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THERE SEEMS TO BE a good deal of justice in the of a summary conviction is a criminal matter within this strictures passed in many quarters with reference to the section : Blake v. Beach (L. R. 2 Ex. D. 335), By section circumstance that in the Bend Or case the Duke of 17 of the Appellate Jurisdiction Act, 1876, “every proWESTMINSTER was allowed to give evidence from the ceeding in the High Court shall be disposed of before bench. This objectionable distinction between noble a single judge," provided that divisional courts may witnesses and ordinary witnesses probably has its be held in such cases as may be determined by rules of origin in the practice of accommodating noble spec- | court. tators with seats on the beneh during the hearing of The section then proceeds as follows: sensational trials. We hope that the architect of the
"And any such divisional court shall be constituted new Law Courts will put a stop to this by providing no
stop to this, by providing no of two judges and no more, unless the president of the more seats on the bench than are needed for the judges. I division to which such divisional court belongs, with the conA court of justice is the least suitable of all places for currence of the other judges of such division, or a majority the display of deference to rank or social position. thereof, is of opinion that such divisional court should be
constituted of a greater number than two, in which case such
court may be constituted of such number of judges as the Up to WEDNESDAY LAST the new list of funds undealt Pr
president, with such concurrence as aforesaid, may think exwith for fifteen years had not been posted up in the
pedient: nevertheless the decisions of a divisional court shall
not be invalidated by reason of such court being constituted usual place in the corridor adjoining the Chancery Pay- | master's office, and the result has been a considerable
of a greater number than two judges.” influx of practitioners to consult the old list.
The above paragraph is, no doubt, a very salutary one, and its powers have been not unfrequently exercised, especially in registration (see, for instance, Bennett v. Atkins, 27 W. R. 231, L. R. 4. C. P. D. 80); revenue (see, for instance, Gilbertson v. Fergusson, L. R. 5 Ex.
D. 57), and otherwise important cases (see, for in. It is difficult to exaggerate the importance of the pre- stance, South-Eastern Railway Company v. The Railcedent set by the Queen's Bench Division in re-hearing, way Commissioners, 28 W. R. 464, L. R. 5 Q. B. D. before a court of five judges, the case of Richardson v. 217), so as to constitute a divisional court of three inSaunders. The question involved was one of construction stead of two judges, but never, so far as we have been of the Education Acts, whether a father causes his child able to discover, so as to constitute a court of five judges. to " attend" school, if he send the child to a school at (“ Five at the least," we may observe, is the quorum for which the school authorities decline to receive it, on the the Court for Crown Cases Reserved under s. 47 of the ground of non-payment of the school fees. A divisional Judicature Act 1873. “Three" is the quorum for the court consisting of two judges, Lindley and Lopes, JJ., Court of Appeal under s. 12 of the Judicature Act 1875, had held, in February, that a father could not be con and for the House of Lords under s. 5 of the Appellate victed in such a case (Richardson, Appellant ; Saunders, Jurisdiction Act.) However, it is absolutely clear that Respondent, 29 W. R. 631, L. R. 6 Q. B. D. a divisional court of five could sit before the amalgama313). In the present month, the same father was tion of the Common Pleas and Exchequer Divisions, summoned by the same School Board, and the justices although it is equally clear that no more than five could declined to convict upon the authority of that de- sit, because the concurrence of a division was required ; cision. But they again stated a case, which came on but it seems to follow from the Order in Council under in due course to be argued before another divisional which the amalgamation took place that a divisional court, consisting of Lord Coleridge, C.J., and Manisty, J. court of fifteen judges of the Queen's Bench Division Upon Richardson, Appellant; Saunders, Respondent, would be legally constituted. being cited as a binding authority, Lord Coleridge is But the question remains, whether the paragraph reported in the Times to have said, that "it had been held which we have extracted was intended to set aside the by the Court of Appeal that in such a case there would rule of practice that one court is bound by the decision be no appeal, as it was in effect a