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The Solicitors' Journal.

LONDON, FEBRUARY 25, 1882.

CURRENT TOPICS.

The Rule Committee of Judges, consisting of the Lord Chancellor, the Lord Chief Justice, the Master of the Rolls, Sir James Hannen, Lord Justice. Lindlet, Baron Pollock, and Justices Manisty and Fry, met at half-past ten o'clock on Wednesday last to consider the Report of the Procedure Committee. The learned judges continued in deliberation until four o'clock, but did not complete their consideration of the Report. The sitting will be resumed on Wednesday next.

We Prist in another. column the order of rc-transfcr to which we referred last week as then impending. The effect is to restore to Mr. Justice Chitty all his causes and matters, except those which were recently transferred to Vice-Chancellor Bacon.

Mr. C. P. Ilbert, the new legal member of the Council of the Viceroy of India, wiil enter on his duties on the 13th of April next. Her Majesty's subjects in India are to be congratulated on the appointment to this high office of one of the most able and skilful of the modern school of parliamentary draftsmen. Mr. Ilbert is the author of (among many other measures) the Act constituting the Central Office of the Supreme Court, and the rules and forms under that Act; of the Act constituting the Railway Commission, and of all the Merchant Shipping Acts since 1870. lie is also well known as the draftsman of the Bankruptcy Bill of last session; and it is understood that he has in hand, and will complete before his departure, the consolidating Bankruptcy Bill to be introduced during the present session.

The Unanimous Adoption by the large meeting of the Incorporated Law Society on Wednesday of the report of the Committee on Legal Procedure is the best testimony that could be given to the singular care and ability with which that report has been prepared, and the admirable constitution of the committee as representing all shades of opinion. Since the report was published we have heard dissents from some of the recommendations on points of detail, but in no instance we have heard of has there been any feeling other than satisfaction with the report as a whole. The committee may be congratulated on having produced a report which is recognized on all hands as thoroughly worthy of a great occasion, and which can hardly fail 10 have an important influence on the deliberations of the Rule Committee of Judges.

It Is Now more than six years since suitors were required to deposit £20 with the registrar before setting down an appeal from ihe Court of Chancery. These sums of £20, which were always paid into an appeal deposit account with the Chancery Paymaster, were, in the ordinary course of events, ordered to be paid out to the successful party on the appeal, either by way of returning the amount deposited to a successful appellant, or paying it to a successful respondent in part payment of his costs. Notwithstanding the lapse of so much time since these deposits ceased to be made, there is still remaining in court, according to the statement of our correspondent " II. R." (of whose accuracy we have no doubt), no less a sum than £2,500. All appeals brought before November, 1875, have long ago been disposed of, and we cau only

come to the conclusion that the deposits have in many instances been altogether lost sight of.

The Authority of the House of Commons to expel members for any reason, good or bad, or for no reason, or without assigning any reason, is undoubted. It is, however, usual to assign a reason. Among the more salient instances of expulsion are those of Mr. Wilkes for seditious libel in 1764 and 1769; of Colonel Cawthorne, for " conduct unbecoming an officer and a gentleman," in 1796; and of Mr. Sadleir—the most recent case—for fraud, in 1856. It is equally undoubted that the expulsion creates no disability for re-election (May Pari. Pr., 8th ed., p. 60). The expulsion of Mr. Brad Laugh for disobedience to the order of the House renders unimportant the question of whether he has taken the oath imperfectly, but it seems that for the parliamentary oath at all events no administration of it by another person is required, and that a member may legally "swear himself.'* The Parliamentary Oaths Act, 1866, merely directs that the oath thereby appointed " shall be solemnly and publicly made and subscribed by every member of the House of Commons at the table in the middle of the said House, and whilst a full House of Commons is there duly sitting, with their Speaker in his chair, at such hours and according to such regulations as each House may, by its Standing Orders, direct." The only Standing Order on the subject (May 8, 1866), prescribes that "members may take and subscribe the oath required by law at any time before the orders of the day and notices of motion have been entered upon, or after they have been disposed of, but no debate or business shall be interrupted for that purpose." Whether the interposition of an officer might have been legally required or not, it certainly has not been required by this order. In this respect the parliamentary oath differs from almost every other, for, as will be seen by a reference to 6 Geo. 4, c. 87 (administration of oath by consul); 1 St 2 Vict. c. 105 (persons bound by oaths administered in any form deemed by themselves binding); 14 & 15 Vict. c. 99, s. 16 (administration of oath by courts generally), and especially the Promissory Oaths Act, 1868; these Acts, one and all, imply, if they do not expressly require, the interposition of an officer. Especially is this the case with the Act of 1868, which directs (sec first part of schedule) that the oath to be taken by certain high officials "is to be tendered by the clerk of the Council, and taken in presence of her Majesty in Council, or otherwise as her Majesty shall direct." Mr Bhadlaugh, it is stated, swore himself upon a copy of the Revised Version of the New Testament. It has been questioned whether the oath so taken is valid, but we think that it is. A Jew is sworn on the Pentateuch, a Chinaman on a broken saucer, and a Hindoo by touching the shoulder of a Brahmin.

