to a month's hard labour. But what we object to is the rigid rule laid down by the magistrate that the wife's life must be actually in danger. As will be remembered, sect. 4 of the Act gives power to grant the separation order where the husband is convicted of an aggravated assault within the meaning of 24 & 25 Vict. c. 100, sect. 43, which applies to assaults on children and women, and first gave the magistrates power to try summarily and sentence up to six months hard labour, In the case quoted there was no doubt about the aggravated assault. The next condition that must precede the granting the order is contained in the words, "If satisfied that the future safety of the wife is in peril." Surely this does not mean that it must be proved affirmatively to the satisfaction of the magistrate that the wife's life is in danger. Safety means security from injury as well as from death, and is no amount of habitual brutality short of that which puts the wife's life in danger to be held sufficient for the exercise of this protecting power? The intention and scope of the Act were, as we thought, to give poor women some chance of getting that judicial separation which those of a better class can afford and obtain in the Divorce Court, and that for this purpose an aggravated assault with evidence of risk for the wife's future safety, were relatively to her class of life to be considered "legal cruelty" in the divorce definition. These cases must, however, each depend upon the judgment and discretion of the magistrate who hears the evidence. Still, we think that the rule as above stated is too hard and fast to carry out fairly and fully the meaning and the object of the statute. There is an appeal given by the Act to the Divorce Court against an order for separation or support, but there seems to be none where such orders are refused.

THE COUNTY COURT SYSTEM.

I. JURISDICTION.

SOME time ago we commented upon the evidence taken by, and the report thereon of, the select committee upon the County Courts Jurisdiction Bill (No. 2). There seems little doubt but that this Bill will be introduced again next session, and probably be passed. For this reason and also because of the great and growing importance of the whole subject, we propose to consider the County Court system in greater detail, and to discuss the various plans proposed for its extension and its reform. The point of jurisdiction naturally comes first in order, though we hope subsequently to comment upon the whole practice and procedure of the County Courts, and the fees and costs taken and allowed therein under the present system.

As is well and widely known, the present common law jurisdiction of the County Courts is limited to £50, being rendered practically exclusive up to £20 by disallowance of costs in the High Court, where the claim there brought is for a lesser amount. The various suggestions for extending this jurisdiction, supposing, as they all do, that extension is needed, resolve themselves into three. 1. Unlimited concurrent jurisdiction at common law to the plaintiff, with a right or power of removal to the defendant. 2. A concurrent jurisdiction increased from the present limit of £50 to £100, £200, or £500. 3. An exclusive jurisdiction raised from £20, where it is now fixed, to £50. The second plan is, of course, included in the first as being of narrower scope; and they are, in short, rival methods. The third proposal is founded upon an entirely different principle, and stands apart by itself for criticism.

The first and widest scheme of extension is really that contained in the second report of the Judicature Commissioners, who recommended that "these courts, as constituent parts or branches of the High Court of Justice, should, subject to the power of transfer hereinafter mentioned, have jurisdiction unlimited by the amount claimed, whatever be the nature of the case, and that thus, if the parties to the dispute are content that it should be decided in a County Court, it may be dealt with accordingly." Here we have sketched shortly a very vast scheme indeed, but one which, we think, is for the present wholly impracticable. There is a kind of glamour thrown over the whole plan by the proposal that the County Courts should become" branches of the High Court of Justice" in some undefined and undefinable manner. What was thought of this pretty part, as it were, of the scheme may be gathered from an answer given by Lord Justice Bramwell, who was on the commission, to a question in the present evidence. He was asked whether he was in favour of making the County Courts branches of the High Court, and he replied: "I rather think our report said so; but I thought it was a question of words" which the learned judge went on to remark, gave him "no distinct idea."

Not desiring to be misled by words only, let us see what such a plan means, and we shall find that it really has no distinct idea whatever. Does any practical lawyer believe that it would have any effect upon the County Courts as at present constituted? What reasons have suitors for preferring those tribunals to the high court of justice? We answer confidently, none whatever. No decrease in delay in ordinary cases, much increase of actual fees, no certainty of satisfactory judgment. Such would be the results, if there were any, of the reform. It is, moreover, well known that the Profession will not, and indeed cannot, use the County Courts in their present state for cases of any importance

either in justice to their clients or to themselves. The truth is that these wide-spreading schemes are drawn up by men of great ability, but little actual experience; well versed in the theory of such a jurisdiction, but profoundly ignorant of its practical working. If the practice and procedure of the High Court were intro duced into the County Courts, something might be said for the feasibility of the plan and its success. But this, though it may come in time, is not yet at hand; and even then we do not exactly want superior courts all over the country. Mr. Hollams, in his evidence, adverts to this point, and goes on to propose an intermediate tribunal, to be founded on the model or constructed out of such courts as the Mayor's Court, London; the Passage Court, Liverpool; and the Salford Court, at Manchester. Thus one scheme begets another, born, as it were, out of its very impracticability.

