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Otherwise when

that he quite concurred in that view.
it was necessary to continue a receiver, by reason of a
judgment being taken in the action, fresh security must
be given, and fresh expense incurred. Looking at
the matter from a common sense point of view
this appears to be correct. How the practice arose of
putting into a judgment a clause continuing a receiver
cannot probably be now ascertained, but the point to be
remembered is, that if there ever was any occasion for
it, that occasion no longer exists.

INFORMATION AS THE BASIS OF MAGIS
TRATES' JURISDICTION.

THE case of The Queen v. Hughes (L. R. 4 Q. B. D. 614) decides a point of considerable importance with regard to proceedings before magistrates. The facts were as follows:-A police-constable procured a warrant to be illegally issued, without a written information or oath, for the arrest of a man named Stanley, on the charge of assaulting and obstructing him in the exercise of his duty. Upon such warrant Stanley was arrested and brought before justices, and was, without obIT HAS BEEN STATED that the case of Phillips v. London jection, tried by them and convicted of an assault on the and South-Western Railway Company, in which the police-constable in the exercise of his duty. The Common Pleas Division refused a new trial applied for policeman was afterwards indicted for perjury committed on the ground of misdirection and excessive damages, on the trial of Stanley, and convicted. It was held will probably go to the House of Lords. It will be by the Court of Criminal Appeal (Kelly, C.B., dissenting) remembered that Dr. Phillips was a London physician in that he was rightly convicted, notwithstanding that large practice, and having sued for injuries by a collision there was neither written information nor oath to and recovered £7,000, had himself obtained a new trial justify the issue of the warrant; and that the (see 27 W. R. 797, L. R. 4 Q. B. D. 406) on the ground of justices had jurisdiction to hear the charge against inadequacy of damages; and at the second trial the jury, Stanley, though the warrant upon which the accused under the direction of Lord Coleridge, awarded the sum was brought before them was invalid. The question of £16,000, the largest damages, so far as we know, that that arose here was whether the magistrates had jurisa railway company has ever been forced by a jury to pay. diction to hear the charge upon which Stanley was Even in the celebrated case of Pym v. Great Northern brought before them, not whether the conviction against Railway Company (10 W. R. 737), the jury awarded him was valid. Hawkins, J., expressed it as his opinion only £13,000, which the court afterwards reduced to that Stanley had probably been wrongly convicted £9,000. Although, perhaps, exception might be taken because the magistrates convicted him on a charge to the direction of Lord Coleridge, on the ground that that never was made against him. He was charged. the gifts of wealthy patients were too remote to be taken with an indictable misdemeanour under 24 & 25 Vict. into account, we believe the principle of Rowley v. c. 100, whereas the magistrates convicted him sumLondon and North-Western Railway Company (21 W. R.marily, apparently under 34 & 35 Vict. c. 112. But 869), and other cases under Lord Campbell's Act, must the question was whether the evidence of the policeman ultimately be affirmed. That principle is simply that was given on an investigation which the magistrates the jury must take all the circumstances into considera- had jurisdiction to hold, and the evidence was taken on tion, and without attempting to give the full amount of the charge of the indictable misdemeanour. The fact a perfect compensation, give what damages they think that the magistrates subsequently, instead of committing proper. But-independently of the merits of Dr. the defendant for trial, proceeded to convict him sumPhillips' case-there is little doubt that the capricious-marily, could not affect the question. If the policeman ness of juries presses somewhat hardly upon railway companies. In 1865 the Royal Commission on Railways, while recommending that railway companies should be absolutely responsible for all injuries arising from the conveyance of passengers, except those arising from their own negligence, recommended also that their liability

should be limited "within a maximum amount of compensation for each class of fares, and that any passenger should be entitled to require from the company any additional amount of insurance he might desire, on pay ing for it according to a fixed tariff." The limitation of liability already exists in the case of passengers by what are called "workmen's trains" which are run by the metropolitan companies under their special Acts. (See, for instance, the Great Eastern Railway [Metropolitan Station and Railways] Act, 1864, 27 & 28 Vict. c. ccxci., s. 80.) The limit is usually one hundred pounds, and the compensation is determinable " by an arbitrator to be appointed by the Board of Trade and not otherwise." In this latter respect the Regulation of Railways Act, 1868, provides, by section 25, that, "where a person has been injured or killed by an accident on a railway, the Board of Trade, upon application in writing made jointly by the company from whom compensation is claimed, and the person if he is injured, or his representatives if he is killed, may, if they think fit, appoint an arbitrator, who shall determine the compensation (if any) to be paid by the company" —an enactment which, from the proverbial unwillingness of plaintiff and defendant to make 'joint" applications to anybody, has proved a dead letter.

