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We cannot say that we hold with the notion that makes the tortiousness of an act done to another in respect of his property depend upon knowledge of the right of the true owner, or the intention to contravene that right. A man who voluntarily does an act to property not his own must take the risk. He chooses to rely on the title of the person giving him the mandate. Unless the carrier's case put by Bramwell, L.J., is to be regarded as depending on the carrier's being compelled to carry the goods, and so his act being not voluntary, we cannot think the law ought to be as the Lord Justice says it is. There is no such very great practical hardship. If the bailment is in the course of a business carried on for profit, as is generally the case, it is an ordinary incident of the business, for which the bailee must be taken to recoup himself from his profits, if not by suing his bailor. the other hand, it is a general incident of property, and necessary to its effectual protection, that no one should be entitled to deal with property except the true owner, or those authorized by him, without being responsible for damage thereby occasioned. Assume that an act would be tortious if done by someone other than the true owner, without a mandate at all; how can it make any difference that some one gives a mandate who has no title do so?

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The law at present seems to us to be in great confusion on this subject, and very uncertain, and it seems to us that the existing decisions are vitiated by the fact that they proceed on the assumption, derived from the old system, that the tortious act must amount to a conversion. But why should this be so? The true question seems to us to be whether there has been a dealing with property unauthorized by the true owner which has caused damage to the true owner. The question was further complicated under the old system by the fact that, as a necessary concomitant of the nature of conversion, the damages were the whole value of the goods. Some modern cases, such as Johnson v. Steer (15 C. B. N. S. 320), had, however to some extent broken in on that doctrine. The damage caused by the tortious act need not necessarily be the value of the goods, but the damage actually caused, when once the absolute necessity for a conversion is gone. If by the dealing of the innocent bailee with the goods the owner is not really damni. fied, as may be the case when the act of the bailee is merely the performance of the mandate of a bailor, then no action ought to lie, because there is no damage. This would in most cases dispose of the case of the warehouseman merely keeping goods and restoring them to the person who has deposited them, and other such cases, (See judgment of Blackburn, J., in Hollins v. Fowler, at page 767). On the other hand, we cannot see why, if the act of the bailee has occasioned the damage to the true -owner, he should not bear the loss. For instance, if the bailee removes the goods to a distant place, and the plaintiff's title is then discovered by him, and he does not deliver them there to the bailor or his order, but refuses to bring them back, then the measure of damage would be the damage sustained by the true owner, by reason of his goods being at the distant place instead of where they were taken from. Under the old system it apparently would be conversion or nothing in such a case.

We think if the matter is really analyzed to the bottom, the case of the innocent bailee is analogous to that of a person who has innocently bought chattels to which the vendor had no title. Unless possession of personal property is to be held as against the true owner to be conclusive evidence of title in favour of innocent parties dealing with it on the strength of such possession, we cannot understand on what principle the innocent bailee is to be protected.

Whatever the true rule may be, it is much to be wished that, forms of action being abolished, the law on the subject could be put on a more certain footing without regard to antiquated nomenclature and the former decisions of judges hampered by the then existing forms of action.

ARREST OF SUSPECTED
PERSONS.

THE excitement which has been caused by the Brighton Railway Murder, and the many mistaken arrests which have been made in consequence, lead naturally to the examination of the extent of the power to arrest suspected persons. It will be found that this power differs very much according as the arrest is (1) by a constable with warrant; (2) by a constable without warrant; (3) by a private person.

Of arrest by a constable with warrant little need be said. Since the consolidation of the numerous preexisting statutes on the subject by Jervis' Act (11 & 12 Vict. c. 42), the practice has become pretty well known and settled, and there has been little, if any, doubt as to the law. It is well to point out, however, that whereas the warrant of a justice of the peace in one county must be backed by another justice in another county, before it can be executed in such latter county, a warrant from the chief or other justice of the Queen's Bench extends all over the kingdom," and is tested England, so that it can be executed anywhere (see 4 Steph. Com., p. 347).

