not criticize that case, because I am bound to follow Re Courtier, which I must take as my guide; therefore, I think that the plaintiff is not under any liability in respect of the rents and covenants of the lease.-COUNSEL, Cann; Henry Terrell, Q.C., and Oswald. SOLICITORS, Charles Sawbridge &

Son.

[Reported by R. J. A. MORRISON, Barrister-at-Law.]

THE LEEDS AND HANLEY THEATRE OF VARIETIES (LIM.) v.
BROADBENT. Kekewich, J. 10th Dec.
MORTGAGE-PUNCTUAL PAYMENT OF INTEREST-PAYMENT WITHIN REASON-
ABLE TIME-INJUNCTION RESTRAINING SALE.

This was a motion for an injunction to restrain the defendants from selling or advertising for sale certain premises comprised in an indenture of mortgage dated the 15th of February, 1897, and made between the plaintiffs of the one part and the defendants of the other part. The facts were shortly as follows: In February, 1897, the defendants sold "The Empire "theatre at Hanley to the plaintiffs, and by the above mentioned mortgage the plaintiffs mortgaged the same to the defendants to secure £7,000 and interest at £5 per cent. There was a clause in the mortgage deed to the effect that the principal money should not be called in for a period of three years if in the meantime every half-yearly payment of interest should be punctually paid. The first half-yearly payment of interest fell due on the 15th of August, 1897, and on the 16th of August the defendant Broadbent, not having received a cheque, wrote to the secretary of the plaintiff company asking for immediate payment. The secretary replied stating that he would submit the matter to the next board meeting. Broadbent was not satisfied and wrote again on the 20th of August giving notice that he called in the principal money at the end of three months. The receipt of this letter was acknowledged by the secretary, but as no cheque was forthcoming, Broadbent telegraphed to the secretary threatening to issue a writ unless the interest due was remitted on that day. Thereupon a cheque was received by Broadbent from a third party who had no standing in the plaintiff company, and who subsequently, on the 22nd of September, wrote to Broadbent to know if he intended to act upon his notice to the company. Broadbent replied that such was his intention. On the 15th of November the solicitor to the company wrote to Broadbent disputing the validity of his notice, and on the 22nd issued the writ in the present action claiming a declaration that the defendants were not entitled to require payment of the principal moneys under the mortgage deed.

KEKEWICH, J., held that in the circumstances punctual payment must be taken to mean payment within a reasonable time, that in his opinion the plaintiff company had procured the payment within a reasonable time, and that they were entitled to the injunction.-COUNSEL, Warrington, Q.C., and Church; Bramwell Davis, Q.C., and A. J. Allen. SOLICITORS, George B. W. Digby; Goodale & Hobson, for Butterworth, Rose & Morrison, Swindon. [Reported by R. J. A. MORRISON, Barrister-at-Law.]

Re WILCOCK, KAY v. DEWHIRST. Romer, J. 12th, 20th Nov.; 4th Dec.

WILL-ABSOLUTE GIFT-SHARE SETTLED BY CODICIL "INSTEAD OF GIFT" IN WILL-NO REVOCATION.

Adjourned summons. David Wilcock, by his will, dated the 10th of October, 1840, gave and bequeathed all his personal estate not otherwise disposed of unto his two daughters, S. and H., share and share alike, and further directed that each of his said two daughters should have and be paid £1,000 on their respective days of marriage, part of their respective shares. By a codicil the testator proceeded to revoke the gifts of £1,000, and "instead of such bequests in the manner expressed in my said will to such daughters absolutely," directed his executors to hold his personal estate on trust for sale and conversion and pay one moiety of the income of the proceeds to each daughter respectively, and upon their respective deaths to hold one moiety of the fund on trust for the children of the one so dying as she should by deed or will appoint, and in default among such children equally. There was no gift over in the event of either daughter dying witbout issue. H., a daughter, died a widow without ever having had issue, and the question was whether there was an intestacy as to the moiety which had been given to her absolutely by the will, but in which under the codicil she only took a life interest. ROMER, J., said, after considerable doubt, he had come to the conclusion that there was no intestacy as to the daughters' share in question. The principles governing the case were-first, that referred to by Lord Cairns in Kellett v. Kellett (L. R. 3 H. L. 160), where he said: "The principle is perfectly clear that where you have a distinct disposition made by a will, that disposition cannot be revoked by a codicil except through the medium and use of words equally clear and distinct." The other principle was that pointed out by Lord Cottenham in Lassence v. Tierney (1 Mac. & G. 551), that "If a testator leaves a legacy absolutely as regards his estate, but restricts the mode of the legatees' enjoyment of it to secure certain objects for the benefit of the legatee, upon failure of such objects the absolute gift prevails.' In his lordship's opinion the words in the codicil, instead of such bequests in the manner expressed in my said will to such daughter absolutely" were meant to point, not a total substitution of the new gift for the old, but merely to a modification of the old gift, and that the same meaning should be given to the word "instead" as was given in Doe d. Murch v. Marchant (6 M. & G. 813). On these grounds his lordship held that there was no intestacy.-COUNSEL, H. Greenwood; Farwell, Q.C., and Pattullo; Neville, Q.C., and E. F. Spencer; Levett, Q.C., and Mark Romer. SOLICITORS, Windybank, Samuell, & Behrend, for Simpson & Denham, Leeds; R. H. Behrend; Ince, Colt, & Ince, for Carter, Atkinson, & Bentley, Pontefract.

[Reported by RALEGH B. PHILLPOTTS, Barrister-at-Law.]

Winding-up Cases.

BARTLETT v. MAYFAIR PROPERTY CO. (LIM.) 9th and 10th Nov. COMPANY-WINDING-UP-DEBENTURES-CHARGE ON UNCALLED CAPITALCOMPANIES ACT, 1879 (42 & 43 VICT. c. 76), s. 5.

