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JAN. 6, 1872.j

train in the shop shortly after six, he has said that which is untrue?-Witness: It is wrong. Whatman.-What is the usual time for arriving at market?-Witness: Five o'clock. Whatman. You say the meat was not hanging up. Whose fault was that?-Witness: I don't know. I did not notice any hooks in the van. I have had to do with cattle, but am not a butcher, and am not acquainted with cattle disease.. It is not usual for quarters of beef to be hung up.

His HONOUR said the meat was evidently knocked about, and deteriorated in appearance by the defendants' improper treatment of it. Haines.-Will your Honour grant a case? His HONOUR.-You are entitled to it if the verdict is above 101.

Whatman.-Without the money paid into court it will not be above 101.

His HONOUR.-But it is a case standing on the records of the court as above 10

With regard to the value of the sheep, Whatman submitted that his client was entitled to recover the price that was current at the time in Salisbury. Mr. Day had sworn that he gave 10.7. a pound for joints all round, and that two days afterwards he gave 944. a pound for an entire carcase.

His HONOUR said in the case of the rabbits, he did not think there was such a fraud as to vitiate the contract. With regard to the beef, he was of opinion that a delay of two hours was not a reasonable delivery. Every bye-law must itself be reasonable; and seeing how important it was to catch a market, he did not consider the deAs to the livery in question a reasonable one. badness of the meat he did not attach much importance to the casual observation of the men at the market to the witness Oliver. As to the sheep, he thought the plaintiff was entitled to recover the

full amount claimed.

Haines.-Your Honour will allow me a case?

His HONOUR.-Yes. You are entitled to it, but what are your grounds of appeal? Haines said he was satisfied with his Honour's finding in regard to the sheep. In the other cases, he should ground his appeal upon the fact that the plaintiff had no locus standi.

His HONOUR.-I am not infallible by any means. I may be wrong; but I am pretty clear upon the

subject.

Haines said, then as to the question of costs. He considered himself entit ed to a fee for attending the last court, the plaintiff having taken advantage of the adjournment to introduce a lot Whatman-No. Day and Goddard were both in the box. The adjournment was obtained at the instance of my friend, who insisted on having the

of fresh evidence.

man here who sold the hares and rabbits.

A verdict was then entered for the plaintiff for 17. odd, and

His HONOUR ordered each party to pay their own costs as regarded the first day.

TUNBRIDGE WELLS COUNTY COURT.
Thursday, Dec. 14.

(Before J. J. LONSDALE, Esq., Judge.)
CHAPMAN v. WALLIS.

Friendly society-Jurisdiction.
THIS was a claim of 501. or an order to be rein-
stated as a member of the Southborough Friendly
Society, of which the defendant is secretary.
Biron (instructed by Palmer, of Tunbridge),
appeared for the plaintiff.

Thomas Fox Simpson appeared for the defen

dant.

THE LAW TIMES.

interpretation of these was, that under the cir-
cumstances of this case the court had the power
to grant relief. He further referred his Honour
to the case of Es parte Woolridge (31 L. J. 122,
Q. B.), which was an application for a mandamus
against the Royal Nelson Lodge of Odd Fellows to
reinstate one George Woolridge as a member of
the order; also to Hell v. Macfarlane (27 L. J.
41, C. P.), showing that the plaintiff was a party
instructed, and that where the case had not been
properly considered and inquired into, the court
had jurisdiction.

Simpson argued that in the case of Denton and
Marshall, which was later than that of Woolridge,
it was held that where the rules of the society
provided for the decision of disputes in a mode
therein prescribed, then the County Court Judge
had no jurisdiction. And this was perfectly obvi-
ous, because the intention of the Legislature was
that these societies should have self-government.
After replying to the learned counsel's remarks as
to the case of Woolridge, Mr. Simpson contended
that plaintiff, having been heard by the committee
and expelled, he was no longer an interested party,
and that his Honour had no jurisdiction.
His HONOUR said he should act upon that case,
and would now hear the facts.

BANKRUPTCY LAW.

NOTES OF NEW DECISIONS. DEMURRER-CREDITORS' DEED-PARTIES-ALLEGATION-CONVICTION OF FELONY-REGISTRATION IN BANKRUPTCY-LAPSE OF TIME-A bill filed in 1871 alleged that, previously to a debtor's conviction for felony, by an indenture made in 1862 between himself of the first part, a trustee of the second part, and the several other persons whose names and seals were, or were intended to be, thereunto subscribed and set, being respectively creditors of the debtor of the third part. the debtor assigned all his personal estate and effects to the trustee upon trust in favour of his creditors; and that the said indenture was duly executed by the debtor and the trustee, and registered under the 19th section of the Bankruptcy Act 1861; and the bill prayed for a declaration that the defendant, who had, in 1858, purchased a house in trust for the debtor, was a trustee of the house in question for the trustee of the deed. On demurrer, for want of equity and of parties: Held (reversing the order of the Master of the Rolls), that al though there was no sufficient allegation in the bill that the deed was executed by any creditor, still it did allege an assignment to the plaintiff, and that enabled him to sue third persons who had the property in their possession, and there was enough on the bill to require an answer. A trustee may sue to recover the fund for the benefit of all persons interesed in the trust without making his cestuis que trust parties: (Glegg v. Rees, 25 L. T. Rep. N. S. 612. L. C.)

BANKRUPTCY ACT 1869, ss. 23, 31-LANDLORD

AND TENANT

-

DISCLAIMER

OF LEASE BY

TRUSTEE-INJURY INFLICTED BY DISCLAIMER
-LESSOR'S RIGHT OF PROOF.-The trustee of a
bankrupt's estate disclaimed, under the 23rd sec-
tion of the Bankruptcy Act 1869, an agreement
entered into by the bankrapt, prior to his
bankruptcy, to take a lease of certain shops for a
term of years. Held, that the lessor was entitled
under the 23rd section of the Act, to prove against
the bankrupt's estate for the difference between
the rent reserved by the agreement, and the
present letting value of the premises for the
residue of the term. The general purview and
object of the Bankruptcy Act 1869 considered:
(Ee parte The Llynri Coal and Iron Company;
Re Hide, 25 L. T. Rep. N. S. 609. L. JJ.)

BIRKENHEAD COUNTY COURT.
Tuesday, Dec. 19.

(Before J. W. HARDEN, Esq., Judge.)
Re ARTHUR JUKES.

Biron, in opening the case, explained that this matter came before the court on a former occasion, and up to a certain point it had been discassed; but some cases had been discovered in which it seemed doubtful whether his Honour had jurisdiction. That was Mr. Simpson's contention. Now he (Mr. Biron) submitted that his friend was not in a position to raise any objection as to his Honour's jurisdiction, because if his Honour would refer to the plaint which had been entered, dation-Commencement of bankruptcy. and the 41st section of the Friendly Societies Act, Bankruptcy-Costs of abortive petition for liqui. he would find that the plaint was to the effect that Wason, instructed by Evans and Lockett, apthe plaintiff, being a member of the Southborongh Friendly Society, was, on the 20th May last, ille-peared on their behalf to apply for an order for gally expelled therefrom, and he now sought for an order to be reinstated as a member of the said society, or, in default, that the society should pay to him the sum of 50l. Therefore, that plaint was founded in tort-it complained of illegal expulsion, and that being the case he must first of all refer his Honour to the 39th section of the 19 & 20 Vict.

c. 108.

