MR. H. FOWLER, who in the House of Commons this week divided the House on the vote of £116,115

for the Chancery Division, does not appear to have properly read his brief, or, what is more probable, had not in his brief adequate instructions to enable him properly to fill the part he undertook. The item of £2,000 for writing, charged to the registrars' office, appears to us to be 8 very small sum compared with the amount of business transacted in that office. Any one practising there knows well that without the writing which is done by a staff of writers who are not on the list of its officials the work of the office could never be got through. The time of the assistant clerks is almost wholly taken up with answering questions, and taking in and giving out papers, and with bookkeeping, and very little time is left them for writing. Again, on the subject of the Master of the Rolls' officers, the same honourable member should have known that there are special duties performed by the officers of the Master of the Rolls none of which are performed by the officers of the other chancery judges. In moving to reduce these votes members should not forget that the receipts produced to the public revenue from the civil courts far exceed the expenditure upon them, and that the Treasury is always on the watch to recommend any reduction they may deem necessary.

THE CONVEYANCING BILL, as sent down from the Lords, contained a clause providing that, "where the solicitor of a purchaser finds that the title shown to the property purchased has been previously investigated and accepted on behalf of a purchaser through whom the title is deduced, it is hereby declared to be in the discretion of the solicitor to dispense with further examina. tion or investigation of the title so previously investigated and accepted; and a solicitor so dispensing shall not be answerable in respect of any loss that may arise thereby. Where the solicitor is acting for trustees, executors, or other persons in a fiduciary position, those persons also shall not be answerable as aforesaid." It may be remembered that in our comments on the Bill (ante, p. 312) we pointed out what a snare this provision would be to the unwary practitioner, and also how useless it would be. The Select Committee of the House of Commons appear to have taken the same view, for the clause has disappeared from the Bill.

Increased facilities will be shortly given for the transmission of money through the post, if, as it is stated, is probable, Mr. Fawcett should decide to carry out an insurance scheme which he has had under consideration for some little time. Under this scheme the public will be enabled to send money between places in the United Kingdom with absolute immunity from loss, and with practically as little trouble to themselves as is now involved in the making up and posting of a registered letter. The maximum amount insurable is not yet settled, and is, we believe, one of the principal points under consideration. In summing up in an action for breach of promise of marriage at the Liverpool Assizes on Monday, Lord Chief Justice Coleridge, alluding to some remarks as to the expediency of this class of action, said that what might be the enlightened conclusion of Parliament on the question he did not know. Parliament might think fit to abolish breach of promise as a ground of action, but it was much to be considered before that consummation was arrived at whether in certain ranks of life women would have any protection against the misconduct of men. It was too much forgotten that these actions were often extremely useful in keeping people within the bounds of duty, which, if there were not such laws, they would avoid. It very often happened that a woman gave up, honestly and affectionately, the best years of her life to a particular man, and put aside all thoughts of marrying any one else. When that man dishonestly and illegally broke his contract with her, the only compensation she could obtain for the wrong done to her was to seek heavy and substantial damages in a court of law.

DISCLAIMER BY TENANT FROM YEAR TO YEAR.

"A NOTICE to quit," said Chief Justice Best in Doe v. Froud (4 Bing. 560), " is only requisite when the tenancy is admitted on both sides, and if a defendant denies the tenancy there can be no necessity to end that which he says has no existence." In that case the defendant expressly stated in writing that he had not hitherto con sidered the plaintiff as his landlord, and that he "held as tenant" to another person, and Best, C.J., said, “If this be not disclaimer, what is ?" In truth, under the circumstances of the case, it was not disclaimer at all. There never was any tenancy between the parties; the estate of the tenant for life under whom the defendant held had determined by her death; hence it was not a question of disclaimer, but of whether there was any evidence of the creation of a new tenancy. It is of some importance to point out this distinction, as a good deal of confusion is to be observed in some of the cases and text-books upon this matter. Disclaimer can only occur where there s an existing tenancy between the parties, and it is in truth nothing more (as Maule, J., said in Doe v. Rollings, 4 C. B., at p. 192) than dispensing with a notice to quit in the case of a tenant from year to year who would otherwise be entitled to such notice.

