HIGHWAYS.

The

THE provisions of the Highways and Locomotives Act, 1878 (41 & 42 Vict. c. 77), s. 23, give rise to questions of a class which are always very difficult, whether they arise upon the construction of a statute or with regard to the doctrines of the common law. The question how far the meaning of such terms as "reasonable," " extraordinary," and such like are matter of law, and how far they are matter of fact, is always extremely difficult. section enacts that "when by the certificate of their surveyor it appears to the highway authority that, having regard to the average expense of repairing highways in the neighbourhood, extraordinary expenses have been incurred by such authority in repairing such highway, by reason of the damage caused by excessive weight passing along the same, or extraordinary traffic thereon, such authority may recover in a summary manner from any person by whose order such weight or traffic has been conducted the amount of such expenses as may be proved to the satisfaction of the court having cognizance of the case to have been incurred by such authority by reason of the damage arising from such weight or traffic as aforesaid." This enactment seems at first sight straightforward enough, but, like many enactments the language of which seems plain and easy, great difficulty arises in the application of it. "Extraordinary traffic is a very difficult matter to define. The elements that constitute extraordinariness are very diverse. It is clear that some legal limitation must be put upon the meaning of the word with relation to the subject-matter of the enactment. A man might drive a wagonload of monkeys along the road. That, in one sense, would be extraordinary traffic, but the fact that the freight of the wagon was monkeys, obviously makes no difference per se having regard to the subject-matter and purview of the section. Two cases have already been decided on the section, which we have previously briefly discussed, but which deserve a fuller treat

ment.

It was

In Lucas v. Lord Aveland (L. R. 5 C. P. D. 211), the question arose whether expenses incurred in repairing damage occasioned by the passage of a traction-engine drawing two wagons for the carriage of materials and goods used for ordinary purposes on the appellant's estate, were recoverable under the Act. It was proved that the combined weight of the tractiorengine and wagons when coaled and loaded exceeded twenty-four tons, but the weight of the engine was less than that allowed by the 28th section of the Act. contended for the appellant that the weight could not be regarded as "excessive weight" within the 23rd section, because the weight was less than that allowed by the Act, and that the traffic was not 66 extraordinary traffic," because the engine and wagons were used for the carriage of goods and materials used for ordinary purposes on the appellant's estate. The court decided against these contentions. It seems obvious that there was not much in the contention that the weight was not excessive because the Act did not forbid the use of an engine of the weight in question. It is obvious that there are weights so excessive that it may be desirable to forbid them altogether in the interests of the public, but it does not follow that persons who use engines of less weight, but still of excessive weight, ought not to pay for any damage occasioned to the highway. The other contention-viz., that this was not extraordinary traffic-does not, at first sight, seem material, as the words are in the disjunctive. But the appellant's contention seems to have been that "extraordinary traffic must mean traffic for some extraordinary or unusual purpose, having regard to the ordinary use of the roads-as, for instance, if a man had an agricultural show on his ground, or constructed some gigantic and unusual building, and, in consequence, brought over the roads unusual traffic. With regard to

tended-e.g., some extraordinary quantity of traffic caused by the carriage of materials for the building of a mansion, but that the expressions weight "and "traffic" were used with reference to the road itself, weight and traffic which are abnormal beyond the ordinary traffic on the road. We confess that we have some difficulty in apprehending the exact effect of the language which the learned judge is reported to have used, and we are much puzzled to know what the elements and limits of the extraordinariness contemplated by the section may be.

The other case to which we refer is Wallington v. Hoskins (29 W. R. 84; L. R. 6 Q. B. D. 206). It would rather seem from that case that you cannot consider the question of "excessive weight" apart from that of "extraordinary traffic." There the appellant was the owner and occupier of stone quarries in the district, and stone was conveyed in heavy loads over the highways, so as to make the cost of repairing them much larger than if they had been subject to ordinary agricultural traffic; but it was found that the stone traffic was a recognized business in the neighbourhood, and the wagon-loads of the usual weight in such traffic. The justices found on these facts that the traffic was not extraordinary; secondly, that the weights excessive; and, thirdly, that the expenses were extraordinary; and, consequently, decided against the appellant. The court, on appeal, held that the first finding was right, and that on this finding the appellant ought to succeed. It would seem to follow

were

from this that the weight cannot be excessive if the traffic is not extraordinary-i.e., if the weights are what are usual in the ordinary use of the road. The converse does not follow-viz., that because the weight is not excessive the traffic is not extraordinary.

