where the following

Occurs:

"Almost the only case in which an attornment is made in modern practice is that of a mortgagor being in the actual possession of the property mortgaged or a material part of it. In this case it is not unusual to insert a clause of attornment by the mortgagor to the mortgagee, so as to enable the latter to treat the former as his tenant and to distrain for rent. . . In the absence of special provision, the mortgagee would be in a worse position where the property is in hand than where it is occupied by a tenant; as, in the former case, he could not enter into possession without ejecting the mortgagor, whereas, in the latter case, he would entitle himself to the rents by merely giving notice to the tenants. It is obvious that the right of distress incidental to the tenancy thus created may be exercised without incurring the liabilities of a mortgagee in possession."

Mr. Waley then explains that the advantage of an attornment over a mere power of distress lies in the fact attaching on the land, and binding the goods of that the attornment gives a true legal right to distrain, strangers; while the mere power, when the mortgagor only, and to be no more than a licence or covenant opera has parted with the estate, appears to rest on contract tive between the actual parties. The attornment was id power of distress, to be exercised or not exercised from fact looked on as the formal way of creating a complete time to time as the mortgagee might see fit, and without condemning the mortgagee to the purgatory of “possesany thought of its exercise, much less its mere existence, sion."

It would be rather alarming to those who have a wholesome reliance on 66 pushed so far as to be told that even a distraint under common forms" to have logic an attornment clause would put the mortgagee into possession, a situation (be it remembered) from which he cannot extricate himself without the consent of every

body interested in the equity of redemption; but do not recent utterances go beyond logic? Why should the mere attornment, with no further attempt on the mortgagee's part to assume the position of landlord, put him into possession more than the mortgagee of any ordinary reversion who has not given notice to have the rents paid to him? Does the mortgagee's concurrence in a lease do so too by parity of reason? If it does, the common clause directing payment of rent to the mort gagor till notice, is imperatively required to protect him from the perils of "wilful default."

Even if, upon an attornment, a rent exactly equal to the interest is reserved, it is not usual to say in so many words that the payment of the interest is to discharge the rent, and, therefore, if interest is paid volun.

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