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of a very trivial character. We venture to submit that the distinction between damage by user and damage by execution of the works is shadowy and unsatisfactory; but at the same time it must be granted that it is too well established to be overthrown by any power but that of the Legislature. The expression "injury to land" would seem to be primarily confined to some direct and immediate damage to the physical condition of the land; but this meaning is enlarged under the Railway Acts so as to include the depreciation which results from the execution of works in the neighbourhood. This can only be effected by interference with the uses to which the land is put by the occupier; and it seems to be settled that the only subject of compensation is the existing use to which the land is put, without any reference to its future capabilities. Thus Walker's trustees in the recent case were fortunate enough to get compensation because they had a manufactory in full work; if it had been in process of erection their claim would have failed. There is considerable difficulty, no doubt, in furnishing a proper test of damage in such cases; but we should be glad to see some more practical course adopted than that of making the right to compensation depend upon the success of a supposititious action. We shall conclude by stating one further anomaly in the law of compensation, which is closely connected with the subject under discussion. It is this. If a shop, hotel, manufactory, &c., is actually taken by the company, they have to pay for it as a going concern-in other words, its custom or trade is part of the subject-matter of compensation. But the traffic may be diverted, the custom of the house destroyed, and its goodwill rendered valueless without any compensation being payable. Let us put a hypothetical case in illustration of this last distinction. A public-house stands close to a manufactory, and derives its entire revenue from the custom of the operatives. If the line runs through the manufactory without actually touching the public-house, although the value of the latter is reduced to nil, it will not be "injuriously affected," whereas if it is itself required to be "taken for the purposes of the undertaking," the company must pay the capitalized value of its annual profits.

is the importance of inserting in the sub-lease an express covenant by the sub-lessee to observe and perform all the covenants in the head lease, except the covenant for payment of rent. The result of the recent decision will, probably, be to render less common the practice of setting out in a sub-lease covenants copied from those in the original lease. There can be no doubt that a covenant by the sub-lessee to observe and perform all the covenants and provisions on the part of the lessee contained in the head lease is equally effectual, and it is, of course, a great deal less cumbrous than the former practice. The reason why this course has not been more frequently adopted is probably that, as the sub-lessee must necessarily have a certified copy of the original lease, the saving in cost is not very great. There is now, however, the additional reason for requiring the under-lease to be in this form that (if the two judges of the Court of Appeal are right) the mesne landlord will thereby obtain the right to be indemnified against the costs of reasonably defending actions on the covenants of the head lease. When the Solicitors Remuneration Act has come into full operation we shall probably find sub-leases reduced to much more reasonable dimensions.

The course to be pursued by the mesne landlord, when proceedings are taken against him by the head landlord for breach of covenant, has now become clearly marked out. If the sublease contains a covenant by the sub-lessee to observe and perform the covenants in the head lease, the mesne landlord will be entitled to recover the costs of reasonably defending the action by the head landlord. In order to insure that the action is reasonably defended, the mesne landlord should, before taking any steps, give notice to the sub-lessee of the claim of the head landlord, and allow him the opportunity of defending. "If," said Lord Justice Brett in the recent case, "the mesne landlord has given the sub-lessee notice of the claim against him, and given him an opportunity of defending if he choose; if, then, the third party will do nothing, the mesne landlord has reason to defend the case." Since the mesne landlord has usually himself no knowledge whether breaches of covenant have or have not been committed, it is for the sub-lessee to tell him whether he may or may not safely defend (see Rolph v. Carrick, 16 W. R. 252). If the sub-lessee says, "Do not defend"; of course, the mesne landmesne landlord proceeds bona fide to defend the action, he will, it seems, be presumed to have acted reasonably. At all events, he may, unless expressly forbidden by the sub-lessee, incur the expense of investigating the head landlord's claim (see Blyth v. Smith, 5 M. & Gr. 405).

THE INDEMNITIES OF A MESNE LAND- lord obeys. If the sub-lessee omits to give any directions, and the

LORD. II.

WE pointed out last week the difference in the state of facts which exists between the recent case of Hornby v. Cardwell (30 W. R. 263) and the earlier cases in which it was held that there was no contract of indemnity by the sub-lessee. In the earlier cases there was only a contract by the sub-lessee to perform a set of covenants identical in terms with those of the head lease; in the recent case the house was let "subject in all respects to the terms of the existing lease and the covenants and stipulations contained therein." According to Lords Justices Brett and Cotton there is to be implied from these words a contract by the sub-lessee to indemnify the mesne landlord. "The question is," said Lord Justice Brett, "whether the mesne landlord can recover the costs of defending the first action. That depends, first of all, upon whether he could recover these costs unless in the contract between

him and the third party there was to be implied a contract of indemnity, and I think he could not. Can such a contract be inferred? It seems to me that, upon a proper construction of the sub-lease, there was a contract by the third party to fulfil, as between him and the defendant, the covenants which the defendant was bound to fulfil as between him and the plaintiff." The result is that where a sub-lessee has covenanted or agreed to observe and perform all the covenants in the head lease, costs incurred by the mesne landlord in reasonably defending an action brought against him by the head landlord on the covenants of the head lease may be recovered by him against the sub-lessee. On the other hand, if Penley v. Watts (7 M. & W. 661) is still law, where the sub-lessee has merely covenanted or agreed to observe and perform certain covenants which happen to be identical in terms with those in the head lease, there is no implied contract of indemnity. The two decisions are thus distinguishable, and may possibly both stand together. The first lesson which the reçent case teaches to mesne landlords

REVIEWS.

DANIELL'S CHANCERY PRACTICE.

