belong to the widow absolutely and exclusively. She is thus made a species of statutory heir-at-law of the realty; but it would seem that for the personalty administration must be taken out in the ordinary way. By sect. 2, where the net value exceeds £500, she shall be entitled to £500 absolutely and exclusively, and shall have a charge on all the realty and personalty for the £500, with interest from the death, until payment, at 4 per cent. The charge will be borne rateably by the real and personal representatives (sect. 3). This £500 will be in addition to the widow's interests in the residue of the intestate's real and personal estates (sect. 4). The real estate will, for the purposes of this Act, be estimated in case of a fee simple, at twenty years' purchase of the annual value, as for property tax, less any mortgage, &c.; and in case of an estate for lives in accordance with the Succession Duty Tables (sect. 5). The net value of the personal estate will be estimated after deduction of debts, funeral and testamentary expenses and other liabilities (sect. 6). These simple provisions for valuation will be very useful. It should be observed that the Act only affects estates of intestates who die without leaving issue. The Act does not extend to Scotland (sect. 8). It will be noticed that by virtue of this Act a widow will sometimes be more favourably treated than a widower. For if a man dies without issue, leaving only land worth £500, the widow will take the fee simple (subject, we presume, to rights of creditors); while, if a woman dies under like circumstances, the surviving husband will only be entitled to the property for his life.

Ir a man applying for shares in a company hands in a false name, or the name of someone who knows nothing about the application, or the name of an infant, the court will treat that man as the real shareholder and the name handed in as that of a mere dummy. Such is the wholesome doctrine which Mr. Justice KAY applied in Re Britannia Fire Association, Coventry's case, on the 7th Aug. The circumstances were peculiar, and induced the learned judge to remark that human affairs are wonderfully like a kaleidoscope, with its constantly changing combinations of colour. COVENTRY, the father. had handed in the name of COVENTRY, the son, as that of an applicant for certain shares in the above association. COVENTRY, the son, had not sanctioned the application, and, in fact, knew nothing whatever about it. In such circumstances of course he could not be justly placed on the list of contributories. The question was, whether the father's name could properly be retained on that list, and this question Mr. Justice KAY answered in the affirmative. After a while the father died, and the liability which he incurred as above mentioned of course devolved upon his executors, whose duty it will now be to satisfy the claim made by the liquidator of the association.

THE facts disclosed in Re Trehearne; Ex parte The Official Receiver, decided by Mr. Justice CAVE, on Monday last, would seem to indicate that the effect of sect. 45 of the Bankruptcy Act 1883 has not yet been fully appreciated or understood. The section provides (inter alia) that where a creditor has attached any debt due to his debtor he shall not be entitled to the benefit of the attachment unless such attachment shall have been completed by receipt of the debt before the date of a receiving order against the debtor, and before notice of the presentation of any bankruptcy petition by or against him, or of the commission by the debtor of any available act of bankruptcy. In a case decided by the late Mr. Justice MANISTY in December 1885 (Baker v. Wearing, 17 Q. B. Div. 182), the question arose whether, as provided by the above section, there had been a receipt of the advertisement by the creditor so as to entitle him to retain it against the judgment debtor's trustee in bankruptcy. After the garnishee order was obtained in that instance, a third person intervened, claiming that the debt was due to her, and, under a judge's order, the amount was paid into court to abide the issue. A receiving order having subsequently been made, the claim of the third party was withdrawn, and the learned judge decided that there had not been a "receipt of the debt" by the creditor so as to oust the right of the trustee. Doubtless this judgment followed the plain terms of the Bankruptcy Act, and the same observation applies to Mr. Justice CAVE's more recent decision. The debtor in Re Trehearne had an admitted claim of £78 19s. 6d. against the Ealing Local Board, and Messrs. FARDELL and Co., his creditors, having obtained a garnishee order nisi attaching the debt, it was afterwards arranged that the order should be made absolute, provided that Messrs. FARDELL and Co. should not enforce it before the 3rd Oct. 1889, the clerk to the local board agreeing to hand over the cheque on that date. This arrangement was duly carried out, but in the meantimeon the 6th Sept.-a receiving order was made against TREHEARNE, followed by an adjudication on the 13th Sept. Upon this state of facts the chief official receiver applied for a declaration that the amount in question was his, as trustee of the bankrupt's estate, and for an order on the local board to pay it into his hands. Applying the reasoning which Mr. Justice MANISTY had adopted in the earlier case, Mr. Justice CAVE made the order asked for, and refused to grant a stay of execution.

THE law as to heirlooms is not a law which immediately affects a very large section of the community; but, indirectly, it is a subject of considerable interest, now that there is a tendency to acquire for public exhibition so many private collections of great value. Hence the excellent uses to which sect. 37 of the Settled Land Act 1887 may sometimes be put, as in the case of The Earl of Radnor's Trusts (noted ante, p. 253). Under the above section the present earl, as tenant for life, applied to the court for leave to sell three pictures forming part of the celebrated collection at Longford Castle for the sum of £55,000. The earl's eldest son (the next tenant for life) supported the application; but the sale was opposed by his Lordship's brothers and by Lord PENZANCE, the sole surviving trustee under the will of the late Lord RADNOR Notwithstanding this opposition, Mr. Justice CHITTY seems to have felt no difficulty in coming to a decision that the sale might properly take place. His Lordship's judgment has been affirmed by the Court of Appeal, and in discussing the circumstances of the case especial clearness of expression was used by Lord Justice LINDLEY. In his Lordship's view two questions arose: (1) What was the duty of the tenant for life, and what limit is set to his power? (2) What is the function of the court? Answering the first of these questions, the Lord Justice explained that the tenant for life must bona fide exercise his power for the purpose for which it is conferred, having regard not to his own interests only, but also to those of all persons having rights under the settlement. The tenant for life is in the position of a trustee with this difference, that he is under no absolute trust to preserve or sell the heirlooms. If, in the exercise of his discretion, he desires to sell, he, like any ordinary trustee, must do so with due regard to the interests of others. But Lord Justice LINDLEY was explicit in pointing out that the views or objections of persons whose interests are remote will be entitled to but little weight. The court, too, possesses a discretion, and that discretion his Lordship declined to fetter by laying down anything like a hard-and-fast line in answer to the second question with which his judgment opened. What the court has to do is to be satisfied that, in any particular case, the proposed sale is reasonable and proper. În Lord RADNOR'S case the reasonableness of the proposed sale was abundantly made out.