66

IT WILL BE OBSERVED that alterations have been made which will relieve Mr. Justice Fry from the duty of going on circuit; it may therefore be assumed that the full strength of the Chancery Division will be available during the whole of the Hilary Sittings.

gave his evidence on a charge which the magistrates had jurisdiction to hear, then the conviction for perjury was right.

Now, though the question arising in this case has been at various times made the subject of discussion, and was at one time considered more or less a doubtful laid down in Paley on Convictions that "in all summary one, it really turns on very simple considerations. It is proceedings of a penal nature there should be an information or complaint, which is the basis of all the subsequent proceedings, and without which the justice is not powered by the statute to convict on view. authorized in intermeddling except when he is emAs, on the the statements being false, so, on the other, it cannot be one hand, the information is not invalidated by reason of rendered valid by the testimony offered in support of it, for the office of the evidence is to prove, not to supply, a legal charge.' This exposition of the law is not in the A definite charge must be made before the magistrates least affected by the decision in The Queen v. Hughes. of some offence in order to give them jurisdiction. confusion that has arisen in the matter would appear to have been in not distinguishing between the information as the basis of the summons or warrant to compel appearance, and the information as the basis of the jurisdiction The information in The Queen v. Hughes was into hear the case, the defendant having appeared. valid as the basis of proceedings to compel appearance by way of warrant. But it has been constantly held that the necessity for a summons may be waived, and if the defendant appear voluntarily to the information, the conviction is good. (Paley, pp. 88, 97, and cases there cited.) This shows that the steps taken to procure appearance form no part of the process that is necessary to give the magistrates jurisdiction to try a defendant actually before them. Of course, if a defendant does not appear, in order that a conviction against him in

The

his absence may be good, due steps to procure his appearance must have been taken. Now, it has been often held that there is no necessity that the information should be in writing or on oath, unless the statute under which the charge is made requires it, or unless a warrant is to be issued. All that is necessary to give jurisdiction is a verbal information. That being so, the defendant being rightly or wrongly, before the magistrates, an information for anything over which they have jurisdiction may be preferred against him.

It will occur at once to everyone that it is a monstrous thing that a defendant should be compelled to defend himself against a charge that he has not come prepared to meet; but the court, in giving judgment, carefully provided for that difficulty. It is clear that it is the duty of the magistrates in such a case, if the defendant applies for an adjournment, to adjourn the case, and if they did not, their conviction would, no doubt, be quashed as invalid, not because not based on an information, but because they would have disregarded the common rules of justice that ought to regulate the proceedings of every tribunal. The case, as we have above put it-summarizing in effect the judgments-seems really almost too clear for argument, but it all depends on the proposition that no written information was necessary. It was contended, however, by the prisoner's counsel, that Jarvis's Act makes a written information necessary; but the judges gave no weight to the contention, holding that the matter was concluded by authority.

The

We cannot help thinking that if the law be that no information in writing is necessary, the law ought to be altered. In proceedings before a tribunal of so informal a character as a court of petty sessions, the existence of a definite charge ought to be secured by making it essential that the nature of the charge should be committed to writing before the evidence is gone into. This is quite apart from the substance of the question involved in The Queen v. Hughes, which was whether the prisoner's having been illegally compelled to appear, prevented the magistrates having jurisdiction. looseness that appears to have characterized the proceedings in this case, where the prisoner being charged with one offence the magistrates convicted of another, shows the desirability of imposing the observance of certain legal forms upon tribunals exercising summary jurisdiction. The severity of construction to which the records of summary proceedings were formerly exposed was mischievous and absurd, but it is possible to go too far in the other direction. It seems to us always desirable that a charge should be, to some extent, formulated in writing before it is heard. We do not mean after the manner of an indictment, nor are we much enamoured of the usual technical form of informa

tion. But it seems to us that it should be ascertained, before the hearing, under what enactment the defendant is to be proceeded against, and some brief description of the nature of the charge should be recorded in writing,

so as to define the offence.

