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is a disgrace to the Statute-book that so many dead Procedure Acts should continue to cumber it.

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THERE ARE SOME rather surprising statements in a notice furnished to the Times of the dinner given at Maidstone last Tuesday by the members of the South-Eastern Circuit to Lord Justice BRAMWELL. Thus there are mentioned among his "contemporaries and rivals," when Mr. Bramwell joined the circuit in 1838, HONYMAN (a judge for a year or two), HANNEN (judge of the Divorce Court), THESIGER (lately Lord Justice), and Mr. J. C. MATHEW (lately made a judge)." We should scarcely have thought that Mr. BRAMWELL would, in 1838, have had much to fear from the rivalry of Sir G. HONYMAN, who was called to the bar in 1849, or of Mr. HANNEN, who was called in 1848, or of Mr. MATHEW, who was not called till 1854. And Lord Justice THESIGER'S "rivalry" could hardly be very formidable, for, as it happens, he was born in 1838, the year in which Mr. BRAMWELL joined the circuit.

SOME LITTLE TIME ago we remarked that one of the questions which must come to the front and press for a solution is, how far the system of trial by jury is to be retained for the purpose of civil actions. A correspondent, by way of pointing this moral, says that in an action by a house agent against a vendor, tried before a learned judge at Westminster on the 8th inst., the house agent sought to prove that the defendant had contracted with him to pay commission. The question for the jury was whether such a contract could be established. The judge summed up strongly in favour of the defendant, and the jury returned a verdict for the defendant, it may be assumed rather to the surprise of the court, as the judge addressing the jury said, "I thank you, gentlemen, very much for your verdict; it is a difficult thing to obtain a verdict from a jury against agents of this sort, and these commission agents seem to think they can do as they likǝ."

THE MINOR

PROVISIONS OF

THE JUDICATURE BILL. We have already expressed our opinion upon those clauses in the Judicature Bill by which it is proposed to reinforce the Court of Appeal. We now proceed to say a few words concerning the numerous minor provisions which the Bill contains. There are twenty-eight clauses in all, and the appeal clauses being four only, these "minor provisions" take up twenty-four.

The 6th and 7th clauses provide for the appointment of two judges of the Chancery Division, one to be appointed in consequence of the proposed translation of the Master of the Rolls "immediately after the passing of this Act," and the other to be appointed from time to time under the Judicature Act, 1877, "so as at all times to make due provision for the business of the Chancery Division of the High Court of Justice: Provided that no such appointment shall be made unless or until the num ber of judges attached for the time being to the Chancery Division of the High Court, other than the Lord Chancellor, is by death, resignation, or otherwise, reduced below five." The object of this is to rectify the curious blunder in the Act of 1877, by reason of which it was doubful whether or not the powers of that Act would be exhausted by one appointment. The clause by which the blunder will now be rectified is, we may observe, taken from the Bankruptcy Bill, so that that measure will have one little limb the less to drag along.

Clause 8 gives the Lord Chancellor power to direct that the Rolls Court and Chambers may be used "by such judge of the Chancery Division as shall be by order in that -behalf named," and clause 9 in effect provides that future

presidents of the Probate, &c., Division shall be styled justices of the High Court. This is perhaps a step towards the abolition of that division, which might well be consolidated with the Chancery Division by an Order in Council under section 32 of the Act of 1873.

Clause 10 at last abolishes that fictitious "Full Court of Divorce," which was shown to have a sufficient legal existence in Westhead v. Westhead (L. R. 2 P. D. 1) and other cases, and very properly provides that divorce appeals shall be brought to the Court of Appeal instead of to such Full Court, while clause 11 furthers the same object in relation to appeals under the Divorce Amendment Act, 1868. There is no express abolition of the Full Court; it is only impliedly abolished by having its jurisdiction, under 20 & 21 Vict. c. 85, "or under any other Act," taken away from it. Perhaps for the sake of greater clearness and caution an express abolition might be desirable.