INNKEEPERS and hotel-keepers will have reason to be well satisfied with the decision of Lord Justice LOPES on the 9th of Aug. in the case of Gordon and Hollands v. Silber and another, in which a novel point, and one of very great importance on the subject of an innkeeper's lien upon the goods of his guest, was decided in favour of the innkeeper. The question arose for the first time, how far an innkeeper has a lien on the luggage and goods which are the separate property of a married woman who comes to and stays at his inn accompanied by her husband; and it is evident that such a question could only have arisen since the Married Women's Property Acts. The husband had been staying at the hotel for some time alone, and had incurred expenses which he had paid; he was then joined by his wife, who came to the hotel with a large quantity of luggage, which it was admitted was her separate property. The husband and wife occupied the same rooms, and they remained at the hotel together for some time, the husband leaving some days before the wife. The husband having become insolvent, it was songht to render the goods of the wife liable for the balance of the hotel bill incurred by husband and wife. A claim made to render the wife directly liable, on the ground that she had contracted as to her expenses at the hotel in reference to her separate estate, failed, as, in the opinion of the learned judge, the evidence failed to show that she had so contracted as to bind her separate estate. The plaintiffs then relied on their lien as innkeepers. Now, it is a well-recognised principle that by common law every innkeeper is under an obligation to receive every guest who comes to his inn, provided there be sufficient room in the inn; he is also under the common law liability of keeping safely and securely the goods and luggage of every guest, and, as Lord Justice LOPES said, it is only fair to give him rights co-extensive or commensurate with these lia bilities to receive his guest and keep his goods safely and securely, and the learned Lord Justice held, in accordance with this principle, that, as the guests received were the husband and the wife, and as all the goods received by the hotel-keeper were received by him as the goods of the husband and the wife, and that as he was responsible for all the goods so received by him, whether they belonged to the husband or the wife, his right of lien was co-extensive with these liabilities, and extended to all the goods which had been brought by his guests to the hotel, whether they were the separate property of the wife or not, inasmuch as such goods satisfied the condition laid down by Chief Justice WILDE in Smith v. Dearlove (6 C. B. 132), where he said, "The right of lien of an innkeeper depends upon the fact that the goods came into his possession in his character of innkeeper as belonging to a guest."

THE case of the American Braided Wire Company v. Thompson, unlike the generality of patent actions, has had a somewhat amusing history. In 1886 the United Horse Shoe and Nail

acts.

•

It

Company (3 P. O. R. 139), an action for the infringement of a patent for the manufacture of horseshoe nails, was tried in the Scotch Court of Session, before Lord KINNEAR. The alleged infringement was proved, and the sole question that remained for settlement was the measure of damages. appears that the plaintiffs, upon becoming aware of the infringement, reduced the prices of their nails; and it was contended that the loss occasioned by such reduction might be recovered against the defendants. The Scotch Lord Ordinary rejected this claim upon, and solely upon (cf. 3 P. O. R. at p. 144), the ground that the fall in prices was not proved to have been the result of the defendants' act alone. The judgment of Lord KINNEAR — reversed by the First Division of the Inner House (4 P. O. R. 130)-was triumphantly restored by the House of Lords (13 App. Cas. 401), and the language of Lord MACNAGHTEN clearly shows that he agreed with Lord KINNEAR as to the ratio decidendi. "The loss,' said his Lordship (ubi sup., at p. 416), "must be the natural and direct consequence of the respondents' I think the claim for loss of profit by reason of the reduction of price must be rejected. In lowering their prices, the appellants seem to me to have been prompted by a desire to provide for the contingency of their failing in the action, and by an anxiety to drive their rivals from the field, whether they were right or wrong.' But even the accomplished staff of the Council of Law Reporting are not infallible; and the United Horse Shoe and Nail Company v. Stewart took its place among the appeal cases, with the following head-note, which is misleading, if not indeed (as we venture to think) inaccurate : "The fact that the pursuers had in consequence of the unlawful competition of the defenders reduced the price of nails which they had themselves sold, did not entitle them to recover additional damages in respect of the reduction in the profits of such sales." In the beginning of the present year the American Braided Wire Company v. Thompson (1890. 7 P. O. R. 47), an action for the infringement of a patent for bustles or dress improvers, was tried before Mr. Justice KEKEWICH. Between the English case and its Scotch predecessor there was one cardinal difference, viz., that in the former case the fall in prices was, while in the latter it was not, proved to be the direct result of the defendants' conduct. Mr. Justice KEKEWICH, however, bowing to what he assumed to be the ruling of Lord MACNAGHTEN, and expressly withholding his own opinion, negatived the plaintiffs' claim to recover loss incurred by a reduction of prices to which the defendants' infringement had impelled them. This decision, which seems to derive little warrant from the language of Lord MACNAGHTEN, the Court of Appeal have now unanimously reversed; and the United Horse Shoe and Nail Company v. Stewart has at length been satisfactorily distinguished." It may be permissible to suggest that the episode might without impropriety be described as “the story of an erroneous head-note.”

THE case of Allen v. Oakey (62 L. T. Rep. N. S. 724) may be a warning to practitioners who move in court for judgment instead of proceeding by summons in chambers, though they may be entitled to do so, as they may have to pay for their privilege. The defendants had offered certain terms, which the plaintiff accepted. The latter sent to the defendants minutes embodying the terms, and intimated that he would set down the action on motion for judgment as a short cause. The defendants' solicitors replied that they wished the matter concluded by the cheaper method of a summons, and that they reserved to themselves the right to use this letter with respect to any extra costs. In spite of that letter, the plaintiff set down the action as a short cause, and moved for judgment, whereupon the defendants' counsel objected to the extra costs. On behalf of the plaintiff it was urged that Mr. Justice KAY, in a considered judgment, had held in Cook v. Heynes that the plaintiff was entitled in such a case to move for judgment in court (uoted in 76 L. T. 373; W. N. 1884, p. 75). In that case the application for judgment on admissions in the pleadings had been by summons, in deference to the decisions of Mr. Justice MATHEW in Padgett v. Binns (76 L. T. 207; W. N. 1884, p. 10), and of Mr. Justice PEARSON in Gough v. Heatley (49 L. T. Rep. N. S. 772). Mr. Justice MATHEW pointed out that the words providing that the application might be made to the court "or a judge" implied that it might be by summons. Mr. Justice PEARSON was stated in the case before Mr. Justice KAY to have refused to follow his own decision on another occasion, and the last-named judge held that as a rule the application should be by motion in court, but that there might be exceptional cases, where it would be very important to save expense, and then the judgment would be obtainable by summons. The defendants relied on the London Steam Dyeing Company v. Digby (58 L. T. Rep. N. S. 724), where the defendants offered to submit to a perpetual injunction, be obtained on summons issued for that purpose; and they insiet that that is the only relief to which the plaintiffs are in any event entitled, and that the plaintiffs ought, if in the result they fail to get any further or other relief, to pay all the costs of the action incurred after the date of the delivery of the defence." Mr. Justice NORTH said that he considered that where a

