To Readers and Correspondents.

All communications must be authenticated by the name and address of the writer not necessarily for publication, but as a guarantee of good faith. Anonymous communications are invariably rejected.

All communications intended for the Editorial Department should, in order to prevent delay, be addressed to the "EDITOR OF THE LAW TIMES." Advertisements, orders for papers, &c., should be kept distinct, and addressed to the Publisher, Mr. HORACE Cox, "Law Times" Office, Windsor House, Bream's-buildings, E.C.

SUPREME COURT OF JUDICATURE. COURT OF APPEAL.

Re COSIER: HUMPHREYS r. GADSDEN.
-Settlement - Will Hotchpot
clause- Taken in or towards satis-
faction"-Rights to settled fund ....
Re AN ARBITRATION BETWEEN SPILLER
AND BAKER LIMITED r. LEETHAM
AND SONS. Arbitration- Special
case-Question of law-Order of
court to state case

Re WARD: Ex parte WARD.--Bank-
ruptcy-Retired officer of the army
-Half-pay or pension-Appropria-
tion to creditors
ELEY T. READ.-

Mortgage-SaleSurplus proceeds-Money in hands mortgagee - Interest

of first

31

35

37

ing from the fishery-Sea fisheries (Shell Fish) Regulation Act 1894 (57 & 58 Vict. c. 26), s. 1 OSBORN (app.) v. WOOD BROTHERS (resps.).-Justices-First offenceMitigation of penalty-Summary Jurisdiction Act 1879 (42 & 43 Vict. c. 49), ss. 4 and 51

LEADING ARTICLES; &c.

58

60

39

OCCASIONAL NOTES...

436

NOTES OF RECENT DECISIONS NOT YET REPORTED

HOLLOWAY (app.) v. COSTER (resp.).—
Vaccination-Notice-Service of-
Sufficiency of service-Vaccination
Act 1867 (30 & 31 Vict. c. 84), s. 31. 57
SOUTHCOMBE (app.) . THE GUARDIANS
OF THE YEOVIL UNION (resps.).—
Vaccination-Neglect to procure
vaccination-Justice signing sum-
THOMSON (аpp.) r. BURNS (resp.).-
Sea fisheries- Taking "-Remov-
Vol. CII.-No. 2815.

mons

58

448

449

Bibliographical Essay upon the Various Divisions and Sub-Divisions of the Law of England and the Statutes, Reports of Cases, and Text-Books containing such Law, with Appendices for Facilitating Reference to all Statutes and Reports of Cases, and with a full Index. By ERNEST ARTHUR JELF. M.A., of New College, Oxford, Barrister-at-Law of the Honourable Society of the Inner Temple, and of the South-Eastern Circuit.

HORACE COX, "Law Times" Office, Windsor House, Bream's-buildings, E.C.

The Law and the Lawyers.

THE visit this week of Lord HALSBURY to Ireland as the guest of Lord ASHBOURNE, the Irish Lord Chancellor, and the dinner and reception given in his honour at the King's Inns on Thursday, will render it of interest to recall the fact that the Lord Chancellor of England has Irish antecedents. His grandfather, Mr. JOHN GIFFARD, was Accountant-General of His Majesty's Customs in Dublin, and was a noted politician of the Union period. He was editor and proprietor of the Dublin Journal, a newspaper which was founded by FAULKNER, Dean SWIFT's publisher, and served the office of High Sheriff for the City of Dublin in 1794. The Lord Chancellor's uncle, Sir AMBROSE HARDINGE GIFFARD, was a practising barrister at the Irish Bar at the time of his promotion to the post of Chief Justice of Ceylon in 1819, and was, it may be worthy to record, a famous duellist in a somewhat fire-eating period. Sir AMBROSE GIFFARD'S house in Fitzwilliam-street, Dublin, had been previously the residence of Mr. BENJAMIN DISRAELI, the brother of ISAAC DISRAELI, and the uncle of the illustrious Conservative statesman.

IT has been stated in the Press that Lord HALSBURY is the first English Lord Chancellor who has visited Ireland while actually holding office. This is an error. In 1394 THOMAS DE ARUNDEL, in his second Chancellorship, accompanied RICHARD II. in a journey to Ireland, and in our own time the late Earl CAIRNS, when Lord Chancellor, went over to Dublin for the purpose of being installed as Chancellor of Dublin University.

EVERYONE must appreciate the zeal of the CHIEF JUSTICE in returning to town from York on Saturday last to occupy his circuit leisure by sitting in town on Monday. The CHIEF JUSTICE could, however, only pick up cases from other courts, and on Tuesday he rose at lunch time, being due at Leeds on Wednesday. If there is no work on circuit, it should be possible for judges to remain in town. The country places When is the conflict between insist that they shall not. common sense and local sentiment to come to an end? Regularity of sufficient courts in London, not spasmodic efforts, is what is imperatively necessary.

MR. JUSTICE KEKEWICH is protesting against the protracted nature of trade mark and patent cases. The Times echoes

the cry. The accumulation of conflicting expert evidence in all cases where it can be employed has been for years a monstrous abuse. A curious superstition hangs about such cases which enables all the professional men engaged to exact preposterous fees, and seems to justify an indefinite consumption of public time.