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As to arrest by a constable without warrant, it seems that at common law this may be done upon a reasonable belief that the party has committed a felony. (See Griffin v. Coleman, 4 H. & N. 265, in which case it was held that this power to arrest does not extend to cases of misdemeanor. It is also laid down that in acting upon a charge made by a third person the constable must exercise ordinary care and caution, and that, if having done so, he apprehend a supposed felon upon a reasonable charge with reference to the circumstances, he is justified, although it ultimately turn out that no felony was committed (Burn's Justice, vol. 1, p. 295, citing Hogg v. Ward, 3 H. & N. 417, and other cases). So much for the common law, but it is material to observe that the power of a constable to arrest without warrant is very precisely dealt with by statute. By 24 & 25 Vict. cc. 97, 100, ss. 61, 66, "any constable or peace officer may take into custody without warrant any person whom he shall find lying or loitering in any highway, yard, or other place during the night, and whom he shall have good cause to suspect of having committed a felony" against either of those Acts. The felonies against those Acts include murder, larceny, and most of the felonies known to the law, but it is rather singular that neither by these or any other Acts (or, for the matter of that, at common law) has a constable any greater power of arrest where the crime suspected to have been committed is murder than where it is a larceny of the most petty character. Within the metropolitan police district, however, the power is more extensive. By 2 & 3 Vict. c. 47, s. 64, amending, but not repealing, 10 Geo. 4, c. 44, s. 7, any policeman may "take into custody without warrant all loose, idle, and disorderly persons whom he shall find disturbing the public peace, or whom he shall have good cause to suspect of having committed any felony, misdemeanor, or breach of the peace, and all persons whom he shall find between sunset and the hour of eight in the morning lying or loitering in any highway, yard, or other place, and not giving a satisfactory account of themselves." It is clear, however, that the words, "loose, idle, or disorderly persons,' are governing words in the first part of this section, and it has been so held upon similar words in the City Police Act (2 & 3 Vict. c. xciv.), s. 8: Bowditch v. Balchin (5 Ex. 378.)

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Upon these statutes, as compared with the common law, the question arises whether they repeal that part of the common law which they do not re-enact, thus limiting the power of arrest to the four corners of the statutes, or whether they leave all the common law standing. We can find no authority upon this question, unless, indeed, the interpretation put upon them by the executive can

not propose to go into the details of these cases or the other more or less conflicting authorities on the question what constitutes a conversion. We are rather disposed to suggest that the whole controversy is obsolete, and that the substantial questions that were involved in the old discussion ought now to be fought out on other lines. It is common knowledge acquired by every student of law in reference to the origin of the action on the case that the old common law provided certain definite forms of action. The actions provided with regard to tortious interference with the right of property in chattels were trespass, trover, and detinue. The idea of the action of trover was of goods not actually seized while in the owner's possession, but found or bailed and afterwards tortiously converted by the finder or bailee to his own use; and by the very hypothesis on which the action was based, the measure of damages was the value of the goods. This being the form of action, the next question is, what are the facts that can be fitted into it-in other words, what facts are evidence of a conversion? With regard to that question the course of things is, as might be expected, this. Legal experience constantly shows that the mould or form of action is by no means suited to all the requirements of real life, and to meet all the cases of injuries to the right of property in chattels. It is consequently every now and then more or less stretched by judges desirous of doing justice. The result is that attempts are made to stretch it still further, but then the divergence from the natural meaning of words becomes too glaring, and other judges resist the tendency towards expansion. A struggle is apparent in the course of the decisions, and the meaning of the word "conversion" fluctuates and becomes uncertain, the opinions of the the judges tending sometimes one way sometimes the other. The opinions of Blackburn, J., and Brett, J., in Hollins v. Fowler in the House of Lords, and the judgment of Bramwell, B., in that case in the court below, and his judgment in Glyn & Co. v. East and West India Dock Company, are most instructive reading, as showing the nature and scope of this controversy. It is difficult to summarize the views therein expressed with regard to the points at issue, but it seems to us that there are involved two questions, one of which is a question of form, the other one of substance, and the two became mixed up together in the discussions about what constituted a conversion in such wise, that the formal and technical question much obscured and confused the sub. stantial one.