The 12th clause is a very precise one. It runs thus:"A judge who was not present and acting as a member of a divisional court of the High Court of Justice at the time when any decision which may be appealed from was made, or at the argument of the case decided, shall not for the purpose of the fourth section of the Supreme Court of Judicature Act, 1875, be deemed to be or to have been a member of such divisional court."

The material part of the 4th section of the Act of 1875 is:

"No judge of the Court of Appeal shall sit as a judge on the hearing of an appeal from any judgment or order made by himself or made by any divisional court of the High Court of which he was and is a member."

This section having judicially been held to be nonsense, would it be too much to ask the Legislature to repeal, and re-enact it in decent shape, with the omission of the words "and is" "which must be rejected" (Fisher v. Val de Travers Asphalte Company, 24 W. R. 198, L. R. 1 C. P. D. 259), and with all other proper amendments ? The only effect of the proposed amendment which we can discover is that, whereas by the existing law a judge is disqualified by having taken part in a decision only, a taking part in the hearing of an argument also is now to disqualify him. This seems right, and is, of course, an additional argument, if one were needed, for not having High Court members of the Court of Appeal. Nothing can be more inconvenient in practice than for parties to come prepared for a hearing, and to have to go away again because the case "cannot be heard by the court as at present constituted." Before leaving this subject it may be well to suggest that the time is come for removing the anomaly by which judges of the Court of Appeal, who may also happen to be members of the House of Lords, may still sit on appeal from judgments to which they themselves may have been parties. Three is a quorum of the Court of Appeal, and three is a quorum of the House of Lords. If a case of great political or ecclesiastical interest were to be heard by a Court of Appeal of which peers happened to be acting members, and then came up for revision by the House of Lords, such peers might be in an invidious position. It surely ought to be settled by statute that such peers ought not to take part in the hearing or decision of the second appeal.

A very abundant caution provides in clause 13 for the nomination of election judges by the judges of the Queen's Bench Division, instead of by the judges of the Queen's Bench, Common Pleas, and Exchequer Divisions. We had hoped, and still upon a renewed perusal of it think, that the Order in Council under section 32 of the Act of 1873 gave "all such further powers as might be necessary" for the purpose of fusing the three divisions into one; but it is, of course, desirable to be on the safe side, especially in dealing with election matters.

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sive, unless in any case it shall seem fit to the High Court to give special leave to appeal therefrom to her Majesty's Court of Appeal, whose decision in such case shall be final and conclusive." It would take too much of our space to show (as we think we could show) that the jurisdiction of the High Court in these cases is final under the present law. It may, however, be mentioned as at least certain-and it is a strong argument that such is the law-that no such case has been taken to the Court of Appeal during the five years which have elapsed since the commencement of the Judicature Acts. The clause, therefore, confers, and does not restrict, as it appears to do, the right of appeal; and confers it subject to special leave. We are, therefore, face to face with two questions-(1) ought there to be an appeal at all? and (2) ought the appeal to be restricted by leave? We incline to think that there ought to be no appeal at all. Election law, though important, is not difficult, and it is law in which the points raised require speedy settlement.

The 15th clause is also a very important one. It provides that the Winter Assizes Act, 1876, "shall henceforth extend to all assizes to be held at any time of the year." The Act in question, it will be remembered, allows counties to be united for the purpose of holding assizes "where it appears to her Majesty, by reason of the small number of prisoners, or otherwise, that it is usually inexpedient to hold separate winter assizes for any county." The whole machinery of the Act is worked by Orders in Council, to be laid before Parliament indeed, but, while in force, to have effect as if enacted in the Act, which suggests no address by either House, &c., for the purpose of annulling them. We may expect strenuous opposition to this clause, which has, however, a very strong recommendation of the Judicature Commissioners in its favour, and, if carried, will, we think, redound with equal advantage to bench, bar, suitors, and public. But what is to be done with the high sheriffs? Would not this be a good opportunity for abolishing the assize duties of these officials, and for handing them over to the chief constables of the counties in which the assizes should be held? Clause 16 provides for the nomination of sheriffs in the Queen's Bench Division, "at the same time aid in the same manner as hath been heretofore accustomed in the Court of Exchequer," and this clause, which seems useless otherwise, may have its use in giving rise to a debate on the question whether or not the assize duties of a high sheriff ought not to be done away with. Clause 17, which provides for the swearing in of the Lord Mayor of London, might very well, we think, be replaced by a provision abolishing the swearing of that official in court altogether. The ceremony is only a needless interruption of judicial business, and sometimes has given occasion for very ill-judged orations, and the sooner it is dispensed with the better.