THE PRACTICE OF THE CHANCERY DIVISION OF THE HIGH COURT OF JUSTICE AND ON APPEAL THEREFROM, BEING THE SIXTH EDITION OF DANIELL'S CHANCERY PRACTICE, &c. By LEONARD FIELD, EDWARD CLENNELL DUNN, and THEODORE RIBTON, Barristers-at-Law, assisted by WILLIAM HENRY UPJOHN, Barrister-at-Law. Vol. I. Stevens & Sons.

welcomed, and we are glad that we can speak favourably of the This new edition of the standard Chancery Practice will be generally manner in which the editors have accomplished their difficult task of deciding what parts of the old work should be rejected, and of adapting the parts retained to the new practice. There is to be found, in every part of the book we have examined, evidence of great care; the cases are not merely jotted down, but analysed and considered, and no pains appear to have been spared to render the information given both accurate the result of our examination of the work. and complete. This is high praise, but we think it is fully warranted by

The present volume contains the practice relating to an action in the Chancery Division from its commencement down to enforcing the execution of judgments and orders. After a short introduction on the constitution of the Supreme Court and a few words on the present and former modes of commencing a chancery action, we have chapters on the persons who may bring an action and the persons against whom au action may be brought, followed by chapters on parties and proceedings on the part of the plaintiff previous to the issue of the writ. The various stages of an action are then taken up and dealt with in successive chapters and sections of chapters.

We may take as an example of the mode in which the new part of the

book has been executed the [section of Chapter IV. relating to parties by service of notice of relief. The arrangement of the matter is unexceptionable. We have, first of all, the provision of ord. 16, r. 17; the general scope of the provision is explained, and then the mode in which the notice is to be given by a defendant claiming contribution, and the cases to which the rule has or has not been held to apply. Then we have the provision of rule 19 of the order, as to notice by the plaintiff and the mode of application for leave to issue the notice, followed by the mode of appearance and defence by the person served, and, lastly, the course to be pursued when the person served appears. The effect of the cases is given very tersely, and, so far as we have observed, all the cases of importance are noticed. This is a good specimen of the execution of the book in general. It is exactly what it professes to be-a concise and careful digest of the practice. If the subsequent volume is carried out with the ability and accuracy which characterize the present volume, Daniell will undoubtedly retain the position it has so long held. The value of the present volume is increased by a full and well-arranged index.

CORRESPONDENCE.

A JUSTICES' CLERK.-Next week.

PAINTING AND LETTERING MILESTONES.

[To the Editor of the Solicitors' Journal.] Sir,-It appears to me that the justices of Leicestershire, and the very able clerk of the peace of that county, are involving this matter in great and unnecessary confusion. Surely the case is as clear as day. The auditor in auditing the highway accounts disallows certain expenses incurred by the highway board in painting and lettering the milestones upon a highway, and the question arises by what authority such an expense is incurred. Certainly not by virtue of any Act of Parliament, inasmuch as neither the Highway Act of 1835 nor any other statutory enactment gives any such power, the highway authorities being empowered only to erect guide-posts where two or more ways meet; not milestones at any and every point where a highway or other authority may choose to imagine them to be desirable. But the county authorities conceive that they have the right (any Act of Parliament or rule of law to the contrary notwithstanding) to impose as a condition, upon their repaying half the cost of the repairs of the main roads out of the county rate under the authority of the Act of 1878, that milestones shall be erected and kept in repair. The rules and regulations made by the justices of Leicestershire in this respect are clearly ultrà vires, and go beyond their powers altogether. Before the county authority can repay half the cost of the maintenance of the main roads two things must happen. The accounts must be audited, and the roads must be maintained to the satisfaction of the county surveyor. The erection of milestones or the repairs of same cannot properly fall within any rules or regulations to be made by the county authority under the Highway and Locomotives (Amendment) Act, 1878, inasmuch as such rules or regulations cannot require anything to be done which the highway authorities cannot themselves do by virtue of some existing statutory enactment.

The clerk of the peace for the county of Leicester is apprehensive that some wayfaring man may err for want of a guide-post. I have only to remind him that as to guide-posts it is clear that, under section 24 of the Highway Act of 1835, it would be a dereliction of duty on the part of the highway authorities not to erect and maintain such. H. A. OUSTON, Author of " Highway Law," &c.

Leicester, June 27.

CASES OF THE WEEK.

CONTRACT FOR SALE OF GOODS-MONTHLY DELIVERIES-POSTPONEMENT OF DELIVERIES AT REQUEST OF PURCHASER-REFUSAL TO DELIVER-MEASURE OF DAMAGES-SPECIAL CASE-POWER OF COURT TO REFER TO MASTER. In a case of Rose v. The Awsworth Iron Company, before the Court of Appeal on the 23rd ult., a question arose as to the effect, when a contract has been entered into for the sale of goods to be delivered by instalments, of the postponement of the delivery at the request of the purchaser. On August 3, 1878, the defendants agreed to sell to the plaintiff 500 tons of pig iron, at the price of 2 10s. 6d. per ton, to be delivered at the rate of 100 tons per month, com. mencing in August, 1878. Sold and bought notes, signed by the parties respectively, were afterwards exchanged. At the request of the plaintiff the deliveries were postponed, and no delivery took place until November, 1878, when 22 tons 11cwt. were delivered. Other deliveries, amounting to 45 tons 3cwt., were made on the 13th and 14th of December, 1878. On December 17, 1878, the plaintiff requested the defendants to suspend further deliveries until he should write to them, and on December 30 he wrote to them that he would write when he required a further delivery. In consequence of this the defendants made no further delivery in December, 1878, or in January, 1879. At the further request of the plaintiff the deliveries were again postponed until