Another point which seems very much to have escaped attention is, that it is in all cases a question of fact for the jury whether the words used by the tenant do or do not amount to a disclaimer. This was first settled in Doe v. Cooper (1 M. & Gr. 135), in which case the judge at the trial left it to the jury to say whether the words used by the tenant amounted to a disclaimer. Upon a motion for a new trial, on the ground that this was matter for the decision of the judge, it was held by the Court of Common Pleas that it was properly left to the jury; and Erskine, J., distinctly laid it down that "whether or not the words used by the tenant amounted to a denial of the landlord's title is a question of fact for the jury" (p. 141).

The general principle upon which a jury will be directed to act in deciding the question whether words used by a tenant from year to year do or do not amount to a disclaimer was laid down by Tindal, C.J., in Doe v. Cooper (1 M. & Gr. 135), and has since been adopted in Jones v. Mills (10 C. B. N. S. 788), and other cases. It is that there must be "a renunciation by the party of the character of tenant, either (1) by setting up a title in another, or (2) by claiming title in himself."

(1) As regards the first of these modes of renunciation -viz., by setting up title in another-it is to be observed, in the first place, that a mere refusal to pay rent until the tenant has ascertained who is entitled to the reversion does not amount to a disclaimer, provided the tenant acknowledges his tenancy and professes himself ready to pay his rent to the rightful owner of the rever sion. Thus, in Doe v. Pasquali (Peake N. P. C. 259, 3rd ed.), the tenant of property which passed under a contested will frequently said he was ready to pay h's rent to any person who was entitled to receive it, but as he doubted whether the will was duly made, he refused to pay his rent to the plaintiffs who claimed under it. This was held not to be a disclaimer, because the tenant professed himself ready to pay rent to any person who was entitled to receive it. Similarly, in Doe v. Cawdor (1 Cr. M. & R. 398), letters by the tenant and his solicitors asking for proof of the title of the person claiming to be landlord were held not to amount to a disclaimer. In Doe v. Cooper (1 M. & Gr. 135) a statement by an under-tenant who had agreed to pay his rent to the superior landlord, in reply to a demand of rent, that "he held under H. and was directed by him to pay to the superior landlord, and he would do so; for how did he know that he would not come and make a demand upon him," was held not to be a disclaimer, and Tindal,

C.J., said (p. 138), that "there were authorities to show that a tenant honestly inquiring into the title of a claimant is not thereby guilty of a disclaimer." The tenant, in fact, had merely insisted on an agreement made before the title of the claimant had accrued. In another case of Doe v. Long (9 C. & P. 773) a tenant had held land under a letting by several members of a family, it being agreed that the rent should be paid to D. Upon a demand of rent being made by one of the members of the family, who was really solely entitled to the land, the tenant said, "You are not my landlord." The jury were directed that if the fair meaning of the expres. sion was that rent was to be paid to D., it I would not amount to a disclaimer. A statement by the tenant of property which has been devised by a contested will, in answer to a demand of rent, that he has "received notice from the other party, and will not pay more rent till he knows who is the right owner," will not be a disclaimer, for he acknowledges that he is a tenant, and is ready to pay rent to the right owner (Jones v. Mills, 10 C. B. N. S. 788). The observations of the court in Doe v. Rollings (4 C. B. 188) must be taken to have been overruled. In that case a tenant, after a request had been made to him to attorn and agree the rent to be paid, said that another person claimed the property, and he would not pay any rent to the applicant, but would place the rent in the bank, and afterwards pay it to the person who might be entitled to it. The court held that no tenancy had been created between the applicant and the tenant, so that no question of disclaimer, properly so called, arose; but they went on to say that, if the defendant did hold as tenant to the plaintiff, "the setting up of an adverse title as a ground for refusing to pay any rent to the plaintiff was a disclaimer of the holding as tenant to the plaintiff." It is certainly difficult to see how a mere statement that another person claimed the property, coupled with an express acknowledgment of the tenant's readiness to pay rent to the rightful owner, could be considered as setting up a title in another, and there can be no doubt that the decision in such a case would now be different. But the tenant must be careful not to say anything which amounts to a definite acknowledgment of the title of a third person to the property. In Doe v. Pittman (2 N. & M. 673) a tenant, in reply to a demand of rent, said, "I have no rent for you, because A. B. has ordered me to pay none." It was held that this was -evidence of a disclaimer. Here there was no avowal of the relation of landlord and tenant, or of readiness to pay rent to the person entitled.

