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from the time when his last certificate was so obtained expired, down to the present time, he has not directly or indirectly practised as an attorney or solicitor in his own name, or in the name of any other person, nor has he incurred any penalty or penalties by practising. He says that his places of abode for the last twelve months have been at 32, Paulton's Square, Chelsea, and 40, Leinster Square, Bayswater. Then he says that the paper writing marked B is a true copy of the shorthand writer's notes of the evidence of the trial, and he says he was not guilty of the crime with which he was charged and subsequently tried, and that in what he did he had the full authority so to do from the said Lazarus. He then says: "I adopted the name of Lingdon at Liverpool in consequence of my pecuniary difficulty, which was my object first to settle before meeting the criminal charge, and also on the certificate of my brother's arrival from Australia, who would have clearly proved my innocence thereof." There is annexed also a copy of the depositions at the trial at the Old Bailey, and your lordships will see by that it was for forging an acceptance, and the acceptor Edward Lazarus was called and examined.

LUSH, J.-For the prosecution?

Huddleston.-For the prosecution; and in one part of his evidence he said that Mr. Levy had not authority, but in a subsequent part he says that he could not say with certainty whether he had ever told the prisoner's brother that the prisoner might make use of his name. It was never asked him, he could not even say that he had not, his impression was that he thought he had the power so far as this bill was concerned. He could not recollect any conversation to that effect. If he was asked about it now, he should say that he believed the prisoner considered that he had authority, and the jury say they consider he believed he had sufficient authority to use Mr. Lazarus' name.

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LUSH, J.-Was any application made against him at the same time? Huddleston. No application has been made against Mr. Levy with reference to these matters. There was an application three years ago against him, but it was discharged. I am not aware of any circumstances at present that can justify it.

LUSH, J.-No application since he left England? Huddleston.-No; the only case raised against him is this question of the forgery to the acceptance; upon that he was tried, and upon that he was acquitted. He has explained the reasons of his absence, and he has explained that he has paid the greater part of his liabilities.

LUSH. J.-Have the usual notices been given? Huddleston.-The usual notices. Late last night the information was received from the Law Institution that Mr. Garth would appear, not to show cause against the application. It is somewhat extraordinary that it should be made so late as last night. These are the foundations upon which I ask for permission for Mr. Levy to renew his certificate. Under ordinary circumstances, your Lordship knows an application of this sort is made at chambers. I thought it should be made publicly, in consequence of the peculiarity of the applicant having been charged with a criminal act. There are some cases where there is reason to suppose the attorney has been guilty of misconduct that it is usual to impose a fine. Mr. Levy meets that by saying that he has neither directly nor indirectly acted as an attorney during the time.

I am at

Garth.-I appear upon the part of the Law Society merely to call the attention of the court to a matter which I have not seen in any other shape than that presented to the public in the shape of a newspaper report. The matter was raised before the Law Society themselves, and they took instruction, and it was placed before me yesterday evening. It is a report of a trial at the East Croydon Assizes, before Bramwell, B. liberty to mention shortly the facts of the case, and then your Lordships will see why the Law Society thought it right that you should be informed of it. If you think it right that further inquiries shall be made with reference to it, they shall be made if your Lordships think fit to postpone this rule. It was an action that was brought

Huddleston.-There is no affidavit of this. It seems a very unusual course to adopt. He received due notice, and my friend says he does not appear to oppose.

LUSH, J.-In these applications the court is anxious to have information.

Huddleston.-The course will be to adjourn the


Garth. That is the position in which the Law Society stands in the matter. The rule of 1853, under which an attorney gives notices, is in this form. "Whereas it is expedient," &c., &c. [reading] "on discontinuance.' Then there is a rule that goes on to say certain notices shall be given. The judges inform themselves, or take steps to inform themselves by sending this notice. The judges desire that the notice which is given to the

EDWARDS (Frances), Whitchurch, Salop. Jan. 1; E. P.
Jones, solicitor, Whitchurch, Salop.

ELLWOOD (Henry, 66, Adelaide-road, St. John, Hampstead,
Middlesex, gentleman. Jan. 31; Field and Co., solicitors.
36, Lincoln's-inn-fields, W.C.
GOODWIN (Geo.) Esq., Scarsdale-place, Buxton, Derby.
Jan. 31; John Taylor, solicitor, Bakewell.
GOODWIN (Mary), Pictor, Fairfield, Hope, Derby. Jan. 31;
J. Taylor, solicitor, Bakewell.
HALLAM (Samuel J.), Esq., West-view, Beulah-hill, Nor-
wood, Surrey. Dec. 30; Bell and Co., solicitors, 9, Bow-

court shall be forwarded to the Law Society, in order that the Law Society may inform them of whatever it is proper they should know. I am in that position of representing exactly what has occurred. These people brought it to the notice of the Law Society the day before yesterday, and there has been no means of bringing it before your Lordships on affidavit, and therefore it is a matter in which perhaps you would be pleased to inquire churchrancis), Sheffield, attorney at law and notary of Mr. Baron Bramwell about. He tried the cause, and the question was raised before him.

HANNEN, J.-By making this a rule nisi, it will enable the Law Institution to inquire into the facts.

LUSH, J.-Making it returnable at chambers. It would be the better way not to decide it till next term.

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Transferred to the Commissioners for the Reduction of the
National Debt, and which will be paid to the persons
respectively whose names are prefixed to each in three
mouths, unless other claimants sooner appear.]
New (Francis Thos.), Esq., Connaught-square, Hyde-park,
W., and SMITH (Brooke), Esq.. Bristol. 8067. 198. 10d.
Three per Cent. Annuities. Claimants, said Francis Thos.
New and Brooke Smith.

ST. AUBYN (Edwd.), Esq., Devonport, and MALTBY (Henry).
Esq., Eaton-square, Middlesex. 737. 188. 9d. Three per Cent.
Annuities. Claimants, said Edwd. St. Aubyn and Henry


JAMAICA COMMERCIAL AGENCY COMPANY (LIMITED).—Creditors to send in by Jan. 20, 1972, their names and addresses, and the particulars of their claims, and the names and addresses of their solicitors (if any), to J. Hole, 1, Great College-street, Westminster, London, the official liquidator of the said company. July 4, at twelve o'clock, at the chambers of V.C. B., is the time appointed for hearing and adjudicating upon such claims.

LONDON SUBURBAN BANK (LIMITED).-Creditors to send in by Dec. 20 their names and addresses, and the particulars of their claims, and the names and addresses of their solicitors (if any), to A. Good, 7, Poultry, E C., the official liquidator of the said company. Jan. 15, at twelve o'clock, at the chambers of V.C. B., is the time appointed for hearing and adjudicating upon such claims.

ST. IVES AND WEST CORNWALL JUNCTION RAILWAY COMPANY. Petition for winding-up to be heard Dec. 15, before V.C. M.



ANGUS (Jonathan), 6, Ladbroke-crescent, Notting-hill, Middlesex, gentleman. Dec. 22; J. Fraser, solicitor, 16, Furnival's-inn, E.C. Jan. 8; M.R., at eleven o'clock. CONSTABLE (Sir Thos. A. C.), Bart, Burton Constable in Holderness, York. Dec. 23; Bell and Stewards, solicitors, 49, Lincoln's-inn-fields, W.C. Jan. 15; V.C. M., at twelve EAMONSON JOS. L.), Hessle, York. Dec. 29; C. H. Rad. chife, solicitor, Salisbury, Jan. 9; M. R., at eleven o'clock. FLAVELL Isaac), Northfield, Worcester, farmer. Dec. 31; Geo. Gem, solicitor, Birmingham. Jan. 12; V.C. M. at FOSTER (Maria J.), The Holme, Regent's-park, N.W. Dec. 12; Uptons and Co., solicitors, 20, Austinfriars, E.C. Dec. 20; V.C. W. at ten o'clock, GLASGOW (Peter), 140, High-street, Bishopwearmouth, Durham, saddler. Dec. 20; Wm. Bell, solicitor, Sunderland. Jan. 13; M. R. at twelve o'clock. GREEN (Richard C.). Accrington, Lancaster, oil and tallow

twelve o'clock.

merchant. Dec. 21; Chas. Hall, solicitor, Accrington.

