and that if it be desired to have witnesses allowed who have not been called application is to be made to him, such practice being contrary to the provisions of Order L., r. 16, of the County Court Rules. Under sect. 26 of the County Courts Admiralty Jurisdiction Act 1868 leave to appeal from an interlocutory order in County Court actions on the Admiralty side must be obtained from the County Court judge, and this enactment is still applicable to such actions, notwithstanding the general provisions of sect. 120 of the County Courts Act 1888, and hence a party cannot appeal from such orders without leave.

THIS was an appeal by the plaintiffs in a County Court collision action in rem from a decision of thejudge affirming the registrar's taxation of costs.

By arrangement between the parties the following statement of facts was agreed to for the purposes of the appeal:

1. The appellants, the plaintiffs, appeal against the decision of the judge of the above-named County Court upholding the decision of his registrar disallowing certain items in the plaintiffs' costs.

2. This was a suit for damage by collision. Judgment was given for the plaintiffs with costs. The plaintiffs' solicitors made no application to the judge of the County Court on the hearing of the action in respect of the witnesses' costs or allowance of their expenses.

3. The registrar, on taxing the plaintiffs' costs, disallowed the expenses of all the witnesses who were not actually put into the box and examined.

4. The registrar disallowed the expenses on the grounds as certified by him in the following words: "The practice in this court is by direction of his Honour to allow the costs of witnesses called; if it be desired to have witnesses allowed who have not been called, application should be made to the judge for their allowance."

5. The plaintiffs filed objections to the taxation. 6. The plaintiffs appealed against such disallowance of witnesses to the judge.

7. The judge dismissed the plaintiffs' appeal with costs on the ground that no application was made to him at the trial for the allowance of these witnesses' costs and expenses, and on the ground that it was agreed at the time of the hearing that only two witnesses should be called on each side.

From an affidavit filed by the plaintiffs' solicitors it appeared that the witnesses in respect of whom he claimed costs were in attendance in

court at the trial, but that after the plaintiffs' first witness had been cross-examined, in consequence of a suggestion from the judge, it was arranged between the advocates that each side should limit themselves to two witnesses, and this was accordingly done.

The plaintiffs had not asked permission of the County Court judge to institute the present appeal.

The following Acts of Parliament were cited in the argument, and are material to the decision:

:

County Courts Admiralty Jurisdiction Act, 1868 (31 & 32 Vict. c. 71):

Sect. 26. An appeal may be made to the High Court of Admiralty of England from a final decree or order of a County Court in an Admiralty cause, and by permission of the judge of the County Court from any interlocutory decree or order therein, on security for costs being first given, and subject to such other provisions as general orders shall direct.

County Courts Act 1888 (51 & 52 Vict. c. 43): Sect. 120. If any party in any action or matter shall be dissatisfied with the determination or direction of the judge in point of law or equity, or upon the admission

[ADM.

or rejection of any evidence, the party aggrieved by the judgment, direction, decision, or order of the judge may appeal from the same to the High Court in such manner and subject to such conditions as may be for the time being provided by the rules of the Supreme Court regulating the procedure on appeals from inferior courts to the High Court.

Order L., r. 16, of the County Court Rules:

The costs of witnesses, whether they have been examined or not, may, unless otherwise ordered by the judge, be allowed, though they have not been summoned, and except in cases referred to in rule 18 of this order their allowance for attendance shall not exceed the highest rate of the allowances mentioned in the scale in the appendix.

L. E. Pyke, for the respondents, took the preliminary objection that the court could not hear the appeal. This is an appeal from an interlocutory decree or order, and by the provisions of sect. 26 of the County Courts Admiralty Jurisdiction Act 1868 the permission of the judge of the County Court is a condition precedent to appealing. No leave has been obtained, and therefore the appeal cannot be heard.

Sir Walter Phillimore (with him A. E. Nelson), for the appellants, contrà.-Sect. 120 of the County Courts Act 1888 is applicable to Admiralty appeals, and allows an appeal in any "action or matter " without requiring the appellant to obtain the judge's leave. This section is applicable to interlocutory orders, and therefore applies to the present case:

Carr v. Stringer, Ell. Bl. & Ell. 123;

Jacobs v. Dawkes, 56 L. J. 446, Q. B. Div.; 56 L. T.
Rep. N. S. 919;

Jonas v. Long, 58 L. T. Rep. N. S. 787; 20 Q. B. Div.
564.