(2) As regards the second branch of the alternativeviz., the tenant claiming title in himself-it is settled that, in order to operate as a disclaimer, the claim made by the tenant must be necessarily inconsistent with the continuance of the tenancy from year to year. Mere insistance by the tenant upon an agreement for a lease, or for purchase of the premises by him, will not be a disclaimer. Thus, in Doe v. Stanion (1 M. & W. 695), a tenant had agreed with his landlord to buy the property let to him. After he had remained in possession for several years without paying either rent or interest on the purchase-money, the landlord's agent applied to him to give up possession, and he replied that he "had bought the property and would keep it, and had a friend ready to give him the money for it." This was held not to be a disclaimer, because it was not clear that the tenant intended to hold the estate on a ground necessarily inconsistent with the continuance of the tenancy from year to year. "The defendant," said Parke, B. (p. 703), had a double right-to enforce his bargain for the purchase of the estate, and to continue in the meantime to hold it as a tenant from year to year, and his declaration is, in truth, no more than an avowal that he should insist on his contract of purchase, and was ready to perform it. This appears to us to be quite consistent with the continuance in the meantime of the tenancy from year to year." The case of Doe v. Evans (9 M. &

W. 48), in which a tenant, who had come in under a testator who had devised the property to trustees for a term, in trust to permit A. to take the rents for life, said, upon receiving a notice to quit from A., that "he did not think A. would have turned him out of possession, as she had promised that he should continue as tenant from year to year," which was held to be a disclaimer of tenancy to the trustees; was explained by the court, on the ground that slight evidence of a disclaimer would be sufficient to remove the technical objection that the notice to quit had been given by A. instead of by the trustees.

But the claim by the tenant, although not inconsistent with the existence of some relation between the parties of lord and tenant, must not be inconsistent with the relation of landlord and tenant as ordinarily understood, or it will amount to a disclaimer. Thus in Vivian v. Moat (29 W. R. 504) a man who had held a cottage from 1847 to 1866 at a rent of 11s. per annum had notice given him by the owner of the cottage that his rent would be raised. In reply, the defendant offered to pay "the customary rent of 11s. a year, but no more," unless steps were taken by the plaintiffs within a month to substantiate their claim. The plaintiffs wrote denying that there was any other relation than that of landlord and tenant between the parties, or that it was ever admitted that there was a customary rent payable on the premises. The defendants replied that they "disputed the right" of the predecessor of the plaintiffs "to raise the rent, but they are ready, and hereby offer, to pay what is due in respect of the customary rent, 11s. a year, being, as they are advised, all that they are liable to pay in respect of the said property." Mr. Justice Fry held that, as a customary rent means a rent which by force of a legal custom enables a man to hold the land as long as he pays that rent, this was a suggestion that the late lord (and therefore the present plaintiffs) were not ordinary landlords of this estate, but were either lords of the manor or the owners of some other right which gave them a title to a customary rent which they could demand, and nothing more than which they could demand. That was, he thought, a distinct repudiation of the relation of landlord and tenant as ordinarily understood; and was the assertion of a right to hold the property upon payment of a customary rent, which

was inconsistent with that relation.

This

In all the cases we have hitherto noticed the words relied upon as a disclaimer had reference to some denial of the title of the landlord, or repudiation of the character of tenant. What is the effect of a repudiation of some of the terms of an existing tenancy, without any repudiation, or even an express acknowledgment, of the character of tenant ? question arose in Hunt v. Allgood (4 C. B. 253). In that case parish lands had been let to labourers at a rent of 4s. per acre. The lands were afterwards inclosed, and the overseers and church wardens raised the rent to 12s. per acre, in order to raise a fund for paying the expenses of the inclosure. The tenants paid the increased rent for several years, and then, thinking that the expenses of the inclosure must have been paid off, they refused to pay the increased rent, and insisted that they were entitled to hold the land at the original rent of 4s. per acre. This was held not to be a disclaimer: and Erle, C.J., said (p. 258), "It was supposed that this amounted to a claim by them to have an estate in the land which was inconsistent with the right of the plaintiffs; . . . a claim, in spite of the landlord's title, to continue to hold the land at 4s. per acre. Bat when we look at the circumstances under which the words were used, it appears to me that their more probable meaning was an assertion of their right to continue their tenancy under the plaintiffs at the rent of 4s. per acre."