The Mayfair Property Co. (Limited) was registered in August, 1892, with a capital of £50,000 divided into 5,000 shares of £10 each. The memorandum and articles of association authorized a charge being made on uncalled capital. On the 12th of September, 1892, the following special resolution was passed: "That such portion of the company's capital as consists of £5 per share remaining uncalled upon all the ordinary shares of the company shall not be capable of being called up, except in the event of and for the purposes of the company being wound up in accordance with the provisions of the Companies Act, 1879." The section of the Act referred to which applies to a limited company is as follows: "A limited company may by a special resolution declare that any portion of its capital which has not already been called up shall not be capable of being called up, except in the event of and for the purposes of the company being wound up." The resolution was confirmed on the 12th of October, 1892. In June, 1894, the company issued mortgage debentures puporting to charge all its property whatsoeyer and wheresoever, both present and future, including its uncalled capital for the time being. This action was commenced in August, 1896, on behalf of the debentureholders and a receiver was appointed. A compulsory winding-up order was made against the company about the same time. The question at issue was whether the mortgage debentures were a first charge on this unpaid capital, which had been called up by the liquidator in the winding-up, or whether the special resolution in 1892 and section 5 of the Companies Act, 1879, prevented the uncalled capital of £5 per share being charged by the debentures.

WRIGHT, J., held that primâ facie the language of the section meant what it said, it created a statutory inability to call up capital except for winding-up, and that, therefore, these mortgage debentures were not a first charge on the uncalled capital.-COUNSEL, R. F. Norton (Swinfen Eady, Q.C., with him); Farwell, Q.C., and G. Henderson. SOLICITORS, Munns & Londen; Mackrell, Maton, Godlee, & Quincey.

[Reported by C. W. MEAD, Barrister-at-Law.]

High Court-Queen's Bench Division. LONDON COUNTY COUNCIL v. DAVIS; THE SAME v. ROWTON HOUSES (LIM.). Div. Court. 9th Dec. METROPOLIS-NEW BUILDINGS-DWELLING-HOUSE TO BE INHABITED OR ADAPTED TO BE INHABITED BY PERSONS OF THE WORKING CLASSLONDON BUILDING ACT, 1894 (57 & 58 VICT. c. ccxIII.), s. 13. Cases stated by metropolitan police magistrates. The question in each case was whether the respondents were bound to set back their buildings as required by section 13 of the London Building Act, 1894. That section prohibits the erection of new buildings within a prescribed distance of the centre of the roadway of a street, being a highway; sub-section (5) contains an exception in favour of buildings to be erected upon the site of buildings existing at the commencement of the Act or within seven years previously in cases where plans of such old buildings have been submitted to and certified by the district surveyor; but upon the exception there follows the proviso that "no dwelling-house to be inhabited or adapted to be inhabited by persons of the working class shall, without the consent of the council, be erected or re-erected within the prescribed distance to a height exceeding the distance of the front or nearest external wall of such building from the opposite side of such street, and that no building or structure shall be converted into such dwelling-house within the prescribed distance so as to exceed such height." In Davis's case there existed, before the commencement of the Act, upon a piece of land fronting on a street which was a highway, a row of shops with living rooms behind and on the upper floors; these were within the prescribed distance from the centre of the roadway. In 1895 Davis submitted plaus of the old buildings to the district surveyor, and these were duly certified by him under section 13 (5); he also gave notice of his intention to erect on the site new buildings described as "domestic buildings, to be used as shops and dwelling-houses." The new buildings were erected and did not extend beyond the site or the frontage line of the old buildings. The county council required him to set back one of the new buildings. Davis had let the whole building to a working clockmaker, and the upper rooms, which were fitted up as living rooms, were sub-let by Davis's tenant to three cabinet-makers, who lived there with their families. The question was whether the building was to be inhabited or adapted to be inhabited by persons of the working class." The magistrate dismissed the summons of the county council, holding that "to be inhabited" meant "intended at the time of erection to be inhabited," and that "adapted" meant "specially constructed or arranged," and that under the circumstances stated the building did not fall within the proviso to section 13 (5), above set out. In the case of Rowton Houses (Limited) the new building complained of occupied the site (and no more) of thirteen old dwellinghouses existing within the prescribed distance at the commencement of the Act; plans of the old buildings were submitted and certified as in Davis's case, and the new building was described in the notice as "a public building to be used as a lodging-house for men." It was adapted to provide board and lodging for single men at a cheap rate by the night or week, and had sleeping accommodation for about 800 men, and the cubical contents exceeded 25,000 cubic feet. The magistrate found that