We Do Noi Claim, and never have claimed, any sort of infallibility for the criticisms which we have felt it our duty to make on the provisions of the Conveyancing Act, 1881 ; but since we wrere subjected for some weeks to a continuous cannonade from great and little guns, with the object of driving us from our positions, we may be excused if we regard with satisfaction the proofs which come to hand that, in the opinion of impartial observers, we were not altogether wrong in our strictures. The Birmingham Law Society is well known to contain among its leading members some of the ablest real property lawyers and most skilful conveyancers to be found in the solicitor branch of the profession. The annual reports of its committee are always taken as representing the considered opinion of conveyancing solicitors; consequently their observations on questions relating to the Conveyancing Act have been awaited with special interest We refer elsewhere to the remarks on mortgages, and will only add here that upon some points which wc raised relating to conveyances the society agree with us. They say that "general words may be omitted, in reliance on section 6, in all cages where it is unnecessary to have a regrant of an easement which <may have been extinguished by unity of possession." Covenants for title, they think, may be omitted in reliance on section 7, "but until the Act be amended, or the ambiguous clause, ' notwithstanding anything by the person who so conveys, or anyone through whom he derives title, otherwise than by purchase for value,' be judicially interpreted not to extend to the acts of every person in the chain of title, who did not acquire the property conveyed as a purchaser for value, it will be advisable to take advantage of sub-section 7, and limit the covenant to the acts and defaults of the vendor if he be a purchaser for value, or those through whom he derives title, up to, and inclusive of, the last purchaser for value." And with regard to conditions of sale, the society are advised " that it is not necessary or wise to make, at present, any material alteration in the common form conditions." Mr. William Barber, Q.C., who gives this advice, was one of the conveyancers to whom the Conveyancing Bill was referred for suggestions before its re-introduction, and, wc believe, cannot be considered an unfriendly critic; yet it appears that even he dare not trust the implied conditions of sale.

In Connection with the recent well-meant attempt of the jurors, or some of them, to procure the pardon of a convict by a disclosure of the secrets of the jury-box, it may be well to point out that the law very much discourages any disclosure of the kind. In the case of grand jurors, the oath is to keep secret "the Queen's counsel, his fellows, and his own," and it was at one time felony in a grand juror to disclose the King's counsel (27 Ass. pi. 63). Petty jurors take no such oath, but it is clear that the spirit of the law is against disclosure. In civil cases their evidence is not receivable to prove their own misbehaviour, or to prove that a verdict which they delivered was given through mistake (Best on Evidence, citing Straker v. Graham, 4 M. ic W. 721, and other cases), for, it is said, "The allowing a juryman to prove the real or pretended misbehaviour or mistake of himself or his companions would open a wide door to fraud and malpractice in cases where it is sought to impeach verdicts." In the United States it appears that the rule is generally the same, that the testimony of a juror is inadmissible to impeach a verdict {Read v. Commonwealth, 22 Gratt. 924; Commonwealth v. Brew, 4 Mass. 391). In Tennessee, however, the English rule appears to be rejected altogether {Crawford v. State, 2 Georg. 00), and in one or two other States "the affidavits of jurors will sometimes be received for the purpose of explaining, correcting, or enforcing a verdict" {Dana v. Tucker, 4 Johns. 487). In Iowa they have even been admitted to prove a decision by lot (Wright v. Illinois Telegraph Company, 20 Iowa, 19), and that the instructions of the court were misunderstood {Pickard v. United States, 1 Iowa, 22")). We have been unable to discover any authorities as to criminal cases in this country, but wc make no doubt that the recommendation to mercy is the only recognized mode by which a juryman can qualify the judgment of the court which follows upon the verdict which he is sworn to give.

The Bill which it is proposed to call, in the event of its passing, " The Inferior Courts Judgments Extension Act, 1882," is, mutatis mutandis, a pretty exact copy of the Judgments Extension Act, 1868 (31 & 32 Vict. c. 54). The scope of the Act of 1868 is " to render judgments or decreets obtained" in the superior courts " in England, Scotland, and Ireland respectively, effectual in any other part of the United Kingdom," and the scope of the Bill of 1882 is, as is explained in the preamble, " to extend the principle of the Judgments Extension Act, 1868, to the judgments of certain inferior courts of Great Britain and Ireland." The expression " inferior courts " in the Bill is to include " county courts, civil bill courts, and all courts in England and Ireland having jurisdiction to hear and determine civil causes, other than the High Courts of Justice, and in Scotland the sheriffs' courts and the courU held under the Small Debts and Debts Recovery Acts :" and following the lines of the Act of 1868, it is proposed to enact