Jan. 8; M. R. at eleven o'clock. HOMFRAY (Chas. J.), Esq., Down-lodge, Wandsworth, Surrey, Dec. 21; T. H. Street, solicitor, 27 Lincoln'sinn-fields, W.C. Jan. 12; V.C. M. at twelve o'clock. HUTTON (Benjamin), Park-street, Grosvenor-square, Middlesex, gentleman. Jan. 1; Robson and Herbert, solicitors, 27, Sackville-street, Piccadilly, W. Jan. 15; M. R. at eleven o'clock.

JUBBER (Henry), Esq., Long's Hotel, New Bond-street, W. H. Percy, Cross House, Fulham, Middlesex. Jan. 5; J. Chapple, solicitor, 25, Carter-lane, E.C. Jan. 27; V.C. M. at twelve o'clock."

LANE (John W.), Barton Will, Cirencester, farmer and

miller. Dec. 28; Sewell and Co., solicitors, Cirencester. Jan. 16; V.C. W. at twelve o'clock.

MOORE (Elizabeth), How-green, Astley, Warwick. Dec. 28;

public. Jan. 13; Hooles and Tattershall, solicitor, Meeting
House-lane, Sheffield.
HUME (Willerton, S.), 58. Leages-terrace, Newcastle-upon-
Tyne, miller. March 1; Jos. G. Joel, 21, Market-street,

MERRETT (Jno.), &, Stanley-road, Darnley-road, Hackney,
Middlesex, chemist. Jan. 20; Chipperfield and Sturt,
solicitors, 7, Trinity-street, Southwark, S.E.
METCALFE (Ann), 6, Nelson-street, Kingston-upon-Hull.
Jan. 6; Roberts and Leak, solicitors, 16, Bowlalley-lane,

MORANT (Rev. Henry J., Knapton Hall, Norfolk, clerk.
Feb. 2; Domville and Co., 6, New-square, Lincoln's-inn,

NEWTON (Matthew), sen., Mount-street, Ancoats, Manchester, and Didsbury, Lancaster, cotton spinner, &c. Dec. 13: Darbishire and Barker, solicitors, 26, George-street, Manchester.

O'DONNELL (Henry J.), 1, Albert-terrace, London-road, Southwark, Surrey, surgeon. Jan. 20; Chipperfield and Sturt, solicitors, 7, Trinity-street, Southwark, S.E. PALMER Wm.), 14, America square, Minories, E.C., and 8, Park-place, Highbury, Middlesex. Jan. 1; J. P. Poncione, jun., solicitor, 38, Moorgate-street, E.C.

PITKIN (Ann), Mursley, Bucks. Jan. 10; Willis and Willis, solicitors, Winslow, Bucks.

PRUCE (James), The George, 234, Kent-street, Borough,
Surrey, licensed victualler. Jan. 20; Chipperfield and
Sturt, solicitors, 7, Trinity-street, Southwark, S.E.
RICKEARD (Simon S.), Tolcarne, St. Columb Minor, Corn-
wall, yeoman. Jan. 11; Thomas Nicholls, solicitor, St.
Columb, Cornwall.
SANDERSON (Jane), Pilgrim-street, Newcastle-upon-Tyne,
grocer and provision dealer. Dec. 30; J. G. Joel, 24,
Market-street. Newcastle-upon-Tyne.

SCOTT (Edward, Cromwell-street, Newcastle-upon-Tyne, veterinary surgeon. March 1; J. G. Joel, solicitor, 24, Market-street, Newcastle-upon-Tyne.

SMITH (William), 16, Torrington-mews, Torrington-square. W.C., cab proprieter. Jan. 5; F. K. Manton, solicitor, 3. Old Fish-street-hill, Queen Victoria-street, E.C. VICAT (Emily A), Eltham, Kent, spinster. Feb. 1; Robinson and Co., solicitors, 18, Charterhouse-square, E.C. VICAT (James), Esq., Eltham. Feb. 1; Robinson and Co., solicitors, 18, Charterhouse-square, E.C.



Sir,-Having heard with considerable pain, on authority on which I can rely, that an impression prevails among the legal profession that my objection to the late appointment of Sir Robert Collier, as communicated to Mr. Gladstone, was based, inter alia, on an ungenerous disparagement of the personal merits of the Attorney-General, I am naturally desirous of removing an impression which is the reverse of the truth, and of having the grounds of my objection properly understood. The shortest way of effecting this being the publication of the ensuing correspondence, with which otherwise I might not have thought it necessary to trouble the public, I shall be glad if you can conveniently find room for it in your columns. I beg to remain, your obedient servant, Dec. 2, 1871. A. E. COCKBURN. THE LORD CHIEF JUSTICE TO MR. GLADSTONE. "Court of Queen's Bench, Nov. 10, 1871. "Dear Mr. Gladstone,-It is universally believed that the appointment of Sir Robert Collier to the seat in the Court of Common Pleas, vacated by Mr. Justice Montagu Smith, has been made, not with a view to the discharge of the duties of a

Woodcocks and Co., solicitors, Coventry. Jan. 15; V.C. W. judge of that court but simply to qualify the late

at twelve o'clock.

PARADISE (Benjamin), 288, New Cross-road, Surrey, gentleman. Dec. 23; Deacon and Co., solicitors, Paul's Bakehouse-court, Doctor's-commons, E.C. Jan. 8; M. R. at eleven o'clock.

PHEYSEY (Henry), 19, Princes-square, Middlesex, and 31, King-street, Smithfield, E.C., wine merchant. Jan. 10; Walker and Jerwood, solicitors, 12, Furnival's-inn, E.C. Jan. 22; V.C. W. at twelve o'clock. RUSSELL (Wm.), 3, Cobham-terrace, Greenhithe, Kent, master mariner. Jan 1; Parker and Clarke, solicitors, Rectory-house, St. Michael's-alley, E.C. Jan. 10, V.C. W. at twelve o'clock. SMITH (GEO.), Snaith, York, gentleman. Jan. 1; England and Son, solicitors, Goole. Jan. 15; Learoyd and Learoyd, solicitors, 11, South-street, Finsbury, E.C. STEVENS (James), Hoy Hotel, Margate, Kent, licensed victualler. Jan. 1; A. H. Boys, (solicitor, Margate. Jan 11; V.C. W. at twelve o'clock.

SALTZER John), Norwich, Jan. 11; Isaac B. Coaks, solicitor, Norwich. Jan 22; V.C. B. at ten o'clock.

CREDITORS UNDER 22 & 23 VICT. c. 35. Last day of Claim, and to whom Particulars to be sent. AYRES (Chas), Reading, coal and salt merchant. Jan. 20; Jas. Cooper, solicitor, 5, Billiter-street, E.C. BARKER (Elizabeth G.), Pictor, Fairfield, Hope, Derby. Jan. 31; John Taylor, solicitor, Bakewell, BATSON (Stanlake R.), Esq., Horseheath-lodge, Linton, Cambridge. Dec. 31; Meredith and Co., solicitors, 8, Lincoln's-inn, W.C.

BEATTIE (Jos. H.), South Bank, Surbiton, Surrey, civil engineer, Jan. 13; J. A. Rose, solicitor, 1, Salisbury-street, Strand, W.C. BOWDEN (Clar), Butt-ash-cottage, Widcombe and Lyncombe, Somerset. Jan. 20; Young and Co., solicitors, 6, Fredericks-place, Old Jewry, E.C.

BUSH (Jno.) Esq., Clapham, Surrey, surgeon.

Druce and Co., solicitors, 20, Billiter-square, E.C.

Dec. 31;

CUDWORTH Henry), Burnley, Lancaster, common brewer. Feb. 1; Hendsley and Artindale, solicitors, Burnley. DALZELL (Dame Maria), 120, Belgrave-road, Pimlico, Mic. dlesex, Jan. 6; Bircham and Co., solicitors, 46, Parliamentstreet, Westminster.

Attorney-General for a seat in the Judicial Committee of the Privy Council, under the recent Act of the 34 & 35 Vict. c. 91.