66

a

the building was adapted to be inhabited by persons of the working class, although it was not exclusively reserved for or used by persons of that class, and that it was properly described as a poor man's hotel, and that it was "public building" within the definition in section 5 (27), and not a "dwelling-house" within the definition in section 5 (25) or within section 13 (5); he therefore dismissed the summons. The county council appealed in both cases. THE COURT (HAWKINS and CHANNELL, J.J.) dismissed both appeals. HAWKINS, J., after referring to the facts in Davis's case, said: The real question is what is the meaning of the words "to be inhabited or adapted to be inhabited by persons of the working class." I think that the words "to be inhabited mean "intended to be inhabited "-viz., so intended by the person who erects the dwelling-house; if the person who erects the house intends it to be inhabited by persons of this class the case would come exactly within the terms of the proviso. Then the words "adapted to be inhabited" I take to mean "structurally adapted to be inhabited," and nothing more. In this case there is nothing to shew that when the house was built it was either intended or structurally adapted to be inhabited by persons of the working class. It was said that the manner in which the house was actually used was evidence of the intention with which it was built. I agree that if it be shewn that a house was at the time of its erection specially adapted to be used in a particular way and that it was afterwards actually so used, that would be a strong case as to the intention. But here I do not think there was evidence on which the magistrate was bound to find that this house was built with the intention that it should be inhabited, or even that it was in fact inhabited, by persons of the working class. There was no special adaptation for inhabitation by any particular class; it is simply a shop with the upper floors utilized in the ordinary manner. In the case of Rowton Houses the county council took the view that, though it was a case in which their consent ought to be given if asked for, they must refuse to allow the building to remain unless the respondents would adopt their view of the law and abandon their own and ask for consent. I cannot understand that view. The magistrate has found that this is a poor man's hotel and also that it is a public building, and, therefore, not a dwelling-house within the meaning of the Act. I do not quite agree with this last view. I conceive that a building may be a public building and yet a dwelling-house within the Act. But this does not seem to me to be a building constructed with the intention that it shall be inhabited by persons of the working class; it is built for the accommodation of any class which may choose to use it. I think, therefore, that this appeal also must be dismissed. CHANNELL, J., said that the point of the main enactment in section 13 (5) was that as to sites occupied at the commencement of the Act the owner was not to have his existing rights taken away. Then the effect of the proviso was that if the owner was going to build a certain class of buildings he was to be subject to some restriction; what was dealt with was the time of the erection of the buildings, not the subsequent user; if there were an improper user of the buildings, that could be dealt with under the Public Health (London) Act, 1891. If the house was built with the intention that it should be inhabited, or so as to be structurally fitted to be inhabited, by the working classes it was within the proviso; the object was to give reasonable air space in localities inhabited by a class of people amongst whom overcrowding was likely to occur. [His lordship then dealt with the facts of each case, and held that in neither case did the building fall within the proviso as interpreted by him.] As to the view taken by the magistrate in the case of Rowton Houses (Limited) it was wrong to say that because the definition of "domestic building " included a" dwelling house" and excluded a "public building" therefore a public building could not be a dwelling house; that was a wrong use to make of the interpretation clause. He agreed, however, with the opinion of the magistrate that the building was not a dwelling house to be inhabited or intended to be inhabited by persons of the working class. He also thought that where, as in this case, the building was clearly not within the mischief of the Act a public body ought not to administer the Act harshly and to attempt to force the owners to apply for consent contrary to their view of the law.-COUNSEL, Horace Avory and Daldy; Cripps, Q.C., and Marshall Hall; Macmorran, Q.C., and Roskill. SOLICITORS, W. A. Blaxland; Hanbury, Whitting, & Nicholson; Ashurst, Morris, Crisp, & Co. [Reported by T. R. C. DILL, Barrister-at-Law.]

according to a form to the like effect: (2) if default is made in complying with the requirements of this section with respect to the delivery or sending of a ticket or note, the seller of the coal shall be liable to a fine not exceeding five pounds." Section 22 (1): "Where any quantity of coal exceeding two hundredweight is conveyed for delivery on sale in a vehicle in bulk, the seller of the coal shall cause the weight of the vehicle, as well as of the coal contained therein, to be previously ascertained by a weighing instrument stamped by the inspector, and being on or near to the place from which the coal is brought, and shall from time to time cause the true weight of the vehicle to be marked thereon; (2) in any such case the seller of the coal shall insert or cause to be inserted in the ticket required by this Act to be given by him a statement of the correct weight of the vehicle, or of the vehicle and of the animal drawing it where both are weighed together with the load, as well as of the correct weight of the coal contained in the vehicle," under a fine not exceeding five pounds. Then the form of the ticket in the schedule provides for the weight of the coal and vehicle, and the tare weight of the vehicle. At the hearing before the justices on the 14th of January, a police-constable, who was an assistant to the inspector, was called, and he proved that on the day in question he met the appellants' cart loaded with coal, that he followed it to a house and there saw the coal delivered and a ticket at the same time delivered to the purchaser of the coal by the appellants' carter, which ticket showed the appellants' horse and cart to weigh 29cwts.; that he then took the horse and cart to the weighing machine at the railway station and there caused them to be weighed, when the weight was shewn to be 28cwts., 3grs., or a difference of 28lbs. (in favour of the purchaser) between the weight shown upon the ticket and that registered by the machine at the station; the cart was not weighed apart from the horse. There was no dispute about the facts, which were taken to be as above stated. The justices convicted the appellants of an offence under sub-section 2 of section 22, and fined them in a sum of 20s. and 10s. 6d. costs. The question now was whether the conviction under subsection 2 was correct. For the appellants it was contended that there was no evidence to support the conviction; that the 2nd sub-section required the correct weight of the vehicle, or of the horse and vehicle, to be inserted in the ticket, and that there was no evidence that this was not done; that the correct weight meant the correct weight, not at the time when the coal was delivered to the purchaser, but at the time the vehicle was weighed before being sent out at or near the place from which the coal was brought. For the respondent it was contended that by "correct weight" in sub-section 2, was meant the correct weight at the time of the delivery of the coal to the purchaser, and as the weight inserted in the ticket was not the correct weight when the coal was delivered to the purchaser, an offence under sub-section 2 was committed, and that the conviction was therefore right.

THE COURT (HAWKINS and CHANNELL, JJ.) allowed the appeal, and quashed the conviction.

HAWKINS, J.-I think this conviction ought to be quashed, and for this reason. The weighing evidently implied in section 21 is a weighing before the coal is sent out, and the section says that a ticket is to be sent according to the form in the schedule, and referring to the schedule we see the form provides for the weight of the coal and vehicle and the tare weight of the vehicle; and the section also provides that the ticket is to be delivered, or is to be sent by post or otherwise, to the purchaser or his servant. Then, reading sections 21 and 22 together, it is clear that the ticket which is to be delivered under section 21 is the ticket which is referred to in section 22, and I am satisfied that there was no intention that there should be two tickets, but that the ticket in which the correct weight of the vehicle is to be stated under section 22 (2) is the ticket provided for in section 21, and I have no doubt that the object was that the weighing of the vehicle should take place before it was sent out "at or near the place from which the coal is brought," and the ticket, with the weight of the vehicle inserted in it, as so ascertained, was to be sent by post or at the option of the seller was to be given to the purchaser at the time. The result of the weighing by the constable was to shew that the purchaser obtained twenty-eight pounds of coal too much. I think the conviction was wrong for the simple reason that there was no evidence at all to support it, and no proof that the ticket was erroneous in any respect. I think, therefore, the conviction ought to be quashed. CHANNELL, J.-I am of the same opinion. The section in question clearly refers to a previous weighing, and the ticket was to be sent with "correct weight" in sub-section 2 means the correct weight as ascertained at a time previous to the time when the coal is delivered to the purchaser or re-weighed at his request.—COUNSEL, Willes Chitty; Loehnis. SOLICI TORS, Sharpe, Parkers, & Co., for Richardson & Marsh, Bolton; Rowcliffes, Rawle, & Co., for J. Hall, Bury.