that the registrars of the inferior courts are to issue certificates of judgments obtained therein upon the application of the party who has recovered judgment; that the registration of the certificate is to have the effect of a judgment of the court in which it is registered; that the courts are to have the same control over the certificates of the judgments as they have over judgments themselves in their own courts (see, as to this, Part v. Scannell, 9 Ir. C. L. 426), and that costs are not to be allowed in actions on judgments "unless the court in which such action shall be brought shall otherwise order." The only section of the Act of 1868 which is not reproduced in the Bill is section 5, which enacts that it shall not be necessary for a plaintiff resident in one of the three kingdoms, and bringing an action on a judgment in either of the others, to find security for costs "unless on special grounds the court shall otherwise order." The Bill is one to which no reasonable objection can be taken. The very wide definition of " inferior court" might, perhaps, have been alarming if it had not been provided by section 28 of the County Court Act, 1867, that inferior courts "not of record" are to yield up their jurisdiction to county courts, and if the Borough and Local Courts of Record Act, 1872 (35 & 36 Vict. c. 86), had not introduced many wholesome reforms into local courts " of record." The measure, however, might, perhaps, be improved by a schedule of courts, other than the courts named, to which it is intended to apply. The Tolzey Court of Bristol, the Court of Passage at Liverpool, the Court of Requests at Salford, the Provost Court at Exeter, and last, though not least, the Mayor's Court of London; — these are more or less known as inferior courts of record. But arc there not some others? We have an impression that the Court of the Savoy still remains, having a jurisdiction of about one hundred square yards.

THE FORM OF MORTGAGE.

We discussed some weeks ago the question of what should the be form of mortgage, looking at the matter from the point of view of a practitioner disposed, as far as possible, to cut down the length of these instruments. We pointed out that the statutory form in schedule 3 had been practically abandoned even by its putative father, and that its want of adaptability to the circumstances of particular cases would be a bar to its adoption in any but the very simplest transactions. We added that the form of mortgage in schedule 4 was in many respects unnecessarily cumbrous, and wc showed how it might be improved in terseness and clearness of expression. With regard to the implied powers given by the Conveyancing Act, we came to the conclusion that a mortgagee might safely allow them to come into operation, with the exception of the power of leasing (section 18), which ought always to be expressly excluded, and the restriction on consolidation (section 17), which probably would always be excluded. We also threw out a suggestion that it might be desirable to try to exclude or qualify section .5, which enables a mortgagee to be redeemed behind his back.

We happen to know that our observations were extensively canvassed at the time, and met with a good deal of question among the Conveyancing Company (Limited), who (as the Times some time ago informed the world) had bound themselves by a solemn league and covenant to adopt, we suppose in their entirety, the provisions of the Conveyancing Act. Since our observations were published we have had several opportunities of considering in practice the matter we discussed, and of obtaining; the opinion of many practitioners not belonging to the very limited, company aforesaid. We find that the couise we suggested is now very generally adopted at Lincoln's-inn; and, on full consideration, we sec no reason to alter or modify the views we expressed, except, perhaps, with regard to our hint as to sectipn 5. The opinion seems to be general that no chief clerk will allow the absurd provision that the court may, "without any notice to the incumbrancer," declare the mortgaged land to be freed from the incumbrance, to come into operation; and that it is hardly necessary to make any express provision in a mortgage based upon the improbable contingency of a contrary course being taken. We think there is reason in this opinion, and that, although a cautious practitioner may make a mortgagor covenant to give notice to the

mortgagee of any intended application to the court under section 5, no great harm is likely to arise from the omission of such a provision.

The report of the Birmingham Law Society, which we print elsewhere, shows that the conclusions of the most experienced and competent members of the branch of the profession most concerned with the preparation of mortgages accord with the views we expressed. The society recommend that "short forms similar to those in the 4th schedule should be used in preference to the statutory forms in the 3rd schedule." They think that the covenants and power of sale may be omitted in reliance on sections 7 and 19. They consider that " the operation of the 18th section, enabling either mortgagor or mortgagee in possession to grant leases should, as a general rule, be excluded, at least so far as the mortgagor is concerned." "With regard to excluding the 17th section, although they would be well content that the right to consolidate should be abolished altogether, except in cases where the mortgagor expressly charges the first security with the second mortgage debt, they very properly point out that, so long as consolidation is allowed by law in other cases, "a solicitor will be expected to see that a mortgagee is not deprived of any right which the law gives him."