Clause 18 very properly reduces the number of judges who are to fix Central Criminal Court Sessions from eight cr more to four or more, and clause 19 increases the number of puisne judge members of the Rule Committee of the Supreme Court from three or more out of nine members to four or more out of eight. Of the latter clause we have only to remark that this would be a good opportunity for introducing the elective system. The clause as it stands gives the Lord Chancellor for the time being and his nominees a clear majority on the Rule Committee.

Clause 20 deals with "patronage." The patronages which fall vacant by the abolition of the two chiefships are to go equally amongst the surviving chiefs-i.e., the Lord Chancellor, the Lord Chief Justice, and the Master of the Rolls, "in rotation." We should have been better pleased if it had been proposed to give them to a "Patronage Committee" of five or three puisne judges. Or might it not be convenient that the Rule Committee for the time being should have the patronage?

Such

a provision would at least utterly extinguish any noticn which may still possibly exist in the minds of unthinking

people that patronage is a perquisite of high office, and not a trust to be exercised for the public benefit.

Clauses 21, 22, and 23 seem to increase the powers of the Treasury over appointments; and we should have expected that these matters had been sufficiently dealt with by the Act of 1879. Clause 24 provides for the appointment of persons to keep order, take care of and clean the Royal Courts of Justice.

Clause 25 provides for the transfer to the Master of the Rolls (with the concurrence of the Lord Chancellor and the Lord Chief Justice) of the power given by section 14 of the Judicature Act, 1875, to the Chief Justice of England, the Master of the Rolls, the Chief Justice of the Common Pleas, and the Chief Baron, of adapting enactments relating to solicitors. Clause 27 expressly

makes valid appointments made by the Lord Chief Justice of commissioners to take acknowledgments.

Last, but not least, clause 28, reciting that "it is expedient that the jurisdiction of county courts should be exercised as far as conveniently may be in a manner similar to that of the High Court," provides that the power of making county court rules shall extend to all cases within the jurisdiction of county courts as to which Rules of the Supreme Court might be made. Is this provision in anticipation of that reform which was recommended in the second report of the Judicature Commission, "that the county courts should become parts of the High Court, and should have unlimited jurisdiction, subject to a power of transfer when a claim should exceed £50" ?

LEGITIMATION.

THE legitimation of children by the subsequent marriage of their parents has never been acknowledged by the law of England. He alone by English law is legitimate who is born of parents married before the time of his birth. Yet the doctrine that children born illegitimate may be legitimated per subsequens matrimonium is of a very ancient date, and was first established in the Roman law by Constantine, and in the canon law by Pope Alexander III., and it now prevails in Scotland, and also in France, Holland, and, it is believed, other countries of Europe. An unsuccessful attempt was indeed made in the reign of Henry III. to introduce the rule of canon law into the common law of England, and resulted in the passing of the famous Statute of Merton (20 Henry III.), containing a declaration by "all the earls and barons, with one voice, that they would not change the laws of the realm" by making those born before matrimony legitimate. Although, however, legitimation is unknown to English law, yet, inasmuch as it has been adopted by several foreign nations, questions have from time to time arisen in our courts involving the point how far our law, in determining the succession to property in England, is bound to recognize legiti mation, either by the doctrines of international law or by what is known as "the comity of nations." One of such questions has just been settled by the recent Judgment of the Court of Appeal in the case of Re Goodman's Trusts, reversing a decision of the Master to the Rolls (reported 28 W. R. 902, L. R. 14 Ch. D.. 619). This judgment deserves the attention of all who are interested in the progress of our English jurispru dence.