The general provisions of the County Courts Act 1868, s. 120, repeal the specific provisions of the County Courts Admiralty Jurisdiction Act 1868, sect. 26:

Garnett v. Bradley, 39 L. T. Rep. N. S. 261; 3 App. Cas. 944.

Pyke for the respondents.-The general enactment in the County Courts Act 1888 does not repeal the particular enactment in the County Courts Admiralty Jurisdiction Act 1868. Had the Legislature intended to repeal sect. 26 of the County Courts Admiralty Jurisdiction Act 1868 they would have done so in express terms:

Conservators of the River Thames v. Hall, 18 L. T. Rep. N. S. 361; L. Rep. 3 C. P. 415; Mitchell v. Simpson, 23 Q. B. Div. 373. [Sir J. HANNEN.-We reserve this point until we have heard the grounds of the appeal.]

Sir Walter Phillimore in support of the appeal. -The practice which the County Court judge has laid down and followed in this case is directly opposed to the provisions of Order L., r. 16, of the County Court Rules. Moreover, costs being in the discretion of the judge, he cannot fetter that discretion by any hard-and-fast rule:

The Friedeberg, 52 L. T. Rep. N. S. 837; 10 P. Div. 112; 5 Asp. Mar. Law Cas. 426. The registrar ought to have considered the question of these costs on the merits.

Pyke, for the defendants, contrà.-Assuming the principle on which the registrar acted to be incorrect, nevertheless the judge who tried the case and knew the facts has exercised his discretion by refusing to allow these costs. This court ought not to overrule his discretion.

Sir Walter Phillimore in reply.

Sir JAMES HANNEN.-The main question in this case is of importance, whatever decision we may come to as to the preliminary objection, and therefore I think we ought to express our opinion so that in future the learned County Court judge may be influenced by it. It is for that reason, before we give judgment on the preliminary question, that I think it necessary to state our decision before deciding whether this appeal can be entertained. It appears that a practice has prevailed in this County Court which is directly opposed to a statutory rule which has been framed by a proper authority. It is obvious that the learned judge has no right to establish a local practice of this kind, and that it cannot prevail as against the County Court rule. It is plain that the registrar based his judgment solely upon the local practice, and in our opinion that was an insufficient reason. Then when the matter came before the judge he dismissed the plaintiff's appeal with costs on the ground that "no application was made to him at the trial for the allowance of these witnesses' costs and expenses." That is a re-assertion of his own local practice as against the general statutory rule by which he ought to have been governed. The other ground of his affirming the registrar is, that it was agreed at the time of the hearing that only two witnesses should be called on each side. But what has that to do with the question of what costs and what witnesses shall be allowed? The parties practically said, "We will not trouble the court with a great number of witnesses on the one side or the other, but will each be content with two." How does that show that the plaintiffs were not quite right in bringing down other witnesses than the two men whom they called? This last ground is no reason at all for disallowing the witnesses. It only says that the parties agreed to something which has no bearing on this question, for it is obvious that, although witnesses be not put into the box, yet it may be proper that they should be summoned. For these reasons, unless we are of opinion that we cannot entertain this appeal, we must allow it.

BUTT, J.-I am entirely of the same opinion. If witnesses are summoned to a County Court and their expenses are not allowed because they are not called, the result will be that a solicitor who has a number of witnesses in attendance will go on calling them all, even if his case is substantially proved, because he knows that if he does not he will not get their costs allowed. That would lead to a great waste of time, and is obviously objectionable. I think that on the main question this appeal should be allowed; but we will take time to consider the preliminary objection.

April 28.-BUTT, J. delivered the judgment of the court. This is a case of an appeal from the decision of the Glamorganshire County Court on a question of costs. The registrar disallowed the costs of certain witnesses who were in attendance at the trial. From that there was an appeal to review the taxation, but the learned judge refused to allow the costs. Upon that an appeal was brought to us, and came on for hearing on the 10th March. We then came to the conclusion that the learned judge was wrong in refusing to allow the costs in question. As the question was one of principle, my Lord and I thought that we

[ADY.