The Central Law Journal notices a case in New York, Re Coppers (deceased), where an application was made for a peremptory mandamus directing the burial of the deceased in a Catholic cemetery where he had purchased a lot and had expressed in his life a desire to be buried. This the trustees had refused to permit, on the ground that the deceased was a non-Catholic and a Freemason, and that by the laws of the association Freemasons and non-Catholics were not allowed to be interred therein. The Supreme Court granted the mandamus, holding that "a party who deals with a corporate body in matters of contract, and pays his money for property or rights which it assumes to convey without restriction, is not bound to know of articles of faith or private regulations of the corporate body which will make the purchase valueless and the written grant of no avail." A contrary doctrine, said the court, "would unsettle well-established principles, and especially that one which declares that a writing is presumed to contain the entire agreement of the parties.'

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FARM LEASES.

IV.

We have now reached the practical part of our inquiry. We may assume that, under existing circumstances, owners of land are desirous of leaving their tenants as free from cultivation restrictions as possible. But how far can the safeguards against deterioration of the land, which, as we have seen, have been slowly built up during the lapse of centuries, be abandoned with safety? In order to answer this question it is necessary to consider in some detail the provisions relating to cultivation which are ordinarily inserted in farm leases.

With regard to two of these provisions there can, we think, be little difference of opinion as to the advisability of retaining them. The covenant binding the tenant to lay and spread on the farm all the manure produced thereon is, we should suppose, in no way disadvantageous to him, for farmyard manure is obviously most economically applied near to the place where it is produced. Restrictions on ploughing up old grass land, again, are in general necessary for the protection of the landlord; for to plough up such land is (on most soils) to lessen considerably the letting value of the farm. On soil specially fitted for the growth of artificial grasses, it will be to the interest of landlords and tenants alike to adapt their agreements on this point to the circumstances of the case.

Covenants binding the tenant to consume on the farm all hay, straw, and green crops produced thereon rest on a different footing. They appear to have survived from a time when the purchase of feeding stuffs and artificial manures was unknown. It was reasonable then to provide against any diminution of the fodder by the consumption of which alone the fertility of the farm could be kept up; but to prohibit the tenant now from selling off his produce, when it will often pay him much better to do so and to buy manure than to consume the produce at home, is to debar him from carrying on his business to the greatest advantage. Is there adequate reason to justify this prohibition? All that is required for the protection of the landlord is that for all produce sold off the tenant shall bring back a full equivalent in manurial value, either in the shape of manure or feeding stuffs. The practical question is how to insure that this equivalent shall actually be returned. An obvious suggestion is that the tenant should be bound to produce, for the inspection of the landlord, vouchers for all sales of produce and receipts for all purchases of manure or feeding stuffs. It may be objected that this would leave a considerable loophole for fraud on the part of dishonest tenants; for how could the landlord ascertain that the vouchers produced really covered all the sales which had taken place? So long as it is known in a neighbourhood that a tenant is prohibited from selling off his hay, &c., without the landlord's consent, any sale or carrying off of produce is observed, and

The

rumours of it are likely to reach the ears of the landlord or his agent; but when it is known that the tenant has absolute liberty to sell off produce, no remark will be occasioned by his doing so, and no information will be conveyed to the landlord. It is notoriously difficult for the most experienced agriculturalist to estimate accurately the amount of produce on a farm at the beginning of winter; hence, it may be said, the landlord will have no means of testing the accuracy of the tenant's statements as to the amount of produce sold off. answer to this appears to be that from the general condition of the farm, combined with the amount of expenditure on artificial manure proved by receipts, and the amount of dung from time to time in the farmyard, a landlord or agent who has his eyes open will be able to form a tolerably accurate idea as to whether the tenant is honestly fulfilling his engagement to bring back a full equivalent in manurial value for produce sold off. What remains then is to provide protection for a landlord who, by these means, has satisfied

himself that his tenant is not carrying out his agreement; and this might be done by providing that, after notice in writing, given by the landlord to the tenant at any time during the tenancy, the latter shall not carry off any more produce until after he has given written notice by registered letter of the description and amount of such produce to the landlord or his agent, and that for every load (or other quantity) of hay or other produce carried off in contravention of this provision, the tenant shall pay, as liquidated damages, a large sum. This would appear to provide the landlord with a sufficient check, for after his suspicions have been aroused, and any sale of produce without previous notice to him has been prohibited, it would be very difficult for the tenant to carry off produce without being soner or later detected, and detection would practically mean the infliction of a heavy fine. The landlord could probably be trusted not to give the prohibitory notice without good reason, or to withdraw it on being satisfied that his suspicions were unfounded.