66 to

defendant appeared and consented to a perpetual injunction in chambers, he was as much bound thereby as if it had been obtained by an adverse order in court, and he only allowed the plaintiffs such costs as would have been incurred by an application in chambers. His Lordship, however, refused to make the plaintiffs pay the extra costs occasioned to the defendants by the proceedings in court, as the plaintiffs had some show of authority for the course they took, having regard to Cook v. Heynes, and as the defendants might themselves have taken out a summons in chambers after notice of motion had been served on them. In Allen v. Oakey the same learned judge held that the effect of the defendants' letter was the same as the words in the statement of defence in the other case, and so the plaintiff could be allowed only such costs as would have been incurred if he had obtained the order on a summons in chambers.

It is strange that until the recent case of Kirkland v. Briancourt, heard before Mr. Justice DAY on the 18th July, it has rever been definitely decided that a distress for rent is a waiver of a forfeiture caused by the default of the tenant. In the agreement under which the tenancy existed, there was the usual clause for re-entry if the rent should be for twenty-one days in arrear. Rent became due on the 25th Dec., and at the end of January a distress was put in, and in the beginning of February-that is, after the date of the distress-an action was brought by the landlord for the balance of the rent due, and for possession of the premises. The question then arose whether the landlord by distraining had not thereby treated the tenancy as still subsisting, and thereby also waived his right to take advantage of the preIn vious forfeiture caused by the nonpayment of the rent. dealing with this question it may be observed that the statute 8 Anne, c. 14, ss. 6 and 7, has an important bearing on the point. Sect. 6, after reciting that "whereas after the determination of leases no distress can by law be made for any arrears of rent that grew due on such respective leases before the determination thereof," goes on to give the lessor who has any rent in arrear on any lease for lives, or for years or at will, power to distrain after the determination of such leases; then sect. 7 limits the right so to distrain to six months after the determination of the tenancy. Now, in the leading case on the subject, the case of Grimwood v. Moss (27 L. T. Rep. N. S. 268; L. Rep. 7 C. P. 360), a similar question arose, but, as it became unnecessary to decide it, the question was left open, and so remained down to the present time, though in the case of Grimwood v. Moss (ubi sup.) an opinion was expressed by Mr. Justice WILLES that the statute of Anne only applies to the case of the determination of a tenancy in the ordinary course, and not by a forfeiture. In that case of Grimwood v. Moss (ubi sup.), breaches of covenant entitling the lessor to re-enter had taken place on the 24th June 1871, an ejectment was brought on the 21st July, and after this action of ejectment, but before trial, a distress for rent due on the 24th June was put in, and there the Court of Common Pleas held that, as the action of ejectment was brought before the distress was put in, and before any act was done by the lessor to waive the forfeiture, the fact of his bringing the ejectment was an unequivocal assertion on his part that he wished to take advantage of the forfeiture, and treat the tenancy as at an end; that the tenancy was in fact at an end when the action of ejectment was brought; and that the subsequent distress for the rent due on the 24th June, if not justifiable under the statute of Anne, was a trespass. So that the case of Grimwood v. Moss was an authority for the proposition that, if an ejectment be brought on a forfeiture of a lease, a subsequent distress for the rent due at the time of the forfeiture is no waiver of the forfeiture. The present is rather the converse case as to what is the effect on the forfeiture when the distress is made, not after action brought as in Grimwood v. Moss, but before the action of ejectmert is brought. Mr. Justice DAY held, in accordance with the view expressed in Grimwood v. Moss (ubi sup.), that the statute of Anne did not apply to the case of a forfeiture of the tenancy; so that the lessor in distraining thereby affirmed the existence of the tenancy at the time of the distress, and that amounted to a waiver of the forfeiture, so that the action was not maintainable so far as the recovery of the premises was concerned.

A POINT of considerable importance to conveyancers came before Mr. Justice CHITTY in the case of Re Anderton and Milner's Contract, noted by us (ante, p. 273). A contract had been entered into in Feb. 1890, for a grant of a lease of certain houses, in consideration of £230, for a term of seventy years, at an annual rent of £12 128., the lease to contain the usual and proper covenants "to insure from loss by fire, repair, and pay rent and all outgoings that may be charged on the property and ground.'" A dispute having arisen between the parties, as to the form of, and the covenants in, the draft lease, the matter was brought before Mr. Justice CHITTY, on a summons under the Vendor and Purchaser Act 1874. It was assumed that the court had jurisdiction to deal with the matter under that statute, the contract being practically for a purchase of the lease. The draft was then referred to one of the conveyancing counsel of the court to be