The question raised by the appeal was whether or not a child, legitimate for all purposes by the law of its birthplace, but illegitimate by English law, can take any share of the estate of an English intestate as one of the next of kin. The following were briefly the only material facts of the case :-A legacy, having lapsed by the death of the legatee in the testatrix's lifetime, became divisible amongst her next of kin. The testatrix had six brothers and sisters, but they all predeceased her, and only two left any issue. One of these

two, having had children in England by a woman not his wife, went with them and their mother to Holland, where he became domiciled, and where he had another child by the same woman. After this child's birth the parents married in Holland, and the child was legitimated according to the law of that country. The question accordingly arose whether or not this child was one of the next of kin of the testatrix, and, as such, entitled to share in the lapsed legacy. The Master of the Rolls decided without hesitation in the negative, holding that children in the 7th section of the statute of 22 & 23 Car. II., c. 10, means children according to English law, and excludes a legitimated child, and that, therefore, a legitimated child could not take under any section of the statute. On the appeal Lord Justice Lush agreed with that decision; but the majority of the court (Lords Justices James and Cotton) held the contrary opinion; and, after taking time to consider the point, they have deliberately decided that in administering the estate of an intestate dying domiciled in England, the English courts will recognize children legitimate according to the law of a foreign country, though illegitimate by English law, as legitimate for the purpose of succeeding to the intestate's personal estate.

The question whether or not a legitimated child could succeed to lands as heir of his father in England was discussed in the case of Birtwhistle v. Vardill (5 B. & C. 438)-a case probably more fully and elaborately argued than any other; and finally, after the opinion of the judges had twice been taken, it was decided by the House of Lords, in 1840, that a child, legitimate according to the law of Scotland by the marriage of his parents there subsequently to his birth, could not succeed to land in England as heir to his father (see 7 Cl. & F. 895). Now, it is to be remarked that the law of Scotland as to legitimation is peculiar in this respect, that the subsequent marriage of the parents is, by a presumption or fiction of law, antedated to the birth of the child; if, therefore, a child, legitimate by Scotch law by reason of such subsequent marriage, cannot inherit land as heir to his father in England, it would seem, à fortiori, that the result would be the same in the case of a child legitimated according to the law of a country in which no such presumption or fiction of law prevails indeed, it has never been questioned since Birtwhistle v. Vardill that, according to English law in the succession to real estate in England, no child can take as heir who was not born after the marriage of its parents.

Again, with regard to personal estate, it was decided in 1863, in Boyes v. Bedale (12 W. R. 232, 1 H. & M. 798), by Vice-Chancellor Wood, that in construing a bequest by a testator domiciled in England, the word

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,, children does not include a legitimated child; and the result is the same whether the word be qualified by the epithet "legitimate or not. As to the precise question, however, raised by the case of Re Goodman's Trusts, there appears to have been no direct authority prior to the decision of the Master of the Rolls, except a dictum of Vice-Chancellor Wood in the case of Boyes v. Bedale cited above, in which the ViceChancellor expresses himself thus: "I take it that the language of the Statute of Distributions must be dealt with in the same way. If an intestate dies domiciled in England, the division of his property is governed throughout by English law, and no person could take by representation under that statute unless legitimate by the law of England" (see 1 H. & M. 805). This case, however, was followed and entirely concurred in by Vice-Chancellor Kindersley in 1865 in a case of Re Wilson's Trusts (14 W. R. 161, L. R. 1 Eq. 247), afterwards affirmed in the House of Lords in Shaw v. Gould (L. R. 3 H. L. 55), and the dictum of Vice-Chancellor Wood was not called in question; moreover, the Master of the Rolls, in deciding Re Goodman's Trusts, stated that had he felt any doubt upon the subject, he should have fol

lowed that dictum, and it may therefore be taken to have expressed the law on this point prior to the recent decision of the Court of Appeal. Another point as to legitimation came before Vice-Chancellor Stuart in 1871, and he there, in a case of Skottowe v. Young (L. R. 11 Eq. 474), decided that a child, legitimated according to French law, ranks as a child under the English Legacy and Succession Duty Acts. Indeed it is, as was pointed out by the Vice-Chancellor in that case, difficult to see how such a child could, in any sense, be a "stranger in blood."

