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thirty or forty feet, or even less, in width, running parallel to one another with no space between. These strips of land are cultivated in common to this extent, that, by the rules of the community which the owners form, the lands must generally be sown with wheat one year, with barley or oats the next year, and the third year must lie fallow, or in some other similar rotation. Each owner cultivates his lands according to the rules thus laid down. When the crops are taken off, the land being open and undivided by any fence, the owners put in their cattle, each according to the extent of his land, who range over the whole, feeding on the stubble that is left, not only on the lands of their owners, but also on all other lands in the same field. The consequence of this evidently is that no person can cultivate his land otherwise than his neighbours do. If, in the year that the land is fallow, any person should attempt to sow wheat or green crops, or anything else on his land, the cattle of his neighbours would at once eat it up and destroy it; for during the year in which the field is fallow, the neighbours put in their cattle to range over the whole."

SAUNDERS, Esq., Barrister-at-Law, Metropolitan Police Magistrate. Butterworths.

A good deal of interest attaches to the new edition of this standard book, owing to the changes introduced by the Summary Jurisdiction Act. The new forms are given in their proper places, and Mr. Saunders has prefixed to the book a memorandum relating to claims of civil debts, which might have been more useful if it had enumerated the chief matters falling within the new civil procedure established by section 6 of the Act, and had pointed out the exception from it of bastardy orders. In addition to the Summary Jurisdiction Act, the Legislature has provided fresh tasks for the editor, since the last edition was published in 1876, by the passing of many important Acts affecting the subject-matter of the work, from the Canal Boats Act, 1877, to the Wild Birds Protection Act of last session. Forms are given for proceedings under each of these statutes; and the care with which the work has been executed may be judged of from the fact that the only error we have as yet discovered is the reference in the margin on p. 115 to the Act to prevent the administration of poisonous drugs to horses and other animals as " 39 Vict. c. 14," instead of 39 Vict. c. 13. We can commend this edition as both complete and accurate.

THE CITY TITHES ACT, 1879.

THE LONDON (CITY) TITHES ACT, 1879, AND THE OTHER TITHE ACTS EFFECTING THE COMMUTATION AND REDEMPTION OF TITHES IN THE CITY OF LONDON. WITH AN INTRODUCTION, NOTES, &c. Ry H. B. BURNELL, Esq., Barrister-at-Law. Stevens & Sons.

Here, in this form of right, sometimes called in our books common of shack, is a clear survival of the communal mode of enjoying the arable lands, just as common of pasture appendant indicates the original mode of enjoying the waste. And our author summarizes his conclusions as follows:-"The members, therefore, of the original community, or vill, had arable lands, which they cultivated on a common system, pasture lands which they either divided or allotted amongst themselves or else depastured in common, and also rights of common on the adjacent and uncultivated land, which constituted the mark in its primary sense, out of which the arable and pasture were anciently reclaimed and from which they were divided. In most cases, from one cause or other, this simple state of things in time disappeared. The lords of the manor obtained authority over the freeholders who became their tenants; and the ancient system of common agriculture became converted into the system of manors consisting of lords and tenants, whose rights are laid down in law books. There is, however, or was until the year 1854, a community still existing, having laws of their own and self-government, with respect to whom an attempt was made by the lord of a manor, of which some of the tenements were held, to destroy their custom and to bring the whole within his manorial jurisdiction. But, owing to the sturdy manner in which the freeholders disputed his rights, his attempt failed, and the lord himself was fain, for some years, to become one of the officers of this little community."

RESPONDENCE.

TETANDING COUNSEL TO THE COURT.

of the Solicitors' Journal.]

of the disallowance by the taxing by the conveyancing counsel of Imery is one that has, I believe, occaand the Council of the Incorporated been the subject of communications

Mr. Burnell's subject is of somewhat limited interest, but he has treated it with great care and completeness. The payment of tithes in the city of London was regulated for more than three centuries by a decree made in the reign of Henry VIII., by the Archbishop of Canterbury, the Lord Chancellor, and other lords and knights. The London City Tithes Act, 1864, provided that the tithes under this decree should cease in the parishes mentioned in the schedule, and that instead thereof the incumbents should receive the annual fixed tithes specified in the schedule. The Act of last year extended and applied the provisions of the general Tithe Acts to the commutation of tithes within the city of London, and this is the Act with which Mr. Burnell deals. After a clear and well-written introduction, he prints the recent Act in full, incorporating with it the provisions of the Tithe Acts, and adding notes to the sections. In the appendix he prints in full the Tithe Commutation Acts.

The community here referred to was the vill or township of Aston, in the county of Oxford, but into the account given by Mr. Williams of the customs which regulated it we have not space to enter. Indeed, our only reason for having referred at such length to the subject is the interest which must attach at the present time to any discussion concerning the nature or foundation of our law of real property. These investigations show, at least, that, as there was a period when the mode of utilizing the soil of this country was the exact opposite in every particular to that which prevails at present, our existing law of real property has none of that sanction of divine right which is too often attributed to it, and that a reformation of it to meet the requirements of society is no unprecedented event in our history. We will conclude by heartily commending the book to the attention of our readers as another instance of the author's profound learning in an attractive subject.