settled. The principal clause upon which the lessor and lessee differed was the proviso for re-entry-whether or not it ought to be confined to nonpayment of rent. The conveyancing counsel adopted the view of the lessor, that, having regard to the law as altered by sect. 14 of the Conveyancing Act 1881, there ought to be a right of re-entry in case of breach of any of the covenants and agreements contained in the lease. Accordingly, he submitted that view to the court, citing Hodgkinson v. Crowe (33 L. T. Rep. N. S. 388; L. Rep. 10 Ch. App. 622); and Bennett v. Womack (7 B. & C. 627). The former case was decided by Lords Justices JAMES and MELLISH in 1875. There it was held that, under an agreement for a lease to contain all usual and customary mining clauses, the lessor was not entitled to any proviso for re-entry other than on nonpayment of rent, such a proviso not being usual for breach of covenants generally. At the date of that decision the effect of a general proviso on leases was severe. No relief against re-entry for breach of covenant in a lease could be obtained except in the case of a covenant for payment of rent, or in cases of accident or surprise, or in any special circumstances where a court of equity could grant relief. Owing to the remedial provisions of the Conveyancing Act 1881, however, lessees can, as the conveyancing counsel pointed out, now, both at law and in equity, be relieved in case of breach of all such covenants as were contained in the draft lease in the present case. Nevertheless, Mr. Justice CHITTY was unable to agree His with the opinion expressed by the conveyancing counsel. Lordship thought that the proviso for re-entry must be limited to nonpayment of rent, the old practice not being to make such a proviso applicable to the breach of other covenants, and no new practice having sprung up since the Conveyancing Act 1881. The change of law, the learned judge remarked, had up to this time made no difference in the practice, and he held that the lessor was not entitled to the insertion of the unlimited proviso. This view, we are inclined to think, was the right one, bearing in mind the provisions of the contract. The proviso for re-entry, as drawn, appeared to be neither usual, nor warranted by the contract. According to Davidson's Precedents (3rd edit., vol. 5, p. 51), the result of the authorities is, that the only covenants on which the lessor can insist as "usual covenants," are covenants to pay rent and taxes, and to repair, and to allow the lessor to enter and view the state of repair, with a proviso for re-entry on breach of covenant to pay rent: (see Hampshire v. Wickens, 38 L. T. Rep. N. S. 408; 7 Ch. Div. 555, 561.) Moreover, sub-sect. 3 of sect. 7 of the Settled Land Act 1882 merely requires that leases under that statute shall contain a condition of re-entry on nonpayment of rent a provision similar to that which appeared in sect. 46 of the Settled Estates Act 1877-showing that the Legislature in 1882 did not consider that the enactment of 1881 ought to make any change in the practice relating to this point. Mr. Justice CHITTY, whilst admitting the ingenuity of the convey. ancing counsel's suggestion, did not regard it as sound; and in this opinion we feel bound to concur.

A DEBENTURE IS NOT A BILL OF SALE. WE lately made a short reference to the very important decision at which Lord Coleridge, C.J. and Wills, J. have arrived in Reid v. Joannon (89 L. T. 196; 25 Q. B. Div. 300). The question whether or not a company's debenture is a bill of sale is one which has given much trouble to the Profession for the last seven years. The opinion generally received has been that a debenture is not a bill of sale within the Act of 1882, but that it is a bill of sale within the Act of 1878. Now, however, we have a distinct judgment of the Queen's Bench Division which says in unequivocal terms that the Act of 1878 does not apply to a debenture of an incorporated company. Even if it did, the effect of the Act of 1882 would render it unnecessary that such a debenture should be registered as a bill of sale. Having arrived at this clear conclusion, which can only be upset by the Court of Appeal or the House of Lords, it is worth while to review the history of the question if only to see how much trouble and expense have been caused by the draftmanship of the Act of 1882.

Let us turn first to the two Acts themselves, putting out of sight the many decisions with which they are loaded. These have increased to such an extent as to make Lord Coleridge wish, with Lord Westbury, that there were no cases. First, by sect. 8 of the Act of 1878 (41 & 42 Vict. c. 31) every bill of sale to which that Act applies is to be registered. Then, by sect. 15 of the Act of 1882 (45 & 46 Vict. c. 43), sect. 8 of the Act of 1878 is in terms repealed. Sect. 17 of the Act of 1882 goes on with the words which have now become so familiar: "Nothing in this Act shall apply to any debentures issued by any mortgage, loan, or other incorporated company, and secured upon the capital, stock, or goods, chattels, and effects of such company.' The only other section to which we need refer is sect. 3 of the Act of 1882; by this the Act of 1878 is referred to as the principal Act, and the Act of 1882 is, so far as is consistent with the tenor thereof, to be considered as one with the principal Act.

Now there is authority for saying that one set of bills, namely, those by way of security, are regulated by the Act of 1882, while the other set of bills, namely, those by way of absolute transfer, are still regulated by the Act of 1878: (see Swift v. Pannell, 24 Ch. Div. 210, and Casson v. Churchley, 51 L. T. Rep. N. S. 568; 53 L. J. 335, Q. B.) This being so, it has been considered probable that the Act of 1878 governing bills of

sale which are by way of absolute transfer, governs the debentures of a company and requires them to be registered. If they are not registered the security is, it has been thought, avoided as against execution creditors, and also as against persons claiming under any duly registered bill of sale, even though subsequently given, and even with notice of the deben. ture charge (Edwards v. Edwards, 34 L. T. Rep. N. S. 472; 2 Ch. Div. 291; Connelly v. Steer, 45 L. T. Rep. N. S. 402; 7 Q. B. Div. 520.) But of course, non-registration or non-compliance with the provisions of the Act of 1878 could not possibly invalidate the instrument as against the company, nor as against the liquidator. This view is, however, to be disregarded if the decision in Reid v. Joannon is right.

:

