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We Believe that the apprehensions which have been expressed that the failure of Messrs. Jackson 8c Gkaham, who held a contract for the interior fittings of four courts in the Royal Courts of Justice, will hinder the completion of the work, are without foundation.



Ax first sight it would seem that no more extraordinary instance of the readiness of intending purchasers to accept the most stringent conditions of sale could be found than the prevalence, before section 14 of the Conveyancing Act came into operation, of the condition, on the sale of leaseholds, that the receipt for the last payment of rent, accrued previously to the completion of the purchase, should be accepted as conclusive evidence of the performance and observance of all the covenants and conditions in the lease. Receipt of rent by a lessor is only a waiver of forfeitures of which he is aware at the time; moreover the f orfeiture might have occurred since the rent was paid, in which case the receipt would be no waiver. It is curious to compare the tentative manner in which Mr. Sweet, in his edition of Bythewood, in 1814, suggested, in a note to his leasehold conditions, that "it may be advisable to add" a condition as to the production of the receipts for the rent vp to Hie day fixed for completion being sufficient evidence, with the provision on the subject in use in recent times. Mr. Sweet's condition was not unreasonable, for it left it open to the purchaser to inform the lessor of any breaches of covenant which he discovered before completion, and so to make the receipt for rent up to the day fixed for completion a waiver of all forfeitures. The modern form of the condition leaves him no such opportunity. The explanation of the prevalence of the condition is probably to be found, first, in the rarity of the cases in which forfeitures were formerly enforced by landlords; and, next, in the conviction of intending purchasers that the condition could not be insisted on so as to cover serious breaches of covenant known to the vendor. It may be desirable to consider how far these reasons have been affected by recent legislation and decisions, and to what extent vendors and purchasers of leaseholds are now affected by the condition.

The provision in section 14 of the Conveyancing Act has rendered absolute forfeiture of a lease improbable: but, on the other hand, it will doubtless diminish or remove the reluctance of landlords to take proceedings to enforce a forfeiture. Many a landlord who would not have thought it just to deprive a tenant of his property will think it perfectly just to commence such proceedings when the tenant has the option of obtaining relief on payment of compensation for breaches of covenant. Hence it is more than ever important for intending purchasers of leaseholds to consider the effect of the condition as to the production of the last receipt for rent. The statutory condition, as our readers are aware, provides that, "Where laud sold is held by lease (not including underlease), the purchaser shall assume, unless the contrary appears, that the lease was duly granted; and, on production of the receipt for the last payment due for rent under the lease before the date of actual completion of the purchase, he shall assume, unless the contrary appears, that all the covenants and provisions of the lease have been duly performed and observed up to the date of actual completion of the purchase." Now, according to In re Banister, Broad v. Munion (27 W. R. 826), a purchaser is not bound by a condition which requires him to admit or assume a state of things which, to the vendor's knowledge, does not exist; the utmost which can be required from him in conditions of sale is to assume facts as to which the vendor has no definite knowledge that the assumption required is untrue. No doubt the recent case of Laurie v. Lees (30 W. R. 185) has thrown some doubt upon this rule. That was, like In re Banister, an application to rescind a contract for the sale of leaseholds, containing the usual condition, on the ground of existing breaches of covenant known to the vendor, and in refusing the application a good deal was said by the law lords (none of whom, however, had been judges or practitioners in the Chancery Division) to the effect that, "if people choose to enter into a bargain of this sort, and it tells heavily against them, the

better thing is, not that the court should relieve them of it, but that they should learn by experience how very unwise it is to enter into such bargains, and therefore, should in future not enter into them. Where the language is plain and, therefore, no real question of construction arises, the court is bound to execute the contract as it finds it, and if it presses hardly upon one party or the other, the answer is that party entered into it with his eyes open." But it is to be observed that Lord Penzance, in delivering judgment, said: "But then it is urged against this that it [i.e., the condition as to receipt for last payment of rent] is an unreasonable provision, and that looking to the knowledge of the vendor, and looking to what he had the power to do, this is a condition—a portion of the agreement—which is inequitable and ought not to be upheld by the court. If the question arose upon a suit for specific performance, there might be a good deal to be said in that direction." It must, therefore, we think, be assumed that the rule in In re Banister is still operative, and that the statutory condition will afford no protection to the vendor in respect of breaches of covenants of which he is, or must be assumed to be, aware. Again, the statutory condition does not apply if " the contrary appears"—that is to say, it does not apply to any breaches of covenant which an intending purchaser can discover by taking a surveyor over the demised property. Practically, therefore, the statutory condition affords comparatively little advantage to the vendor.

The ordinary form of condition in use provides (subject to divers variations in language) that "the receipt for the last payment of rent accrued previously to the completion of the purchase shell be accepted as conclusive evidence of the performance of all the covenants and conditions contained in the lease, or of the effectual waiver of any breach thereof, up to the completion of the purchase." The effect is that the purchaser shall admit that the covenants and conditions have been performed and observed. The rale in In re Banister is applicable here also, and the purchaser is not bound to admit that which the vendor knows not to be the fact. If, therefore, the purchaser can discover any breach of which the vendor must have been aware, it would seem that he may refuse to complete unless an express waiver of such breach by the lessor is obtained. It seems to us worthy of consideration whether the form of the condition ought not be altered so as to provide that the lease of the premises may be inspected at the vendor's solicitor's office within one week prior to the day of sale, and that the premises will also be open to inspection, and that the purchaser shall be satisfied from such inspection, and from the production by the vendor of the receipt for the last payment of rent accrued previously to the completion of the purchase, of the performance of all the covenants and conditions contained in the lease. As regards breaches of covenant existing at the time of sale and discoverable by inspection of the property, this form of condition would, we think, render the vendor safe.