It may be worth while, since it now appears that the practice of excluding the operation of sections 17 and 18 is becoming established, to draw attention to one or two matters relating to such exclusion which are likely to be overlooked. In the first place, it is considered doubtful whether a mere declaration that those sections are not intended to apply to the mortgage will be sufficient to satisfy the provision of the Act requiring "a contrary intention" to be expressed. There must, it is apprehended, be an affirmative contrary intention expressed. Hence, in order to exclude the " restriction on consolidation," there must not only be a statement that section 17 of the Conveyancing Act, 1881 "is not intended to apply to this mortgage," but also a statement that, in respect of the consolidation of securities, the rights of the mortgagee shall be the same in all respects as if the said section had never been enacted, or some other provision to that effect. Similarly, with regard to section 18, there must be a statement that, "in respect to letting or leasing the said premises or any part thereof, the rights and powers of the mortgagor [and of the mortgagee respectively] shall be the same in all respects as if the section had never been enacted." And it must not be forgotten that, since this latter contrary intention is to be "expressed by the mortgagor and mortgagee in the mortgage deed," any mortgage excluding the provision as to leases should be executed by the mortgagee.

MEASURE OF DAMAGES.

A Somewhat interesting point on the question of measure of damages has recently been decided by the Queen's Bench Division. The point is briefly this—viz., whether, apart from what may be called consequential damage, the true measure of damages is what it would cost to perform the broken contract, or the pecuniary damage to the plaintiff? Of course it may frequently happen that the two tests coincide, in which case no discussion of the principle is likely to arise; for instance, in the case of a breach of contract to deliver goods, the damage is the difference between the contract price of the goods and the value of such goods in the market at the time when the contract was finally broken; and, again in the case of a covenant to repair demised premises, the reversion will generally be damaged to the amount which it would cost to execute the repairs contemplated by the covenant. It will thus be found that in a great number of cases no such question as that now under discussion can arise, or at any rate assume much practical importance ; but there arc cases in which the difference between the two tests may be very great; and the question thus raised seems to us to be one of much interest and difficulty.

In the case which suggests these observations, Wigsell v. Corporation of the School for the Indigent Blind (not yet reported), the plaintiffs' predecessor in title had demised a piece of land, forming part of a larger estate, to the defendants, who at that time contemplated the erection thereon of a school for the blind,

and the lessees covenanted to wall off the land so demised from the rest of the estate with a wall seven feet high. The project of using the demised land for a school fell through, and the defendants disposed of the land for other purposes, and the wall was never built. The defendants refused to build the wall, on the ground that the covenant to do so was dependent on the contingency of the school for the blind being built. The court had held otherwise, and consequently it became necessary to assess the damages, which was done upon a writ of inquiry before the under-sheriff. The under-sheriff allowed evidence of what it would have cost to erect the wall to go to the jury, and this was complained of as misdirection. It appeared probable from the evidence that, in the events that had happened, the value of the rest of the estate was, if at all decreased by the non-erection of the wall, at any rate only decreased to an amount far less than that which it would have cost to erect the wall. The court held that the cost of the wall was not a true test of the damages, but that the test was the pecuniary amount of the difference between the plaintiffs' position upon the breach of the covenant and what it would have been upon performance of the covenant, and they consequently set aside the verdict of the jury and made the rule absolute for a new inquiry.

There are no questions more difficult than questions with regard to the measure of damages. It is obvious that, if the true test of damages is the pecuniary difference made to the plaintiff by the breach of contract, the court is right. But whichever test is adopted, certain unsatisfactory consequences will follow. The argument against the view that the cost of performance is the correct test is very strong. That view, of course, is based on the notion that the plaintiff ought to be put in a position to do for himself that which the defendant ought to have done. Against that it is urged that this, in effect and indirectly, amounts to very much the same thing as specific performance. If the plaintiff desires and claims the very thing contracted for, he must go for specific performance; and then if the case is one in which equity considers that justice requires this course, and that the rights and interest of the plaintiff cannot be adequately protected without it, equity will order the performance of the contract; but if the plaintiff elects to proceed for damages—in other words, for pecuniary compensation—he can only get the damage to himself pecuniarily estimated. The consequences might otherwise be almost absurd. In theory (though of course in practice it is not often so) the disproportion between the value of the thing contracted for and the cost of its performance might be enormous. It might cost a million to do that which would not be worth a penny when done. And the most convincing argument appears to be that the plaintiff who would recover the million is not bound to apply it to the purpose of carrying out the thing contracted for. He can put it in his pocket. This would be obviously too absurd. In the case under discussion it seemed possible that the building of the wall would be mere waste of money, and that the estate would not be benefited a penny thereby, and that the plaintiffs, therefore, would not think of applying the money recovered to the erection of a wall. It is clear under such circumstances that it would be the height of injustice that they should recover the cost of erecting the wall.