criminal charge. of a court of co-ordinate jurisdiction. No doubt before That being so, recognizing as he did the respect which the Judicature Acts the rule, or rather exception, was due to the judgment of his brethren in a similar was well recognized, that in cases not admitting of case, though he doubted the decision, and was disposed an appeal, each court was at liberty to follow its to think that the law as it stood allowed of a conviction own opinion (see Vaughan v. Weldon, L. R. 10 C. P. in such a case, yet as he should be reluctant, even if his 57), and this rule or exception was followed in relalearned brother concurred with him, to overrule that tion to appenls from summary convictions by cases decision, and as even if they did so the decision would stated under 20 & 21 Vict. c. 43, from which there not settle the law on the subject, being a decision of two was before the Judicature Acts, as well as after them, no judges against two, he should suggest that it would be further appeal. But now that the pre-existing selfwell to avail himself of the provision of the Judicature sufficient Courts of Queen's Bench, Exchequer, and ComAct, 1876, allowing of a court being constituted with a mon Pleas have been consolidated into one High Court of darger number than three in any case of importance, and Justice, it may be gravely doubted whether the reason for therefore he should propose that a court of five judges the old practice is not done away with. If the High Court should sit to hear the case.” A court of five judges sat when sitting to hear appeals from petty sessions is a final accordingly on Monday last, and overruled Richardson, court of Appeal, why should it not follow its own Appellant; Saunders, Respondent. The question was decisions with the same uniformity of practice as the admittedly one of great public importance and difficulty, House of Lords does ? The precedent, however, is set, 80 as to justify this kind of re-hearing, if such a and may occasionally be followed in future. It has, of
d of re-hearing could in any instance be justified. course, much to be said in its favour on the ground of But it is material to examine the sections of the Judica public convenience, at a period when the legislation ture Acts upon which the constitution of the court depended.
which is occasionally necessary to correct the mistakes
or conflicting decisions of judges cannot easily be set in By section 45 of the Judicature Act, 1873, all appeals motion. Tom petty sessions may be heard by divisional courts, The case upon which we are commenting is a “strong"
e decision “shall be final” unless special leave instance of its being exercised, for the new practice is o appeal be given. By section 47 of the same Act, | adopted to the prejudice of a person who had been
peal shall lie from any judgment of the High successful by due course of law in a criminal proceeding any criminal cause or matter," and it has been against him. It is adopted, too, not for the purpose of an appeal from justices upon a case arising out producing harmony where decisions conflicted, but for
Court in any criminal held that an appeal from
the purpose of reviewing a decision not much more than be entitled to the tenancy, payable and enjoyed by the four months old. A fortiori, therefore, it would seem evicted tenant, it deprives the tenancy of such mesne desirable that a court of more than two strong should, tenant of any saleable value : if it means that he is to on the first practicable occasion, be convened to decide have as against the superior landlord the same rights and of the two conflicting decisions, Bury v. Cherryholm to be subject to the same obligations as he had, and was (L. P. 1 Ex. D. 467), and Mellor v. Denham (L. R. 4 Q. to be subject to, as against his immediate lessor, it is B. D. 241), which ought to prevail. It was held in the manifestly unjust, as it would enable the mesne lessor to former case that bye-laws under the Education Acts confer, as against his own lessor, greater rights on a can be enforced although they clash with the Factory third party than he possessed himself. If the section is Acts. It was held in the latter case that they cannot to stand at all, it should be limited to those cases where be enforced if they so clash. “There is a great deal | the sub-tenancy was created with the knowledge and to be said on both sides.” There is no appeal (Mellor v. consent of the superior landlord, or where its incidents Denham 5 Q. B. D. 467).
were not less favourable to himn than the possession of the land.
Section 16 is simply absurd, and would give to an
artist to whom a cottage and potato-garden was let for THE IRISH LAND BILL. the summer season all the rights and immunities of a
copyholder of the land. VIII.