We will endeavour to state what, in our opinion, the two questions are. To begin with the question of form. The action of trover was an action in which the alleged grievance was that the defendant had converted the plaintiff's goods to his own use. The question thereupon arises, what acts amount to a conversion of goods to a person's use? The answer made by the text-books is too vague to be of much use. Some such expression is generally used as, that any exercise of dominion inconsistent with the plaintiff's right of property in the goods is a conversion. That is very much like answering a question by stating it again in more elaborate terms, because the question immediately arises, what exercise of dominion is inconsistent with the plaintiff's right of property? Some acts obviously do not amount to an exercise of dominion, as if I pat a man's horse as it stands in the street; while some obviously do, as if I drink a man's wine. Some acts, again, are on the line. A man may do acts which may fairly be described as the exercise of dominion over property without the authority of the owner, but it may be doubtful how far they can be said to be inconsistent with his rights of property. For instance, a man without negligence, in ignorance of the true owner's title, may become bailee of goods from a person who has no title to them, and proceed to do acts of dominion to the goods which may, more or less, prejudice the true owner. Take the cases

put by Bramwell, L.J., in Glyn & Co. v. East & West India Dock Company, of goods of one person stolen or taken by mistake by another person, and by him delivered to a carrier to be carried to a distance, and then delivered to a third person, and so carried and delivered accordingly. The learned Lord Justice says that the carrier clearly would not be guilty of a conversion, but we do not think the case of a carrier is a good one to select, because the carrier may be entitled to a special protection, being obliged to carry goods offered to him for carriage. We would rather take the case of an innocent bailee, not entitled to any special protection, who does some act to goods of a nature such as their carriage to a distant place, but not meaning to assert any title or right of dominion antagonistic to the true owner's title. The question arises, Has there been a "conversion to his own use"? It will at once be apparent what the second or substantial question is from the instance we have given-viz., how far a dealing with a person's chattel in ignorance of his title by the direction of another, and in the bona fide belief of such other's title is, in the absence of negligence, tortious as against the true owner if damage thereby accrues to him.

The two questions are dreadfully confused together ex necessitate rei under the old law, but they really do not seem to have any necessary connection with one another. The decisions with regard to conversion have heretofore exhibited two different points of view. One is that, as a general rule, every exercise of dominion over a chattel without the authority of the true owner, whereby the true owner's enjoyment of the chattel is lost or substantially derogated from, is a conversion, although, in one sense, there may be no conversion to the use of the defendant, and no intention on his part in derogation of the plaintiff's title, of which he may be necessarily ignorant. Every act done to a chattel, except some trifling acts which do not substantially alter the condition of the thing, is pro tanto an exercise of dominion over it, and if it causes or conduces to the loss of the chattel by the plaintiff, or deprives the plaintiff of the full enjoyment of it, may be said to be a conversion. This is one point of view. The other seeks rather to narrow the meaning of the terms "conversion to the defendant's use in the interests of the innocent bailee. Its holders seem to say, if we rightly understand it, that conversion implies some act in derogation of the plaintiff's title in assertion of a title inconsistent therewith; that a bailee who, without any knowledge whatever of the true owner's title, merely fulfils the mandate of the party who has bailed the chattel to him cannot be supposed to assert any title inconsistent with the plaintiff's, or to convert the goods to his own use.

Let us illustrate the extreme difficulty that arises between these conflicting views by instances. A person who has stolen goods bails them to another (we will not say a common carrier) to be carried to a distant place. and then delivered to a third person. The bailee performs the mandate in ignorance of the true owner's title. Again, the stealer of goods bails them to another person to be taken care of at the place of such bailment until application for their re-delivery. The bailee performs the mandate in ignorance of the true owner's title. Are both, or is either of these cases, a case of conversion by the bailee? We have selected these cases because they seem to us to be illustrations of the way in which the two questions of form and substance are confused together by the question of conversion. We do not know that they are the best illustrations that could be selected, but we think they may suffice to give an inkling of our meaning. The cases are not, to our mind, necessarily identical in point of justice, but to make the whole question one of conversion may render it difficult to give effect to any distinction between them.