On the other hand, arguments more or less attractive are not wanting in support of the other view. It may be urged that a man has no right to purchase compulsorily, so to speak, the right of breaking his contract at a less sum than it would have cost him to perform it, and so to reap a positive benefit from his breach of contract. If he has a right to do so the obvious result is that, in every case where the pecuniary damage of non-performance is less than the cost of performance, the contractor has the power of breaking his contract with impunity, so far as an action for damages is concerned. In other words, there would in such a case be no effective legal remedy as distinguished from the equitable remedy by specific performance. It may be said that cases may well arise in which, though the breach of contract has not pecuniarily damaged the plaintiff to an amount equal to what it would have cost to perform the contract, yet the plaintiff ought obviously to have damages calculated with reference to the amount which it would cost to put him in the same position as if the contract had been fulfilled. Suppose, for instance, I have a piece of land, and I wish to have built upon it a house of a certain size and shape. A builder contracts with me to build such a

house, but builds a larger or differently shaped house. I may be in just the same, or even a better, position pecuniarily. The land and house as built may even be worth more in the market than the land and house as contracted for. I may have particularly wished for a small house and large garden. The alteration in size may have trenched upon the garden. Of course such a case would be hardly likely to arise, because the builder would not be likely to build a larger or more expensive house than that contracted for, but other cases might perhaps arise involving the same principle. The building owner would seem in justice to be entitled to say, You have not supplied me with the building I contracted for; it is immaterial to me that the one you have built is worth as much or more. In justice you ought to pay what it would cost to alter the building to what was contracted for. Suppose the building owner to have actually employed someone to effect this alteration. Ought not the amount of the bill to be recoverable from the builder?

These arguments have a good deal that is very taking in them, but, on the whole, it seems to us that if a hard and fast rule is to be laid down in favour of one or other of these tests, the sounder and juster view is that where compensation by way of damages is the remedy sought for, the damages must bo estimated by the pecuniary damage done, and that there should be no tertium quid between tho remedy by such compensation and the remedy by specific performance. But we are not quite clear that • it is well that the rules as to measure of damages should be too rigid. We cannot help thinking that, though in general the pecuniary damage ought to be the test, there arc cases in which, the stipulation broken having been a reasonable one, and the plaintiff having been obliged to perform it himself, he ought to be entitled to recover the cost of so performing it, whether or no such cost was equal to the pecuniary difference between his position if the contract had been performed and his position when it was broken. On the other hand, wo cannot help thinking that if, without performing the contract for himself, the plaiutiff proceeds for damages, he ought to be restricted to the pecuniary damage actually caused.

REVIEWS.

CHANCERY PRACTICE.

A Practical And Concise Manual Op The Procedure Op The Chancery Division Op The Hiqk Court Op Justice, Both In Actions And Matters. By Arthur Underhill, Barrister.at-.Law. Butterworths.

This work in onr opinion very well fulfils the expectation which it holds out in the preface, by attaining to something beyond a mere outline, while It lays no claim to be a complete treatise, or to deal with the minnUa of practice. The style is most laudably clear, and the arrangement marks so conspicuously the divisions aud sub-divisions of the subject as to make an index almost superfluous. Though it will naturally be read more by the student than by the practitioner, yet the latter may often find it a useful help to refresh his memory. The parts which treat of the practice in chambers perhaps aroused our interest more strongly than any others: that being a topio upon which information is not abundant or very easily attainable. In expressing the opinion that students will be the chief readers of the book, we can also any with pleasure that in our opinion they will find it very useful.

Some members of the profession attended a privato meeting held at one of the rooms at the hall of the Incorporated Law Society, Chanoerylanp, on Thursday evening last. Mr. F. K. Munton, on the motion of Mr. W. J. Fraskr, C.C, seconded by Mr. V. I. Chamberlain, took the chair. After a long discussion, and a statement of many cases which had come under the personal observation of the speakers, the following resolution was unanimously adopted :—" That the beneficial effect of speedy judgments under order 14 is greatly neutralized by the difficulties and delays to which in many cases plaintiffs are subjected in obtaining from sheriffs and their officers the proceeds of executions, and in the opinion of this meeting it is desirable that the question should be reierred to the society's special Procedure Committee for consideration und report to the council. Further, that a copy of this resolution be forwarded to the chairman of such committee."

According to Kemp's Mercantile Gazette the number of bills of sale registered in England and Wales for the week ending February 18, was 1,028. The number in the corresponding week of last year was 902, showing an Increase of 36, being a nett decrease in 1SS2, to date, of 74.

CORRESPONDENCE.

ACKNOWLEDGMENT OF DEEDS BY MARRIED WOMEN. [To the Editor of the Solicitors' Journal.]

Sir,—The late Lord Chancellor has re-introduced the clauses in the Conveyancing Bill of last year which were eliminated in the Commons. Among these is, I presume, the clause to render acknowledgments no longer necessary. I hope the Law Society and the provincial societies will again oppose this projected change.