Taking now the second plan proposed, we will consider that which would limit the amount of concurrent jurisdiction to £100 as being the one supported by the committee, and likely to be passed in the forthcoming Bill next Session. And we also give the plan our support; it can do no harm, and may do some good. But the real question is, will it have any effect whatever upon the business of these courts as at present placed ? What we have said above applies equally here, and there are many more cogent arguments that can be brought forward. Take the present limit of concurrent jurisdiction, which is £50, and consider the very small number of cases brought to these courts, between £20 where they are protected by the deprivation of costs, and £50, which is their boundary. Surely this is most remarkable. If people are so anxious for the County Court system that they wish its jurisdiction much extended, how is it they do not more often use the powers they at present possess? Moreover, we have the fact, admitted by Mr. Nicol in this evidence, that a large number of writs are now issued for sums under £50, or between £20 and £50, where the County Courts have ample concurrent jurisdiction. He puts this number as only 30,000 out of the whole 120,000; but we have reason to believe the proportion is far greater; and upon this point we should be glad if some honourable member would move for a full return of writs issued, with amounts and classification of actions. One more point should be mentioned on this head. Lord Justice Bramwell does not seem to think-and he is a good authority on all matters of practical and judicial experience that this extended jurisdiction would much increase the business of the courts. When asked if he thought that the public would take advantage of the option given, he answered, "I would compel them to take advantage of it, because I would make them forfeit their costs if they went into the Superior Court and did not recover the amount named." But this is, of course, giving an exclusive jurisdiction up to £50, which is quite another matter, and quite beside the question. However, we think it might be as well to extend the concurrent jurisdiction as proposed, not because we believe it will at present have much effect, but on the ground that it may help to bring about other much more needed reforms in the practice and procedure of the County Courts.

The third plan of extending the jurisdiction is to increase the present limit to that which is exclusive, in so far as it is protected by costs, from £20 to £50. Although the report of the select committee states that its members are agreed that there should be no increase in the jurisdiction of County Courts protected by costs," and although, therefore, this proposal will not be found in the next Bill, still the plan is so strongly supported by many, and is of so much importance to the Profession, that it may well be here briefly considered. It certainly has one merit over the proposals as to extending the concurrent jurisdiction alone that it probably would have some effect upon the business of the County Courts. But even this we believe would not come up to many theoretical expectations. It is well known that the cases in those courts have not so greatly increased as it was presumed they would, since the practically exclusive jurisdiction up to £20 was given them. Rather than pay the present high fees and use the slow and cumbrous and most uncertain machinery of the County Courts, many traders have written off debts as bad after doing all they could to collect them without legal aid. Neither have the writs increased as was expected, and indeed it is difficult to see what has become of much of the business between the small sums collected in the County Courts, and the larger amounts sued for in the High Court of Justice.

Presuming, however, that such a measure would have great effect, on what arguments can it be supported? All that we have said about suitors preferring the High Court applies here with redoubled force. If the comparison is such that neither the profession nor the public can be induced to use the County Courts when they can help it, by what right should they be forced into these tribunals? It occurs to us that the best plan would be for the Legislature to put the County Courts upon a level with the High Court in respect of cheap process and quick procedure, and then see what would be the effect of an extended concurrent juris. diction. After some such attempt, and under such a system, suitors might thus be compelled fairly enough to use one court instead of another. But until this has been done, and done thoroughly, we maintain the right of every one to use the High

Court of Justice; and in this we are supported by the report, although much strong evidence was given in support of the plan. The results to the Profession of extending the County Court Jurisdiction might well be more serious than is generally imagined, and would be so if the change had a widespread effect. For a mere money limit by no means settles the importance of a case, and these courts, as at present constituted, are in many ways inadequate and inconvenient; nor would they well stand the strain of a trial involving serious issues of law or fact.