WE must not, however, lose sight of still greater anomalies. An action of seduction, which began on Thursday in last week, finished on Wednesday last. Five days!-before Mr. Justice HAWKINS. And this case had previously been in the daily list for trial for ten days.

A SOLICITOR and member of the Incorporated Law Society, in our last issue, proposes that the QUEEN's Diamond Jubilee should be commemorated by obtaining a charter for a Royal Excellent! School or College of Law. Why should

solicitors wait until the Inns of Court open their eyes to the facts which confront them? Bar students would, of course, be eligible for the Royal College of Law, and thus would be established the institution which the LORD CHIEF JUSTICE long since advocated and the Profession ought to have.

IF the establishment of this Royal College of Law could be followed up by all students for the Bar gravitating to the same Inn of Court, the concentration which is so desirable would be attained. How little do the young lawyers realise that it lies in their hands to put an end to four rival institutions by allowing three to expire for want of students.

THE Land Transfer Bill has been read a second time in the House of Lords amid a chorus of praises, and its passing during the present session seems to be far from improbable. As the Bill appears to be looked upon in high quarters as a mode of relief to distressed landowners, it may, perhaps, be suggested that the CHANCELLOR of the EXCHEQUER may see his way to propose a new scale of duties on conveyances and transfers, which is at present rather high, being 5s. for every £50 of the amount of the consideration for the sale in any case where the consideration exceeds £300. This duty might well be halved.

THE Judicial Trustees Act 1896 (59 & 60 Vict. c. 35) comes into operation on the 1st May next. The Act is more than ordinarily dependent upon the rules which, by the fourth section, the LORD CHANCELLOR may make for "carrying the Act into effect," and especially for dealing with eleven kinds of matters connected with it, which are specifically enumerated in as many sub-sections. As the rules have to be laid before Parliament, a draft of them must be supplied to any public body interested for consideration at least forty days before they are made, by virtue of the Rules Publication Act 1893. That Act no doubt exempts from its operation any rules which are required to be laid before Parliament before they come into operation, but though the rules under the Judicial Trustees Act are, by sect. 4 (2), subject to be set aside by address to the Crown from either House of Parliament presented within thirty days after they have been laid before it, they will come into force as soon as they are made. In respect to the remuneration of solicitors, the authority for making orders under the Solicitors' Remuneration Act 1881 -that is, the Lord Chief Justice, the Master of the Rolls, the President of the Incorporated Law Society, and the president of one of the provincial law societies to be selected from time to time by the Lord Chancellor-will have to be consulted by virtue of the same section of the Judicial Trustees Act which directs the submission of rules to Parliament. As yet there has not been, so far as we have been able to discover, any notice given of draft rules being ready for consideration.

The

To what fees are Commissioners for Oaths entitled? Court Fees Order 1884, which supersedes the Court Fees Order 1875, prescribes the well-known eighteenpence for an affidavit or declaration and one shilling for an exhibit; but that order only relates to the High Court or the Court of Appeal and any office connected with those courts or in which any business connected with any of those courts is conducted. The greater number of oaths taken before Commissioners for Oaths no doubt come under one of these heads, but a considerable number do not, as, for instance, the declarations the jurisdiction to take which is given by the Commissioners for Oaths Acts 1891, in relation to the loss of pawn-tickets and other matters. Before the Act of 1891 these declarations had to be taken before a justice of the peace, of course gratuitously, and they may still be so taken. Both the consolidating Commissioners for Oaths Act 1889 and this amending Act of 1891 are silent on the point

of fees. The result appears to be, that a reasonable fee may be charged, and that this fee may be either above or below the regulation eighteenpence according to circumstances. Supposing, however, that a deponent should decline to pay any fee, it would not be very easy to get it out of him; and it might possibly be contended that the cases covered by the Act of 1891, which substituted a commissioner for a justice of the peace, stand on a different footing from other cases, and that in them the Commissioner for Oaths is bound to act gratuitously. We think the doubt ought to be cleared up somehow or other.

THE NEW COUNTY COURT RULES.

THE disadvantage of having none but judges on a rule committee is amply demonstrated by the new County Court Rules, which were to have come into operation on the 25th of this month, but which have been suspended until the 25th May. Under these rules new regulations have been made as to the leave which is required under sect. 74 of the County Courts Act 1888, concerning the issue of summonses out of the district where the plaintiff resides. By that section, except where otherwise provided by the Act, as in the case of the metropolitan districts, every action shall be commenced in the district where the defendant resides or carries on his business, or it may be commenced by leave of the judge or registrar in the district where the defendant resided or carried on business within six months of the commencement of the action, or with the like leave in the district where the cause of action wholly or in part arose. Up to the present time the practice has been for a simple affidavit to be sworn by the plaintiff or by someone who has knowledge of the facts, showing that the cause of action wholly or in part arose where the plaintiff resides or carries on business, and on this the necessary leave would be granted. Now, what are the proposed changes which at the end of May will, if nothing is done, come into force? By the new rule where leave to enter a plaint is required by sect. 74, an application shall be made by an affidavit, and such affidavit shall set forth (a) the facts on which the proposed plaintiff relies as showing that such leave may legally be granted, and (b) the facts on which he relies as showing that the balance of convenience is in favour of such leave being granted. It shall further state the deponent's sources of knowledge of the facts and circumstances deposed to, and shall be lodged with the registrar, together with a copy for each proposed defendant. The rule then goes on to state that the judge or registrar shall duly consider the facts disclosed in the affidavit, and if he considers that the facts disclosed are enough to legally justify the granting of such leave," he shall further consider the facts relied on as showing that the balance of convenience is in favour of such leave being granted, and he shall exercise his discretion in each case." Before disposing of any application a further and better affidavit may be required to be filed, and the proposed plaintiff or deponent may be required to attend to be examined