PRACTICE.

ad the Lord Chancellor. I have underthe by the conveyancing counsel is

to submit their fees to the disFang master, they will, on the applica pay, gratid, any amount which wed, and which would otherwise zay the solicitor personally.

mentioned by "A Solicitor," the do not appear to be willing to do tems to me that when a man accepts the weating counsel to the Chancery

A DIGEST AND THE LAW OF PRACTICE UNDER THE JUDICATURE ACTS AND RULES, AND THE CASES DECIDED IN THE CHANCERY AND COMMON LAW DIVISIONS FROM NOVEMBER, 1875, TO AUGUST, 1880. By W. H. H. KELKE, Barrister-at-Law. Stevens & Haynes.

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Court, he becomes an official of
with the court to say whether one
best liberty to claim whatever fees
whether another official is to have
moderate the fees so claimed.
with which the solicitor ought to
It cannot be right that, while
ocial, and to pay whatever
to claim, the solicitor should be
ampaisory disbursements disallowed

should have no other remedy to
ama petition“ in formá pauperis "
of the former.

A Solicitor" should communi-
Te to the secretary of the Incor-
with a view to the question being
W. M. W.

OF THE WEEK.
£7-KUTSARTES-WIFE'S AUTHORITY
FAST CARDIT-REVOCATION-NOTICE TO
Come of Lords, on the 27th ult., the
He was decided. The action was
price of certain articles of dress
mom the plaintiffs by the defend.
admited to be necessaries suitable
tes were living together, and the
En Lowance for the purpose of pro-
the children. He had forbidden

this revocation of authority was
Kaza. Bowen, J., had entered judg
ints on the authority of Jolly v. Ress
EX. 625, and his decision had
13 Out of Appeal see 28 W. R. 501,
On appeal to the House it was
were entitled to recover, since an
at be secretly revoked, and there-
show that the plaintiffs knew
We pledge his credit. The
le JV. Rees, on the ground
led the judges in many earlier
of the judges in that case was
C. BLACKBEN, and WATSON dis-
The authorities showed that
dt lavest the wife with an
stand's credit as his agent, except

It will be worth while for the practitioner to buy this little book as a means of reference to the practice cases. It is not a mere jumble of head-notes: a good deal of labour has evidently been bestowed upon it, and the provisions of the Acts and Rules are ingeniously interwoven with the effect of the cases. It strikes us as being a useful handbook for the law student, but he must be warned not to trust too implicitly to the condensed statements of the writer. For instance, the words, generally the rules of equity shall prevail" (p. 6), are not a correct paraphrase of section 25 (11) of the Judicature Act, 1873. It is fair to add that Mr. Kelke says, his preface, that it is assumed that the reader possesses some edition of the Acts and Rules. If his little book reaches another edition, we advise him to preface it with an admonition to the reader in all cases to consult the exact words of the Acts and Rules of Court.

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Bebas deserted his wife, or has, -ben, engated from her, and has not Neither of those circum

*A* Eds were

at Cse, since the parties were supplied by the

beat had done no act which

be we any authority

CORRESPONDENCE.

FEES OF CONVEYANCING COUNSEL TO THE

COURT.

[To the Editor of the Solicitors' Journal.] Sir,-The question of the disallowance by the taxing masters of fees charged by the conveyancing counsel of the Court of Chancery is one that has, I believe, occapied the attention of the Council of the Incorporated Law Society, and has been the subject of communications between them and the Lord Chancellor. I have understood that the line taken by the conveyancing counsel is that, while they decline to submit their fees to the discretion of the taxing master, they will, on the applica tion of the solicitors, repay, ex gratiâ, any amount which may have been disallowed, and which would otherwise have to be borne by the solicitor personally.

In the instances mentioned by "A Solicitor," the conveyancing counsel do not appear to be willing to do even this. It seems to me that when a man accepts the position of conveyancing counsel to the Chancery Division of the High Court, he becomes an official of that court, and it rests with the court to say whether one of its officials is to be at liberty to claim whatever fees he may think fit, or whether another official is to have power to regulate or moderate the fees so claimed.

This is a matter with which the solicitor ought to have nothing to do. It cannot be right that, while compelled to employ one official, and to pay whatever fees he may choose to claim, the solicitor should be liable to have his compulsory disbursements disallowed by another official, and should have no other remedy to save his own pocket than a petition “ in formâ pauperis" to the sense of justice of the former.

I would suggest that "A Solicitor" should communicate the facts of his case to the secretary of the Incorperated Law Society, with a view to the question being once more ventilated. W. M. W. Dec. 1.

CASES OF THE WEEK.

HUSBAND AND WIFE-NECESSARIES-WIFE'S AUTHORITY TO PLEDGE HUSBAND'S CREDIT-REVOCATION-NOTICE TO CREDITOR.-In the House of Lords, on the 27th ult., the appeal of Debenham v. Mellon was decided. The action was brought to recover the price of certain articles of dress which had been purchased from the plaintiffs by the defendant's wife, and which were admitted to be necessaries suitable to her position. The parties were living together, and the husband gave the wife an allowance for the purpose of providing clothes for herself and her children. He had forbidden ber to pledge his credit, but this revocation of authority was not known to the plaintiffs. Bowen, J., had entered judgment for the defendants, on the authority of Jolly v. Rees (12 W. R. 473, 15 C. B. N. S. 628), and his decision had been affirmed by the Court of Appeal (see 28 W. R. 501, LR. 5 Q. B. D. 394). On appeal to the House it was argued that the plaintiffs were entitled to recover, since an ostensible authority cannot be secretly revoked, and therefore it was for the defendant to show that the plaintiff's knew that he had forbidden his wife to pledge his credit. The House was also asked to overrule Jolly v. Rees, on the ground that the decision of the majority of the judges in that case was inconsistent with the dicta of the judges in many earlier cases. Lords SELBORNE, C., BLACKBURN, and WATSON dismissed the appeal, with costs. The authorities showed that the mere fact of marriage did not invest the wife with an authority to pledge her husband's credit as his agent, except in cases where the husband has deserted his wife, or has, tarough no fault of hers, separated from her, and has not made a proper provision for her. Neither of those circumstances existed in the present case, since the parties were cohabiting together when the goods were supplied by the plaintiffs. Moreover the defendant had done no act which could be treated as giving his wife any authority to pledge