Taking the question of extending the jurisdiction of the County Courts all round, we have good reasons for agreeing with the report of the Select Committee. To give jurisdiction concurrently with the High Court in every case of contract or tort, and to any amount, seems to us a fanciful idea founded mainly upon that theory of the County Courts being made branches of the High Court which has been said to be merely words. Neither do we believe it would have the effect expected and desired. The plan of extending the concurrent jurisdiction is, as we have said, harmless while it may do good. It will at all events satisfy those who want it, and may tend to improve the courts themselves. The proposal to increase the limit of jurisdiction protected by costs from £20 to £50 is, we think, mischievous and most certainly premature. This, however, is not supported by the committee, and so may rest for a time while we proceed to consider what reforms are really needed to improve and render harmonious the practical working of the County Court system. (To be continued.)

THE NATURE AND EFFECT OF COUNTER-CLAIMS. THE case of Poffer and another v. Chambers (39 L. T. Rep. N. S. 350) shows that there is at the present moment considerable doubt as to the exact nature of a counter-claim, and that the authorities which exist upon the subject are directly in conflict with one another. The question which is still unanswered seems to be whether a counter-claim is to be regarded as a species of defence merely, or whether it is of the nature of a cross action, and this question is of great importance in connection with the 5th section of the County Court Acts (30 & 31 Vict. c. 142), which by the 67th section of the Judicature Act 1873 is expressly extended to apply to all actions in the High Court of Justice, and whereby, in the absence of certificate, or rule, or order to the contrary, a plaintiff is disentitled to his costs of suit unless he recovers more than £20 in an action founded upon a contract, or €10 in an action founded upon a tort.

In the above-mentioned case certain questions on the facts were left to the jury, the answers to which amounted to a finding for the plaintiffs on their claim to the extent of £114 8s., and for the defendant on his counter-claim to the extent of £109 16s. Lord Justice Thesiger, before whom the case had been tried, thereupon directed a verdict to be entered for the plaintiff for the balance, viz. £4 12s., and directed judgment for that sum. The defendant afterwards, with a view of recovering the costs of his counter-claim, made an application to Lord Justice Thesiger to alter the entry of the verdict so as to show the separate findings of the jury. This his Lordship refused to do, on the ground that he was functis officio, but suggested that a summons should be taken out at chambers for that purpose, and that the judge should be asked to adjourn it to be heard by him. This was done, but the judge (Mr. Justice Field) refused to adjourn it, and the defendant appealed to the Divisional Court. That court, however, also declined to interfere with the entry, thinking that if they did so an injustice would be worked, and that there was nothing to bind them to assist the appellant in the manner requested. The verdict therefore remained simply a verdict for the plaintiff for €412s., and upon this each party would have to pay his own costs both of claim and counter-claim; but the important question as to the right of the parties with respect to costs in cases where the jury give separate verdicts for the plaintiff on the claim and for the defendant on the counter-claim, or, in other words, what the position of the appellant would have been if his application had been acceded to, was left undecided. Two cases upon the point (Staples v. Young, L. Rep. 2 Ex. Div. 324, and Blake v. Appleyard, L. Rep. 8 Ex. Div. 195) were cited, both of which were decisions of the Exchequer Division, and of which, although the later one does not directly overrule the earlier, it will be found very clearly to conflict with it in principle.

Staples v. Young was heard before Mr. Baron Cleasby and Mr. Baron Pollock. There the jury had found that the amount claimed by the statement of claim, viz., £26 13s., was due, and also that the defendant was entitled on his counter-claim to £23 1s. 6d. On these findings, the judge directed the judgment "to be entered accordingly." On appeal from a refusal by the master to tax the defendant's costs, it was held that the plaintiff's right to costs under the County Courts Act, and Order LV., r. 1, must be decided with reference to the balance recovered, and not to the amount of claim proved, and that the plaintiff was consequently not entitled to them; and Mr. Baron Cleasby, in giving his judgment, said that he thought that, looking at the result, it could not be said that the plaintiff had recovered the full amount of his claim, or that the defendant had recovered the full amount of his

counter-claim, but simply that the plaintiff had recovered the balance; and Mr. Baron Pollock said, "It seems to me that the intention of the statute with regard to the trial and the result of it in the matter of costs was to place counter-claim and set-off on the same footing."

