own staff, adding that the examination of the chancery accounts is seven months in arrear, and that he has been under the necessity of abandoning some important parts of the audit. If there is to be an audit, there can be no question that it should be exhaustive, but it is not every person who thinks there is any need for an audit. The checks upon the Paymaster are most efficient; any small mistakes that are found out by the Audit Office are only discovered months after they have occurred, and as concerns the Paymaster himself, it is notorious that a large portion of his time, both official and other, is taken up with answering letters from the Audit Office which had better never have been written. THE ACTION FOR BREACH OF PROMISE OF MARRIAGE. THE Concentration of all legislative energy upon Irish affairs has prevented any attention being given to really most important matters, legal and otherwise, such as the law of bankruptcy. Under these circumstances it is not to be wondered at that various minor matters, upon which at one time legislation seemed quite imminent, have altogether dropped out of sight. Among these is the proposed abolition of the action for breach of promise of marriage. Some remarks of the Lord Chief Justice on the subject, with which we cordially agree, have been recently going the round of the newspapers, and a very extraordinary action of this kind at the Warwick Assizes may possibly, to some extent, recall the attention of the public to this topic. There are undoubtedly various difficulties and even absurdities connected with this class of action. There is no form of action more popular with the audience in the assize court of a small country town. Everyone knows that life in a small country town is not too amusing or diversified, and that, like elderly maiden ladies, small country towns are in consequence much given to scandal. Consequently, what in the nature of things can be more delightful to the population of such a place, especially the female portion of it, than the prospect of seeing two persons, who it is not unlikely are well known to most of the inhabitants, subjected to the most painfully ridiculous vicissitude to which humanity is exposed-viz., that of becoming hostile litigants after a long course of spooning? What can be more stimulating and enjoyable to the minds of of a "virtuous, but at the same time inquisitive, local public" than the prospect of hearing the most intimate private confidences of the persons who have probably been the theme of gossip and curiosity at half the tea-tables in the town for months, actually and authoritatively revealed? The abolition of the action for breach of promise of marriage would, in many small towns, really be almost a deathblow to the assizes regarded from the dramatic point of view as a public entertainment. We are speaking of the civil side, of course, for in the Crown Court, no doubt, there will always be sufficiently attractive novelties provided for those whose taste is of a more tragic or melodramatic character. An experienced person could almost guess without knowing, upon entering an assize court, whether a breach of promise case was shortly expected to come on. An unusual preponderance of the fair sex among the audience or endeavouring to obtain admission; probably even one or two of the more influential female leaders of society in the town, who have, through a friend at court, secured the proud privilege of a seat on the bench, bravely adorned with much garniture of lace and ribbon; a general air on the part of all persons present, not excluding the counsel for the plaintiff-notwithstanding the tone of virtuous indignation and compassion for betrayed and forsaken womanhood which they are bound professionally to assume that a really good joke of the most spicy de- | scription is about to be played; a sort of sniggering eagerness on the part of the audience, as of persons ready promptly to recognize with roars of laughter the first sally of counsel or the first absurdly endearing expression in the correspondence-all these are signs which, to the practised observer, suggest the nature of the business which is forthcoming, and that a more than usually exciting or interesting breach of promise case may shortly be expected. The immense popularity of the trial scene drawn by the hand of one of our greatest humorists-viz., that in which the immortal Pickwick falls a victim in a court of law to the wiles of that most dangerous of widows Mrs. Bardell-depends, to a very great extent, upon the nature of the cause of action selected by the author, than whom none better appreciated the tastes of the British public. Now, if the disappointment of this vulgar curiosity, this base love of scandal, this ignoble craving to be amused at the expense of other human beings made absurd, and to chuckle over feelings which were, perhaps, once sincere, but have since become a laughing stock, were all that would result from the abolition of this form of action, we should be the first to cry out for its abolition. But