On the whole, the law on the subject under consideration does not seem to be in a satisfactory state, and it would appear to lead to these rather anomalous results, that, while a child duly legitimated by the subsequent marriage of his parents would not inherit his intestate father's lands in England, yet he would share in the personal estate as one of the next of kin; and, though such a child would take as a "child," and therefore one of the next of kin under an intestacy, yet he would not take under a bequest by will to children.

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[To the Editor of the Solicitors' Journal.]

Sir,-In answer to the inquiry of "Lex," in your last week's issue, I would refer him to the Law List, where he will find that it is not at all unusual for a clerk of the peace to be either a deputy-lieutenant or under-sheriff.

As an example, Mr. F. W. Jones, of this city, is, and has been for some years past, both clerk of the peace and under-sheriff for the city of Gloucester at one and the same time. HENRY MORTON YORK.

Gloucester, July 12.

[To the Editor of the Solicitors' Journal.] Sir,-In reply to "Lex's" query, I beg to state that Mr. John M. Davenport, a solicitor at Oxford, and clerk of the peace for the county, formerly held, in addition to the latter office, the position of under-sheriff for the county of Oxford (see Law Lists previous to 1876). C. GOUGH.

7, Granville-square, Pentonville, July 8.

On the 7th inst., in the House of Commons, Mr. Gregory asked the Attorney-General whether any report or recommendations had been agreed upon by the committee appointed to consider the operation of the Judicature Acts and the procedure under them; and, if not, when such report or recommendations might be expected. The Attorney-General replied that the report and the recommendations were made some seven or eight weeks ago. They had been circulated by the Lord Chancellor among the judges, in order that the Committee of Judges might act on the report. The Lord Chancellor thought it better to place it in the hands of the judges before he laid it on the table.

CASES OF THE WEEK.

LIQUIDATION Petition-Receiver—InterfereNCE WITH POSSESSION-CONTEMPT OF COURT-LIABILITY TO ACCOUNT -SOLICITOR--COURT OF BANKRUPTCY-JURISDICTION.-In case of Ex parte Hayward, before the Court of Appeal on the 7th inst., a question arose as to the liability to account in the Court of Bankruptcy of a person who had interfered with the discharge of the duties of a receiver appointed by the court under a liquidation petition. Immediately after the filing of a liquidation petition by some traders a receiver of their property was appointed by the court, but no manager of their business was appointed. The debtors were advised by their solicitor, who had filed the petition, to continue carrying on their business, and they acted on this advice. The receiver on his appointment took possession of the debtors' property and effects at their place of business, and sent out notices to the debtors to the estate, calling on them to pay their debts to him. The solicitor then told him not to collect any further sums, or to apply to the debtors to the estate to pay their debts to him, as it would ruin the business and the good will. He told the receiver that the debtors intended to pay a composition, and that it would be unnecessary for him to interfere with the management of the business, beyond holding possession as receiver, further than he (the solicitor) directed him from time to time, as the business was being properly attended to by the debtors under his (the solicitor's) superintendence. The receiver raised some objection to this, but the solicitor told him that he would see that the management of the business was properly attended to, and offered to indemnify him against any liability, and wrote him a letter to that effect. The business was carried on in this way for two months, at the end of which time the debtors were adjudicated bankrupts, resolutions which had been passed to accept a composition having fallen through in congequence of some informality. In carrying on the business the bankrupts had received and paid various sums of money. Upon the application of the trustee in the bankruptcy, Mr. Registrar Hazlitt ordered the solicitor to file an account of all transactions and dealings of the bankrupts, from the date of the appointment of the receiver to the date of the adjudication, and of all sums of money received by or on account of the bankrupts, or either of them, or by any person or persons on behalf of their estate during the same period with his or their consent or permission; and also of all sums paid by or on account of the bankrupts, or by any person or persons on their behalf, or on behalf of their estate, during the same period, prefacing the order with a declaration that the solicitor was liable for any loss which might appear on the taking of the accounts to to have been suffered by the estate by reason of the management or carrying on of the business by the bankrupts or either of them, or by the sclicitor on their behalf, during the same period. It was urged on the solicitor's behalf that there was no jurisdiction in the Bankruptcy Court to make him responsible for giving his cli nta bad advice. But the Court of Appeal (Lord SELBORNE, C., and BRETT and COTTON, L.JJ.) held that the order was substantially right, though the accounts ought to have been directed against the solicitor jointly with the receiver; and the trustee then gave an undertaking to apply for an order against the receiver. The court also said that there should be an inquiry whether any and what loss had been sustained by reason of the carrying on of the business, having regard to the price afterwards realized by the sale of the business, and that the trustee must undertake to render all the assistance he could to the solicitor in the making out of the accounts, and to use any powers which he possessed as trustee to compel the bankrupts to do the same. Lord SELBORNE, C., said that the solicitor was held liable, not for the advice which he had given to his clients, but for taking on himself to give instructions to the receiver not to discharge the duties of his office. The undertaking he gave to indemnify the receiver against liability showed that he himself thought he ought not to interfere with the receiver, except on the terms of becoming personally responsible. CorrON, L.J., said that, if it was considered de.