In Blake v. Appleyard the court consisted of the Lord Chief Baron and again Mr. Baron Pollock. The plaintiff had proved a claim of £40, and the defendant a counter-claim for £10, and, as in the former case, no order was made as to costs. On taxation, the defendant was allowed his costs of counter-claim, and the question which came before the Divisional Court was whether or not he was entitled to them. The Court held that he was, and their judgment is somewhat curious, as from one point of view it seems to deal with a counter-claim as if it were a separate action, and from another point of view as if it were not. As it was not treated as a matter of discretion, the defendant could only have been entitled under Order LV., s. 1, and it was therefore treated as a separate action in which by that order the costs were to follow the event. On the other hand it was expressly held not to be a separate action in such a sense as to be within the County Court Act, and so disentitle the defendant to his costs, because he had recovered less than the amount prescribed by that statute, and Mr. Baron Pollock said that "it was not intended to make a counter-claim stand in every respect as a statement of claim in a cross action;" and he cited Staples v. Young as an authority. This language is very different from that of the same learned judge as set out above, and it is clear that if the spirit of the former case had been followed the defendant in the latter case would have been in the posi tion of a defendant who had failed to prove a set-off to an extent equal to the plaintiff's claim, and who therefore was not entitled to any costs.

We may take it then that, as regards the question of costs, Staples v. Young is an authority for treating a counter-claim as mere matter of defence, and Blake v. Appleyard an authority for treating it as a cross action except with respect to the provision of the County Court Act, which clearly could not have contemplated counter-claims at all. We propose shortly to consider the question of which these two conflicting views have been taken. If we resort to the dicta of judges as to the general effect of a counter-claim we shall not find much assistance. In one case (Winterfield v. Bradnum, 38 L. T. Rep. N. S. 250), where the question was as to security for costs, Lord Justice Bramwell said, "I quite agree with what has been said that a counter-claim is the old set-off amplified" while in the same case Lord Justice Brett, after pointing out that a counter-claim might be founded upon a cause of action totally distinct and separate from that upon which the plaintiff rests his claim, said: "The Judicature Acts, it is true, allow these two actions to be tried at the same time, but they are none the less separate actions, and I doubt whether the costs ought not to be taxed separately in respect of the original action and of the counter-claim, and the master's allocatur given for the difference between the two sets of costs." Here again, therefore, there seems to be a direct conflict of opinion.

We now turn to the provisions of the Judicature Acts. In Order XIX., r. 3, by which a set-off or counter-claim of any right or claim is permitted, we find it provided that "such set-off or counter-claim shall have the same effect as a statement of claim in a cross action." These words, if they stood alone, would be conclusive; but the rule continues, "so as to enable the court to pronounce a final judgment in the same action, both on the original and on the cross-claim;" and these latter words qualify the former, and seem to show that there is only one action. Besides this we find it provided by Order XXII., r. 10, that "where, in any action, a set-off or counter-claim is established as a defence against the plaintiff's claim, the court may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case. Here, and in other parts of the Rules of Court, a counter-claim is treated as matter of defence to the claim; but in the Judicature Act 1873, s. 24, sub-sect. 3, we find that the principle of counterclaim there introduced is worded thus: "The said courts respec-tively, and every judge thereof, shall have power to grant to any defendant. ... all such relief against any plaintiff as the said courts respectively, or any judge thereof, might have granted in any suit instituted for that purpose by the same defendant against the same plaintiff," and this would seem to countenance the view of their general effect being that of cross-actions. It seems a great pity that when framing the Rules of Court the Legislature did not expressly provide for the converse case to that dealt with in Order XXII., r. 10, as then the present doubt would not have arisen.

Whichever way, however, the Act and the authorities may tend, we feel no doubt that on the score of convenience and justice, so far as the question affects costs, counter-claims ought to be regarded merely as a species of defence. If so considered there would be no difficulty. The County Court Act only applies to plaintiffs, and so, of course, would not apply to them. If the verdict found for the plaintiff exceeded that found for the defendant by more than £20 or £10 respectively, according as to whether

the claim were founded upon contract or upon tort, he would be entitled to his costs. Otherwise, in the absence of the necessary certificate or order, each party would pay his own. If, on the other hand, the verdict for the defendant exceeded that for the plaintiff, Order XXII., r. 10, would come into play, and the defendant would have judgment for the balance, and, under Order LV., r. 1, if there were no order to the contrary, all the costs. In this arrangement we can see nothing that would in any event work unfairly, and it appears to us to be the only way by which full effect can be given to the 67th section of the Judicature Act in giving the provision of the County Courts Act the same effect under the new practice as it had under the old. If, however, a counter-claim be considered, with respect to costs, as a distinct and separate action, we can see serious difficulties. The County Courts Act clearly did not contemplate counter-claims, and in Blake v. Appleyard it was held not to apply to them. Defendants, therefore, who had a verdict upon their counter-claim, for however small an amount, would become, under Order LV., r. 1, entitled to their costs in respect of it, while plaintiffs would only get their costs of claim if their verdict exceeded the defendants' by the necessary amount.