it seems to us that these accidents, as we may call them, of the thing, coupled with the fact that the actions of this kind which are brought are not in a very large number of instances of the most meritorious kind, tend rather to obscure the substance of the question from the eyes of many persons, especially those of more than ordinary refinement. It is no doubt true, as is alleged by those who would have this form of action done away with, that the woman who comes into court to sue for the breach of a promise of marriage is not the most delicate of her sex, and is frequently not without blame herself in the matter. Sometimes it may be suspected that she has rather entrapped the defendant into a hasty promise which it was really better that he should not keep. Again, it is no doubt true that wounded feelings are not in their nature properly the subject of pecuniary compensation. We will admit all this freely; but we doubt whether those who put forward these arguments sufficiently consider the other side of the question, and what the state of things would be if the law refused to give any legal validity to a promise of marriage, leaving a man free to make such a promise without thereby incurring any responsibility whatever. It is impossible, in our opinion, in considering the working of the law, too often to insist on the proposition that the efficacy of the law must be looked for, not in the number of cases in which damages are given for the breach of it, but in the number of cases in which it is not broken. The law, as it appears in the courts, one is sometimes inclined to think but a poor business, largely mixed up with fraud and chicanery, very often, at any rate, so doubtful as to make it seem of little concern to justice which side succeeds. Anyone who so regards the law and its workings is confusing the accidents and the substance. It is true that the actual cases of breach of promise which come into the courts may not impress one very favourably, but to lay too much stress on that is, to our mind, to apply a wrong test. The question seems to us to be whether the fact that by promising marriage legal liability is incurred does not constantly prevent light and inconsiderate promises of marriage from being made. Law is, or ought to be, both an expression and a factor of human morality. The state of morality at which a country has arrived and the law act and re-act on one another. If the law said, "I give no legal validity to the promise of marriage," one fears that possibly this might re-act injuriously on the morality of men-might by degrees make them think, more especially the rougher and less refined of them, that there was little obligation in such a promise if on more mature reflection it appeared undesirable to keep it, and therefore it might be lightly made upon impulse and without much consideration. It can always be broken if need be, would be the thought that would occur. It is customary with the opponents of this sort of action to say that it is much better that it should be broken if the man has really changed his mind; but that answer seems to us to regard too exclusively the cases in which the promise is actually made. It is all very well to say that it is better to break the promise than keep it in such cases. We say that it is better not to make the promise in such cases, and our suggestion is that the existence of the action causes fewer promises to be made which it is afterwards better to break. There are a great many men of a selfish and sentimental order of mind, but without much manly sense of responsibility and fidelity. This sort of people exist among the lower grades of society, where to jilt a woman would not be to incur much social stigma. We are afraid it does not always involve much social stigma among the higher circles. We cannot help thinking that if all legal liability were removed, such persons would more frequently trifle with the affections and damage the prospects of women than they do at present. Besides, we are disposed to think that many very fairly successful marriages come to pass because the promise to marry is binding in law. The very highest ideal of marriage ought not, to our mind, to be regarded as indicating the basis of legislation. The law must regard men and women as they practically exist in the bulk. It is very easy to say that a man who marries a woman because he will have damages to pay if he does not, is a man whom she is better without. To begin with, the damages are not the only element that the man will consider. The defendant in a breach of promise case is made to appear both in a ridiculous and odious light. And the feeling of shame which, according to some moralists, is the original root of virtue, and at any rate is a feeling other than merely sordid, is appealed to. Again, there is no doubt, to our mind, that the same consideration applies in this case as in the case of marriage, though no doubt in a minor degree: people to a great extent embrace willingly, and in the end are tolerably satisfied with, a thing