It seems to us that under the present system of law and pleading, which knows nothing of forms of action, to make the question whether there has been a conversion or not, is oftentimes to apply a wholly obselete test.

We cannot say that we hold with the notion that makes the tortiousness of an act done to another in respect of his property depend upon knowledge of the right of the true owner, or the intention to contravene that right. A man who voluntarily does an act to property not his own must take the risk. He chooses to rely on the title of the person giving him the mandate. Unless the carrier's case put by Bramwell, L.J., is to be regarded as depending on the carrier's being compelled to carry the goods, and so his act being not voluntary, we cannot think the law ought to be as the Lord Justice says it is. There is no such very great practical hardship. If the bailment is in the course of a business carried on for profit, as is generally the case, it is an ordinary incident of the business, for which the bailee must be taken to recoup himself from his profits, if not by suing his bailor. On the other hand, it is a general incident of property, and necessary to its effectual protection, that no one should be entitled to deal with property except the true owner, or those authorized by him, without being responsible for damage thereby occasioned. Assume that an act would be tortious if done by someone other than the true owner, without a mandate at all; how can it make any difference that some one gives a mandate who has no title do so?

The law at present seems to us to be in great confusion on this subject, and very uncertain, and it seems to us that the existing decisions are vitiated by the fact that they proceed on the assumption, derived from the old system, that the tortious act must amount to a conversion. But why should this be so? The true question seems to us to be whether there has been a dealing with property unauthorized by the true owner which has caused damage to the true owner. The question was further complicated under the old system by the fact that, as a necessary concomitant of the nature of conversion, the damages were the whole value of the goods. Some modern cases, such as Johnson v. Steer (15 C. B. N. S. 320), had, however to some extent broken in on that doctrine. The damage caused by the tortious act need not necessarily be the value of the goods, but the damage actually caused, when once the absolute necessity for a conversion is gone. If by the dealing of the innocent bailee with the goods the owner is not really damnified, as may be the case when the act of the bailee is merely the performance of the mandate of a bailor, then no action ought to lie, because there is no damage. This would in most cases dispose of the case of the warehouseman merely keeping goods and restoring them to the person who has deposited them, and other such cases. (See judgment of Blackburn, J., in Hollins v. Fowler, at page 767). On the other hand, we cannot see why, if the act of the bailee has occasioned the damage to the true owner, he should not bear the loss. For instance, if the bailee removes the goods to a distant place, and the plaintiff's title is then discovered by him, and he does not deliver them there to the bailor or his order, but refuses to bring them back, then the measure of damage would be the damage sustained by the true owner, by reason of his goods being at the distant place instead of where they were taken from. Under the old system it apparently would be conversion or nothing in such a case.

We think if the matter is really analyzed to the bottom, the case of the innocent bailee is analogous to that of a person who has innocently bought chattels to which the vendor had no title. Unless possession of personal property is to be held as against the true owner to be conclusive evidence of title in favour of innocent parties dealing with it on the strength of such possession, we cannot understand on what principle the innocent bailee is to be protected.

Whatever the true rule may be, it is much to be wished that, forms of action being abolished, the law on the subject could be put on a more certain footing without regard to antiquated nomenclature and the former decisions of judges hampered by the then existing forms of action.

ARREST OF SUSPECTED
PERSONS.

THE excitement which has been caused by the Brighton Railway Murder, and the many mistaken arrests which have been made in consequence, lead naturally to the examination of the extent of the power to arrest suspected persons. It will be found that this power differs very much according as the arrest is (1) by a constable with warrant; (2) by a constable without warrant; (3) by a private person.

Of arrest by a constable with warrant little need be said. Since the consolidation of the numerous preexisting statutes on the subject by Jervis' Act (11 & 12 Vict. c. 42), the practice has become pretty well known and settled, and there has been little, if any, doubt as to the law. It is well to point out, however, that whereas the warrant of a justice of the peace in one county must be backed by another justice in another county, before it can be executed in such latter county," a warrant from the chief or other justice of the Queen's Bench extends all over the kingdom," and is tested England, so that it can be executed anywhere (see 4 Steph. Com., p. 347).