The actual form of the provisions we suggest, so far as regards the specification of the equivalent in manurial value to be brought back, would require to be settled by a practical farmer, but we imagine that some such provision as that half the selling value of the produce sold should be expended in the purchase of dung or town manure, bones, or good artificial manure, or in linseed or cotton or rape cake, beans, or peas, would suffice. Of course, feeding stuffs of less manurial value than those above specified, should either be excluded, or the proportion of money to be spent on them should be increased.

or

With regard to covenants prescribing a particular rotation of crops, there is more difficulty in arriving at a general conclusion. It seems to be admitted that on soils known in agricultural language as 66 strong land," the restrictions as to cropping are inconvenient and injurious to the tenant without being necessarily advantageous to the landlord. It does not seem reasonable, for instance, to compel such a tenant in every fourth fifth year to grow roots (an uncertain and unprofitable crop on such land) instead of growing an extra white crop-say of barley-which could be best grown, and (as Mr. Lawes has shown) if suitably manured, without deterioration to the land. On light soils, on the other haud, it is, we believe, the fact that a fourcourse system of husbandry is generally the best mode of cultivation, and some system of rotation is probably necessary in order to prevent such land from deteriorating. But even on these soils it is obviously undesirable to restrict the tenant from making the most money he can on his farm, if only the landlord can be insured against the land being impoverished. The question of whether this can be done, and if so, how it can be done, must be left for discussion next week.

At the Mansion-house Police Court on Friday the resignajon was announced, after five years' service, of Mr. J. ranville Layard, the assistant clerk at the justice-room of Ghe Mansion-house. Mr. Layard retires in order to practise tas a solicitor; and his resignation occasions much regret to those presiding in and practising before the Court. The appointment vacated is in the gift of the Court of Alder

men.

An inquest was held at Cockermouth, on Tuesday, on the body of Henry Philip Wicks, solicitor of that town, who met with his death on Sunday under melancholy circumstances. He resided some little distance from Cockermouth, and was in the habit of taking a short cut into town by crossing a private bridge over the River Derwent, belonging to Messrs. Harris and Son. There is an iron gate with spikes at one end of this bridge, which is locked on Saturday night and over Sunday. Mr. Wicks appears to have been climbing this gate when by some means he impaled himself upon one of this spikes. He bled to death in less than half-an-hour. A verdict of accidental death was returned.

Reviews.

DIARIES.

PARTRIDGE & COOPER'S ANNUAL DIARY FOR 1880. PARTRIDGE & COOPER'S OCTAVO SCRIBBLING DIARY FOR 1880.

PARTRIDGE & COOPER'S FOLIO SCRIBBLING DIARY FOR 1880.

These scribbling diaries are certainly a marvel of cheapness. The folio diary contains fifty-six pages, folio size, interleaved with blotting paper, for one shilling. The annual diary is printed on good paper and bound in cloth for the same price.

We have also received a copy of the Remembrancer, Cooper, containing the month, date, and day of week, with for hanging up in offices, published by Partridge & notes of the events of the day.

THE LEGAL POCKET-BOOK AND CALENDAR. 1880. Compiled by ALFRED LAYTON. Waterlow Brothers & Layton.

There is a wonderful amount of legal and other informa tion very well put together in the introduction to this pocket-book, and the paper for the diary is of excellent quality.

Cases of the Week.

resolutions.