his credit, but he had in fact forbidden her to do so, and had made her an allowance sufficient for her personal requirements. It was not necessary to prove that the plaintiffs had any notice of the prohibition to the wife to pledge her husband's credit. The decision in Jolly v. Rees had been acted upon for many years, and was consistent with reason and justice, and would, therefore, be followed by the House.-SOLICITORS, Boyce & Ridley; Button & Grove.

PRINCIPAL AND SURETY-BILL OF EXCHANGE-INDORSE

MENT-DISCOUNT BY BANKER-RIGHT TO SECURITIES.In the House of Lords, on the 27th ult., judgment was delivered in the case of Duncan v. The North and South Wales Bank. The plaintiffs had received from the firm of Radford & Sons certain bills of exchange accepted by the latter by way of payment for goods sold. The plaintiffs indorsed the bills, which were discounted for them in the ordinary way by the Liverpool branch of the North and South Wales Bank. Radford & Sons were also customers of the

bank, and before the bills had been handed to the plaintiffs, bank the title deeds of certain real property of his own, to Samuel Radford, one of the partners, had deposited with the secure past and present discount and advances for the firm. Before the bills fell due Radford & Sons executed a deed of inspectorship, which the plaintiffs refused to sign, and the bills having been dishonoured, the plaintiffs commenced proceedings in the County Palatine Court of Lancaster, claiming a declaration that they were sureties to the bank for payment by Messrs. Radford & Sons of the balance due upon the bills, and that the security of the equitable mortgage effected by Samuel Radford with the bank extended to such balance. Little, V.C., made an order that the securities should be handed over to the plaintiffs on payment by them of the balance resecured creditors of Radford & Sons appealed, and the Court of maining due to the bank. The representatives of the unAppeal (Jessel, M.R., James and Bramwell, L.JJ.) reversed the decision of the Vice-Chancellor, holding that, when the bills were discounted, the plaintiffs became principal debtors to the bank, although, no doubt, as indorsers, they were in the position of sureties towards the prior parties to the bills. Hence the plaintiffs were not entitled to the benefit of the securities deposited with the bank, especially since they had been deposited, not by Radford & Sons, but only by one of the individual members of their firm (see 23 SOLICI TORS' JOURNAL, 359, 27 W. R. 521, L. R. 11 Ch. D. 88). Lords SELBORNE, C., BLACKBURN, and WATSON reversed the decision of the Court of Appeal. In the case of an acceptor and an indorser of a bill of exchange there is no express contract of suretyship, but there is a primary and secondary liability of two persons for one and the same debt, one of them, if compelled to pay it, being entitled to reimbursement from the other. The principle which had been established by many authorities in favour of a drawer or indorser who has been compelled to pay a bill ought to be applied whenever a question arises as to any securities deposited with the holder of the bill by the acceptor, and the equity between an indorser and an acceptor must be taken to be the same as that between a surety and a principal when the creditor is not a party to the contract of suretyship, and would attach where the overdue and dishonoared bills and the securities are found together in the hands of the secured creditor when he demands payment from the indorser, and has no other claim upon the securities, and when the competition is between the indorser and the acceptor only. The fact that the security had been deposited by one member only of the firm, who had accepted the bills, could not make any difference. The decision of the Court of Appeal was in conflict with what was said by Lord Eldon in Aldrich v. Cooper (8 Ves. 381), and by Turner, V.C., in Yonge v. Reynell (9 Hare, 809), and therefore the judgment of the Vice-Chancellor must be restored. The bank would have their costs out of the fund, and the costs of the appellants must be added to the securities.-SOLICITORS, Eyre & Co.; Gregory, Rowcliffes, & Rawle.

INFANTS CUSTODY ACT, 1873 (36 & 37 VICT. c. 12), s. 1— APPLICATION TO VARY ORDER-APPEAL.-In a case of In re Holt, before the Court of Appeal on the 24th ult., an application was made for leave to appea', notwithstanding the expiration of the time limited by the rules, from an order made by Malins V.C., that the father of an infant about three

years of age should deliver her into the custody of her mother. The order was made on the petition of the mother (presented by the leave of the court in forma pauperis, and without a next friend), and it directed that the infant should be delivered into her mother's custody until she should attain sixteen or further order. More than a year after the order was made, the father moved before the Vice-Chancellor to discharge it, and his application was refused. He then gave notice of a motion in the Court of Appeal for leave to appeal from the original order. On the hearing of the motion it was stated that the object was to show that, under existing circumstances, the mother was not a proper person to have charge of the infant. The court (JESSEL, M.R., and JAMES and LUSH, L.JJ.) said that the proper course was not to appeal, but to apply to the Vice-Chancellor to vary the order. This could be done at any time, because the order was only made until further order. And section 1 of the Act, which provided that the order for custody should be made upon the petition of the mother by her next friend, did not apply to such an application, but only to the original petition. SOLICITORS, Shaw & Tremellen; Makinson & Carpenter.

