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29,862 in the previous year. The fees received amounted to £74,406, and the total amount under which properties were sworn was £55,834,759. In 1879-80 the totals under which properties were sworn in the principal registry and in the district registries, taken together, amounted to £127,890,614, and in the previous year to £136,907,951.

Divorce And Matrimonial Causes. There were 874 petitions filed in the Divorce Division in 1879-80, 0' which 470 were for dissolution of marriage, 145 for judicial separation^ and 21 for restitution of conjugal rights; 63 petitions were dismissed! and there were 356 decrees nisi and 278 absolute for dissolution of marriage, 58 for judicial separation, 2 for restitution of conjugal rights, and 6 for nullity of marriage. The fees taken amounted to £5,198, as against £5,410 in the previous year.


The returns as to the admiralty proceedings are incomplete by reason of the Eules of April, 1880, having directed all writs to be issued from the Central Office, so that the figures here given only represent actions instituted up to the 5th of April, 1880. The admiralty actions for the period covered by the returns were 244, and the total amount claimed in them was £907,280. During the whole year there were 68 motions and 1,261 summonses disposed of, and 173 final judgments pronounced. Under the head of references to the registrar assisted by merchauts, the total number of cases heard and reported upon by tho registrar was 83 in 1880, as against 95 in 1879. The total amount of accounts submitted for investigation in the principal registry was £502,974, of which £432,860 was reported due. The bills of costs taxed numbered 266, amounting, in the whole, to a total of £47,969, of which £33,216 was allowed and £14,753 disallowed. The court sat on 151 days, and the registrar assisted by merchants on 67 days. The money of the suitors amounted to £31,154 at the beginning of the year; £134,200 were received and £137,860 paid out, leaving a balance of £27,491 at the end of the year. The amount received in stamps, including that received in the Marshal's Office, was £6,808, and the amount received in cash was £1,037. The total number of instruments lodged with the marshal in 1880 was 892, and the arrests numbered 176, while the releases were 182. The gross amount of property sold under commission, from the court was £10,467 in 1880, aud £23,342 in 1879.

Court Op Bankruptcy1. The number of bankruptcies in 1880 was 995, and there were also 5,446 liquidations by arrangement, and 8,757 by composition, making a total of 10,298 as compared with 13,132, the total of 1879. Since the passing of the Bankruptcy Aot, 1869, tho total number of liquidations has annually increased until 1»79, but last year shows a decrease in liquidations and a considerable decrease in bankruptcies. During the year it appears that 2,845 debtor summonses were issued, there were 166 declarations of inability filed by debtors, and 1,605 petitions for adjudication filed. The debtors adjudicated bankrupt numbered 995, of whom 357 were on debtors' summons, 132 on declaration of inability, 271 on failure of liquidation proceedings, and 235 on other acts of bankruptcy; 721 of the total number were traders, and 274 non-traders. In 705 bankruptcies trustees were appointed with committees of inspection, and in 208 without, and 33 cases were carried on by the registrars as trustees; 22 bankruptcies were anuulled by reason of no trustee having been appointed. There were 146 applications for discharge, in 10 of which discharge was granted where 10s. in the pound had been or might have been paid, and in 136 on resolution of creditors where less than that amount was paid. On the 1st of January, 1880, it appears that there were 4,112 bankruptcies pending, and 995 were added during the year, making a total of 5,107. Out of this number 164 were annulled during the year, 378 were closed after payment of a dividend, and 735 without dividend, making a total of 1,277, and leaving 3,830 bankruptcies pending at the end of the year. The total liabilities of persons made bankrupt dining the year was £2,733,159, and tho estimated assets were £336,937. In the previous year the liabilities amounted to £4,298,721, and the estimated assets to £570,713. In 378 of the 1,113 bankruptcies closed during the year the liabilities amounted to £1,409,279, and the reseipta to £370.836, and dividends were paid. In 457 of the samo 1,113 estates the liabilities amounted to £1,342,402, and the receipts to £261,194 ; in these cases the whole of the assets was absorbed in costs. In 271 cases, with liabilities araouutiug to £879,582, and with no receipts, no dividends were paid. In the 378 estates on which a dividend was paid, it amounted to 20s. in tho pound in 4 coses only, and in 21 other cases it exceeded 10s. in the pound; 115 estates paid less than Is. in the pound, and 238 paid sums varying between Is. and 10?. in the pound. Under the head of liquidation proceedings we find that 11,508 petitions were filed, of which 9,677 were in county courts, and 1,831 in London. In the previous year there were 14,574 petitions for liquidation filed. The gross amount of debts uuder liquidation petitions in I860 was £9,318,633, and the gross value of estates £3,337,941. There were also in 1880 3,757 composition resolutions registered, the debts amounting to £4,138,844, and the assets to £l,080,fi2p_. Of these 8,757 estates 27 paid a dividend of 20s, in the

pound, 983 paid less than Is., 2,672 paid between Is. and 10s., and 75 paid between 10s. and 20s. in the pound. A grand summary of assets and liabilities shows that in 1880 the liabilities were £16,188,636, and the assets £4,701,504, and that iu 1879 the liabilities were £29,678,193, and tho assets £10,193,617. There were 100 appeals in bankruptcy presented to the Court of Appeal in 1880, and there were 15 pending at the beginning of the year. Iu 40 cases the decision was affirmed, in 3G reversed, and in 2 varied; 13 appeals were withdrawn, and 24 were pending at the close of the year. In 1879 there were 163 appeals. The number of bills taxed was 20,172 for a gross amount of £523,053, and from this amount £91,230 was struck off on taxation.

County Courts.