There have been cases, to my knowledge, where the married woman has, on full explanation of her position, refused to part with her interest in her property at the request of her husband, and I recently heard a lady of rank express her approval of the present state of the law, on the occasion of her being called upon to make an acknowledgment. Indeed, I have never heard of any objection on the part of a married woman to the propriety of making one. In the interests of married women who may be entrapped by bad husbands into stripping themselves, and with them their children, of, perhaps, their only future source of subsistence, I venture to think the proposal bad aud uncalled for.

A Commissioned

THE MIDDLESEX REGISTRY.
[To the Editor of the Solicitors' Journal.]

Sir,1—Would you, in your next issue, tell us what the Middlesex Registry Bill is, the second reading whereof was, 1 see, by to-day's "Parliamentary Notices," fixed for this evening p

If it is only some question of " officials " it is unimportant, but if it is a remodelling of the whole concern, which is badly wanted, I do hope it has been based somewhat on the lines of the new general registration which I suppose will before long be enacted. If it were so done the experiment in one county would be a useful experience. T. P. Y.

London, Feb. 20.

[The Bill was not in print up to the time of our going to press.— Ed. S. J.]

CHANCERY ArPEAL DEPOSITS. [To the Editor of the Solicitors' Journal.] Sir,—Having occasion recently to draw up an order made in 1874 on appeal from the Court of Chancery for the return of an appeal deposit, I was surprised to find that there is as much as £2,500 still standing to the appeal deposit account in the books of the Chancery Paymaster. What are the one hundred and odd solicitors about who are each of them content to leave £20 in court which may be had for the asking? H. It. Chancery-lane, Feb. 23.

The Tim--* on Wednesday, commenting on the report of the Committee on Procedure of the Incorporated Law Society, says that, "regarded as a whole, the proposals are conceived in the belief that what is tor the good of the public is, in the long run, good for solicitors. The committee do not make an empty boast when they say 'they thoroughly recognize that the interests of the public and of the profession are the same—viz., to obtain a competent judicial decision at the least expense and in the shortest time possible.' We should like so-called law reformers who are fond of carping at lawyers and broaching ofi'tiand amendments to point to any efforts at amateur legislation so thorough and careful as this report. Solicitors may refer to it with pride as evidence of the spirit of enlightenment to be found in their ranks. . . . The committee's report - a document which a thoroughgoing law reformer such as Bentham might read with approval—will tend to strengthen the confidence reposed by the public In the body of solicitors;"

Last Thursday (says the Calcutta Correspondent of the Times, telegraphing on the 19th iust) the Legislative Council, in spite of the protests of the Press and the generally adverse opinion of the public, passed two more of the Codifying Bills—viz., those relating to the transfer of property and easements. The first-named measure is applied to the whole of India, except the Punjab and British Burmah, bat power is reserved to the local Governments to extend it to those provinces by notification. It is also provided that nothing in one of the most important chapters of the Act shall be deemed to affect any rule of the Hindoo, Mahomedan or Buddhist laws. It follows, therefore, that the application of the Act will be very partial ; but that of the other, the Easements Act, will be still more partial. That measure has been rejected by every administration in India, except those of Madras, the Central Provinces, and Coorg; and the Act, therefore, applies only to these provinces. It waa proposed to Insert in this Act also a clause authorizing the other local Governments to extend it to their respective territories by notification, but on the motion of the Lieutenant-Governor of Bengal this was omitted, so that further legislation and a full public discussion will be necessary before any wider application can be given to the new code. This novel system of passing and applying to remote corners of the Empire codes which most of the local Governments, presumably the best judges of the needs of their respective provinces, have declared to be unnecessary or unsuitable, is one which can hardly be too strongly condemned.

CASES OF THE WEEK.

AppealTime —refusal To Admit Claim By Creditor In AdministraTion Action.—In a oase of Fordham v. Chiffctt an application was made to the Court of Appeal, on the 18th inst., for an extension of the time for appealing under the following circumstances. The aotion was for the administration of a testator's estate, and judgment for administration had been given. A creditor for a large nam had carried in a claim nnder the judgment, and his claim had been refused by the jndge after a fall argument in court. The applicant's oounsel stated that, when a creditor's olaim to prove in an administration aotion is refused, it is not the practice to draw np any formal order, bnt the result of the refusal ia afterwards embodied in the certificate of the chief clerk. Before the Judicature Act it was t h>> practice, if a creditor wished to appeal from snoh a refusal, for him to wait till after the certificate had been made, or else to get a separate certificate made as to his own claim, and then to apply pro forma to the judge to vary the certificate, and to appeal from his refusal. As, however, the refusal by the judge to admit the claim was an interlocutory order, and such an order must now be appealed from within twenty-one days, the applicant feared that, if he waited for a certificate, he wonld be too late to appeal, inasmuoh as the twenty-one days from the judge's refusal to admit the olaim would f xpire on the 21st inst. Therefore an extension of time was asked for. The court (jessel, M.R., and Brett and Holker, L.JJ.) held that the refnsal might he appealed from without any formal order being made, and, therefore, no extension of time was needed, for the applicant oould give notioe of appeal at once.—Solicitors, Home $ Birketl.