We recently briefly drew attention to the case of Scott v. Sampson (30 W. R. 541," L. It. 8 Q. B. D. 491) as being a decision which settles and elucidates the law on questions which have been frequently discussed, but as to which there has been, up to the present time, some doubt. In actions for defamation it has long been settled that the truth of the defamatory matter is a defence. The reason for this is obvious. A man of whom that which is true is published cannot have a right to pecuniary compensation if he is thereby damaged. He has sustained damnum absque injurid, for he can have no right to have the truth concealed. But in practice it is comparatively seldom that the person who has published the defamatory matter can Absolutely prove it, and of course if it cannot be proved it is a most dangerous course to plead that it is true. Moreover, a jury, when face to face with an issue directly involving the plaintiff's character, are reluctant positively to find against him, though they would be often willing enough indirectly to give the defendant the benefit of a very strong opinion that the defamatory matter was pretty near the truth by way of reduction of damages. There are cases in which it is morally certain that the plaintiff is very much what the defendant has said he is, where it may be known to a whole neighbourhood that he is, yet it would be impossible to prove it, and - therefore dangerous to justify. In such a case is it just that a person of that sort should come into court and recover damages, on the footing that he is a person of spotless reputation and the defendant the publisher of defamatory statements of an utterly wanton and unfounded or malignant character? It is obviously extremely difficult to hold an even balance between the interests of plaintiff and defendant in cases of defamation. It is very forcibly urged on the one side that, the action for defamation being one in respect of damage done to character, it must necessarily be a question, apart from any justification, what sort of character the plaintiff, with a view to the estimation of the damages, bore before the publication of the defamatory matter. Again, the damages in actions for defamation are vindictive, and the circumstances under which the defendant published the defamatory matter must be material in ascertaining how far he ought to be punished by way of damages. On the other hand, it is also very forcibly urged that it is hard to involve the plaintiff, of whom ex hypotftesi an untrue statement has been published, in an inquiry extending over his whole life without notice what unfavourable suggestions may be made or what transactions gone into; that this would often really be to allow the defendant, by way of defence, to deepen and stereotype popular rumours and calumnies which may have been from the outset wicked and malicious, or, at best, utterly idle and baseless gossip. The difficulty, we confess, does seem to us very great, because in some cases to shut out evidence going to the plaintiff's character, though not amounting to an actual justification, would really be allowing some impudent scoundrel, whose character was notorious in his own neighbourhood, to get heavy damages from some person who by honest indignation had been led to overstep the limits of prudence in his statements; on the other hand, in some cases to admit such evidence would be seriously detrimental to the cause of some victim of undeserved calumnies or unworthy prejudice. The decisions, which appear to have been mostly at Nisi Prius, present strong indications that these conflicting considerations have been present to the minds of judges. The decision we are discussing puts the matter, we suppose, on as satisfactory a footing as can be expected considering that the difficulty is inherent in the nature of things, but we doubt whether any hard and fast rule can be entirely satisfactory.

The judgment, which was that of Mathew and Cave, JJ., seems to be to the following effect. It analyzes the evidence as to the plaintiff's character, not amounting to a justification, but which may be tendered by the defendant in mitigation of damages, and divides such evidence into three classes—first, evidence of general reputation; secondly, evidence of rumours that the plaintiff had been guilty of matter imputed to him by the defamatory statement complained of; thirdly, evidence of particular acts or circumstances tending to show the plaintiff's disposition or character. In practice there would, perhaps, be some difficulty in always clearly discriminating between these three sorts of evidence, but still the distinctions seem sound and capable of being drawn, approximately at any rate. The judgment appears to hold that of these three sorts of evidence the first only is admissible on the part of the defendant. Another question also arose, which was one of pleading. Under the old system, the balance of authority seemed to be that general evidence of plaintiff's bad character was admissible in reduction of damages, and, as damages could not be pleaded to, this evidence was given under the plea of Not guilty. It appears that under the new system, whatever evidence of the kind may be admissible, the pleadings must give notice to the plaintiff of the intention to adduce it as a material fact in the case. We do not propose to discuss the pleading question; our concern is with the broader and more interesting aspect of the case. We cannot say that the judgment altogether removes our difficulties with regard to the two sorts of evidence which it holds inadmissible, though, as we remarked when noticing the case before, we think the decision will be accepted as good law, since it follows out the general tendency of the decisions on the subject.