MAINTENANCE.

MAINTENANCE, which is defined by Hawkins as an officious intermeddling in a suit that no way belongs to one, by maintaining or assisting either party with money or otherwise to prosecute or defend it " (Hawk. P. C.; B. 1, c. 83, s. 23), is clearly a misdemeanor at common law (1 Russell on Crimes, 259), and punishable by fine and imprisonment. It is also an offence by statute. The Legislature has usually coupled it with champerty, in which the offender maintains for the sake of getting to himself part of the fruits of the judgment, and no less than eleven Acts of Parliament, which have been passed from time to time for the suppression of one or other or both of these offences, still lie unrepealed upon the Statute-book. If our memory serves us right, these Acts were marked down for repeal, as obsolete, by the Criminal Code-and obsolete in a certain sense no doubt they are, inasmuch as there has been, it may be safely said, no prosecution under them for at least a hundred years, although the civil consequences of the offence have frequently been recognized in modern times, as in Hutley v. Hutley (L. R. 8 Q. B. 112); In re Paris Skating Rink (L. R. 5 Ch. D. 959); and see for a very modern legislative prohibition of champerty, the Attorneys and Solicitors Act, 1870, s. 11.

Whether maintenance as an offence, however, be "obsolete" or not, it was settled once for all by Ashford v. Thornton (1 B. & A. 405), that a law is not repealed by becoming obsolete; and it may be worth while to consider the effect of the more important of the many statutes on the subject. A selection only is necessary, for it will be found that in this, as in many other subjectmatters of legislation, the practice has been to legislate by reference, and to enact only that the pre-existing statutes should be put more diligently into force.

The earliest statute is 3 Ed. 1, c. 25, which enacts that no officer of the King by themselves, or by other, shall maintain pleas, suits,

for to have part or profit thereof by covenant made between them." This appears to be confined to champerty, but the point is not quite clear. The Acts 4 Ed. 3, c. 11, and 7 Ric. 2, c. 15, however, are expressly directed against maintainers of quarrels and champetors, and must be read together. The Act 1 Ric. 2, c. 7, is a very important one, and is directed against maintenance only. It enacts that no person "shall take nor sustain any quarrel by maintenance in the country, nor elsewhere upon a grievous pain; that is to say, the King's great officers upon a pain that shall be ordained by the King, other less officers upon pain to lose their offices, and to be imprisoned and then ransomed at the King's will; and all other persons through the realm upon pain of imprisonment, and to be ransomed as the other aforesaid." The statute next to be noticed is the most recent: 32 Hen. 8, c. 9. This curious old piece of draftsmanship, after reciting that "the King, calling to his moste blissed remembraunce that there is nothing within this realme that conserveth his loving subjectis in more quietnes, rest, peace, and good concorde then the due and juste ministration of his lawes," &c., &c., enacts that "from hensfurth all statutes heretofore made concerning maintenance, champarty, and embracery, or any of them, nowe standing, shall be put in due execution according to the tenore and effectis of the same statutes." A penalty of ten pounds, recoverable by a common informer, is imposed by this statute, and we incline to the opinion (though the point is open to doubt) that this is a cumulative and not a substituted penalty.