Section 17 is an extension of the most ohjectionable We resume the consideration of this Bill at the com- provision of the Land Act of 1870: one which bas in mencement of Part 4, the point at which we had arrived practice been of the most serious injury to the tenantry, at the end of our last article.
as it has prevented the landlords in numberless instances To any legislation founded on the lines which we have from "meeting them half-way," or at least has given them pointed out as alone, of all schemes that have been pro- a plausible excuse for refusing to do so, for fear that any posed, really, efficient, the provisions of this part of the such concession might hereafter, notwithstanding au Act would be wholly superfluous: the value of the statu. | agreement to the contrary, be deemed to have pertory tenant-right once fixed, and the power of the land- | manently increased the value of the tenant-right. Besides, lord to evict limited to such right of purchase of that the idea that tenants of holdings rated between £50 and right as already described, all the elaborate machinery of £150 are incapable of making independent bargains for sections 12, 13, and 14 would become inapplicable, and themselves is an insult to the whole population of Ireland, might be removed from the Bill without detriment. But however plausibly the like allegation may have been made even on the hypothesis that the Legislature is determined with respect to persons little (if at all) better off than to proceed entirely on the lines of the Bill as drafted, daily labourers. Section 18 is unobjectionable, and may these sections will require very considerable alteration if even, as the Bill is framed, be occasionally useful. they are to be made workable, or even intelligible. Part 5 of the Act is not only unobjectionable bat Where a tenant sells without notice of an increase of desirable, though we think that it would have been much rent, the purchaser ought to stand precisely in the shoes | better in a separate Bill; at any rate, the Commission of the vendor, and should have all the same rights and required to work it should not have been in any way remedies in case of an attempted increase of rent that mixed up with the question of landlord and tenant. 10 his vendor would have had if the tenancy had not been is always an error to submit to the same body administra. sold, and no others ; in other words, he should come in tive and judicial functions, and it is doubly an error-it as a “present tenant" within the meaning of the Bill; | is an injustice-to do so when the duties of the Comthis right the Bill very properly gives him by the inter- | missioners as administrators are inconsistent with the pretation clause, and any further enactment on the sub- exercise of judicial impartiality. ject is unnecessary and confusing. Moreover, as the ! The peculiarity of part 6 of the Bill is, that no clause stands, it would seem to prohibit any rise of one, outside of official circles, has a word to say in its rent at any time, however long, after the sale of a tenancy | favour. There are, indeed, men found to prefer that the without notice of such intended rise, the effect of which questions of tenant-right and fair rent shall for all time would be to compel every landlord, as a matter of be subjects of litigation, perpetually renewable at inter common form, to give notice of rise of rent on every vals of fifteen years, rather than concede the principle occasion of sale, just as yearly notices to quit used to l of quasi-partnership involved in “ Judge Longfield be given, as matter of course, tə every tenant from year scheme," and there are men found, amongst those well to year in Ireland. That such notices would be trouble- | acquainted with Ireland, to prefer that all questions some and annoying to both landlord and tenant is relating to the occupancy of land should be controlled obvious, and any enactment tending to multiply them by "a really strong court,” rather than left to the can hardly be considered desirable. Section 12 should, mutual action of owners and would be occupiers. But therefore, be omitted in any case.
there is no one anywhere, landlord or tenant, Liberal or The object of section 13 would be better attained by Tory, who does not say that, with the very best intelli an enactment that the landlord's only remedy for non tions, the County Chairmen have proved, in the past ten payment of rent should be a sale, by the sheriff, of the years, wholly incompetent to undertake this duty, and tenant's interest, without prejudice to the right of the that any attempt to intrust to them the working out of tenant to redeem within the six months now allowed by theextensive powers and enormous discretion conferred on law, in cases where he did not concur in the sale. As his " the court" by the present Bill, must inevitably end in concurrence would, by getting rid of the redemption, disastrous failure. It is the one point upou w largely increase the selling price of his interest, he | Messrs. Gibson, Shaw, and Parnell (and anyone interm would have an obvious inducement to concur in every | diate between those limits) speak with the same mouth. case where his right was of any real value. The pro Such a court, however, though very objectionable, migh visoes at the end of this section are wrong in principle. possibly not prove absolutely unworkable, if there were Proviso (1) we have already dealt with. The remedy in provided an efficient court of appeal. The cases under the case of the breach of a statutory condition other the Act of 1870 which were capable of being taken to thap for payment of rent should be by action on the “the Court for Land Cases Reserved” (consisting covenant, with a right to sell the tenant's interest practically of all the Irish judges of law and equity without power of redemption--for the payment of the
--for the payment of the were, on the whole, settled to the general sans damages and costs. The tenant ought, however, to be tion : that is to say, the law was authoritativery: entitled to the surplus proceeds of such sale.