LIQUIDATION PETITION-REGISTRATION OF RESOLUTIONS -DEBTOR'S STATEMENT-SMALL AMOUNT OF ASSETSBONA FIDES OF CREDITORS-BANKRUPTCY ACT, 1869, s. 125-BANKRUPTCY RULES, 1870, RR. 295, 301.-In a case of Ex parte Early, before the Court of Appeal on the 4th inst., a question arose as to the registration of liquidation The debtor, a trader, filed a liquidation petition on the 25th of July. The first meeting of the creditors was held on the 11th of August. The statement of affairs produced by the debtor showed that his debts amounted to £534 and his assets to £85. His assets consisted entirely of goods, the whole of which had been seized by the sheriff under an execution issued by a judg ment creditor named Early. This execution had been issued after the filing of the petition, but an injunction to restrain the proceedings under it had been granted. The creditors resolved to accept a composition. At the second meeting this resolution was not confirmed, but a liquida. tion by arrangement was resolved on. The registration of the resolution was refused on the ground of an informality in the proceedings, but leave was given to summon a fresh first meeting of the creditors. This meeting was held on the 29th of October. The injunction against Early had been continued from time to time, but had expired before the 29th of October, and the sheriff had sold the whole of the debtor's goods for £85. At the meeting the debtor produced the same statement of affairs which he had produced at the meeting on the 11th of August. The creditors resolved on a liquidation by arrangement, and gave the debtor an immediate discharge. There were but five creditors, and Early was the only dissentient. He opposed the registration of the resolutions, but the registrar ordered them to be registered. On the appeal it was contended that the statement of affairs produced at the meeting of the 29th of October was, on the face of it, an insufficient one, because the nature and amount of the debtor's assets and liabilities must of necessity have changed between August and October. Moreover, it was said that, looking at the amount of the assets compared with that of the liabilities, the proceedings were an abuse of the procedure of the court, and the resolutions could not have been passed bond fide in the interest of the creditors, but must have been passed solely in the interest of the debtor; reliance being placed on the cases of Ex parte Staff (23 W. R. 950, L. R. 20 Eq. 775), Ex parte Sir W. Russell (23 W. R. 817, L. R. 10 Ch. 255), Ex parte Aaronson (26 W. R. 470, L. R. 7 Ch. D. 713), and Er parte Hope (L. R. 9 Ch. D. 398). The court (JAMES, BAGGALLAY, and

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THESIGER, L.JJ.) affirmed the registrar's decision. JAMES, L.J., said that the assets were very small, and in the result would probably produce nothing for anyone. But the real contest was whether the execution creditor should take all the assets, or whether they should be equally distributed among all the creditors. The debtor might well honestly think that they should be distributed equally, and the other creditors might well have thought that they should have a share. It was impossible to say that the proceedings showed ex facie any abuse of the procedure, or any frandulent use of the power of the majority. The statement of the debtor's affairs appeared to be an honest one. There was no evidence of any change in the state of his affairs between August and October. It would have been the easiest thing in the world to have asked him at the meeting whether there had been any such change.

BANKRUPTCY-LIQUIDATION-SECURED CREDITOR-PROOF -VOTING-VALUATION OF SECURITY-FORFEITURE OR ABANDONMENT-BANKRUPTCY ACT, 1869, ss. 16, 40-BANKRUPTCY RULES, 1870, RR. 99, 100, 136, 272.-In a case of Ex parte Bagshaw, before the Court of Appeal on the 4th inst, the question was raised whether a secured creditor, who, in proving his debt in the bankruptcy or liquidation of his debtor, by mistake omits to mention a part of his security, is entirely precluded from afterwards claiming the security which he has omitted, or from applying to the court to have his proof reformed. One Ker filed a liquidation petition on the 6th of June, and on the 27th of June the first meeting of the creditors was held, and a liquidation by arrangement was resolved upon. One Bagshaw held a mortgage on a leasehold house of the debtor to secure £4,000 and interest. Early in June he advertised the property for sale by auction on the 26th of June. The particulars of sale stated that the fixtures, according to an inventory to be produced at the time of sale, were to be taken at a valuation in the usual way. On the 18th of June the solicitors of the receiver, who had been appointed under the petition, wrote to Bagshaw's solicitors that these fixtures were not included in the mortgage, and were part of Ker's estate. Bagshaw's solicitors replied that it was not their intention to include the fixtures in the sale, and that they would arrange for their withdrawal at the auction. At the auction on the 26th of June the auctioneer withdrew the fixtures, and the house was sold for £3,000. At the creditors' meeting on the 27th of June Bagshaw tendered a proof for £4,385, as due to him on the mortgage, stating in his affidavit that he had no security for his debt except the property comprised in the mortgage, which had been sold the previous day for £3,000. His proof was admitted for £1,385, the balance of the mortgage debt, and he voted at the meeting in respect of that sum. Afterwards the trustee (the same person who had been receiver) sold the fixtures to the parchaser of the house for £220. Bagshaw then set up a claim to the £220, on the ground that the fixtures were included in the mortgage. Among other objections to his claim, it was urged that, by his proof and voting in respect of it, he had abandoned or forfeited any security he might have had beyond the £3,000, the value of the house; reliance being placed on the cases of Ex parte Ashworth (22 W. R. 925, L. R. 18 Eq. 705) and Ex parte King (23 W. R. 681, L. R. 20 Eq. 273). The court (JAMES, BAGGALLAY, and THESIGER, L.JJ.) were of opinion, upon the facts of the case, that there had been no mistake on the part of the creditor, but that the fixtures had been uncondi tionally withdrawn from the sale, and that the proof had been deliberately made on the footing that the creditor was only entitled to security on the value of the house. JAMES, L.J., intimated that it might at some future time require farther consideration whether Ex parte Ashworth and Ex parte King bad been rightly decided, and whether there is any positive rule that a mortgagee who has made a mistake in his proof cannot, on making a proper application, have it corrected. BAGGALLAY, L.J., said that he was by no means disposed to say that a mortgagee could in no case be allowed to remodel his proof. On the contrary, his lordship thought that he could do so in a proper case and on proper terms. But that could only be on the ground that he had acted on a mistake throughout. THESIGER, L.J., said that, if he had seen clearly that the emortgagee had made a mistake in his proof, and had un