With regard to the second sort of evidence—viz., that of rumours of the truth of the defamatory statement—this evidence can only be material in two ways; either as going to

the plaintiff's general character, or as softening the complexion of the defendant's wrongdoing by way of mitigation of damages. If the rumours were really prevalent to an extent calculated to damage the plaintiff's character, the evidence will come in under the first head. On the other hand, in case of rumours not prevalent to that extent, it seems doubtful whether the person who gives currency to an idle rumour ought to be in any better position than if he had been the original promulgator of it. At the same time we feel, to a great extent, the same difficulty with regard to this sort of evidence that we feel with regard to the whole subject. It surely must make the greatest difference in the moral complexion of the defendant's act whether he, out of pure malice, fabricated the defamatory statement, or whether he merely foolishly repeated what he heard elsewhere. We are quite in favour of stringent repression of wicked and idle gossip and scandal, but it is not the same thing, so far as the measure of damage is concerned, merely out of love of scandal to repeat a statement as it is to fabricate it. With regard to the case of a newspaper editor who, on the strength of rumour, gives a statement the extended and authoritative publication which a newspaper affords, we think that the previous existence of the rumour would afford much less ground of mitigation than in many other cases we could imagine. Still, in any case, as the damages are vindictive, we do confess we feel a difficulty iu shutting out circumstances that throw light on the character of the defendant's wrongdoing. If the damages in actions of defamation were merely regulated by the plaintiffs damage, pecuniary or otherwise, we should feel no difficulty in accepting with perfect satisfaction the ruling of the court on this head.

It seems clear that the first sort of evidence must, on principle, be admissible, because, as the plaintiff sues in respect of damage to character in public estimation, it must be material to the question of damages to show what his character in public estimation was. But in practice every one knows how unsatisfactory general evidence to character is. The probability is that most plaintiffs could get a sufficient number of persons, who would figure well enough in the witness-box, to come and swear up their character by general statements in answer to the evidence of witnesses who had sworn it down by general statements on behalf of the defendant. It would seem that such evidence must be admissible, but then when it came to cross-examination how would the case stand? It would seem, at first sight, according to the ruling with regard to the third sort of evidence, that it would be inadmissible to crossexamine these witnesses as to particular acts of misconduct by the plaintiff within their knowledge. This result would, however, almost amount to an absurdity. It has been held that witnesses to character on behalf of a prisoner may be cross-examined as to particular acts, and, possibly, it may be held that this case would be an exception to the inadmissibility of evidence of the third kind, on the ground that the evidence goes to the credibility of the evidence in chief.

With regard to the ruling as to evidence of the third kind, we feel here too some difficulty in point of principle. It is, no doubt, very difficult to say that a man who is libelled is to be prepared to justify the particular transactions of his whole life, though it must be remembered that the strength of this argument is much diminished if notice of the particular acts relied on must be given him by the pleadings. Again, another objection to the admissibility of such evidence is that it tends to incumber the trial with a number of side issues, which can be but very imperfectly inquired into, and as to which, therefore, the plaintiff may be much prejudiced, on the principle that if you only throw dirt enough some of it will stick. Still, it i3 never entirely satisfactory to receive general evidence, and yet shut out that investigation into particular facts upon which alone general statements can have any substantial basis. The rule laid down will, no doubt, protect many a plaintiff who has been substantially wronged by a defamer; on the other hand, it will be highly convenient to many a scoundrel who has got occasion against same person whose fault is rather imprudently to have said what is not very far from true, though he is unable to prove it by legal evidence, than to have maliciously and falsely taken away another's reputation. It is very difficult, as we said at the outset, to say on which side the balance of expediency lies. As against scandal-mongering society papers we should be disposed to hail the ruling with satisfaction, but there are many cases

I do not say tliat the Solicitor of Stamps was wrong; but only that his ruling, if right, seems decidedly to imply that the law is not unchanged. JuiUSCONSCLTBNCULUS.

Stone-buildings, Lincoln's-inn, May 15.


[2*o the Editor of the Solicitors' Journal.] Sir,—The letter of your correspondent, Mr. Sturt, and the case before Mr. Registrar Brougham, noted in last week's issue of your journal, call attention to a point in bankruptcy which is of the utmost importance to creditors and is one of the greatest evils of the present law. The point was mentioned in the comments upon the Government Bill of last session, published in your issue of the 4th of February last {ante, p. 211), and it is earnestly to be hoped that it will be specially provided for in any amendment of the law of bankruptcy which may be enacted. My oDly object in troubling you with this letter is, however, to raise a subsidiary point upon which, to my mind, your correspondent would appear to have fallen into a slight error, or it may be I am wrong in the construction I put upon his letter in this respect. He says that not only does the landlord get paid for the fixtures twice over, but he is also

imaginable in 'which we fear its working will not be ground for unmixed satisfaction. Unfortunately the law cannot be altered to meet the particular class of plaintiff suing or defendant sued. It should be observed, in estimating the working in practice of the decision, that, in the case in which it was pronounced, the plaintiff was not called on his own behalf. In cases in which the plaintiff is obliged to be called on his own behalf, questions relating to particular acts go to his credit, and cannot be excluded as it would seem. This, in many cases, will mitigate any inconvenience which might otherwise be produced by the effect of the exclusion of the third head of evidence.


[To the Editor of the Solicitors' Journal.]

Sir,—Some time ago, in perusing an abstract, I came across a mortgage deed of the year 1853, settled by the lato Mr. Lewin, in which it was stipulated that, if required by the mortgagee, the principal and interest should be paid in silver. As the currency question and the relation between the precious metals are now receiving a large share of public attention, it seems a favourable opportunity to ask whether any of your readers can throw any light upon this stipulation.