9th Dec.

WEIGHTS AND MEASURES-COAL-SALE OF-TICKET GIVEN ON SALE"CORRECT WEIGHT OF VEHICLE-WEIGHTS AND MEASURES ACT, 1889 (52 & 53 VICT. c. 21), s. 22 (2).

[Reported by Sir SHERSTON BAKER, Bart., Barrister-at-Law.

REG. v. WEST. C.C.R. 11th Dec.

69), ss. 5, 17-COMMENCEMENT OF PROSECUTION. Case stated by Sir Walter Phillimore, Bart., Commissioner of Assize. The prisoner was committed by the magistrates on the 27th of July, 1897, on a charge of rape alleged to have been committed on the 19th of July. The depositions appearing not to warrant such a charge, the bill laid before the grand jury at the Durham Assizes on the 22nd of November, and the indictment found by them, was for an offence under section 5, sub-section (1), of the Criminal Law Amendment Act, 1885, against a girl over thirteen and under sixteen years of age. It was contended on behalf of the prisoner that an acquittal ought to be directed on the ground that the section referred to provides that "no prosecution shall be commenced

for an offence under sub-section (1) of this section more than three months after the commission of the offence," and that the prosecution for the offence alleged in the indictment was not commenced until the bill was sent to the grand jury on the 22nd of November. The prisoner was convicted. After conviction it was submitted that the indictment ought to be quashed because by reason of section 17 of the Act of 1885 and of the Vexatious Indictments Act, 22 & 23 Vict. c. 17, no indictment for an offence under section 5 (1) ought to have been allowed to be found by the grand jury, there having been no commitment for that offence.

THE COURT (Lord RUSSELL OF KILLOWEN, C.J., and HAWKINS, MATHEW, GRANTHAM, and DARLING, JJ.) upheld the conviction.

Lord RUSSELL OF KILLOWEN, C.J., after stating the facts, said that if the course had been taken of indicting the prisoner for rape, no difficulty could have arisen because, under section 9 of the Criminal Law Amendment Act, 1885, the judge might have directed the jury to acquit of rape and convict of the misdemeanour. The point taken was that this was a prosecution for a misdemeanour under section 5 (1), and that, therefore, the proviso to that section applied. But he thought that the prosecution for the offence of which the prisoner was convicted was commenced within three months after the commission of the offence. A prosecution for rape was a prosecution for any offence for which on an indictment for rape a person could be convicted. The evidence before magistrates might raise a doubt as to whether a person ought to be committed for rape, but they might easily think that no harm could be done by their committing him for that offence, because on an indictment for rape he could be found guilty of the lesser offence. He therefore thought the judge ought not to have directed an acquittal or quashed the indictment.

HAWKINS, MATHEW, GRANTHAM, and DARLING, JJ., concurred. Conviction affirmed.-COUNSEL, Meynell. SOLICITOR, The Treasury Solicitor. The prisoner was not represented.

[Reported by T. R. C. DILL, Barrister-at-Law.]

MOULT v. HALLIDAY. Div. Court. 8th Dec. MASTER AND SERVANT-DOMESTIC SERVICE-NOTICE GIVEN DURING FIRST FORTNIGHT OF SERVICE TO LEAVE AT END OF FIRST MONTH-CUSTOMREASONABLENESS.

Appeal from the Westminster County Court. The facts were as follows : On the 12th of March, the plaintiff, who had entered the service of the defendant as upper housemaid on the 1st of March, gave notice to leave on the 1st of April. The defendant claimed one month's notice and refused to pay the plaintiff's wages, but offered her six weeks' wages if she would stay ten days later. The plaintiff then brought the action, claiming £2.68. 8d. for her month's wages. Evidence was given by servants and persons experienced in the business of servants' registry offices that it was common for notice to be given by either mistress or servant during the first fortnight of the service to determine the service at the end of the first month; and the existence of a custom of that nature was alleged. The county court judge held that there was no such custom; he thought that a month's notice was requisite, and further that the custom alleged would be unreasonable, and he gave judgment for the defendant. On the appeal Williams v. Byrne (7 A. E. 177), Turner v. Mason (14 M. & W. 112), Metzner v. Bolton (9 Ex. 518), Wigglesworth v. Dallison (Smith's Leading Cases, 9th ed., p. 582), Ex parte Powell (1 Ch. D. 501), and Crawcour v Salter (18 Ch. D. 30), were cited.

THE COURT (HAWKINS and CHANNELL, JJ.) dismissed the appeal. HAWKINS, J., said that he regretted that the judgment of the court on the case would not settle the law on the question which the parties desired to have settled. The question was one of fact, and they had no power to say that the custom set up by the plaintiffs had been so recognized as to enable the court to take notice of it. The law had made the county court judge the sole judge of fact, and as he had found as a fact that there was no such custom this court could not reverse his finding. On that ground, therefore, and on that alone, the appeal must be dismissed. There was evidence before the county court judge which would have justified him in coming to that conclusion that the custom prevailed. But there was no obligation on him to come to that conclusion, and his decision could not be upset. As to the reasonableness of the custom in question and with the view to dispose of one point, he had no hesitation in saying that the custom would not be unreasonable if it existed. He would add one word as to the custom which had been suggested before the county court-namely, that if a servant left at the end of the first month she had a right to have the character with which she came handed over. That was not a reasonable custom. There was no legal obligation to hand over the character. Supposing that during the month for which the servant who had come with a good character stayed, circumstances occurred which shewed that the servant was not of good character, it would be deceitful and improper to hand over the old good character. CHANNELL, J., Concurred. To be judicially noticed a custom must be so notorious and so well understood that it was unnecessary for people doing business together to mention it, as it would be taken to be included in the contract unless expressly excluded. In the engagment of a servant the well-known custom of a month's wages or a month's warning was an instance. The supposed custom set up in this case was thought to be inconsistent with the custom of terminating the service by a month's notice or a month's wages. But, even if that were the case, it would not matter, inasmuch as a custom grew up from an accumulation of instances, and a custom might therefore change in certain particulars from time to time. Then when the change became sufficiently notorious it would be taken as being included in contracts of service unless it was excluded. The custom set up by the plaintiff had gone some way towards being established, but it still remained a question of fact for the county court judge, and