Let us now shortly review the decisions upon sect. 17 of the Act of 1882. The first was a decision given by Lord Field sitting in chambers to decide points of practice under the rules of 1883: (Brocklehurst v. Railway Printing and Publishing Company, W. N. 1884, p. 70.) There the company assigned all their plant, machinery, stock-in-trade, &c., to a trustee for the debenture-holders, and the assignment was registered as a bill of sale. The judge held that it was not a debenture within sect. 17, and was clearly a bill of sale, and therefore void for non-compliance with the Act. The next case was one of much more importance: (Ross v. Army and Navy Hotel Company, 55 L. T. Rep. N. S. 472; 34 Ch. Div. 43.) There debentures were issued by a company under its common seal with & condition annexed that the holders of debenture bonds of that issue were entitled to the benefit of a covering deed whereby the property of the company was vested in trustees to secure the payment of all moneys payable on the debenture bonds. The covering deed purported to be a conveyance and an assignment of the land and personalty of the com pany, but was not registered under the Act of 1882. After a time the directors, seeing the decision of Lord Field, caused a new debenture to be issued, which was stated to be supplemental to the original bond of the holder to whom it was given, and purported to charge in favour of the holder the undertaking of the company and all its property, both real and personal, both present and future. Mr. Justice Kay held, and the Court of Appeal agreed, that, assuming the covering deed to be void for want of registration under the Bills of Sale Acts, the intention to give the debenture-holders a valid charge within the meaning of sect. 17 on the property comprised in the covering deed, was manifest on the face of the debentures, read in conjunction with the annexed condition, and amounted to an equitable contract, which would be carried into effect to give & charge upon all the property of the company; and accordingly that the chattels intended to be charged with the money due on the original debentures, were subject to an equitable charge in favour of the holders of these debentures. Further, the supplemental debentures which were issued as part of, and in order to correct a supposed defect in the original issue, were held not to create a charge upon any property of the company which was not comprised in the original debentures. It will be observed that this was a case between grantor and grantee, and consequently sect. 17 applied. Mr. Justice Kay said obiter that sect. 17 did not apply to the Act of 1878. This decision was given in Aug. 1886. The next case in order of date was that of Edmunds v. Blaina Furnaces Company (57 L. T. Rep. N. S. 139; 36 Ch. Div. 215.) There was a memorandum of agreement between the company of the one part and the nine scheduled lenders of the other part, whereby the company cove nanted to pay on a day named to each of the lenders the sum advanced by him, with interest, and, as security for the payment thereof, charged therewith all its undertaking, property, estate, and effects of every kind. Mr. Justice Chitty held this to be a debenture in the ordinary accepta tion of the term, and therefore within sect. 17. In this case, as in that which arose three months later (Levy v. Abercorris Slate and Slab Com pany, 58 L. T. Rep. N. S. 218; 37 Ch. Div. 260), Mr. Justice Chitty held debentures of companies which were not mortgage or loan companies to be within the operation of sect. 17. These two cases were "observed upon by Mr. Justice North in Dec. 1887 (Topham v. Greenside Glazed Fire Brick Company, 37 Ch. Div. 281). There the company gave a memorandum with a deposit of title deeds to secure their current account with their bankers, undertaking to execute a proper mortgage when required. The memorandum did not contain any acknowledgment of any specific debt, nor any covenant or agreement by the company for payment, except so far as the same was implied in the ageement to execute & legal mortgage of the property. Mr. Justice North inclined to the view that the memorandum was not a debenture within the meaning of sect. 17, and decided that the company's assignment of their trade machinery did not require registration as a bill of sale.

We have advisedly omitted to notice in its chronological order the case which occurred in August 1887 of Jenkinson v. Brandley Mining Company (19 Q. B. Div. 568.) This case has been considerably shaken by the recent decision in Reid v. Joannon, and it can hardly be

called consistent with the latest decision.

There debentures were issued by a limited company in the form of bonds, by which the company covenanted to pay to bearer the principal and interest, each debenture con taining a clause that the repayment was secured by an indenture of mortgage made between the company and certain trustees for the debenture-holders. The mortgage deed was not identified in the debentures by its date or by any further particulars of its contents; and the debentures themselves did not affect to pass any of the company's property to the holder. The deed itself, which was of even date with the deben tures, was an ordinary deed of mortgage, purporting to convey all the land, plant, machinery, and fixtures of the company to the mortgagees. It contained no trust for the benefit of the debenture-holders, and it was not registered as a bill of sale. The chattels of the company were seized in execution under a judgment, and then a claim was made to them by a holder of the debentures. Mr. Justice Grove and Baron Huddleston decided that, the mortgage deed being void for want of regis tration under the Bills of Sale Acts, the debentures created no charge enforceable by the holder against a bona fide execution creditor. Mr. Justice Grove expressed an opinion that the exception in sect. 17 is not

issued

by any mortgage, loau, or other incorporated company," which, according to the ordinary rule of interpretation, would mean any incorporated company ejusdem generis with mortgage and loan companies.

From this last dictum the judges in Reid v. Joannon expressly dissented, and it will have been observed that, in the two cases above eited, Mr. Justice Chitty treated the section as applying to debentures of incorporated companies generally. The facts in Reid v. Joannon were very short and simple. It was an interpleader issue from the City of London Court. The defendant in the issue had recovered judgment against a company called the Cigarette Supply Company Limited and incorporated under the Companies Acts. The sheriff having sold certain goods of the company in execution of the judgment, the plaintiff in the issue claimed the proceeds of the sale as being the holder of a debenture of the company for £1500, which debenture was expressed to charge by way of floating security the undertaking and all real and personal property then or at any time thereafter belonging to the company. The debenture was not registered as a bill of sale. The judge of the City of London Court held that the debenture was void as against the defendant for want of registration. The plaintiff appealed and was successful. Lord Chief Justice Coleridge asked in vain for a case or dictum which said in terms that debentures of incorporated companies were bills of sale requiring registration under the Act of 1878. No such case was produced, and no case can be produced, in which it has ever been held that a debenture of an incorporated company-a perfectly well-known instrument was a bill of sale within the Act of 1878. Therefore, even if the Acts of 1878 and 1882 are to be read separately, still the earlier Act has no application to debentures. Lord Coleridge went further and said that, even if debentures had originally been within the operation of the Act of 1878, sect. 17 of the Act 1882 is quite sufficient to take them out of that operation, because sect. 3 requires that the two Acts shall, so far as is consistent, be construed as one Act; so that the words of sect. 17" nothing in this Act" really mean that " nothing in this Act or in the principal Act" shall apply to debentures. It cannot be said that the judges in Reid v. Joannon had not the courage of their opinions. They have gone athwart the recognised view which has believed debentures to be within the Act of 1878 though not within the Act of 1882, and they have decided outright that the responsible advisers of a debenture issue need not trouble their heads about the Bills of Sale Acts at all. If only this view is upheld when the question comes into a Superior Court, a great stumbling-block will have been removed from the path of those concerned in issuing debentures.

THE DOCTRINE OF "SPECIAL LEAVE" IN PRIVY COUNCIL PRACTICE.

APPEALS from colonial courts of law to the Judicial Committee of the Privy Council are either of right or by "special leave." The conditions on which appeals may be brought as a matter of right are prescribed sometimes by charters of justice, sometimes by Colonial Acts, sometimes by Royal instructions, most frequently by Orders in Council. But the circumstances under which the Judicial Committee will "humbly advise Her Majesty to grant "special leave" to appeal to a petitioner, who from inability to comply with the requisite conditions cannot appeal as of right, have not received any statutory or formal enumeration. The present paper is an attempt to enunciate and illustrate the doctrine of "special leave" in the form in which it is now applied by the Judicial Committee: (cf. "Conditions of Appeal from the Colonies." Stevens and Sons. 1888.)