ought to state our opinion upon it, irrespective of how we decided a preliminary objection about which we have taken time to consider. The

objection was, that this was an appeal against an interlocutory order of the County Court judge, and that as his leave had not been obtained no appeal could be brought. Sect. 26 of the County Courts Admiralty Jurisdiction Act 1868 was relied on in support of the objection. That section is as follows: An appeal may be made to the High Court of Admiralty of England from a final decree or order of a County Court in an Admiralty cause, and by permission of the judge of the County Court from an interlocutory decree or order therein, on security for costs being first given and such other provisions as general orders shall direct." If that section is read alone, it would seem clear that there is no appeal in such a matter as this without the judge's leave. But it is said that the County Courts Act 1888 alters that, and sect. 120 is relied upon. The material part of the section is as follows: "If a party in any action or matter shall be dissatisfied with the determination or direction of the judge in point of law or equity, or upon the admission or rejec tion of any evidence, the party aggrieved by the judgment, direction, decision, or order of the judge may appeal from the same to the High Court in such manner and subject to such conditions as may be for the time being provided by the rules of the Supreme Court." There are certain other provisions which it is not necessary to consider for the present purpose. I should have been inclined to think that the first of the two Acts of Parliament to which I have referred had reference to the Admiralty jurisdiction of the County Courts, and the latter being a general County Court Act-even if it gave a right of appeal from interlocutory orders without leave of the judge would not repeal the provisions of the special Admiralty Act. But it seemed to me, on first reading the words of sect. 128 of the Act of 1888, that they applied to proceedings at the trial and to appeal from final judgment, and had no reference to interlocutory orders. I find that in the case of Carr v. Stringer (ubi sup.) the Court of Queen's Bench held that the words of sect. 14 of 13 & 14 Vict. c. 61, which are almost similar and very analogous to the language of the Act of 1888, only gave an appeal in cases of final judgment, and had no reference whatever to interlocutory orders of a judge. That would seem to me to be conclusive of the case. That is the view I have taken of these Acts of Parliament, and I am authorised to say that my Lord agrees in that view. Therefore our judgment is that the appeal must be dismissed; but, as the appellants ought to sueceed on the merits, we think that there should be no costs.

Solicitors for the appellants, Lowless and Co. Solicitors for the respondents, Ingleder, Ince. and Vachell.

Transfer to Bankruptcy Court-Executor's right of retainer Discretion ·Bankruptcy Act 1833 (46 & 47

Vict. c. 52), s. 125. Proceedings for the administration of the estate of a testator, who died insolvent, were commenced in the Chancery Division.

A creditor applied under sect. 125 of the Bankruptcy Act 1883 for the transfer of the proceedings to the County Court having jurisdiction in bankruptcy. It was alleged that the debt of the creditor, who was plaintiff on the originating summons, was barred by the Statute of Limitations, which the executors did not intend to plead, and that the executors intended to exercise a right of retainer, but that if the proceedings were transferred the plaintiff's debt would not be recoverable, and the executors would lose their right of retainer, and that it was imperative on the court to order a transfer in order to secure equality amongst creditors.

Chitty, J. refused to order the transfer.

Held, on appeal, that the power to transfer given by sect. 125 of the Bankruptcy Act 1883 is discretionary, and that sufficient reasons had not been shown to make it the duty of the court to order the transfer.

In this case proceedings for the administration of the estate of a testator, who died on the 26th Oct. 1889, had been commenced by originating sum

mons.

The Stamford, Spalding, and Boston Banking Company Limited, who were the testator's bankers and claimed to be creditors for a large amount, took out a summons on the 8th Jan. 1890, asking for an order under sect. 125 of the Bankruptcy Act 1883, that the administration proceedings might be transferred to the Northampton County Court as the proper Court of Bankruptcy.

It was alleged that the testator's debts amounted to about 90007., and his assets did not exceed 40001., and that the plaintiffs' debt was barred by the Statute of Limitations which the executors did not intend to plead, and also that they intended to retain a debt due to themselves.

The summons for administration and the summons for transfer came on together before Chitty, J., who made an order for administration, but refused to order a transfer.

The banking company appealed.

The material portions of sect. 125 of the Bankruptcy Act 1883 are as follows:

Sect. 125. (1.) Any creditor of a deceased debtor, whose debt would have been sufficient to support a hankruptcy petition against such debtor had he been alive, may present to the court a petition in the prescribed form, praying for an order for the administration of the estate of the deceased debtor according to the law of bankruptcy.