their wishes in the matter. The Court of Appeal (JESSEL, -M.R., and JAMES and LUSH, L.JJ.) at first expressed some doubt whether there was jurisdiction to wind up such a society, but ultimately they held that section 21 of the Act of 1870 gave the jurisdiction, and they held that, as the case had stood before the Vice-Chancellor, a winding-up order ought to have been made on the first petition, inasmuch as the strong evidence of the petitioner as to the state of health of the assured had not been met at all. JESSEL, M. R., said that it was not enough for the respondents to such a petition to assert that they disputed the petitioner's claim; they were bound to make a primâ facie case, so that the court could see that there was a question to be tried. But, having regard to the enormous losses which must result to the policy-holders from the making of a winding-up order, the court said that it ought to exercise the powers conferred by section 91 of the Companies Act, 1862, of summoning a meeting of the policyholders in order to ascertain whether they desired a winding up, or an order for the reduction of the policies in lieu of a winding up. But the court said that, as the power of reduction given by section 22 was to be exercised "in place of making a winding-up order," the winding-up order must be discharged, and the bearing of the appeal must stand over until after the meeting of policy-holders had been held. The court expressed a decided opinion that the holders of policies in a mutual society such as this could not be placed on any list of contributories, or made liable to pay anything whatever. Their only contract was to pay the premiums on their. policies, and they were entitled at any time to discontinue the payments and to surrender their policies. The society was, as JAMES, L.J., said, a mere benefit club, the sums which had arisen from premiums being the property of the policy-holders, and all that could be done in the winding up was to distribute the fund among the policy-holders in the proportions in which they were entitled thereto, subject to the payment of the costs of the winding up.-SOLICITORS, Longcroft & Myers; G. Blagden; Harcourt; Ashurst, Morris, & Co.; Pritchard & Marshall.

It was

COMPANY-WINDING UP-JURISDICTION-MUTUAL LIFE ASSURANCE SOCIETY-LIABILITY OF POLICY-HOLDERSCOMPANIES ACT, 1862, ss. 91, 199-LIFE ASSURANCE COMPANIES ACT, 1870, ss. 21, 22.-In a case of In re the Great Britain Mutual Life Assurance Society, before the Court of Appeal on the 24th ult., questions arose as to the jurisdiction of the court to wind up a mutual insurance society, and as to the liabilities of the policy-holders. The society was a purely mutual one, constituted in 1844 by a deed of settlement, its funds arising entirely from the premiums on policies. It had no shares and no capital. On its first formation there was a guarantee fund, which was contributed by the first directors. This fund was to be repaid in five years, and might be repaid sooner, and it had been repaid long before the commencement of the proceedings in the present case. The deed of settlement provided that the parties thereto, and the several other persons who should thereafter be desirous of becoming members of the society, and should, for that purpose, effect assurances with it, should, so long as their respective assurances should be kept up and be in force, be and continue, until it should be dissolved under the provisions thereinafter contained, a society under the above name for carrying on the ordinary business of life assurance. also provided that no member, whether an officer of the society or not, should be personally liable on any policy issued by the society, but that the funds or property of the society (including the guarantee fund, if it should be necessary to resort thereto) should alone be liable to satisfy claims on the policies, and each policy contained an express provision to this effect. The society was never registered under the Companies Act, 1862. On the 28th of October a petition was presented to wind up the society, the petitioner being the representative of a deceased holder of a policy for £5,000. The company had resisted payment of the claim, on the ground that, when the policy was issued, the state of the health of the assured had been misrepresented. The petitioner had commenced an action against the society on the policy, which action was still pending when the petition was presented. The petitioner filed a number of affidavits by persons who had known the deceased assured to prove that his health was good at the time when the policy was granted. The society adduced no evidence against this, except that of the belief of some of their officers. On the 30th of October another winding-up petition was presented by the holder of a policy which was still current. The two petitions came on for hearing together, and the society did not oppose the making of a winding-up order. Hall, V.C., was of opinion that there was a bond fide dispute as to the first petitioner's claim, and he made a winding-up order on the second petition, giving liberty to the first petitioner to apply for the costs of it, if his claim should be ultimately established. The first petitioner appealed, and before the appeal came on for hearing a committee had been formed by holders of policies of the society, who desired that the court should exercise the power given to it by section 22 of the Life Assurance Companies Act of 1870, to reduce the amounts of the contracts of the society so as to render it solvent again. This committee appeared by coursel, who asked that the winding-up order might be discharged, and that an oppor. tunity might be given to the policy-holders of expressing

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esses. The bankrupts afterherlessebold house to W., to te bankruptcy the lessor of the house mangage entered and determined age claimed to consolidate the two cided that the trustee in the banken the base comprised in the second ng both debts. The court (JAMES, A held that there was no right to te pund that the first mortgage had determination of the lease. JAMES, was not disposed to extend the doctrine buy see which was not clearly covered ca decatible from some decided case,

ory for applying the doctrine to the mortgaged estates had ceased to

attempt to tack a debt which bad que debt to a security for another debt. that the doctrine of consolidation sethe mortgagee to hold both properties, ng to redeem both when both doeld not apply to a case where perty in the hands of the mortgagee. both properties should remain in wargarse JAMES, L.J., added that, if Morning (Weekly Notes, 1880, p. wth this decision, he did not see pred-SULICITORS, Lawrance, Plewes,