It is, of course, well known that, in 1853, iu consequence of the gold discoveries in California and Australia, gold had fallen slightly in valuo as measured by silver, and it would seem that the conveyancer contemplated the possibility of a further fall. Still it is difficult to imagine any ttate of circumstances in which the provision iu question would have had any operation. So long as gold remained (except for very small sums) the sole legal tender, it would not bo to the mortgagee's interest to enforce it ; if silver were made the sole legal tender, the provision that payment should be in that metal would be superfluous; and even under a double standard, such as is desired by the bi-mctallists of the present day, the enactment relating to legal tender would, no doubt, be held to prevail against any contract or stipulation to the contrary contained iu any instrument. There is, perhaps, one other possible explanation, but of such slight probability as to be scarcely worth considering. Can it be that Mr. Lenin thought it possible that with greatly altered relative productions of gold and silver, no legally established ratio of value would be maintainable f

It would appear then that, even in view of a possible alteration in the law relating to the standard of value, no special provision would be needed in contracts providing for future payments. This consideration derives practical importance from the instance narrated above; for it would undoubtedly be a material argument against any proposed change that it required to ba guarded against by special provisions. In fact, however, the proposals of the bi-metallists—viz., the free coinage of silver, and making silver an unlimited legal tender, carried out by an international agreement entered into by the chief specie-using countries— would probably be found not in any way to affect the internal transactions of any country. Conveyances.


[2"o the Editor of the Solicitors' Journal.]

Sir,—If your correspondent " Veritas" is right in thinking that section 8 of the Stamp Act, 1870, has made no alteration in the previous law, there is 'good ground for concluding that the Solicitor of Stamps was wrong in holding that, in the case put by Mr. Simey, a separate stamp is required.

In RushbrooJce v. Hood (17 L. J. C P. 58) certain copyhold lands were sold, and the purchaser borrowed part of the purchase-money from a third person to be secured by mortgage of the lands. A deed was entered into between the vendors, the purchaser, and the mortgagee, whereby, after reciting that " pursuant to an arrangement between the parties and for the purpose of carrying the agreements for mortgage and for purchase simultaneously into effect" certain surrenders of the lands had been made, the vendors covenanted for title with the mortgagee and also separately with the purchaser. The court held that this deed required only a single stamp. They seem to have gone a good deal upon the language of 12 Anne, st. 2, c. 9, e. 24; which differs from that of section 8 of the Stamp Act.

But, supposing that the latter section has added nothing to the scope of the former, it can hardly be contended that Mr. Simey's " declaration substituting the Tent for tho land as security " is more obviously a " distinct matter" than the covenant for title with the mortgagee ; who was a mere stranger to tho purchaser, as such.

The case of Doe d. Hartwright v. Fereday (12 Ad. & E. 23) makes even more strongly for the same conclusion. Here the court seem to have gone upon the language of 55 Geo. 3, c. 184,

entitled to prove against the estate for any damage he may sustain by the disclaimer. Now, that proposition, I submit, must be allowed only with a certain limitation. If, as a result of the disclaimer, the landlord acquires a valuable property in the tenant's fixtures, then at least I thiuk tho value of those fixtures must be deducted from the amount of the proof which otherwise he would be entitled to make against the estate. The real measure of the damage he would sustain by the disclaimer then would be the difference between the rent reserved by the lease for the remainder of the term and the rent which could be obtained by him from a new tenant, less a reduction for present proof on the difference in the future rents, and less also the value of any benefit he might obtain by reason of the disclaimer. Iu this way it might be that his claim for proof would be nil. I am not aware that this has been decided in any case, but it appears to me so reasonable and fair, that I have felt some confidence in advising to this effect when the question has come before me in practice. A Solicitor.

[2*o the Editor of the Solicitors' Journal.]

Sir,—Are Messrs. Prideaux (11th ed.) aud Davidson (12th ed. Concise Convey.) correct in using the words "iu fee simple" in the habendum of a mortgage of freeholds to an incorporated building society instead of the words, "and their successors" previously iu use P If section 51 was not intended to apply exclusively to deeds containing limitations to iudividuals other than corporations sole, why were the words "without the words heirs" used in that section?

Section 39 [power for court to bind interest of married woman] confers on the court a power of which mauy testators would not approve, and it would seem desirable that the attention of intending testators should be called to this power in order that its exercise may bi prevented if necessary. So far as I know, none of the books contain any trust framed with a view to prevent the power arising, or give any suggestions for framing such a trust. Might not the trust follow the ordinary form of trust of a protected life interest to a man, so that any order of the court would cause a forfeiture of the married woman's interest?


[As to the first point, see observations under the head of "Current Topics." The second point raised by our ingenious correspondent needs a good deal of consideration.—Ed. S. J.]

[2"o the Editor of the Solicitors' Journal.]

Sir,—Cau any of your numerous readers inform me whether, if you vary the provisions of section 20 of the Conveyancing and Law of Property Act, 1881, as to notice, you thereby lose the benefit of the statutory power of sale f E.

May 16.

[Section 19 (2) provides that " the provisions of this Aot relating to the foregoing powers [which include the power to sell], comprised either in this section, or in any subsequent section regulating the exercise of those powers, may be varied or extended by the mortgage deed, and as so varied or extended shall, as far as may be, operate in the like manner, and with all the like incidents, effects, and consequences, as if such variations or extensions were contained in this Aot." Under this provision the period of the notice specified in section 20 (I.) may be made shorter or longer, but it would seem that notice cannot be altogether dispensed with, for that would not be varying or extending the provision of section 20 (i.), but annulling it.—Ed. S. J.]