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As to arrest by a constable without warrant, it seems that at common law this may be done upon a reasonable belief that the party has committed a felony. (See Griffin v. Coleman, 4 H. & N. 265, in which case it was held that this power to arrest does not extend to cases of misdemeanor. It is also laid down that in acting upon a charge made by a third person the constable must exercise ordinary care and caution, and that, if having done so, he apprehend a supposed felon upon a reasonable charge with reference to the circumstances, he is justified, although it ultimately turn out that no felony was committed (Burn's Justice, vol. 1, p. 295, citing Hogg v. Ward, 3 H. & N. 417, and other cases). So much for the common law, but it is material to observe that the power of a constable to arrest without warrant is very precisely dealt with by statute. By 24 & 25 Vict. cc. 97, 100, ss. 61, 66, any constable or peace officer may take into custody without warrant any person whom he shall find lying or loitering in any highway, yard, or other place during the night, and whom he shall have good cause to suspect of having committed a felony" against either of those Acts. The felonies against those Acts include murder, larceny, and most of the felonies known to the law, but it is rather singular that neither by these or any other Acts (or, for the matter of that, at common law) has a constable any greater power of arrest where the crime suspected to have been committed is murder than where it is a larceny of the most petty character. Within the metropolitan police district, however, the power is more extensive. By 2 & 3 Vict. c. 47, s. 64, amending, but not repealing, 10 Geo. 4, c. 44, s. 7, any policeman may "take into custody without warrant all loose, idle, and disorderly persons whom he shall find disturbing the public peace, or whom he shall have good cause to suspect of having committed any felony, misdemeanor, or breach of the peace, and all persons whom he shall find between sunset and the hour of eight in the morning lying or loitering in any highway, yard, or other place, and not giving a satisfactory account of themselves." It is clear, however, that the words, "loose, idle, or disorderly persons," are governing words in the first part of this section, and it has been so held upon similar words in the City Police Act (2 & 3 Vict. c. xciv.), s. 8: Bowditch v. Balchin (5 Ex. 378.)

Upon these statutes, as compared with the common law, the question arises whether they repeal that part of the common law which they do not re-enact, thus limiting the power of arrest to the four corners of the statutes, or whether they leave all the common law standing. We can find no authority upon this question, unless, indeed, the interpretation put upon them by the executive can

be called an authority. It appears from Burn's Justice, vol. 1, p. 1059, that the following (inter alia) "instructions" have been issued for the guidance of constables :

"The constable must arrest anyone whom he sees in the act of committing a felony, or anyone whom another positively charges with having committed a felony, or whom another suspects of having committed a felony, if the suspicion appear to be well founded, and provided the person go suspecting go with the constable.

"Though no charge be made, yet if the constable suspects a person to have committed a felony, he should arrest him; and if he have reasonable grounds for his suspicion he will be justified, even though it should afterwards appear that no felony was in fact committed, but the constable must be cautious in thus acting on his own suspicions.

"Generally, if the arrest was made discreetly and fairly in pursuit of an offender, and not from any private malice or ill-will, the constable need not doubt that the law will proteot him.'

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These instructions, which are followed by others in relation to rescue, breaking open doors, &c., seem to be clearly justified by the decided cases, and to include the case of a mistaken arrest arising out of a mistaken identity. They make no distinction between the various degrees of felony. But the decided cases, as we have alreedy remarked, do not touch the question whether the statutes narrow the law-and for this very plain rerson (so far as we have been able to discover), that the cases were decided before the statutes were passed.

Lastly, with regard to the power of a private person to arrest without warrant, it seems that at common law this is coincident with the power of a constable (see Guppy v. Brittlebank, 5 Price, 525), subject to this important limitation expressed by Lord Tenterden in Beckwith v. Philby (6 B. & C. 635): "There is this distinction between a private individual and a constable; in order to justify the former in causing the imprisonment of a person, he must not only make out a reasonable ground of suspicion, but he must prove that a felony has actually been committed [by someone], whereas a constable having reasonable ground to suspect that a felony has been committed, is authorized to detain the party suspected until inquiry can be made by the proper authorities." But by statute 14 & 15 Vict. c. 19, s. 11, express authority is given to any person to apprehend persons found committing indietable offences in the night, and a similar authority without restriction as to hour, except in respect to "anything in the day-time," is given by the Larceny Act, 1861, in respect to persons found committing offences against that Act. Again arises the awkward question-do these statutes limit the common law power? We cannot say for certain that they do not. At any rate, the whole law of arrest without warrant" is in a very unsatisfactory state.