"I feel warranted in assuming the general belief to which I have referred to be well founded, from the fact that the Lord Chancellor, with a view to contemplated changes in our judicial system, has, notwithstanding my earnest remonstrance, declined for the last two years to fill up the vacant judgeship in the Court of Queen's Bench. I cannot suppose that the Lord Chancellor would fill up the number of the judges of the Court of Common Pleas, while to the great inconvenience of the suitors and the public, the number of the judges of the Queen's Bench is kept incomplete.

"I assume, therefore, that the announcement in the public papers, which has so startled and astounded the legal profession, is true; and, this being so, I feel myself called upon, both as the head of the common law of England, and as a member of the Judicial Committee of the Privy Council, to beg you, if not too late, to reconsider any decision that may have been come to in this matter; or, at all events, to record my emphatic because a colourable appointment to a judgeship protest against the course proposed-as a judge, for the purpose of evading the law appears to me most seriously to compromise the dignity of the judicial office-as a member of the judicial committee, because, while grave doubts as to the legality of the appointment are entertained in many quarters, none seem to exist as to its

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Any person appointed to act under the provisions of this Act as members of the said Judicial Committee must be specially qualified as follows -that is to say, must at the date of their appointment be, or have been, judges of one of Her Majesty's Superior Courts at Westminster, or a Chief Justice of the High Court of Judicature, at Fort William in Bengal, or Madras, or Bombay, or of the late Supreme Court of Judicature in Bengal.' "Now, the meaning of the Legislature in passing this enactment is plain and unmistakable. It was intended to secure in the constitution of the | high appellate tribunal, by which appeals, many of them in cases of vast importance, from our Indian possessions as well as from the rest of our colonial empire, are to be finally decided, the appointment of persons who had already held judicial office as judges of the Superior Courts. Whether wisely or unwisely, it plainly was not intended that the selection might be made from the Bar. It was to be confined to those who were, or had been, judges, and who, in the actual and prac. tical exercise of judicial functions, had acquired and given proof of learning, knowledge, experience, and the other qualifications which constitute judicial excellence. No exception in this respect is made in favour of an Attorney-general or other law officer of the Crown, who, however eminent and distinguished their position, of course remain members of the Bar. Nothing could have been easier, had it been intended to make such an exception, than to have included the law officers of the Crown among the persons specified as eligible. But the eligibility of the law officers does not even appear to have been contemplated by the Government in passing the present Act, a provision enabling the appointment to the Judicial Committee to be made from the Bar, contained in the Bill of the previous year, having been I presume purposely, omitted from the Bill as introduced in the last session. It is, however, unnecessary to dwell further on this point. No one will be found to say that it was intended to make a law officer, as such, eligible under this Act.

"It being, then, plain that the intention of the Legislature was that the selection should be made from the judges, I cannot shut my eyes to the fact that the appointment of the Attorney-General, who as such, was not qualified under the Statute, to a judgeship (the functions of which he is not intended to discharge) in order that he may thus become qualified according to the letter of the Act, cannot be looked upon otherwise than as colourable, as an evasion of the statute, and a palpable violation, if not of its letter, at all events of its spirit and meaning. I cannot help thinking of what would have been the language in which the Court of Queen's Bench would have expressed its opinion if such an evasion of a statute had been attempted for the purpose of qualifying an indi vidual for a municipal office, and the case had been brought before it on an information in the nature of quo warranto. In the present instance, the Legislature having settled the qualification for the newly-created office, momentarily to invest a party otherwise not qualified, with a qualifying office, not that he shall hold the latter, but that he may be immediately transferred to the former, appears to me, I am bound to say, to be nothing less than the manufacture of a qualification, not very dissimilar in character to the manufacture of qualifications such as we have known practised in other instances in order to evade the law. Forgive me, I pray you, if I ask you to consider whether such a proceeding should be resorted to in a matter intimately connected with the administration of justice in its highest departments."

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"It would obviously afford no answer to the objection to the proposed appointment to say that a gentleman who has held the position of a law officer of the Crown must be taken to be qualified to fill any judicial office, however high or important. This might have been a cogent argument to induce the Legislature to include the Attorney. General among the persons specially qualified' under the Act; but it can afford no justification for having recourse to what cannot be regarded as anything better than a contrivance to evade the stringency of the statute as it stands. The section in question makes the office of an Indian chief justice a qualification for an appointment to the Judicial Committee. Suppose that, as might easily have happened, an Indian chief justiceship had chanced to be vacant. An attorney-general would, of course, be perfectly qualified for the office. What would have been said if the AttorneyGeneral had been appointed to such a chief justiceship, not with the intention of his proceeding to India to fill the office, but simply for the purpose of his becoming qualified, according to the letter of the statute, for an appointment to the Judicial Committee? What an outcry would have been raised at so palpable an evasion of the Act! But,

what possible difference, allow me to ask, can there be, in principle, between such an appointment as the one I have just referred to, and an appointment to a judgeship in the Court of Com. mon Pleas, the duties of which it is not intended shall be discharged, for the sole purpose of creating a qualification in a person not otherwise qualified? I cannot refrain from submitting to you that such a proceeding is at once a violation of the spirit of the Act of Parliament and a degradation of the judicial office.

"I ought to add, that from every member of the legal profession with whom I have been brought into contact in the course of the last few days, I have met with but one expression of opinion as to the proposed step-an opinion, to use the mildest terms I can select, of strong and unqualified condemnation. Such, I can take upon myself to say, is the unanimous opinion of the profession. I have never in my time known of so strong or universal an expression, I had almost said explosion, of opinion.

"Under these circumstances, I feel myself justified, as Chief Justice of England, in conveying to you what I know to be the opinion of the profession at large, an opinion in which I entirely concur. I feel it to be a duty, not only to the profession, but to the Government itself, to protest-I hope before it is too late against a step-as to the legality of which I abstain from expressing any opinion, lest I should be called upon to pronounce upon it in my judicial capacity-but the impropriety of which, for the reason I have given, is to my mind strikingly and painfully apparent.

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'I beg you to believe that I make these observations in no unfriendly spirit, and from a sense of duty only. I should sincerely rejoice at the promotion of an Attorney-General who has filled his high office with dignity and honour; but in the position I occupy I feel I ought not to stand by, and, without observation or objection, allow a judicial appointment to be made, which, from the peculiar circumstances under which it will take place, is open to such serious exception, and which, as I have abundant reason to believe, will be the subject of universal condemnation and regret.-I beg to remain, very faithfully yours, "A. E. COCKBURN,

"The Right Hon. W. E. Gladstone, M.P., &c."

MR. GLADSTONE TO THE LORD CHIEF JUSTICE. "Dear Lord Chief Justice,-I beg to acknow. ledge the receipt of your letter of this day's date.

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As the transaction to which it refers is a joint one, and as the completed part of it, to which you object, is the act of the Lord Chancellor, I have referred your letter to him.-Yours faithfully,


"Right. Hon. the Lord Chief Justice

of the Queen's Bench.'

[I have unfortunately mislaid this note, but I can trust to my memory for giving the ipsissima verba in which it was expressed.-A. E. C.]


"Court of Queen's Bench, Nov. 11, 1871. "Dear Mr. Gladstone,-I beg to acknowledge the receipt of your note of yesterday evening. "Learning from you that you have referred to the Lord Chancellor my letter on the proposed appointment of Sir Robert Collier to the Judicial Committee of the Privy Council, I should not have troubled you further on the subject, but for a passage in your note which appears to me to call for immediate observation.

"You assign as a reason for transmitting my letter to the Lord Chancellor, that the transaction is a joint one, and that the completed part of it to which I object was the act of the Lord Chancellor. "I cannot allow an impression so wholly erroneous to remain without seeking to remove it. "I have not objected, and could not object, to

ment of members of the Judical Committee under the Act of last session.

"The appointment of the late Attorney-General to a judgeship, vacated by the appointment of Mr. Justice Montague Smith to the Judicial Committee, has been completed, and he will be sworn in tomorrow morning.