on it.

Forms have been published for this affidavit and run into four pages of printed matter. The former affidavit was simple, and was such that anyone could fill up and understand. Professional assistance would be absolutely necessary for such an affidavit as is now required, but in the scale of costs there is no such allowance whatever the amount of the claim, so, even if successful, a plaintiff would have to bear all this extra expense out of his own pocket. How far the rule in dealing with "balance of convenience" is ultra vires remains to be seen, but by means of this regulation all the old questions raised formerly on summonses before the master on the subject of venue will be raised, and the only object of the rule appears to be to reduce the work in the large centres of business. But subsect. 14 seems to be even more extraordinary than the others. By that, where leave is granted, the proposed plaintiff, where the defendant resides or carries on business more than twenty miles away, shall deposit in court a sum reasonably sufficient to meet any allowance for travelling expenses and attendance at court which may be awarded to such defendant if successful. The amount shall be specified in the order granting leave, and the plaint shall not be entered until the deposit is made. What

the object of this new departure is cannot be imagined, for by Order XII., rule 9, on an affidavit by the defendant showing a good defence on the merits, security may be ordered before the action can be continued. Surely that was sufficient

protection for the defendant who resided at a distance from the court; but now a plaint will not be allowed to be entered until the deposit is made, and that without any application on behalf of the defendant. The rule, it is true, provides that the deposit may be reduced or dispensed with for "good cause," but it carefully avoids mentioning what constitutes such good cause."

By these rules a poor tradesman in, say, London cannot commence proceedings against a defendant who resides in Yorkshire, and who has had goods while temporarily staying in London, without first of all filing the lengthy and complicated affidavit required by the rules, and depositing the journey expenses of the defendant from Yorkshire. Plaintiffs often have the greatest difficulty to raise enough to pay the exorbitant fees of the County Court, and with these fresh loads on their shoulders there is no doubt that many debts will have to be lost for want of means to satisfy the new rules, the effect of which will be simply to protect debtors and harass the creditors. There is no doubt that the County Court Rule Committee should contain a certain number of registrars of the County Courts to assist the judges. These gentlemen are entirely in touch with the public, and with the daily administration of the practice of the County Courts, and know the working of the rules. The County Court is essentially the poor man's court, and everything that tends to increase the costs of proceedings there is greatly to be deprecated. The main object of the rules should be simplicity, with a minimum of expense. At the present time the court fee for issuing a plaint for £20 is 21s., while a writ in the High Court for the same amount costs 10s. The procedure on the default summons wants to be more closely assimilated to that under Order XIV. in the High Court. It is to be hoped that the rules under Order V. will be speedily annulled before they have time to work any great injustice, and that some steps will be taken to add to the Rule Committee representatives of those who are intimately concerned with the working of the procedure before the matters reach trial.

Rule 1.-The question has lately been raised whether, if the affidavit in support of an application for leave to enter a plaint under sect. 74 of the County Courts Act 1888, against a defendant who is out of the district shows that the defendant dwelt or carried on business in the distress within six months, or that the cause of action wholly or in part arose within the district, the judge or registrar is bound to grant leave for a summons to issue, or has a discretion as to whether he will or will not grant such leave.

This question came before a Divisional Court in the case of Reg. v. Judge Turner and Hodgson (Law Journal, Notes of Cases, Feb. 6, 1897, p. 76). In that case the affidavit showed that part of the cause of action arose within the district, but the judge refused leave to issue the summons. On an application for an order directing him to grant leave it was contended that he was bound to do so, and that Order V., r. 9a (Rule 10 of the County Court Rules, 1892), which requires the judge or registrar to duly consider the facts disclosed by the affidavit, and to exercise his discretion in each case as to the grant or refusal of leave in accordance with the circumstances, was ultra vires. The Court, however, held, on the construction of the section, that the judge or registrar has a discretion as to granting or refusing leave, and that the rule was intra vires, and they discharged the rule nisi which had been obtained for an order directing the judge to grant leave.

It appears, however, that Order V., r. 9a, and the prescribed forms of affidavit [14 Aa., 14 Bb., and 14 C. in the appendix to the County Court Rules 1895] are insufficient; for while the rule requires the judge or registrar to consider the facts disclosed by the affidavit, and to exercise his discretion in each case in accordance with the circumstances, the forms of affidavit only require the deponent to state facts which show that the judge or registrar has jurisdiction to grant leave, and do not require him to bring before the judge or registrar any other facts; so that the judge or registrar, in considering the affidavit, has none of the circumstances of the case before him, to guide him in the exercise of his discretion, except the bare fact that jurisdiction to grant leave exists.