which is of binding legal obligation when they would have perhaps changed their mind and rejected it had it been purely voluntary. Many married people go on very comfortably and really to their mutual advantage when they would have separated if the continuance of the union had been purely voluntary. We think it very probable that many sufficiently happy marriages have been brought about by the fact that the man could not be sure if he broke it off whether he might not be held up to public scorn in a court of justice. We do not say that this very consciously suggests itself to his mind, but the existence of the legal obligation is a latent factor preventing fickleness and assisting to steadfastness. In the higher circles these actions are no doubt uncommon. Though we do not say that bad conduct on the part of men in this respect is not common enough in those circles, we should be disposed to think that social opinion in this respect was more potent and effective as a check upon such conduct than it would be in the lower middle class. On the 15th inst., Mr. Justice Barry passed sentence of ten years' penal servitude upon Thomas Colclough, the stamp distributor, at Dublin, who was found guilty of forging and uttering forged stamps. After finishing the assizes at Croydon, says the Times, Mr. Baron Huddleston was requested to proceed to Bristol, to take the place of Lord Justice Lush, who was obliged to return to London from illness. It was noticed during the assizes, both at Croydon and Bristol, that the judge was suffering great pain. Immediately after his return to London on Wednesday morning, having finished the cause list at Bristol, a consultation with his doctors was held and the operation of lithotrity was advised. It was performed by Sir Henry Thompson, in the presence of Dr. Horace Dobell, Mr. Buckstone Brown, and Mr. Clover, who administered the ether. The operation was eminently successful; a large calculus was removed, and Mr. Baron Huddleston is progress ing favourably. SECURED CREDITOR IN ADMINISTRATION OF INSOLVENT ESTATE. THE recent cases of In re Hopkins, Williams v. Hopkins (29 W. R. 658), and In re Hopkins (29 W. R. 752), are of much importance, as showing the practice under the provisions of section 10 of the Judicature Act, 1875, importing the Bankruptcy Rules into the administration of insolvent estates. The plaintiffs were equitable mort. gagees of part of the estate of an insolvent testator. They took a judgment in their action on behalf of themselves and all other the creditors. After the usual decree had been made, the chief clerk called upon the mortgagees to put a value on their security, which they did, valuing it at £1,800, and the chief clerk then balance, beyond the amount of such valuation, of the certified that they were unsecured creditors for the property might be included in the sale of the testator's mortgage debt. They then applied that the mortgaged real estate ordered by the decree, and that, in the event of the proceeds being insufficient to pay their debt and costs, they might be allowed to prove for the balance against the testator's estate. The judge ordered all the testator's estate to be sold, without prejudice to any question; and upon the sale the mortgaged property realized £343 less than the valuation. The mortgagees then applied by summons that they might prove for the balance between the sum actually realized and the amount of their mortgage debt and costs. Mr. Justice Fry held that, as the plaintiffs had not excepted to the chief clerk's certificate or attempted to vary it, they must be taken to have exercised their right of election, under section 10 of the Judicature Act, 1875, to treat the mortgaged property as being of the value of £1,800, and could not be released from that election unless under circumstances showing that there had been mistake or miscarriage. As no such circumstances were shown to exist, and no question was raised as to the election being made under pressure or by mistake, Mr. Justice Fry dismissed the summons. Subsequently the mortgagees applied that the chief clerk's certificate might be varied or altered, alleging that "in putting a value on their security, when directed by the chief clerk so to do, they did not exercise any right of election, and had no option; that it was the invariable practice in chambers, in the administration of an insolvent estate of a person who had died since the commencement of the Judicature Act, 1875, to compel every secured creditor to put a value on his security, and the chief clerks had in all cases ignored rule 78 of the Bankruptcy Rules, 1870, and had regard only to rules 99, 100, and 101; and that the plaintiffs were forced to value before it was proved that the estate was insolvent." Now, under the Bankruptcy Rules referred to in the summons the course of procedure is this:-Rule 78 enables the owner of the security to apply by motion for the realization of the property comprised in his security. Rule 80 provides that, in case the moneys which arise from the sale shall