SAGEE-POWER OF SALE-DUTY OF as of Nov. Bade, before the Court an important question was raised of mortgagee with reference to the le contained in his mortgage. The gagor to set aside a sale of the ate by the mortgagee under his power of then she sale was made for an improper the mortgagee was actuated by an the property was sold, not because money, but because his solicitor wyment of some costs, which he could It was also alleged that the dacted, and that the property undervalue. In support of the first was placed on the case of 37 424), in which Stuart, V.C., Sea in Decues v. Glazebrook (3 Mer. 200), Ve. 271), and Cholmondeley ▼ 1.1. had stated the principle that the Te the benefit of the mortgagor in the

MORTGAGE · ATTORNMENT CLAUSE DISTRESS AFTER BANKRUPTCY OF MORTGAGOR.-In a case of Ex parte Blakey, before the Court of Appeal on the 25th ult., the question. was whether a mortgagee, whose mortgage deed contained an attornment clause, was entitled to levy a distress under the clause after the bankruptcy of the mortgagor. The mortgage deed was executed on the 1st of June, 1871, and it contained a clause by which the mortgagor attorned and became tenant from year to year to the mortgagees in respect of the mortgaged property, at the yearly rent of £800, to be paid by equal quarterly payments, the first on the day of the execution of the mortgage. And it was agreed that it should be lawful for the mortgagees, at any time after the 1st of September, 1871, without giving previous notice of their intention so to do, to enter upon, and take possession of, the property whereof the mortgagor had attorned tenant, and to determine the tenancy created by the attornment. The rent fixed by the clause was equal to the amount of a year's interest on the mortgage debt. In 1879 the mortgagor filed a liquidation petition, and, after a receiver had been appointed, and had taken possession of the debtor's property, the mortgagees distrained, under their attornment clause, upon the debtor's goods on the mortgaged property for two quarters❞ rent. Bacon, C.J., held (28 W.R. 708) that the distress was valid, and that it must prevail against the title of the trustee in the liquidation, and this decision was affirmed by the Court of Appeal (JAMES, COTTON, and LUSH, L.JJ.). It was contended that, by reason of the provision for its determination at any time without notice, the tenancy created by the attornment was really a tenancy at will, and that it had been determined by the bankruptcy of the. mortgagor. The court, however, held that the tenancy was from year to year, and that it had not been determined, consequently, that the distress was valid.-SOLICITORS, Gregory, Rowcliffes, & Co.; Pritchard, Englefield, & Co..

fale and the Vice-Chancellor added, pose being to secure repayment of his the power for another purposeofert other purposes of his own, or to davidcal-the court considers

exercise of the power, because it is Pipes fregn to that for which it was Tus-Chancellor went on to say that per would vitiate the sale as against that there was no foundation for this ESSEL, M.R., and COTTON 1, si that the mortgagee was not kowe of ale for the mortgagor, and if he was pove, the court could not look into 1 he had a right to sell on the 1st The mortgagor is a member of an

MORTGAGE-CONSOLIDATION-CESSER OF MORTGAGOR'S INTEREST ON BANKRUPTCY.-In a case of Ex parte Williams, before the Court of Appeal on the 25th ult., a curious question arose as to the consolidation of two mortgages. The bankrupts had mortgaged a leasehold house to W., to secure £500. The lease of the house contained a provision enabling the lessor to re-enter and put an end to the lease

wish to turn him out of his et present, and then on the 1st had aarrel with the mortgagor, de: 10 show him no more mercy, 35-if all this was proved, the in the mangage from exercising his the terms of payment of the cold not look at the mortgagee's 2 power. Lord Eldon had ad which Stuart, V.C., supposed The Fuse Chancellor was entirely miswing the indgments to which

are some limits to the powers of ton, without looking at the peret, must conduct the

on the bankruptcy of the lessees. The bankrupts afterwards mortgaged another leasehold house to W., to secure £200. After the bankruptcy the lessor of the house comprised in the first mortgage entered and determined the lease. The mortgagee claimed to consolidate the two mortgage debts, and insisted that the trustee in the bankruptcy could not redeem the house comprised in the second mortgage without paying both debts. The court (JAMES, COTTON, and LUSH, L.JJ.) held that there was no right to consolidate, on the ground that the first mortgage had ceased to exist by the determination of the lease. JAMES, L.J., said that he was not disposed to extend the doctrine of consolidation to any case which was not clearly covered by authority or logically deducible from some decided case, and he could find no authority for applying the doctrine to a case where one of the mortgaged estates had ceased to exist. It was really an attempt to tack a debt which had once been a mortgage debt to a security for another debt. COTTON, L.J., said that the doctrine of consolidation assumed the right of the mortgagee to hold both properties, and the right of the mortgagor to redeem both when both debts were paid, and it could not apply to a case where there was only one property in the hands of the mortgagee. It was necessary that both properties should remain in specie in the same mortgagee. JAMES, L.J., added that, if the case of Barrow v. Manning (Weekly Notes, 1880, p. 108) was inconsistent with this decision, he did not see how it could be supported.-SOLICITORS, Lawrance, Plews, & Baker; Aldridge.