"The appointment has been made with a full knowledge on my part of the intention of Mr. Gladstone to recommend him for appointment as a member of the Judicial Committee under the Act. "I have thus acted advisedly, and with the conviction that the arrangement was justified as regards both its fitness and its legality. "I take upon myself the responsibility of thus concurring with Mr. Gladstone, and am prepared to vindicate the course pursued.

"You will not, I trust, think that I am wanting in respect if I reserve my explanation for a more suitable opportunity than could be afforded by a correspondence with yourself, either directly or through the medium of Mr. Gladstone. "Yours faithfully, HATHERLEY. "The Right Hon. Sir A. Cockburn, Bart., Lord Chief Justice of England."


"Court of Queen's Bench, Nov. 11, 1871. "Dear Lord Chancellor,-I beg to acknowledge the receipt of your note of last night, having reference to my letter of yesterday's date, addressed to Mr. Gladstone.

"I am obliged for the information which you are good enough to convey to me, to the effect that the appointment of Sir Robert Collier to the vacant seat in the Common Pleas, to be followed by his immediate transfer to the Judicial Committee of the Privy Council, has been arranged with your concurrence and under your advice. You will, I hope, forgive me when I say I have received this information with mingled sentiments of surprise and regret which all the deference due to your opinion does not enable me to overcome. I must still retain my views as to the objectionable character of the proceeding in question.

"It was superfluous to say that you should reserve your explanation for some more suitable opportunity than could be afforded by a correspondence with me.' Nothing could be further from my expectation than that my letter to Mr. Gladstone should lead to a vindication of the course proposed to be adopted. My only object was to bring under the consideration of the Government the very serious objections to this appointment which presented themselves to my mind, or at all events to record my protest against what I honestly believed to be a violation of the spirit and intention of an Act of Parliament, and, therefore, a degredation of the judicial office. I may add that I should have hesitated to press my views on the Government if I had not had abundant reason to believe that those views were shared by every member of the Bench, and I may add of the entire Bar.

"While, however, I freely admit that I am not entitled to any explanation of the course you have determined to adopt, I must in candour say that I think I might have expected that grave objec tions to a proceeding connected with the adminis tration of justice, coming from one holding the office I have the honour to fill, would have received somewhat more consideration, and would not have been dismissed in quite so summary a manner.

"Under the circumstances, while you reserve your explanation till a fitting opportunity shall arise, so I, on my part, must reserve to myself the right to make public, when I may deem it proper, the fact of my protest and the grounds on which it is founded, as stated in my letter to Mr. Gladstone.

"Without troubling you further, I remain your

the appointment of Sir Robert Collier as a judge of faithful and obedient servant, A. E. COCKBURN.

the Common Pleas. If it had suited his views to accept a judgeship, I should have been the first to welcome his advent to the Bench. My objection to the present appointment of Sir Robert Collier is not an objection to the appointment in se, but as being intended to create a factitious qualification for a seat on the Judicial Committee.

"It was because its ulterior object was to be your act that I took the liberty of addressing myself to you. Had I objected to the part of the transaction already completed, I should have addressed my observations to the Lord Chancellor.

"My only object in now troubling you being to set myself right as to any supposed objection to the appointment of the late Attorney-General to a judgeship, I shall not expect any notice to be taken of this communication.

"I remain, yours faithfully,
"Right Hon. W. E. Gladstone, M.P., &c."


"31, Great George-street, S. W., Nov. 10, 1871. "Dear Lord Chief Justice,-Mr. Gladstone has sent me your letter with reference to the appoint

"The Right Hon. the Lord Chancellor."

DEATH OF MR. WILLIAM HENRY TINNEY, Q.C.-This once celebrated lawyer, the contem porary of Brougham and Campbell, died on Thurs day, the 30th ult., at his residence, Snowdenham, Torquay, at the ripe age of 88 years. Mr. Tinney took high honours at Oxford, and was in due course elected a fellow of his college (Oriel). He was called to the Bar in 1811, and was made a Queen's Counsel and Bencher of Lincoln's-inn in 1829. He was eminent as a real property lawyer, and was one of the Real Property Commissioners with Lord Campbell. It is a strong testimony to the high legal and personal estimation in which he was held that he was (though himself a staunch Conservative), appointed to a vacant Mastership in Chancery by a Whig Government. On the abo lition of the Masters' offices he retired with a pension of 2500l. a year. He will be lamented, not only by a large circle of attached personal friends, but by the many who had profited by his openhanded liberality in matters of charity. His wife (a daughter of the late Rev. Canon Hume) survives him. He leaves no issue.


NOTES OF NEW DECISIONS. ADMINISTRATION-CLAIM BY MOTHER AGAINST HER SON'S ESTATE FOR MAINTENANCE-CLAIM DISALLOWED.-A claim by a mother for advances for the maintenance of her son during his minority will not be allowed in the administration of her son's estate, unless it can be shown that such advances were intended as a loan, nor, in the absence of a contract, will such a claim be entertained for advances after majority: (Re Cottrell's Estate; Joyce v. Cottrell, 25 L. T. Rep. N. S. 405. V.C. W.)

FORGERY.-I. O. U.-The prisoner, pressed by a creditor for payment of 351. obtained further time by giving an I. O. U. for 351., signed by himself, and also purporting to be signed G. B., which signature was a forgery. It was held to be a security for payment of money to B. within sect. 23 of 24 & 25 Vict. c. 98, s. 23: (Reg. v. Chambers, 25 L. T. Rep. 507 Cr. Cas. Res.

LARCENY BY FINDING LOST BANK NOTE.-Prisoner received from his wife a 101. Bank of England note, which she had found, and passed it away. The note was endorsed "E. May" only, and the prisoner, when asked to put his name and address on it by the person to whom he passed it, wrote on it a false name and address. When charged at the







Dover Leeds.


police station, the prisoner said he knew nothing about the note. The jury were directed that, if they were satisfied that the prisoner could, within a reasonable time, have found the owner, and if, instead of waiting at all, the prisoner immediately converted the note to his own use, intending to deprive the owner of it, it would be larceny. The prisoner was convicted. Held that the jury ought to have been asked whether the prisoner, at the time he received the note, believed the owner could be found; and that the conviction was wrong: (Reg. v. Knight, 25 L. P. Rep. N. S. 508 Cr. Cas. Res.)

NEW POLICE COURT FOR MARYLEBONE.-A new police court is at length to be erected in the large and populous district of Marylebone. The present court, which was originally a private house, is badly situated, and a more convenient site is to be chosen for the new building. Her Majesty's Commissioners of Works and Public Buildings, to whom the care and control of the Metropolitan police courts was transferred by an act passed in the last Session of Parliament, have at present under consideration the respective advantages of two plots of land, of which one is in Chapel-street, near the Edgware-road, and the other is in the Marylebone-road, adjoining the Baker-street station of the Metropolitan Railway.

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W. T. Greenhow, Esq...
S. Pope, Esq., Q.C.
W. Cope, Esq.

What notice of appeal to be given

5 days

10 days

14 days

J. Johnes, Esq..

10 days

J.J.Johnson, Esq., Q.C. Sir W. H. Bodkin, Knt. J. B. Maule, Esq., Q.C.. J. Middleton, Esq.

10 days

2 days

10 days 10 days

Clerk of the Peace.

S. Sanderson.
J. Gordon.
W. D. Batte.
J. H. Barker.
E. Titchener.
W. G. Ledger.
C. Bulmer.
J. J. P. Moody.

sure for his own benefit, adversely to his landlord, is was held, that the inclosure of the piece of ground was an encroachment; that the circumstance of the landlord having given his consent to the inclosure did not amount to a parol demise to hold to the end of the term, so as to make the tenant a tenant at will, and to make the Statute of Limitations apply to such a holding from the end of the first year of such tenancy, and that consequently the landlord, at the end of the term, was entitled to recover, not only the premises originally demised, but also the additional piece of ground gained by the encroachment: (Whitmore v. Humphreys, 25 L. T. Rep. N. S. 496. C. P.)