be insufficient to pay and satisfy what shall be found due to the owner of the security, then he shall be entitled to prove for such deficiency. Rule 99 provides that a secured creditor, unless he shall have realized his security, shall, previously to being allowed to prove, state in his proof the particulars of his security and the value thereof. These rules, in the opinion of Mr. Justice Fry, contemplate two successive acts; that is to say, the realization of the property is contemplated as taking place, if at all, at an earlier stage; and when the stage of proof has been reached, if the sale has not previously taken place, then the valuation is to be put upon the property. Applying the rules, as thus interpreted, to the administration of an insolvent estate, the learned judge held that the plaintiffs might, if they had thought fit, have applied by motion for the realization of their >security at any time before the matter came before the chief clerk to ascertain the amount of their debt. That period, in the opinion of Mr. Justice Fry, corresponds to the period of proof in bankruptcy. After that period the 99th rule applies, and, if the plaintiff has not then realized his security, the chief clerk is bound to require him to put a value on it. The learned judge, therefore, held that in In re Hopkins the chief clerk had acted in strict accordance with the Bankruptcy Rules. If this case is to be taken as settling the practice, it would appear that, as soon as the estate has been ascertained, or agreed between all parties, to be insolvent, the mortgagee should apply to have his security realized, and that, if he neglects to do this before the chief clerk comes to ascertain his debt, he will have either to rest on his security or to put a value on it. Probably the result will be to render more common in actions for administration by a mortgagee the form of judgment given in 2 Seton, 823, 4th ed., under which the plaintiff will first realize his security, and, if it proves insufficient, will go on to administer the estate as a creditor for the purpose of obtaining payment of the balance of his debt out of the estate. RECENT DECISIONS. DISTRESS ON GOODS OF COMPANY. (Thomas v. Patent Lionite Company, C.A., 29 W. R. 596; In re Silkstone and Dodworth Coal and Iron Company (Limited), Ex parte Perkins, Fry, J., 29 W. R. 484; In re South Kensington Co-operative Stores (Limited), Fry, J., 29 W. R. 662.) In the first mentioned of these cases a landlord distrained on the goods of a company after the passing of a resolution for voluntary winding up, but before the appointment of a liquidator. Vice-Chancellor Malins held (29 W. R. 349) that until the liquidator was appointed there was no "effective winding up," explaining the provision of section 130, that a voluntary winding up shall be deemed to commence at the passing of the resolution, as meaning "at the passing of something which is effective"; hence he thought that there was nothing to prevent the distress from being levied. The Court of Appeal, without any hesitation, adhered to the plain meaning of the words of section 130, and held that a distress levied by a landlord after the passing of a winding-up resolution, whether a liquidator is or is not appointed, will be void under section 163, subject to the discretion of the court under sections 185 and 187. With regard to the exercise of this discretion, the Master of the Rolls took occasion to re-state the rule laid down in In re North Yorkshire Iron Company (26 W. R. 367) and other cases, that "the court ought to exercise this discretion in favour of a landlord or execution creditor when he cannot prove in the winding up for his debt; but where he can prove, the discretion ought not to be exercised. Here the landlords are creditors and can prove. There is, therefore, no ground for exercising this judicial discretion." In In re Silkstone, &c., Company (Limited), a lease of coal mines to a company contained a power for the lessor, if rent should be in arrear for thirty days, to stop the working and to distrain; and, if no sufficient distress should be found, or if there should be a breach of covenant not capable of being compensated in money, to enter, and that then the term should cease. An order for a winding up by the court was made on November 5, on a petition presented on October 7. Rent fell due on November 3, and on December 6, the rent not being paid, the lessor required the liquidator to pay the rent, and stated that, if the rent were not paid, he should apply to the court to restrain the working. The liquidator did not pay the rent, and continued the working, and large quantities of | coal were got. It was contended that the rent should be apportioned, and that the lessor should prove for the proportionate part up to October 7, the commencement of the winding-up. Mr. Justice Fry thought that the question before the court was governed by the principle of In re Lundy Granite Company, Ex parte Heaven (19 W. R. 609, L. R. 6 Ch. 462), that in some cases between the landlord and