The

his finding on it would not be interfered with by the court. learned judge agreed that the custom set up on behalf of the plaintiff would not be unreasonable in itself, and also in thinking that the fact of a servant leaving within the first month created no obligation on the master to hand over the character of the servant which she brought with her.-COUNSEL, Tyrrell Paine; Boydell Houghton. SOLICITORS, Dodd, Longstaffe, & Co.; Budd, Johnsons, & Jecks.

[Reported by T. R. C. DILL, Barrister-at-Law.]

CLIFFORD v. THAMES IRONWORKS CO. Div. Court. 15th Dec. COUNTY COURT-APPEAL-JUDGE'S NOTE-POINT NOT RAISED AT TRIAL. This was an appeal from the Bow County Court. The action was one for damages for personal injuries caused by the negligence of the defendants' servants. The case was tried before a jury, who gave their verdict in favour of the plaintiff. The appeal was upon the ground: (1) that there was no evidence of negligence proper to go to the jury; and (2) of misdirection. The learned judge, at the end of his note of the case, appended the following observation: "Upon the application of the defendant, I furnish the note of the case taken by me during the trial. No point of law was taken at the trial, and I am unable to say what legal question arises. I thought the case was fought on questions of fact On appeal, the objection was taken that no point of law was raised in the court below. Smith v. Baker & Sons (1891, A. C. 325) was cited. On behalf of the defendants Barber v. Burt (1894, 2 Q. B. 437) was cited, and it was contended that where the point of law arose in the summing up of the judge, as in the present instance, it was neither necessary nor practicable that it should be formally raised by counsel. All that was necessary was that the point should be present in the judge's mind, and in the case of a misdirection, the judge's mind was ipso facto directed to it. The judge had no right to record his view that no point was raised at the end of his note after the case was over.

THE COURT (GRANTHAM and CHANNELL, JJ.) dismissed the appeal. GRANTHAM, J., said that the learned judge was justified in appending to his note the words quoted, and the court would be guided by them. There was no difficulty, in the case of a misdirection, in counsel drawing the judges' attention to it before verdict.

CHANNELL, J., said that every now and then a point arose which could not be taken at the trial, but both the grounds of appeal taken in the present case consisted of points which could have been taken at the trial. -COUNSEL, Jelf, Q.C., and Morten Smith; E. Morten. SOLICITORS, Watson Sons & Room; Shaen, Roscoe & Massey.

[Reported by C. G. WILBRAHAM, Barrister-at-Law.]

Bankruptcy Cases.

Re IZOD, Ex parte OFFICIAL RECEIVER. C. A. No. 1. 10th Dec. BANKRUPTCY-RECEIVING ORDER-APPLICATION TO RESCIND-ASSENT OF CREDITORS JURISDICTION AND DISCRETION OF REGISTRAR-BANKRUPTCY ACT, 1883 (46 & 47 VICT. c. 52), s. 104-BANKRUPTCY ACT, 1890 (53 & 54 VICT. c. 71), s. 3, SUB-SECTION 6.

In this case the official receiver appealed against an order of Mr. Registrar Hope, whereby a receiving order made against the debtor on his own petition was rescinded. The receiving order was made on the 22nd of July, 1897. At a private meeting of the creditors three of their number were appointed to inquire and report as to the debtor's affairs, and to act in the interests of the creditors generally. They came to the conclusion that they should receive an immediate cash dividend of 10s. in the pound, and that, if bankruptcy proceedings were continued, the assets would not suffice to pay such a dividend. At the first public meeting of the creditors it was agreed that it was for their benefit to be paid the aforesaid dividend, and that, to avoid the expense and delay of bankruptcy proceedings, they should withdraw their proofs. The debtor's father paid the said dividend to all the creditors, and they assigned to him by deed their debts and released the debtor therefrom and withdrew their proofs. The debtor attended his preliminary examination by the official receiver, and, with the latter's consent, an order was made staying all proceedings until the 5th of November, so as to enable the debtor to make such application to the registrar as he might be advised to. The debtor then applied to Mr. Registrar Hope to have the receiving order rescinded, and the latter, knowing the state of affairs and that the debtor had committed no delinquency, and thinking that this was an exceptional case and one in which the application should be acceded to, made the order asked for. The Board of Trade now appealed against the order of the registrar. It was contended on their behalf that the registrar had no jurisdiction to rescind the order, and that, if he had, he had in this case wrongly exercised his discretion. A receiving order could only be rescinded if the order was wrongly made, or if the debtor had paid 20s. in the pound. Where less than that amount was paid, there must, under section 3 of the Bankruptcy Act, 1890, be a public examination of the debtor before an application can be made to the court for the approval of a scheme. The following cases were cited: Re Leslie (35 W. R. 395, 18 Q. B. D. 619), Re Dixon and Cardus (37 W. R. 161, 5 Morrell 291), Re Hester (22 Q. B. D. 632), and Re Flatau (1893, 2 Q. B. 219). For the debtor it was contended that, under the general power given by section 104 of the Bankruptcy Act, 1883, there was jurisdiction to rescind the receiving order, and that the registrar had, in doing so, properly exercised his discretion; and in support of this Re Davidson (W. N., 1894, p. 210) and Ex parte Carr (35 W. R. 150) were cited.