[To the Editor of the Solicitors' Journal.]

Sir,—Will you allow me to make your columns the medium for suggesting to the officials of the Principal Registry of the Probate Division the desirability of writing in the margin of grants of probate in words at length (instead of in figures according to the present practice) the amount of duty paid by stamps on the affidavit filed f

In grants which I have obtained, and others which I have inspected, since the last Act came into operation, I have frequently observed that the figures have been very indistinctly written. For instance, a few days since I obtained a probate upon which I paid £111 for duty. The amonnt is certified in the margin of the grant by three very small straight strokes which could, with the greatest ease, be converted into other figures, and which a small blot would obliterate altogether.

1, Salisbnry-street, Strand, W.O., May 16. James S, Cole.


Administhaion Op Bankrupt's EstatePower Op Court To Order BankRupt To PtLE Cash AccountBankruptcy Act, 1869, s. 19.—In a case of Ex parte Mair, before the Court of Appeal on the 11th inst., a question arose as to the power of the court to order a bankrnpb to file a oash account. The bankrupt had carried on an extensive business as a promoter of public companies. In November, 1881, before his adjudication, he had filed a liquidation petition, under wbioh he produced a statement of his affairs, which showed that bis liabilities amounted to £81,436, and his assets to £21,038. He was examined privately by the trustee and before the registrar, as to his affairs, and the 17th of March was fixed for his public examination. The examination was adjourned several times, and ultimately, on the 21st of April, Mr. Registrar Uazlitt ordered that the bankrupt should within fourteen days file a full and sufficient cash account, containing particulars of his receipts and payments from the 1st of January, 1880, until the 17th of November, 1881 ; and the public examination was farther adjourned until the 19th of May. From this order the bankrupt appealed, and he made an affidavit in whioh he said that it was impossible for him to give any cash account, as he had never kept any books. The only booka which he had ever had were bis banker's pass-books, and these he had given up to the trustee, and be bad given the trustee all the information in his power concerning his estate. Seotiou 19 provides that "the bankrupt shall to the utmost of his power aid in the realization of his property, and the distribution of the proceeds among his creditors. He shall produce a statement of his affairs to the first meeting of creditors, and shall be publicly examined thereon on a day to be named by the comt, and snbjeot to such adjourned pnblio examination as the court may direct. He shall give such inventory of his property, such list of his creditors and debtors, and of the debta due to and from them respectively, submit to such examination in respect of his property or his creditors, attend suoh meetings of his creditors, wait at suob times on the trustee, exeoute such powers of attorney, conveyance!1, deeds, and instruments, and generally do all such acts and things in relation to his property and the distribution of the proceeds among his creditors as may be reasonably required by the trustee, or may be prescibed by Rules of Court, or be directed by the court by any special order or orders in reference to any particular bankruptcy, or made on the occasion of any special application by the trustee cr any creditor." In support of the appoal it was urged that the order was oppressive; that it had been made without evidence; and that section 19 gave the court no jurisdiction to make it. The Court of Appeal (jessel, M.R, and Lindley andHoLKER, L.JJ.) affirmed the decision. Jessel, M.R., said that the bankrupt was not an ordinary bankrupt. He seemed to have ennied on a very extensive business iu what was commonly called the promotion of companies. He said that he had never kept any books. In France a man in business who aoted in that way would be subject to very serious criminal proceedings. There was no such law in England, bt<t still ha was not exemptfrom censure, and he mu.-t not expect to be treated in the same way as an ordinary business man who had kept books. What did he say about his other papers, such as counterfoils of cheques, vouchers, diaries, and letters? They were lost or destroyed. Not one was forthcoming. Not a book or paper was to be found, except Borne recent counteifoils and a banker's pass-book. The registrar, who had had very great experience, and who know that an order for a cash account ought not to be made except iu a very extremo case, had made this order. The bankrupt's proceedings were certainly very suspicious and unsatisfactory, and if the registrar had power to make the order, his lordship could not conceive a more proper order. It was said that the bankrupt had no money or ought to have no money. But the Act required a bankrupt to do a great many things which ordinarily cost money. With very few exceptions bankrupts did employ a solicitor, and generally an accountant; certainly bankrupts of this class did. The Legislature knew perfectly well that bankrupts somehow or other did find money. Therefore, the argument that it would cost money to make outa cash account was wotth nothing. Mr. Registrar Pepys (the registrar in court) had told his lordship that the registrars are very careful iu making such orders, because they might be very oppressive. Was there, then, jurisdiction to make such an order? It was objeoted that it could not le made wHiout evidence. Bu*, if the court could see from the file of proceedings that there, were circumstances which called for such an order, it did not require oral evidence. If it appeared that a man had kept