There are now 56 county court circuits, the courts for which are held at 499 places. In 1880 the number of plaints entered, including cases from the superior courts, was 1,096,790, as compared with 1,045,288 in

1879, and 912,895 ten years previously. In 10,313 of the 658,690 cases decided in 1880 the judgment was for the defendant, and iu the rest for the plaintiff. There were 161,629 judgment summonses issued, of which 91,595 were heard; 36,788 warrants of commitment were issued, aud 6,865 debtors imprisoned ; 236,051 executions against goods were issued, and 5,599 sales made. The total amount for which plaints were entered was £3,366,474, aud the total amount of fees ou all proceedings was £451,606. There were no proceedings under the Charitable Trusts Acts. For the protection of deserted wives 960 orders were registered. The bankruptcy proceedings in county courts are comprised in the general bankruptcy returns. The number of days of sittiug for the whole of the circuits was 8,268 in 1880, and 8,283 iu 1879. The greatest number of days on which any one judge sat was 230, and the smallest 80. The averago claim on each plaint in 1880 was £3 Is. 4d., and in 1879 £3 4s. 9d.

County Courts' Equity Jurisdiction. The total number of equitable suits and proceedings in county courts in 1880 was 640 as against 548 in 1879. The subject-matter of these 640 cases amouuted in value to £91,462, and the solicitors' costs allowed to £4,501. The fees, including those of high bailiffs, amounted to £2,398.

County Courts' Admiralty Jurisdiction. During the year 1880 the total number of admiralty actions or proceedings in county courts was 288, and the total amount claimed in these actions was £29,398, the solicitors' costs allowed amounted to £1,055, and the fees, including those of high bailiffs, to £1,092.

City Of London Court. In the City of London Court there were 23,312 plaints entered, including 3 cases sent from the superior courts; 9,870 cases were determined, in 247 of which the judgment was for the defendant, and in the rest for the plaintiff. Judgment summonses to the number of 1,770 were issued, and 747 were heard; 247 warrants of commitment were issued, and 18 debtors were imprisoned; 4,473 executions were issued, and 50 sales made. The total amount for which plaints were entered was £129,889, and the total amount for which judgment was giveu was £48,628 for debts, and £5,387 for costs. The fees amounted to £13,796, and the court sat on 173 days. There were only 14 equitable proceedings iu the City of London Court in 1880. In 1879 there were but 15, but the average for previous years would be less thau 10. Under the admiralty jurisdiction of the City of London Court there were 222 actions and proceedings in 1880, as compared with 168 in the previous year. The amount claimed in these actions was £22,494, and the solicitors' costs allowed amounted to £1,328, and the fees to £611.

Borough, Hundred, And Manorial Courts. In 9 of the 25 local courts of civil jurisdiction there were no proceedings In 1880, and in 5 of those 9 there have been no proceedings for ten years past. From the Hundred of Salford Court of Record 13,716 writs were issued in 1880 for an aggregate amount of £127,427. In tho Liverpool Passage Court there were 4,444 plaints for an aggregate of £55,349. In the Bristol Tolzey Court there were 2,427 plaints for £14,553. These are the most important, but it is sufficient here to specify that in the 16 local courts 22,526 writs wore issued, claiming a total of £211,729. The fees in all proceedings amounted to £8,034.

Mayor's Court, London. The number of actions entered in the Mayor's Court was 12,992 in

1880, being 1,024 less than in 1879. The amount claimed in these 12,992 actions was £220,633. There were 328 committals, 234 debtors airested, and 8 imprisoned. Foreign attachments were issued to the number of 197, for a total amount of £55,915, but 47 of these, for £18,944, were withdrawn. On the equity side of the court there were 4 bills of complaint filed. The fees of court amounted to £6,815.

Stannaries Court. There were 10 creditors' suits entered in the Court of the ViceWarden of the Stannaries in 1880 as compared with Id in 187,9. T^e nmount claimed was £237, and the amount recovered £167, the costs amounted to £241, and the fees to £25. There were, moreover, 3 writs of summons and 2 plaints, 3 petition! to wind up unincorporated companiea. Tli ere were no appeals.

Ecclesiastical Couiits. In the ecclesiastical courts in 1880 there were 13 proceedings as compared with 12 in 1879. Two of these were under the Church Discipline Act, 2 under the Public Worship Regulation Act, 1874, 1 concerning pew rights, 1 for granting a faculty, 5 for drunkenness, and 2 for other objects. There were further 245 suits for faoulties. The court fees amounted to £1,157 in 1830, as compared with £1,289 in 1879.

Divisional Court. The number of special cases filed under 12 & 13 Vict. 0. 45, was 4, and under 20 & 21 Vict. c. 43, was 45. There were 29 Appeals from county courts. On appeals by motion under 38 & 39 Vict. c. 50, s. 0, 65 orders nisi were granted, 9 made absolute, and 1 discharged. There were also 14 appeals from the Mayor's Court, 5 from the Liverpool Court of Passage, aud 5 from the Salford Hundred Couit.

Her Majesty's Coubt Of Appeal. The total number of appeals awaiting hearing at the commencement of the Tear was 279, the number set down during the year was 694, making a total of 973 appeals; of this number 619 were heard during the year, and 94 otherwise disposed of, leaving 260 awaiting hearing at tho end of the year. The Appeal Court sat at Lincoln's-inn on 194 days, and at Westminster on 135 days, making 329 working days of the Court of Appeal.

Judicial Committee Of The Privy Council. The number of appeals entered for hearing before the Judioial Committee of the Privy Council in 1880 was 76, aud, of this number, 8 were dismissed for non-prosecution, and 58 were heard and determined. In 38 cases the judgment was affirmed, in 4 varied, and in 16 reversed. There were 101 appeals lodged since April, 1878, which remained for hearing on the 1st of January, 1881. In 18 appeals no costs were given, and in 48 costs were awarded to the successful party. There were 6 applications lodged for extension or confirming of letters patent, 1 of which was dismissed, aud 1 granted. The fees amounted to £1,391. The amount of costs taxed was £13,962.

House Of Lords.