1. It is the inherent prerogative right, and on proper occasions the duty, of the Sovereign in Council to exercise an appellate jurisdiction in all colonial cases, civil as well as criminal. The following authorities may be consulted: Attorney-General of New South Wales v. Bertrand (L. Rep. 1 P. C. 520); Reg. v. Joykissen Mookerjee (1 Moo. P. C. N. S. 272); Knapp P. C. Reports, 1829-36, vol. ii., Appendix, p. iv.; Re Lord Bishop of Natal (12 L. T. Rep. N. S., at p. 193; 3 Moo. P. C. N. S. 156); Forsyth's Cases and Opinions, pp. 378-9; Falkland Islands Company v. The Queen (9 L. T. Rep. N. S. 103; 1 Moo. P. C. N. S. 312).

Christian v. Corren (1 P. Wms. 329; 5 Moo. P. C. 302) is a case in point. The Earl of Derby, to whose ancestors Henry IV. had granted the Isle of Man, without reservation of the subject's right of appeal to the Crown, made a decree in that island affecting lands. The person against whom the decree was made appealed to the Privy Council. The appeal was upheld. This case was overruled in Reg. v. Alloo Paroo (3 Moo. Ind. App. 488); but the general principle underlying it, that, in the absence of restriction or abandonment, any colonial subject may appeal to the Sovereign, is untouched.

2. The prerogative right, above mentioned, may be abandoned altogether, or restricted, by the Crown, with the sanction of the Legislature. Such abandonment or restriction may be either express or (semble) implied.

Illustrations.-(1) The Canada Act (31 Geo. 3, c. 31) provided that the Colonial Court of Appeal should be subjected to such regulations in regard to appeals as might be made by any Act of the Colonial Legislature. An Act passed limiting the right of appeal to cases where the sum in dispute was not less than £500 sterling. Leave to appeal in a cause where a less sum was at stake was refused, although 31 Geo. 3, c. 31, reserved the prerogative of the Crown: (Cuvillier v. Aylwin, 2 Knapp, 72.) (2) In the Charter of Justice of Gibraltar power is given to appeal, under certain regulations and restrictions, from any final judgment of the Supreme Court to the Sovereign in Council. A further provision reserves the right of the Crown to entertain appeals from any judgment upon such other terms as should seem fit. No appeal except from a final judgment is given by this latter provision: (Re Nahon and Pariente, 2 Knapp, 66.) These cases seem to show that the prerogative right of the Crown may be

abandoned or restricted by implication, but see Cushing v. Dupuy (5 App. Cas., at p. 417).

3. The Queen in Council may, in the exercise of her general jurisdiction, and in the absence of any charter, statutory, or other formal right, grant special leave to appeal in civil cases of substantial, general, or constitutional importance, where the judgment appealed against was plainly wrong or attended with sufficient doubt to justify the Judicial Committee in recommending that it should be reviewed.

no more.

Illustrations.-(1) The High Court of Judicature for the N. W. P. of India ordered an infant to be taken from the custody of her mother, a Mohammedan, on the ground that the minor's deceased father had been a professed Christian, and that her mother, who, as the court held, was living in adultery, was inducing her daughter to adopt the faith and habits of a Mohammedan: (Re Skinner, 1870, L. Rep. 3 P. C. 451.) (2) A question was raised involving the right of the Legislature of Victoria to commit for contempt and breach of the privilege of that Assembly under the general warrant of the Speaker: (Speaker of the Legislative Assembly of Victoria v. Glass, 1871, L. Rep. 3 P. C. 561.) (3) The Supreme Court of the Straits Settlements refused leave to appeal to the Queen in Council, on the ground that it did not possess the power to grant such leave: (Neo v. Neo, 1873, L. Rep. 5 P. C. 89.) In each of these three cases special leave to appeal was granted. In the following cases it was refused: (1) A suit involved a question as to a sum of about £1000, and No grave point of law or of public interest carrying with it any after consequences depended on its decision, nor was it clear that beyond the litigants any parties were interested in it: (Prince v. Gagnon, 1883; 8 App. Cas. 102; cf. also Valin v. Langlois, 1879, 5 App. Cas. 115; Canada Central Railway Company v. Murray, 1883; 8 App. Cas. 574.) (2) A claim was resisted not on its merits, but on the ground of a mere formal defect of procedure on the part of the claimant : (Ex parte Kennington, 8 Jur. N. S. 1111.) (3) A judgment of the Supreme Court of Canada exempted the Seminary of St. Sulpice from the payment of 361 dolls., being the proportion charged upon it by the Corporation of the City of Montreal of a special assessment made by them for the cost of constructing a main drain which runs in front of its premises. Special leave to appeal was asked on the ground that the effect of the judgment would be to determine the future liability of all charitable institutions for local improvements carried out in their interest. The Judicial Committee, however, held that the decision of the court below, viz., that no such general question was raised, was plainly right, and accordingly dismissed the petition: (La Cité de Montreal v. Les Ecclesiastiques du Seminaire de S. Sulpice, 14 App. Cas. 660; Jurid. Rev. vol. i., p. 431, 1889.)

4. The Queen in Council will not review or interfere with the course of criminal proceedings in the colonies unless it appears that by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, grave and substantial injustice has been done.

The cases from which this proposition is extracted are clear and selfconsistent.