no books, that was sufficient evidence. Then it was said that section 19 did not authorize the order at all. His lordship could not agree to that ; section 19 was expressed in general terms. The words, "in relation to his property," were very large, and enabled the court to require anything in the shape of an account. A discretion was given to the court. Both these objections were taken in Ex parte Crawford, (28 L. T., New Series, 244) and were overruled by Bacon, C.J., who said, "I cannot permit bankrupts to prescribe to their trustees what account* they shall have; why they shall not have this or that account." The practice had ever since been in accordance with that case. The bankrupt had sworn that he could not furnish any other cash acoount than that which appeared in his banker's pass-book. It was quite consistent with this that be could furnish additional particulars as to the items which were given there. If that was the true reading of bia affidavit, it was no answer at all to the trustee's demand. If he could show by whom the moneys entered in the banker's book had been paid to him, this might supply most valuable information. But, if that was not the true reading of the affidavit, his lordship conld not attach any woight to it. It was impossible to suppose that the bankrupt could not give any information as to the sources from which the sums of money mentioned in the pass-book were derived. His lordship did not mean to attribute to the bankrupt any intention to deceive; but his affidavit could not be true if it was read in the latter sense. Either way it was no answer to the demand. One friendly creditor said that he was willing to help the bankrupt to furnish an account, and no doubt other creditors would do the same if he asked thorn. It could uot be called oppressive to require a man who had no books or papers to go and ask his creditors to help him make out an account. Till he had done that it would not do for him to say—I have destroyed my books and papers and, therefore, I can do nothing. Lindley, L.J., also thought that the registrar's order was right. To show that he had jurisdiction to make it, it was only necessary to read section 19. It was quite right that an order to file a cash account should not be made as a matter of course ; it would be oppressive and vexatious. Bat in this case the registrar had exercised his discretion rightly. The bankrupt said that he could furnish no cash account, but could only refer to bis banker's pass-book. Possibly he could not do it offhand or without taking some trouble. But it was his duty to furnish an account, and ho must try to do his best. It was idle to say that he could do nothing. The trustee was entitled to an account to the best of the bankrupt's ability. Holker, L.J., concurred.—Solicitors, /. B. Churchill; Emmanuel <t Simmondi.

Debt-Novation—Evidence.—In a caw of Ex parte Rirolta, before the Court of Appeal on the 11th inst., the question arose whether there had been a novation of a cebt, and whether, therefore, a creditor, to whom a debt was originally due jointly by two of the partners in a firm consistimg of three persons, was entitled to prove for the debt in the bankruptcy of the three. Mr. Registrjr Murray held that the evidence did not prove a novation, and that the proof could not be admitted. The Court of Appeal (jessel, M.R , and Lindley and Holker, L.JJ.) affirmed the decision. It was urged that the authorities showed that very slight evidence was sufficient to prove a novation. Jessel, M.R., said that a great deal of nonsense had been talked on the subject, and he thought it right to state his view of the law. It waa a very simple proposition. A debt was due to a man by one person or by more. The creditor miirrit agree with his debtors that, in consideration of his extinguishing or releasing the debt, they and some other person should become liable to hira. It was, in fact, the creation of a new debt iu consideration of the ex'inguiahment of the old one. An agreement to do this must be proved like any other agreement. It had been said in some cates that vsry little evidence was required to prove it. But, whether the evidence was to be little or much, it must be sufficient to prove the agreement. The rules of evidence were the sime as in relation to the proof of any other agreement. If a man had been dealing with a firm, and he, with knowledge of the retirement of one of the partners, continued dealing with the new hrm, and accounts were made out between him and the new firm, it was very easy for the judge to come to the conclusion that ho had released the old firm and had agreed to accept the new firm as his debtors. It was an inference of 6uch an agreement from the course of business, but it must be an inference which the judge eould properly draw from the circumstances. In the present case there was not sufficient evidence of such an agreement. Lindlkt, L.J., concurred. Holker, L.J., said that cases had teen cited to show that jndg'8 formerly thought that a very little would constitute an agreement of this kind. That was very vague. Sufficient evidence must be adduced to satisfy the tribunal before which the question arose.—Solicitors, it. II. Wilkint; Linklaters, Hackwood, §■ Co.