It seems to us obvious that the decision of the justices in this case, if allowed to stand, would have given rise to great difficulties, though it does not seem to us to have involved an absurdity. It is conceivable that in one sense of the term the weights may be excessive though the traffic is not extraordinary. The justices may think that the persons who carry on the stone trade in the district are in the habit of using too heavy wagons, and it would be reasonable that they should use more waggons of less weight or else pay for the damage done. But it is clear that such a construction would have involved most difficult and uncertain questions-an inquiry in relation to all sorts of traffic, whether the weight of the vehicles used in the particular traffic is reasonable, and so forth. There is the possibility, as it is, of considerable hardship to such persons as own properties in relation to which the heavier traffic is carried on. Mines and quarries and such like properties are rated to the highway rate in proportion to their rateable value. The rest of the parish derives an increased rate from the very traffic in respect of which they seek to recover the damage done, and probably benefit from it in other ways. At the same time we have some difficulty with regard to the logical result of the two cases we have referred to. Suppose all the quarry owners in the district had taken to using vehicles for carrying their stone as heavy as that in Lord Aveland v. Lucas, it would seem to follow from Wallington v. Hoskins that, as this would not be extraordinary traffic, it would not be excessive weight. We do not think that we misrepresent the judgment in Wallington v. Hoskins. The Chief Justice there says, "It seems to me that the moment the justices have found this is an ordinary and recognized industry of the place, and that it is carried on in the ordinary and recognized mode in which such industry is carried on, the weights are no longer excessive." Perhaps, however, the question we suggest is rather speculative, because generally the usual sort of vehicles in which the ordinary and recognized business of a place is carried on will not be of such excessive weight as to cause much

hardship to the ratepayers liable to the repair of the

roads.

A nice question may, and probably will, arise in future --viz., whether merely greater frequency in the use of a road than usual may amount to extraordinary traffic. The ratepayers in a parish principally rural or residential, who only occasionally use the roads with one or two vehicles, may urge that one person who owns a mine in the parish and has a constant succession of carts going along the roads with the produce thereof, is using the road for extraordinary traffic within the section. We foresee great difficulties in deciding such a case as a matter of law. If greater frequency of use can constitute extraordinary traffic, then how much greater frequency? It is a mere matter of degree. A large tradesman who has many carts always driving about on business, or an omnibus proprietor, uses the road much more than a private gentleman with his carriage. A mine owner who uses the roads with a constant string of coal carts uses them more frequently than the tradesman or the omnibus proprietor. Where is the line to be drawn?

THE CONVEYANCING BILL.

IV. AS TO MORTGAGES AND TRUSTS. AMONG the powers given to a mortgagee by clause 23 of the Bill, if and so far as a contrary intention is not expressed in the mortgage deed, and which he is to have "to the like extent as if they had been in terms conferred by the mortgage deed," is "a power, when the mortgage money has become due, to appoint a receiver of the income of the mortgaged property or of any part thereof." Clause 28, which defines the powers and duties of the receiver, provides, however, that "a mortgagee entitled to appoint a receiver under the power in that behalf conferred by this Act, shall not appoint a receiver until he has become entitled to sell under the power of sale conferred by this Act." Now, the power conferred by the Act (clause 23) is to sell "when the mortgage money has become due," but the power is not to be exercised (clause 24) unless and until one of the three events therein mentioned has happened. Surely this is very cumbrous drafting. Why not in clause 23 confer at once a power, when the mortgagee is entitled to sell, to appoint a receiver ? The provisions of clause 28 as to the powers and duties of the receiver follow in general the provisions of the ordinary modern receivership clauses, and many of the provisions of the clause are transplanted, with modifications, from Lord Cranworth's Act, but that Act provides that a mortgagee may, after one year from the time at which the principal money has become payable, appoint, or obtain the appointment of, a receiver; and this provision has been thought, as Mr. Davidson says, to be unduly stringent on the mortgagor, in subjecting him to the liability of having a receiver appointed if the mortgage money remains owing for a year beyond the stipulated time, although there is no real default. The effect of the provisions of the present Bill is to enable the receiver to be appointed only on default.