During the session of 1880 there were ■ 27 appeals to the House of Lords from the Chancery Division in England, and 5 from that in Ireland, and 16 from the Court of Session, Scotland, making a total of 46. Of this number 6 were withdrawn and 8 dismissed for want of prosecution. The total number of judgments delivered in 1880 was 36, including 3 in causes heard in the previous session. The total number of effective causes remaining for hearing at the end of the session of 1880 was 12, as compared with 18 at the end of the previous session. The total amount of fees was £1,623, as against £1,884 15s. in 1879.



Prideaux's Precedents In Conveyancing ; With Dissertations On Its Law And Pbaoticb. Eleventh Edition. By Frederick Prideaux and John Whitcombe, Harris ters-at-Law. Stevens & Sons.

The high reputation of this work, and the well-deserved eminence of its authors, have invested with unusual interest the issue of a new edition adapted to the Conveyancing Act, 1881. Here, it was supposed, would be found a safe guide through the pitfalls of that measure. Here we should learn what provisions we may adopt as absolutely safe; what provisions we may adopt with modifications, and what provisions we ought to reject. No one in the secrets of the solemn league and covenant entered into by certain eminent conveyancers, could doubt that the authors would adopt the Act as fully as was compatible with safety, nor could any one reasonably object to their doing so. But what the profession wanted to ascertain was how far the Act could be safely adopted, and in particular what is the best form of the supplemental, and also the " very special provisions," which, in certain cases (notably of mortgages), are generally admitted to be required, and the insertion of which has recently doubled certain conveyancers' fees on drafts.

We think we do no injustice when we say that this information is exactly what will not be found in the book. The authors proceed on the principle that the provisions of the Act may in general be adopted without any modification, restriction, or supplement. This must surprise even those members of the profession who are most anxious to bring the Act into operation, '4'here pre some pro

visions whioh it needs no authority to tell any practitioner should be supplemented or modified. For instance, even according to Mr. Wolstenbolme, a trustee can only safely give an acknowledgment for the production of deeds, and should not give an undertaking for safe custody. In the present work, at p. 286, we find that trustees are made to give both the acknowledgment and undertaking. We suppose it will hardly be doubted that the provision of section 18, which enables a mortgagor alone to grant a building lease at a peppercorn rent for the first five years of the term, is not such a provision as an intending mortgagee would desire to see inserted in the mortgage, and that the general opinion of the profession is against its insertion ; yet we find this provision allowed to come into operation in the precedents of mortgages in this volume. The power of sale given to the mortgagee by section 19 (1) is only exercisable " when the mortgage money has become due." This is adopted in the precedents of the mortgage containing the usual provisions for continuing the loan for a fixed period, and the mortgage to secure an existing debt and further advances, without any express provision as to when the mortgage money is to be considered to have become due under sectiou 19. These are matters which we should have thought called for some express provisions.

On the other hand, if we come to examine more in detail how tho Act is applied in the case of precedents of instrument?, we sometimes find it ignored or abandoned. For instance, in one of the very first precedents of conveyances (p. 224) we find express covenants for title in a conveyance of freeholds, in which A. B, covenants with 0. D., hit heirs and assigns, although section 58 of the Act provides that "a covenant relating to land of inheritance shall be deemed to be made with the covenantee, his heirs and ossigns, and shall have effect as if heirs and assigns were expressed." Again, at p. 403, we find in a precedent of an assignment of letters patent that the vendor Is made both to assign "as beneficial owner "—thereby bringing into operation the implied covenants—and also to enter into express covenants that the letters patent are good, for right to assign, and for further assurance. And we observe that in the precedent of the surrender of a lease, at p. 399, the lease is recited, instead of the deed being expressed to be annexed to the lease, under section 53. We also remark that the lessee is thereby made to surrender "all other the estate aud interest of the said A. B. in the said premises, under or by virtue of the said indenture," although section 63 enacts that " every conveyance shall, by virtue of this Act, be effectual to pass all the estate, &c, which the conveying parties respectively have in the property conveyed." It may be suggested that tho definition of "conveyance" in section 2 does not specify "surrender of a lease," but if this is not included in the word "conveyance," then the lessee should not be made in this precedent to surrender "as beneficial owner," for covenants for title are only implied In a "conveyance."

One of the many admirable characteristics of Prideaux in its old shape was accuracy and consistency of language. This is, also, to a considerable extent, a characteristic of the present edition, but it is curious to see how, in the attempt to adapt the old forms to the implied provisions or the statutory forms in the schedules to the Act, this characteristic disappears. Take form 3 of mortgages—mortgage in fee with provisions for reducing the rate of interest in case of punctual payment, aud for continuing the loau for a time certain—(p. 505). We have here the statutory form (schedule 4) of covenant to pay principal money and interest, with some slight amendments. In this we have the expression " the date of these presents," while in the proviso as to not calling in the money for a term, the expression is "the date hereof "; in the covenant we have " principal money . . , due under this mortgage," while in the proviso we have " principal money hereby secured," and in the proviso for reduction of interest we have "the said principal sum." The implied statutory power of sale is adopted; yet in the proviso as to not calling in the money, we find the expression "upon any salo made under the aforesaid power in that behalf." As no power of sale is mentioned in the precedent, this provision appears to be nugatory.

It is an ungracious task to criticize in this way a work for whioh, in its former shape, we have always entertained a high esteem, and we will not pursue it further. We have purposely omitted to notice the opinions expressed or acted on by the authors on what may be termed the debateable points of the Act—as, for iustanoe, the broad statement on p. 219 that "there can no longer be any advantage in setting out in the conveyance the 'general words,'" or the assumption (without any explanatory note) in the precedent for the enlargement of a long term, at p. 433, that an equitable tenaut for life is a person entitled "in right of the term." These and other questions are matters on which we have said our say, and are content to set the reasons we have given for holding a contrary opinion against the dicta, however weighty it may be, but unsupported by reasons, of the learned authors. There are many parts of the work as to which the Conveyancing Act has little operation, and few alterations have been made, and as to these we have little but praise. We are bound in fairness, too, to add that where it has occurred to the learned authors that it is essential to qualify or vary the provisions of the Act, they have Bhown their wonted skill, and more than their wonted conciseness—-see, for instance, the variations of the statutory power of sale in. the mortgage p{ freeh,ohis to a building society.