the company, if the company for its own purposes, and with a view to the realization of the property to better advantage, remains in possession of the estate, which the lessor is therefore not able to obtain possession of, common sense and ordinary justice require the court to see that the landlord receives the full value of the property." As the liquidator, after the notice had been given by the landlord under the proviso in the lease, continued working the mines, Mr. Justice Fry held that this was an election by the liquidator to continue in possession of the property for the purposes of the company, entitling the lessor to the full rent-that is, to the whole half year's rent due on November 3. The ground on which this decision was put appears to be that the landlord having the power, by compelling the working to cease, to render less valuable an asset of the company, the liquidator must be taken to have purchased from the landlord the right of going on working on the terms of fulfilling the provisions of the lease. In In Re South Kensington Co-operative Stores, a company occupied leasehold houses for the purposes of their business, and after the presentation of a petition to wind up the company, the provisional and official liquidator continued to carry on the business on the same premises. The rent having fallen into arrear, the land. lord applied to the court for liberty to distrain. It appears that the lease contained a proviso for re-entry, but the landlord had not taken any steps to enforce it. Mr. Justice Fry gave leave to the landlord to distrain only for the rent accruing since the commencement of the winding up-i.e., the date of the presentation of the petition and held that the court would apportion the rent accruing due before and after that date. The result of the two cases last mentioned seems to be, first of all, to confirm the view of Vice-Chancellor 367, L. R. 7 Ch. D. 661), that a landlord is entitled to Hall in In re North Yorkshire Iron Company (26 W. R. be paid in full the rent accruing from day to day after the commencement of the liquidation whenever the liquidator has retained possession of the property let, either with a view of carrying on the business or of It is also decided disposing of it as a going concern. that the period after which the landlord is entitled to the rent is the presentation of the petition for winding up; and that in ordinary cases the court will apportion the rent accruing before and after that date. But it appears that where the landlord has shown an intention to enforce his proviso for re-entry, he may, in some cases, become entitled to the whole of the rent which becomes due in respect of the preceding term of payment on a day after the commencement of the liquidation. CORRESPONDENCE. ENROLLING DEED IN CHANCERY. [To the Editor of the Solicitors' Journal.] Sir,-Can any of your readers tell me the effect of enrolling a deed in chancery? A question has arisen whether enrolment makes a deed absolutely unimpeachable, and I shall be glad to be referred to some authority on the point. A SUBSCRIBER. CASES OF THE WEEK. COMPANY-WINDING UP-ACTION by Debenture- HOLDER -COSTS.-In a case of In re Province of Brescia Steam Tramway Company (Limited), before Cave, J., Vacation Judge, on the 17th inst., a petition by creditors was presented for the compulsory winding up of the company, and subsequently actions were commenced by debentureholders to enforce their securities, and for the usual accounts in reference thereto. By the direction of the judge motions for the appointment of receivers in the actions were directed to come on with the winding-up petition. One order was eventually made in the petition and in the actions, and a voluntary winding up, agreed to by the company, was continued under the supervision of the court, and the liquidators already appointed were continued, and were also appointed receivers in the actions. A question was then raised as to whether the costs of the plaintiffs in the two actions should be costs in the winding up, and this was objected to by the company. CAVE, J., held that the costs of the actions were properly costs in the winding up, and on these terms all further proceedings in the actions were stayed.-SOLICITORS, Bellamy, Strong, & Co.; Munns & Longden; Taylor. COMPANY-WINDING UP-CONDUCT OF ORDER.