Clauses 30-33 relate to an attempt to provide short statutory forms of mortgage, transfer, and re-conveyance. The form of statutory mortgage given in the schedule is contained in about nine lines, but it might easily be cut down still further, and with advantage to clearness and propriety of expression. "This Indenture, made by way of statutory mortgage," ought clearly to be, This Indenture of statutory mortgage made," &c. Why should A. convey "as mortgagor and as beneficial owner"? Why should the principal sum of £ be further described "as the mortgage money"? In this deed there are to be implied covenants for payment of the mortgage money and interest, and a proviso for redemption. Forms of statutory transfer are also given, in each of which by virtue of the statute

something is to be implied which is not expressed, but in the form of statutory re-conveyance (so far as appears) nothing is to be implied which would not be equally implied after the passing of the statute in an ordinary deed of re-conveyance. All that is said is (clause 33) that "a re-conveyance of a statutory mortgage may be made by a deed expressed to be made by way of statutory re-conveyance of mortgage." If this means that a re-conveyance of a statutory mortgage can only be made in this form, then extreme inconvenience will ensue, for re-conveyance by indorsement will cease; the form provided being only for re-conveyance by separate deed. If the form given is not to be the only form of re-conveyance of a statutory mortgage, then what possible advantage will the mortgagor derive from the use of the statutory form? Any solicitor could prepare him a shorter indorsed deed. When there are no special statutory incidents to be annexed by a reference to the statute, what can be the object of commencing "This Indenture, made by way of statutory re-conveyance of mortgage." Quære, does the draftsman think it is the "mortgage" which is re-conveyed or the mortgaged estate ?

Clause 34, which is to apply only in cases of death after the commencement of the Act, proposes to extend and make more workable section 4 of the Vendor and Purchaser Act, 1874 (which is to be repealed). It is pro. vided that where an estate of inheritance in any hereditaments is vested on any trust in any person solely, "the same shall, on his death, notwithstanding any testa mentary disposition, devolve to and become vested in his personal representatives from time to time, in like manner as if the same were a chattel real vesting in them or him, .. and, for the purposes of this section, the personal representatives for the time being of the deceased shall be deemed in law his heirs and assigns, within the meaning of all trusts and powers." The new provision, it will be observed, is compulsory as regards all cases of death since the Act. It does not appear whether the provision is, or is not, to be ap plicable to the estate of a mortgagee in copyholds to which he has been admitted.

With regard to trustees and executors some useful little amendments of the law are proposed. In the first place, a power of appointing new trustees is provided, following that in Lord Cranworth's Act, but supplying the omission of the remaining out of the United Kingdom for more than twelve months in the statement of the grounds for appointing a new trustee; also providing that on an appointment of new trustees, the number of trustees may be increased or reduced, and other small amendments.

The next clause repairs a flaw in that part of section 27 of Lord Cranworth's Act which provides that every trustee appointed by the court shall have the same powers, authorities, directions, &c., as if he had been originally nominated a trustee by the instrument creating the trust. The new clause (36) provides that every trustee appointed by the court shall, as well before us after the trust property becomes vested in him," have the same powers, &c.

66

The next clause is intended to dispense with the conveyance of trust estates to new trustees. It is provided that "where a deed by which a new trustee is appointed to perform any trust contains a declaration by the appointor to the effect that any estate or interest in any land subject to the trust, &c., shall vest in the persons who by virtue of the deed become and are the trustees for performing the trust, that declaration shall, without any re-conveyance or assignment, operate to vest in those persons, as joint tenants and for the purposes of the trust, that estate, interest," &c. The case of the legal estate in copyholds is excepted from the clause.