cation should have been made to the court for the purpose. But, instead of doing that, the solicitor took on himself the responsibility of directing the receiver not to act on the order of the court. This was a contempt of court, and a person who had thus acted ought to be made accountable in the bankraptoy jurisdiction.-SOLICITORS, John Hayward; James Neal.

COMPOSITION RESOLUTIONS-SUBSEQUENT AGREEMENT BY DEBTOR TO PAY ONE CREDITOR IN FULL-BANKRUPTCY ACr,

1869, s. 126.-In the case of Ex parte Barrow, before the Court of Appeal on the 8th inst., the question arose whether, after resolutions accepting a composition have been passed by creditors under section 126 of the Bankruptcy Act, 1869, and before the time has come for carrying out the provisions of the resolutions, a valid agreement can be entered into between the debtor and one of the creditors, who is bound by the composition, for the payment of his debt in fall. In Ex parte Barrow, the creditors had resolved to accept a com position, payable in three instalments, respectively two, four, and six months from the registration of the resolutions. Before the first instalment became due, the debtor agreed with one of the creditors, who was bound by the resolutions, to pay him his debt in full, the creditor agreeing to continue supplying the debtor with goods on credit. He afterwards gave the creditor bills for the balance of his original debt, after allowing for the composition, and the creditor claimed to prove for the amount of the bills in other liquidation pro. ceedings subsequently instituted by the debtor. Bacon, C.J., held that the proof had been rightly rejected by the trustee, and his decision was affirmed by the Court of Appeal (Lord SELBORNE, C., and BRETT and COTTON, L.JJ.). Reliance was placed on the principle which has been often laid down by the court, that after composition resolutions have been passed, the debtor is master of his estate, and the creditors have no lien upon it. And the case of Jakeman v. Cook (27 W. R. 171, L. R. 4 Ex. D. 26), was cited, in which it was held that an agreement by a liquidating debtor, who had obtained a discharge from his creditors, to pay one of the creditors in fall, in consideration of the creditor agreeing to supply him with meat on credit, was a valid agreement, and that the creditor could maintain an action against the debtor for his origin -1 debt. Lord SELBORNE, C., who delivered the judgment of the court, said that the composition was a statutory one under sction 126, which provided that, if at two successive meetings of the creditors there were certain majorities in number and value of the creditors present in favour of a proposed composition, that composition should be absolutely binding, not only on the creditors who assented to it, but also on those who dissented from it, provided that their names and the amounts of their deb's were inserted in the statement prowords of the section a composition thus accepted was to be duced by the debtor at the meetings, and by the express accepted in satisfaction of the debts due to the creditors, and its provisions were not to be added to or varied, except by resolutions passed at a subsequent meeting of the creditors, and in a similar manner. Bills given for a debt which was satisfied by the bankruptcy law were primâ facie given without any consideration. The onus of proving that the debtor had made default in fulfiling the terms of the composition was on the appellant, and he had failed satisfactorily to discharge that onus. Jakeman v. Cook was a case, not of composition, but of liquidation by arrangement, and appeared to have no bearing whatever on the present case, which was one of statutory composi The agreement was made, not only be ore the statu tory composition was exhausted by the fulfilment of its terms, but even before the first instalment had become due. It might be that after a composition had been fully worked out and all the instalments paid, the posit on of liquidating debtor, and that the debtor might be like that of a discharged bankrupt or agreement made by him with a creditor, such as in Jakeman v. Cook, would be supported. But in the present case everything was done before any of the instalments had been paid to any of the creditors. By section 126 it was expressly provided that no addition o or variation in a composition should be made without a resolution of the creditors. If there could be no addition for the benefit of all the creditors, how could there be an addition for the benefit of one creditor, and that behind the backs of the others, and without any communica tion to them? It appeared to his lordship impossible that a sirable that the business should be carried on, an appli- composition for the benefit of all the creditors and such