His HONOUR, after reading and considering this section, was of opinion that it referred not to jurisdiction simply, but to the case being tried at all in a County Court.

Biron said he would now come to the main question, and referred his Honour to the case of Denton and Marshall (32 L. J., N.S., 89, Ex.); to the 41st section of the Friendly Societies Act; and to the twenty-fourth rule of the Southborough Friendly Society; and contended that the true

costs out of the estate, under circumstances some-
what novel.

Wheeler, instructed by Simpson and North,
solicitors for the trustee, Mr. William Mead, of
Liverpool, resisted the application.

The bankrunt, on the 14th March last, was served with a debtor's summons at the suit of the Ditton Brook Iron Company (Limited). The debt noti being disputed, a bankruptcy petition was filed on the 22nd March, the alleged act of bankruptcy being the nonpayment of the debt in the debtor's summons. The bearing of the petition was fixed for the 1st April, and, after adjournments, an adjudication was made on the 15th April, on the alleged act of bankruptcy. Between the 14th March and the 15th April-namely, on the 20th March-the bankrupt filed a petition for liquidation by arrangement or composition under the

125th and 126th sections of the Bankruptcy Act 1869. The creditors' meeting was fixed for the 10th April; but, no resolutions being passed, that meeting was abortive, and the proceedings under the liquidation fell to the ground. Messrs. Evans and Lockett were the bankrupt's solicitors in this matter, and Mr. Wason now applied that their 'costs should be paid out of the estate of the bankrupt. They had been taxed by the registrar at 17. 18s. 4d. 10l. had been paid Messrs. Evans and mencement of the proceedings. Lockett by bankrupt's mother-in-law at the com

com

Wason cited rule 292, which provides "where bankruptcy occurs pending proceedings for or towards liquidation by arrangement or position with creditors, the proper costs incurred in relation to such proceedings shall be paid by the trustee under the bankruptcy out of the debtor's estate, unless the court shall otherwise order," and sect. 11 of the Act, which defined the commencement of the bankruptcy, in support of his argument.

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Wheeler contended that, as the costs of the summons and of the petition had already been solicitor in the matter of the trader - debtor paid out of the estate, to burden the estate with another set of costs would be a hardship; and though the question was one entirely in the discretion of the court, he urged the judge should not, in fairness to the creditors, allow the bankrupt's solicitors the costs they asked. He further urged that the language under rule could not assist 292 of "pending proceedings the applicants, for those proceedings had been made. He produced a report of a decision of abortive and were dead, and were not the act of bankruptcy on which the adjudication was Mr. Daniel, County Court judge of Burnley, who had allowed costs to the solicitors in liquidation, where bankruptcy had followed the petition, and which had been allowed by that judge under the rule named. He, however, differed from that judge in his conclusions, and stated the point was entirely new, and one on which no decision had as yet been made.

His Honour reserved his decision.

Dec. 23-His HONOUR said this was an appli

cation for the costs out of the bankrupt's estate of
an abortive petition for liquidation which was not
with a debtor s summons which terminated in bank-
presented until after the insolvent had been served
ruptcy. It was admitted that the granting or
means something more than arbitrary
refusing costs is entirely in the discretion of the
court, but I was properly reminded that " judicial
discretion"
will and pleasure, and ought to be exercised upon
an encouragement to parties who find themselves
in failing circumstances to anticipate any hostile
some well-considered principle. I read rule 292 as
movement of creditors, by proposing to pay them
all pro reta as large a composition as the estate
will admit of; for, even though the petition for
that in such a case, and as a general rule, the
liquidation may be fruitless, it is plainly intimative
whereas if it be a mere expriment to evade
costs ought to be allowed out of the estate;
creditors, and if it is not successful, the costs, in
the consequences of steps already taken by
the absence of something exceptional, would not
as a general rule be allowed. Such would be my
not that on reference to the file of proceedings, I
mode of dealing with this application if it were
find that there are exceptional circumstances
which for a portion, at all events, of the costs of
the fattempted liquidation, would seem to me to
stop the creditors from objecting.
solicitors who now represent the trustee and
object to the allowance, issued the debtor's sum-
jected to the proposed proceedings by liquidation
mons, with a view probably of securing their
instead of bankruptcy. Their acquiescence may
client's debt; it does not appear that they ob-
be inferred from the fact that they consented to
the proceedings being twice adjourned. How
much these adjournments increased the costs
do not know, but they must have added some-
thing and as the taxed costs of the proposed
The taxed costs will
disposed to dissect the bill.
be allowed, but I cannot blame the trustee for ob-
liquidation amount only to 171. 18s. 4., I am not
say nothing about the costs of this application.
jecting to pay them without an order, and I shall

The same

DERBY COUNTY COURT. (Before G. RUSSELL, Esq., Judge.) Re MARTIN. Debtors' Act. Application for a criminal prosecution under the THIS case was adjourned for the personal appear ance of Mr. Martin. It was an application by the trustee, Mr. T. H. Harrison, for the criminal prosecution of the debtor, under the provisions of the Debtors' Act, 1869, for not disclosing in his acHertall appeared for the trustee, and Briggs counts the true state of his affairs, and for hiding property of the value of 101. and upwards. Charles Martin filed his petition under the for Mr. Martin.

Liquidation Clauses of the Bankruptcy Act 1869,
and made a statement of his accounts, in which he
swore that he had no property whatever in hand.
The meeting of creditors was held at the office
of Mr. Briggs on Nov. 14. When examined by
Mr. Leech, Martin disclosed that he had only 601.
in the world, and that he could not get it under
three days, as it was 300 miles away from Derby.
This upon his oath he again and again asserted,
but it was intimated to Mr. Harrison while in the
meeting that the money was hidden away in the
house of Martin, and he accordingly went off with
Mr. Coulson and Mr. Gell to the house; they
demanded of Mrs. Martin the money which they
said was there somewhere, and, after a few
minutes' quibbling, Mrs. Martin got a candle and
took Mr. Harrison into the cellar, and there, under
a heap of coals, wrapped up in a canvas bag, in
its turn enclosed in a piece of lead, he discovered
821. On the following day a further search was
made in the house, where under a quantity of
coals, a number of valuable books were found,
which, from their damp state, had evidently been
hidden away for some time. It was also subse-issued
quently found that part of the property which had
been taken possession of by Mr. Harrison, and
included in the inventory which he made of the
debtor's effects, had been removed to five different
houses in the neighbourhood. Upon this the
committee of inspection instructed Mr. Harrison,
the trustree of Martin's estate, to apply to the
Judge for an order to prosecute.

His HONOUR, after hearing Mr. Briggs on the part of Martin, and Mr. Hextall, on the part of the trustee, said it was admitted unhesitatingly, that the debtor had concealed his property, and had committed a fraudulent act. For Martin it was contended that his intention in doing so was not to defraud his creditors, but he could only judge of the fact itself and whether it was a case in which it was reasonable to believe a jury would convict. He certainly did so consider it, and he should therefore order the trustee to prosecute Charles Martin under sub-sect. 4 of the Fraudu lent Debtors Act.

HUDDERSFIELD BANKRUPTCY COURT.
Friday, Dec. 22, 1871.