The next provision (clause 38) renders unnecessary he insertion of the clause as to trustees for sale selling subject to special conditions, &c.; and clause 39 extends the receipt clause in Lord Cranworth's Act to

receipts for any money, "securities, or other personal property or effects payable, transferable, or deliverable," &c. Clause 40 relates to the power of executors or trustees to compound debts, &c., and clause 41 enables a power or trust vested in two or more executors or trustees to be exercised by the survivor or survivors of them unless a contrary intention is expressed in the instrument creating the trust.

CORRESPONDENCE.

SECOND MORTGAGES.

[To the Editor of the Solicitors' Journal.] Sir,-"Second mortgages" form so important a branch of a conveyancing solicitor's business that I think I am not needlessly trespassing on your space in calling attention to the decision of Mr. Justice Fry in a case of Cockburn v. Edwards, reported 29 W. R. 136.

The facts of this case were, shortly, that in 1872 A. purchases a house for £600, obtains a first mortgage of £450, and to complete the purchase an additional sum of £50, from his solicitor, B., who takes a second mortgage to secure this amount. This second mortgage contains no clause requiring notice to be given before exercising the power of sale. Matters continue in statu quo for six years, the interest, no doubt, on both mortgages being paid. On the 24th of December, 1877, B. informs A. that he has an offer of £630 for the house, and as he wants his money, states that he shall sell at that rate if A. will not do so. On the 29th of December, without further notice to A., B. enters into a contract to sell the house at £630. At this time A. owes B. a considerable sum of money beyond that secured by the second mortgage. When he discovers the sale of the house, A. waits until he can pay B. what he owes him, and then brings an action for damages for selling the house without notice. At the hearing there was a conflict of evidence as to whether or not the second mortgage was properly explained to A. when he executed it. Mr. Justice Fry decided in favour of the plaintiff, and gave him as damages

1. The costs incurred by A. by reason of the wrongful sale.

2. His costs in obtaining a similar investment.

3. The difference between his costs of the action as between solicitor and client, and as between party and party.

4. The increased value of the property.

These damages were given on the ground that A. had no explanation of the mortgage, and no notice of the intended sale, the onus of proving these facts lying on B.

Now, Sir, it seems to me that if this decision is to stand, it cannot be otherwise than most inequitable and most restrictive of that full power of dealing with property which it is the true policy of the law to further. I am not speaking so much of this particular case, where there may be other facts not known to us justifying the decision, but of the general principles laid down with respect to second mortgages. It seems to be assumed that a second mortgage does not differ materially from a first mortgage, and that there is the same necessity to restrict the rights of the mortgagee in the one as in the other. This, however, should by no means be the case; the dangers of dealing with an equity of redemption are so great that a second mortgagee should be provided with far more extensive powers than are necessary for the protection of the first mortgagee; and, amongst these powers, should be one enabling a sale to be made without notice to the mortgagor. The second mortgagee's interest may be injured in so many ways, for instance, by the first mortgagee consolidating his security with others of the existence even of which the second mortgagee is ignorant; by his allowing his interest

to get in arrear; by his giving notice requiring payment of the principal, and on default selling (there being no obligation on his part to give such notice to the second mortgagee); by a subsequent incumbrancer tacking his charge to the first mortgage, and so cutting out the second mortgagee; and in so many other ways, that the remedies accorded to our friend the second mortgagee should be as extensive as possible. In the concise edition of Davidson's Precedents, the clause requiring notice to be given before exercising a power of sale in first mortgages is taken out, the learned editor stating that as the covenant to repay is unconditional and can be sued on at once, there can be no advantage in inserting the clause. Much more, then, should it be unnecessary in a second mortgage.