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Nor is it the least of its defects that no compensation whatever is provided for those unfortunate persons who are arrested by mistake, but "on reasonable grounds." Ever the "shilling and the breakfast," which were lately awarded as compensation in one of the numerous cases of which we have lately heard, ought, we presune, to be disallowed as a charge upon the public, when the account of the funds out of which this pitiful compensation was paid comes to be audited.

CORRESPONDENCE.

EFFECT OF DISCLAIMER. [To the Editor of the Solicitors' Journal.] Sir,-A landlord verbally lets two shops to A. on a yearly tenancy, at a rent of £200 per annum. A. afterwards verbally sublets one of the shops to B. on a yearly tenancy at a rent of £100 per annum. A. subsequently files his petition for liquidation, and the trustee under the liquidation wishes to disclaim the lease. What effect will such disclaimer have upon the sub-lease? Can the landlord distrain on the goods in B.'s shop for the rent of the two shops accruing subsequently to the disclaimer? If so, an amendment of the law in this respect would not, I am sure, be out of place; for it certainly seems hard on B. (in the case supposed, and I should think similar cases are constantly occurring) who cannot insist, as of right, on taking A.'s shop. The recent cases of

Smalley v. Hardinge and Ex parte Walton seem to bear the sub-lease comprised the whole of the premises on the question; but, unfortunately in the latter case, demised by the original lease, and not part only as in the case in question. INQUIRER.

[We should think that the landlord could distrain on the goods in B.'s shop for the rent of both shops. In Ex parte Walton (ante, p. 586) James, L.J., said that "When a sub-demise is made, the sub-tenant took the property subject to all the original lessor's rights in rem, though he was not liable upon the personal covenants of the original lessee with the lessor. It would be a violation of every principle of law and justice, and against all common sense, to permit two men, by bargaining with each other, to affect any right of property of another man, particularly any right of the owner from whom they both derived title. And it would seem to be equally against principle and against common honesty that a lessee, by becoming bankrupt, should deprive the lessor of his remedies in rem, or release a sub-lessee from the legal liabilities and obligations to which the property was liable in his hands before the bankruptcy."-En. S. J.]

ADMISSION OF SOLICITORS IN AUSTRALIA.

[To the Editor of the Solicitors' Journal.] Sir, I think the following is an answer to "Inquirer's" question in your last week's issue. A Supreme Court of New Zealand was established by Ordinance No. 1 of the 5th Vict. of the Legislative Ordinances of New Zealand. Section 13 of the Ordinance enacts that "the court shall inrol to practise therein as solicitors such persons only as shall have been admitted as solicitors, attorneys, or writers in one of the courts at Westminster,

Dublin, or Edinburgh; or shall have served such term of clerkship with a solicitor of the court as shall be required by the general rule thereof." This Ordinance is still in force.

In New South Wales, Queensland, and South Australia, persons admitted in England are similarly entitled to be admitted solicitors of the Supreme Courts. As to Victoria, I cannot speak positively, but I believe the same rule applies. F. B. DE M. GIBBONS.

Mr. Justice Kay, having to attend the North-Eastern Circuit, has risen for the present sittings.

The Western Jurist says that a judge who had to sentence a prisoner in Danville to prison for eighteen years, for murder, the jury having made a " compromise verdict," informed the prisoner that the sentence was due to the "moral cowardice of twelve men." Telling him that he considered him guilty, the judge added, "You should rejoice that you fell into the hands of, and were tried by, a jury of your peers."

CLERK OF THE PEACE.

