he found it, and hold that the legislature having sanctioned the administration of the property under the deed instead of in Bankruptcy, it was not a proper exercise of the discretion of the Court when a valid deed, as he must hold this to be, had been executed and registered, to require security to be given, the result of which would be to defeat the object of the legislature by transferring the administration of the estate to the Court of Bankruptcy. So much of the order as required the bond to be given must be discharged, and the deposit would be returned.

This was an appeal, by a witness, from an order of Mr. Commissioner Holroyd, made before adjudication, directing him to produce the books of his employers.

Mr. Byrne, the appellant, was the managing clerk to Messrs. Leighton & Bennett, against whom, during their absence from this country, a petition for adjudication of bankruptcy had been filed, on behalf of the Birmingham and Midland Banking Company; and he was summoned to appear at the hearing as a witness, and to bring with him all the books and papers relating to the business of his employers, under the 100th section of the Bankrupt Law Con

solidation Act, 1849 (1). This he declined to do without the authority of his principals, on the ground that, though as clerk he had the care and custody of the books, this was not such a custody as was contemplated by the act of parliament. The learned Commissioner, however, made the order for production, and hence the present appeal.

Mr. De Gex and Mr. Robertson Griffiths, for the appellant, urged that the books were not in the "custody, possession or power" of the witness, within the meaning of the 100th section of the act. The meaning of those words was settled by a series of authorities in the Court of Chancery, and they had never been extended to a person who was a mere servant, as the appellant was. As well might such an order be made upon a laundress who had charge of a lawyer's chambers. The meaning of the word 66 possession was well defined by Lord Cottenham, in Reid v. Langlois (2): "What the defendant means by 'possession' is not a legal possession, but an actual possession. In the common use of language, that is a possession; but when you are speaking of possession for the purposes of production you mean, not an actual corporeal possession merely, but a legal possession, where the party is authorized to deal with the subject-matter." They also cited

The Earl of Falmouth v. Moss, 11
Price, 455.

The King of the Two Sicilies v. Willcox,
1 Sim. N.S. 301; s. c. 20 Law J.
Rep. (N.S.) Chanc. 417.

(1) This section enacts, "That the Court, before adjudication, may summon before it any person whom such Court shall believe capable of giving any information concerning the trading of or any act of bankruptcy committed by the person against whom any petition for adjudication of bankruptcy has been filed, and may require any person 80 summoned to produce any books, papers, deeds and writings and other documents, in his custody, possession or power, which may appear to the Court to be necessary to establish such trading or act of bankruptcy; and it shall be lawful for the Court to examine any such person upon oath, by word of mouth, or interrogatories in writing, concerning such trading and act of bankruptcy."

(2) 1 Mac. & G. 627; s.c. 19 Law J. Rep. (N.s.) Chanc. 337.

The Attorney General v. Wilson, 9
Sim. 526; s. c. 8 Law J. Rep. (N.S.)
Chanc. 119.

Penny v. Goode, 1 Drew. 474; s. c. 22 Law J. Rep. (N.S.) Chanc. 371. Mr. Bacon and Mr. E. H. Reed, for the petitioning creditors, contended that the Court of Bankruptcy had more power than any other Court, and that the legislative enactment could not be controlled in its meaning by a series of decisions which were made without reference to it. The bankruptcy statutes were to be construed in favour of the creditors, and it was essential for the ends of justice that the power to order production in such a case as the present should exist.-They referred also to the 260th section of the act.

Mr. De Gex replied.

The LORD CHANCELLOR said, the words "custody, possession or power" could not have a different construction put upon them from what the Court had already given them because they happened to be contained in an act of parliament. It appeared to him that the witness had not such a possession of his masters' books as would justify an order being made upon him for their production; and if he were to order him to produce them invito domino, he might expose him to an action at law. The order must be discharged, with costs.

Mr. Bacon (May 5) now mentioned the matter again, upon the question of costs. It was not the practice to give the costs of an appeal against the respondent.

Mr. De Gex, for Byrne.-The matter is in the discretion of the Court.