[To the Editor of the Solicitor*' Journal.]

Sir,—In Stansfield v. Eobton (1 W. E. 27, 216, 16 Beav. 236, S D. M. & G. 620), it was decided by the late Master of the Rolls and by Lords Justices Knight Bruce and Turner that an acknowledgment given after the mortgagee had been in possession twenty years was sufflciont to prevent the right to redeem from being barred by the statute (3 & 4 Will. 4, c. 27, s. 28). Although that case mainly turned upon the sufficiency of a particular letter as an acknowledgment, the question as to that acknowledgment's having been given too late was evidently not lost sight of, and, indeed, must necessarily have been regarded in the decision. Therefore, some remark seems called for when one finds in the recent case of Sanders v. Sanders (30 W. R. 280, L. R. 19 Ch. D. 373) the following observations by judges of the Court of Appeal:—The Master of the Rolls said (p. 379), "As I said in In re Alison, when a title has been extinguished by the statute, no mere acknowledgment by the person who has acquired under the statute as good a title as if a conveyance had been made to him can restore the old title. The contrary was, indeed, decided in Stansfield v. Hobson, but when we look at that case we find that the point is not noticed in the judgment of either of the Lords Justices, though it appears to have been taken in argument. Considering the importance of the point, I cannot think that either of these learned judges would have decided it without making any remark on the subject, and I think it must have been overlooked by them. I think, therefore, that Stansfield v. Hohson is no authority in support of the proposition that an acknowledgment after the statute has run can take the case out of the statute ; and In rs Alison, which is a decision by the Court of Appeal, shows that it cannot." And Baggallay, L.J., referring to the judgment of Vice-Chancellor Malins in the case under consideration, said (at p. 381): "He seems to have held that, after a title under the statute had accrued through adverse possession, a subsequent acknowledgment would prevent the operation of the statute, and in support of that proposition he relied on Stansfield v. Hohson. The marginal note of that case is in point, but when we look at the judgments the only point considered in them is whether the document in question was in such a form as to make it a sufficient acknowledgment within the statute. Having regard to this, I cannot consider that Stansfield v. Hohson is an authority in favour of the proposition that an acknowledgment given after the statute ha* run is effectual. The point was considered in In re Alison, and the Court of Appeal there expressly decided that when a statutory title had accrued by the expiration of the twenty years, it could not be defeated by a subsequent acknowledgment."

Stansfield v. Hohson appears to me to have been most unfairly dealt with by these learned judges. To suppose that Sir John Romilly and Lords Justices Knight Bruce aud Turner could all have been led into the consideration of the question whether a particular letter amounted to a sufficient acknowledgment, and to decree in favour of the mortgagor, while overlooking the circumstance that an acknowledgment after twenty years' possession by the mortgagee could, as now alleged, be of no avail, seems to me—with deference to the Master of the Rolls and Lord Justice Baggallay—simply impossible. The supposition appears to me, not only to carry with it its own contradiction, but also to be refuted by the reports of Stansfield v. Hohson on the original hearing and cn the appeal. The Master of the Rolls began his judgment thus: "This is a claim instituted for the purpose of redeeming an estate mortgaged to John Hobson, and the only question which arises is whether a letter sent by him to the solicitor of the mortgagor, or of one of the mortgagors, in February, 1850, after twenty years had elapsed from the time when Hobson had entered into possession, is such an acknowledgment as to take the case out of the statute." The Master of the Rolls took no further special notice of the letter having been written after the lapse of twenty years, but, upon the question of the sufficiency of the letter, said, "I reserved my judgmeut for the purpose of looking through the authorities, and it appears to me that the statute has only made a difference iu this respect, that that which before the statute was a sufficient parol declaration must now be in writing, signed by the mortgagee or the person claiming through him." At the hearing by the Lords Justices the mortgagee's counsel (of whom the present Lord Chancellor was one) are reported to have urged that "the rase does not come within the exception, unless the acknowledgment is given within twenty years after the mortgagee obtaiued possession. That is the only effect which can bo given to the words ' unless in the meantime.'" That the case was fully argued seems evident from the way in which Lord Justice Knight Bruce began his judgment: "Perhups we ought to feel some difficulty after the able arguments of Mr. Palmer and Mr. Humphreys," but neither of the Lords Justices made any distinct allusion to the point that the acknowledgment was not given till after the lapse of the twenty years.

Surely enough has now been said to show that none of the judges by

whom Stansfield v. Hohson was decided did overlook or could have overlooked the circumstance that the acknowledgment was given after twenty years' possession by the mortgagee; and if the point was not specially alluded to in any of their judgments, I take it the reason was simply this—the sufficiency of the acknowledgment in point of time was too clear for serious argument. I will now say a few words in support of this last remark. (1) I submit the true grammatical construction of section i8 of 3 & 4 Will. 4, c. 27, only requires that the acknowledgment should be given within twenty years before the suit to redeem is brought. This construction appears to me strengthened when section 28 is compared with the language of section 14, which section clearly requires, in the cases to which it applies, an acknowledgment to be given before the expiry of the length of possession which would create a bar. (2) The above construction of section 28 is further supported by the previous state of the law, and the recommendations of the Real Property Commissioners on which the Act was based, also by no less an authority than the late Lord St. Leonards. This I will endeavour to show.