April, 1879, in which month 56 tons 18cwt. were delivered. In May, 1879, 21 tons 8cwt. were delivered. At the plaintiff's request the further deliveries were again postponed. In September, 1879, 21 tons 19cwt. were delivered. The whole quantity then delivered amounted to 167 tons 19cwt. The plaintiff then wrote to the defendants that he should not require any further delivery that month, and in consequence of this no more iron was delivered November, 1879, and none was delivered in either of these months. On in September, 1879. The plaintiff made no request for delivery in October or December 13, 1879, the plaintiff wrote to the defendants, asking for a supply of iron without further delay, and on December 17 he repeated his request. On December 19 the defendants replied :-"We beg to inform you that, as you refused or failed to take the iron within the time specified in contract, we have cancelled same, and we decline now to make further deliveries, except at current price." The market price of iron was then considerably higher than the contract price. Further correspondence took place, and ultimately this action was commenced in February, 1880. The plaintiff claimed £492 149. The defendants damages for breach of the contract by the defendants. denied that they had committed any breach of the contract. On July 7, 1880, Lopes, J., ordered a special case to be stated for the opinion of the court. A case was then stated embodying the above facts, and the opinion of the court was asked (1) whether the contract was rescinded before any breach by the defendants, or whether the effect of the correspondence and circumstances was only to extend the period for delivery under the contract; (2) whether the defendants had committed any breach of the contract; and, if they had, then (3) what damages the plaintiff was entitled to, and on what principle the damages should be assessed. If the court should be of opinion in favour of the plaintiff, then judgment was to be entered for the plaintiff for such damages as the court should consider him entitled to, and for the costs of the suit. If the court should be of a contrary opinion, then judgment was to be entered for the defendants, with costs. On the hearing of the special case, the to be entered for the plaintiff, with costs, and that the damages should be Divisional Court (Manisty, J., and Watkin Williams, J.) ordered judgment ascertained by the master. court ought to have decided the question of damages itself, and not to have The plaintiff appealed, on the ground that the referred it to the master. The defendants appealed, on the ground that there had been no breach of contract, and that judgment ought to have been entered for them. The Court of Appeal (Lord COLERIDGE, C.J., and LINDLEY and BOWEN, L.JJ.) affirmed the decision on the question of breach. Lord COLERIDGE (who delivered the judgment of the court) said that the decision of the Court of Exchequer Chamber in Tyers ▼ The Rosedale Iron Company (23 W. R. 871, L. R. 10 Ex. 195), practically concluded the present case. There was no difference in principle between the two cases; there was only a slight difference in the facts, which did not at all affect the judgment of Appeal. The decision in that case was that when there was an extension of the court. A judgment of the Exchequer Chamber was binding on the Court of the time for fulfilling a contract at the request of one of the parties to it, and that party afterwards insisted on the performance of the contract to the disadvantage of the other party who had assented to the extension of time, that other party was still bound by the contract as if it existed in its entirety. The defendants might have stipulated, when they assented to the extension of time, that, in case the price of iron should rise, they would only deliver at the market price; but, not having done this, they could not now take advantage of their own act of good nature.

A question also arose as to the measure of damages. The court were of opinion that the defendants would have been entitled to a reasonable time in which to deliver the remainder of the iron, and were disposed to think that a reasonable time would have been monthly deliveries as originally contemplated, and, consequently, that the damages would be the sum of the differences between the market price of iron, at the times at which the But, as the parties agreed on a sum for damages, it became unnecessary to monthly deliveries would have been respectively made, and the contract price. decide this point.

And, as to the reference of the damages to the arbitrator, the court were of opinion that the Divisional Court had no power to send the question to him. Lord COLERIDGE, C.J., said that, the facts being fully set forth in the special case, and the judgment of the court being asked as to the principle on which the damages should be assessed, the court could not discharge itself of the duty of deciding the principle.-SOLICITORS, Smiles & Co.; Dubois & Reid.

PRACTICE-APPEAL-FINAL OR INTERLOCUTORY ORDER OR JUDGMENT-REFUSAL OF WRIT OF PROHIBITION-SECURITY FOR COSTS-LOCAL BOARD-Ord. 58, RR. 4, 15.-In a case of The Queen v. The Local Government Board, before the Court of Appeal on the 21st ult., the question arose whether an appeal from an order of a divisional court discharging a rule nisi for a prohibition was an appeal from an interlocutory or from a final order or judgment, and whether, therefore, the proper notice of appeal had been given. The court (JESSEL, M.R., and LINDLEY, L.J.) held that the order was interlocutory. JESSEL, M. R., said that there are only two classes of orders and judgments, final and interlocutory. All that are not final are interlocutory. Under the old practice the refusal of a writ of prohibition was not final, because the application might, like an application for a habeas corpus, be renewed before any court having jurisdiction in the matter, or before any judge. And now every judge of the High Court had the same jurisdiction.

It was then asked that the appellants, a local board, might give security for the costs of the appeal, on the ground that the Public Health Act, 1875, gave them no power to move in prohibition, and that they had no power to levy a rate to pay the costs of the appeal, and might be unable to pay them. The court ordered security to be given.-SOLICITORS, Ingledew & Ince; Sharpe, Parkers, & Co.

DEEDS EXECUTED ON THE SAME DAY-PRIORITY OF OPERATION-Deben.