Take the following example: Suppose a plaintiff to get a verdict upon his claim for £30, and the defendant to get a verdict upon his counter-claim for £10. The plaintiff not having recovered more than £20 would not, according to Staple v. Young, be entitled to any costs, whereas the defendant, being under no such restriction, would be entitled to his costs of counter-claim, i. e., although the plaintiff was, as between the litigant parties, successful, he would be placed as regards costs in a position manifestly inferior to that of the defendant who was unsuccessful. This is a result which neither the County Court Act nor the Judicature Act could have intended, but which the two together, as at present interpreted, may combine to produce. It is true that the injustice in the above case might be obviated by the judge at the trial making an order depriving the defendant of his costs of counterclaim; but then it is by no means certain that the judge would accede to the application, and it also a fact that the necessity for orders of the kind is not always present to the minds of legal practitioners in the hurry of a trial at Nisi Prius. We venture to hope therefore that the question may soon receive a satisfactory solution, and in our opinion that would be most easily attained if, either by rule of court, or by judicial decision when the question is next raised, the principle by which the court was guided in Staples v. Young were extended generally, and made to apply in a question of costs to a defendant's counter-claim as well as to a plaintiff's claim.

LIABILITY OF EXECUTORS OF SHAREHOLDERS IN

BANKS.

AMONGST the many questions which may be raised in reference to the winding-up of the Glasgow Bank, and the West of England Bank, there is one that cannot fail to be of interest, namely, the liability of the executors or administrators of deceased shareholders. In order to determine these questions various contingencies have to be considered. Thus, probably, in order to obtain any satisfactory solution of the inquiry, it would be necessary to consider at least four things: first, the provisions of the banking company's articles or deed of settlement; secondly, the evidence furnished by the register of the company; thirdly, whether a certificate of shares has or has not been made out in the name of the executor or administrator; and fourthly, whether a transfer of shares has been executed. Another consideration may be added to them, namely, the provisions of the general Act of Parliament which apply to the particular company; for instance, the definition of a shareholder which has been given by the Legislature.

Generally speaking, executors and administrators are never liable otherwise than in their representative capacity; hence they are not personally liable as shareholders unless they actually become shareholders (Weald of Kent Canal Company v. Robinson, 5 Taunt. 800); in fact, their duty is to pay calls out of their testator's or intestate's assets, and, unless they have become shareholders themselves, they must be sued as executors and administrators, and not as shareholders, for such calls as may be sought to be recovered from them: (Birkenhead Railway Company v. Cotesworth, 5 Ex. 226.) The rule is that the legal personal representatives of a deceased shareholder are entitled to all the benefits to accrue from the shares of the testator or intestate, and responsible to the extent of the estate, real and personal, of the deceased, for the liabilities upon the shares so long as they remain in the name of the late shareholder, and such liability extends even to calls made after the death of the shareholder. If, however, an executor or administrator becomes a member of the company-if, for instance, he removes the name of the shareholder, and substitutes his own-then all the responsibilities of the shareholder personally attach to him. Nevertheless, the mere fact of his receiving the dividends will not fix him with an acceptance of the shares: (Armstrong's case, 1 De G. & S. 565.) The presumption is that the executors or administrators of a deceased shareholder succeed to the full liability, as well as to the rights of the testator or intestate; the articles must be looked at to see not

whether they impose such liability, but whether they remove or qualify it: (Barrod's case, L. Rep. 5 Ch. 725.)

Some condition has generally to be performed before a person entitled to become a shareholder actually becomes one, and before a person entitled to retire actually ceases to be a member. What these conditions are in any particular cases can only be ascertained by examining the Act of Parliament, charter, deed, or other instrument by which the company is governed; and care therefore must be taken, in applying decided cases, to attend to the constitution of the company to which they relate. Persons cannot be made shareholders without their consent, and if a company has placed shares in a person's name, and complied with all the formalities necessary to make him a member, he will nevertheless not be a member unless he has by agreement or otherwise authorised the acts in question or ratified them, and thereby assented to take the shares: (see Fox's case, 3 De G. J. & S. 465; Edwards v. Kilkenny Railway Company, 14 C. B. N. S. 826.)

As to the effect of the register as evidence, it may be said that, if the name of a person is placed thereon as a shareholder, it is primâ facie evidence of his being a shareholder, although the register may be informal: (Henderson v. The Royal British Bank, 26 L. J. 112, Q. B.)