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NOTES OF NEW DECISION. STATUTE OF FRAUDS (29 CAR. 2, c. 3), s. 17SALE OF GOODS-NOTE OR MEMORANDUM IN WRITING. The plaintiff had a deal with the defendant for the purchase of a quantity of wool for a price more than 101., and he handed to him the following memorandum or bought note: "Bought Mr. G. J. Rust's wool as examined, at 15d. net cash, to be weighed and paid for on the premises one-half, and the whole to be cleared in about twenty-one days, the wool to be delivered at Chelmsford railway station free of charge, net weight. By cheque to hold till paid if required. Little Leigh's wool to be sent on receipt of cash, and the other to follow after paid for.-W. Buxton.' The plaintiff not having completed his bargain within the twenty-one days, the defendant wrote to him on the 8th Feb. to the effect that, in consequence of the delay, he should consider the deal off, and would resell the wool. On the following day the plaintiff and the defendant met, and the former asked the latter for a copy of his letter (the bought note) of the 11th Jan., and the same day the defendant wrote a letter to the plaintiff in these words: "G. J. Rust to W. Buxton, Esq.Dear Sir, I beg to enclose a copy of your letter of the 11th Jan. 1871," and such letter contained a copy of the letter or bought note of the plaintiff of the said 11th Jan. The defendant having ultiA.mately refused to deliver the wool, the plaintiff brought an action against him: Held, that there was a sufficient memorandum in writing of the section of the Statute of Frauds: (Buxton v. Rust, bargain signed by the defendant within the 17th 25 L. T. Rep. N. S. 502. Ex.)

250 shares in S. and Co. (Limited), the application on the 9th Dec. 1865 B. directed A. to transfer the and allotment money only being paid thereon." shares to X., a nominee of B., and on the 12th Dec. A. executed a transfer accordingly. The company refused to accept X., and A. remained on the register until the winding-up of the company in Dec. 1866, when he was placed on the list of contributories, and was compelled to pay a large amount for calls. A. having filed a bill against B. for an indemnity, subsequently entered into an arrangement with the liquidator, by which it was agreed that the latter should prosecute the suit at the expense of the company in A.'s name. Held, under the above circumstances, first, that there was an implied obligation on the part of B. to indemnify A.; secondly, that this implied obligation was not varied by the terms of the written receipt; and thirdly, that the liquidator was entitled to enforce this obligation in A.'s name : (Hemming v. Maddick, 25 L. T. Rep. N. S. 483. V. C. M.)

them as B. should direct. A., however, received 25 guineas as a consideration for his part in the transaction, and B. produced a written receipt in NOTES OF NEW DECISIONS. which this money was expressed to be paid to MORTGAGE-TRADE FIXTURES-BILL OF SALE"in consideration of his taking risk of applying for ACT.-At the time of the passing of the Metropolis Management Act 1855, a certain lane, having but a few houses near it, was kept in repair as a highway by the parish. Between the hedges which bordered the adjoining fields, there was an average distance of about forty feet, but only eighteen feet in the middle of this space was kept as a hard metal road. Since that time, both before and after the passing of the Metropolis Management Amendment Act 1862, a great many houses have been built on both sides of this lane; a sewer, at the request of the inhabitants, has been constructed by the District Board of Works; a footpath, and also a broader carriage road, have been made and kept in repair by the board. All the expenses of these works were defrayed out of the general rates, but the board now claimed them from the owners and occupiers of the houses and land adjoining. Orders enforcing this claim were made by a magistrate. Upon appeal by an owner of houses, and by the proprietor of some private roads which ran across the lane, and had been assessed at the same rate as the houses: Held, that this lane, although a highway repairable by the parish at the date of the Act of 1855, might become a new street within the meaning of the Metropolis Management Acts; and that the proprietor of the private roads was an owner of land within the meaning of sect. 250 of the Act of 1855: Held, however, that unless all these expenses were included in one apportionment upon the owners and occupiers of the whole new street, the claim of the Board was bad: (Begbie v. Fenwick, 25 L. T. Rep. N. S. 441. L. JJ.)

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BERS-CANCELLATION OF SHARES.-The directors of a company, having power under their articles of associations to accept surrenders of shares on such terms as they might think fit, offered W., amongst other shareholders, an option of having his allotment cancelled, which offer was accepted and carried into effect in the register: Held, on the company being subsequently wound-up, and it then appearing that there was a misrepresentation in the prospectus, that although W. had not elected to have his allotment cancelled on that ground, he had exercised his right and annulled the contract before the winding-up: (Wright's case, 25 L. T. Rep. N. S. 471. L. C.)

TRUSTEE OF SHARES-IMPLIED AGREEMENT OF CESTUIS QUE TRUST TO INDEMNIFY.-On the 4th Dec. 1865, A., at the request of B.'s agent, appiied for, and was allotted 250 shares of 101. in a company, on which 11. was to be paid on application, and 11. on allotment. B. furnished the application and allotment money, and it was understood that A. was to have no beneficial inte rest, but was to hold the shares to dispose o


NOTES OF NEW DECISIONS. ESTATE. A testatrix gave 1400l. to her trustees WILL-GIFT TO B. AND HER CHILD-LIFE upon trust to pay the interest thereof to M. for life, and after her decease to hold the same and the income thereof upon trust for such of her children (exclusive of her two eldest sons) who should survive her and attain the age of twenty one. He also gave 1500l. to each of his two eldest sons, and the residue to M. and such of her children (including the two eldest sons) who should attain the age of twenty-one: Held, that M. was entitled to a life estate in the residue: (Re Owen's Trusts. 25 L. T. Rep. N. S. 489 B. C. W.) LANDLORD AND TENANT-ENCROACHMENT BY ASSENT OF LANDLORD - RIGHT OF TENANT ΤΟ LAND ENCROACHEED ON. LANDLORD What would otherwise amount to an encroachment by a tenant, is none the less an croachment because the landlord knew of and assented to its being made. Therefore, where a tenant asked for and gained permission from his landlord to enclose a piece of the adjoining waste belonging to the landlord, and accordingly enclosed it and held it, together with the land demised to him, till the end of his termbeing for more than twenty years-simply paying the same rent which he had theretofore paid for the demised premises, and without there being any circumstances in the case to lead to the belief that the tenant had intended to make the enclo

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NOTES OF NEW DECISIONS. INSURANCE-POLICY ON GOODS IN SHIP OR SHIPS TO BE DECLARED-MISTAKE IN SHIP'S The NAME-INNOCENT MISREPRESENTATION. contract of an underwriter who subscribes a policy on goods by ship or ships to be declared is, that he will insure any goods of the description specified, which may be shipped on any vessel answering the description, if any there be, in the policy, on the voyages specified in the policy, to which the assured elects to apply the policy; the object of the declaration (and it need do no more) is to identify the particular adventure to which the assured elects to apply the policy. If the description in a policy on a particular ship designates the subject with sufficient certainty, or suggests the means of doing it, a mistake of the name of the ship or of other particulars, will not defeat the contract, and where it can be proved that it was a clear mistake, and the underwriter cannot be prejudiced, it is of no consequence. If a representation is made to an underwriter, however honestly and innocently, that a ship is a new ship, when, in fact she is an old ship, and the underwriter subscribes a policy on goods on board of her in favour of a person making such misrepresentation, the policy is thereby vitiated, for the age of the vessel is material in considering the premium. An underwriter's slip is a contract for marine insurance, and is not a policy, but by 30 Vict. c. 23. ss. 7, 9, it is not valid, that is, not enforceable at law or in equity; but it may be given in evidence, wherever it is, though not valid material. The plaintiffs, in pursuance of instructions from Messrs. G., of Hamburg, had entered into a policy to cover hides on ship or ships to be declared. This policy was subscribed by the Progress Insurance Company, which had failed and was being wound-up. Interests had been declared on this policy, so that there only remained open the sum of 1211. The plaintiffs received instructions from Messrs. G., to declare on this policy to cover hides shipped on the Socrates, Captain Jean Card, from a port in the Brazils to Hamburg. L., plaintiff's clerk, went to the defendants' office, and asked D., the defendant's manager, if he would re-insure the portion of the risk covered by the policy of the Progress Insurance Company, viz., 121. L. had not the letter of instructions with him, but D. looked at the Veritas register,