(2.) Upon the prescribed notice being given to the (a) Reported by A. J. SPENCER, Esq., Barrister-at-Law. Vol. LXII., N. S., 1604.

[CT. OF APP.

legal personal representative of the deceased debtor, the court may, in the prescribed manner, upon proof of the petitioner's debt, unless the court is satisfied that there is a reasonable probability that the estate will be sufficient for the payment of the debts owing by the deceased, make an order for the administration in bankruptcy of the deceased debtor's estate, or may upon cause shown dismise such petition with or without costs. (4.) A petition for administration under this section shall not be presented to the court after proceedings have been commenced in any court of justice for the administration of the deceased debtor's estate, but that court may in such case on the application of any creditor, and on proof that the estate is insufficient to pay its debts, transfer the proceedings to the court exercising jurisdiction in bankruptcy, and thereupon such last-mentioned court may in the prescribed manner make an order for the administration of the estate of the deceased debtor, and the like consequences shall ensue as under an administration order made in the petition of a creditor.

(5.) Upon an order being made for the administration of a deceased debtor's estate, the property of the debtor shall vest in the official receiver of the court as trustee thereof, and he shall forthwith proceed to realise and distribute the same in accordance with the provisions of this Act.

(6.) With the modifications hereinafter mentioned all the provisions of Part III. of this Act relating to the administration of the property of a bankrupt shall, so far as the same are applicable, apply to the case of an administration order under this section in like manner as to an order of adjudication under this Act.

(7.) In the administration of the property of the deceased debtor urder an order of administration the official receiver shall have regard to any claim by the legal personal representative of the decased debtor to payment of the proper funeral and testamentary expenses incurred by him in and about the debtor's estate, and such claims shall be deemed a preferential debt under the order and be payable in full out of the debtor's estate in priority to all other debts.

Everitt, Q.C. and Edward Ford for the banking company. If this administration is transferred to a court having bankruptcy jurisdiction the bankruptcy law will be applied, and equality among the creditors will be secured. The word "may in sect. 125 sub-sect. (4) should be construed "shall." as it was the object of the Legislature to secure equality in the case of an insolvent estate, and not to make it a matter of discretion:

Julius v. The Bishop of Oxford, 42 L. T. Rep. N. S. 546; 5 App. Cas. 214;

Bowes v. The Directors of the Hope Life Insurance and Guarantee Company, 12 L. T. Rep. N. S. 680; 11 H. of L. Cas. 389.

We say that the plaintiffs' debt is barred by the Statute of Limitations, and may, nevertheless, be paid if the proceedings are not transferred:

Fuller v. Redman, 26 Beav. 614.

If the action is transferred the executors will lose the right of retainer, and the general creditors will be benefitted. Sub-sect. 7 of sect. 125 shows that it was intended to abolish on administration in bankruptcy all preferential claims except for funeral and testamentary expenses.

Whitehorne, Q.C. and Warrington for the executors. The power conferred by sect. 125 of the Bankruptcy Act is purely discretionary:

Re Weaver; Higgs v. Weaver, 52 L. T. Rep. N. S. 512; 29 Ch. Div. 236;

Re York; Atkinson v. Powell, 56 L. T. Rep. N. S. 704; 36 Ch. Div. 233.

as it

consequence of these two co-existent systems of administration, whenever an insolvent estate is being administered it should be transferred to the Court of Bankruptcy? I cannot spell that out of this section. If Parliament had intended that it would have used very different words, and would not have used the word "may has done. I am satisfied, having regard to the principle laid down in Julius v. The Bishop of Oxford (ubi sup.), that this is a discretionary power, and I cannot say that Chitty, J. has exercised his discretion wrongly. It is an important question whether it would have been just to other people to exercise his discretion the other I do not know how that may be, but I am not prepared to differ from him in what he has done.

way.

LOPES, L.J.-Sub-sect. (4) of sect. 125 of the Bankruptcy Act 1883, authorises a transfer from the High Court to the court exercising jurisdiction in bankruptcy, and the first question is whether that power of transfer is discretionary or imperative. Mr. Everitt contends that there is no discretion given to the judge, but that he is bound to transfer. The word "may" is used in the sub-section, and that word is potential beyond all question. But if it is coupled with a duty imposed upon the court to use that power in a particular way it becomes imperative, and there is plenty of authority for that proposition. In this case I can see no such duty, and, in my opinion, therefore, the pcwer conferred is discretionary. But then it is said, that even if there is a discretion it has been wrongly exercised by the judge, because his decision preserves to the legal personal representative and to the plaintiff creditor advantages which they possess if the administration takes place in the Chancery Division. These rights of the legal personal representative and the creditor exist, and I cannot say that the recognition of these rights is any ground for saying that the discretion has been wrongly exercised. It is perhaps anomalous that there should be two systems, and that administration should be different in the Chancery Division and the Court of Bankruptcy, but that is a matter for the Legislature and we have nothing to do with it.