Baring v. Harris, 34 Law J. Rep. (N.S.) Chanc. 105.

Leidemann v. Schultz, 14 Com. B. Rep. 38, 52; s. c. 23 Law J. Rep. (N.s.) ↑ C.P. 17.

Collins v. Burton, 4 De Gex & Jo. 612; s. c. 28 Law J. Rep. (N.s.) Chanc.

ACQUIESCENCE. See Company. Covenant. Legacy. Trust and Trustee. Winding-up of Companies. ADEMPTION. See Administration of Estate. Legacy.

ADMINISTRATION OF ESTATE voluntary declaration of trust]-A valid declaration of trust may be made in favour of a volunteer. The dictum of Lord Cranworth, L. C., to the contrary, in Scales v. Maude, not adhered to. Jones v. Lock, 117

The father of a child, nine months old, put into

its hands a cheque for 9007., saying, in the presence of his wife and of the nurse, "I give this to baby; it is for himself, and I am going to put it away for him." He then took it back, saying again that he was going to put it away for him.

About the same time he told his solicitor that he intended to add 100l. to the 9001., and invest it for the benefit of his son. The father died suddenly a few days afterwards, without having made any provision for the child, and the cheque was found in his possession:Held, by the Lord Chancellor, affirming the decision of one of the Vice Chancellors, that there was no complete gift of the cheque to the infant; and, reversing the decision of the same Vice Chancellor, that there was no valid declaration of trust in his favour. Ibid.

marshalling assets for vendor's lien]—Pecuniary legatees are entitled as against residuary devisees to stand in the place of an unpaid vendor whose purchase-money has been paid out of testator's personal estate, Lord Lilford v. Keck, 302

distribution of assets: creditors abroad: time for coming in]-In a suit for the administration of the estate of a domiciled Englishman, whose property was all in this country, his debts were certified by the chief clerk in usual course and were paid by his executors. Afterwards, but before the executors could carry out an order of the Court for the disNEW SERIES, 35.-INDEX, Chanc. & Bankr.

tribution of the remaining part of his estate, proceedings were commenced in France by persons claiming to be creditors of the testator, who had had notice of the proceedings here, but had not come in under them. On the petition of the executors, the order for the distribution of the testator's estate was stopped until a certain day, before which the French claimants might come in and claim in the suit here. Brett v. Carmichael, 369

proceedings in chambers: separate costs: nextof-kin]-In an administration suit by the heir, being one of the next-of-kin of a testator, other persons claiming as next-of-kin, but appearing in separate classes by several solicitors, were not allowed separate costs out of the general estate, beyond the costs of proving their respective titles. Hubbard v. Latham, 402

specific bequest: unauthorized conversion of, during testator's insanity: ademption] - Testator, by his will, gave to his son all his farming stock and implements of husbandry in his possession at his death, and he appointed his wife and his son his executrix and executor. Testator afterwards became of unsound mind, but was not found so by inquisition; and his wife having by reason of his insanity given up a farm which he had occupied, his son, with the concurrence of the testator's wife, sold the farming stock and implements of industry, and placed the proceeds of them in a bank to a separate account in the names of himself and his mother, and such proceeds remained there at the testator's death: - Held, that the bequest of testator's farming stock and implements of husbandry was not adeemed. Re Jones and Jenkins v. Jones, 520

wife tenant for life: husband holding over after her death: bill for mesne profits and delivery up of title deeds: affidavit annexed to bill]-A, after the death of his wife, continued, by mistake, in the receipt of the rents of real

A

estate to which she was entitled for life. De-
murrer to a bill by the persons entitled to the
property after the death of A.'s wife against the
personal representative of A, for an account of
the rents and profits received by him since the
death of his wife, and, if such representative did
not admit assets, for an account, and for delivery
up of title-deeds, overruled. Caton v. Coles, 836
Such a bill is not within the rule laid down in
Whitchurch v. Golding, requiring an affidavit to
be annexed to the bill. Ibid.