and by common consent correctly, determia Section 15 is obscure. If it means that the sub-tenant even those who thought the law wrong admit is to be liable to the superior landlord for the rent, and to the decisions were right, and the murmurs, such as they
were, were in no case directed against the court. In the landlord of an adjoining estate, or the tenant of the most of the cases, however, which arose under this Act, next farm, who is to have full power to decide all the appeal lay, not to the court we have mentioned, but qnestions of law and fact, and whose proceedings are to the judge who happened to take the civil business at not to be questioned by appeal, restrained by prohibithe next assizes held in the county, and very different tion, or removed by certiorari! Ex pede Herculem. was the estimation in which these were held. Not that | Take one quite possible case. The estate of an infant anyone doubted either the ability or the impartiality of requiring adjustment of rents, & person appointed by the judges, but it was the universal feeling, at least the Lord Chancellor is directed to re-value it: he does so, in Ulster, that such questions could only be satisfactorily and on his report the chief clerk certifies that there settled by a permanent tribunal, of special qualifications, ought to be a moderate increase of rent: the case is of which the highest legal authority was one, but only taken before the Master of the Rolls, who orders the one, out of several. Such a court is, we presume, in increase, and this is confirmed by the Court of Appeal in tended to be supplied by the proposed Land Commission. Ireland : thereupon one of the tenants appeals to the Let us see how that may be. We pass over the objection county court judgema sufficiently startling proceedingto any judicial body, and most of all a Court of Ultimate but that gentleman not unnaturally declines to overrule the Appeal, holding a lucrative office at the pleasure of the discretion of the superior judges, and dismisses the case : Crown, because we understand that the Government thereupon the tenant appeals to the Land Commission, have intimated their intention of abandoning that who have in the meantime authorized someone-no proposal, which would, we should have thought, have matter who—to act as assistant commissioner in the been sufficient to condemn any scheme, however well county, and this gentleman, who may be anybody, and will conceived in other respects.
most probably be nobody, may not only override the The first thing that strikes us is the recurrence of decisions of the judges' named, but proceed to fine the What may be called the “fixed Whig idea": three all unfortunate minor severely for the judicial error (?) of powerful, irresponsible “ Commissioners." The results of the Master of the Rolls and the Court of Appeal. And this idea, as successively embodied in the Endowed this decision cannot be questioned in any way, unless the Schools Commission, the Irish Church Temporalities Land Commission, as a matter of discretion, choose to Commission, and the Railway Commission, are hardly | rehear it under the powers of section 40 (5). Is it such as to recommend it for universal adoption, and the necessary to say anything more to show why the proadmixture of judicial and administrative duties, which posed court has been unanimously disapproved in ruined the first-named of these, converted the second Ireland ? Need we add another word to justify the into an intolerable tyranny, and would probably have | terms in which we spoke of this court when we had rendered the third odious had they not cut the knot by occasion to refer to it in a former article ? simply ignoring the administrative part of their work The rest of the Act is mere detail and definition, and altogether, is here reproduced in an aggravated form. does not seem to call for any observation on our part. How can any landlord have confidence in the decisions of a tribunal on the question of fair rent, when he knows, and they know, that the very next day the same men may be engaged, in the discharge of their duty to the public, in depreciating the selling value of his land,
REVIEWS. under the powers of section 28 (1) ? How can any tenant feel satisfied with the decision, without appeal,
WILLS. on a question of tenants' improvements of three gentlemen
A TREATISE ON WILLS. By THOMAS JARMAN, Esq. The who will in all probability be, as trustees for the public,
Fourth EDITION. By S. VINCENT, Esq., Barrister-atthe largest landholders in the kingdom, and who will, at
Law. H. Sweet. all events, have constantly before their eyes the probability of having to act on the provisions of section 24?