In the case we are discussing it may be said that the second mortgage being made to the solicitor who was then acting for the mortgagor, more care than ordinary should have been bestowed in explaining the powers under the second mortgage, and in seeing that the mortgagor perfectly understood the matter. No doubt this would be so; but then the decision goes much too far in saying that where there is a conflict of evidence the unus of proving the complete explanation of the power is thrown upon the solicitor, when it is usual and customary not to insert a clause requiring notice. Such a clause is never, except by special arrangement, inserted in a second mortgage. I can answer for this from my own experience, both as respects mortgages to bankers and to other persons. In the town where I practise considerable building operations have been going on for years past. A builder takes land, has advances made to him, and when the houses are finished obtains a mortgage to pay off the advances. Commonly a mortgage cannot be obtained sufficient to cover the whole amount due, and consequently the balance has to be found by a third person. This is generally the builder's solicitor. The matter then stands thus: The builder has been repaid the expense of building, and he has a certain interest, which, if his speculation turns out well, will pay him handsomely. The solicitor mortgagee, on the other hand, is exposed to all losses incurred by any depreciation of the property, and has no participation, in any event, in the profits.

This security, as I have pointed out, is a very hazardous one, and in many respects may be likened to a bill of sale requiring unusual remedial powers. This being so, we are told that a clause requiring six months' notice before exercising the power of sale should be inserted, or that the fact that such clause was omitted must be shown to have been clearly explained to the mortgagor at the time, the evidence to this effect having to be given six years after the completion of the mortgage. This is most unreasonable, considering that it is not usual to insert such a clause, and that persons borrowing on second mortgage know that they must place themselves more or less in the hands of the mortgagee. In Cockburn v. Edwards the first mortgage was beyond the usual two-thirds limit. There is then a second mortgage to enable the borrower to enter into a speculation, upon which he cannot lose more than £100, but which, if he has made a good purchase, may put a considerable sum in his pocket. The lender is exposed to all the casualties incident to second mortgages for six years, and yet because he insists on having his money back then, and sells for a higher price than was originally given, he is mulcted in damages to an extraordinary extent under four different heads, including the further increased value the property might have attained to if the sale had not taken place.

I have carried out several hundreds of second to myself and clients; I have mortgages both never inserted a clause requiring notice, and I have not particularly drawn the attention of the mortgagor to the omission of such a clause. I have now to hesitate before venturing to lend more money on second mort. gages; I cannot insert the clause because my security will then be insufficient, and I do not see that any

mode of always being prepared with evidence to show a complete explanation to the mortgagor is feasible. A statement in my diary, or even a special attestation, would be of little avail if the whole onus is thrown upon me. Judges, ignorant of the practical difficulties underlying a question, are too fond of laying down abstract rules. It seems to have been assumed that a mortgage is the same whether it be first or second, and that the latter should contain a clause prejudicing it as a security, even though our best precedent book declares the clause unnecessary in the former.

One more observation. A second mortgagee is very much in the position of a banker who has allowed his customer to have an overdrawn account, though generally the banker's security is the best. He can require payment of his money at any moment, the mortgagee is only to do so after notice!

THE CONVEYANCING BILL.

VIGILANS.

[To the Editor of the Solicitors' Journal.] Sir,-In continuing your remarks on this Bill, will you bear in mind, if the Bill overlooks it, the custom existing in several districts of granting land in fee, in consideration of perpetual fee-farm rents or rent-charges? The grantee, in many cases, divides his plot into several parcels, and grants each for a similar rent-charge, payable to himself in fee; thus sccuring to himself second or improved rent-charges, and paying out of them the original overriding rent-charge. It is not uncommon to find that a small piece of land is held subject to the payment of a rent-charge, but that it is also subject, with other land, to several previous rent-charges, against which previous owners have received covenants of indemnity.

The deed creating each rent-charge contains covenants, and a power of absolute re-entry, similar to those contained in building leases, and the persons having land subject to such rent-charges, covenants, and provisoes as much need, and are as much entitled to, protection as those whose land is of leasehold tenure.

The custom was properly provided for by 22 & 23 Vict. c. 35, s. 28, but was overlooked in framing the last Bankruptcy Act, and the result in the latter case is shown by the recent case of Re Mercer & Moore.

A COUNTRY SOLICITOR.

CASES OF THE WEEK.