and saw there the Socrate Captain Jean Card, an old French vessel, and next to it the Socrates, Captain C. J. Albertson, and asked L. if the Socrates was the ship; L. replied that he thought D. thereupon initialed a slip and a policy was issued for 121., and at the same premium. The goods were really shipped on board the Socrate, and were totally lost. Held, that as the defendants were in no way bound to accept this policy, the mistake and misrepresentation as to the name of the ship was such that the policy was thereby vitiated, and that the defendants were not liable in respect of the policy. After the policy for 1211. had been subscribed by the defendants, they, in pursuance of instructions from Messrs. K., of Hamburg, opened a further policy on hides, on ship or ships to be declared for 5000.; the slip was signed, but the policy had not yet been prepared. The plaintiff being ordered by Messrs. K. to declare on hides to the value of 27001. coming by the Socrates from Brazil to Hamburg, and others by other ships, one of the plaintiffs went to the defendants' office and took the slip for 5000l., and wrote out a slip for a policy on 24551. on hides per Socrates, and another slip for 2500l. for hides on another vessel, saying to the defendants' clerk, that instead of drawing up an open policy for 5000l., and then declaring on it for 4955., which would leave so small a balance as 45., it would be more convenient for all parties to have two ship policies. The clerk assented and initialed the two slips, and policies were duly issued in accordance with the slips. The hides were really on board the Socrate, and were afterwards totally lost: Held, that as the defendants were bound in accordance with the slip for 5000l. to issue a policy on any ship selected by the plaintiffs, and as knowledge of facts as to the risk under that policy, if issued, would not have been material to them, and as the policy for 24551. was a policy substituted for the other, the mistake in the ship's name was immaterial, and the defendant's were liable: (Ionides v. The Pacific Fire and Marine Insurance Company, 25 L. T. Rep. N. S. 490. Q. B.)


(Before W. T. S. DANIEL, Q.C., Judge.)
Ex parte SMITH; Re BROOKE (Bankrupt).
Nov. 7, 21, and 28.

Receiver in bankruptcy is an officer of the court-
Interference with his possession, without leave,
a contempt-Landlord's right under 34th section
of Bankruptcy Act 1869, not that of a prefer-
ential creditor, but must be enforced by distress
regularly made-And if receiver in possession
leave must be obtained as in Chancery (Dan. Ch.
Pr., last edit.. 1593)-A demise by parol for an
undefined term of years is a tenancy at will under
sect. 1 Statute of Frauds, and a stipulation that
rent should be payable in advance is good only
as an agreement under 4th section, and not en-
forceable if by parol.
Shaw (instructed by Carr and Cadman, solici-
tors, Gomersal), in support of motion.
Phillips (instructed by Rawson, George, and
Wade, solicitors, Bradford), in opposition.

His HONOUR.-This was a motion on behalf of Mr. Shackleton Smith, of Gomersal, in the county of York, worsted spinner. asking that Mr. A. B. Kemp, the trustee under this bankruptcy, may be ordered to pay to Smith 150%, being the amount due to him from the bankrupt on the 1st Sept., 1871, for one half year's rent in respect of a shed with the machinery therein, a washhouse, and a warehouse with an office, or counting house, with the necessary steam power to work the machinery, situate in Gomersal, and that Kemp may pay the costs of and incident to this application. Before considering the special circumstances which have occurred in this case, it is proper to observe that the right of a landlord to recover arrears of rent due to him at the commencement of a bankruptcy is not the right of a preferential creditor, to be paid by trustees out of assets, but the right is that reserved by the 34th section of the Bankruptcy Act 1869, a right to be exercised by distress, and consequently obliging the landlord (if his right be not admitted by the trustee) to conduct the proceedings under his distress with regularity, because it is the duty of the trustee, where the right of the landlord is not clear, to protect the property for the equal benefit of all the creditors against all irregularity. In the present case no objection was taken to the landlord proceeding by this notice of motion, but the motion was treated as raising for decision, under the jurisdiction conferred by the 72nd section, the substantial question of the landlord's right to distrain for the sum of 1501. as a half year's rent, due on the 1st Sept. from the bankrupt to him, in the same way as if a proper distress had been made, and the goods distrained had been replevied by the trustee, and the court was now trying an action of replevin. The facts of the case are as


follow: The bankrupt, Edward Brooke, carried on
business at Bradford and Gomersal as a wool-
stapler and wool comber, and on the 7th Sept.
last absconded, thereby committing an act of
bankruptcy, and he has not since been heard
of. On the 12th Sept. he was adjudicated
bankrupt, and on the same day the pre-
sent trustee was appointed receiver, and early
in the morning of the 13th September, as re-
ceiver, he entered into and took possession, as
far as he could, of the bankrupt's place of busi-
ness at Gomersal, and the stock and effects there.
After the receiver had so taken, and while he was
in possession, Smith without leave of the court,
levied a distress upon the goods so in the posses-
sion of the receiver. On the 16th September, an
interim order, restraining Smith from proceeding
with the distress until the 26th September, was
obtained and served, and notice given of a motion
before me on that day to make the interim
order absolute, and to commit Smith for contempt.
On the 26th September this motion was heard
before me, and Smith, by his counsel, then con-
tended that upon the evidence the right to distrain
was clear, and that under the 34th section of the
Bankruptcy Act 1869, this right was expressly
reserved, notwithstanding the bankruptcy, and
that the fact of the receiver being in possession
ought not to affect the exercise of that right, and
he insisted that the position of the receiver was
similar to that of the mesesnger under the old
bankruptcy system, when possession did not in-
terfere with the exercise of the landlord's right of
distress. I decided against this contention, and
held that under the Bankruptcy Act of 1869, and
the rules, a receiver is appointed only upon a
proper application, supported by proper evidence,
and when appointed he becomes an officer of the
court, and is subject to the same control, and en-
titled to the same protection, as a receiver ap-
pointed by the Court of Chancery. In the last
edition of Daniell's Chancery Practice, vol. 2, p.
1593, the practice is thus stated. Any person
who considers himself prejudiced by having a re-
ceiver put in his way, should apply for an inquiry
as to his interest, or for leave to take the neces-
sary proceedings, and he must do this, although
his right to take possession is clear." And again,
"The appointment of a receiver does not affect the
rights of the landlord of the premises, but he
will not be permitted to exercise those rights with-
out first obtaining the leave of the court; and
where he has not distrained, and the furniture in
the house of a tenant has been sold under the
direction of a receiver, the landlord has no priority
on the other creditors in the proceeds of the
sale." Having thus decided that Smith's inter-
ference with the possession of the receiver was a
contempt of court for which he was liable to be
committed, I declined to allow the question of
his right to distrain to be argued until he had
cleared himself of his contempt, and had he
declined to do so, I was prepared to commit him,
but had I ordered his commital, and he had been
advised to appeal against my decision, I should
have done as I did in Mary Atkinson's case,
Ex parte Atkinson; re Brooksbank (L. Rep. 9 Eq.
736), have suspended the execution of the order
for a sufficient period to have allowed of the
appeal being heard, and giving such directions as
would have secured a proper disposition of the
property in the mean time, and saved all existing
rights. Smith however being present in court
rendered a committal unnecessary by submitting
to this jurisdiction, and authorising his counsel to
undertake immediately to restore the possession
of the goods distrained to the receiver, who had
then become the trustee. An endeavour was then
made to settle the mode of paying the rent claimed
so as to avoid the necessity of a formal distress.
The trustee, however stated that he could not
admit the right to distrain, or that the rent was
due as, owing to the absconding of the bankrupt and
the absence of books, he had not been able to ascer-
tain the terms or nature of the alleged tenancy,
and therefore he declined to give any undertaking,
or enter into arrangement for payment of the
rent which might prejudice his right to dispute its
being due. Under these circumstances the court
being satisfied that its authority had been suffi-
ciently upheld by Smith's undertaking so given,
made no furtherorder against him. The effect of this
order was the entire abandonment of the distress so
irregularly made, and the restoration of the goods
to the possession of the trustee, and Smith was left
at full liberty, if he could not arrange out of court
with the trustee for the rent, afterwards to make
a proper application for leave to distrain. The
course, however, taken by Smith was this he
continued in possession of the goods, and instructed
an auctioneer to advertise them for sale on the
following Friday, the 29th September. The auc-
tioneer advertised them accordingly, and made the
necessary preparations for the sale. The goods
were demanded of Smith by the trustee, but he
refused to restore them, in flagrant breach of his
undertaking. In this state of things an ex parte
application was made to me, on the morning of the
29th September, for an order to restrain the sale,