The following extract from Sir William Grant's judgment in Barron T. Martin (Coop. 189, at p. 191) shows very clearly what the old law was, at least so far as the point in question is concerned—namely, that acknowledgment within twenty years before suit was sufficient, although after twenty years' possession by the mortgagee. 8ir William Grant said :— "It is now decided that twenty years' possession by a mortgagee will primd facie bar a Tight of redemption; and it lios on the mortgagor to show that such length of possession ought not to produce that effect. Here there has been a possession of about sixty years in the mortgagee. It is not, however, material to consider the effect of anything done above twenty years before the filing of the bill, as what passed in 1772 or 1774. The question is, whether anything has taken place within twenty years before October, 1806, when the bill was filed, to give a right to redeem?"

The Real Property Commissioners' in their first report (p. 50) say: "Where a mortgagee has been twenty years in possession, without any payment, or promise, or acknowledgment to show that the relation of mortgagor and mortgagee continues, the right to redeem is gone, but evidence of any acknowledgment in writing or by parol to the mortgagor or to a stranger, or any memorandum or account found amoug the papers of the mortgagee, admitting or evidencing that he holds in that character, interrupts the

bar We propose that it should be enacted that, where the

mortgagee is iu possession, the bar iu equity shall not be affected by any promise, statement, or acknowledgment, unless it were in writing, and made by the mortgagee or those claiming under the mortgagee to the mortgagor or those claiming under the mortgagor."

Lord St. Leonards, in his work on the Real Property Statutes (2nd ed., p. Ill), speaking of the provisions as to mortgagees in possession, says, " The statute adopted the existing rule," and later on (p. 117) he says, "The statute, 8S to acknowledgments, has only made a difference in this respect, that that which before the statute was n sufficient parol acknowledgment must now be in writing, eigued by the mortgagee or the person claiming through him," quoting as his authority what Sir John Romilly said in the extract above given from his judgment, and using his very words. I may add that in Pendleton v. Routh (8 W. R. 101, 1 D. F. & J. 81), referred to iu Lord St. Leonard's work (p. 113), Lord Chancellor Campbell stated the law conformably to the view here maintained.

I have not forgotten that it may be urged that the portions above extracted of the judgments of the Master of the Rolls and Lord Justice Baggallay in Sanders v. Sanders show that Stansfield v. Hobson, so far as it decided that an acknowledgment by a mortgagee after twenty years' possession prevents the mortgagor's title from beiug barred, has been overruled by In re Alison. But I cay with confidence that what was said by the above-mentioned learned judges in Sanders v. Sanders, it it meant this—and I think it did—is not warranted by the decision in In re Alison. Neither in In re Alison nor in Sanders v. Sanders did the facta raise the question here discussed; therefore Stansfield T. Hobson remains unaffected by either of those coses, except by obiter dicta, and I think the dicta that I have quoted in Sanders v. Sanders are a sufficient justification for my writing this letter iu support of Stansfield v. Hobson.

It only remains for me to say that although the enactment (section 28) of 3 & 4 Will. 4, c. 27, with reference to which Stansfield v. Hobson was decided, is repealed by 37 & 38 Vict. 0. 57, a. 9, yet it is re-enacted iu section 7 with the substitution, in both parts of the enactment, of twelve for tweuty years. The reduotion of the required length of possession by a mortgagee, and of the time after acknowledgment within which an action must be brought, makes it only the more important to defend Stansfield v. Hobson.

Temple, April 25. A. J. Wood.

TRIAL BY JURY AT PETTY SESSIONS. [To the Editor of the Solicitors' Journal.] Sir,—I have to thank you for your courteous remarks on my letter on the above subject, and I do not despair of converting you to my views. I agree with you that the present system of summary jurisdiction by justices in cases of small moment must be preserved. Also that a remedy for the present evils of that jurisdiction is to be found in the wide establishment of a stipendiary magistracy.

But many of the cases now triable at petty sessions are not of small moment.

Take, for instance, complaints against innkeepers. I once was concerned for a large hotel company, owners and occupiers of the hotel, who had the misfortune to havo as guests for a short time a boisterous wedding-party who offended against the Licensing Act. Two police iuformatious wero laid against the company for offences arising out of the acts of that party during one evening, and had convictions followed and my clients' license been indorsed, a valuable property of about £40,000 would have been placed in great peril, and numbers of purely innocent shareholders would have suffered. I presume it will be allowed that tho case referred to was not one of small moment; aud it will suggest many others of a like kind. Yet here was a case started by the police, in which, for some occult oause, they had got very angry, and there was no tribunal for my client to appeal to except that of the justices, who were in constant communication, privately as well as publicly, with the prosecutors.

Take, again, cases of alleged adulteration of food. A charge of that kind when proved may ruin a tradesman who, up to that time, may have borne au irreproachable character.

Surely such cases as these might be indefinitely multiplied ; and yet, because of some supposed inconvenience, are respectable persons unhappily, and perhaps unjustly, charged, to be told that they are to be satisfied with a tribunal tainted with police prepossession, whilst a vagabond, for the fiftieth time charged as a pickpocket, may demand a trial by jury?

To stand by such an anomaly as that with folded hands, and to say nothing can bo done, seems to me unworthy of En glish jurisprudence.

One of two things: (1) Either in suoh cases as I have mentioned give the defendants the power of having their cases tried by a jury at quarter sessions ; or (2) give an optional jury at petty sessions.

Your own suggestion of a stipendiary magistracy solves the latter difficulty.

Why should not there be a stipendiary magistracy with circuits somewhat similar to those of the county court judges, to whom should be referred Buch important cases as I have mentioned, and wherein prepossession is so likely to exist P There need be no hurry to try such cases without giving a few days' time between accusation aud trial ; and during that interval it should be optional for either of the parties to demand a jury or not. If the stipendiary of a circuit obtained the confidence of the public, like the couuty court judges do, a jury would be infrequent; whilst the fact that juries might be called for would repress the eccentricities of individuals.

I trust the importance of this subject will excuse my again intruding it. F. Stroud.

Cheltenham, April 25.