In this edition Mr. Vincent has had to deal with the . But, grave as this objection is, it is by no means the
decisions of twenty years, and we think he deserves no most formidable. The Commission may act in any case
little credit for the way in which he has dealt with them. by any one of their body. Therefore, although weight
So far as our investigations bave gone (and we have had is supposed to be given to its decisions by the presence
occasion to test the book in practice on several points) on it of a judge or ex-judge (we assume from coction 34
we are disposed to think that there is no falling off from that he is not meant to be its chairman, as he clearly
the standard of the third edition, in which Mr. Vincent ought to be), either of the other two, as to whose
had the advantage of the assistance of Mr. Wolsten. qualifications we know absolutely nothing, may decide,
holme. The recent cases are clearly and carefully in his absence, the most important questions of law, and
etated, and their relative importance is well estimated. that without even the power of appeal, given in all the
Moreover, we are glad to observe a judicious ignoring of preceding cases, from any one Commissioner to the whole
what we may venture to term the random utterances body sitting together. As we presume that “A. B." is and obiter dicta of eminent judges. For instance, the intended to be someone of higher rank then a judge
singular and gratuitous attack made in Ralph v. Carrick (or he would not be named before him in the Commis. (L. R. 11 Ch. D. 873) on the rule in Sibley v. Perry, by sion), he is probably meant to be some peer or Privy
Lords Justices James, Cotton, and Brett (which Councillor whose only or principal recommendation for
latter Lord Justice, having perhaps never conthe office will have been political partizanship either in
sidered the rule before it was mentioned in the relation to this Bill or otherwise. And this gentleman
case before him, volunteered the observation that is to have in his power, without appeal, save at his own
“he should have no objection to be present at the option, the valuation and regulation of all the land
| funeral of Sibley v. Perry"), is not referred to by Mr. in Ireland ! Nay, more, he must necessarily be such
Vincent, who is certainly justified by the authority both that, were he the Archangel Gabriel in person, he would
of Vice-Chancellor Shadwell, in Pruen v. Osborne (11 displease everbody : the landlords, who would see in him Sim, 138), and of Sir William Grant, in Harrington v. merely a hostile politician: the tenants, who could not
Lawrence (referred to in 11 Sim. 138), in treating Sibley forget that he was either himself a landlord, or belong
v. Perry as a leading case laying down a rule or canon ing at any rate to the landlord class : and the county
of construction. The decision in Ralph v. Carrick is of court judges, whose decisions would be at the mercy of
course properly stated. The book seems to us to be well & man without even such qualifications for the task as
edited, and it ought to find its way on to the shelves of they themselves possessed. But this is not all: all many practitioners. these tremendous powers may be delegated to an Assistant commissioner, who may be a local valuer, or
Yates v. Rawlings. The account of the shareCONVEYANCING.
holders who have not come in to substantiate their A PRACTICAL INTRODUCTION TO CONVEYANCING. By claims.
HOWARD WARBURTON ELPHINSTONE, Barrister-at-Law. There are many other items deserving of a passing SECOND EDITION. W. Maxwell & Son.
notice, but I have already trespassed greatly on your This is an excellent book to put into the hands of the
the valuable space.'
EDWARD PRESTON. tyro in conveyancing. Principles are well and succinctly 1, Great College-street, Westminster, S.W., June 27. stated; sufficient detail is added to impart interest to the statement, and the book is written in an easy and familiar style. On most of the leading branches of ADMISSION OF SOLICITORS IN AUSTRALIA. conveyancing, the information given is accurate and
[To the Editor of the Solicitors' Journal.] thorough. The new chapter on partnership deeds does
Sir, -Can you inform me upon what terms a solicitor
will be allowed to practise in the Australian colonies and is too sketchy and too much of a mere catalogue of the
in New Zealand ? ordinary provisions of these deeds. It would have been
I was admitted in July, 1879, but have never taken useful to the student to have had some suggestions on out a certificate. I now desire to go out to Australia or the important modern field of conveyancing known as
New Zealand, and would go to the colony which would “company drafting,” and we may perhaps also suggest admit me to practise upon the easiest terms, as I have that the treatment of agricultural leases is unduly
neither the means nor the wish to begin my articles de meagre. But the book is a very useful one, and this
novo out there. edition has been edited with care.
Any information on the above subject will greatly oblige
INQUIRER. [We have not yet been able to obtain information on these matters, and shall be glad if any reader can
furnish it.-ED. S. J.] CORRESPONDENCE.