(Before Mr. Serjt. TINDAL ATKINSON.)
Re COTTON (Trustee in Bankruptcy.)
The representative character of a trustee in bankly,
ruptcy does not exempt him from being liable
personally to pay costs.
In this case, which had been several times before
the court,

Barker (solicitor), appeared for the trustee.
Cottingham (barrister), for the mortgage credi-

tors.

The substance of the facts and arguments will be found set forth in the following judgment. His HONOUR.-In this case I am asked to stay proceedings in an execution issued against Mr. Cotton, the trustee, in this case, for costs alleged to be due to Messrs. Wilde and Sykes, calling upon the trustee personally to pay the costs arising out of an unsuccessful application to the court, made against the mortgagees of a part of the bankrupt's property. The facts, shortly stated, were that the adjudication took place on the 11th Feb. 1871, and on the 27th Cotton was appointed the trustee with a remuneration fixed at 5 per cent. On inquiry it was found that the bankrupt had mortgaged a part of his property to Messrs. Wilde and Sykes, and that he had also further charged the property with a second mortgage to his father-in-law, Zachariah Drake. On the 17th March the first mortgagee applied to the court, stating that the time for paying the mortgage. money had expired, and that the property would be advertised for sale. On the same day, the 17th March, Cotton applied to the court to restrain the sale, and an order was made to that effect. On the 13th April he again applied to the court, requiring the attendance of the first and second mortgagees, for the purpose of inquiry. After witnesses had been examined, the further hearing was adjourned to the 28th April, but in the meantime Cotton did not feel in a position to proceed, and the registrar on that date made an order that due notice should be given that all further inquiries as to the mortgagees were abandoned. At this time the committee of inspection had appointed Mr. Mosley their solicitor. On the 29th April, Cotton applied for an order compelling White and Sykes, the first mortgagees, to give up their mortgage deed on being paid the sum due upon it. The application was dismissed, and it was ordered that the trustee pay to Wilde and Sykes the costs incident to the application. On the 5th May the court further ordered that, as the order of the 17th March was still subsisting, such order should be discharged, but that the question of costs should be adjourned until the 10th of that month. On the hearing it was ordered that the costs of the orders of the 17th March and the 5th May be paid by the mortgagees Wilde and Sykes. Up to this date, therefore, all questions as to costs

between the trustee and Wilde and Sykes
were settled, and nothing remained but for the
trustee, on the part of the bankrupt mortgagor,
to give up possession of the mortgaged property.
At the end of May the mortgagees applied to the
court for an order compelling the trustee to give
up the key of the premises, which had been with-
held. Upon this, Cotton applied to the court for
an order for further particulars, which order was
dismissed, and he was condemned in the costs of
the application. It is admitted that Cotton acted
under the direction of the committee of inspection
and their solicitor, and that all the steps were
taken by their instruction and with their assent.
At this time the costs incurred and which form the
subject of the present inquiry, were 131. 1s. 6d. in
the case of Drake, and 34l. 10s. in that of Wilde and
Sykes; no question, however, arises upon Drake's
costs, which have been since paid. To defray
these sums Cotton had at that time only 17. in
hand. A change of solicitor took place at this
period, Mr. Barker being appointed to act for the
trustee in lieu of Mr. Mosley. An execution was
against the goods of Cotton by Milnes, the
solicitor of Wilde and Sykes, for their costs, and
there being some difficulty in the way of a levy,
the court was applied to for a committal, but by
consent the question of liability was gone into, and
the learned judge, Mr. Stansfeld, on that occasion,
held that the trustee was personally liable for
those costs. An affidavit before the court, made
by Cotton, states that he has now only 11. 7s. of
the bankrupt's estate in hand, while the execution
issued for the recovery of the costs due to the exe-
cution creditors-Wilde and Sykes-arising from
the various orders amounts to 24t. 15s. 2d. It ap-
pears from the counter affidavit made by Wilde
and Sykes, that on examining the accounts it was
found that 401. had been paid by Cotton to Mosley
on account of an unascertained bill of costs. It
was urged in argument by Mr. Barker, on behalf
of the trustee, that acting in a representative
capacity, and under the directions of the Com-
mittee of Inspection, that he was not personally
liable. That in the various applications made by
Cotton in this case to the court, it was not in a
hostile spirit, and that in all he did he was acting
under the instruction and advice of the solicitor,
Mr. Mosley, and the Committee of Inspection.
The court's attention was called by Mr. Cotting-
ham on the other side to the fact that independent-
as he contended, of the trustee being personally
liable for costs as between himself and third parties
whom he had brought into court in invitum, that
there had been laches on his part in dealing with the
bankrupt's property, and that by paying 401. to the
solicitor to the bankruptcy upon an account upon'un
taxed bill of costs, he could be heard to say that he
has no estate, such statement being in contraven-
tion of the General Rule 114 in Bankruptcy, which
states "that a trustee shall not be allowed in his
accounts any sum paid by him to his attorney for
his bill of costs unless the same shall have been
duly taxed." Upon this state of facts, I am called
upon to say whether the trustee is liable per-
sonally for the costs incurred in these proceedings,
and after considering the authorities cited in the
arguments addressed to me, I have arrived at the
conclusion that there is no special right in a
trustee in bankruptcy as between himself and a
third person such person not standing in the
relation of cestui que trust that exempts him
from personal liability to pay costs in any legal
proceeding in which he is unsuccessful. And that
as between strangers and the trustee, he is on no
better footing than an ordinary plaintiff or defen-
daut, for the circumstances of the trust cannot be
allowed to affect the interests of a third person.
"The transmutation to a trustee being the same in
its consequences as the transmutation of a
possession without a trust, it conveys to the
trustee the legal burthens, and it invests the
trustee with the legal privileges" (Burgess v.
Wheate, 1 Eden 251), per Lord Northington : and
in the case of a sale of lands, the trustee, like
any ordinary vendor is bound to make the pur-
chaser a good title. If the sale be unconditional,
and the title prove bad, the purchaser in a suit
for specific performance would be allowed his costs
against the trustee (Coop, 40), though the trustee,
where his conduct was excusable, might charge
them upon the trust estate under the head of
expenses: (Lewin on Trusts, 4th edit. 299; Hill
v. Magan, 2 Moll. Ir. Ch. R. 460; Elseg v. Lutyens,
8 Hare, 164.) Under the 20th, 22nd, and 25th sec-
tions of the Bankruptcy Act 1869, the trustee
acquires, for the purposes of the trust, the com-
plete possession of the bankrupt's estate, with
power to deal with it as if he were the absolute
owner, and is clothed with the fullest powers" to
bring or defend any action, suit, or other legal
proceeding relating to it." It may be observed
that the statute contains provisions which gives
the court and the creditors for whom he acts the
means of stringent control in cases in which his
dealings with the property is inconsistent with
the faithful and honest discharge of his duty
but for all the purposes of suing and being sued
he alone is the person who can be plaintiff or de-