[To the Editor of the Solicitor? Jour nal.]

Sir,—The enclosed correspondence (which explains itself) will, doubtless, be interesting to many of your readers, as it raises a new question of stamp duty; and I shall be obliged if you can find a place for it in yonr columns. Ralph Simey,

59, John-street, Sunderland, April 26.

[The following is the correspondence referred to :—


22nd April. 1882.

R and others to K .

Dear Sir,—On attending with these deeds for denoting, the Solicitor of Stamps informed us that a further duty of 3s. 6d. was required in respect of the transfer of mortgage of £650 set out in the last paragraph of the deed.

As this is somewhat out of the regular course, we shall be glad of your reply before getting the stamp added.

24th April, 1882.

R and other 1 to K .

Dear Sirs,—With much respect to the Solioitor of Stamps I think he has misconceived the object aud effect of the last clnu se in the deed.

The deed itself is an ordinary conveyance to uses to raise a rent-charge of property already in mortgage, the mortgagee joining for the grantee's satisfaction only, and not for the purpose of increasing or transferring his security. And the only effect of the deed qua" the mortgage is that the rent is substituted as to his security for the plot out of which it issues.

The clause ii one usually inserted In such deeds (see Prideaux's Conveyancing, 9tli ed., vol. 1, p. 366), and also iu leases by mortgagor and mortgagee; and no one has, hitherto, conceived that duty is payable in respect of it. I trust that the Solicitor of Stamps will, after further considering the matter, allow the existing practice to continue,

25th April, 1882.

B and others to K .

Dear Sir,—We received your favour of yesterday and have attended with same on the Solicitor of Stamps and urged the points you raised.

He, however, informs us that, "the declaration subatituting the rent for the land as security is between vendor and mortgagee, and is considered 'ditlinct matter' requiring separate duty in respect of it: see section 8 of the Stamp Act, 1870. It is charged under tlie head ' Mortgage (2) ' iu the schedule to that Act with 6d. per cent. 'substituted security ' duty on the £650. The clause is one frequently inserted in such deeds, and it is generally known that a doed containing this clause is considered chargeable with further duty in respect of it; 10s. is considered sufficient in cases where the amount secured by the raortgago exceeds £2,000."]


Company—Wikmno-tjp PetitionAffidavit In SupportCompanies Act, 1862, s. 170—Ohder Of November, 1862, R. 4—Ord. 37, Rr. 2, 3.—In a esse of In re The New Callao, before the Court of Appsal, cn the 20th inst., the question arose whether ihe provision of role 4 of the Order of November, 1862, under the Companies Act, 1862, as to the effect of the affidavit by which a petition fcr the winding up of a company is to be supported, bas been superseded by rule 3 of order 37 under the Judicature Act. The question was alio raised whether rule 4 of tbe Order of November, 1862, was ultrA vires. The Order of November, 1862, purported to be made under the power conferred by tection 170 of tbe Companies Act, 1862, which provides that "in England the Lord Chancellor of Great Britain, with the advice and consent of tbe Master of the Rolls, and any one of the Vice-Chancellors for the time being, or with the advice aod consent of any two of tbe Vice-Chancellors, may, as often as circumstances require, make such rales concerning tbe mode of proceeding to be had for winding up a company in the Court of Chancery as may from time to time seem necessary, but, until such rules are made, tbe general practice of tbe Court of Chancery, including tho practice hitherto in use in winding up companies, shall, so far as the same is applicable and not inconsistent with this Act, apply to all proceedings for winding up a company." And by rule 4 of the Order of November, 1862, "every petition for the winding up of any company by tbe court, or subject to the supervision of the court, shall be verified by an affidavit referring thereto, in tbe form or to tbe effect set forth in form No. 2 in tbe 3rd schedule hereto; such affidavit shall be made by the petitioner, or by one of the petitioners, if more than one, or, in case the petition is presented by the company, by some director, secretary, or other principal officer thereof; and shall be sworn after and filed within four days after the petition is presented, and suoh affidavit shall be sufficient prinnjacie evidence of the statements in tbe petition." The form No. 2 in the 3rd schedule of "affidavit verifying petition" makes the deponent depose that "such of the statements in the petition a? relate to my own acts and deeds are true, and such of the said statements as relate to the acts and deeds of any other person or persons I believe to be true." Rule 2 of order 87 provides that "upon any motion, petition, or summons, evidence may be given by affidavit ; hut the court or a judge may, on tbe application of either party, order the attendance for cross-examination of the person making any such affidavit." And by rule 3, "affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted. The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall he paid by the party filing tbe same." In the present case a winding-up petition had been presented, and in support of it an affidavit had been filed in accordance with the form No. 2 in the 3rd schedule. It was objected tbat this was not sufficient evidence, but Chitty, J. (ante, p. 361), overruled tbe objection, and bis decision was affirmed by the Court of Appeal (jessel, M.R., and Cotton and Lindley, L. JJ.). Jessel, M.R., said tbat if the point whether rule 4 of the Older of November, 1862, wit ultra vires had been taken earlier, it would have been deserving cf serious consideration. But, as the rule was made so long ago as 1862, and bad been acted on ever since, the order having been signed by the Lord Chancellor and four of the then judges of the Court of Chancery, and the course of practice had been settled during all that period, it would not be right now to discuss the question whether the rule was one which ought to have been made under seotion 170 of tbe Act. It must now be treated as a rule of practice binding on the Court of Appeal as well as on all the other courts. And, as to the effect of rule 3 of order 37, the Rules under the Judicature Aot were prefaced with this note: "Where no other provision is made by the Act, or these rules, the present procedure and practice remain in force." It was clear that no other provision had been made by the Judicature Aot or Rules as to the verification of a winding-up petition, and therefore it would seem that the first ptrt of rule 4 must still remain in force. It was said,'however, that rule 3 of order 37 was inconsistent with tho last provision of rule 4, that the prescribed affidavit should be sufficient primi facie evidence of tbe statements in the petition. Tbe answer was that rule 3 was not another provision with referenoe to winding-up proceeding!*, but was a general provision, intended, not to introduce a new rule as to affidavit evidence, but to restate tbe previously existing law, and to give notice to practitioner* of the consequenoes of disregarding it. The words "except on interlocutory motions " were, of course, not to be restricted to motions, but appliod to all interlocutory applications, and the rule was not intended to repeal r ile 4 of the Order under the Companies Act. Moreover, the rules under the Judioiture Act came into operation more than six years ago, and this lapse of time was , not immaterial, the pld practice as to the verification of a winding-up'petition havingbeenalways during that time followed. Cotton, L. J., Raid tbatthe validity of rule 4 would require a great deal ofconsideration if it ware now being acted on for the first time. But he agreed with the Master of the Rolls that it was now too late to consider the point. The real question was whether rule 4 had hten repealed by rule 3 of order 37, and he thought it had not. There was no provision in the rules under the Judicature Act aa to the mode in which a winding-up petition was to be verified, and he thought that rule 3 of order 37 wis not intended to alter the previous rules as to evidence, but only to caution practitioners as to the way in which affidavits ought to be framed. The rule was only staled in accordance with the then existing law. It would be wrong to ray that rule 3 had repealed rule 4 under the Companies Act. Lindley, L.J., thought that rule 4 was atill in force. It was intended as an act of mercy to companies and te save expense, because winding-up petitions are often unopposed. It wag a special enactment, and it had not been repealed by the general enactment of rule 3 of order 37.—Solicitors, Lewis Davis; Greenfield, Abbott, Co.