The Rule and forms of affidavit have therefore been revised, and by the new rule and form the applicant is required to set forth :

(a) the facts on which he relies as showing that leave may legally be granted, which is a condition precedent to leave being granted: and he is further required to set forth :

(b) the facts on which he relies as showing that the balance of convenience is in favour of leave being granted:

while the judge or registrar is required to take all the facts stated into Second Sheet.

consideration, and to exercise his discretion in each case in accordance with the circumstances, and to grant leave only if he is satisfied that the balance of convenience is in favour of that course.

It is impossible to enumerate in a form either all the facts which would legally justify the granting of leave, or all the facts which might be relied on as showing that the balance of convenience is in favour of leave being granted; but the forms of affidavit set forth (by way of example) certain alternative statements of facts, with a view to indicating how the circumstances of each case should be brought before the judge or registrar, to enable him to decide, after the jurisdiction to grant leave has been shown, whether he should in the exercise of his discretion grant such leave.

If the registrar refuses leave, the plaintiff can require him to refer the matter to the judge.

The judge or registrar is empowered to call for a further affidavit, or to require the deponent to attend and be examined.

The rule further provides that where leave is granted, and the defendant resides more than twenty miles from the court, the plaintiff shall deposit in court a sum sufficient to cover any allowance which may be awarded to the defendant for his travelling expenses and attendance at court, if he succeeds in the action, and that the defendant shall have notice of the deposit, and of his right to apply for further security for costs under Order XII., r. 9, on filing an affidavit disclosing a defence on the merits, & rule, the existence of which is, it is believed, very little known. Power is given to dispense with the deposit for good cause. Rules 2 to 5.-Order III., rr. 9 and 11, provide that infants and persons of unsound mind not so found by inquisition may defend by guardians ad litem appointed for that purpose; but the rules contain no provision as to how such appointment is to be made. These rules have therefore been framed, and follow the practice of the Chancery Division and Order XIII., r. 1, of the Rules of the Supreme Court. Rule 4 provides that an officer charged with execution of process, who finds that a defendant against whom judgment has been obtained is an infant or person of unsound mind to whom no guardian has been appointed, shall report to the judge, who may, if he thinks fit, set aside the proceedings and order a new trial.

Rule 6.-This corrects a clerical error in the Rules of 1896. The form referred to was wrongly numbered 104a, there being already a form bearing that number.

Rules 7 and 8.-These rules provide that the hearing of a case may be adjourned, before it has actually commenced, without a hearing fee being paid. The present rule seems to contemplate this, but in terms it seems to apply only where the hearing is adjourned on the joint application of the parties. There are, however, many other cases mentioned in the rules in which an adjournment may be granted, and the rule provides that the exemption from hearing fee shall apply to all cases where an adjournment is granted before the hearing is actually commenced. Rules 9 to 14.-These rules apply to receivers some of the provisions applicable to receivers in the High Court under R.S.C., Order L., rr. 15 to 22.

Rule 9 provides for remuneration (R.S.C., Order L., r. 16); rules 11 and 12 deal with neglect or default (R.S.C., Order L., rr. 18, 21); while rules 13 and 14 deal with the appointment of receivers by way of equitable execution, and provide for the fees and costs payable in such cases, following the principles laid down in R.S.C., Order L., r. 15, and the Regulations in force in the Queen's Bench Division, which are set out in the Annual Practice 1896, p. 927.

Rule 15.-This follows R.S.C., Order XXXI., r. 29.

Rule 16.-Applies to judgment summonses, the provisions of rule 7 as to adjournment without paying a hearing fee.

Rule 17.-Is intended to make it clear that in the cases specified in Order XXV., r. 38aa (13 of the County Court Rules 1895), a fee may be allowed to a solicitor on the hearing of a judgment summons for less than £10. The object of the rule is to enable a plaintiff residing out of the district to employ a solicitor at a moderate fee, instead of incurring heavy expenses for travelling to a distant court to attend a judgment summons, and seeking to charge such expenses against the defendant.

Rules 18 to 21.-Under the Rules of 1889 an Admiralty action was to be set down for hearing before the judge, whether the defendant appeared or not; and the forms of summons (319 and 320) warned the defendant that if he did not appear the judge would hear and determine the action, or make such order therein as he should think fit.

The rules were altered in 1892, and it was then provided (Order XXXIXB., r. 23) that, if no appearance was entered, the plaintiff should be at liberty, on filing an affidavit of service of the summons, to sign final judgment in claims of a liquidated nature, or interlocutory judgment in actions for damages, in which event the damages were to be assessed by the registrar. The forms of summons were not altered in 1892, but were altered in 1895 (319A and 320A) to make them accord with rule 23.