TURES OF COMPANY-PRIORITY-TRUSTEE-LIEN ON TRUST PROPERTY FOR COSTS AND EXPENSES-ASSIGNMENT OF PROPERTY TO CESTUI QUE TRUST.In a case of Gartside v. The Silkstone and Dodworth Coal and Iron Company, before Fry, J., on the 27th ult., a question arose as to the priority of debentures of a company which were all sealed on the same day. The directors had power to borrow money on the security of debenture bonds of the company, and on the 10th of February, 1875, they resolved that debenture bonds, dated the 1st of May, 1875, should be issued to meet expenditure on account of capital. The expenditure on account of capital amounted to £15,000, and three persons named Holden agreed to lend £10,000 on the security of debentures of the company, and another person named Gartside agreed to lend £5,000 on the same security. On the 27th of April, 1875, the seal of the company was affixed to 100 debentures for £100 each, numbered respectively from 501 to 600, in favour of the three Holdens, and to fifty debentures for £100 each, numbered respectively from 601 to 650, in favour of Gartside. The seal was affixed to the debentures in the order of their numbers, beginning with the earliest number. On or before the 1st of May the moneys which the debentures were intended to secure were paid to the company, and on the 7th of May the debentures were delivered out to the persons entitled to them respectively. Each of the debentures delivered to the three Holdens contained the following proviso :-"Provided that this debenture and all other debentures of the company, to the amount of £10,000 (the amount intended to be now borrowed by the company), or such of them as shall for the time being be due and unpaid, shall be all taken and considered as between the company and the several holders thereof as one debenture, and shall not be entitled to any preference or priority by reason of priority of date or otherwise, but shall be paid pari passu out of the funds of the company." ,, There was a similar proviso in each of Gartside's debentures, the sum £5,000 being substituted for £10,000. The holders of the debentures for the £10,000 claimed priority over the holders of the debentures for the £5,000, and FRY, J., allowed the claim. He said that when two deeds were executed on the same day the court must inquire which of them was executed first. But if there was anything in the deeds themselves which showed that they were intended to take effect pari passu, or that one of them was intended to take effect before the other, the court would then assume that they were executed in that order which would effectuate the intention of the parties. There was nothing in the resolution in pursuance of which these debentures were issued which showed anything about their priority. But the debentures themselves showed an evident intention that those for the £10,000 should form one block, and that those for the £5,000 should form another block-in other words, that they should not all go together. The only question, therefore, was which set was to come first. The debentures for the £10,000 had the earlier numbers and were sealed first, and would, therefore, primâ facie have priority over the others, and there was nothing in what took place afterwards to deprive them of that priority. A deed executed by a company did not require delivery like the deed of an individual, it only required to be sealed with the seal of the company. There could, therefore, be no delivery in the nature of an escrow, and, there being no condition reserved on the sealing, the debentures for the £10,000 must have priority over the others.

There was another question as to the extent of the lien of a trustee on his trust estate for moneys expended by bim in relation to it. Various leases of mining properties had been granted to trustees on behalf of the company. The trustees had assigned one of these leases to the company. And it was contended that, notwithstanding this assignment, the trustees were entitled to a lien on the demised property in respect of rent, and royalties, and other payments which they had made in relation to it. FRY, J., said that the court would not deprive a trustee of trust property without his being repaid any moneys which he had properly expended in relation to it. But there was no authority for holding that this lien remained after the trustee had parted with the property to his cestui que trust. It would be most inconvenient to hold that it did. It would be a latent lien, and a purchaser of property which had once been vested in trustees would always have to inquire whether their lien had been

satisfied.

A third question arose in this way. The trustees held, on behalf of the company, leases of different properties granted by different lessors, and they claimed to consolidate their lien for expenses in relation to one property with their lien for expenses in relation to the other, and to throw the whole on both properties. FRY, J., held that this could not be done, but the lien on each property could extend only to the expenses incurred by the trustees in relation to that property.-SOLICITORS, Burn & Berridge; Gregory & Co.; Flux & Leadbitter; Pritchard, Englefield, & Co.; Dollman & Pritchard.

PRACTICE-COSTS-PLEADING-Mortgagor and Mortgagee-JUDGMENT ON ADMISSIONS—Deeds pleaded by REFERENCE-MOTION BY PLAINTIFF FOR JUDGMENT ON ADMISSIONS AFTER ISSUE JOINED-RULES OF COURT, 1876, ORD. 40, R. 11.—In the case of Barnard v. Wieland, before Chitty, J., on the 23rd ult., a motion was made under ord. 40, r. 11, by the plaintiffs in a foreclosure action for an order in accordance with their statement of claim, or for such order against the defendants as they might be entitled to upon the admissions contained in the statement of defence. It appeared that the plaintiffs, who were second mortgagees, had set out in their statement of claim the purport and effect of the deeds under which they claimed, stating that such deeds were duly executed, and referring to the same by dates and parties. The mortgagors, by their statement of defence, craved leave to refer to the deeds mentioned in the statement of claim, and, save as by such documents when produced should appear, did not admit that the same were to the purport or effect as mentioned in the statement of claim, and also did not admit there was anything due on the mortgage security. The plaintiffs, after delivering interrogatories which the mortgagors answered, joined issue on the 5th of April, and, on the 22nd of May following, served the defendants with the present notice of motion. The mortgagors submitted that if ord. 40,

r. 11, had been intended to apply under these circumstances, it would have contained a provision for the supplying of a defendant with copies of the deeds pleaded; as it was, the statement of defence did not admit that the deeds were of the purport and effect stated in the statement of claim. It was also submitted on behalf of a third mortgagee, who had been joined as defendant, and put in a statement of defence denying that there was anything due to the plaintiffs, that, as his only admission was that nothing was owing, no judgment against him could be made on the motion; and, further, that if an order was made against the defendants on the motion, no costs after delivery of defence would be given to the plaintiffs, except costs of the motion: citing Brown v. Pearson (30 W. R. 436). The plaintiffs produced in court the deeds pleaded. CHITTY, J., said that where, under the old practice, a cause was set down for hearing on bill and answer an affidavit was required if the bill did not plead the execution of the deeds. Here the execution of the deeds had been pleaded by the plaintiffs, and after the admissions of the defendants contained in their non-denial of this fact all that could be required of the plaintiffs was the production of the deeds for the purposes of identification. As to the questions raised by the other defendant, the usual order now made by a foreclosure decree was simply for an account of what was due on the mortgage, including the costs of the action. The plaintiffs were, upon the pleadings, entitled to the ordinary account between mortgagor and mortgagee, and it would be a question for the taxing master whether the costs of the action comprised the costs objected to. Of course, if nothing was found due on taking the account, the action would be dismissed with costs.-SOLICITORS, W. Ford & A. Ranken Ford; Last & Sons.