But the Act contains a section of very serious import, which appears to have been overlooked in any searches of the Statute-book for proper subjects of repeal. We transcribe it in extenso so far as material:

"And over that, no person shall bargain, buy, or sell, or by any ways or means obtain, get, or have, any pretended rights or titles, or take, promise, grant, or covenant to have

any right or title of any person in or to any manors, lards, tenements, or hereditaments but if such person or persons which shall so bargain, sell, give, grant, covenant, or promise the same, their antecessors, or they by whom he or they claim the same, have been in possession of the same, or of the reversion or remainder thereof, or taken the rents or profits thereof, by the space of one whole year next before the said bargain, &c., upon pain that he that shall make any bargain to [sic] forfeit the whole value of the lands, &c., so bargained, &c., contrary to the form of this Act; and the buyer or taker thereof, knowing the same, to forfeit also the value of the said lands, &c., so by him bought or taken as is abovesaid: The one half of the said forfeitures to be to the King our sovereign lord, and the other half to the party that will sue for the same in any of the King's courts of record."

This enactment seems plainly to prohibit not only the sale of lands of which the seller is not possessed, but the sale of lands of which the seller has not been in possession for a year. It appears to have been acted upon in more than one case, of which Doe v. Evans (1 C. B. 717) is the best known, where the party selling was not in possession; but in the only reported case where it appears to have been relied on for the purpose of avoiding a sale on the ground of the seller not having been in possession for a year, the party putting it forward was unsuccessful (see Cook v. Field, 15 Q. B. 460). Looking to the large amount of transactions which are constantly taking place in contravention of the statute, and yet perfectly bona fide, it may be suggested as desirable that it should be repealed at once, otherwise some common informer may reap a rich harvest by interposing before the year within which actions must be brought is over.

RECENT DECISIONS.

CHARGING INTEREST AGAINST TRUSTEE.

(In re Emmett, Emmett v. Emmett, V.C.H., 29 W. R. 464.)

This case carries a step further the rather obscure rules relating to charging a trustee with compound interest. The trustee of a will who received and held a fund in trust for his son, to be paid over at twenty-one years of age, and during infancy to apply the income for maintenance, &c., and accumulate the surplus, if any, continued to retain the fund after his son had attained twenty-one, and, although he made certain payments to him and on his account, did not formally explain to him his rights with regard to the fund. During part of the period he so retained the fund the trustee had set apart and properly invested the fund, but latterly it had become mixed with his own moneys in his business of a solicitor, and a portion of it had been lost. It must be taken to be established, notwithstanding the observations in Jones v. Foxall (15 Beav. 388), that compound interest will be charged against a trustee who, notwithstanding an express trust to accumulate income, or surplus income, keeps the trust funds in hand instead of investing them. This rule does not appear to have been disputed in the present case, but it was contended that, as the trust to accumulate only applied during the infancy of the cestui que trust, the trustee could not be charged with compound interest in respect of the period after the cestui que trust attained twentyone. But, Vice-Chancellor Hall pointed out that, as the trusts ended on that event, the duty of the trustee being then to pay over the fund with the accumulations; if he deferred paying it over after that period, without the acquiescence of his cestui que trust, he must be taken to hold the fund on the same conditions as before-that is, upon trust to accumulate the income; hence the trustee was charged with compound interest throughout the whole period of retention by him. We must confess to some doubt of the soundness of this decision. After

the attainment by the cestui que trust of his majority, the duty of the trustee under the trusts of the will was to pay over the fund and accumulations, and we do not see how any direction to accumulate so long as the fund remained in the hands of the trustee can be implied from provisions which contemplate the ending of the trust on that event.

It appears from the report that the Vice-Chancellor directed the account to be taken at compound interest with half-yearly rests, upon the footing that immediately, throughout the period, that an amount became payable, that amount should bear interest. This is, in fact, double compound interest. Although half-yearly rests were directed in Raphael v. Boehm (11 Ves. 92, 13 Ves. 407), Lord Eldon doubted (see 11 Ves. 111) whether this had ever been done before, and we do not know that it has been done since, except by Vice-Chancellor Stuart in Burdick v. Garrick (18 W. R. 387, L. R. 5 Ch. 233); and in that case, on appeal, the direction as to charging compound interest was struck out, and Lord Hatherley said

that it was erroneous." In subsequent cases only yearly rests have been directed.