CASES OF THE WEEK.'
DORMANT FUNDS IN CHANCERY.
[To the Editor of the Solicitors' Journal.] Sir, -The newly-issued list of funds undealt with for fifteen years prior to the 1st of September, 1880, con. tains some four thousand entries. There has, however,
INFANT-ADJUDICATION OF BANKRUPTCY-TRADING been great delay in the issue of this valuable document,
FILING OF LIQUIDATION PETITION-BANKRUPTCY ACT, 1869,
SS. 6, 125.-On the 23rd ult., the Court of Appeal (JESSEL, as by the rules under the Chancery Funds Act, 1872, the
M.R., and BAGGALLAY and LUSH, L.JJ.) reversed the decision list should be published triennially, the first being due
of Bacon, C.J., in Ex parte Jones, upon which we commented in 1873; it did not, however, see the light till March,
ante, p. 520. The question was wbether an adjudication of 1877, and the second is only just issued. If a little
bankruptcy could be made against an infant who bad traded gentle pressure were brought to bear on the authorities, and bad contracted (so far as an infant could do so) more prompt compliance with the rules, as well as debts for the purposes of his trade, and who had him. improvement in form of the list, might be looked for. self filed a liquidation petition, the proceedings in which had
The list should, I venture to suggest, be strictly become abortive by reason of the failure of the creditors to alphabetically arranged, with cross-references to sub-titles. pass any resolution. He had not made any representation to Solicitors and others have now to wade through the entire his creditors that he was of full age, roless the mere act of list with a very fair chance of missing the name sought.
trading amounted, as it was contended it did, to such a The last-known addresses of persons supposed to be
repregentation. Bacon, C.J., followed his own previous de interested, with the amount awaiting distribution in each
cision in E.c parte Lynch (24 W. R. 375, L. R. 2 Ch. D. case, might also be usefully added, together with the
227), the only difference in which was that the adjudication
was made after the infant had attained twenty-one, the date of the last deeree or order.
trading and the filing of the liquidation petition having If these suggested improvements in the form of the
been, as in E.c parte Jones, before he attained twenty-one. list were made, there is no reason why the greater part Bacon, C.J., held that, by filing the liquidation petition, of the dormant funds should not be transferred out of the infant had submitted himself to the jurisdiction of the court to their legitimate owners, and it is satisfactory to court, and had surrendered the whole of his property for see that Mr. Stanley Leighton has drawn attention to | division among bis creditors (whether their debts were the matter in the House of Commons.
recoverable in an action was immaterial), and therefore he In going through the list the following entries struck
could not be heard to say that he ought not to be made me as likely to interest those of your readers who are
a bankrupt. JESSEL, M.R., said that, if the infant was not lovers of the curious :
a debtor, he was not a person who was entitled to file : Bryant v. Story.- Account of the legacy bequeathed
liquidation petition, or who could be made a bankrupt. for the relief of widows and orphans of soldiers killed in
How was it it made out that he was a debtor ? It
was not suggested that the goods wbich had been supplied war.
to him by the petitioning creditors were necessaries ; they In the matter of the proceeds of derelict property
were bought for the purpose of selling again. There was, brought into the Port of Nassau in New Providence, and tberefore, no common law liability. The fact that he had sold for the benefit of the rightful owner when appear. had the goods was not material in the view of our law. If iag.
persons chose to trust an infant they took their chance of Drever v. Mawdesley.-The 100 years' term account. being paid. It was said, however, that where an infapt had Heyden v. Owen.-The account of the seamen be
committed a fraud by representing that he was not an infant, longing to his Majesty's ships Decade and Argonaut.
he was liable in equity to the person whom he bad Kirkby v. Falconer.—The account of the unclaimed
thus defrauded. In such a case, the appearance of the legacy of Sebastian Nash de Brissac.
infant was material. If he was a boy of ten years old the Matthew v. Brown.-The account of Ann, servant
creditor could not have relied on the representation. If be to Jose Maria Ribiero, captain of a frigate, a legatee.
was a young man, apparently of full age, the creditor migut Mellor v. Woodward.-The account of John Mellor,
be deceived. But there must be an express represenation, convicted of felony.