It seems to have been thought, when rule 23 was framed, that all Admiralty actions must be either for liquidated claims or for damages; but this is clearly not the case, as actions for salvage and actions for towage (unless brought on agreements) are not for liquidated claims, nor are they claims for damages. Rule 23 and forms 319A and 320A are therefore not applicable to such actions; and in the rules as to the assessment of damages by the Registrar, Order XXXIX.в, г. 65, et seq., actions for salvage are expressly excepted, and must therefore be dealt with by the judge.

Rules 18 to 21 and the accompanying forms have therefore been framed to rectify the omission in the present rule and forms, and to make proper provision for the forms of summons and the procedure in default of appearance in case of

(a) actions which are neither for liquidated claims nor for damages; (b) actions for liquidated claims; and (c) actions for damages.

Feb. 1897.

A correspondent writes as follows:

I would draw your attention and that of the Profession to the new County Court Rules, which are to come into force on the 25th of this present month of March. They are approved of by the President of the Law Institution. I will confine myself to Order V., r. 1, and its sub-sections. They refer to summonses issued out of the districts wherein the plaintiffs reside. The practice hitherto has been a simple affidavit by plaintiffs, or someone in their employ, showing that the cause of action, or part thereof, legally arose where the plaintiffs reside or carry on business, in order to justify the registrar in issuing the summons. The present affidavit is one which anyone can fill up and understand, and needs no professional assistance. Now look at sub-sects. 1 to 6. No one but a professional man could prepare such an affidavit, and all complicated affidavits are, to put it mildly, the source of many misstatements. In the scale of costs there is no fee for a solicitor preparing such affidavits, whatever may be the amount, and the registrar has no discretion to go out of the scale. It used to be law that debtors should go to the creditors, but these rules seem to hold the contrary, and in every possible way obstruct plaintiffs in trying to recover their debts. But the most extraordinary innovation is contained in sub-sect. 14, requiring a plaintiff, where the defendant resides more than twenty miles away, to deposit, before commencing his action, a sum "sufficient to meet any allowance for travelling expenses and attendance at court, which may be awarded to such defendant if successful." I contend that this is ultra vires of the County Court Rules Committee. To say that a poor plaintiff in London must not commence his action against a rich man at Cornwall until he has deposited a sum sufficient to indemnify a successful defendant is an unheard-of thing. The defendant may not dispute the claim. After action began, and upon an affidavit of defendant that he has a good defence and plaintiff has no visible means, security may be required for the action to be continued; but this new rule forbids the actual entering of a plaint. True, there is a clause at the end, that the judge or registrar may in any case for "good cause dispense with the deposit, but neither judge nor registrar should have any such power, and what is "good cause"? The plaintiff's poverty? The entering fee in County Courts for a claim of £20 is 21s., more than double the fee for issuing a writ. It is often very difficult for poor plaintiffs to raise enough for court fees, and now they are to deposit security for costs. Imagine, if you can, that no action should be commenced in the High Court where plaintiffs and defendants are twenty miles apart without plaintiffs first obtaining a master's leave and depositing security for costs. The effect of this rule will be to stop credit, and harass and annoy plaintiffs, and give unnecessary trouble to solicitors who cannot charge for their assistance. I doubt whether the attention of the President of the Law Institution was drawn to these rules when he approved of them. If he had inquired of some members on the committee who understand County Court practice, they would, I hope, have endeavoured to modify or alter them.-A. B.

The following resolution was passed by the council of the Bradford Incorporated Law Society at a meeting held on the 5th inst.::

That this society, believing Order V. of the new rules to impose unnecessary and harassing restrictions, and throw useless expense upon plaintiffs, and that the interests of defendants in regard to costs are amply safeguarded by Order XII., r. 9, of the existing practice, respectfully urges the Rule Committee to rescind Order V. of the new rules, excepting sub-sects. 3 and 10 referring to assigned debts.

PREFERENTIAL PAYMENTS IN BANKRUPTCY
BILL.

THE above-named Bill, which has recently passed the stage of second reading and has been relegated to the Standing Committee on Law, is at once short and simple, but from what transpired during the debate it is sufficiently clear that an attempt is going to be made to introduce a far-reaching innovation in the rules governing preferences in the administration of bankruptcy and in the winding-up of companies. To the general rule that debts provable in bankruptcy should be paid pari passu, exceptions have been made in favour of certain debts by the Legislature. The Act of 1888 (51 & 52 Vict. c. 62), which amended the law with regard to this subject, gave priority to parochial and other local rates due from the bankrupt or company at the date of the receiving order or winding-up, provided they were payable within twelve months before that date and did not exceed one year's assessment. Wages and salaries of the servants of the bankrupt or company in respect of four months' service prior to the said date and up to a maximum of £50 were also preferred. The same remark applies to the wages of ordinary labourers up to £25, whether payable for time or piece work, in respect of work done for two months before the said date. These debts were to be paid forthwith pari passu, and in full if the assets allowed, and if this was impossible they were to abate in equal proportions. Then followed an important sub-section to the effect that the abovementioned preferential debts should be a first charge on goods distrained by landlords or other persons within three months before the date of the receiving order or winding-up order, and that in respect of money paid under such charge the landlord or other person should enjoy the same right of priority as the person to whom such payment is made.