tion.

an

an agreement by the debtor for the benefit of a particular creditor could stand together. He was confirmed in this view by a consideration of the consequences which might result from upholding such an agreement. Its validity could not depend on the amount of the creditor's debt. If it were valid in one case it would be equally so if the creditor's debt were very large, and if the composition had been forced on the other creditors by reason of the amount of his debt and by his vote alone. And, if the agreement could be validly made at such a time and under such circumstances as in the present case, he could not see what would prevent the amount of the debt being paid down at once, before any of the instalments were paid to the creditors, and thus the whole of the assets might be swept away by the one creditor. He was confirmed in this view by the decision of the Court of Appeal in Ex parte Sydney (23 W. R. 205, L. R. 10 Ch. 208), which, though not similar in its circumstances, depended upon similar principles. He must add that there were many decisions both in courts of law and in courts of equity against the validity of underhand dealings with a particular creditor contemporaneously with a composition with the general body of creditors, and the principles of those decisions were fully and entirely applicable to such a case as the present. It was said that fresh credit was given by the appellant to the debtor, and that in this way there was a consideration for the agreement. That might be so in a case like Jakeman v. Cook, where there was no question of good faith with the other creditors, and no question of compliance or non-compliance with the terms of composition resolutions. But no consideration could support an agreement which was inconsistent with good faith to the other creditors, and inconsistent with the spirit of section 126.

[This decision appears somewhat difficult to reconcile with that of the Court of Appeal (James, Mellish, and Baggallay, L.JJ., and Mellor, J.) in Ex parte Burrell (24 W. R. 353, L. R. 1 Ch. D. 547), in which it was held that where creditors had agreed to accept a composition payable in three instalments, the third instalment being guaranteed by a surety, a secret agreement by the debtor with the surety to indemnify him against liability, by a transfer of a part of his assets to him, was valid as against the trustee in subsequent liquidation proceedings instituted by the debtor in consequence of his failure to pay the second instalment of the composition.]-SOLICITORS, H. Montagu; C. C. Becke, Northampton.

DISCOVERY-POSTPONEMENT TILL AFTER TRIAL-DISCRETION OF COUrt-Ord. 31, R. 19.-In a case of Parker v. Wells, before the Court of Appeal on the 13th inst., a question arose as to the exercise of the power given to the court by rule 19 of order 31, which provides that, "if the party from whom discovery of any kind or inspection is sought objects to the same, or any part thereof, the court may, if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the action, or that for any other reason it is desirable that any issue or question in dispute in the action should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection." The appeal was from an order made by Fry, J., that the defendant should file a further answer to some interrogatories delivered by the plaint ff. JESSEL, M.R., said that in exercising the discretion which was undoubtedly reposed in the court by this rule (and he was far from saying that the court had not a similar discretion before the Judicature Act), he always had regard to the nature of the discovery sought, and in particular to the questions whether it would assist the plaintiff at the trial, and whether it was fair to the defendant or oppressive towards him. In the present case the answers required would not assist the plaintiff at the trial, and it would be unfair and oppressive to require him to give them, and therefore the order should be discharged. BRETT, L.J., was of opinion that the practice as to answers to interrogatories was not now regulated by the old practice of the Court of Chancery, but that the rules under the Judicature Act were intended to form a new practice intermediate between the more rigid practice of the Court of Chancery and the practice which had grown up in the common law courts under the Common Law Procedure Act. As to one of the interrogatories, it was contended that though it was too