PracticeAt-plicatioh For Stay Of Execution Pending AppealApplication To MasterOrd. 58, Hr. 16, 17—Ord. 54, R. 2.—In a case of Ileiron v. The Metropolitan Bank, an application was made to the Court of Appeal on the 15th inst., for a stay of execution under a judgment pending an appeal. The action was ia the Queen's Bench Division, and the application b»d been made in the first instance to a master ia chambers, and had been refused by him, hut no application had been made to a judge or to a divisional court. It was contended that, notwithstanding that rule 17 of order 58 says that such an application " shall be made in the first instanoe to the court or judge below," it was proper to come at once from the master to the Court of Appeal, because rule 2 of order 54 provides that in the Queen's Bench Division a master "may transact all such business and exercise such authority and jurisdiction in respect of the same as under the Act may he transaeted or executed by the judge at chambers," with certain exceptions which do not include an application for a stay of execution. The court (jessel, M.R., and Brett and Holker, L.JJ.), however, held thai the applicant ought, before coming to the Court of Appeal, to have renewed the application before the coort below or a judge. They said that rule 2 of order 54 did not put the master in the position of the court or a judge for the purpose of rule 17 of order 58. The application was, therefore, refused.

Puoor In BankruptcyClaim Arising Out Of A FelonyCompounding A FelontStifling A Prosecution.—In a case of Mx parte Leslie, before the Court of Appeal on the 16th inst., the question arose whether a proof tendered in a bankruptcy was liable to objection on the ground that the claim arose ont of a felony, or that the claimant had entered into an agreement not to prosecute the bankrupt for a felony. The bankrupt had been allowed by his bankers to overdraw his current account with tbem, on his depositing with them as security some bills of exchange, drawn by him upon, and, apparently, accepted by, by another firm. Soon after the deposit had been made, and the bankrupt had overdrawn his account to a ronsiderable extent, the bankers discovered that the acceptances of the deposited bills were forgeries. The bankers thereupon commnnioated with the bankrupt, and ultimately he handed to them some joint and several promissory notes of himself and his father for sums corresponding to the amounts of the bills, or thereabouts, and the bankers returned the bills to the bankrupt. The adjudication of bankruptcy took place some months afterwards. In the bankruptcy the bankers claimed to prove for the balance due to them on the bankrupt's current account, stating in their affidavit of proof that they held the promissory notes as security, but they did not claim to prove on the notes. The trustee rejected the proof, cn the ground that the claim arose out of a felony, and that the bankers, when they received the promissory notes and gave up the bills, had entered into ail agreement not to prosecute the bankrupt for felony. Ho had since the bankruptcy been prosecuted and convicted on a charge of forging the acceptances tot some other bills of exchange. The court (jessel, M.R., and Brett and Holkke, L.JJ.) held that the proof ought to be admitted. Jessel, .M.K., said it arose out of an ordinary contract for a loan, and, even if the alleged corrupt agreement had been entered into, it conld not destroy the antecedent contract to repay the loan. A line of authorities had been cited which seemed to show that, when a claim to prove in a bankruptcy arose out of a felony, the proof could not be admitted until either the claimant had prosecuted the felon, or he had been prosecuted by some one else, or a prosecution had become impossible. 'Whether that was no or not it was unnecessary to consider, for those authorities had no application to the present case.—Solicitors, S. Clwpman; Morgan, Son, A Gilks.

Realization Op Bankrupt's Estate Contingent Reversion Discretion Of Trustee Bankruptcy Act, 1869, s. '20. — In a case of Ex parte Lloyd, before the Coort of Appeal on the 16th Jmt., a question arose as to the discretion of a trustee in bankruptcy or liquidation as to the realization of tho estate of the bankrupt or