LIMITED COMPANY-WINDING UP-OFFICIAL LIQUIDATOR-APPOINTMENT IN CHAMBERS-MOTION TO DISCHARGE-COMPANIES ACT, 1862, ss. 91, 92.In the case of The Great Southern Mysore Gold Mining Company (Limited), before Chitty, J., on the 23rd ult., a motion was made to discharge an order appointing an official liquidator. It appeared that an order had been made for the winding up of the company on a shareholder's petition, and that there were practically no creditors of the company. When the order was made the court especially directed that the usual course of accepting the petitioner'r nominee as liquidator should not be followed. When the matter came before the judge in chambers, two parties, the one representing 4,000 and the othes 16,800 shareholders, appeared in support of different nominees, and after a strenuous contest his lordship called upon a third party appearing, who represented 500 shares to name a gentleman for the office of liquidator, and also directed the chief clerk to take the greatest care that such nominee should be an independent person, and wholly unconnected with the company. The official liquidator having been appointed, the rival parties in chambers joined in; supporting the present motion for his discharge, on the grounds that, although no objection could be taken to him personally, yet he could not be said, within the provisions of the 91st section of the Companies Act, 1862, to represent the wishes of the majority of the shareholders of the company, and also that the appointment should, in accordance with the decision in the Agriculturist Cattle Insurance Company (3 D. F. & J. 194), have been made by the judge himself, and not by his chief clerk. CHITTY, J., said that when the parties were before him in chambers each of the two contending parties convinced him that it was not for the benefit of the shareholders that the nomination of the liquidator should lie with bis opponent. Each successfully destroyed the other's case. This being so, he exercised his discretion, and called upon a solicitor present acting for an independent shareholder to nominate, and at the same time directed his chief clerk to take every precaution to secure the nomination of an impartial person. It was not necessary now to go into all the circumstances and reasons which led him to adopt this course. If any objection was taken to it, such objection should either have been taken at the time, or, if taken subsequently to the appointment, should have been made in chambers, and not in court. The case cited had no application, for the whole matter here had been carefully investigated in chambers by the judge himself. To appear in court by motion was, under the circumstances, a somewhat extraordinary proceeding. There had been a complete and thorough investigation in chambers, which had not, nor could have, taken place in court, and the matter, which was one purely within the discretion of the judge, was at an end. The motion must be refused, with costs.-SOLICITORS, Greenfield & Abbott; Beall; Baker & Upperton; Jackson & Evans; J. Raven & Co.

The auctioneer stated that

MORTGAGE POWER OF SALE-BUILDING SOCIETY MORTGAGEES-PUR CHASE BY SECRETARY.-On the 24th ult., judgment was given by North, J., sitting for Kay, J., in a case of Martinson v. Clowes, upon the point whether, on a sale by a building society as mortgagees under their power of sale, the secretary to the society could purchase the property on his own account. The secretary had, in conjunction with the society's solicitors, arranged with the auctioneer about the sale, and had personally taken the directors' instractions for the sale to the auctioneer, and told him what was to be the reserved price. At the sale, the secretary, having asked and been informed by the auctioneer that he could properly bid, did so. though he was an officer he was bidding for himself, and not on behalf of the society, and the bidding was still open. However, after the secretary's bid, no other was made, and the property was knocked down to him. The mortgagor asked to have the sale set aside, on the ground that it was made at an undervalue, and that the secretary really bought on behalf of the society by the instructions of their solicitor conducting the sale. NORTH, J., said it was clear that a mortgagee exercising a power of sale could not purchase on his own account, also that the solicitor or agent of the mortgagee acting for him in the sale could not. He could see no distinction between the case of the solicitor and that of the secretary, who knew all the circumstances of the sale, and had, in conjunction with the solicitor, given the auctioneer

bis instructions. The sale, therefore, to the secretary must, in the event of the plaintiff redeeming, be set aside. As to part of the property, which the secretary had agreed to buy, but afterwards, not wishing to take it, had got another person to take at the price he had agreed to give, he said there was nothing to show that such person was in any way otherwise than a bona fide purchaser, and the case against him failed.-SOLICITORS, G. S. & H. Brandon; Johnson & Master, for Coaks, Rackham, & Cooper, Norwich; Sharpe, Parkers, Pritchard, & Sharpe, for Miller, Son, & Stevens, Norwich; Crowdy, Son, & Tarry, for E. E. Blyth, Norwich: Keen & Rogers, for Seago & Son, Lowe stoft; Digby & Jones, for Diyby § Evans, Maldon.

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LIMITED COMPANY WINDING UP CREDITOR'S PETITION-DISPUTED DEBT-FORM OF ORDER.-In the case of The West Frontino and Bolivia Gold Mining Company (Limited), before Chitty, J., on the 24th ult., which was a creditor's petition for the winding up of the company, two items of the debt upon which the petition was founded were disputed by the company. CHITTY, J., made an order for the compulsory winding up of the company, but directed the petition to be dismissed if the company paid into court within a week the amount of the debt and costs; the question of the disputed items comprising the debt to be referred to a referee to be agreed upon, or in default to the official referee; the referee to have power to dispose of the question of costs and all questions; and the company to pay the costs of the petition in any event.-SOLICITORS, G. Davis & Co.