Insolvency— Glome Of ProceedingsProperty Acquired By InsolVent After Disciiarqe In The InsolvencyBankruptcy Repeal Act, 18G9 (32 & 33 Vict. C. 83), s. 15.—On the 10th inst., the Court of Appeal (jessel, M.R., and Lindley and Holker, L.JJ.) affirmed the decision of Kay, J., in Fordham v. ClagM (30 W. R. 467). The main question was »■ to tha construction of section 15 of the Bankruptcy Repeal Act, 1869 (32 & 33 Vict. c. 83). Section 4 of the Act provides that "the Court of Bankruptcy in London shall have all the jurisdiction, powers, and authorities possessed at the commencement of tha Bankruptcy Act, 1861, by the late court for the relief of insolvent debtors in England (in this part of this Act called the late Insolvent Debtors' Court), in relation to all matters then pending in that court, and not completed at the commencement of this Aet, and all matters at the commencement of this Act pending in that court or in the county courts undor the Acts for the relief of insolventdsbtors, shall (snbjeot to the express provisions of this part of tbiaj Act) be continued and completed therein as if this Act had not been passed." By section 7: "Where a bankrupt has before adjudication of bankruptcy taken the benefit of any Act for the relief of insolvent debtors, nothing in the Bankruptcy Act, 1869, shall interfere wit'i the operation of the Act of which he so took the benefit in respect of the liability of property acquired after his discharge under that Act, if and so far a? any such K»bility would have existed if the Bankruptcy Act, 1869, had not been passed.'' By S'ction 15: ■' For the purpose of winding up and terminating all matters wbioh at tb e commencement of this Act may be pending in the late Insolvent Debtors' Court, and in oounty courts under the Acts for the relief of insolvent debtors, the following provisions shall have effect, nsmely :—(I) Every insolvency shall at the expiration of twelve months from the commencement of this Act, or at the expiration of twenty years from the date of the fi'ing of the petition (whichever last happens), te closed; (2) b?fore the expiration of the said twelve months or twenty years, as the case may be, any assignee, creditor, or other person interested in an insolvency may apply in the prescribed manner to the court in which it is pending to have the close of such insolvency postponed and the judge of such court, on sufficient ca'ise being shown for the postponement, may, subject to the Rules of C< urt, postpone such close for such period and on such terms and conditions (if any) a» he thinks just; (8) if the close is postponed, the same proceedings may be had before the expiration of the period of postponement a9 is provided by this section befjre the exdration of the said twenty years; (4) if sufficient cause for postponement isnotshoivn before the expiration of the said twelve months, or twenty years, or the period of postponement (as the case may be), or of such further period as may, Buhjeot to the Rules of Court be allowed for au application by the court in which the case is pending, the insolvency shall, nt the expiration of the said time', be ipso faelo closed, and thereupon the insolvent, or the heirs, devisees, or personal reprev-ntatives of the insolvent (if he is dead), si all be in the sime position, end have the same richta in all respects, as if the insolvent had been bankrupt, and bad at the date of the losing obtiine l his discharge under the Bunkruptey Act, 1869." The facts were shortly the9e:— In June, 1836, one Clsgett, be:ng then in custody for debt, took the benefit of the Insolvent Debtors' Relief Act, He obtained his discbarge, and be as'igned to Lis creditors' rs ignee all the property which he possessed up to the time of his imprisonment. In November, 1836, under the usual warrant of attorney, judgment was entered up rgainst him in the name of the assijnne. Clagett Bu* sequently became insolvent three times, in 1845, 1819, and 1850. In July, 1S54, he, being then a trader, was adjudicated a bankrupt under the Bankruptcy Act, 1849, and in November, 1854, he obtained a certificite of conformity. In October, 1S36, after the discharge in the first insolvency, his vrifn's father died intestate, the wife being his sole next of kin. No s-ttlement had beeu made on the marriage of Mrs. Clagett. She died in March, 1877, and Clagett died in January, 1880. Tbis action was brought to admini ter his estate, and an administration decree was made. Under this decree the a-signee in the firBt insolvency applied for leave to prove for the amount of the judgment which had been entered up in his name. Kay, J., hell that, by virtue of section 15 of the Bankruptcy Repeal Act, the ins dvency was absolutely closed, and that no proceedings could be taken to enforce the judgment entered up under ir. Jessel, M.R , sai l that ti e words of the Act were by no means clear. But at the date of its passing matters stood in this way. The property of an insolvent up to the date of his discharge vested in his provisional cssignee. After that date he kept whatever property he acquired, nubjectto the right of the assignee to enter up judgment against him, whioh could be enforced againjtany after-acquired property of the debtor to Buvh an extent as the court should direct on an application made for the purpose. The court never allowed the judgment to be enforced to the extent of the whole of the insolvent's propeity. The insolvent was encouraged to earn his livelihood after he had got his discharge. He was allowed to maintain himself in a reasonable way, and he was not deprived of the means of carrying on his business. After providing for these things his past creditors were considered to be entitled to the surplus of his after-acquired property, Bo far as it was necessary to pay their del ts. The Repeal Act of 1869 was intended to abolish insolvency, and to as-imilate the position of insolvents to that of bankrupts. In bankruptcy the property acquired by the bankrupt after his discharge was free from any liability to his past creditors. The Legislature had to consider what was to be done with past insolvencies. They were to be put on the same footing as future insolvencies, subject to not unduly interfering with existing rights. What had always been the course taken by the Legislature in such cases? The exercise of existing rightsjwas cut down to a limited period, but the holders of those rights were not deprived of them altogether. This had been done where the period of limitation fixed by a Statute of Limitations was to be shortened. So in this case it might have been expeoted that the Legislature would say, You shall have a limited period within which you may enforce your jadgment, and after that your right shall cease. There might, however, be a reversionary interest which had not fallen into possession at the end of the limited time, and in that case power would be given to the court to postpone the closing of the insolvency if there were property which might fall in. All this was fairly provided for by section 15, though his lordship agreed that it was expressed in language which was fairly open to more than one interpretation, A bankrupt who had obtained his discharge under the Bankruptcy Act, 1869, at the date of the closing of the insolvency would have been in this position, that all the property which he then had would have vested in the trustee in the bankruptcy, while his after-acquired property would have been free. If section 15 were applied literally to an insolvent he would lese the property which he had acquired since his discharge entirely, instead of losing only the surplus after providing for his maintenance and the carrying on of his business. Tbis would amount to a complete forfeiture of all the property of the insolvent. Would not that be an absurd and monstrous construction of an Act passed for the relief of insolvents F Would it not be a monstrons injustice to deprive them of their property without any compensation? If inch a construction could be avoided in no other way (which his lordship thought it could), it could be avoided on the ground that the court was bound