THE COURT (A. L. SMITH, RIGBY, and COLLINS, L.JJ dismissed the appeal (RIGBY, L.J., disssenting).

A. L. SMITH, L.J.-The order must stand. The first question was whether the registrar had jurisdiction to rescind the receiving order, and the second question was whether, if he had, he had properly exercised his discretion. The circumstances in this case made it a most exceptional case. The learned judge then, having dealt with the facts of the case, said he was of opinion that there was jurisdiction to rescind the receiving order, although on first reading section 3, sub-section 6, of the Bankruptcy Act, 1890, it appeared that this could not be done until after the debtor had undergone his public examination; yet section 104 of the Act of 1883 gave the court power to rescind any order it had made. Re Davidson clearly shewed that there was a discretion to rescind, and Re Flatau and Re Hester shewed that the matter was discretionary and was not limited to the two cases where twenty shillings in the pound had been paid or a public examination had been held, and in those cases it was pointed out how that

discretion should be exercised and under what circumstances. Those circumstances existed here and were taken into consideration by the registrar, who thought that no further investigation was necessary, and he accordingly rescinded the receiving order. The registrar properly exercised his discretion and the appeal should be dismissed.

RIGBY, L.J., in dissenting from the above judgment, said: The discretion of the registrar to rescind a receiving order is a limited discretion. If a general discretion existed it would detract from the provisions of the Bankruptcy Acts, which were intended to aim at a private arrangement made with creditors. Re Hester, which was decided under the Act of 1883, shews the leading consideration which ought to guide the court is whether the debtor is proposing a scheme within that Act. The judges there did not determine whether a discretion existed or not, and they expressly refused to decide whether a debtor, as regards an arrangement with his creditors, is or is not bound to proceed under section 18 of the Act of 1883, which section has been repealed and is replaced by section 3 of the Act of 1890. Under this latter section, no application to the court to approve a scheme is to be heard until the debtor has undergone a public examination. That was enacted to clear up any doubt whether there is a general discretion or not. It was never intended that an application to rescind should be founded on a private arrangement with the creditors. In this case the debtor filed his own petition and thus placed himself under the bankruptcy laws. He then made a private arrangement with his creditors. That is entirely against the object of the Bankruptcy Acts, and the exercise of the registrar's discretion ought to be overruled, as there was no ground at all for it. There is no distinction in principle between rescinding a receiving order and annulling an adjudication under section 35 of the Act of 1883, and the court is entitled to look at that section to see upon what grounds an adjudication can be annulled. In the present case the debts were not paid in full, nor is there anything to shew that the receiving order ought not to have been made. The order to stay proceedings was only on certain terms. It does not shew that nothing could be ascertained against the debtor, because all the means of ascertainment were not exhausted. There is nothing special in this case, and the order to rescind ought to be discharged.

COLLINS, L.J., delivered judgment agreeing with that of Smith, L.J. Appeal dismissed.-COUNSEL, Sir R. Webster, A.G., and Muir Mackenzie; H. Reed, Q.C.; Carrington and Cautley. SOLICITORS, Solicitor to the Board of Trade; P. C. Ray.

[Reported by E. G. STILLWELL, Barrister-at-Law.]

Re GILBERT, Ex parte GILBERT. Wright, J. 13th Dec. BANKRUPTCY DECEASED INSOLVENT-RETAINER BY EXECUTOR-BANKRUPTCY Acr, 1883 (46 & 47 VICT. c. 52), s. 125.

This was a motion by Mrs. Laura Gilbert, the widow and executrix of a person who had died insolvent and whose estate was being administered in bankruptcy under section 125 of the Bankruptcy Act, 1883. Mrs. Gilbert asked for an order that the trustee in such administration should deliver up to her all the goods that he had taken possession of under the administration order. The grounds of her claim were, that her husband had died indebted to her in the sum of £850; that his entire estate, which consisted of a drapery business, was under the value of £300; and that in exercise of her right of retainer as executrix, she had retained the estate in satisfaction of her claim prior to any notice of the petition for administration. It was objected on behalf of the trustee that she could not retain in specie, but must first realize the estate, and also that she could not claim a right of retainer over book debts which had not been got in (Re Compton, Norton v. Compton, 33 W. R. 157, 30 Ch. D. 15).

WRIGHT, J., decided that she could not retain the book debts which had not been got in, but upheld her claim to retain in specie. He said it was curious that there was no direct authority on the point. It might very well be that where the assets of a testator exceeded in value the debt to the executor, the executor could not set up a right to retain in specie unless he had clearly appropriated certain of the assets of ascertained value in payment of his debt. But where the assets of a testator were manifestly much less in value than the debt due to the executor, he was not prepared, in the absence of authority, to hold that the executor could not retain the assets in specie in satisfaction of the debt, but was bound to realize the estate before he could pay himself. In the present case the executrix had clearly asserted her right to retain in specie before she received notice of the petition in bankruptcy. Under the circumstances therefore she was entitled to judgment. -COUNSEL, T. M. Stevens; Carrington. SOLICITORS, W. R. Millar; J. N. Mason.

[Reported by P. M. FRANCKE, Barrister-at-Law.]

LAW SOCIETIES.

GENERAL COUNCIL OF THE BAR.

resolution of the council passed in October, 1896, and published in the (1) The attention of the council having been called to the following council's last annual statement, and adopted by the general meeting of the bar on the 4th of May, 1897-viz.: "That a barrister holding the office of town clerk, clerk to guardians, or any similar public body, ought not to practise at the bar," The council have resolved as follows: "That in their opinion a barrister would be justified in refusing to hold a brief with anyone who transgressed the above resolution, and that barristers ought not to hold briefs with members of the profession who wilfully transgress established rules of the profession."

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(2) The council have resolved as follows: "That in their opinion it is undesirable that a barrister who is a member of a county council should appear as counsel before a committee of such county council."