JUDGMENT PRIORITY-REGISTRATION-EXECUTOR-ORDER OF ADMINISTRATION-23 & 24 VICT. c. 38, s. 3-4 & 5 WILL. & MARY, C. 20, s. 3.—In a case of Van Gheluive v. Nerinckx, before Fry, J., on the 16th ult., a question arose as to the priority of an unregistered judgment debt in the administration of the assets of an intestate. Section 3 of the Act, 23 & 24 Vict. c. 38, recites the provision of section 3 of the Act 4 & 5 Will. & Mary, c. 29, that no judgment not docketed should "affect any lands as to purchasers or mortgagees, or have any preference against heirs, executors, or administrators in their administration of their ancestors', te tators', or intestates' estates." It then stated that the later Acts as to the registration of judgments, while providing that unregistered judgments should not affect lands as to purchasers, mortgagees, or creditors until registered, did not expressly enact that they should not have any preference against heirs, executors, or administrators in their administration of their ancestors', testators', or intestates' estates, “in consequence whereof such heirs, executors, or administrators have been held to have lost the protection which they enjoyed" under the Act of William and Mary, and that it was expedient that the protection should be restored. It then provided that no judgment which should not be registered "so as to bind lands, tenements, or hereditaments as against purchasers, mortgagees, or creditors, shall have any preference against heirs, executors, or administrators in their administration of their ancestors', testators', or intestates' estates." In the present case the question was whether, in the administration of the assets of an intestate who died in 1866, the debt of a creditor who had recovered a judgment against the intestate before his death, but who had never registered his judgment, was to be treated as a specialty debt, or whether it could only stand on the footing of a simple contract debt. It was urged on behalf of the judgment creditor that section 3 of the Act, 23 & 24 Vict. c. 38, was only intended to protect the executor or administrator from an action by the judg ment creditor for a devastavit in case the executor or administrator should pay simple contract debts in priority to the judgment debts, but that it did not affect the order of administration of the assets. FRY, J., refused to accede to this contention. He said that the first question was what the statute of William and Mary meant, and there were many cases which showed that it meant, not only that the executor should be protected from an action for a devastavit, but that a judgment creditor whose judgment was not docketed should not be entitled to any priority in the administration of his debtor's estate. This was the view taken by the Master of the Rolls in Landon v. Ferguson (3 Russ. 349), and by Wood, V.C., in In re Turner (12 W. R. 337). Then the Act of 1860 said that it was desirable that the protection which executors and administrators bad lost should be restored. What was the protection? It resulted from the placing of unregistered judgments on the same level with simple contract debts. The best way of restoring the protection was to restore that provision, and accordingly section 3 provided, in the same words as the Act of William and Mary, that an unregistered judgment should not have any preference against executors or administrators in the administration of their testators' or intestates' estates, and the meaning was that such judgments were not to have any priority in the administration.-SOLICITORS, W. W. Gabriel; Keighley, Shea, & Bevan; Cole & Jackson.

ILLEGAL ACT-INJURY TO PUBLIC-ABSENCE OF EVIDENCE OF ACTUAL INJURY-RIGHT OF ATTORNEY-GENERAL TO SUE--COMPANY-EXCESS OF STATUTORY POWERS INJUNCTION.-In a case of The Attorney-General v. The Shrewsbury Bridge Company, before Fry, J., on the 17th ut., the question arose whether the Attorney-General, suing, at the relation of individuals, on behalf of the public, can maintain an action to restrain an illegal act in the absence of evidence of actual injury to the public. The company were empowered by their special Act to make a bridge over a navigable river. Their parliamentary powers had expired, and they were, notwithstanding, continuing their works, and were obstructing a public highway, and driving piles into the river. The action was brought by the Attorney-General, at the relation of some shareholders in the company, and by the same shareholders as plaintiffs, to restrain the company from thus acting in excess of their powers, and from expending their capital upon the unauthorized works. Before the trial the company had obtained a new Act, extending the time for the completion of their works, and it also appeared that they had never intended to apply their capital in the execution of unauthorized works. The only question to te decided at the trial was whether the relators were entitled to the costs of the

There was no

action so far as it sought relief on behalf of the public. evidence of any actual injury to the public, and the objection was raised that the Attorney-General could not maintain such an action on behalf of the public in the absence of such evidence, reliance being placed on what was said by James, L.J., in The Attorney-General v. The Great Eastern Railway Company (27 W. R. 759, L. R. 11 Ch. D. 449, 483). FRY, J., overruled this objection, and held that the Attorney-General would have been entitled to an injunction, and, therefore, that the relators were entitled to the costs of the action. He said that there was some conflict, or rather some want of uniformity, in the authorities on the subject, but he thought the result of them was that when an illegal act, such as in its nature tended to the injury of the public, was being committed, the Attorney-General, on behalf of the public, could maintain an action to restrain it, without adducing evidence of actual injury. In one of the earliest cases, The Attorney-General v. The Oxford, Romilly, M.R., restrained the opening of a railway which had not been Worcester, and Wolverhampton Railway Company (2 W. R. 330), Lord approved by the Board of Trade, on the simple ground that the opening would be an illegal act, affecting the public generally. And in The Attorney-General v. The Cockermouth Local Board (22 W. R. 619, L. R. 18 Eq. 372), Jessel, M.R., refused to grant an injunction to restrain a private nuisance, because he restrained the defendants from polluting the water of a river, which was an there was no evidence of any nuisance resulting from the defendants' acts, but illegal act. There was in that case no evidence of actual injury to the public, but there was evidence that the defendants were doing an illegal act which, in its nature, tended to the injury of the public. In The Attorney-General v. The Great Eastern Railway Company, James, L.J., appeared to have expressed a somewhat different opinion, but that case furnished no very clear guide, for Baggallay, L.J., was of opinion that evidence of actual injury to the public was not necessary to entitle the Attorney-General on behalf of the public to an injunction to restrain the commission of an illegal act tending in its nature to the injury of the public. When that case afterwards went to the House of Lords (28 W. R. 769, L. R. 5 App. Cas. 473), there was no decision on this point. But even James, L.J., who was most adverse to the right of the Attorney-General, said that in The Attorney-General v. The Cockermouth Local Board, "the board were doing works which would or might probably poison a stream, in direct violation of the law which prohibited them from committing a nuisance." In coming, therefore, to the conclusion that the present action could be maintained by the Attorney-General on behalf of the public, his lordship thought he was really acting in accordance with the view of James, L.J. And the language of Lord Hatherley in The AttorneyGeneral v. The Ely, Haddenham, and Sutton Railway Company (17 W. R. 356, L. R. 4 Ch. 194, 199), supported the view that no evidence of actual injury to the public was necessary when the act was an illegal oue, which, in its nature, tended to the injury of the public.-SOLICITORS, Clarke, Woodcock, & Ryland; l'aterson, Snow, & Bloxam.