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fendant. Before bringing an action, therefore, or
defending a suit, or entering into any other legal
proceeding, it is incumbent upon him, for his own
protection, to satisfy himself that he has assets
in his hands to meet the emergency of defeat,
and in all cases when in proceedings in
which he anticipates that his costs may be
disallowed, it is his duty to make a reservation
out of the assets to meet them: (Williams v.
Nixon, 2 Beav. 477.) I find decisions under the
former Bankruptcy Acts in which official assignees
have been thus made personally liable to costs.
I Sydney v. Belcher (2 Moo. & Rob. 324) the
official assignee was held personally liable to the
costs of defending an action brought against him,
and the creditors' assignee, he having joined in
retaining the attorney, and where an official
assignee was included in an order for the payment
of costs, such order might be enforced against
him alone: (Ex parte Murray, re Smith, 1 Mon.
& Ayr. 475.) This principle of making a party
standing in the position of a trustee personally
liable has received the fullest con irmation in the
case of Beavan v. Whitmore (15 C. B., N. S., 433;
19 C. B., N. S., 783, Ex. Ch.) There an official
assignee of a district court of bankruptcy, having
given his assent to the bringing of an action
in his name, jointly with that of the trade
assignee, for the recovery of part of the
bankrupt's estate, and the action proving un-
successful, the trade assignee, having paid
the costs, was held entitled to sue the official
assignee for contribution. So also it has been
held that assignees who were brought before
the court by a supplemental bill, might be made
liable to the costs of the whole suit when they
improperly resisted the plaintiff's demand. Whit
comb v. Minchin, 5 Madd. 91, and the assignees of
a bankrupt in Re Peers 21, Beav. 520, were held
personally liable for the cost of taxation of a bill
of costs delivered by them where more than one-
sixth was taken off. In all cases in which the
trustee is acting honestly and within his powers
in instituting legal proceedings for the benefit of
the estate, his relief for being made personally
liable will be found in such estate recouping him
for the sum or sums which he has been made to
pay, or has advanced for that purpose, or if there
is no fund in hand for such a purpose, in his
obtaining an indemnity from the creditors. The
Bankruptcy Act, 1869, s. 13, contains, for the
protection of the trustee, large powers enabling
him to apply to the court after the presentation
of a petition against the debtor to restrain further
proceedings in any pending action, suit, execution,
or other legal process against the debtor, or the
court may allow such proceedings, whether in
progress at the commencement of the bankruptcy
or commenced during its continuance, to proceed
upon such terms as it shall think just.
The
trustee also, under sect. 26, has the fullest power,
with the consent of the court, of disclaiming all
land burdened with onerous covenants, unmarket-
able shares, unprofitable contracts, or of any un-
saleable property; in fact all those dealings
by the bankrupt with property, which is burdened
with obligations likely to lead to extensive and
uncertain litigation.

It was very much urged upon my attention by Mr. Barker, in the course of his able argument for Mr. Cotton, that there was a close analogy between the case of an exe cutor and a trustee in bankruptcy; and that an executor, but for the statute which gives them, was, on account of his representative character, never liable for costs; but I am of opinion that it is a partial analogy only. Before the statute 3 & 4 Will. 4, c. 42, executors and administrators were not liable to costs when a nonsuit or a ver dict went against them in cases where the action was brought upon a contract entered into by the testator or intestate, or for a wrong done in his lifetime-Jones v. Williams (6 M. & S. 178); Barnard v. Higdon (3 B. & Ald. 213), and the reason was said to be that the 23 Hen. 8, c. 15, s. 1, by which costs were first given to defendants, was confined to wrongs done to and contracts made with the plaintiffs. But before the former statute it was held that where an executor or adminis trator had knowingly brought a wrong action against, or otherwise being guilty of, a wilful default, he should pay costs upon a discontinuance: (Harris v. Jones, 1 W. Bl. 451, Tidd 979, 9th edit.). He is liable also independently of the statute upon judgment of non pros: (2 C. & M. 403). So executors or administrators have always been held liable to costs upon interlocutory proceedings: (Tidd, 979, 9th edit.) It appears to me also, that after the order in this case, made on the 10th May, when the contested matters between the trustees and the mortgagees had been finally settled, and no claim for costs existed on either side, and nothing remained to be done but to give up such possession of the property as the trustee representing the bankrupt mortgagor had, that the subsequent proceedings by which the mortga gees were compelled to apply to the Court were ill advised, and came within the case of Harris v. Jones, just cited, in which it was held that an executor was, before the passing of the 4 Will. 4, c. 42,

JAN. 6, 1872.1

liable for costs as upon a wilful default. But there is still another ground on which alone I should have felt compelled to give an adverse decision against Mr. Cotton, namely, the payment of the 401. to Mr. Moseley, the solicitor to the bankrupt estate. It is proved that this sum was paid by the trustee on account of an unascertained bill of costs, and as it was paid in contravention of, although in good faith and without knowledge of, the 114th general rule in bankruptcy, which provides that a trustee shall not be allowed in his accounts any sum paid by him to his attorney, unless the same shall have been duly taxed as between attorney and client, it is in my view money paid in his own wrong, and must be taken as if it formed part of the bankrupt's estate, and available for the pay. ment of the costs in this case. Upon the state of facts before me, and upon the authorities cited, I have arrived at the conclusion that the execution against Mr. Cotton ought not to be stayed, and that therefore the motion must be dismissed. As, however, I believe that Mr. Cotton has acted in perfect good faith, although mistaken in his belief as to the law, it must be dismissed without costs.

NEWCASTLE COUNTY COURT.
Friday, Dec. 22.

(Before THOMAS BRADSHAW, Esq., Judge.)
Re THOMAS NEILSON.
Commitment of bankrupt-Production of books-
Affidavits.
THIS case came before the court on a petition
from the bankrupt for an order from his Honour
to release him from prison. Previous to Joel, Jun.,
supporting the petition,

Harle, who represented the trustee of the bankrupt's estate, asked permission to file a short affidavit which could not be filed in the ordinary time because sufficient time had not been allowed to bring the bankrupt's petition before the committee

of creditors.

Joel had no objection to the affidavit being filed. In support of the bankrupt's petition he begged to make a short statement in reference to it. The petition had been prepared by Neilson while he had been in Newcastle Gaol, and had been signed by the governor of the prison. The bankrupt states in his petition that he had not the means of employing professional aid, and had been obliged to resort to the petition for bringing himself before his Honour that day, and applying for a release from prison. He had been in gaol since Aug. 17 for the requirements of the court. He had given up all property, books, and documents, in his possession relating to his estate; he had been most wishful to give the trustees all needful assistance and information, and had offered to devote his future earnings to the benefit of his creditors. Considering that the bankrupt had not been allowed the ordinary access to papers which bankrupts usually had, and also that he had done everything in his power to give the necessary information to the trustees about the estate, and further that he had not been requested by the trustees for the last six weeks to give any information, he considered that the bankrupt was entitled to come to the court that day to be allowed to be examined as his last examination. The bankrupt said that if there were any questions which his Honour thought ought to be put he was willing to give every information respecting them, and if his Honour was satisfied with them, he applied that his imprisonment should come to an end. Mr. Joel called his Honour's attention to an affidavit made by the bankrupt prior to the last examination. In that affidavit the bankrupt stated that while he was in Durham Gaol he was made a bankrupt, and had been asked to file a statement of his accounts. He complained of having to do He left the that while he was thus incarcerated. gaol at Durham on the 17th Aug., and and was immediately arrested upon an order from that court, committing him to Newcastle Gaol. The application for his commitment had been made ex parte, and he (Neilson) was taken by surprise He had remained in gaol ever since. He (Mr. Joel) thought it was a grievance for the bank rupt to be kept in prison, particularly as it was six weeks since he had been requested to furnish any He (Mr. Joel) information respecting the estate. asked what right the trustee had to detain the He submitted that in bankrupt in custody? point of fact there was no ground for the commit ment of the bankrupt under the section upon which the application for his detention in prison had been made by the trustee. At the time the application was made the bankrupt was in Durham Gaol, and therefore he could not possibly abscond. If the bankrupt on that occasion had been allowed to have come before the court, he would have been able to satisfy his Honour's predecessor that he had no intention of absconding, but on the contrary, it was his earnest wish to give his creditors every possible information respecting his estate. His HONOUR reminded Mr. Joel that the court

at it.