The rate of interest charged in the recent case, however, was only four per cent., although for a part of the time of retention the fund had been employed by the trustee in his business of solicitor. It is to be observed

that in the case of Burdick v. Garrick the rate charged against a trustee who had employed trust moneys in his business of solicitor was five per cent., and Lord Hatherley said that the Vice-Chancellor was "right in fixing the interest at five per cent., because these funds were made use of by the defendants, who must be presumed to have received interest at that rate." Both as to the half-yearly rests and the rate of interest, the decision in the recent case is clearly inconsistent with the decision in Burdick v. Garrick.

SEVERANCE OF TRUSTEESHIP.

(In re Grange, Cooper v. Todd, Fry, J., 29 W. R. 502.) The court will not execute trusts piecemeal; hence where estates of different tenure or description, or as to which different trusts are declared, or are vested by the creator of the trust in the same trustees, with the ordinary power of appointing one set of new trustees, the court will not appoint one set of trustees as regards one part of the property, and another set as regards another part. Bat in Re Dennis's Trusts (12 W. R. 575), where all the trustees had died, the court, with the consent of the representatives of the surviving trustee, appointed new trustees of one part of the property without dealing with the other parts. In the recent case a testator gave freehold and leasehold estate, by several specific gifts, on trusts, substantially similar, for several classes of persons respectively, with cross-remainders in the case of all the gifts. Many of the cestuis que trust were not sui juris; but Mr. Justice Fry held that, with the consent of all the present trustees and all the cestuis que trust who were sui juris, separate trustees of separate parts of the property might be appointed. It may be suggested that it would be convenient to confirm the precedent thus set by conferring on the court by legislation express power to sever trusteeships. In the case of real properties of different descriptions, and widely separated as regards locality, it may often be a saving of expense, and expedient on other grounds, to have different sets of trustees.

VESTING ORDER UNDER TRUSTEE ACT, 1850. (In re Holland, JAMES and COTTON, L.JJ., 29 W. R. 449).

Section 3 of the Trustee Act, 1850, enables the court, when any lunatic shall be seised of any lands upon any trust, "to make an order that such lands be vested in such person or persons in such manner and for such estate" as the court shall direct. In the recent case a sole trustee had become lunatic, and it was asked that the trust property should be vested in a cestui que trust who

was sui juris and absolutely entitled. This the Lords Justices declined to do, on the ground that it would be administering the trusts, and the principle on which the court acts under the Trustee Acts is not to administer the trusts.

REVIEWS.

TAXES ON SUCCESSION. TREVOR'S TAXES ON SUCCESSION. By EVELYN FREETH and ROBERT J. WALLACE, of the Legacy and Succession Office. FOURTH EDITION. Stevens & Sons. We notice this work at once in order to point out that in chapters 1 and 2 the provisions of the recent Customs and Revenue Act as to Account Duty are set out, and the forms relating to it are given in chapter 5; and also in order to call attention to the new Treasury missioners of Inland Revenue are authorized to charge Minute, noticed in the add enda, under which the Cominterest at five per cent. in lieu of ten per cent, on stamps for probate duty given on credit, and to dispense with sureties where they are satisfied with the security of the executor or administrator. The book in other respects expressed our favourable opinion of it. remains substantially unaltered, and we have recently

CORRESPONDENCE.

THE SUMMARY JURISDICTION ACT, 1879. [To the Editor of the Solicitors' Journal.] Sir,-Will you allow me to draw attention to what appears to be an inconsistent omission in the Summary Jurisdiction Act of 1879-viz., in not giving to justices the power to adjudicate in offences committed by obtaining goods under false pretences, as well as in cases of larceny, receiving stolen goods, embezzlement, &c. ?

During the last few months important cases of embezzlement by confidential servants and others have been dealt with summarily by the justices of this borough, the defendants having pleaded guilty. Amongst the cases brought before the bench for obtaining goods by false pretences I will instance two: the first, of a man unknown to the police, who obtained from a shopkeeper goods to the amount of 8d. Having no friends, bail was not asked for. He remained two months in prison awaiting his trial at the sessions; it might have been three months. The other case is of a boy, fourteen years of age, who obtained 74d. by a false pretence. The justices had no alternative but to send this child from Ipswich to Bury to be tried before Lord Justice Bramwell at the assizes there, held on the 2nd inst. In each of these cases witnesses were put to considerable inconvenience, and the borough to what appears a very unnecessary expense.