THE RAILWAY COMMISSION.*

June 6 and 7.-The Ayr Harbour Trustees and P. Barr & Co. (Ayr Steam Shipping Company) v. The Glasgow and South-Western Railway Company, the Caledonian Railway Company, the North British Railway Company, and the North-Eastern Railway Company.

Undue preference-The Railway and Canal Traffic Act, 1854 (17 & 18 Vict. c. 31), s. 2.

The rates charged by railway companies for traffic to ports when such traffic is to be carried from such ports to others, must be, relatively to the distance, equal.

an order

This was an application under section 2 of the Railway and Canal Traffic Act, 1854, by the Ayr Harbour Trustees and P. Barr & Co., for enjoining the defendant companies to desist from preferring the traders at Ardros an and Greenock, and the harbour authorities at those ports, and from subjecting P. Barr & Co. and the Ayr Harbour Trustees to any undue and unreasonable prejudice by charging rates in respect of the traffic from various towns and places on the defendant railways to the port of Ayr, which was to be carried by the steamers of Messrs. P. Barr & Co. to or from Belfast, at rates, relatively to the distance, higher than similar traffic carried from the same places to the ports of Ardrossan or Greenock, and which traffic was to be carried from these ports respectively by the steamers of Messrs. Barr or Messrs. Henderson to or from Belfast. The defendants filed no answer to the application.

Balfour Browne appeared for the applicants.
R. S. Wright, for the defendants.

The COMMISSIONERS said that the applicants were entitled to an order and to their costs.

Solicitors for the applicants, George Davies, Morgan, & Co. Anderson & Patterson, Glasgow. Solicitors for the defendant railway companies, William Robertson, for

COUNTY COURTS.

SOUTHWARK.

(Before H. J. STONOR, Esq., Judge, and a jury.)

June 12.-Jex v. Kindon & Co.

Employers' Liability Act-Negligence-Section 1, sub-section 2-Superintendence-Manual labour-Section 8. This was an action under the Employers' Liability Act to recover three years' wages under the following circumstances :

Reported by W. H. MACNAMARA, Esq., Barrister-at-Law.

The plaintiff was a workman in the defendants' employ, and on the 12th of December, 1880, was in the discharge of his duty getting a "sling" from a dark corner of the works, when a carriage-pad, weighing 74lbs., which was being hoisted to the roof by means of a pulley, fell upon him, breaking two of his ribs and injuring his spine. The cause of the carriage-pad falling was owing to its being negligently attached to the pulley-rope by a boy named Cornwall, who was not called as a witness. A man named Cracknell had told the boy to attach the rope to the pad, but had given him directions as to fastening it, which, if carried out would have prevented, the accident. The man Cracknell admitted that his usual duties were those of manual labour, and it was therefore submitted, at the conclusion of the plaintiff's case, that the employers were not responsible under section 8 of the Act, even if Cracknell should be found guilty of giving the boy a negligent order, and, further, that the plaintiff's evidence showed that the accident arose solely from the boy's negligence. His HONOUR Concurred in this view, and non-suited the plaintiff. Boardman, for the plaintiff.

Ruegg, for the defendants.

London, Mr. P. Rickman in the chair, the other directors present being Messrs. Asker (Norwich), Brook, Harris (Leicester), Hedger, Keen, Pennington, Roscoe, Smith, Veley (Chelmsford). Walters, Williamson, and Woolbert (Mr. Eiffe, secretary). A sum of £300 was distributed in relief of necessitous solicitors and their families; an annuity of £50, named "The Daniel Reardon " Annuity, was granted to a deceased member's widow, and two smaller annuities of £25 each, named respectively "The Elizabeth Reardon" and "The Margaret Reardon " Annuities, were granted to the daughter and widow of deceased non-members; seventy-seven gentlemen were admitted members of the association; the following resolution was unanimously passed-"That the best thanks of the directors of this associa tion be and are hereby presented to Francis Thomas Biroham, Esq., for his kindness in presiding at the late (twenty-second) anniversary festival of this association, held at the Star and Garter Hotel, Richmond, Surrey, on the 14th of June instant, and for his able advocacy on that occasion of the charity to the support of every solicitor throughout England and Wales; in addition, for the handsome list of contributions to the association procnred by him in connection with the festival, and for his own generous donation of twenty guineas"; resolutions of thanks were also passed to other principal donors at the late festival; and other general business was transacted.

SOUTHWARK.

(Before H. J. STONOR, Esq., Judge, and a Jury.)

June 8.-Mallett v. Badart.

Employers' Liability Act, 1880-Defect in machinery, section 1, subsection 1-Contributory negligence.

This was an action under the Employers' Liability Act, brought by a boy aged 16, suing by his next friend, against his employers for compensation for injuries.

The plaintiff sued under sub-sections 1 and 2 of section 1, alleging defect in the machinery and negligence on the part of a foreman.