to interpret the words with regard to the intention of the Legislature. He thought that section 15 did not afhet the disposition . f proparty to which a right had been previously acquired. When it said that the insolvency should, at the expiration of the time mentioned, be "ipso facto closed," he should have thought, if there had been no other words, that this precluded any proceedings upon the judgment. And the subsequent words showed that the rights of the insolvent were being dealt with. He was to have the same rights as if at the date of the closing be bad obtained his discharge in a bsnkiuptcy. He was to he free from all claims of his creditors against property acquired sinae his discharge in the insolvency, as if ha had obtained a discharge in bankruptcy. But the rights which he had already acquired under the Insolvency Aots were not taken away. Looking at what the intention wp.s, to put any other construction on the words would be to attribute to the Legislature an absurd and perverse meaning. Lindley, L.J., took the same view of the construction of section 15. Any other construction led to a conclusion to which no court ought to be driven if it was possible to avoid it. It would put the insolvent in a worse position than he was before the Act wao passed. Holker, L.J., conourred.—Solicitors, Home, Hurler, <t Birhett; Turner & Low; Parkers.

Company—Winding UpLandlord—Leave To Distrain Por RestCompanies Act, 1862, ss. 85, 87, 163.—In a casJ of 11 re The Oak Pits Col icry Company, before the Court of Appeal on the 16;h inst., a question aro-e is to the claim of a landlord to be paid in full rent which had acoruel duo after the commencement of the winding up of a cempany. In 1858 the cimpany became lessees of the Oak Pits Colliery, under a lease which they afterwards mortgaged by a sub-lease. In 1878 they negotiated with the lessor for a surrender of the lease, and for a new lease of the colliery, and also of the minerals under 163 acres of adjoining property, and in July, 1878, the company agreed with the mortgagees to give them a mortgsge of this new lea-e when obtained. Esrly in 1879 these negotiations resulted in an agreement for a new lease at a dead ront of £400 per annum and certain royalties. The company thereupon brought plant and machinery on to the 163 acres and sank thr^e trial p:ts, in which oal was found. The surface of the 163 acr^s was not demised to the company, tho agreement being that they should work the coal under tho 163 acres from the Oak Pits Colliery, and not by means of an independent shaft sunk in the 163 acres. On the 28th of January, 1880, tho mortgagees took possession of the colliery, but did not interfere with the 163 acres or the minerals thereunder. On the 31st of January, 1880, a wind, ing-iip ptt tion was presented, under which a winding-up order was made and a liquidator appointed. The liquidator did not take possession either of the colliery, which was already in the possession of the mortgagees, or of the 163 acres, or of the minerals under them. The workings in the oolliery through which the minerals under the 163 acres were to be got were full of water and the trial pits could not be used for working pnrposes, so that the liquidator oould not in fact have got at or worked the minerals under the 103 acres. No steps were taken by the liquidator to give them up to the landlord, and the plant and machinery used by the company for making the trial pits remains 1 on the 163 acres until they were Bold in July, 1881, after previous unsuccessful efforts, for a sum of £179. The landlord applied on May 30, 1881, for leave to distrain on the plant and machinery, aod Kay, J., raide an order for payment by the liquidator in full of the whole rent of £400 per annum which had accrued since the commencement of the windiog up. The Court of Appeal (baogallay, Lindley, and Holker, L.JJ.) reversed the decision. Lindley, L.J., who delivered the judgment of the court, said that it appeared to him that the liquidator never had possession of any part of the colliery or of the minerals under the 163 acres. The possession of the colliery was in the mort^ageis. The possession of the surface of the 163 aores was in the landlord, and not in the company, although some plant and machinery belonging to the company were on this property or in the trial pits. The possession of the minerals in the 163 acres had never in fact been taken by the company. The company had done no more than ascertain where the minerals were. They had a right to t»ke possesion of them, but had not yet exercised that right. Even if the company could be considered as having ever taken possession of them the liquidator never in any way interfered with them. His possession, if any, of those minerals was a mere consequence of the equitable ownership in them remaining in the company subject to the equitable mortgage. Another point of some importance appeared to have been overlooked in the court below. The surfaos of the 163 acres was not to be leased to the company. Consequently the goods and ohattels or the company upon such surface oould not have been distrained upon for rent in arrear if a lease bad been granted, and if no winding-up order had been made; for a distress for rent oould only be made on the property held by the tenant of the landlord and in respeot of whioh the rent was payable. Quite apart, therefore, from section 163 of the Companies Act, 1862, the landlord could not have distrained upon the plan', and maohinery of the company on the 163 aores ; and it was only that plant and machinery whioh he sought leave to distrain upon. It appeared to the court, therefore, that the order appealed from could not be supported on the grounds on whioh the learned judge in the oonrt below based his decision. Nor oould it, ha thought, be supported on any other grounds. Toe object of the windingup provisions ot the Companies Act, 1862, was to put all unsecured creditors upon an equality and to pay them pari passu. A landlord who had not put in a distress before the commencement of the winding up was an unseoured creditor. He oould prove against the company under section 168 for all rent in arrear at the time of bis proof; but bis right to distrain was taken away by section 163 unless circumstances existed which, in the opinion of the court, required it to give him leave to distrain under section 87. In all cases, however, in which a landlord sought t > distrain after a winding-up order, or to be paid bis rent in priority to other creditors, be must show why he should have such an advantage over the other creditors, The decisions upon this subject might be

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