MORTGAGOR AND MORTGAGEE-POWER OF SALE-DUTY OF MORTGAGEE.-In a case of Nash v. Eads, before the Court of Appeal, on the 1st inst., an important question was raised as to the position and duty of a mortgagee with reference to the exercise of a power of sale contained in his mortgage. The action was brought by a mortgagor to set aside a sale of the mortgaged property made by the mortgagee under his power of sale, on the grounds that the sale was made for an improper purpose, that in making it the mortgagee was actuated by an improper motive, and that the property was sold, not because the mortgagee wanted his money, but because his solicitor desired to obtain the payment of some costs, which he could not obtain in any other way. It was also alleged that the sale had been improperly conducted, and that the property had been sold at a gross undervalue. In support of the first ground alleged, reliance was placed on the case of Robertson v. Norris (1 Giff. 424), in which Stuart, V.C., said that Lord Eldon, in Downes v. Glazebrook (3 Mer. 200), Chambers v. Goldwin (9 Ves. 271), and Cholmondeley ▾ Clinton (2 J. & W. 1), had stated the principle that the mortgagee is a trustee for the benefit of the mortgagor in the exercise of his power of sale, and the Vice-Chancellor added, "The legitimate purpose being to secure repayment of his mortgage money, if he uses the power for another purposefrom any ill-motive to effect other purposes of his own, or to serve the purposes of other individuals-the court considers that to be a fraud in the exercise of the power, because it is using the power for purposes foreign to that for which it was intended." And the Vice-Chancellor went on to say that such an exercise of the power would vitiate the sale as against the purchaser. The court (JESSEL, M.R., and COTTON and LUSH, L.JJ.) held that there was no foundation for this proposition. JESSEL, M.R., said that the mortgagee was not a trustee of the power of sale for the mortgagor, and if he was entitled to exercise the power, the court could not look into bis motives for so doing. If he had a right to sell on the 1st of Jane, and he then said, The mortgagor is a member of an old county family, and I don't wish to turn him out of his property, and will not sell it at present, and then on the 1st of July he said, I have had a quarrel with the mortgagor, and he has insulted me; I will show him no more mercy, but will sell him up at once-if all this was proved, the court could not restrain the mortgagee from exercising his power of sale, except on the terms of payment of the mortgage debt. The court could not look at the mortgagee's motives for exercising his power. Lord Eldon had never said anything of the kind which Stuart, V.C., supposed him to have said. The Vice-Chancellor was entirely mistaken, and must have been citing the judgments to which he referred from his recollection, without looking at the reports. Of course there were some limits to the powers of the mortgagee. He, like a pledgee, must conduct the sale

properly, and must sell at a fair value, and he could not sell to himself. But he was not bound to abstain from selling because he was not in urgent want of his money, or because he had a spite against the mortgagor. And the court held that on the evidence the plaintiff's case entirely failed, and they affirmed the decision of Fry, J., in favour of the defendants.-SOLICITORS, Rooks & Co.; Crosse, Sons, & Riley.

PRACTICE-MOTION FOR RELEASE OF PRISONER-PRECEDENCE. In a case of Ashton v. Sherrock, before the Master of the Rolls, on the 26th ult., a question arose as to whether on motion days a motion for the release of a prisoner attached for contempt had precedence over all motions, on the ground that it affected the liberty of the subject. JESSEL, M.R., said that such motions always had priority.-SOLICITORS, Phelps, Sedgwick, & Biddle; Pritchard, Englefield, & Co.

DEBTOR AND CREDITOR-COMPOSITION-SECURed Credi. TOR-VALUATION OF SECURITY-COMPOSITION ON BALANCERIGHT TO SURPLUS PROCEEDS.-In a case of Couldery v. Bartrum, before the Master of the Rolls, on the 30th ult., a question was argued as to whether compounding debtors under the Bankruptcy Act, 1869, are entitled to any surplus realized over and above the value put by creditors upon a security held by them where the creditors have accepted a composition for the residue of their debt. The plaintiffs were debtors who made a composition with their creditors under the Bankruptcy Act, 1869. The defendants were secured creditors who had placed a value on their security, and had proved for the balance and received the composition on such balance. The defendants' security realized more than the value placed upon it by them, and the debtors now brought this action claiming the surplus, and a re-assurance of the subject of the security. For the defendants it was contended that under the Bankruptcy Act, 1869, and the Bankruptcy Rules, 1870, it was only in cases of bankruptcy, and not of composition, that the debtors or their estate would be entitled to the benefit of any surplus. JESSEL, M.R., was of opinion that the composition and the value placed upon their security when paid were a complete satisfaction for the debt, and he accordingly gave judgment for the plaintiffs.SOLICITORS, Tatham, Elkins, & Nash; C. Butcher; Reed & Lovell.