(3) The council have resolved as follows: "(1) That it is not contrary to etiquette for a barrister to attend a county court without being instructed in any case before the court. (2) That there is no objection to a barrister so attending in robes."

(4) Taxes Management Act, 1880 (43 & 44 Vict. c. 19), s. 57 (9).— Appeals.-"No barrister, solicitor, attorney, or any person practising the law shall be allowed to plead before the said commissioners on such appeal for the appellant or officers either viva voce or by writing.' It having been represented to the council that complicated and difficult questions arise before the commissioners involving large sums of money, and that the taxpayer is precluded by the above section from any professional assistance, whereas the Revenue authorities are represented by trained experts,

The council have resolved as follows: "That steps should be taken to enable persons appealing to the commissioners under the above section of the Taxes Management Act, 1880, to be represented by counsel on such appeals if they should so desire."

(5) In response to the council's application, the Secretary of State for the Home Department has been pleased to instruct the governors of Her Majesty's prisons to supply the council with copies of the calendars of prisoners awaiting trial at assizes and quarter sessions. Members of the bar may see such calendars upon application at the offices of the council.

THE BARRISTERS' BENEVOLENT ASSOCIATION.

A meeting of this association was held on Wednesday afternoon in Lincoln's-inn Hall. The Attorney-General presided, and among those present were the Master of the Rolls and Lord Justice Chitty. The ATTORNEY-GENERAL, in moving the adoption of the report of the committee of management for the year ending the 30th of June, 1897, said it was more favourable than any report that had ever before been submitted. He wished to express publicly the thanks of the association for a munificent anonymous donation of £5,000, and he hoped that this gift would lead to other additions to the invested funds, which it was extremely desirable to secure.

Considerable success had attended the establishment of local committees at Liverpool and Manchester, and it was now proposed to establish committees at Birmingham and Leeds. He was still not quite satisfied with the number of members-829-although there had been an increase of fifty-nine during the year. The funds were not adequate for the cases the committee had to meet. The grants made during the year amounted to £2,278 among ninety-eight cases, but the income fell £400 short of that sum.

The MASTER OF THE ROLLS Seconded the motion, which was carried. In seconding the motion appointing the committee of management for the ensuing year, which was proposed by Lord Justice CHITTY, Mr. CRACKANTHORPE, Q.C., said that the names of no fewer than 10,000 barristers appeared in the current law list, and he thought he was within the mark when he said that 2,700 appeared as holding chambers and attending circuits. He thought, therefore, they ought to have a very much larger number of subscribers. In Germany nearly every advocate in the empire subscribed to a similar association and the same was the case in France,

and in the latter country if an advocate did not subscribe his name was

liable to be struck off the tablet de l'ordre.

Several votes of thanks having been passed, the proceedings terminated.

Robert Burrow Harrison, LL.B., who served his clerkship with Mr. John Edward Bolton, of Kendal.

Herbert Harvey Moseley, B.A., B.C.L., who served his clerkship with Messrs. Field, Roscoe, & Co., of London. Richard Irvine Steele, who served his clerkship with Messrs. Dobinson & Watson, of Carlisle.

THIRD CLASS.

[In Alphabetical Order.]

Sydney Malcolm Baird, who served his clerkship with Messrs. Fladgate & Co., of London.

Charles Edward Bischoff, B.A., who served his clerkship with Mr. Thomas William Bischoff, of the firm of Messrs. Bompas, Bischoff, Dodgson, Coxe, & Bompas.

Henry Cane, who served his clerkship with Mr. John Colbatch Clark, of the firm of Messrs. Colbatch Clark & Son, of Brighton.

Philip Hugh Childs, who served his clerkship with Mr. Thomas Arthur Bramsdon, of Portsmouth; and Mr. Arthur Walter Mills, of London. Alfred Montagu Gibb, who served his clerkship with Messrs. Brighouse, Brighouse, & Jones, of Ormskirk.

Arthur Morgan James, who served his clerkship with Mr. Thomas William James, of Swansea; and Mr. John Thomas Lewis, of London. John Egbert James, LL.B., who served his clerkship with Messrs. Sharman, Jackson, & Archer, of Wellingborough; and Messrs. Russell, Cooke,

& Co., of London.

Arthur Daniel Jones, who served his clerkship with Mr. Henry Warring Jones, of London; and Mr. John Durham, of Kingston-on-Thames.

James Brown Killey, B.A., who served his clerkship with Mr. William Arthur Weightman, of the firm of Messrs. Weightman, Pedder, & Weightman, of Liverpool.

Frederick William Beale Poste, LL.B., who served his clerkship with Mr. Robert Fortescue Moresby White, of Grantham; and Messrs. Paterson, Snow, Bloxham, & Kinder.

Walter Treverbian Prideaux, who served his clerkship with Sir Walter Sherburne Prideaux, of the firm of Messrs. Prideaux & Sons, of London. William Milner Ratcliff, B.A., who served his clerkship with Messrs. Bell, Brodrick, & Gray, of London.

William Edward Richardson, who served his clerkship with Mr. Arthur William Barnes, of Lichfield.

Mr. Edgar Thomas Woodbridge, who served his clerkship with Mr. Thomas Hurry Riches Woodbridge, of the firm of Messrs. Woodbridge & Sons, of Uxbridge; and Mr. George Ernest Rigden, of London. William Humphrey Woodhouse, who served his clerkship with Mr.

Alexander Silk Crowther Doyle, of London.

The Council of the Incorporated Law Society have accordingly awarded to Mr. Baird "The John Mackrell Prize," value about £12. The Council have given Class Certificates to the candidates in the Second and Third Classes.

Eighty-five candidates gave notice for the examination.

LAW STUDENTS' SOCIETIES.

LAW STUDENTS' DEBATING SOCIETY.-Nov. 30.-Chairman: Mr. C. A. Anderson.-The subject for debate was "That 'The Christian' does not deserve the popularity it has attained." Mr. F. J. Berryman opened in the affirmative; Mr. Archibald Hair opened in the negative. The following members also spoke: Messrs. G. W. Powers. James Brennan, R. H. Armstrong, J. Bowen Davies, and V. Lyons. The motion was lost by one vote.