ADMINISTRATION OF ESTATE (continued) - debt
barred by statute: waiver of the statute]-The
Court is not bound, on behalf of an absent
party in an administration suit, to disallow
claims barred by statute where the personal
representative and the other parties interested
who are before the Court are desirous of waiv-
ing the objection. Alston v. Trollope, 846

debt barred by statute after decree] — After
decree in a creditor's suit for administration, the
Statute of Limitations cannot be set up to defeat
the plaintiff's debt. Adams v. Waller, 727
Conduct of Suit. See Practice.

See Next-of-Kin.

AFFIDAVIT-annexed to bill. See Administration.
AIR-Obstruction of. See Ancient Lights.

ANCIENT LIGHTS-injunction for obstruction of]—
In order to entitle a plaintiff to an injunction
against a defendant obstructing the access of
light and air to his house, the obstruction com-
plained of must be such an interference with the
light and air as to cause material annoyance to
those who occupy the house; and the locality
of the plaintiff's house, whether in a large town
or in the country, is to be taken into considera-
tion in estimating the amount of obstruction
necessary to justify the interference of the Court.
In a large city the mere obstruction of the
direct rays of the sun for two hours in the day,
during the winter months, is not a sufficient
ground for granting an injunction. Clarke v.
Clark, 151

right to sue in equity: damage too small]-
In a street less than 16 feet wide, a house whose
height was 30 feet 10 inches, was raised to the
height of 36 feet 8 inches, and an adjacent yard
of inconsiderable depth, which had a wall 14
feet high in front and a high wall in the rear,
was built upon to the same height as the house:
-Held, on a bill filed by the owners of the
house opposite, that the damage from loss of
light and air was too small to entitle them to
any relief in equity, and the bill was dismissed,
without prejudice to an action at law. Robson
v. Whittingham, 227

injunction: shop front]-The Court will not
restrain the erection of buildings which merely
prevent goods displayed in a shop from being
seen from places whence they would previously
have been seen. Smith v. Owen, 317

injunction: inquiry at chambers as to pro-
posed works: 2 & 3 Will. 4. c. 71.]-Where
an injunction is granted against obstruct-
ing the ancient lights of business premises,
the Court ought not to make any declaration
narrowing, or appearing to narrow, the right of
the plaintiff to the quantity of light theretofore
used by him for the purpose of his business.
Yates v. Jack, 589

-

Semble that the defendant, to establish his
defence, must shew that, for whatever purpose
the plaintiff might wish to employ the light,
there would be no material interference with it,
for the right conferred or recognized by the
statute, 2 & 3 Will. 4. c. 71, is an absolute and
indefeasible right to the enjoyment of the light,
without reference to the purpose for which it
has been used. Ibid.

In a decree for an injunction to restrain the
defendant from obstructing ancient lights, and
from permitting obstructions to remain, a pro-
viso was inserted enabling the parties to go
before the chief clerk for the purpose of ascer-
taining what existing or proposed works were
or would be a breach of the injunction.
Ibid.

substantial damage: injunction: trial by jury:
injury to foundations]-An injunction will be
granted in equity against obstructing ancient
lights in those cases where substantial damages
could be recovered at law. Dent v. the Auction
Mart Co. (Lim.) Pilgrim v. the same.
The
Mercers' Co. v. the same, 555

The definition of substantial damage in Back v.
Stacey approved of. Ibid.

Observations on the judgments in Clarke v.
Clark, Yates v. Jack and Robson v. Whittingham,
as to the right to light in populous towns. Ibid.
The case of Martin v. Goble reconciled with that
of Yates v. Jack. Ibid.

The Court interferes as to air on the ground of
nuisance. Ibid.

The Court will interfere to restrain excavations
which threaten danger to adjoining houses,
though the actual resulting damage may be
small. Ibid.

The Court will decide a plain case without a
trial by jury. Ibid.

injunction: damages]-Where the access of
light to ancient buildings has been obstructed
the Court will consider not so much the actual
quantity of sky area shut out by the defendant's
building (which may be trivial), but the relative
quantity, having regard to the amount of ob
struction caused by pre-existing impediments.
Martin v. Headon, 602

The Court will interfere to protect a plaintiff
whose personal comfort and enjoyment, and a
fortiori, one whose trade or business is prejudi-
cially affected by the diminution of light, and if
the obstruction has been completed since the
filing of the bill, will assess damages by way of
compensation. Observations on Clarke v. Clark
and Yates v. Jack. Ibid.