[To the Editor of the Solicitors' Journal.] Sir,-Will you allow me access to your columns to inquire whether any of your subscribers can refer me to any instance in which a Clerk of the Peace has been LEX. either a deputy-lieutenant or under-sheriff ? July 4.

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CASES OF THE WEEK.

TRUSTEE IN BANKRUPTCY-DISCLAIMER OF LEASEHOLD INTEREST OF BANKRUPT-LEAVE OF COURT-BANKRUPTCY ACT, 1869, ss. 23, 78-BANKRUPTCY RULES, 1871, R. 28.In a case of Ex parte The East and West India Dock Company, before the Court of Appeal on the 30th ult., the question arose whether leave ought to be given to the trustee of a liquidating debtor to disclaim a leasehold interest of the debtor under the following circumstances. The lessee of a public-house, in consideration of a premium, assigned the house for the residue of the term to the debtor, the debtor covenanting in the ordinary way to pay the rent and observe and perform the covenants, and to indemnify the lessee against the rent and covenants. A few years afterwards the debtor filed a liquidation petition, and the trustee, finding that the house was not worth the rent, applied to the court for leave to disclaim the debtor's interest under the lease. The lessor opposed the application, on the ground that the effect of the disclaimer might be to destroy his rights against the original lessee under his covenants in the original lease. But the lessor offered to undertake not to sue the trustee on the covenants, and not to make any claim against the bankrupt's estate. Mr. Registrar Murray gave leave to disclaim, and his decision was affirmed by the Court of Appeal (Lord SELBORNE, C., and BAGGALLAY and LUSH, L.JJ.). The LORD CHANCELLOR, who delivered the judgment of the court, said that rule 28 no doubt required the court to exercise some judgment as to the propriety of allowing a disclaimer. But the rule was made under the power conferred by section 78 of the Act, which enables the Lord Chancellor, with the advice of the Chief Judge, from time to time to make general rules for the effectual execution of this Act and of the objects thereof, and the regulation of the practice and procedure of bankruptcy petitions and the proceedings thereon," and, after enumerating certain matters as to which regulations may be made, adds, "and, as to any other matter or thing, whether similar or not to those above enumerated, in respect of which it may be expedient to make rules for carrying into effect the objects of this Act." Therefore the rule was made and only could be made for the effectual execution of the objects of section 23. The object of that sec tion was to cut short by the trustee's disclaimer all liability of the bankrupt's estate in the cases there mentioned, which included future liabilities under leases, leaving any person who was injured to prove against the bankrupt's estate for the injury done to him. On the face of the section it appeared that the power of disclaimer was to be exercised with a view to the administration of the estate and for the benefit of all the persons who were interested in that administration. If, therefore, in any particular case it appeared clear that, looking at that object only, the disclaimer ought to be allowed, the court ought not for any collateral reasons, such as the interest of strangers to the bankruptcy, to refuse to allow it. In the present case the only reason suggested for refusing leave to disclaim was the interest of the lessor as between himself and the original lessee. And the argument must come to this, that, when the bankrupt was the assignee of a lease, the court ought never to allow his trustee to disclaim the lease if the lessor was willing to give such an undertaking as had been offered in the present case. That was a startling proposition, and it was inconsistent with the policy of section 23, as expressed on the face of it. If the view of the majority of the Court of Exchequer in Smyth v. North (20 W. R. 683, L. R. 7 Ex. 242), and the view of the Court of Appeal in the recent case of Ex parte Walton (ante, p. 585), was correct (and his lordship did not intend to intimate any opinion to the contrary), the disclaimer would not affect the rights of the lessor against the original lessee. If, on the other hand, the view of these learned judges was incorrect, still it would be contrary to the policy of the statute to leave the bankrupt's estate liable to a liability from which it would be relieved if the disclaimer was allowed. The undertaking offered would not give the estate the relief which would be given by the disclaimer. The appeal must, therefore, be dismissed. The appellants' counsel asked that the order giving leave to disclaim might be prefaced (as in Ex parte Walton) with a declaration of the opinion of the court that the rights of the lessors against the original lessee would not be prejudiced. The court declined to do this, and they also refused to give leave to appeal to the House of Lords, on the ground that the appeal would be from an exer

cise of the discretion of the court, and not from a decision on a point of law.-SOLICITORS, Freshfields & Williams; Soames; Rodgers & Clarkson.