debtor. The creditors of a debtor in February, 1877, resolved on a liquidation of his affairs by arrangement. At the time of the Sling of the petition the debtor was entitled to a sum of £750 contingently on his surviving his father, and he had no other assets. In March, 1881, the trustee oalled a meeting of the creditors to consider an offer which had been made for the purchase of the debtor's contingent reversionary interest, and the creditors passed a resolution "that the reversion be still held under the consideration of the trustee, and that he be, and is hereby, authorized to exercise his discretion as to accepting a private offer, or selling by public auction, at such time as he may deem to be needful." A creditor who dissented from this resolution, and alleged that it had net been passed bona fide, applied to the court for an order that the trustee should, within fourteen days, realize the estate of the debtor, and in particular should sell the reversionary interest by publio auction or private contract. The trustee deposed that the debtor's father was in his seventy-ninth year, and said that, in his opinion, and that of he majority of the creditors, the reversionary interest thould not be immediately sold. The registrar refused to interfere with the trustee's discretion, and the Court of Appeal (jessel, M.R., and Bbett and Holker, L.JJ.) affirmed the decision. Jessel, M.R., said that section 20 of the Bankruptcy Act, 1869, gave a discretion to the trustee as to tun management and distribution of the bankrupt's estate, subject to the resolution of the creditors. Of course, it was his duty to sell the bankrupt's property; but, subject to a resolution of the creditors, he was entitled to exercise bis own discretion as to the time and mode of sale. Ia the present case the trustee, in the exercise of bis discretion, did not wish to sell the contingent reversionary interest now, and a creditor was entitled to apply to the court only on the ground that the trustee had not exercised his discretion bona fide. The court would not interfere unless the trustee was doing that which was so utterly unreasonable and absurd that no reasonable man would thus act. It was sufficient to state the proposition to show that it was not so in the present case. As the bona fides of the creditors' resolution was disputed it could not be referred to, though the court could not help seeing that there was such a resolution.—Solicitors, W. J. Collens; Plunkelt & Leader.

ContemptBreach Of InjunctionRefusal To CoMBrr—Right Of Appeal.—In a case of Jarmain v. Chatttrton, before the Court of Appeal on tbe 17th inst., the appeal was from the refusal of Bacon, V.C., to make an order of committal for the breaoh of an injunction, and it was contended that, where a judge of first instance has refused to commit for contempt, the Court of Appeal would not interfere with the exercise of his discretion, reliance being placed on tbe case of Ashtcorth v. O'ttram (25 W. R. 896, L. R. 5 Ch. D. 943). The Court of Appeal (jessel, M.R., and Brett and Holker, L.JJ.) held that no such rule existed. Jessel, M.R., said that Ashworth v. OtUram was not intended to alter the practice which was in force before the Judicature Acts. It was intended only as a decision that under the circumstances of the particular case an appealconld not be entertained.— Solicitors, Scott, Jarmain, <fc Trass; H. W. Chattertin,

Railway CompanyCompulsory PurchaseNotice To Treat—Mined And MineralsRailways Clauses Consolidation Act, 1846, s. 77.—In a case of Erring ton v. The Metropolitan District Railway Company, before the Court of Appeal on the 17th inst., a question arose npon tbe construction of section 77 of the Railways Clauses Act, 1845, whioh provides that " the company shall not be entitled to any mines of noal, ironstone, slate, or other minerals under any land purchased by them, except only such parts thereof as shall be necessary to be dug or carried away or UBed in the construction of the works, unless the same shall have been expressly purchssed; and all suoh mines, excepting as aforesaid, shall be deemed to be excepted out of the conveyance of such lands, unless they shall have been expressly named therein and conveyed thereby." The company had given the plaintiff a notice to treat for some land which they required for the purposes of their undertaking. The value of this land was afterwards assessed by an arbitrator, and a conveyance of the lsnd was executed by the plaintiff to the company, no express mention being made of the mines and minerals under tbe land. The company afterwards served the plaintiff with a second notice to treat for the mines and minerals, and the action was brought to restrain the company from proceeding under this notice. Hall, V.C., granted a perpetual injunction, being of opinion that tbe company had no power to acquire the mines and minerals compulsorily, but that they could only do so by agreement. This decision was reversed by the Court of Appeal (jessel, M.K., and Brett and Holker, L.JJ.), who held that under the Lands Clauses Aat the company would have power to take the mines and minerals compulsorily, and that this power was not cut down by section 77 of the Railways Clauses Act, which was intended for the benefit of railway companies, to save them from the necessity of purchasing mines which they did not require. There was nothing to prevent a railway company from sorving an owner with several notices to treat, and it made no difference whether the lands, in respect of which the notices were given, were severed by a horizontal or by a vertical line. In this case there was the evidence of the company's engineer, on which the court would rely, that there were no minerals except gravel and clay, which, if ever worked, could only be worked by disturbing the surface, and so letting down the works. The company chose to guard against such a possibility, and their view was quite reasonable, and proper.—Solicitors, Baxters Co. A. F. ik if. W. Twcedie.

Winding UpLife Assurance CompanyReduction Of ContractsSchemeDate At Which To Take EffectLife Assurance Companies Act, 1870 (33 & 34 Vict. C. 61), s. 22—Companies Act, 1862, 8. 84.—In a case of In re T/ie Great Britain Mutual Life Assurance Society, before tbe Court of Appeal on tho 8th inst, a question arose upon the construction of the provisions contained in tho Life Assurance Companies Act of 1870, for

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