-In the case of another company, called the Silver Valley Mines (Limited), also before Cave, J., on the 17th inst., a compulsory order was made for the winding up of the company on a similar ground to that in the last-mentioned case, and certain creditors of the company, who were so by virtue of an order of Bacon, V.C., directing their names to be removed from the list of shareholders, on the ground that their applications for shares had been induced by fraud and misrepresentations in the prospectus, applied to have the conduct of the winding-up order. Reliance was placed upon a decision of Bacon, V.C., in an analogous case of the Great Wheal Polgooth Company, where he had taken the conduct of the winding up from the petitioner, and had given it to the shareholders whose names had been struck off the list of shareholders. The grounds in the present case, in which this was sought to be done, were that the petitioner had only a small interest in the company as a shareholder, and that the whereabouts of the petitioner, whose name and address were given in the petition, could not be ascertained on inquiry at that address. CAVE, J., said that he saw no sufficient reason for departing from the usual course, and taking the conduct of the winding up from the petitioner, and, therefore, he made the usual compulsory order, and also the usual order as to the costs of persons appearing on the petition. SOLICITORS, Beall; J. Davis; Snell & Greenip. COMPANY-LIQUIDATION SALE BY LIQUIDATOR ΤΟ DIRECTORS-SANCTION OF COURT-COMPANIES ACT, 1862, s. 138. In the case of Re Yarmouth and Gorleston Tramways, also before Cave, J., on the 17th inst., a motion was made by the liquidator of the company for the sanction of the court to a proposed sale of the assets to certain directors of the company. Objection was made to the motion, and reliance was placed on upon Aberdeen Railway Company v. Blackie (1 Macq. 461). CAVE, J., considered the sale a proper one, and gave his sanction thereto.-SOLICITORS, Druce; Jackson & Attlee. HABEAS CORPUS-INFANTS-CUSTODY-MISCONDUCT OF FATHER. In a case of Re Webber, also before Cave, J., on the 17th inst, an application was made to make a rule nisi for a habeas corpus absolute against the grandfather and grandmother of two infants, both under seven years old, who had possession of the infants and refused to give them up to their father. The mother of the infants was dead, and the ground of the application was not any cruelty or miscon duct of the father to the children themselves, but hi cruelty to his wife. CAVE, J., considered this no ground for depriving the father of his lawful right to the custody of the children, and made the order absolute, with costs.-SOLICITORS, Britten & Co.; Farmer. COMPANY - APPLICATION ΤΟ RESTRAIN PRESENTA TION OF PETITION-DISPUTED DEBT. BONA FIDES.In the cases of Anglo-Universal Bank V. Tram. ways and General Works Company, and Same v. Eaton, also before Cave, J., Vacation Judge, on the 17th inst., motions were made to restrain the presentation of petitions to wind up the company, on the ground that the same would not be bond fide, as the petitioners' debts in each case were disputed. In the first case the claim was for calls on 3,000 shares in the defendant company, which shares had been underwritten by the plaintiff com pany, but which liability was denied by the plaintiff company, on the ground that their agent had no power to enter into the contract. CAVE, J., considered that the defendants had not made out a prima facie case of liability on the part of the plaintiff company, and he made an order restraining the presentation of a petition until the trial. In the second case, the defendant alleging that he did not threaten or intend to present a petition, CAVE, J., also granted an injunction until the trial.-SOLICITORS, Ashurst, Morris, & Co.; Burchells; Terrell. HIGH COURT OF JUSTICE. Silas Galsworthy made his will, dated 2nd of September, 1868, and thereby appointed his wife, Mary Galsworthy, and George William Rich, executrix and executor, and devised all his real estate (including chattels real) unto and to the use of the said Mary Galsworthy and George William Kich, their heirs, executors, and administrators respectively, upon trust. that the said Mary Galsworthy and George William Rich, or the survivor of them, or the heirs, executors, or administrators respectively of such survivor, should sell the same. The testator died on the 21st of September, 1869. George Wil liam Rich declined acting in the trusts of the will and executed a deed poll renouncing the trusts thereof, and the will was duly proved by Mary Galsworthy, the widow of the testator, who took upon herself the execution of the trusts. None of the estates of the testator were disposed of during the life of Mary Galsworthy, who made her will on the 8th of April, 1870, and thereby devised and bequeathed all estates vested in her upon any trust to Thomas Baker upon the trusts and subject to the equities affecting the same. Mary Galsworthy died on the 19th of May, 1870, and her will was duly proved by Thomas Baker. On the 10th of February, 1880, an action was commenced by some of the beneficiaries under the testator's will against Thomas Baker for the administration of his real and personal estate. On the 10th of July, 1880, the judgment of the court declaring that the trusts of the will of the testator ought to be performed and carried into execution, and directing the usual accounts and inquiries, was obtained. On the 8th of March, 1881, an order was made that the testator's real and leasehold estates be sold with the approbation of the judge, and directing the 1881, the plaintiffs applied that, notwithstanding the order purchase-money to go into court. On the 17th of May, of the 