designedly shut himself out from a part of his security, he should have been disposed to help him. He thought that the case could be distinguished from Ex parte Ashworth and Ex parte King, even assuming that those cases were not open to reconsideration. But in the present case his lordship thought that the original intention was to give up the claim to the fixtures altogether.

MORTGAGOR AND MORTGAGEE-TRUSTEE IN BANKRUPTCY -PROCEEDINGS TO IMPEACH SECURITY-COSTS.-In a case of Ex parte Parnall, before the Court of Appeal on the 4th inst., proceedings had been taken unsuccessfully by a trustee in a liquidation to impeach a bill of sale which had been given by the debtor. These proceedings took place partly in an action at law, and partly in the Bankruptcy Court. The mortgagee obtained in the action an order for the payment of his costs as between party and party. He afterwards claimed to be paid his extra costs in the action, his full costs of the proceedings in the Court of Bankruptcy, and his charges and expenses, out of the proceeds of the mortgaged property. The court (JAMES, BAGGALLAY, and THESIGER, L.JJ.) disallowed the claim. JAMES, L.J., said that the rule is that, when a mortgagee defends the title to the mortgaged property for the benefit of all the persons interested in it, he is entitled to his costs, charges, and expenses in the same way as a trustee. But that rule had never been applied to direct litigation between mortgagor and mortgagee. In such a case the mortgagee was entitled to party and party costs, and to nothing more. That was the case in a foreclosure or redemption action, and it was equally so in the present case.

PRACTICE-ADVANCING APPEAL IN BANKRUPTCY-ADJUDICATION OR REGISTRATION OF LIQUIDATION RESOLUTIONS.-In a case of In re Loog, an application was, on the 4th inst., made to the Court of Appeal to advance the hearing of an appeal relating to the registration of resolutions passed under a liquidation petition. The court (JAMES, BAGGALLAY, and THESIGER, L.JJ.) said that the application was unnecessary, inasmuch as a general direction had been recently given that all appeals relating to adjudications and to the registration of resolutions under liquidation petitions shall have priority.

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The action was

LIGHT "CONSENT OR AGREEMENT IN WRITING"-PRESCRIPTION ACT (2 & 3 WILL. 4, c. 71), s. 3.-On the 5th L.JJ.) affirmed the decision of Hall, V.C., in the case of inst. the Court of Appeal (JAMES, BAGGALLAY, and THESIGER, Bewley v. Atkinson (27 W. R. 452). brought to restrain an alleged obstruction by the defendant of the plaintiff's ancient lights. The defence was that the lights had been enjoyed under, and by virtue of, an agreement entered into in the year 1814 between one Kirkbride, a predecessor in title of the plaintiff, and one Spencer, a predecessor in title of the defendant. The agreement relied on was a written document by which Kirkbride declared that the windows in question are put out and remain upon the leave or indulgence of the said H. Spencer, and that I will, upon the request of him, or his heirs or assigns, to be made at any time hereafter, wall and block up the same, and in the meantime, until such request is made as agreed, I hereby promise to pay unto the said H. Spencer, his heirs and assigns, the sum of 6d. yearly, and every year, in consideration of such indulgence." This document was signed by Kirkbride alone. The evidence showed that the rent of 6d. had been paid up to the year 1859. The defendant commenced to block up the windows in 1877. The plaintiff alleged that neither he nor his immediate predecessor in title, who was a bona fide purchaser for value, ever knew of the document in question until it was set up in justification. The main question in this case was whether, within the meaning of section 3 of the Act, 2 & 3 Will. 4, c. 71, the lights in question had been enjoyed "by some consent or agreement, expressly made or given for that purpose by deed or writing." Hall, V.C., held that the right given by the document in question was not limited in duration to the life of Kirkbride; that there was a sufficient consent or agreement in writing, within the meaning of the Act, though the document was signed only by the person to whom the licence was given; and that, at any rate, the agreement was one which would be enforced by a