Solicitors: Penley and Grubbe, for Hannington

and

Son, Huntingdon; Thornton Toogood; Kinsey, Ade, and Hocking.

March 25 and 27.

(Before COTTON, LINDLEY, and LOPES, L.JJ.) Re HARGREAVES; DICKS v. HARE. (a)

APPEAL FROM THE CHANCERY DIVISION.

Administration-Annuity-Deficient estate-Right to order for administration - Judicature Act 1875 (38 & 39 Vict. c. 77), s. 10-Rules of Court 1883, Order LV., rr. 3, 4.

A testator covenanted to pay to trustees during the life of D. an annuity of 500l for the benefit of her and her children. After the testator's death the trustees issued an originating summons for the administration of his estate, on the ground that it was insufficient to provide for the payment of the annuity in full. No payment of the annuity was at the time in arrear.

(a) Reported by A. J. SPENCER, Esq., Barrister-at-Law,

[CT. OF APP.

Held (affirming the decision of North, J.), that, although sect. 10 of the Judicature Act 1875 gives a right to an annuitant to prove in administration proceedings for the capital value of an annuity, yet it confers no right upon the annuitant to obtain an order for administration so long as the annuity is punctually paid, although the estate may be insolvent, and that the summons must therefore be dismissed.

BY a deed dated the 19th Jan. 1887 the testator Ernest Hargreaves entered into a covenant to pay to Messrs. Dicks and Winter, as trustees, an annuity of 500l. during the life of Mrs A. H. Dicks, by equal quarterly payments, to be treated as accruing due de die in diem, and to be for the benefit of Mrs Dicks and children.

He died on the 21st Oct. 1889. Mrs. Dicks at the time of his death was twenty-seven years of age, and the capital value of her annuity was calculated, according to the succession duty tables, as being 83861. 78. 6d.

The executors paid the quarterly instalments of the annuity due at Christmas 1889, and on the 25th March 1890, but gave the trustees notice that the estate was insufficient, and that the annuity must cease. They had set apart a sum of 4000l. to meet the annuity, but this would not be sufficient to provide for the annuity for more than eight years.

It appeared that the value of the testator's estate, less funeral and testamentary expenses, was 43491., and that the claims against the estate, exclusive of that in respect of the annuity, amounted to 18517.

The trustees claimed to prove against the estate for the capitalised value of the annuity.

On the 13th Dec. 1889 the trustees of the annuity took out an originating summons for the administration of the testator's estate. The summons was heard in chambers, on Jan. 27, 1890, by North, J., who refused to make an administration order, but gave a certificate that he did not require the case to be further argued. The trustees of the annuity appealed.

Maclean, Q.C. and S. Dickinson for the appellants. The estate is insolvent, and the trustees have, by virtue of sect. 10 of the Judicature Act 1875, a right to prove for the value of the annuity. They have therefore the right to obtain an administration order. Formerly a contingent creditor had no right of proof, and therefore could not obtain an administration order, but he is now entitled to prove. Order LV., r. 3, enables persons "claiming to be interested in the relief sought as creditors" to obtain an administration order, and is not confined to ordinary creditors, and this is shown to be the case by rules 4, 44, and 46 of the same order. In Whitmore v. Oxborrow (2 Y. & C. (Ch.) 13) the holder of a bill of exchange to whom nothing was due at the time of the filing of the bill was held entitled to an administration decree. In Blount v. Hipkins (7 Sim. 51) a contingent liability was held to be a debt due. This case is distinguishable from King v. Malcott (9 Hare, 692) and Norman v. Johnson (29 Beav. 77), which were relied on by North, J. in chambers, because in those cases the plaintiffs had no immediate right of proof. They

also cited

Read v. Blunt, 5 Sim. 567;

Burrell v. Delevante, 30 Beav. 550;