for the immediate restoration of the goods, and for
the committal of Smith; and while this application
was being made, Smith, accompanied by his at-
torney, appeared, and an explanation was then
given to the effect that the proceedings had been
taken by Smith under a mistake as to the effect
and operation of the order of the 26th, and Smith
in person expressing his regret that the undertak
ing given by his counsel had been so broken, an
order was made for stopping the sale at once, and
for the immediate restoration of the goods to the
trustee, and that Smith should pay all the costs
occasioned by his misconduct. After this order
was made, the sale was conducted and completed
under the direction and control of the trustee, and
he received the proceeds, which amounted to
more than sufficient to pay the sum that was
claimed by Smith for rent. No further steps,
however, were taken by Smith to make or
authorise his making a further distress, but on the
21st Oct. the present notice of motion was served,
asking that the trustee may be ordered to pay
Smith the 150l. claimed for rent. I have noticed
these proceedings thus in detail for the purpose of
making clear what I consider to be the proper
course for a landlord to pursue where he finds a
receiver in possession of goods upon which he
conceives himself entitled to distrain. If he cannot
arrange with the receiver for payment of his rent,
he must apply to this court for leave; and if he
distrain without leave, he will be guilty of con-
tempt, for which he will be liable to be committed.
And as the receiver is an officer of the court, the
court will take care that no improper dealing takes
place with the goods, so as to prejudice the right
of distress; but, as shown by the passage before
referred to in Daniell's Chancery Practice, and for
which the authority cited is Sutton v. Rees (9 Jur.
N. S. 456), the distress must be made while the
goods are in the possession of the receiver and
before they are sold. In the present case no objec
tion has been made to the question of the right of
the landlord to distrain for the rent claimed being
raised and determined upon the present notice of
motion, and I shall therefore dispose of the case on
its merits. The evidence in support of Smith's
right to distrain rests upon the affidavits of him-
self and Joseph Ogden filed the 23rd Sept. Ogden
says, par. 2: "In or about the month of May last
I introduced Edward Brooke, at his requestion,
to Shackleton Smith, who had some room and
machinery to let in his mill, at Gomersal, which
Brooke was desirous of taking." Par. 3: "I was
present when Shackleton Smith let the said room
and machinery, with steam power to work the
same, to Brooke. The rent was to be 300l. a year,
and was to be paid half-yearly, on the 1st Sept.
and the 1st March in each year, and each half-
year's rent was to be paid in advance, and the
first half-year's payment was to be made on the
1st Sept. inst." Smith, in his affidavit, further
"In the latter end of the month of May last,
I let to the bankrupt three separate and distinct
rooms in my mill at Gomersal, namely, a shed
with the machinery therein, a washhouse, and a
warehouse, with an office or counting house, and
the necessary steam power to work the machinery
at the yearly rent of 3001., payable in equal por-
tions half-yearly on the 1st Sept. and the 1st
March in each year, and each half-yearly payment
to be paid in advance, and the first payment
thereof to be made on the 1st Sept. inst." Both
affidavits are silent as to the term for which the
property was let. Smith was afterwards examined
before the registrar at the instance of the trustee,
under the provisions of the 97th section of the
Act of 1869, and on such examination stated he
was not the owner of the mill, but held it under a
verbal agreement for a lease for fourteen or
twenty-one years, at a yearly rent of 4001. His
demise consisted of a house, the mill, thirty acres
of land, and fourteen cottages; he entered three
years ago; was at half the expense of the boiler;
put in shaftng himself, and had since fitted up the
mill with twisting, spinning, and other machinery.
In May last, he says, "I let the shed, washhouse,
and counting house, in the yard, to the bankrupt.
I also let him the combing plant, including combs,
boxes, and cards, and the washing and drying
apparatus. This machinery was all my property,
and not the landlord's. I also provided steam
power for turning the machinery, and steam for
drying purposes, heating the combs, and the back
wash. The arrangement between me and the
bankrupt, as to the machinery, was that a valua
tion should be made of it when in working order,
and that at the expiration of his tenancy another
valuation should be made, and that the bankrupt
should pay me, or I should pay him, the difference
in value whatever it might be. I had no con-
versation with the bankrupt as to the value
of the machinery, but about three years ago it
cost me about 20007. The bankrupt has not
spent much upon the machinery, and he has re-
paired some gills. I was to put the machinery
into good running order, and to pay half the cost
of removal from one room to another-the remain-
ing half cost of removal the bankrupt was to have
paid. He did pay some small sum towards the







expense of removal; considerably less than 501. I should think. I have heard that a bill was sent in to the bankrupt for repairing gills to the amount of 1401. It was and is now my duty to oil the shafting and six pairs of wheels for crossshafting, which has been done nearly every day. The bankrupt occupied premises equal to about one-sixth or one-seventh of the whole manufacturing premises. I offered to let the bankrupt the premises he had either for one year or five, or for any intermediate number of years as he might elect. The rent was to be 300l. per annum. He was to pay no rent up to 1st Sept. He entered in May last, he wanted me to take less rent, but I declined. It was understood between us that the rent was calculated as 1001. per annum for each comb, three in number, but with the combs was included the machinery generally used with combs. The combs now in the room are Lister's combs. There would be room for another comb, and arrangement was made that if the bankrupt put in one of Noble's, which require less power than Lister's, he should pay an average rent for that class of comb. The rent was to be paid halfyearly, and he was to commence paying on the 1st Sept., and to pay each half-year's rent in advance. I asked the bankrupt for the rent two or three times in the forepart of the present month, and he said he would pay it in a few days. The bankrupt never decided for how many years he would take the property. It was not definitely agreed that he should occupy for five years, nor was any term agreed upon. We often talked about having the arrangement put into writing, but it was never done, nor was any instruction ever given to a solicitor to prepare any document. I made no memorandum in any of my books of the agreement. I had some conversation with Mr. Wade's clerk and Mr. Kemp's clerk on Wednesday relative to the agreement, and I said the property was let either for one or five years. I did not say it was for a definite term of five years." On examination by his own solicitor, he said: "Joseph Ogden was present when I made my arrangement with the bankrupt. The arrangement was discussed on two occasions, and partly concluded on a third, and finally settled on a fourth, and on each of these Ogden was present." On the 21st Oct. the landlord filed a further affidavit, which, so far as it relates to the terms of the arrangement between him and the bankrupt, is a mere repetition of the statements made in his examination. Neither party desired to have any of the witnesses examined vivo voce before me. Upon this evidence it was objected, on behalf of the trustee, that there was no demise of any realty out of which rent could issue, that the evidence showed a mere contract for letting machinery and steam power, and reliance was placed upon the landlord's statement that the sum of 300!., though called rent, was in reality nothing more than the sum agreed to be paid for the use of three combs and the machinery attached to each, reckoned at the rate of 1001. each comb; and the case of Handcock v. Austin (32 L. J., N. S. 252, C. P.) was relied upon as showing that there was no demise; but I think that case stands upon its special circumstances, and is not applicable to the present. Here there was a demise of the warehouse, shed, and counting house, which carried the right to the exclusive occupation, and though the rent was fixed with reference to the value of the chattels, yet it is quite settled that where realty and personalty are demised together, and though the rent be fixed with reference to the value of the personalty, and not the realty, the rent issues out of the realty, and may be distrained for upon any distrainable goods found upon the realty, and the case appears to me to be brought within the authority of Selby v. Graves (L. Rep. 3 C. P. 594.) __The first ground of objection, therefore, fails. The next objection was that the case was within the first section of the Statute of Frauds, as being a lease for five years certain, or a term uncertain, as being undefined in duration, and therefore a tenancy at will, with which an agreement to pay rent in advance would be inconsistent. On the other hand, it was contended that the evidence showed a tenancy for a year at least, and that a stipulation for payment of rent in advance would be quite consistent with a tenancy for a year. This objection is not without difficulty; but I am of opinion that upon the evidence before me, the term for which the demise was to be made was never agreed upon. The evidence that it was for five years is too loose to be relied upon; it rests upon a statement alleged to have been made by Smith to the clerk of the solicitor and the trustee, to which they depose, bat which Smith denies, but I think the evidence of Smith upon his examination clearly shows that the length of the term from one year to five, which the bankrupt had the option of determining, was never determined, and this option was material to the interests of the bankrupt, having regard to all the obligations he was to come under, and I think the entry by the bankrupt and his subsequent occupation, was referable to an agreement for a term to be fixed by him with a view to his own