and such a representation as would deceive the person to
whom it was made. In such a case it had been decided that Neave v. Miller.The slave compensation account.
if the person who had committed tbe fraud became Price v. Bourgot.—The ten hogsheads' account.
bankrupt after he was of full age, the person wbo bad Shepherd v. Houghton,-The unpaid legacy account. | been defrauded could prove in the bankruptcy in respect of
ct of the
Liability which resulted from the fraud. It was difficult to counter-claim at £333, and he assessed the plaintiff's costs of onderstand how this came first to be decided, for at that time the counter-claim at £50, consequently, under the indgment, "liabilities” were not proveable in bankruptcy as they are the defendant was liable to pay to the plaintiff £116 10s., in now. But none of the decisions had laid it down that this addition to his costs of the counter-claim. The defendant liability was a legal debt; it was not a debt, but only appealed from the judgment so far as it directed that, if the an equitable liability, and when by law a "debt" was plaintiff's costs of counter-claim should not amount to half required as the foundation of a proceeding, an equitable his costs of the action and counter-claim, the defendant liability would not do. But in the present case there was no should pay the difference. On the opening of the appeal, it such liability on the part of the intant, for he had made no was objected on behalf of the plaiotiff that the appeal was express representation to the creditor that he was of age. The for costs only, which are in the discretion of the judge. To petitioning creditor's counsel were driven to argue that if an this it was replied that the order appealed from was ons infant, whose appearance was such that you would not which, in effect, imposed on the defendant a penalty, in necessarily know that he was an infant, carried on trade, this addition to the costs of the counter-claim which he amounted to a fraudulent representation that he was of full was ordered to pay. The Court of Appeal (JESSEL, M.R., .age. But fraud could not be invented in this way. There was and BAGGALLAY and LUSH, L.JJ.) held that the objection nothing illegal in an infant's carrying on å trade, and was well founded. JESSEL, M.R., said that the order was thousands of infants did so every day. No representation that wrong in form. It was clear that a judge bad no power to the infant was of full age arose from the mere fact of his give anything in the nature of a penalty beyond the costs of carrying on trade. That this was the true view of the law an action or a counter-claim. This had been well settled for was shown by the judgment of Knight Bruce, L.J., in Ex parte many years, and no judge would think of departing from the The Unity Joint Stock Mutual Banking Association (3 De G. & rule. "As the order stood in form it directed the defendant to J. 63). It was impossible, tbereföre, that the adjudication on pay a penalty. But this would not have been so if the order had the petition could be maintained. It was said, however, that been that the action should be dismissed without costs, except the court had power, under sub-section 12 of section 125, to 80 far as they were ordered to ba paid, and this was what was adjudicate a liquidating debtor a bankrupt. But, in order really intended. It was a mere matter of form, and the appeal to do this, there must be a debtor; a man who had no debts was really brought for costs. It was pot disputed that the could not be adjudicated a bankrupt. And, moreover, the judge had jurisdiction to make the order in that form. He power given by that sub.section could only be put in motion might say that the plaintiff should get half the costs of an by a person who was a creditor, and who had, therefore, a action if he succeeded, and the same rule applied to a deright to intervene in the proceedings. His lordship added tendant. A judge had also power to fix a sum for costs that he respectfully, but entirely, dissented from the decision without a taxation. His lordship said that he was often reof the Chief Judge in Ex parte Lynch, which case must now quested to exercise this power, and he often did so. In such be considered as overruled. He could not agree with any of a case he generally fixed a less sum than would be given on the propositions there laid down. The words of the Infants taxation, because the costs of taxation were saved. Section Relief Act of 1874 were perfectly general, and could not be 49 of tbe Judicature Act meant that if a judge had fairly restricted so as not to apply to trade debts. And, again, an exercised his discretion as to costs there should be no appeal, infant could not, by filing a liquidation petition, either and that was what the judge had done in the present case, obtain the advantages, or entail on himself the disadvantages, though the