The priority given by the Act of 1888 to local rates in the case of companies in liquidation was called for by the decision of Albion Steel and Wire Company Limited (38 L. T. Rep. 207; 7 Ch. Div. 547), in which the late Master of the Rolls held that the rule obtaining in bankruptcy had no

application to liquidating companies. It will be seen, however, that the Act of 1888 gives no relief to the preferred debts therein enumerated, if the assets be insufficient to cover debentures or debenture stock forming a floating charge, and this is the point at which the proposed Bill is to hit. The measure, to be cited shortly, if passed into law, as the Preferential Payments in Bankruptcy Amendment Act 1897, by clause 2, provides that the above-mentioned preferred debts "shall have priority over the claims of the holders of debentures or debenture stock under any floating charge on the assets or effects on uncalled capital" of any company being wound-up under the Companies Act 1862 and its amending Acts. Clause 3 provides that, on a receiver being appointed on behalf of the holders of such securities or possession of the assets and effects being taken on their account, the preferred debts shall be payable out of the assets "in priority to any claim for principal or interest in respect of such debentures or debenture stock." And in such cases the periods of time mentioned in the said Act (i.e. Act of 1888) " shall be reckoned back from the date of the receiver or other person taking possession by virtue of such charge."

The Bill, proposed and brought in by Mr. Kemp and supported by gentlemen representing manufacturing centres, is really an emanation from the Association of Textile Operatives of Lancashire, whose members frequently find that the wages they have earned cannot be paid owing to debenture-holders carrying off all the assets of the company. So far as it touches only floating charges, the principle seems unlikely, upon this its fifth attempt to ripen into law, to excite any hostile comment, but the proposal that the priority given should extend also to the cases of specific mortgages is one of serious import. As the Solicitor-General pointed out, this principle once introduced, the way would be open to extend it to all mortgages so long as the mortgagor was in possession and carrying on his business. The security held by thousands of trustees and other individuals throughout the land might be discovered to be, if not illusory, at any rate very insufficient. Floating charges are by their title of a vastly different character. The only precedent for such a proposal seems to be the rule which favours the maritime lien of seamen for the wages they have earned. It extends to the ship, freight, her sails and tackle, and is superior to the claims of a mortgagee (see The Chieftain, Bro. & L. 212). The basis for this exceptional treatment is due to the peculiar disadvantages of seamen and to the national necessity of safeguarding their interests.

Yet another suggestion has been made, that the Bill should be extended so as to operate on trading partnerships and individual traders. This also requires some serious consideration. Assuming that no such dangerous experiment is made as that alluded to, there seems no doubt that the Bill will, without depreciating the value of floating charges, act favourably to workmen whose subsistence depends on their wages being regularly paid, and more especially to those who, being clerks or engaged on piece work, have not the additional security of being paid at weekly intervals.

IMPLICATION OF INTERESTS.

It is a strong thing to say that an estate which has not been given shall' be implied. On the other hand, if there is subsequent reference to the determination or failure of an estate, it may be merely carrying the testator's intention into effect to imply the gift of the estate thus referred to. The courts now lean to a construction of a will which will carry into effect what the testator appears by the language of the will to intend, rather than to one which the decisions on other wills may suggest. Thus, in Re Weeke's Settlement (noted ante, p. 294; (1897) 1 Ch. 289), a wife gave to her husband certain property for life and empowered him to dispose of it by will amongst their children. There were several children, but he died without having exercised the power. On behalf of the children it was argued that, though there was no mention of such an interest in the will, it was the testatrix's intention that the children should take equally between them in default of appointment by her husband.

Lord Eldon, in Brown v. Higgs (8 Ves. 561 at p. 574), lays down the principle to be followed in these cases thus: "If the power is a powerwhich it is the duty of the party to execute, made his duty by the requisition of the will, put upon him as such by the testator, who has given him an interest extensive enough to enable him to discharge it, he is a trustee for the exercise of the power, and not as having a discretion, whether he will exercise it or not; and the court adopts the principle as to trusts, and will not permit his negligence, accident, or other circumstances, to disappoint the interests of those, for whose benefit he is called upon to execute it."

In Burrough v. Philcox (5 M. & Cr. 72) a testator directed that certain stock should stand in his name, and that certain real estate should remain unalienated until "the following contingencies are completed," and after giving life interests therein to his son and daughter, he proceeded: "But in case my son and daughter should both of them die without leaving lawful issue, then for the said estates to be disposed of as shall be hereinafter mentioned (that is to say), the longest liver of my two children shall have power by a will to dispose of all my real and personal estates amongst my nephews and nieces, or their children, either all to one of them, or to as many of them as my surviving child shall think proper." Much argument was urged at the bar upon the ground that the donee of the power had no estate in the property beyond a life interest. Lord Cottenham, before whom the case came, held that to be quite immaterial, and felt himself "justified in giving effect to the intention, which appears to me sufficiently apparent upon the will, of giving the property to the nephews and nieces and their children, subject to the selection and distribution of the survivor of the son and daughter." The power to the survivor was thus treated as a power of selection only, and as no such selection was made, all the nephews and nieces and their children took the property between them.