See Covenant. Mandatory Injunction.

ANNUITY-charge on income or corpus]-An annuity given by will held not to be a charge on corpus, it appearing on the whole will that testator, when he made the gift of the annuity, was dealing with income only, of which he considered there would be a surplus, and that he had made a subsequent gift of the entire corpus. Salvin v. Weston, 552

APPEAL-suspension of order: payment out of Court]

-The respondents to a petition upon which an order had been made for payment of money out of court to the petitioner, having appealed from the order, moved, on the ground of the indigent circumstances of the petitioner, to suspend the payment pending the appeal. The Court directed the petitioner to give the best security he could for the repayment of the money; and, on information that the appeal was fixed to be heard on a day close at hand, suspended the payment out of court until after such day. Bourne v. Buckton, 851

See Land Transfer Act. Staying Proceedings.

APPORTIONMENT-sale of stock: tenant for life and remainderman -Where stock, being part of a trust fund settled by a will on one for life, with remainder over, was, under a power in the will, sold, and the produce invested in land, and by reason of a delay in the completion of the purchase caused by the vendor, the stock, which would otherwise have been sold ex div., was sold between two dividend days,-Held, that the tenant for life was not entitled to compensation out of the corpus of the trust fund for the loss of income occasioned by the alteration in the time of selling the stock. Freeman v. Whitbread, 137

favour of upholding a sale by auction where one person has been employed to bid on behalf of the vendor, semble, there is no decision which is strictly binding on the Lord Chancellor or the Lords Justices, and the doctrine of Courts of law, by which the presence of a single puffer vitiates the sale, is preferable. Where two persons are employed to bid against each other, the vendor cannot enforce the sale. Mortimer v. Bell, 25

An auctioneer and a puffer employed by him made eleven fictitious biddings against one another, but did not go beyond the reserved price; a purchaser then made the first real bid, and the property was knocked down to him. The conditions of sale provided that the highest bidder should be the purchaser, but were silent as to any reserved bidding. It was held, reversing the decision of the Master of the Rolls, that the fictitious biddings constituted a good defence to a suit by the vendors for specific performance. Ibid.

BANKER AND CUSTOMER-general lien: costs on a too extensive claim]-S. discounted with the A. and M. bank bills of exchange drawn against goods consigned to India, handing over the bills of lading as security. The A. and M. bank carried a part of the discount value of the bills to a suspense account till advice of the payment of the bills, to form a "margin" or additional security against a fall in price of the goods, and gave accountable receipts for such margins. S. deposited three of such receipts with the plaintiffs, who gave notice to the A. and M. bank. The bills having been duly honoured,-Held, that the A. and M. bank were entitled to a lien on the marginal receipts for such sums as were actually due and payable to them by S. at the times when the marginal receipts respectively became payable, in respect of liabilities contracted before notice of the deposit was received, but not to a lien for sums not actually due. Jeffryes v. the Agra and Masterman's Bank (Lim.), 686

Where a plaintiff makes a too extensive claim, the defendant, if he resist the entire claim, must pay costs up to the hearing. Ibid.

BANKRUPTCY-sufficiency of notice, to take equitable mortgage of policy of assurance out of bankrupt's order and disposition]-A, who had effected an insurance on his own life, deposited the policy with his bankers by way of equitable mortgage, and upon subsequently calling at the insurance office to take up a dishonoured cheque, which he had given in payment of the premium on his policy, told the secretary, in the course of conversation, that his policy was in fact held by his bankers. A. afterwards became bankrupt:Held, that the statement made by A. to the secretary was not sufficient notice to the company that his policy was held by A.'s bankers by way of equitable mortgage, so as to take it out of his order and disposition at the date of his bankruptcy. Edwards v. Martin, 186

Hearing bankrupt. See Mortgage.