order was wrong in form. The right order would of such a proceeding. By adopting a proceeding which be to dismiss both action and counter-claim, and to direct would only be valid if he were an adult, he did not make that the defendant should pay half of the whole costs of the himself an adult. He could not thus alter his status. claim and counter-claim. The judge intended also that the BAGGALLAY, L.J., and Lush, L.J., also expressed their dis defendant should pay all the costs of the counter-claim if sent from Ex parte Lynch, and BAGGALLAY, L.J., pointed they were more than half the whole costs, but the Master of out that in Ex parte Charlton (25 W. R. 800, L. R. 6 Ch. D. the Rolls said that he preferred not to make such fanciful 45), which had been relied on as an authority upon the orders as to costs. He preferred simply to order the depower of the court to make an adjudication under sub-section fendant to pay half the costs of the action and counter12 of section 125, composition resolutions had been registered, claim. BAGGALLAY, L.J., thought that what Fry, J., really and the debtor had afterwards failed to perform his engage intended was to make each party pay half the costs of the ment. A petition in bankruptcy had then beec presented in whole action. The order was altered accordingly, but no the ordinary form by an undoubted creditor, and the debtor costs of the appeal were given.-SOLICITORS, G. J. & P. was of full age. And the decision was only that it was not | Vanderpump; Badhain & Williams. necessary that an act of bankruptcy should have been com. mitted within six months before the petition. And Lusu. L.J., said that tbe decision of the Court of Criminal Appeal APPEAL-CROSS-APPEAL-Costs.-In a case of Harrison v. in Reg. 8. Wilson (L. R. 5 Q. B. D. 28) was based on the
The Cornwall Minerals Railway Company, before the Court of same ground as the present decision.-SOLICITORS, Swann
Appeal on the 24th ult., one of the defeudants brought an di Co.; Sharpe, Parkers, & Co.
appeal, and a second defendant then gave notice that, on the hearing of the first defendant's appeal, he should cont-nd
that the order appealed from should be altered in another roAPPEAL POR Costs—CLAIM AND COUNTER-CLAIM spect adversely to the plaintiff. The first defendant's appeal DISCRETION OF JUDGE-JUDICATURE Act, 1873, s. 49. was unsuccessful; the second defendant succeeded in his In a case of Willmott v. Barber, before the Court of contention, and the question then arose bow the costs ought Appeal on the 24th ult., an objection was raised to an to be borne. The court (JESSEL, M.R., and BAGGALLAY and appeal, on the ground that it was brought for LUSH, L.JJ.) held that the first defendant must pay half the costs only. The defendant bad delivered a counter-claim. costs of the appeal, and the plaintiff the other half.-SOLIAt the trial, Fry, J., dismissed the action without costs, and CITORS, Murray, Hutchins, & Stirling ; Cope & Co.; Maples he dismissed the counter-claim with costs, but, being of & Teesdale : Norton. Rose & Co. opinion that the costs of the action had been unnecessarily increased by some frivolous defences which the defendant had raised, he directed that the plaintiff's costs of the SUPPOSED INTESTACY— ASSIGNMENT TO CROWN-SUBSEcounter-claim should not be less than half the whole costs QUENT DISCOVERY OF NEXT OF KIN-INTEREST.-In a case of the litigation. The judgment, as drawn up by the of In re Gosman, before the Court of Appeal on the 24th registrar, ordered that the action should stand dismissed ult., the question arose whether the Crown was liable to pay without costs, and that the costs of the plaintiff of the interest under the following circumstances. A testator action and counter-claim' should be taxed. And it was bequeathed the residue of his personal estate to five persons, ordered that the defendant's counter-claim should stand dis- whom he also appointed executors. It was held by the court missed, with costs to be taxed and paid by the defendant that this bequest was void, on the ground that there was a to the plaintiff. And in case the last - mentioned costs secret trust for a charity, and that, there appearing to be no when taxed should not amount to one-half of the next of kin of the testator, such part of the property as was plaintiff's costs of the action and counter-claim, then it was leasehold belonged to the Crown, and it was ordered that ordered that the defendant should pay to the plaintiff such a possession should be delivered to such person as her Maj-sty sum as would, with such costs when taxed, amount to half of should by warrant under the sign-manual appoiot. the plaintiff's entire costs of the action and counter-claim. The leasehold property was afterwards assigned by the exThe taxing master taxed the plaintiff's costs of the action and ecutors to the Solicitor to the Treasury, who was appointed