Illustrations-Special leave granted.—(1) A. M. D., a solicitor of the Supreme Court of British Honduras, was convicted of perjury after a most improper and unfair charge to the jury by the Chief Justice of the Colony, and was sentenced to six months' imprisonment, which he underwent. He was thereafter struck off the rolls of the court in respect of the said conviction. A. M. D. obtained leave to appeal to the extent of showing that the conviction was so improperly obtained that it ought not to be conclusive for the purpose of striking his name off the rolls: (Re A. M. Dilett, 1887, 12 App. Cas. 459.) It should be noted here that the Judicial Committee will not entertain an appeal from an order by a colonial Court of Record inflicting a fine for contempt of court (Rainy v. The Justices of Sierra Leone, 8 Moo. P. C. 47), if it appear upon the face of the order that the party has committed a contempt, that he has been duly summoned, and that the punishment awarded was of an appropriate character: (cf. Smith v. Justices of Sierra Leone, 3 Moo. P. C. 361; Re Stewart, I. Rep. 2 P. C. 88; Re Wallace, L. Rep. 1 P. C. 283; Re Macdermott, L. Rep. 1 P. C. 260; Macdermott v. Judges of British Guiana, L. Rep. 2 P. C. 341; Re Pollard, L. Rep. 2 P. C. 106.) (2) In The Falkland Islands Company v. The Queen (1 Moo. P. C. N. S. 312) the decision-a summary conviction for penalties for killing animals feræ naturæ-involved the right of the Falkland Islands Company to hunt and take wild cattle upon grazing stations and the lands attached thereto. The ordinance under which the conviction was made granted no appeal. But the Judicial Committee advised Her Majesty to grant an appeal in analogy to proceedings by certiorari in England, on the understanding that the question of title and right would appear on the face of the record, which was ordered to be brought up. (3) In Reece v. The Queen (1889, Jurid. Rev., vol. 1, p. 431) the appellant, who was the owner of a palm-oil factory on the river Benin, West Africa, was convicted in the Consular Court of having unlawfully wounded certain natives, from whom he was attempting to recover debts due to him, and was sentenced (inter alia) to deportation from the consular district of Benin for ten years. The West Africa Order 1885, under which Reece was tried, provided that no sentence of deportation should be passed unless and until the accused had received the option of finding, and had failed to find, security for future good behaviour. No such option was offered to Reece. The Judicial Committee quashed the part of the judgment appealed against.

Special leave refused.-(1) Special leave to appeal from a conviction for libel by a colonial court having been given, subject to the question of the jurisdiction of Her Majesty to admit such an appeal, it appeared that, since such qualified leave had been obtained, the prisoner had been granted a free pardon. The Judicial Committee thereupon declined to enter upon the merits of the case, or to pronounce an opinion upon the legal objections to the conviction, the prisoner having already obtained all the substantial if not the technical benefit which could be conferred by

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a successful appeal: (Levien v. The Queen, 1867, L. Rep. 1 P. C. 536.) (2) A prisoner was tried before a Canadian magistrate and a jury of six for high treason, and was sentenced to death. The sentence was confirmed by the Court of Queen's Bench in Manitoba. The prisoner applied for special leave to appeal to the Privy Council on the grounds that the stipendiary magistrate had no jurisdiction, and that even if he had jurisdiction there were irregularities in the proceedings which vitiated the trial; e.g., no previous inquest, no indictment preferred by a grand jury, notes of the evidence not taken or required by the statute. Those points had been fully considered by the Court of Queen's Bench in Manitoba; and a defence of insanity, set up for the prisoner at the trial, had been rejected by the jury. Special leave to appeal was refused: (Riel v. The Queen, 10 App. Cas. 675; of. Dinizulu Ka Cetywayo v. The Attorney-General of Zululand, 1889, Jurid. Rev. vol i. p. 431.)

ASSIGNMENT OF LEASEHOLDS TO A MAN OF STRAW.

WHERE there are two innocent parties, and one must suffer, it is but natural that each should wish that the other should be that one. For instance, when a lessee, who has sub-demised the property, becomes bankrupt, either the landlord or the sub-lessee may suffer. In Re A. Smith; Ex parte Hepburn and others (ante, p. 219), H., a mortgagee by sub-demise, assigned to A., a person of no substantial means, all his interest in the property in trust for himself. The mortgagor became bankrupt, and his trustee in bankruptcy disclaimed the lease under sect. 55 of the Bankruptcy Act 1883. The 6th sub-section of that section provides that, "where the property disclaimed is of a leasehold nature, the court shall not make a vesting order in favour of any person claiming under the bankrupt, whether as underlessee or as mortgagee by demise, except upon the terms of making such person subject to the same liabilities and obligations as the bankrupt was subject to under the lease in respect of the property at the date when the bankruptcy petition was filed, and any mortgagee or underlessee declining to accept a vesting order upon such terms shall be excluded from all interest in and security upon the property." The landlord applied to the court, and obtained from Mr. Justice Cave an order that H. and A. should be so excluded, unless H. should apply for and take an order vesting the property in him with the liabilities to which the bankrupt had been subject. It was clear that the assignment to A. was a mere sham, and that H. desired the property to be vested in A. in order to avoid liabilities under the lease. The Court of Appeal affirmed Mr. Justice Cave's decision, holding that they ought to disregard the assignment to A., as it was a sham.

According to the modern practice, a mortgagee of leaseholds takes his security by way of underlease so as to avoid those liabilities, and the mortgagor declares himself a trustee of the outstanding day or days for the mortgagee, and appoints the latter irrevocably his attorney for the purpose of getting in that day or those days. Though by those means the mortgagee shields himself from liability during the mortgagor's solvency, still should the mortgagor become bankrupt, he must submit to being put into the same position as he would have been in, if his mortgage had been by assignment instead of underlease. This is surely reasonable, as otherwise the landlord would be without a responsible tenant. The Act provides further that any person who is injured by the operation of the disclaimer may prove for the amount of the injury as if it were a debt in the bankruptcy. Although the assignment to A. was treated as a sham, and disregarded, it seems that there are cases in which an assignee may assign to a man of straw, and so destroy the landlord's rights. In Woodfall's Law of Landlord and Tenant, 14th edit., p. 274, it is stated that, "An assignee being liable to the original lessor or his assigns only in respect of privity of estate, may get rid of such liability by an assignment over, except as to previous breaches. Such an assignment may be made even to a pauper or to a person imprisoned for debt, but the assignee will continue liable upon any express Covenant entered into by him in the assignment to himself." A case, in which the landlord might well have considered himself aggrieved, in the year 1817 came before the Vice-Chancellor of England (Sir T. Plumer) under the name of Onslow v. Corrie (2 Madd. 330). The lessee in that case was made bankrupt, and his assignees, having had their offer of a surrender to the landlord refused by him, accepted the lease for the benefit of the bankrupt's estate. A few days after they assigned the lease to F., a prisoner for debt in Liverpool Gaol, who afterwards took the benefit of the Insolvent Debtors Act, and went abroad. The landlord brought this action against the assignees, and contended that the assignment to F. was a fraud. The assignment was held to be a bar at law to the action, but the landlord's counsel urged that he could obtain relief in equity. "Equity," said the Vice-Chancellor, "gives relief to a landlord for his rent in cases of assignment; first, where the assignment is merely colourable and fictitious, the possession remaining with the assignor; or, secondly, where though there be a real assignment, yet it has been made for the purpose of depriving the landlord of his legal remedies for rent due, or breaches of covenant incurred previous to the assignment." It was therefore held that the assignees in bankruptcy were not liable, as their assignment did not come under either of those heads. The Act then recently passed (49 Geo. 3, c. 121, s. 19) had exonerated bankrupts from all future liability for rent and on the covenants from the time when their assignees accepted the lease; and if the assignees would not make up their minds as to whether they would accept or not, the landlord could apply by petition to the Lord Chancellor for an order compelling them either to accept or to deliver up the lease and the possession of the premises. Hence the landlord, having no remedy against the bankrupt or his assignees, and the man of straw having nothing with which to pay, could not recover the arrears of rent in that suit. The law with regard to assignments by executors is, according to Williams on Executors, much the same, for on p. 1757 (8th edit.), note l., it is stated that, “although