8th of March, 1881, the plaintiffs might be at liberty to proceed to sell out of court the real and leasehold estates tion coming before the chief clerk he made the following mentioned in the said order by public auction. The applica note, "I will not order the sale out of court, because it is directed by the court, but as all parties wish it, let them sell and come here for confirmation." The plaintiffs laid the abstract of title to the testator's estate before conveyancing counsel. The estates were both freehold and leasehold. Counsel advised that, having regard to Cooke v. Cranford (13 Sim. 91), Thomas Baker could not execute the trust for sale contained in the testator's will, and that an application should be made to the court to appoint new trustees. There was in the testator's will a detective power to appoint new trustees. Having regard to Re Jackson (16 W. R. 572), it was thought unsafe for Thomas Baker to appoint new trustees of the testator's will under Lord Cranworth's Act (23 & 24 Vict. c. 145, s. 27). The plaintiffs, therefore, moved under the Trustee Act, 1850, and the 15 & 16 Vict. c. 55, for the appointment of a new trustee, and for a vesting order. Whitehorne, Q.C., and A. J. Leach, for the plaintiffs. The MASTER OF THE ROLLS held that the case was distinguishable from Cooke v. Crawford. The sale was not made by the devisee of the trust estate, but by the Chancery Division. The devisee had the legal estate. Cooke v. Crawford only decided that the devisee of trust estates could not exercise the trust, The court had exercised the trust. Cooke v. Crawford had nothing to do with the devolution of estates. The equitable estate was derived under the order. The title was perfectly good. The order for sale was the equitable title. Solicitors for the plaintiffs, Nash & Field. Solicitors for the defendants, Hillearys & Taylor. THE RAILWAY COMMISSION.* July 9; August 1.-The Corporation and the Chamber of Commerce of Huddersfield v. The Great Northern Railway Company, and The Manchester, Sheffield, and Lincolnshire Railway Company. Working agreement-Revision of by Railway CommissionersThe Regulation of Railways Act, 1873 (36 & 37 Vict. c. 48), 8. 10. A special Act was passed which enabled the G. N. Railway Company and the M. Railway Company to enter into working agreements, and in pursuance of that Act an agreement was entered into, the 14th clause of which was as follows:-"Neither company shall make any bargain, treaty, agreement, or arrangement with any other company, or do any other Act, directly or indirectly, to affect injuriously the traffic of the other company, or to prejudice this agreement, without the consent of such other company." Upon an application by the Corporation and Chamber of Commerce of Huddersfield to the Railway Commissioners, under section 10 of the Regulation of Railways Act, 1873, to revise the above agreement in the interests of the public, by declaring the said 14th clause to be invalid or to be modified, Held, that such clause acted prejudicially to the interests of the public, because it did not leave the railway companies at liberty to accommodate the use of their line to what was advantageous for traffic, and that the agreement must be modified either by the omission of the article or by the addition thereto of a proviso to the following effect:-" Provided that nothing in this agreement shall be used or operate to prevent either of the companies parties hereto from agreeing to any through rate, or entering into any agreement with any other company or companies with reference to the conveyance of traffic by any route hereafter to be opened, or which has been opened for the first time any time since October 1, 1860, or to the interchange of running powers in respect of any such route or any part of it. This was an application to the Railway Commissioners under section 10 of the Regulation of Railways Act, 1873, by the Corporation and Chamber of Commerce of Huddersfield, asking the commissioners to revise certain parts of a working agreement between the Great Northern Railway Company and the Manchester, Sheffield, and Lincolnshire Railway Company, which were alleged to operate prejudicially to the town and district of Huddersfield. The application alleged that the 14th clause of the agreement (which was as follows:-" Neither company shall make any bargain, treaty, agreement, or arrangement with any other company, or do any other act, directly or indirectly, to affect injuriously the traffic of the other company, or to prejudice this agreement, without the consent of such other company") had operated very prejudicially to the public interests of the borough of Huddersfield and adjoining districts, and had been instrumental in debarring the inhabitants of the said borough and districts from railway facilities of great importance to their prosperity and well-being. The applicants asked the commissioners to revise the agreement in the interests of the public, and that the 14th clause be declared invalid and void, and that the same be expunged