court of equity. This decision was affirmed by the Court of Appeal on all the points.

MANDATORY INJUNCTION-BREACH OF BUILDING COVENANT-PULLING DOWN COMPLETED BUILDING-JUDICATURE ACT, 1873, s. 25, SUB-SECTION 8.-In a case of Gaskin v. Balls, before the Court of Appeal on the 5th inst., the action was brought for a mandatory injunction to compel the removal of buildings which had been erected in breach of a ovenant entered into on the sale of an estate in lots for building purposes. Part of the buildings complained of had been erected more than six years before the commencement of the action by the defendant's predecessor in title, and no complaint had been made at the time. The remainder of the buildings had been erected quite recently by the defendant himself. Bacon, V.C., had granted the injunction asked for as to both the buildings. The Court of Appeal (JAMES, BAGGALLAY, and THESIGER, L.JJ.) discharged the injunction so far as it related to that part of the buildings which had been erected more than six years before the action. THESIGER, L.J.. said that, as a general rule, a mandatory injunction ought not to be granted where no complaint has been made before the completion of the buildings. And, though the Judicature Act has enlarged the power of the court as to the granting of injunctions, the principles on which the court will act remains the same.

LUNACY REGULATION ACT, 1862 (25 & 26 VICT. c. 86), s. 12 SUMMARY JURISDICTION AMOUNT OF LUNATIC'S PROPERTY. In a case of In re Faircloth, before Baggallay, L.J., on the 6th inst., the question arose whether, in estimating the amount of a lunatic's property, for the purpose of determining whether it falls below £1,000, so as to give the court a summary jurisdiction under the provisions of section 12 of the Lunacy Regulation Act, 1862, sums due in respect of the past maintenance of the lunatic may be deducted from the gross value of the property. BAGGALLAY, L.J., held that the deduction might be made, observing that, upon a comparison of all the reports of In re Adams (12 W. R. 291, 4 De G. J. & S. 182, 9 L. T. N. S. 626, 3 N. R. 339, 10 Jur. N. S. 137), he considered the decision of Lord Westbury, in that case, to be an authority in favour of making the deduction.

CHARTER-PARTY-FREIGHT-INTEREST-3 & 4 WILL. 4, c. 42, s. 28.-In a case of Nelson v. Dahl, before the Court of Appeal on the 8th inst., an application was made to vary the minutes of the judgment. The action was brought to recover freight and demurrage due under a charter-party. The plaintiffs succeeded in the Court of Appeal, but in the minutes of the judgment as settled by the registrar, no provision was made for giving interest on the freight. It was urged that the freight was, by virtue of the charter-party, payable at a certain time, and that consequently, under section 28 of the Act 3 & 4 Will. 4, c. 42, the plaintiffs were entitled to interest on it. The court (JAMES, BAGGALLAY, and BRETT, L.JJ.) held that there was no right to interest, except from the date of the judgment. BRETT, L.J., said that in a common law action for freight the judgment was always for the freight without interest. The statute did not apply, for the freight was payable on delivery of the cargo, and that was not a time certain within the meaning of the Act. The plaintiffs could not alter their rights by bringing the action in the Chancery Division instead of in one of the common law divisions.