It is to be expected that there should be a difference of judicial opinion as to what constitutes a power which it is the duty of the donee to exercise. In Ahearne v. Aherne (9 L. Rep. Ir. 144), after absolute gifts to his daughter, a testator expressed his will to be "that the bequests to my said daughter shall be for her sole and separate use, to be held by her for her life, with a power of appointing same among her children." The Irish Master of the Rolls commented upon the fact that an absolute interest was given in the first place, which was afterwards cut down, and held that the testator's daughter could not exclude her children by not exercising the power, but that there was a trust for them subject to a power of appointment in her. Unless the fact that a gift of an absolute interest is afterwards cut down, is sufficient by itself to mark out a trust, there is not much difference in principle between Ahearne v. Aherne and Re Weeke's Settlement, as there was in each case a probable intention on the testator's part to benefit the class of appointees; but Mr. Justice Romer has held that in the last-mentioned case there is no implied gift in default of appointment. The proposition is broadly stated in Farwell on Powers, 2nd edit., p. 466): "If there is a power to appoint among certain objects, but no gift to those objects, and no gift over in default of appointment, the court implies a trust for or a gift to those objects equally, if the power be not exercised." This, in view of Re Weeke's Settlement, seems too strongly put. In Theobald on Wills, there is a useful chapter on "Implication (4th edit., pp. 603 to 613), and in reference to the particular branch of this subject with which we have been dealing, it is said that, "If there is a gift over in default of objects of the power, it is clear that the objects of the power will take in default of appointment This principle does not apply if there is a gift over in default of appointment" (p. 610). This last statement is obvious, as we cannot say that a testator has intended to benefit a class of persons when he states himself by the gift over that he has not.

THE RIGHT TO AIR.

It has in recent years been generally thought by the Profession that in no case will any injunction be granted by the courts to restrain interference with the access of air to a building (or damages given in lieu thereof), unless interference with light can also be shown. Thus, in Bryant v. Lefevre (4 C. P. Div. 180), Lord Justice Cotton says: "Cases to prevent or to claim damages for interference with ancient lights are frequently spoken of as cases of light and air, and the right relied on as a right to the access of light and air. But this is inaccurate. The cases, as a rule, relate solely to the interference with the access of light, and in no case has any injunction been granted to restrain interference with the access of air; " he, however, qualifies these words by adding: “It is unnecessary to say whether, if the uninterrupted flow of air through a definite aperture or channel over a neighbour's property has been enjoyed as of right for a sufficient period, a right by way of easement could be acquired." Again, in the City Brewery Company v. Tennant (29 L. T. Rep. 755; 9 Ch. App. 217), Lord Selborne says: "It is only in very rare and special cases involving danger to health, or at least something very nearly approaching it, that the court would be justified in interfering on the ground of diminution of air." On the ground, too, that air is of a wandering unstable nature not confined within finite limits, and incapable, as a rule, of being easily obstructed for the purpose of preventing the acquisition of rights by length of enjoyment, the courts have refused to recognise the right to have an uninterrupted flow of air over the adjoining land of a neighbour to an ancient (a) timber-yard and saw-pit (Roberts v. Maccord, 1 Moo. Rob. 230); (b) windmill (Webb v. Bird, 4 L. T. Rep. 445; 13 C. B. N. S. 844); (c) chimney (Bryant v. Lefevre, 40 L. T. Rep. 579; 4 C. P. Div. 172); (d) timber-stage (Harris v. De Pinna, 54 L. T. Rep. 770; 33 Ch. Div. 238); and as these were cases where the claim was to prevent a neighbour from building upon his own land, it came to be generally considered that in no case would the courts so limit the user of land as to restrain a neighbour from building upon his own land where such building only interfered with the flow of air to the ancient windows of the adjoining occupier, and not with the access of light. On the other hand, however, there are a number of authorities which seem to warrant the conclusion that any interference with the access and flow of air to the windows or apertures of an ancient house which renders such house less healthy, or deprives the owners or occupiers thereof of a supply of pure and salubrious air sufficient for the ordinary purposes of life and the necessary enjoyment of their house (e.g. trade purposes), is an actionable wrong entitling the persons aggrieved to an injunction or damages, as the case may be.

In the important case of Chastey v. Ackland (72 L. T. Rep. 845; (1895) 2 Ch. 385), which was argued before the House of Lords upon the 19th, 20th, and 22nd Feb. last, the whole of the cases dealing with the question of air were exhaustively considered, and though, owing to the parties arriving at the last moment at a settlement, no judgments (which had been reserved) will now be delivered, sufficient passed during the hearing to warrant one in drawing certain conclusions as to the law governing the above subject. It is to be observed, from what was stated by Lord Morris, that the settlement arrived at by the parties was something very similar to what the decision of the House of Lords would have been if delivered, and amounted in effect to a reversal of the judgments given in the court below. By the settlement in question the appellants obtained £300 damages for the obstruction to the light and air, instead of £10 for injury to light alone, and all costs above and below.

The facts of the case were shortly as follows:-The appellants were the owners and occupiers of a dwelling-house, No. 23, Southernhay, Exeter, and the respondent was the owner of the adjoining house, No. 24,

which was the end house of the terrace of houses of which the appellants and respondent's houses formed part.