Application For Leave To Issiih AttachmentNoticeDefendant Who Has Not ArPEARED—Ord. 19, R. 6—Ord. 53, R. 3.—In a case of Young T. Yiung, before Fry, J., on the 18th ins'., a question arose as to the proiermode of giving to a defendant, who had not appeared to an action, notice of a motion for leave to issue a writ of attachment against him for his contempt in disobeying a previous order made in the action. On February £3 an order was made that the defendant should, on or before March 18, or subsiquently wiihin four days after service of tho order on him, leave certain accounts in chambers. The order was served on the defendant personally on Match 26, but he did not comply with it within the time limited. He had not entered any appearance to the action. On April 1 the plaintiff gave notice of motion for lente to issne an attachment against the defendant. The defendant had meanwhile stated to the plaintiff that he had moved to a new address, and the plaintiff attempted to servo a notice of the motion on the defendant at the new address which he had given, but the person who was employed to effect the lei vice was unable to find the defendant there, and no service wastffected. 1 he defendant could not be found at Lis old address. Tho plaintiff then filed a copy of the notice with the proper officer of the oourt, and it was contended that this was a sufficient notice to the defendant. Sale 3 of order S3 provides that, '' except where, by the practice existing at the time of the passing e f the said Act, any order or rule has heretofore been made ex parte absolute in the first instance, and except where, by these rules, it is otherwise provided, and except where the motion is for a rule to show cause only, no motion shall le made without previous notice to the parlies affected thereby.'' And rnle 2 of oider 44 provides that " no writ of attachment shall be issued without the leave of the court or a judge, to be applied for on notice to the paitv against whom the attachment is to be issued," And, by rule 6 of order 19, "every ple ading or other document required to be delivered to a party, or between patties, shall be delivered in the manner now in use to the solicitor of every pnrty who appears by a solicitor, or to the pirty, if he does not appear by a solicitor, but if no appearatco has been entered for any party, then such pleading or document shall bo delivered by being filed with the proper officer." Fry, J., said that he would not dsoide that rule 6 of order 19 did not apply to sue h a case, though he thought it doubtful whether it did. But ha gave the plaintiff leave to serve the notice of moiioo by leaving a copy at each of the defendant's addresses, and also by filing a oopy of the notice with the proper officer of the oourt.—Solicitors, A. Abrahams $ Co.

Action To Recover Land—Joinder Of Otiifk Cause Of ActionLeave Of Court—Counter-claim—Ohd. 17, R. 2—Ord. 19, R. 3—Ord. 22, R. 9,— In acaae of Compton v. Preston, before Fry, J., on the 18th inst,, the question arose whether in a counter-claim a claim to recover the possession of land can, without the leave of the court, be joined with another eause of action. Rule 3 of crder 19, after giving to a defendant the right to "set op, by way oi counterclaim, against the claims of the plaintiff any right orrlaim," whicb counter-olaim is to Lave the same effect as a statement of claim in a crossaction, provides that "the court or a judge may, on the application of the plaintiff before trial, if, in the opinion of the court or judge, such counterclaim cannot te ronvmieotly disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail himself thereof." And, by rule 9 of order 22, "Where a defendant by his statement of defence sets up a counter-claim, if the plaintiff or any other person named in manner aforesaid as patty to such counter-olaim, contends that the claim thereby raised ought not to be disposed of by way of counter-claim, but in an independent action, he may, at any time before reply, apply to the court or a judge for an order that such counter-claim may be excluded, and the oourt or a judge rtny, on the hearing of such application, make each order as shall be just." And rule 2 of order 17 provides that "to cause of action shall, unless by leave of the court or a judge, be joined with an action for the recovery of land, except claims in respect ot mesne profits, or arrears of rent in respect of the premises claimed, or any part thereof, and damages for bresoh of any contract under whioh the same or any part thereof are held." The action was brought by a plaintiff, who claimed to beer titled to several mortgages upon a property of thirty-three acres belonging to the defendant PrestoD, against Preston, and other defendants who also claimed obarges on the property, claimiog a declaration that the plaintiff was entitled to priority over the other mortgagee defendants, an account, and foreclosure in default of payment. The Imperial Bank, ore of the defendants, delivered a defence and counter-claim. By the counter-claim the bank alleged that tbey were mortgagees from I'reston of an adji ining property of four acres, that the plaintiff bad taken possession of the four acres without any title, and that he refused to deliver up possession to the bank. The bank also alleged that they had advanosd money on the deposit of a lease, granted to Preston by the plaintiff of ancther adjoining property of fifty-one acres, on tho faith of a recital in tho lease that Preston had paid the plaintiff a