DEBTOR'S SUMMONS-STAY OF PROCEEDINGS-PENALTY -CONDITIONAL AGREEMENT TO ACCEPT LESS THAN FULL AMOUNT OF DEBT REVIVOR OF ORIGINAL DEBT ON DEFAULT-WAIVER-BANKRUPTCY ACT, 1869, s. 7.-In a case of Ex parte Burden, before the Court of Appeal on the 10th inst., a question arose as to the propriety of an order staying the proceedings under a debtor's summons. A judgment for £344, damages and costs, bad been obtained against the co-respondent to a petition for divorce. A debtor's summons was issued by the petitioner to enforce payment, and an agreement was then entered into on the following terms: -The debtor handed to the creditor a cheque for £50, and three bills of exchange for £50 each, drawn by the debtor upon, and accepted by, a third person, and payable respectively in three, six, and nine months, and the creditor agreed that, on payment of the cheque and bills in due course, and on his having a receipt given to him for a debt which he owed to a brother of the debtor, he would give the debtor a receipt in full satisfaction of the damages and costs. But, in default of payment of any or either of the cheque and bills, the creditor was to be at liberty to proceed for the full amount of the damages and costs. The cheque and the first two bills were paid in due course. The third bill was, in consequence of the acceptor having forgotten to provide his bankers with funds to meet it, dishonoured at maturity, but it was paid to the creditor a few days afterwards on his serving the acceptor with a writ. The creditor then issued

a debtor's summons against the debtor for £144, the balance of the original debt, after giving credit for £200, the amount which had been received by means of the cheque and the bills. The debtor denied that he was indebted, and applied to the court to dismiss the summons. The registrar made an order staying the proceedings under the summons, pending the trial of an action to determine the validity of the debt. In the Court of Appeal it was contended on behalf of the debtor that the provision for the revivor of the original debt on default in making the stipulated payments was in the nature of a penalty, and that, under the circumstances, the debtor ought to be relieved from it. And, moreover, that, by electing after the default to sue the acceptor for the £50, and to recover payment from him, the creditor had waived his right to insist on payment of the original debt in full. The Court of Appeal (JAMES, COTTON, and LUSH, L.JJ.) overruled both of these objections, and held that the registrar ought to have refused the application to dismiss the summons. JAMES, L.J., said that the doctrine of penalties had never been applied and ought not to be applied to a case of this kind. The creditor was willing to accept less than his debt on certain conditions. The conditions had not been fulfilled, and he was remitted to his original remedy, and the debtor must pay what he was originally bound to pay. COTTON, L.J., agreed that the doctrine of penalties had no application. The ordinary clause in a mortgage, providing for a reduction of interest in case of punctual payment, was analogous. LUSH, L.J., said that the unpaid balance of the original There was debt would constitute a good debt at law. nothing to prevent the agreement which was made from being carried out. If it had been duly carried out no action could have been maintained for the balance of the original debt, but if default was made in the performance of any of the conditions, no plea could have been framed in answer to an action for the balance. It could only have been said that there was an accord, not that there was an accord and satisfaction. There was no legal defence. Was there any equitable ground for relief? A penalty was something which a debtor was to pay, over and above his original liability, as a punishment. In the present case the debtor was only to pay his original debt. It was said that the creditor had lost his right by suing the surety. That supposed that he was put to an election. But, in his lordship's opinion, there was no case of election, and the creditor was entitled to pursue all his remedies, against the surety as well as against the principal debtor.-SOLICITORS, Brownlow, & Howe; Stopher & Rundle.