interest, but which was never fixed, and was not referable to any definite term. It follows, therefore, that the bankrupt's interest was under the 1st section of the Statute of Frauds, a demise for an uncertain interest in lands, and therefore only a tenancy at will. Had rent been paid, this tenancy at will would have been converted by construction of law into a tenancy from year to year; but no such rent having been paid, it remained at the time of the bankruptcy a tenancy at will and nothing more. And the stipulation that rent should be payable in advance would be available only as one term of an agreement relating to land, which, not being in writing, would come within the 4th section of the statute of Frauds, and not be enforceable. I am of opinion. therefore that the latter objection is well founded, and that the motion fails upon its merits, and must be refused with costs; but this order will be without prejudice to any claim Smith may make under the bankruptcy for the use and occupation of the premises.



NOTE. This department of the LAW TIMES being open to free discussion on all professional topics, the Editor is not responsible for any opinions or statements contained in it. FRAUDULENT PREFERENCE.-The case of fraudulent preference (Re Cherry) before the Lords Justices on the 23rd ult., in which you state an exposition of the law was anticipated, though not realised, notwithstanding the disappointment was in some respects instructive. I was present at the hearing, and although the observations of the Lords Justices in the course of the case may not have the weight of judicial authority, they are interesting as showing the proclivities of the Court of Appeal on the question at issue. The facts of the case were shortly as follow:-Mr. Cherry, a Liverpool cotton broker, in July of last year was in monetary difficulties. He had, apart from his ordinary business, speculated in shares through an intimate friend, Mr. Mathews, and at the period in question was indebted to him on those transactions to an amount exceeding 10007. Mr. Mathews being unable to meet his own liabilities, pressed Cherry for payment, and succeeded in obtaining 16001., as Cherry stated, on the faith that it should be returned if required, so that Cherry might tide over his difficulties. 500l. was returned the next or following day, and shortly afterwards Cherry became bank rupt. His liabilities were about 10,000l., and assets 500l. The trustee under the bankruptcy moved the County Court for an order declaring the payment to Mathews void, as a fraudulent preference. By virtue of sect. 72 of the Act the court, as the question in dispute was one of fact, directed it to be tried by a jury. The issues found by the jury were that the payment to Mr. Mathews was made when Mr. Cherry was unable to pay his debts as they became due out of his own moneys, but not made with a view of giving Mathews a preference over the other creditors. The further issues were found that the payment was made without real pressure, and when bankruptcy was reasonably imminent. These findings were construed by the County Court judge to be in favour of the trustee; the payment being in contemplation of bankruptcy, and consequently fraudulent. On appeal the Chief Judge reversed that decision, and thereupon the question came before the Court of Appeal in Chancery. Mr. Herschell argued that the present enactment was meant only to be declaratory of the law as settled by the decisions of the judges. Prior to the present Act there was no express provision with respect to a preference of one creditor over another, but such a preference had been always regarded as a violation of the principles of the law of bankruptcy, the primary object of which, was, when a man was insolvent to secure an equal distribution of his assets amongst all his creditors. The decisions upon the point showed that it was a fraudulent preference for an insolvent debtor to make a voluntary payment to a creditor when bankruptcy was imminent. The law not alone assumed every man to know his position, but also the consequences of his own act. Here the jury had found bankruptcy imminent, and the conclusion of law was that the payment must have been made in contemplation of bankruptcy, and therefore fraudulent. Lord Justice Mellish said there was nothing in the Act about contemplation of bankruptcy;" and, in fact, it seemed unnecessary, for the Legislature had fixed the period of three months as that within which a fraudulent preference was impeachable. The only issues which ought to have been left to the jury were those prescribed by the Act, and it contained nothing about bankruptcy being reasonably imminent," or "real pressure." He asked how the court could reject the finding of the jury in the words of the statute, in favour of findings which were not there. The difficulty had been created by travelling out of the Act of Par


liament. The issue found by the jury that there had been no real pressure was negatived by the finding that the payment had not been made with a view of giving this particular creditor a preference over the others. As it appeared to him, this last provision was intended to meet the case of a voluntary payment. A payment on demand by a creditor of a debt justly due was not a voluntary payment, and therefore could not be one made with a view to give preference to one particular creditor over the rest. James, L.J., said that for aught that appeared the payment might have been made by the debtor with a view to cheat the creditor. He may have made the payment to the creditor in the hope next day of getting deeper into his debt, and thereby placing himself in a position to tide over his difficulties. If he had paid his butcher or his baker, and so was enabled to get further credit, would such payment be void in case of bankruptcy? Mr. Herschell thought not, as such a payment would be protected by the latter part of the section, which provided that a payee in good faith, and for valuable consideration, was not affected. Under the circumstances stated there would be valuable consideration passing, but in the case before the court there was no evidence of any present consideration. After some further discussion in which James, L.J., stated that the enactment as to a fraudulent preference was introduced with a view more to codify the law than create any alteration therein, the court ruled the finding of the jury that the payment had not been made with a view to favour the particular creditor was conclusive, and that all the other findings were immaterial. The appeal was accordingly dismissed with costs. A difficulty arose in the course of the hearing as to the right course of procedure, the appellant's counsel arguing that if the findings of the jury were not in his favour, they were so inconsistent as to demand a new trial. Mellish, L.J., said he was not aware if there was any practice defined in such a case, but he thought the course which should have been taken was for the party dissatisfied with the findings of the jury to have applied for a new trial. As a rule, if there was any possible view in which the verdict could be right, there was no ground for sending it back. It was suggested. that the evidence, irrespective of the findings of the jury should be considered, but the appellant elected to take the decision of the court upon the conclusions of the jury. It may be gathered from this short summary of the case, that the law of fraudulent preference is not according to the views of the Court of Appeal materially altered. The old consideration of contemplation of bankruptcy," is immaterial, as during the three months preceding bankruptcy the debtor must be taken to contemplate bankruptcy. A voluntary payment" is intended to be covered by the words with a view to prefer one creditor over the others," as any application for payment is now considered to negative such a view. The debtor pays because he is applied to for payment, and although he really does favour the particular creditor it may not be with a view of so favouring him, but possibly to induce him to give further credit. It is much to be regretted that new phrases have been used in the Act instead of those which have long had a judicial interpretation, as thereby the difficulties which constantly arise in construing the Act would have been obviated. Lord Justice Mellish and the learned counsel were occupied some time in the course of the case in discussing what was the difference between the terms with a view of " in the new Act and “ with intent to as used previously, but they came to no satisfactory conclusion on the important point, the view of the Lord Justice tending rather to show the new term to be a modified expression of the old. H. B.

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33. DESCENT-LEGAL ESTATE.-Mortgagee in fee dies intestate as to trust and mortgaged estates, leaving a mother, niece (a child of a deceased sister of testator), and five nephews and two nieces (children of another deceased sister of testator.) Both sisters predeceased testator. Who are the persons to convey the legal estate to the mortgagor? Vide: (3 & 4 Will. 4, c. 106; Steph. Com. vol. 1, 357, 6th edit., title "Co-parceners.")

34. ADMITTANCE TO CUSTOMARY FREEHOLD ESTATES.Will any of your readers give an answer to the following query which appeared in your issue of the 26th Aug. last, but to which no reply has yet been given: A., by his will, devises his customary freehold estate (property of which tenure passes by deed or will and proved and ask to be admitted in or out of court. Is admittance.) The trustees produce will without being the will a surrender or grant within the meaning of the 81st section of the Stamp Act 1870, and is it the duty of

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