premium of £1,500 fcr the lease, and that this recital was untrue. The

bank claimed a declaration that they were entitled to possession of the four acres, with mesne profits, and damages in respect of the wrongful statement in the lease that a premium of £1,500 had been given for it. The plaintiff, before delivering a reply, applied for an order to strike out the counter-claim, on fie ground that it would prejudice and delay the trial of the aotion, and that it was embarrassing. No leave had been obtained from the court to join the claim for damages with the claim to recover possession of the four seres, and, on the hearing of the application, it was urged that rule 2 of order 17 applied. On the part of the bank it was contended that that rule did not apply to a counter-claim. Fry, J,, said that there was, no doubt, some little difficulty in harmonizing rule 3 of order 19 and rule 9 of order 22, the first ot which gave the court power, on the application of the plaintiff before trial, to refuse permission to the defendant to avail himself of his counter-claim, while the second enabled the plaintiff, at any time before reply, to apply for an order excluding the counter-claim. The difficulty, however, did not arise in the present case, because the application was made before reply. The terms of rule 2 of order 17 were general, and it was difficult to see why a counter, claim for the recovery of land was not an action for the recovery of land. At any rate, that which would be embarrassing if joined with such a claim in a statement of claim was likely to be embarrassing if joined with it in a counter-claim. And it would be absurd to hold fiat a cause of action which oould not be joined in a statement of claim with a cltim to recover could be so joined in a counter-claim, for then the mere fact that a plaintiff had made a claim for some trivial amount of damages would release the defendsnt from the fetter imposed by rule 2 of order 17. The principles on which thst rule was founded had been explained by Jessel, M.R, in GUdhtll v. Hunter (L. K. 14 Ch. D. 492), and they applied equally whether the claim to recover land was urged by an oiiginal claim cr by a counter-claim. His lordship was of opinion that the joining of the two causes of action was in its nature embarrassing, and he should, tlisrefote, make an order excluding the couuier-claim.—Solicitors, Ji, S. Tuylor, Son, «fc Humbert; Maples Teetda'.e.

Trustee—Purchase From Cestui Que Trc6t—Voidable TransactionConfirmationInfantRight To Elect—Inquiry As To Interest.—In a case of Uemery v. H'omm, before Fry, J., on the 19th inst., a question aroie aa to the validity of a purchase by a trustee from bis cestui fine tnut, and there was a further question as to the confirmation of a voidable transaction. On the death of a father intestate, leaving four sons and a daughter, administration of his estate was granted to the two eldest sons. A deed was afterwards executed by which the daughter and the fourth son, in consideration of £549 to be paid to each of them by the administrators and the third son, assigned to the administrators and the third Bon their respective share's in the father's estate, and released the administrators from all claims in respect of the estate. The payment of the two sums of £542 was secured by a morigage of the father's estate to trustees on behalf of the daughter aud the fourth son. And the eldest son, by the same deed, agreed to postpone a claim of his own for £1,500 against the father's estate to the two sums of £542. The sum of £542, as the value of the sharea of the children, was professedly arrived at on the bisis of a valuation of the father's estate, the effect of which was stated in a schedule to the deed. Afterwards the daughter married, and prior to her marriage a died of settlement was execrated. This deed contained a recital of the tffect of the prior deed, and by it the daughter assigned the £oi2, and also the share of her father's estate to which she would have been entitled in case the first deed had not bean executed, upon certain trus's for the benefit of the wife, the husband, and the children of the wife by any marriage. The action was brought by the husbsnd and wife, and the infant children of the marriage, by their father as their next friend, against the brothers and tho trustees of the two deeds, claiming to have the first deed declared void as against the plaintiff*, and to have an account taken of the father's estate. It was contended, on the authority ef Ex parte Lacey (6 Ves. 625), and other similar cases, that a trustee could not purchase the interest of his cestui que trust, unless by a previous independent transaction the relation of trustee and cestui que trust had been put an end to. On the other Bide it wae said that it was only necessary fcr the trustee to show that the transaction was a fair one, and that this had been done. It was also urged that, whatever the rights of the daughter originally were, she bad in effect confirmed the transaction by her subsequent execution of the marriage settlement, she having thus put it out of her power to repla e the other parties in their original position. In reply to this it was urged that the court could direot an inquiry whether it would be for the benefit of the infant plaintiffs to elect to have tbe transaction of sale stt aside, and tint, if it should appear to be for their advantage, the court would elect for them and set it aside accordingly. Fry, J., ssid that the rule to be deduced from lix jiarte I.accy and similar cases was this, that, if a purchase by a trust-a from his cestui qne trust was impeached, the tiustee was bound to show that in making the bargain, which was to put an end to the relation of trustee and cestui que trust, the partiea were at arm's length, and that full divclosure had been made by the trustee. In the present case his lordship held that tho sufficient disclosure had not been made by the administrators, and that consequently tbe transaction was originally voidable at the elecion of ths daughter. But he held that the effect of the marriage settlement was to deprive her of this right, because it was now out of her power to give back the £542 to her brothers or to relinquish the postponement of the claim of £1,500. And he did not think th»t be ought to direct the inquiry whicb bad been suggested. Those who claimed to set aside a transaction were bound to show that it wss voidable, and also that they were in a position to elect to avoil it. The brothers were not interested in the inquiry, and were, in fac', Mranger* to it, and they ought not to be pot to defend themselves until the partiea who were attacking them bad made up their minds whether they desired to do so. The question whether it would hs for the benefit of the infanta that the pur<

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