PRACTICE-ACTION BROUGHT BY SOLICITOR WITHOUT AUTHORITY OF NOMINAL PLAINTIFF-COSTS-LIABILITY OF SOLICITOR-FORM OF ORDER-JUDICATURE ACT, 1873.-In a case of The Newbiggin Gas Company v. Armstrong, before the Court of Appeal on the 10th inst., the question arose which was raised before the Master of the Rolls recently in the case of Nurse v. Durnford (ante, p. 88). Fry, J., had, upon the motion of the plaintiffs, ordered the solicitor, who had issued the writ, to pay their costs of the action, on the ground that he had issued the writ in their name without their authority. The Court of Appeal (JESSEL, M.R., and JAMES and BRETT, L.JJ.) affirmed the decision upon the facts. And JESSEL, M.R., said that, under the old practice of the Court of Chancery, the defendant was not served with notice of an application of this kind, and he

had to get his costs from the plaintiff, and then the plaintiff had to get them over from the solicitor. The result was that the nominal plaintiff, who had never given any authority to use his name in the action, might have to pay a large sum for the defendant's costs, and might, by reason of the insolvency of the solicitor, be unable to recover it. On the other hand, the practice in the courts of common law was to serve the defendant with notice of the application, and to order the solicitor to pay the costs of both plaintiff and defendant. Now, under the Judicature Act, it was for the court to say which practice ought to be followed. And his lordship had no hesitation in saying that which he had already said at the Rolls, though not with the same authority as he now said it in the Court of Appeal, that the common law practice was founded on natural justice, and ought to be followed for the future. JAMES, L.J., said that it must be understood that the common law practice is to be observed in future. BRETT, L.J., said he was very glad to hear the Master of the Rolls affirm what he had himself often said since the Judicature Act came into operation, that in questions of practice that practice which, upon consideration, appears to be the best ought to prevail.

PRACTICE-TRIAL BY JUDGE WITHOUT A JURY-DISCRETION-ACTION NOT SUITABLE FOR TRIAL BY JURY-NOTICE BY DEFENDANT OF TRIAL BY A JURY-RULES OF COURT, 1875ORD. 36, RR. 3, 26.-In a case of Wedderburn v. Pickering, before the Master of the Rolls on the 5th inst., a motion was made by the plaintiff, under ord. 36, r. 26, that, notwithstanding the notice of trial before a jury given by the defendants, the trial might take place before the judge without a jury. The action was one to obtain possession of the site of an old wall taken by the defendants and built upon or about to be built upon by them; to restrain the defendants from trespassing upon such site, and from interfering with a right of way claimed by the plaintiff; and for damages. The plaintiff had given notice of trial before the judge without a jury, and the defendants then, under ord. S6, r. 3, gave notice of trial before a jury. The defendants in their affi davit in opposition to the motion stated that a view of the premises was essential for a determination of the issues in the case, that the premises were situated within a hundred yards of the assize court at Leeds where the trial would be held, and that all the witnesses were resident at Leeds. They also stated that the expense of a trial in Leeds would be much less than of a trial in London. The plaintiff, in answer, said that no view would be necessary, as the locus in quo could be sufficiently understood from some photographs which had been taken before the premises had been altered by the defendants for the purposes of an interlocutory application. The plaintiff also alleged that the issues would entirely depend on an examination of the various deeds and the plans attached

to the conveyances. JESSEL, M. R., said given to persons by the Judicature Act to have their cases tried that he was very unwilling to interfere with the right away that right from mere caprice, or because he might himby a jury, and he also considered that no judge should take self think a jurv not the best tribunal. He quite approved of what Hall, V.C., said in Clark v. Cookson (L. R. 2 Ch. D. 747), that rule 26 of order 36 was framed" to meet cases which would under the old system have been tried in the Chancery involving a mixture of law and fact, or from great complexity, Division, and which might be considered by reason of or otherwise, not capable of being conveniently tried before a jury." In the present case, the action-he might almost call it a conveyancing action-depended on the construction of certain deeds and plans, and could be far better determined by a judge than by a judge and jury. In reference to the question of a view, he thought the photographs which had in fact been prepared by the defendant would give the judge quite as good an idea as any view. Then, on the question of expense, he was by no means sure that, looking at the whole course of the action, the liability to its being made a remanet and to the liability to motions for a new trial, he did not think a trial in London would be more expensive, where, moreover, the case would be quickly heard, and probably with one appeal only. He should, therefore, exercise the discretion given him by rule 26 in favour of the plaintiff. The costs would be costs in the action, as it was a fair case for discussion.

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