general, yet that, if its generality had been limited to the subject-matter of the action, the plaintiff would have been entitled to an answer to it, and that the defendant ought to be compelled to answer it in this limited form, and COTTON, L.J., acceded to this view. But JESSEL, M.R., and BRETT, L.J., were of opinion that, as the plaintiff had come to the court insisting that the defendant should answer the interrogatory in the unlimited form in which it had been put, he could not succeed on the appeal, on the ground that the original order should have been for an answer in the more limited form.-SOLICITORS, Ford & Ford; Moresby-White, Salmond, & Co.

ARBITRATION-SETTING ASIDE AWARD-REMITTING TO ARBITRATION.—In a case of In re Sharpe, before the Court of Appeal on the 13th inst., an appeal was brought from an order of the Queen's Bench Division setting aside an award in an arbitration, and refusing to remit the case to the arbitrators. The Court of Appeal (JESSEL, M.R., and BRETT and COTTON, L.JJ.) held that the award had been properly set aside, because it had been made without notice to the parties, so that they had no opportunity of arguing their case before the arbitrators. Such a course of procedure was contrary to natural justice. But the court held that the case ought to be remitted to the arbitrators, if they were still willing to act. JESSEL, M.R., said that, as a general rule, the fact that arbitrators had made a mistake was not a sufficient reason for not sending the case back to them. Corrupt dealing or utter incompetence of the arbitrators might be sufficient reasons, and there might be other sufficient reasons. there must be strong reasons, founded on the exercise of a judicial discretion, for not sending the case back. BREtt, L.J., said that it was a matter of judicial discretion whether the case should be sent back, and it was impossible to enamerate all the reasons which would justify the court in refusing to send a case back. In the present case there had been nothing but a mistake on the part of the arbitrators, and that was not a sufficient reason. There was nothing to show that, if the matter went back to them, they would not then make a proper award. But, of course, if any one of them would not act, it would be impossible to send the case back.-SOLICITORS, Radcliffe, Cator, & Martineau; G. T. Woodroffe.

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But

"MONTHS"- LUNAR OR CALENDAR.- In a case of Hutton v. Brown, before Fry, J., on the 8th inst., the question arose whether the word "months" in an agreement for the purchase of furniture by instalments was to be read as meaning lunar months or calendar months. The owner of some furniture borrowed £1,300 on the security of it, the lender becoming the purchaser of it, and he then entered into an agreement to let it to the borrower at a weekly rent of £22 10s. The hiring was to be for twenty-six months, and at the end of the twenty-six months, if all the weekly payments were duly made, the furniture was to become the property of the borrower again. The lender contended that the months were calendar months, a construction the effect of which would be to give him eight more weekly instalments than if they were lunar months. FRY, J., said that prima facie the rule of law was that months meant lunar months, and there was nothing in the present case sufficient to rebut the presumption. In mortgages, no doubt, months were always understood to mean calendar months, but that was because the interest on mortgage money was a fixed sum per annum, and then, of course, the half-year's interest would be for six calendar months. That rule did not apply to a hiring agreement of this kind.—SOLICITORS, W. Maynard; Champion, Robinson, & Poole.

CASES BEFORE THE BANKRUPTCY
REGISTRARS.

(Before Mr. REGISTRAR BROUGHAM, acting as Chief Judge.) June 30.-Ex parte Hooper, Re Hooper.

J. K. H. and J. K. H., jun., co-partners in trade, being indebted to their bankers in a large sum of money, borrowed £5 000 farther upon the security of property belonging to J. K. H., sen. Such property was to be held as collateral security for the due payment of the said loan and all other moneys in respec of which the parties might beco ne liable to the bankers. The partners became further indebted to the bankers, and from time to time deposited with them partnership

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