the executor of the original lessee will be liable for breaches of covenant, incurred after an assignment by the testator or by himself, it is otherwise where the testator was the assignee of the lessee; for no action will he against him except in respect of breaches in his own time; and therefore, all future liability may be discharged by assignment over, even to a pauper: (Taylor v. Shum, 1 Bos. & Pul. 21.) And since such a course is quite justifiable, morally as well as legally, after an offer to surrender the lease to the landlord, the executor may be guilty of a devastavit in neglecting to adopt it": (Rowley v. Adams, 4 M. & Cr. 534.) In the case last cited, executors were ordered by the court to take such steps as were necessary to dispose of an onerous lease, so as to relieve the testator's estate from all claims and liabilities after the next quarter day. It appeared that the executors made efforts to obtain the consent of the landlord to a surrender, but that they were unsuccessful. The Lord Chancellor (Lord Cottenham) held that the executors were personally liable for not having used all due diligence in attempting to assign the lease, which was not worth the rent payable for it. His Lordship stated that, though to assign to a person unable to perform the covenant, for the purpose of injuring the landlord, or without giving him a fair opportunity of protecting himself, was highly improper, vet, if the landlord refused to accept a surrender, assignees would be quite justified in so securing themselves, doing as little damage to the landlord as possible, and as the assignees were trustees, they were bound to do it. No mention is made in the recital of the lease in that case of there being any covenant to indemnify the lessee in the assign. ment to the executor's testator. If there had been any such covenant, and nowadays there usually is, there would not have been any good in an assignment to a pauper, as the original lessee would have been liable, and if he had suffered, he would have called upon the executors or the legatees to indemnify him. But there is in such a case the possibility of the original lessee having become bankrupt with no assets, and then as the lessee had suffered nothing, the executors or legatees of the assignee could not be called on to indemnify him.

sale

DEFAULT OF DEFENCE.

ALTHOUGH it has been settled beyond all questioning that, where there is no defence, the plaintiff will generally obtain what he has asked by his pleadings, and no evidence will be required of the truth of his statements (Smith v. Buchan, 58 L. T. Rep. N. S. 710; W. N., 1888, p. 119), the case of Willis v. Willis (61 L. T. Rep. N. S. 610) shows that there is an exception even to this rule. Property had been devised in such a way that it belonged to several persons, some adults and some infants, and an action was commenced for a sale, in lieu of partition. One of the adults was made defeudant, and all the rest of the persons interested (including the infants) were plaintiffs. The statement of claim set out the title, and alleged that a sale would be more beneficial than a partition. The defendant admitted all those allegations in his statement of defence. Both plaintiffs and defendant asked for an immediate sale out of court. Mr. Justice Chitty, however, felt himself bound by the rule passed in Dec. 1888 (Order LI., r. 1a), which forbids a judge to order proceedings altogether out of court, unless he is satisfied from the evidence that all persons interested are before the court, or are bound by the order for and provides that " every order authorising the said proceedings altogether out of court shall be prefaced by a declara tion that the judge is so satisfied as aforesaid, and a statement of the evidence upon which such declaration is made," and ordered that the statement of claim be verified by an affidavit. In Senior v. Hereford (4 Ch. Div. 494), Vice-Chancellor Hall required an affidavit verifying the statement of claim in a partition action, where there was no statement of defence, but the defendant was an infant. However, in Ripley v. Sawyer (54 L. T. Rep. N. S. 294; 31 Ch. Div. 494), though there were infant defendants, Mr. Justice Pearson required no affidavit, but gave judgment for a partition on the statement of claim in default of pleading. "If I required an affidavit," said that learned judge, "you would be moving for judgment on your pleadings plus the affidavit." It would appear, then, as the result of these decisions, that at the present day the plaintiff need not verify his statement of claim, even though infants are parties, unless he asks for the proceedings to be conducted altogether out of court. Practitioners should remember that if the defendant does not appear to the writ, the plaintiff cannot take advantage of any claim that he may make in his statement of claim, unless he has made that claim in the writ: (Kingdon v. Kirk, 58 L. T. Rep. N. S. 383; 37 Ch. Div. 141.)

OCCASIONAL NOTES.

Mr. Abel Thomas, barrister, was returned unopposed as M.P. for East Carmarthen on Friday last week, and took his seat on Monday. Sir Charles Russell, Q.C., M.P., left town for Homburg last Saturday, where he intends staying during a portion of the Long Vacation. The Master of the Rolls, Lord Esher, who was born at Lenham, in Kent, on the 13th Aug. 1815, is seventy-five years of age this week. His Lordship is the oldest judge on the bench, having been appointed a justice of the Common Pleas in Aug. 1868.

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"C. E. M." writes to the Daily News on the 12th inst. to remind the public that the Long Vacation commences on that day and ends on the 23rd Oct., allowing a period sufficiently long to enable our judges to take their rest and holiday, whilst the courts are closed to the public. But," he adds, some of the judges evidently think that the Long Vacation is not long enough, and act accordingly, regardless of the Rules of Court. Certain of the Chancery judges closed their courts on Saturday last. Since that day not a single common law judge has been sitting for the trial of actions, and the six Lords Justices constituting the two Courts of Appeal have terminated their labours several days before they were