THE LAW TIMES.

could grant an order of commitment on informa-
tion that there was probable reason to believe
that a bankrupt was likely to avoid his exami-
nation.

Joel replied that he thought it was never con-
templated in the Act, that after a bankrupt had
done everything he possibly could, and had made
every disclosure respecting his affairs, the credi-
tors should still detain him in prison.
His HONOUR agreed with Mr. Joel on that
point.

Joel thought it would only be a gracious act to
release the bankrupt from prison, particularly
after he had stated that he had no intention to
avoid his creditors.

Hodge said that Mr. Joel had omitted to mention
one or two circumstances to which he would
allude. The bankrupt, on the 24th Nov. 1869,
was committed for trial on a charge of embezzle-
ment, and eventually was sentenced to eighteen
months' imprisonment. On the 11th April 1870
the trustee, Mr. Greener, caused him to be served
with a notice asking him to file certain accounts.
During the whole time he was in prison no
attempt was made by the bankrupt to file those
accounts. It was not the duty of the trustee
to have asked the bankrupt to file those ac-
counts, but it was thrown on the bankrupt by
the Act to file his accounts. If the bankrupt
had done so, or made the slightest attempt to
do so, the trustee would not have applied that
he should be imprisoned. The bankrupt had, also,
ject of examination in that court on the last
not given up certain books which were the sub-
examination. It was absolutely necessary and
essential to the proceedings that these books men-
tioned by the bankrupt should be produced. They
hod reason to believe that the missing books con-
tained how some three or four thousand pounds,
belonging to some building societies of which he
had been secretary, had been spent. He con-
tended that the trustee and the court had been
perfectly justified in the course they had taken in
connection with the case. Mr. Hodge read the
affidavit of the trustee, which, after alluding to
the bankrupt having stated at his last examina-
tion that he had kept another cash book other
than those in the possession of the trustee, and
which they had reason to believe contained entries
of the manner in which some 40007, he had impro-
perly received from building societies had been
spent, of which no mention was made in the imper-
feet cash books in the possession of the trustee,
further stated that the committee of creditors had
considered the application of the bankrupt for his
release from custody, and they had come to the
conclusion that he was not entitled to a release.
until he had given up the cash book mentioned by
him at his last examination.

Hodge continued, and said that to show that the
court had been justified in the course it had taken,
he might mention that since the last examination
of the bankrupt, he had handed over a share he
had in the Gateshead Bowling-green and a life
insurance policy for 2001., the existence of which
the trustee had never heard.

His HONOUR said it was a question whether he
had no means of getting it if it was in existence.
had the cash book to give up. While in gaol he

Joel said it was impossible for the bankrupt to
get the cash book, supposing it was in existence,
while he remained in gaol. He thought it was a
sin and a shame to retain the bankrupt in prison,
and that because he could not give up a certain
His HONOUR inquired what were the total
book, he should therefore not be released.
Hodge said there were 14,4007.-11,000l. secured,
debts?
His HONOUR said the question really turned on
and 34001. unsecured.
He thought the
the point whether it was in the bankrupt's power
to produce the cash book.
bankrupt should be called and examined on the
point.
Hodge said that they fancied that the bankrupt
could produce the book.

The bankrupt was then put into the witness
box, and on being questioned with reference to
the cash book, he said he had made a mistake on
the last occasion of his examination when he said
he had kept another cash book other than those
now in the possession of the trustee. He never
had such a book, and the cash books he had used
were all delivered up and were in the possession
of the trustee. His transactions relating to the
building societies, if they did not appear in the
cash book, would appear in the bankers' pass
book. He had satisfied the trustee that the build-
ing society moneys had been paid to creditors.
The trustee had never asked him for such a book.
His HONOUR asked the bankrupt if there was
such a book in existence.

The bankrupt replied that there never was, and that his memory had been cloudy when he said there had been.

Hodge said that they were taken by surprise when the bankrupt said there was no such book It was a question as the one he had alluded to on the occasion of his last cross-examination.

His HONOUR asked Mr. Hodge if he had any
whether to believe the bankrupt's statement on
evidence that the book he wanted was in ex-
the last occasion or the one he had then made.
istence.

Hodge replied that they had none whatever ex-
cept that it was a most mysterious circumstance;
man of the intelligence and position of the bank-
and it could not possibly be conceived that a
rupt would receive such sums of money as he
was known to have received without recording
them in some book. They would leave the matter
leased.
in the hands of his Honour as to whether, under
the circumstances, the bankrupt should be re-

His HONOUR said that he had not had the advantage of hearing the case on previous occasions when it had been before the court, and he must presume that whatever his predecessor had done he had acted rightly. He was at first inclined to release bankrupt from custody, simply because he had been imprisoned for nearly two the credibility of his statement respecting the years, and again for about four months. As to cash book, his first impression was shaken.

Joel said that the bankrupt was perfectly willing to do all he could for the creditors, and the very fact of his Honour releasing him would enable him to do it.

His HONOUR said he would release him from custody, but that did not release him from the obligation that he morally owed to his creditors.

Hodge said they felt that the court and the trustee had been fully justified in the course they had taken, from the fact that by so doing they had recovered some property.

His HONOUR, addressing the bankrupt, said he would release him. He thought as the trustee had not pressed him to retain him in custody, that the manner in which he had thus behaved to him ought to appeal to his feelings liberally, and should prompt him to endeavour to the utmost of his ability to give such information, or such papers or documents he might happen to rememher when his memory returned to him, and he hoped it would return at once.

Hodge hoped that his Honour would tell the bankrupt that it would still be his duty to come and pass his examination in the usual way, and make him understand that he was not discharged from his bankruptcy.

The bankrupt said he never intended to escape from the jurisdiction of the court.

His HONOUR said that if the trustee had pressed him to keep the bankrupt in prison, he leniency of the trustee. would have kept him in custody for another month. The bankrupt owed his release to the

SHEFFIELD COUNTY COURT. Re CAPSEY. rity Fraudulent preference. HIS HONOUR gave judgment in the case of Mr. Liquidation-Equitable mortgage of lease-SecuHenry Hudston, stockbroker, Nottingham, who of property in Spring-street, Sheffield, which had claimed to be an equitable mortgagee of a lease formerly formed part of the estate of Mr. Charles Capsey, grocer, Sheffield, whose affairs are at present in course of liquidation.

H. Hogg, solicitor, of Nottingham, appeared for by Mellor) for the trustee, Mr. William Fisher the applicant; and Vernon Blackburn (instructed Tasker.