Dec. 7.-Chairman: Mr. T. Seager Berry.-The subject for debate "That the case of Plant v. Bourne (1897, 2 Ch. D. 281) was wrongly was, decided." Mr. F. H. Stevens opened in the affirmative; Mr. D. S. Cornock seconded in the affirmative. Mr. C. H. L. Alder opened in the negative; Mr. John Blair seconded in the negative. The following members also spoke: Messrs. J. A. Dixon, G. H. Daniel, Neville Tebbutt, and J. S. Wilkinson. The motion was carried by two votes.

Dec. 14.-Chairman, Mr. J. S. Wilkinson.-The subject for debate was: "That Parliament should forthwith constitute a tribunal for the compulsory settlement of labour disputes." Mr. C. Herbert Smith opened in the affirmative; Mr. G. W. Powers opened in the negative. The following members also spoke: Messrs. A. W. Watson, J. J. Edwards, G. G. Baily, H. E. Miller, and Tebbutt. The motion was lost by one vote.

LEGAL NEWS.

OBITUARY.

The death is announced, on the 6th inst., of Mr. JOSEPH RICHARD COBB, F.S.A., solicitor, of Brecon, at Nythfa, Brecon. He was, says the Times. one of the pioneers of railway enterprize in South Wales, and a learned antiquary, who spent large sums in the preservation of ancient structures. In 1858 he promoted the Brecon and Merthyr Railway, to which he contributed largely, and when the contractor failed he carried on the works for some weeks at his own cost. For the next thirty years there was hardly a Bill affecting South Wales railways on which he was not engaged, and several schemes he promoted largely at his own expense. He was interested in geology and ornithology, and in his early years was a keen sportsman and master of the Breconshire Harriers. For a long period he filled the offices of county treasurer and governor of Christ College, Brecon, where he founded the Parry de Winton Scholarship, and later was county alderman and justice of the peace for the county of

Brecon. He was a director of many trading companies, most of which owed their origin to his enterprize and capital. His antiquarian work included the restoration of the Priory Church at Brecon, which was chiefly due to his exertions and expenditure; the undertaking of large works of excavation and preservation at the Castles of Manorbere and Pembroke, which he leased for the purpose; the saving from imminent destruction of an interesting twelfth century house at Pembroke, and its complete restoration; and the purchase of Caldicot Castle, in Monmouthshire, the home of the De Bohuns, which had been used as a quarry for three centuries, and which he restored as a residence. In 1892 he bought from a German shipbreaker Nelson's old ship, The Foudroyant, and restored her as a sea-going ship of war of the last century. On this he spent £25,000, and it was a source of profound indignation to him that, not only did he receive no help in this undertaking, but that his work was described as a commercial speculation.

APPOINTMENTS.

Mr. ERNEST EDWARD WILD, barrister, has been appointed Judge of the ancient Guildhall Court of Record in Norwich.

Mr. ALFRED HOPKINSON, Q.C., M.P., has been appointed Principal of Owens College, Manchester, in succession to Dr. Ward.

Mr. EDWARD J. STANNARD, Solicitor (of the firm of Robinson & Stan

nard), of Eastcheap-buildings, London, and Upper Norwood, has been Deeds, and a Commissioner for Oaths for Great Britain and Ireland for the appointed a Commissioner to take the Proof and Acknowledgment of State of New York, U.S.A.

Mr. JOHN EVAN WILLIAMS, M.A., solicitor (of the firm of Williams & Gladstone), of Cardiff, has been appointed a Commissioner for Oaths.

GENERAL.

It is stated that Sir Francis Maclean, the new Chief Justice of Bengal, has been in ill-health since his arrival at Calcutta in the summer of the present year. He was ill at Simla, and has since been a sea-voyage to Ceylon, from which he has failed to benefit.

Mr. Justice Byrne and Mr. Justice Ridley will be the Christmas Vacation judges, one of whom will attend at Queen's Bench Judges' Chambers, on certain days to be fixed, during the first half, while the other will attend during the second part of the vacation.

representatives for the Court of Common Council for next year, it was At a meeting of the parish of St. Sepulchre, London, to nominate announced that Her Majesty's Judges had expressed their intention of approving the plans submitted by the Corporation of London for the erection of a new Central Criminal Court, and that the work of demolition would then proceed at no distant date to make way for the new building.

At a meeting of the judges of the Queen's Bench Division, held on Wednesday, presided over by the Lord Chief Justice, the Judges' Circuits for the ensuing Winter Assizes were rearranged as follows: viz., Midland Circuit, the Lord Chief Justice and Hawkins, J., the Lord Chief Justice going only to Warwick and Birmingham. Oxford Circuit, Day and Kennedy, JJ., the latter judge going only to Stafford and Birmingham; South-Eastern Circuit, Wright, J.; Honie Circuit, Darling, J.; Western Circuit, Bigham and Darling, JJ.; Northern Circuit, Wills Bruce, JJ.; North-Eastern Circuit. Lawrence and Ridley, JJ.; North Wales Circuit, Channell, J.; South Wales Circuit, Phillimore, J.

and

Mr. Justice Darling was this week the guest of the Kensington Parliament at their annual dinner at the Café Monico, and in the course of a speech, replying to the toast of bis health, said, according to the St. James's Gazette, that he came prepared to address them on the patent law and upon Venezuela, but he was not prepared to stand up and justify his appointment to the bench. As he had not studied that topic he had not learned the names of certain law books. If he had simply told them that from his earliest days his constant pastime had been to read those books they could not have contradicted him, and he need not have gone far into their contents if he had only mentioned enough names to take up ten minutes of their time. Then he supposed he should have gone away with the reputation, which many people had earned just as easily, of a great lawyer. Instead of that, he had been trying to puzzle out what was the exact resemblance between himself and the Matterhorn. One of the criticisms of his appointment, so far as he could make out, was that, so far from resembling the Matterhorn