RAILWAY-SALE OF LAND-Right to POSSESSION-DEBENTURE STOCK-RECEIVER-WORKING EXPENSES-MODE OF ENFORCING PAYMENT.-In a case of Great Eastern Railway Company v. East London Railway Company, before the Master of the Rolls on the 30th ult., the plaintiffs asked for a declaration that certain tolls and easement rents payable to them by the defendants were properly part of the current expenses of the defendants' line, and payable by a receiver appointed thereof, and also an order for possession of the land over which the easements extended, on the ground, in effect, that the purchase-money thereof was unpaid. Under an agreement made between the two companies, the defendants were to pay the plaintiffs a certain easement rant for the user of part of their land. The plaintiffs were to acquire certain land and to grant an easement over it for the running of the defendants' trains, to be paid for by the defendants at an amount to be fixed by arbitration, and the defendants were also to pay the plaintiffs an amount to be fixed by arbitration in respect of certain junction expenses, station rent, and services rendered in working the defendants' line. By his award, the arbitrator fixed the junction expenses, station and other rents, at certain sums, and awarded a lump sum in respect of the other matters in the agreement. A receiver was, in November, 1878, appointed of the defendants' undertaking, at the instance of debenture stockholders. Subsequently in February, 1879, the plaintiff's recovered judgment for a large sum due to them for tolls and easement rents under the agreement aforesaid. By the order appointing the receiver he was directed in the usual way to pay all sums necessary for the working and management of the defendants' line, and to pay the balance into court. In July, 1879, the plaintiff's applied by summons in the receivership action for an order that the receiver should pay them out of funds in his hands the amount of their tolls and easement rents for which they had recovered judgment. Fry, J., however, held,

money which they had realized by the sale of the stock and! other articles at Oran.

The debtors were merchants carrying on business under the style of Elford & Co. in London, and Albert Elford at Oran. Mr. G. Barnet, one of the debtors, went out to Oran and managed the business there while Elford remained and managed the business in London. The Credit Lyonnais was a joint stock banking company established according to French law, and having a head office at Lyons, and branches or agencies at Paris, London, Oran, and elsewhere. The debtor, Barnet, had business transactions with the Oran branch of the Credit Lyonnais, who had discounted his bills, and lent him money for the purpose of carrying on his business. In October last the affairs of the firm became very much embarrassed, and the debtors presented a petition for liquidation, a power of attorney having been previously given to Mr. Mengnier, a public accountant at Oran employed by the Credit Lyonnais, to wind up their affairs there. Steps were now being taken by the company to realize the property of the debtors at Oran, and it had been agreed between the parties that the court should decide the preliminary point whether this application could be made against the Credit Lyonnais in London, the head office of the corporation being at Lyons.

The manager of the London branch of the company stated in his affidavit that all the agencies or branches were entirely distinct from and independent of each other, and each agency or branch was only accountable or liable to becontrolled by the head establishment at Lyons. He had not, nor had the London agency, received or dealt with the assets of the firm at Oran. The Credit Lyonnais was not registered in England.

(Brocklebank v. East London Railway Company L. R. 12 Ch. D. 839), on a preliminary objection, that the present plaintiffs, not being parties to the action, had no locus standi to make the application, and he accordingly refused the same, with costs. The plaintiffs had since been unable to obtain payment of their rent and tolls, as the East London Company affected to treat them as ordinary creditors, and contended that the rents and tolls were not part of the working expenses of the line. The court had since the decision of Fry, J., made an order directing the receiver to apply the moneys in his hands in payment of half-a-year's interest on the debenture stock. This order was made on an affidavit by the receiver, not s ating that he had a surplus after payment of the current expenses, but that he had a surplus after making various payments thereout. Notice had been given to the receiver not to pay over the sums in his hands without first paying them their tolls and rent. JESSEL, M.R., said that the order appointing the receiver was quite in proper form, as the title of the debenture stockholders was only to any surplus profits after payment of the working expenses incurred in earning that profit. The receiver, as an officer of the court, was bound to obey the order of the court, and though, strictly speaking, he was only accountable to the parties to the action where a receiver was appointed of a going concern, and where he was to pay the current expenses, it was clearly the duty of the parties to the action and their advisers to see that the receiver properly carried out the order of the court. In the present case he was of opinion that the parties had been guilty of a dereliction of duty, although it might have been done under a misapprehension of Fry, J.'s, judgment. If the parties had any difficulty in knowing what the receiver should do, they could apply for directions. He agreed that the creditors themselves had no independent right to apply for payment from the receiver, but he certainly should have tried, if they had applied to him, to find some way to enable them to get paid. A contrary state of things would really be intolerable. In his opinion, the receiver had acted improperly in paying away the interest to the debentnre stockholders, after he had received notice from the plaintiffs of their claim. It was clear that the rent and tolls payable to them formed part of the current expenses of the line, and this fact must have been known to the receiver. The affidavit upon which the order was made was craftily framed, and it should really have followed the words of the order and shown that there was a surplus after payment of the working expenses. The result was that the debenture stockholders had received moneys which did not properly belong to them, and that there had been a lamentable failure of justice. As the receiver had offered to give an undertaking to pay the tolls and rent accrued since the notice of motion for judgment, he should accept that undertaking and make a declaration that the rent and tolls were properly part of the working expenses of the East London line. On the other part of the case he thought that as the plaintiffs were still legal owners of the land, they were entitled to possession unless the defendants were prepared to pay the arrears of the easement rent. The defendants had only an equity under their agreement, and, before being entitled to specific performance, they must do equity by paying the purchase-money. As there was a case raised by other defendants that the plaintiffs were disentitled by acts of acquiescence to possession, he should postpone giving the plaintiffs any judgment for payment or possession until that question was disposed of, which it must be by amendment of the pleadings.-SOLICITORS, Curwood; Wilson, Bristows, & Carpmael; Norton, Rose, Norton, & Brewer.

CASES BEFORE THE BANKRUPTCY REGISTRARS.