TIAL

OF

BILL OF SALE-ACT OF BANKRUPTCY-ASSIGNMENT OF WHOLE PROPERTY TO SECURE EXISTING DEBT-SUBSTAN EXCEPTION-TENANT-RIGHT-CONTEMPLATION FURTHER ADVANCES.-In a case of Ex parte Dann, before the Court of Appeal, on the 10th inst., the question arose whether the execution of a bill of sale was an act of bankruptcy, on the ground that substantially the whole of the grantor's property was assigned by the deed as security for a pre-existing debt. The grantor was a farmer, and it was admitted that the deed comprised all his property, with the exception of his tenant-right under his agreement with his landlord, which was in express terms excluded from the deed. The agreement with the landlord provided that, on the determination of the tenancy (which was a tenancy from year to year), the tenant should be paid by the landlord for fallows, seeds sown, and dung made during the last year of the tenancy, hay, straw, &c., the produce of the last year, and tenant's fixtures, according to a valuation to be made by two valuers or their umpire. But it was also provided that, on the expiration of the tenancy, the landlord should be entitled to an allowance from the tenant for any breach of the agreement, to be determined, in the same way, by valuation, and the amount to be deducted from the tenant's valuation. The bill of sale was executed on the 13th of November. It was made to secure the existing debt and any further advances which the grantee might make to the grantor, but it was provided that the total principal moneys to be secured should not exceed £1,000, and the deed was stamped sufficiently to cover £1,000. There was, however, no covenant by the grantee to make any further advances, and no parol agreement on his part to do so. As a matter of fact, he did, shortly after the execution of the deed, advance to the grantor sums, amounting in the whole to £70, to enable him to pay the weekly wages of his workIn January, the grantor was adjudicated a bankrupt.

men.

Bacon, C.J., declared the bill of sale void as against the trustee in the bankruptcy. On the appeal, it was contended that the tenant-right formed a sufficient exception from the deed, and, also, that there was sufficient evidence of an intention to make further advances, and that this, coupled with the actual making of further advances, would support the deed, reliance being placed on Ex parte Winder (24 W. R. 685, L. R. 8 Ch. D. 290, 560), in which it was held that an assignment of the whole of a grantor's property to secure an existing debt and further advances was not an act of bankruptcy, though the deed contained no covenant by the grantee to make further advances, there having been a parol agreement to do so which was recited in the deed. The Court (JAMES, COTTON, and LUSH, L.JJ.) affirmed the decision of the Chief Judge. JAMES, L.J., said that the exception of the tenant-right was a merely nominal excep. tion; the tenant-right was not a thing of any present value. It was merely a possible and contingent right of the tenant to receive some money at the end of his tenancy, and did not form a substantial exception from the deed. COTTON, L.J., agreed in this conclusion. And, on the other point, he said that the mere fact that, at the time when the deed was executed, it was in the contemplation of the parties that further advances should be made by the grantee, and that the deed was stamped so as to cover further advances, was not sufficient. In order to validate the deed, there must be a contract giving the grantor a right to require further advances to be made. LUSH, L.J., said that the reservation of the tenant-right was not an exception of any. thing upon which the tenant could raise money to enable him to carry on the business of the farm.-SOLICITORS, Cowdell, Grundy, & Browne: Senior, Attree, & Johnson.

DAMAGES REMOTENESS-CONTRACT FOR SALE OF REAL ESTATE-DEFECT OF VENDOR'S TITLE-Loss OF ANTICIPATED PROFIT BY RE-SALE.-In a case of Hyam v. Terry, before the Court of Appeal on the 12th inst., a question arose as to the damages which could be claimed by a purchaser of real estate by reason of the vendor's delay in the completion of his contract. The action was brought to enforce the specific performance by the defendants of an agreement to grant the plaintiff a lease for ninety-nine years of some land adjoining the River Thames near Blackwall. The defendants had also agreed to grant the plaintiff a right of way to the land over a certain road as marked on a plan. Possession of the land was given to the plaintiff, but a delay of many years took place, owing to the defendants finding that they could not make a title to the proposed road, and after various negotiations with the owners of the land over which the road passed, the plaintiff ultimately agreed to accept another road in substitution for that which had been originally agreed upon. But doring all this time, though the plaintiff was in possession of the land, no lease was granted to him. It was not disputed by the defendants that the plaintiff was entitled to have a lease of the land executed; the real dispute was whether he was entitled to any and what damages by reason of the delay. The plaintiff alleged that, by reason of his not having had any legal estate in the land, he had been compelled to decline some advantageous offers for re-letting portions of the land at considerably increased rents, and at the trial he adduced evidence of this. Fry, J., gave judgment for the plaintiff for specific performance of the agreement, and "the court being of opinion that the plaintiff had sustained some substantial damage by reason of the defendants' delay in carrying out their part of the agreement," it was further ordered that an inquiry should be made what damages the plaintiff had sus