The applicant alleged that he lent Capsey money to the extent of 12181., as security for which he received the lease of some property in Springstreet. The property has since been sold, and the was for the money to be paid towards satisfying It was urged on behalf money paid into court, and the application now of the trustee that the giving up of the lease by the applicant's claim. Capsey showed a fraudulent preference to applicant over his other creditors.

His HONOUR, in giving judgment, said there were three distinct lots to be sold. First, the lease which had been deposited by Capsey with the court the first two had been sold, and realised, Hudston; secondly, the fixed plant, machinery, &c.; thirdly, the loose plant. Under the order of the former 135l. and the latter 1067. 6s. 11d., making 2361. 68. 11d. The loose plant had realised the sum of 871. 14s. 11d. Last court day he expressed a strong opinion in favour of the claim of the equitable mortgagee, and that opinion had not been weakened on perusing affidavits He was of and documents that had been filed. The questions he had to decide were, was there a good equitable mortgage; to whom did it apply; and to what advances should the security extend? opinion that a good equitable mortgage had been asking if it was possible to get an advance of 10000 created. The note of Mr. Capsey to Mr. Hudston on the Spring-street lease, was a distinct offer to give the lease including plant, as a security for it was not an application for a loan, but was a such a loan. Mr. Blackburn had contended that

note simply asking Mr. Hudston's advice But under and coupled with, all the circumstances that actually took place he regarded it as an application for the loan of 1000. The question was not whether Hudston acted like a cautious man, but whether the giving of the equitable mortgage was a fraudulent preference under 92nd section of the Act. But in what did the preference consist? The only fraud, in his opinion, was on the part of the bankrupt in deluding his unfortunate relative with a false balance sheet. He could see no other. Hudston advanced 600l. to Capsey, and, according to all the evidence, the creditors got the benefit of that money. The creditors got a fair equivalent for what the bankrupt had parted with. The transaction then was bona fide on the part of Hudston, and was as fair and as free from suspicion as any equitable mortgage could be. The second question was, what did it comprise? It certainly comprised what might be called lot No. 1, which was now represented by the sum of 1351.; and it was equally clear that it embraced lot No. 2, represented by the sum of 1011. 6s. 11d.; and it might have been contended that the security included lot No. 3 also, for it was not covered by a bill of sale, and the ownership clauses in the Bankruptcy Act did not answer it. He did not say that the contention would have been successful, but he merely indicated that it might have been. As the applicant had, however, abandoned any claim he might have to this lot, the question was not for him to consider, but that part of the case he would notice in dealing with the costs. The third point was what advances the security extended to, and in noticing that, he would take the affidavit of Hudston, because Capsey was away, and there was no other evidence forthcoming.

Blackburn said they were agreed upon the sums it covered.

His HONOUR.-Are you agreed that the sum of 3001. was due at the time of the deposit, and that 300l. was subsequently advanced?

Blackburn.-We are.

His HONOUR (continuing.)-If the question had been between them, he should have said that the security covered both. That being so, he decided that the applicant was entitled to have his equit able mortgage counted as security for the sums of 2361. 6s. 11d., the money to be paid in virtue of such security. In regard to the question of costs, his Honour said the applicant, having established his claim, was entitled to have his costs out of the general estate of the bankrupt. The costs of both parties he therefore ordered to be taxed and paid out of the 871. 14s. 11d. There would be no injury to the other creditors in taking the costs out of the fund that was in the possession of the court. In conclusion, his Honour made some remarks on certain irregularities in the affidavits that had been filed by the trustee, and said that in future if affidavits contained useless or irrelevant matter,

he would order them to be disallowed.

Hogg afterwards applied for a sum of 31. 163., money paid on account of fire insurances, on the property comprised in the lease which was allowed to be added to his client's security by the consent

of the trustee.

Hogg said, his client wished to bring before the court a point in reference to the sale of the ma. chinery. The auctioneer's charges amounted to 151. per cent. on the amount of the sale without a printed catalogue.

His HONOUR: That must be a special motion calling upon the court to inquire into the conduct of the trustee.

CORRESPONDENCE OF THE

PROFESSION.

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.

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practice in Ireland, and making it known to the trustees, the husband, and the wife jointly surrender whole profession in England and Wales. He the policy? or, secondly, can the trustees and the wife might have, perhaps, benefited himself consider-esign the policy to A. in order that he may surrender it? or, thirdly, does the rule in equity, as to dealing ably by quietly making known to his clients and with the wife's reversionary personalty and the excep such of his professional friends who are not tion in Malins's Act (20 & 21 Vict. c. 57, s. 4) prevent Chancery commissioners for England, and thus this? G. W. W. put some fees into his pocket which may now escape it. G. H.

THE AUSTRALIAN ROYAL COMMISSION ON INTERCOLONIAL LEGISLATION AND A COURT OF APPEAL.-I have the honour to forward you herewith a copy of the first report of the Royal Commission on Intercolonial Legislation and a Court of Appeal. During the session of 1869 the Legisla tive Assembly appointed a select committee to inquire into and report upon the expediency of inviting the co-operation of the several colonies of Australasia for the following purposes: (1) To provide for the extradition of offenders from one colony to another; (2) To provide means whereby the effect of insolvency or the granting of probate or letters of administration in one colony shall be extended to all; (3) To adopt a system whereby execution may issue in any colony upon the registration of the judgment of the supreme court of any other colony; (4) To establish a court of appeal. After the termination of the session the inquiry was continued by the members of the committee who where appointed by his Excellency Viscount Canterbury commissioners for that purpose. The labours of the commissioners are not concluded; a first report only has been submitted. The report of the commission, and the suggestions for the proposed Bill are based upon the principle of retaining for each colony the paramount autho. rity of its own legislature within its own boundaries. The Bill proposes no system of federation, nor does it create any administrative power or legislative authority whatsoever. It was thought that whatever difference of opinion may exist with respect to the political federation of these colonies, there could be no reasonable objection to the adoption of a common system dealing with the diminish the power of any of the colonies, nor to. It is not proposed to subjects referred to create any authority superior to them. The report merely suggests that a common understanding providing for an intercolonial comity upon these important legal subjects is desirable, and recommends that the several colonies be in vited to establish it. While the subjects referred to the commission were under eonsideration the advisability of including the subjects of naturalisation, marriage, patents and copyrights in any proposed system of intercolonial legislation, came prominently under our notice. It will materially assist the commission in the consideration of these subjects to know the opinion of the prominent public men of the Australasian colonies. Would you be good enough to say whether, in your opinion, the proposed system of intercolonial legislation ought to be adopted? and, if so, whether it should be effected as proposed by means of an imperial Act, or by concurrent legislation in the colonies? Whether the extradition of offenders should apply to all persons charged with indictable misdemeanors, or whether the misdemeanors should be specified? and whether the intercolonial comity should extend to the subjects of naturalisation, marriage, patents, and copyright?

J. J. CASEY, Chairman of Commission.

NOTES AND QUERIES ON

POINTS OF PRACTICE.

NOTICE. We must remind our correspondents that this column is not open to questions involving points of law such as a solicitor should be consulted upon. Queries will be excluded which go beyond our limits. N.B.--None are inserted unless the naine and address of the writers are sent, not necessarily for publication, but as a guarantee for bona fides.

Queries.