Northmore Lawrence, for the trustee, in support of the application.-The court had jurisdiction to grant an injunction against the Credit Lyonnais, which was a corporation carrying on a large business in London: Carron Iron Company v. Maclaren (5 H. L. C. 459). A foreign corporation carrying on business in England, although not incorporated by Eng-lish law, might be sued as defendants in an English court in respect of a cause of action which arose within the jurisdiction: Newby v. Van Oppen (20 W. R. 383, L. R. 7 Q. B. 293). In that case the principal office of the company was at New York. He also cited ord. 9, r. 7, Judicature Act.

Montagu Cookson, Q.C., and Sidney Woolff, for the Credit Lyonnais. -The court had no jurisdiction to restrain the company in regard to an act committed at Oran, and the injunction could not be enforced. The Oran branch of the company could not be restrained upon service of the London branch. In Newby v. Van Oppen the cause of action arose in England: Attorney-General v. Alexander (23 W. R. 255, L. R, 10 Ex. 20). And it was consistent with justice that the application should be made at Oran. To grant the injunction would be to make the London house responsible for the acts of all the other branches of the company. Supposing this was an English corporation, the chief office being in London, could it be contended that this court had jurisdiction to grant an injunction against a branch of the bank at Newcastle?

Lawrence, in reply.-The only question in The AttorneyGeneral v. Alexander was whether the Imperial Ottoman Bank was liable to income tax. The trustee's right arose within the jurisdiction, and it was a contempt of this court to interfere with his possession of the property of the debtors. If the court granted an injunction against a person here, and his agent abroad disobeyed it, he was guilty of a contempt of court. The injunction could be enforced by sequestration.

at would have no jurisdiction. He must, application, with costs. 32 rate, Crap & Son,

Let Lyannis, Michael Abrahams & Co.

MURRAY, acting as Chief Judge.) Nov. 24-Re Lloyd,

arging & proxy leave to sigu resolutions and at send meeting of creditors, re

mirstin on behalf of one of the creditors
ration presented by the debtor for
tside the order made on the 3rd
Registrar Murray, acting as Chief
Tilley leave to sign the resolutions
Jebe come to at the second meeting of

of October, as proxy for R A.
Yerbary, a creditor for £155, attended
his proxy, Mr. Tilley, and voted in
which were then put to the meeting
potion of 3. 6d. in the pound in satis-

He received notice of the second
22 attended with a view to ascertain the
the resolutions agreed to at the first
d at the second, but he gave his son
er did his son hold any proxy for that
Tory had already given a proxy to Mr.

desire that Mr. Tilley should vote for
te sormation of the resolutions.
a, his affidavit, stated that he at-
ing under the petition, and, hearing
present, he was under the impression

A. Yerbury, and not the son, and
recise his power of voting as proxy,
in that the creditor, being present,
He bad since ascertained that the
that he had no proxy on behalf of his
4: the father's wish that the deponent
ma before, and do all things that were
se of confirming the resolutions which
irst meeting of creditors. Mr. Tilley
on the real facts, he would have signed
R. A. Yerbury.

brought into the office and filed on
but doubt having arisen whether a
editors had been obtained to the
the signature of R. A. Yerbury or his
made ex parte on the 3rd of
Murray for leave to sign mune
pad of inadvertence on the part of the
the application. On the 4th of
ir adjudication of bankruptcy was
and the present application fol

support of the application.-The order
reto sign was made ex parte and could
Joice of the application should have
being creditors: Ez parte Vendrell (25

Mr. REGISTRAR MURRAY.-It
het not brought to my notice that the
ell at the office. There is no doubt about
it be done before the papers are brought
The Ro Buffin (21 W. R. 763, L. R. 8
Wowed that the signatures might be sub-
live authority against the appli-
the meeting, but prior to the filing
enfion. The creditor was a person
ed, and be asked that it should be re-
& Broogham had very recently fol-
in s perle Thorne, and had refused to
be added to resolutions after they were
Brt, Re Hargrave (25 SOLICITORS'
Womble of fact, the proxy having attended
e respondent-The omission to sign
la Ex parie Thorac the creditors

[graphic]

Mr. REGISTRAR BROUGHAM said the trustee asked that the Credit Lyonnais should be restrained from taking or interfering with the property and effects of the debtors at Oran which the trustee alleged belonged to him by virtue of his appointment. The Credit Lyonnais had its head office in Lyons, and the nothing whatever of the facts, or of the debtors, or their branch in London was represented by a manager who knew It seemed to him that the cases cited by the learned counsel in support of the application were against him rather than in his favour. No doubt, if the cause of action arose in England-if there had been any dealing with the London branch-the court would have restrained the branch in respect of which the cause of action arose, but there was no power to grant an injunction against the house at Lyons for an act done by the branch at Oran upon service of the London branch; and, even if an order had been made for service at.

(Before Mr. REGISTRAR BROUGHAM, acting as Chief Judge.) Nov.18.-Ex parte Shubrook, Re Elford and another (No. 2). The Court of Bankruptcy has no jurisdiction, upon the applica-affairs. tion of the trustee, to restrain a French corporation having a branch establishment in London from dealing with the property abroad of debtors in liquidation in this court.

This was an application by the trustee under liquidation proceedings for an order restraining the Credit Lyonnais from selling, receiving, or in any wise dealing with the stockin-trade, plant, and assets of Albert Elford, of Oran, in Algeria, and that the company should pay to the trustee the

and the decision in that case did not dage bad allowed the signatures of (KRW). [Mr. REGISTRAR MURRAY alter the resolutions were brought in: in 182, before Ex parte The

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