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MORTGAGE-ATTORNMENT CLAUSE-DISTRESS-APPLICATION OF PROCEEDS.-In a case of Ex parte Harrison, before the Court of Appeal on the 30th ult., a question arose to the right of a mortgagee to apply the proceeds of a distress, levied under an attornment clause in the mortgage, in payment of the principal of the mortgage debt as well as of the interest due. The mortgage deed contained a recital that the mortgagee had agreed to advance the money upon having the repayment thereof, with interest, "secured in manner hereinafter appearing." The deed was executed on the 8th of November, 1873. The mortgagee covenanted that, if the interest was punctually paid, he would not call in the principal before the 8th of November, 1880. A power of sale was given, and the mortgagor, "for the consideration aforesaid)" attorned tenant from year to year of the mortgaged property (which was in his occupation) to the mortgagee at a yearly rent which was equal in amount to a year's interest on the principal at the rate reserved, the rent being made payable half-yearly. The deed contained a provision for the reduction of the interest by one per cent. per annum in case it should be paid within thirty days after it should become due. In March, 1880, the mortgagor filed a liquidation petition. On the 1st of June, 1880, the mortgagee gave six months' notice to pay off the mortgage. The trustee in the liquidation paid the interest up to the 1st of July, 1880. In November, 1880, the mortgagee distrained for half a year's rent under the attornment clause up to the 8th of November, and the question then arose whether be was entitled to retain out of the proceeds of the distress more than the interest which was due from the 1st of July to the 8th of November. He claimed to retain the excess of the proceeds of the distress, beyond that interest, on account of principal. Bacon, C.J., held (29 W. R. 668) that the mortgagee was entitled to do this, and the Court of Appeal (Lord SELBORNE, C., and BAGGALLAY and LUSH, L.JJ.) affirmed the decision. The LORD CHANCELLOR said that, looking at the recital that the payment of principal and interest was to be secured "in manner hereinafter appearing," primâ facie the rent reserved by the attornment clause was applicable to the payment of interest when it became due, and of principal when it became due. At the time when the distress was levied the whole of the principal was due, and some interest. Why was not the fruit of the distress to be applied to payment of the whole which was due ? was nothing to the contrary in the deed, except the fact that the amount fixed for the rent coincided exactly with the amount of the interest, which was made payable on the same day, but which was made reducible at the option of the

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mortgagor, for the exercise of which option he was allowed a period of thirty days. But there was nothing to suspend the right of distress during those thirty days. There was nothing to prevent the mortgagee from applying the fruits of the distress to payment of principal, and even if there was not a shilling of interest due, there was nothing to prevent him from distraining for principal. This decision appears to conflict with that of Malins, V.C, in the case of Hampson v. Fellows (L. R. 6 Eq. 575).—SOLICITORS, Swann & Co.; Cole & Jackson.

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BILL OF SALE-DESCRIPTION OF GRANTOR-" WIDOW' -BILLS OF SALE ACT, 1878, s. 10.-In a case of Ex parte Chapman, on the 30th ult., the Court of Appeal (Lord SELBORNE, C., and BAGGALLAY and LUSH, L.JJ.) affirmed the decision of Bacon, C.J., that a widow who, until a few weeks before she executed a bill of sale, had been carrying on the business of a licensed victualler, and who was not then carrying on any business, but who was in treaty for the taking of another public-house, was sufficiently described on the registration of the bill of sale simply as a widow.-SOLICITORS, John Scaife; Brownlow & Howe.

CHOSE IN ACTION OF BANKRUPT-REVERSIONARY INTEREST-TRUSTEE IN BANKRUPTCY-PARTICULAR ASSIGNEE -PRIORITY-NOTICE-VENDOR AND PURCHASER-BANKRUPTCY ACT, 1869, s. 22.-In a case of Palmer v. Locke, before the Court of Appeal on the 1st inst., a question was raised upon the construction of section 23 of the Bankruptcy

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