I enclose my card, and beg to subscribe myself,
Ipswich, August 9.

J. P.

In Committee of Supply of the House of Commons on the 5th inst., on a vote to complete the sum of £5,442, for the Land Registry Office, Sir W. Barttelot complained of the condition of the office, which rendered little service. He asked whether it was intended to make it of any use, or whether it was intended to continue it as at present. The Solicitor-General admitted that the state of the office was not satisfactory. It was a charge upon the revenue which the amount of good it did did not justify. No one regretted this more than the registrar, who had resigned a lucrative practice to accept this office. He only regretted that he was not able to render greater service to the public. The Govern ment did not view the position with satisfaction, and they would not lose sight of it.

CASES OF LAST WEEK.

DEBTOR'S

SUMMONS-STAYING PROCEEDINGS-DISCRETION OF COURT-BANKRUPTCY ACT, 1869, s. 7.-In a case of Ex parte Mapleson, before the Court of Appeal on the 4th inst., a question arose as to the staying of proceedings on a debtor's summons. The summons had been issued in respect of a judgment debt, the validity of which the debtor did not dispute, but he claimed to have the proceedings suspended, on the ground that he desired to bring an action against the summoning creditor in respect of an alleged breach by him of a contract entirely independent of the judgment debt, and he wished to be able to set off the damages which he might recover in that action against the judgment debt. The court (Lord SELBORNE, C., and BRETT and COTTON, L.JJ.) held that there was no ground for staying the proceedings. Lord SELBORNE said that a claim for unliquidated damages did not constitute a set-off against a judgment debt. Section 7 of the Act said that the debtor might apply to the court to dismiss the summons on the ground that he was not indebted to the summoning creditor, or not indebted in the sum of £50, and then the court might stay all proceedings on the summons for such time as would be required for the trial of the question relating to the debt. The present application was not made on any of the grounds there specified. COTTON, L.J., said that the court had a discretion to stay proceedings on a debtor's summons when there was any doubt as to the validity of the debt claimed; there was no such discretion when there was no such doubt.-SOLICITORS, J. & R. Gole; Davidson & Morriss.

OF

COMPOSITION RESOLUTIONS-REGISTRATION-WANT BONA FIDES-SMALL AMOUNT OF COMPOSITION-DUTY OF REGISTRAR-BANKRUPTCY ACT, 1869, s. 126-BANKRUPTCY RULES, 1870, R. 295.-In a case of Ex parte Williams, before the Court of Appeal on the 4th inst., a question arose as to the registration of composition resolutions. The debtor's statement of affairs showed that his debts amounted to £1,167, and that he had no assets. The statutory majority of the creditors resolved to accept a composition of twopence in the pound, payable in three months from the registration of the resolutions, no security being given for its payment. No creditor opposed the registration of the resolutions, but Mr. Registrar Pepys refused to register them, on the ground that that they had been passed solely in the interest of the debtor, and not for the benefit of the creditors. On the appeal it was urged that, in the absence of opposition by the creditors, the registrar was bound to register the resolutions, reliance being placed on the decision of the Chief Judge in the almost exactly similar case of Ex parte Elworthy (23 W. R. 790, L. R. 20 Eq. 742). The court (Lord SELBORNE, C., and BRETT and COTTON, L.JJ.) affirmed the registrar's decision. Lord SELBORNE, C., expressed his assent to the principle laid down by Lord Justice James, in Ex parte Terrell (25 W. R. 153, L. R. 4 Ch. D. 293), thus- This court has laid it down that the resolutions must be passed bond fide in the interest of the creditors, and must not be mere sham resolutions. The facts of the present case show that the resolutions could not have been passed bona fide. The debtor had no assets; he merely gives his promise to pay the composition, and nobody else offers to give any security for it; the creditors merely accept the hope that the son will in the course of a month find the money to pay it. That is not the sort of arrangement which, as it appears to me, was contemplated by the Act as one which could bind the dissentient minority of the creditors." It was not in accordance with the true intention, or with the spirit and justice, of the Bankruptcy Act that such an arrangement as had been come to in the present case under the name of a composition should be imposed by any number of creditors who chose to vote for it upon the dissentient minority. Such resolutions could not have been passed in the interest of the creditors, but must have been passed to favour the debtor. BRETT, L.J., said that in such a case the registrar was bound to refuse registration. COTTON, L.J., was of opinion that, though there was no opposition to the registration, the registrar was bound to refuse to register the resolutions, if upon the evidence he came to