51. TOWN COUNCIL MEETINGS.-What power has the mayor or other chairman of the town council or local board of enforcing order, in case of an interruption or

abusive language by one member to another, and re

fusal to retract or apologise, but no actual assault? He cannot commit nor eject. Is the business to be stopped by the misconduct of one member, and that without remedy? J. R.

(52.) THE APPORTIONMENT ACT 1870.-Does the Apportionment Act 1870 render rent apportionable as between the heir and administrator of an intestate who died seised of a fee simple?

E. Y.

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(55.) ETIQUETTE.-Will any of your readers advise me on the following point of professional etiquette? A. B. C. D. and E. project a company, to consist of shareholders, and arrange that A. shall be solicitor, B. treasurer, C. surveyor, and D. secretary. Am I justi fied in taking shares and canvassing shareholders, and adopting other means for obtaining the solicitorship? Is this a pushing myself into another man's business, or is it merely fair competition? R. W.

the Final Examination, held by the Incorporated Law 56. MAINTENANCE.-In the course of my reading for Society, I met with the following paragraph in Mr. Joshua Williams's Book on Personal Property: "The Act," (referring to the 26th section of the 23 & 24 Vict. c. 145) it will be observed, applies only to income to should not be entitled to the income irrespectively of which the infant may be entitled; so that if the infant the Act, it would scarcely be safe for the trustees to apply it for the maintenance without express authority." The words of the Act are: "In all cases, when auy property is held by trustees in trust for an infant, either absolutely or contingently on his attaining the age of previously to his attaining that age, it shall be lawful twenty-one years, or on the occurrence of any event for such trustees," &c., "to apply for or towards the maintenance and education of such infant the whole or any part of the income to which such infant may be entitled in respect of such property." &c. And the section further directs the accumulation and investthe person who shall ultimately become entitled to the property from which such accumulations shall have arisen.' The questions which suggest themselves, and as to which I shall be obliged for any information through the medium of your paper, are: (1) Whether there has been any decision to the effect that the above section only applies where the interest of the infant is a vested interest? If not, (2) Whether the words may be entitled" should not be construed may become entitled? and (3) Whether the words "who shall ultimately become entitled to the property," are not in favour of such a construction?

ment of the residue of the income "for the benefit of

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J. L.

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Answers.

P. L. P.

(Q. 37.) CONVEYANCE.-I almost despair of explainin any thing to "T. S." after his saying that I allege "that the person who becomes entitled to the land does also become entitled to distrain for rent accrued better read my reply at p. 145 again. He seems to be satisfied that after the conveyance the grantor cannot distrain. He may also be satisfied that the grantee of the arrears (which are only assignable in equity, being choses in action) cannot distrain.

before the commencement of his title." "T. S." had

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(Q. 49.) NATIONAL SCHOOLS.-I think the exchange may be effected under sect. 14 of 4 & 5 Vict. c. 38, as extended by 15 & 16 Vict. c. 49, without the sanction of Z. Y. the charity commissioners.

(Q. 50.) CONVEYANCING.-The solicitor of the vendor should make a copy of the requisitions, draw thereon his replies, and copy these replies on the original requisitions, and return them. If instead of this he should return his copy of the requisitious, he would impose on the purchaser's solicitor the duty of examining the copy (in some instances both inaccurate and untidy) with his draft, although he had already had to examine the copy he had made and signed. Should the vendor require to prove the requisitions, and the original should not be forthcoming, his copy would be good evidence, and be might as reasonably claim to keep the purchaser's draft conveyance as his requisitions.

tions.

The vendor should retain the original requisi 2. Y.

In reply to this query, I would suggest that your notice should be extended so as to exclude questions involving points of practice such as well-known text books should be consulted upon. Had" E. A. S." taken the trouble of looking into any oue of the many practical treatises on the subject, he would have found that the question of advisability does not arise. The correct practice is for the vendor to retain the pur chase:'s signed requisitions, and return a copy thereof,

when he replies thereto.

T. WILKINSON,

LAW SOCIETIES.

SOLICITORS' BENEVOLENT ASSOCIATION. THE usual monthly meeting of the board of directors of this association took place at the Law Institution, London, on Wednesday last, the 3rd inst., Mr. John Smale Torr in the chair; the other directors present being Messrs. Brook, Hedger, Nelson, Rickman, Smith, Young, and Veley. (Mr. Eiffe secretary.) A grant of 50% was made to the widow and family of a member, and a grant of 101.to the widow of a non-member. A communication from Lord Cairns was read, announcing that his Lordship would be happy to take the chair at the ensuing anniversary festival of the association in June. A communication was also read from Messrs Wadeson and Malleson, solicitors, Austinfriars, announcing that, in consequence of the death of an annuitant, the sum of 13331. 6s. 8d. Consols. had accrued to this association. Eight

new members were admitted, and other business of a general nature transacted.

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J. T. TEEVAN, ESQ. THE late John Watton Teevan, Esq., barristerat-law, who died at the residence of his uncle, 30, Cheskam-stroot Bolgravo-square, on the 27th ult.. in the thirty-third year of his age, was the eldest son of John Teevan, Esq., of Woodside Court, Croydon, by Mary Anne, only surviving child and heir of the late William Stephen Watton, Esq., of Woodside Court, and was born in the year 1839. Mr. Teevan was educated partly at a private school at Richmond, Surrey, partly under a private tutor at Bayswater, and subsequently at St. Mary's College, Oscott, near Birmingham, whence he passed in due course to Trinity Hall, Cambridge. He took his Bachelor's degree with honours in the year 1862, and he was one of the first Roman Catholics on whom that honour was conferred subsequent to the movement which threw open the great prizes of Cambridge to others than members of the Established Church. Not content, however, with having won distinctions at Cambridge, Mr. Teevan entered his name as a student at the University of London, and, passing successfully all his examinations, took there also his degrees as a Bachelor and Master of Arts. In Easter Term, 1866, he was called to the Bar at the Middle Temple, but, being born in afluent circumstances-indeed, the heir to a landed property-he never seriously followed up the practice of his profession. Mr. Teevan, who was beloved by a large circle of attached friends, married, only a few months ago, Mary Anne, daughter of Charles Robert Lindsay, Esq., of the Indian Civil Service.