tained by reason of the delay. In delivering his judgment, Fry, J., referred to the evidence that the plaintiff had been unable to accept offers for taking parts of the land on lease, as showing that he had sustained damage by the delay. The Court of Appeal (JAMES, COTTON, and LUSH, L.JJ.), held that the inquiry ought to be limited to an inquiry what compensation the plaintiff was entitled to by way of abatement of the rent during the period in which the defendants did not perform their agreement, and what compensation he was entitled to by way of a permanent abatement of the rent by reason of the difference in the value of the land with the road as originally agreed upon, and its value with the substituted road. JAMES, L.J., said it was desirable to put the judgment right in form, even though it might not, as it stood, necessarily give the plaintiff that which he claimed. The question was whether the case was governed by Bain v. Fothergill (23 W. R. 261, L. R. 7 H. L. 158), in which the House of Lords distinctly affirmed the old case of Foureau v. Thornhill (2 W. Bl. 1078), that where a vendor of real estate is not able to make a good title to the property which he has contracted to sell, the purchaser who, by reason of this defect of title, is not able to get the property, is not entitled to damages for the loss of profit which he would have made by the purchase turning out a good speculation. The principle of that decision applied clearly and distinctly to the present case. The plaintiff said that he took the property as a speculation, and that by reason of the defendants' delay he was unable to accept certain offers which had been made to him for re-letting the property, and that he could not obtain such advantageous offers now. That sort of vague speculation was the very thing which it was intended by the rule laid down in Bain v. Fothergill to exclude from the computation of damages. COTTON, L.J., said that, as a general rule, an appeal could not be brought from the reasons given by a judge for his judgment. But in such a case as the present the plaintiff was entitled to appeal, in order to save the expense of adducing unnecessary evidence on the inquiry. The real question was whether Bain v. Fothergill applied. If the rule had not been finally established by the House of Lords, his lordship would have hesitated to lay down such a rale. But persons who entered into a contract must be taken to contract subject to the law as it had been laid down. The reason for the rule was clearly explained by Lord Hatherley in Bain v. Fothergill, and the present case came within the rule, and the judgment ought not to be left in such a form as to enable the plaintiff to charge the defendants with the loss of a beneficial bargain for the re-sale or re-letting of the property. LUSH, L.J., thought that the form of the inquiry as it stood would have let in, and was intended by Fry, J., to let in, damages for loss of profit by a re-sale of the land. But Bain v. Fothergill had not been brought to his attention. The present case was clearly within Bain v. Fothergill.SOLICITORS, Abbott, Jenkins, & Co.; Lewis & Lewis.

COMPANY-POWER TO SELL BUSINESS-WINDING UPDISSENTIENT MEMBER-PURCHASE OF SHARES-LIABILI

TIES

TO CREDITORS-CALL-COMPANIES ACT, 1862, s. 161.-In the case of Re Union Bank of Kingston-upon-Hull, before the Master of the Rolls on the 11th inst., the company had on the 22nd of May, 1879, entered into an agreement with the Hull District Bank for the sale to the latter of their business and assets, in consideration of a sum of £37,500, being a sum of £2 10s. per share on the 15,000 shares in the vending bank. The shareholders in the vending bank were to be entitled to take certain shares in the purchasing bank, and such shares were to be pro tanto a satis faction of the purchase-money, and in the event of any shareholders refusing to take shares, the purchasing bank were to purchase their shares under the powers in their articles, and the arrangement was to be dependent on the assent by special resolution of the vending bank. A special resolution of the vending bank was passed on the 19th of June, 1879, that the sale should be carried out, that the vending bank should be wound up voluntarily, and that two gentlemen should be appointed liquidators who should be empowered to carry out the sale. One Jameson, a shareholder in the vending bank, did not vote in favour of the resolutions, and on the 23rd of June, 1879, Jameson expressed his dissent pursuant to the 161st section of the Companies Act, 1862, and after certain negotiations a sum of £1,080 was paid to him by the liquidators of the vending bank as the purchase-money of his shares. The purchasing bank subsequently took over the business f the vending