the conclusion that they were passed solely in the interest of the debtor. Tue Act gave the majority of the creditors very large powers to bind the minority, and they ought to be strictly watched in the exercise of those powers.-SOLICITOR, E. Farman.

COMPOSITION RESOLUTIONS-REGISTRATION-PRESENCE OF DEBTOR AT MEETING-BANKRUPTCY ACT, 1869, s. 126, SUB-SECTION 4-BANKRUPTCY RULES, 1870, R. 295.-In a case of Ex parte Best, before the Court of Appeal on the 5th inst., a question arose as to the registration of composition resolutions. Mr. Registrar Murray had refused to register the resolutions, on the ground (inter alia) that he was not satisfied that the requirements of the Bankruptcy Act with regard to the presence of the debtors at the first meeting of the creditors had been complied with. Section 126 of the Act provides, by sub-section 4, that "the debtor, unless prevented by sickness or other cause satisfactory to such meetings, shall be present at both the meetings at which the extraordinary resolution is passed, and shall answer any inquiries made of him, and he or, if he is so prevented from being at such meetings, some one on his behalf shall produce to the meetings a statement showing the whole of his assets and debts, and the names and addresses of the creditors to whom such debts respectively are due." The evidence as to what took place in the present case at the first meeting was conflicting. It was alleged that the debtors, though not actually present in the room in which the meeting was held, were in an adjoining room; that the creditors were aware of this; and that the debtors would have come into the meeting at once if any of the creditors had expressed a wish to ask them any questions. On the other hand, it was said that the solicitor of one of the opposing creditors expressed a wish to the chairman of the meeting to examine the debtors, and that his request was not complied with. He did, however, examine them at considerable length at the second meeting. It was stated that it is the ordinary practice at meetings of this kind in the City of London for the debtors not to be present in the room in which the meeting is held, unless the creditors expressly desire their attendance, but for them to be in an adjoining room, from which they can be readily summoned if they are wanted. The reason for this custom was said to be that the creditors prefer to discuss the affairs of a debtor in his absence, because they can express their opinions more freely than in his presence. The court (Lord SELBORNE, C., and BRETT and COTTON, L.JJ.) affirmed the registrar's decision. Lord SELBORNE said that the directions of the Act as to the presence of the debtor at the meetings were not merely formal, but were evidently intended for important and substantial purposes. Unless he was prevented by the causes specified in the Act he was to be present at the first meeting, and personally to put in his own statement of affairs. There were very good reasons why this should be required. These composition arrangements ought to be perfectly fair and above board, and all the information should be given to the creditors at the first meeting which was necessary to enable them to decide what course they would adopt. If the proper information was not given at the first meeting the matter came before the second meeting with some prejudice. It was not at all necessary to lay down that there might not be a substantial compliance with the requirements of the statute, though they were not complied with in form, as was held in Ex parte Grunelins (Weekly Notes, 1876, p. 244). There the Court of Appeal held that the requirements of the statute had been substantially complied with, though the debtor did not actually come into the room where the meeting was held, on the ground that no creditor required him to do so; and that the creditors either voluntarily dispensed with his attendance, or were satisfied that he was absent for good cause. His lordship was not prepared to say that under the special circumstances of that case there might not have been extremely good reasons for that conclusion. And it was to be observed that there the Court of Appeal was not reversing the registrar's decision, but was declining to disturb his order. All that his lordship could say was, that he did not think that the absence of the debtor should in any case be regarded as an unimportant or immaterial circumstance; but if the court was satisfied that, though he had been absent, there had been a substantial compliance with the requirements of the Act, it ought to come to that conclusion on a view of the whole evidence. In the present