MR. ALDERMAN J. BIRD, OF CARDIFF. THE death of Mr. Alderman J. Bird, solicitor, of Cardiff, took place at his residence, Crockherb. town, on the 10th Nov. last, at the age of fifty-five years. The deceased gentleman was the fourth son of the late Mr. James Bird, an ironmonger of Cowbridge, and was born at that town on the 16th Aug. 1816. He has several surviving brothers, one of them being Councillor Phillip Bird, and another Mr. George Bird, bookseller, of Bridgend. Mr. John Bird commenced his career in life at the office of the late Mr. Redwood, solicitor, of Cowbridge, where he obtained a situation at an early period of life. When he was about fifteen years of age, he removed to Neath, where he was employed under the late Mr. Cuthbertson, solicitor. After remaining here a few years, he was enabled, by his own exertions, to article himself to his employer; and after his articles were completed. he remained with Mr. Cuthbertson in the position of manager. During this period he obtained an extensive knowledge of the Poor Law, as Mr. Cuthbertson at the time filled the office of clerk to the local board of guardians, which portion of Mr. Cuthbertson's duty fell

almost exclusively on Mr. Bird. In Hilary as the Jersey tribunal is concerned-in the long
Term 1844 he took out his certificate as an at- pending dispute between the Jersey judges and
torney, and then removed to Cardiff, where he the Lords of Her Majesty's Treasury relative to
began to practise. At this time his uncle, the the payment of an hotel bill amounting to 951. 11s.
late Mr. John Bird, was secretary to the late for dinners supplied to the judges of the Royal
Marquis of Bute, and possessed much influence in Court on the occasion of the opening of the assize
the borough, of which he was
Through his uncle's influence, Mr. Bird speedily judges who adjudicated on the case were the very
an alderman. d'heritage during the last six years. The twelve
acquired a lucrative practice, particularly in the persons who had ordered the dinners to be pro-
vided, and had partaken of them. The plaintiff
police and County Courts. He became known as
when he represented the defence. About five or
an able cross-examiner and pleader, especially was Mrs. Mary Chase, landlady of the Royal
Yacht Club Hotel, and the defendants were nomi-
six years ago Mr. Bird gave up the more active nally Her Majesty's Attorney-General for Jersey
duties of his profession, but he never actually (Mr. Robert Pipon Marett), Her Majesty's Re-
retired from the law, his name being retained on
the rolls till his death. In Nov. 1858 he was
ceiver (Mr. Peter John Simon), and the Viscount
elected a member of the town council of Cardiff, the actual defendants being the Lords of Her
or Sheriff (Colonel John Le Couteur (Q.A.D.C.);
and he speedily became an influential authority on Majesty's Treasury. When the case was pleaded
all municipal matters. He was elected mayor of before the court, the point at issue was whether
Cardiff in Nov. 1862, and rendered himself so the Crown was entitled to pay for the dinners or
popular that he was unanimously re-elected in not. It appeared that it had been the custom for
the following year. During his mayoralty the the payment to be made by the Queen's Receiver
marriage of the Prince of Wales with the Princess out of the revenues arising from the Crown pro-
Alexandra took place, on which auspicious occa- perty in the island. Six years ago, however, the
sion he actively exerted himself in directing Treasury issued an order that these revenues were
the town rejoicings. He was for a long time no longer to be thus applied. At each successive
a member of the local board of guardians, opening of the assize d'heritage the judges ex-
and of late years acted as one of its vice-pressed their dissatisfaction with the order thus
chairmen. In this capacity he was greatly made, and decided that, as the grant of the
instrumental in establishing the Ely industrial dinners was a right due to them, they should be
schools for the pauper children of the borough, provided as heretofore. The Viscount was,
and he continued to the last to take a lively therefore, instructed to prepare the dinners
interest in these institutions. He was also an as usual, and he was compelled, under a penalty
active governor of the Cardiff infirmary, and of imprisonment, to obey the orders of the court.
rendered valuable aid in the management of the The bills were afterwards sent in to the Queen's
Cardiff Annuitant Society, the members of which, Receiver, who refused to pay, and after the
at their jubilee anniversary in July last, presented account had run up to the amount mentioned, and
him with a handsome testimonial in his sick no settlement could be obtained, this action was
chamber. In connection with the Havannah brought. It was objected by the defendants that
industrial school, Mr. Bird promoted the forma- the Crown was not legally liable to provide the
tion of the brigade of market porters. He was dinners, and that, though it had been the practice
prominently connected with several other local to do so for a long period, this was merely an act
institutions, but the above will suffice to exhibit of courtesy, which could be withdrawn at any
the chief features of a career of remarkable public time. On the other hand it was maintained that
usefulness. His fatal illness began about fifteen the custom was a right that the Crown owed to
months ago, but, during the interval, it was hoped the judges, the seigneurs, and the franc-tenants
on several occasions that he would recover. The for the services these officials rendered in the
disease took an unfavourable turn about three discharge of their respective duties. The oldest
weeks before his death, but he retained his con- record extant relating to the dinners was an entry
sciousness to the last, and gave minute directions in the books of the Royal Court bearing date
regarding his funeral. He also tendered his July 27, 1861, during the reign of Charles II.,
resignation as alderman, but the mayor feel- from which it appeared that there had been some
ingly declined to submit it to the corpo- dispute at that time relative to the dinners, no
ration while he lingered. Mr. Bird was particulars of which, however, are to be obtained.
buried on the 16th Nov., at the parish church The court on that occasion decided, the Lieut.-
of Roath, being marked by unusual tokens of Governor of the island being present and con-
public respect. The procession was headed by senting, that "the dinners should be continued as
a detachment of borough police, who were followed heretofore," the Lieut.-Governor "knowing no
by the mayor and corporation, preceded by the reason to the contrary." This was relied upon
mace bearers. There were four mourning coaches, by the plaintiff as proof that the Crown owed the
filled by the relatives of the deceased. The Mar- dinners to the judges as a right and not as a mere
quis of Bute, in his carriage, brought up the rear acknowledgment. On the 16th ult the court
of the procession. The shops were partially overruled the plea of the defendants, and held
closed, and the borough standard floated at half- that the treasury was liable for the payment.
mast from the town hall. The burial service was On Saturday judgment was given for the plaintiff
read by the Rev. D. Howell, and the body was in- with costs, but without the interest charged on
terred in the vault at the east end of the church. the account. The Viscount was released from the
The late Mr. Bird was twice married. His first action on the plea of the solicitor general (Mr. G.
wife was Miss Mira Strutt, granddaughter of Mr. H. Borman) that he had merely obeyed the orders
Joseph Strutt, the well-known antiquarian writer. of the court in giving instructions for the dinners.
She lived till 1858, and by her he had a son and An appeal to Her Majesty in Council was entered
daughter. His son, the Rev. J. J. Bird, survives, by the Attorney-General.
but his daughter, Mrs. Annie Rutland, died in
May 1879. Mr. Bird married secondly, in 1864,
Miss Kezia Strutt, his deceased wife's sister, who
nursed him through his long illness.

LEGAL NEWS.

THE JURY SYSTEM.-A large volume has just been presented by the clerk of the peace of Middlesex to the office of the under-sheriffs, containing the names of persons qualified as special and common jurors. It is the first book made under the Act of 1870 in its present shape, and presents a strange appearance as to the "special jurors." The provision in the Act as to payment of jurors was repealed during the last session, and the then Attorney-General promised that the jury system should undergo revision. By the Jury Act the overseers are required to specify the special jurors in the list, which list is to be certified by justices, and the names are to be retained, and the "decision of such justices as to the qualifica tions of persons marked as special jurors in the list so revised by them shall as respects those lists be final." In the lists now prepared by the overseers of the several parishes in Middlesex and sent to the clerk of the peace, there are numerous tradesmen returned as "special jurors," and in many cases the assessments amount to about 501. and 601. a year. There are licensed victuallers, butchers, builders, and other trades in the list, and tradesmen will now appear in the list as "special jurors," by the side of esquires, bankers, and merchants until the law is amended.

JUDGMENT AGAINST THE TREASURY.-Final

THE COURTS & COURT PAPERS.
SITTINGS AND CAUSE LIST FOR HILARY
TERM 1872.

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* On these days the Court of Queen's Bench will sit

judgment was given on Saturday-so far, at least, in two divisions, when motions are excluded.

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