The appellants' house was proved, at the trial before Mr. Justice Cave at Exeter, to be upwards of forty years old. As a matter of fact, all the houses in the terrace were erected early in the century. At a distance of some 28 feet from the backs of the said houses, and running parallel to and about one-half the entire length of the terrace (the front of which faced the east), was a wall some 32 feet high or thereabouts, measuring from the basement or area level at the back of the said terrace, which formed part of a volunteer drill-hall. Prior to the erection by the respondent of the buildings complained of by the appellants, the space intervening between the back of the said terrace and the drill-hall was used partly for areas to the respective houses and partly for waterclosets, washhouses, and outbuildings, and a party wall divided the back premises of the appellants from those of the respondent. The northern boundary at the back of the respondent's house, which abutted upon a street or open space called Bedford-circus, consisted of a narrow building, about 9 feet wide and about 13 feet high, above the level of the roadway in Bedford-circus, or 23 feet in height above the level of the respondent's area, which, like that of the appellants, was sunk some 9 feet or so below the level of the street. A strong and defined current of air had always passed freely without interruption between the backs of the appellants' and respondent's houses and the wall of the drill-hall from one end of the terrace to the other, and so entered the windows of the appellants' house, one of which looked in the respondent's yard, being upon his side of the party wall. The respondent had, prior to this action, no buildings on the western or drill-hall side of his premises, save in so far as the last-mentioned building adjoined thereto at its western end, and air passed freely round the gable end of a bed and sitting room projecting from, and belonging to, the appellants' house to within 4 feet of the drill-hall wall. This wing building, which projected out from the back of the appellants' house, did not exceed the height of the wall which originally formed the northern boundary of the respondent's premises, but had no windows facing the respondent's premises. The respondent erected a building at the back of his premises along the northern boundary thereof and between his house and the drill-hall, some 16 feet higher than the old boundary wall, and some 4 feet 6 inches wider thereof, entirely blocking up the space between the back wall of his house and the wall of the drill-hall. He also erected a building on the drill-hall side of his premises of about 10 feet 6 inches in width and some 24 feet in height, thus entirely blocking up the 4-foot space formerly existing between the end of the appellants' wing building and the northern boundary of the respondent's premises. On the 30th June 1894 the appellants served notice on the respondent, who had then commenced to erect the new buildings, that their erection would seriously affect the access of light and air to their windows at the back, and ultimately a writ was served upon the respondent upon the 13th July following, and notice of motion served eleven days later. Before, however, the motion could be heard, the respondent had succeeded in raising the buildings to the height intended, and by consent of both parties the motion stood till trial, and the action was remitted to the Exeter Assizes. The facts last above-mentioned are important inasmuch as it was partly owing to the fact that the respondent's new buildings were run up before the motion came on, and partly to the right infringed not having been one clearly recognised by the courts before, that the House of Lords seemed indisposed, upon the authority of Curriers' Company v. Corbett (13 L. T. Rep. 154; 2 De G. & Sm. 360), to restore the mandatory injunction, and so induced the settlement by which the appellants received damages in lieu of an injunction. At the trial Mr. Justice Cave considered the interference with light to the window over the yard of the respondent was such as might be compensated for by £10 damages; but, as regards the interference with the access of air, he considered the same was serious and found the following facts proved, viz. That the basement of appellants' house was damper than before ; that the rooms downstairs at the back were stuffier; that smells were noticed in the back rooms, which was not the case before; that the draught of the kitchen fire had been interfered with; and that the chimney of the wing building had been made to smoke-all of which circumstances he considered important as showing that there was not the same free ventilation of the appellants' premises as there was before, and caused him to arrive at the conclusion that the putting up of the new buildings was a nuisance to the occupation of the appellants' house. He therefore granted a mandatory injunction for the pulling down of the new buildings to the level of the old one. Against this judgment the respondent appealed, and the case was heard before Lords Justices Lindley, Lopes, and Kay upon the 16th and 17th May following.

Judgment was given by the Court of Appeal on the 17th June in favour of the respondent upon the several grounds set forth therein, and the mandatory injunction granted by Mr. Justice Cave was dissolved. The case is fully reported 72 L. T. Rep. 845; (1895) 2 Ch. 385. The contention of the appellants, both before Mr. Justice Cave and the Court of Appeal, was that the evidence showed the effect of the new buildings of the respondent was to prevent the current of air hitherto passing between the back of the respondent's house and the drill-hall wall from entering the windows of the appellants' house, and to stagnate the air in the yards of both the appellants and respondent, and that as a consequence disagreeable smells were then perceived in the house of the former for the first time, and their rooms became stuffy and unwholesome; in other words, that there was a diminution in both the quality and quantity of the air entering the appellants' house. The House of Lords seemed to regard the evidence as supporting this contention; but the Court of Appeal, regarding the smells as arising from a want of ventilation upon the appellants' own premises (owing to the obstruction of the current of air), held that nothing of a noxious or deleterious kind passed from the premises of the respondent into the premises of the appellants, so as to