from the agreement, or be so modified as to enable either of the companies to make such bargains, treaties, agreements, and arrangements with any other company or person, and to do such acts as may serve or promote the public interests of the inhabitants of Huddersfield and the adjacent districts, whether or not any such bargain, treaty, agreement, or such Reported by W. H. MACNAMARA, Esq., Barrister-at-Law. acts injuriously affect the traffic of the other companies parties to the agreement, or prejudice the agreement. R. E. Webster, Q.C., and Roland Williams, appeared for the applicants. Pope, Q.C., and Dugdale, for the Great Northern Railway Company. Littler, Q.C., and Worsley, for the Manchester, Sheffield, and Lincolnshire Railway Company. The COMMISSIONERS delivered the following judgment:The question to be determined is whether an agreement, dated October, 1860, and made between the Great Northern Company and the Manchester, Sheffield, and Lincolnshire Company, requires, in our opinion, to be modified in the public interest. The agreement, which was entered into under the powers given by the Great Northern and Manchester, Sheffield, and Lincolnshire Railway Companies Act, 1858, was one securing mutual facilities for the interchange of traffic, with contingent running powers to each company in the event of the facilities failing to be afforded. The facilities given, subject to the earnings from the through traffic being divided in the proportions fixed by the agreement, were the right and privilege of free passage for each company's carriages and wagons over the railways of the other company, to be conveyed by such other company as fully and freely as it might convey its own carriages and wagons. The agreement then provided that traffic originating upon either company's lines, for which the joint railways might form a convenient route, and which might not subject of agreements, if any, then subsisting with other be otherwise specially consigned or addressed, or be the companies, should be booked, or invoiced, or conveyed by that route. It also contained the following article:-(14) "Neither company shall make any bargain, treaty, agreement, or arrangement with any other company, or do any other act, directly or indirectly, to affect injuriously the traffic of the other company, or to prejudice this agreement, without the consent of such other company." It is to this article that exception has been taken by the Corporation and Chamber of Commerce of Huddersfield, and their contention is that, having regard to the public interests, the article ought to be disallowed. In the view of the Sheffield Company, the agreement prevents either company, without the consent of the other, from co-operating in the forwarding of traffic covered by the agreement by any other route than that indicated by it. Neither company is to do or agree to anything directly or indirectly to affect injuriously the traffic of the other company. The traffic protected by these words means probably the traffic of lines already existing and worked by the companies in 1860, and, therefore, might not include traffic of railways acquired since 1860; but as to traffic of railways which either company had in 1860, the other company would seem bound not to divert such traffic from these railways. Traffic vid those railways, or either of them, between Manchester or Liverpool and London, or places south of Retford, would be within the article, and the article, as above interpreted, means that neither company is to carry such traffic by a route which would cause the interest the other company would have in also carrying it to be injuriously affected. interest that any company should have the power, by agreeNow it does not seem to us consistent with the public ment or otherwise, of thus interfering to exclude another company from the use of any particular route which may from time to time be opened for the transmission of traffic, and we consider that a stipulation which affords a reason able ground for such a contention as that advanced, whether successfully or not, is one which cannot but act to the So far as such a stipulation prejudice of the public interest. might be looked upon as confined to routes in actual existence at the time when this agreement was approved by the Board of Trade, it might possibly be considered as conceded by that authority in consideration of the other advantages gained by the public through the agreement, and if the operation of the clause were thus confined we should not think it necessary to interfere with it. In the uncertainty that a route convenient at one time will always continue to be so, it seems inexpedient that a railway company, if occasion should arise, should not be free to accommodate the use of its line to what is advantageous for traffic. The article in question does not leave these companies at liberty so to act, and the term is a long one for which the restrictions are imposed. During its continuance, so far as traffic the subject of the agreement is concerned, the two |