The accident was caused by the plaintiff pushing in the "slide" of a seed-crushing machine with his foot. The plaintiff stated that, upon entering the employment, he was told by a foreman to take his instructions from a man named Brown, and that Brown had told him that, when the slide would not go home by pushing it with the hands, he was to use his foot. The plaintiff also contended that there should have been a ridge or coping of iron round the basin of the machine, and if this had been there the accident could not have happened. He also called several workmen, who stated that similar machines used in other factories had this ridge or coping.

For the defence it was contended that the proximate cause of the accident was the boy's own negligence in using his foot to shut the slide, and evidence was given that the manager had himself previously cautioned the boy against doing so. It was also stated that the ridge or coping on such machines was only put there for the purpose of allowing a greater amount of seed to be crushed at one time, and was not for the purpose of protection.

His HONOUR left three questions to the jury-(1) Was there defect in the machine? (2) Did this arise or fail to be discovered through the employer's negligence? (3) Was the boy guilty of contributory negligence? The jury answered question No. 1 in the negative and question No. 3 in the affirmative. Judgment for the defendant accerdingly. Boardman for the plaintiff. Ruegg for the defendant.

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The fifth annual meeting and dinner of the Metropolitan Local Government (Officers) Association was held on Monday last at the Star and Garter Hotel, Richmond. The annual report, which was submitted, and ordered to be printed and circulated, touched upon various topics of interest in connection with local government, including the legislation of the past and present sessions; the decision of the Court of Appeal in November last as to the right of occupiers of apartments in "let-out" houses to the franchise, upon which point various pertinent and useful suggestions were made; the anomalous state of the bankruptcy law as to the preferential payment of rates, and other matters; but the topic of principal interest in the report, as in the afterdinner speeches, was the intention of the Government, declared early in the session, to introduce a measure dealing with the local government of the metropolis. This was not treated simply from the official point of view; on the contrary, the advantage of some alteration was recognized by many members; but stress was laid upon the great importance to all concerned, and to ratepayers especially, of the Government, in preparing any scheme, availing themselves of the experience and skill which, for so many years, have been applied to carrying out the present system, by consulting such an association as the present. About fifty members and friends sat down to dinner, amongst them being Mr. W. E. Greenwell (St. Marylebone), president; Messrs. Frank Dethridge (Paddington), and E. Hughes (Plumstead), vice-presidents; Sir W. T. Charley (City of London), Mr. A. Pocock (Metropolitan Board of Works), Dr. Thomas (coroner for Central Middlesex), Rev. J. A. Colebeck, and

others.

SOLICITORS' BENEVOLENT ASSOCIATION.

The usual monthly meeting of the board of directors of this association was held on Wednesday, Jane 21, at the Law Institution, Chancery-lane,

LAW STUDENTS' JOURNAL.

COUNCIL OF LEGAL EDUCATION.
MICHAELMAS EXAMINATION, 1882.

Examination of Candidates for Pass Certificates.

The attention of students is requested to the following rules:No student admitted after the 31st of December, 1872, shall receive from the council the certificate of fitness for call to the bar required by the four Inns of Court unless he shall have passed a satisfactory examination in the following subjects-viz. (1) Roman law; (2) The law of real and personal property; (3) Common law; and (4) Equity.

No student admitted after the 31st of December, 1872, shall be examined for call to the bar until he shall have kept nine terms; except that students admitted after that day shall have the option of passing the examination in Roman law at any time after having kept four terms.

An examination will be held in October next, to which a student of any of the Inns of Court, who is desirous of becoming a candidate for a certificate of fitness for being called to the bar, will be admissible.

Each student proposing to submit himself for examination will be required to enter his name, personally or by letter, at the treasurer's or steward's office of the Inn of Court to which he belongs, on or before Thursday, the 5th day of October next; and he will further be required to state in writing whether his object in offering himself for examination is to obtain a certificate preliminary to a call to the bar; or whether he is merely desirous of passing the examination in Roman law under the above-stated

rule.

The examination will commence on Tuesday, the 17th day of October next, and will be continued on the Wednesday, Thursday, and Friday following.

It will take place in the hall of Lincoln's-inn; and the doors will be closed ten minutes after the time appointed for the commencement of the examination.

The examination by printed questions will be conducted in the following order:-Tuesday morning, October 17, at ten, on the law of real and personal property; Wednesday morning, October 18, at ten, on common law; Thurs. day morning, October 19, at ten, on equity; Friday morning, October 20, at ten, on Roman law.

The oral examination will be conducted in the same order, and on the same subjects, as above appointed for the examination by printed questions. The examiner in the law of real and personal property will examine in the following subjects:-The elementary principles of the law of real and personal property, with reference chiefly to the treatises of Mr. Joshua Williams on those subjects. Candidates will be examined in the elements of the foregoing subjects.

The examiner in common law will examine in the following subjects:(1) The law of contracts; (2) The law of torts; (3) Criminal law; (4) The procedure in the Queen's Bench Division of the High Court of Justice. Candidates will be examined on general and elementary principles of law. The examiner in equity will examine in the following subjects:-(1) Trusts; (2) Administration of assets.

The examiners in Roman law will examine in the Institutes of Justinian, books 1 and 2; book 3, title 13, to the end of the book; book 4, titles 1 to 5 inclusive.

HILARY EXAMINATION, 1883.

Examination of Candidates for Studentships, Honours, and Pass Certificates. The attention of students is requested to the following rules :

As an encouragement to students to study jurisprudence and Roman law, twelve studentships of one hundred guineas each shall be established, and divided equally into two classes; the first class of studentships to continue for two years, and to be open for competition to any student as to whom not more than four terms shall have elapsed since he kept his first term; and the second class to continue for one year only, and to be open for competition to any student, not then already entitled to a studentship, as to whom not less than four and not more than eight terms shall have elapsed since he kept his first term; two of each class of such studentships to be awarded by the

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