Unless a person's name is thereon, he is, as a rule, not entitled to the rights of a shareholder, whilst, if he is on it, he is subject to all the liabilities of a shareholder unless he can show that his name ought not to be on the list; but a person improperly regis tered as a shareholder in a company cannot be considered as holding himself out as a shareholder merely because he takes no steps to have his name removed: (Somerville's case, L. Rep. 6 Ch. 266; Bullock v. Chapman, 2 De G. & S. 211.)

In addition to the evidence of membership obtainable from the registers of shareholders, many companies are required by statute to give every shareholder, on demand, a sealed certificate of his ownership of the shares to which he is entitled. No person is entitled to demand a certificate of title to shares in a company unless he has done everything necessary to constitute himself a shareholder in the full sense of the word: (Wilkinson v. AngloCalifornian Gold Company, 18 Q. B. 728.)

Where an important question, e.g., liability to calls, is actually pending between a person and a company, a summary application to rectify the register was not entertained in Anglo-French Porcelain Company v. Harris (5 H. & N. 609); and see British, &c., Company (3 K. & J. 408).

The mere fact of standing by and being told there is something done which you have not authorised cannot fix you with the heavy liabilities which shares in a joint-stock company would create: (per Lord Hatherley, in Somerville's case, sup.).

A certificate under the common seal of the company, specifying any share or shares held by any shareholder, is prima facie evidence of the title of the shareholder to the share or shares therein specified: (19 & 20 Vict. c. 47; 25 & 26 Vict. c. 89, s. 31.)

In general an administrator can transfer his intestate's shares without first becoming a shareholder. Whether this can or cannot be done, and the manner in which it is to be done, depend in each case upon the constitution of the company in which the shares are held (Lindley, vol. 2, p. 1050). The Companies Act 1862, sect. 24, makes express provision for transfers by personal representatives.

As to the execution of the instrument of transfer, it has been said that the purchaser of a share in a joint-stock company should execute the transfer, and the articles should always make it neces sary. Upon any proceeding in which it would be necessary to prove that the incoming shareholder had assented to become a member of the company, the burden of proof would be upon the company. If the transfer were executed by the transferee, the proof would, of course, be complete upon the production of the transfer deed. On the other hand, if it were not, the proof would and could be furnished aliunde. When the articles of association require transfers of shares to be executed by both parties, the court has no power under the 35th and 98th sections of the Act of 1862, to rectify the register by removing the name of a transferor, unless the transfer has been executed by the transferee: (Mus grave and Hart's case, L. Rep. 5 Eq. 193; Walker's case, L. Rep. 2 Eq. 554.) It has even been decided that, although the articles contained no provision to this effect, still, where it had been shown that the practice of the company had been to require execution by both transferor and transferee, the directors were justified in refusing to register a transfer not so executed, and that the name of the transferor could not be removed: (Marino's case, L. Rep. 2 Ch, 596; Ex parte Sargent, L. Rep. 17 Eq. 278.) The transferor should see that the transferee executes the deed of transfer; otherwise there is the risk of the transferee's name being subsequently removed by the court on his application, on the ground that there had been no acceptance of the shares by him (Heritage's case, L. Rep. 9 Eq. 5.)

:

The following cases illustrate a distinction which may be usefully noted here. In Ness v. Armstrong (4 Ex. 21) the deed of settlement of a joint-stock banking corporation established under 7 Geo. 4, c. 46, provided that the executor of a deceased shareholder should not be a member of the company in respect of such shares, but should be at liberty to sell the shares, or at his option

to become a member on complying with certain provisions; and that, if he did not elect to become a member, he was not to be entitled to any dividend accruing due after the testator's death. The Court held that the executor of a deceased shareholder who received a dividend which accrued due after the death of his testator, but had not complied with the provisions of the deed of settlement, was not a member for the purpose of execution by sci.fa. ona judgment against the public officer of the company. And on the other hand it was held in Bosanquet v. Shortbridge (4 Ex. 699), that a member who had sold his shares, and had then transferred to the purchaser, and who thenceforth and for some years had had nothing to do with the company, continued nevertheless, as between himself and creditors, to be liable as an existing shareholder, as he had not duly complied with the requisites of the company's deed, so as to exchange places with the purchaser. Both the above cases are quoted in the last edition of Lindley on Partnership, p. 535.

Where a shareholder in a banking company had as between himself and the company ceased to be a member thereof, although he has retired irregularly, he is not liable to be sued as a member by a creditor of the company instigated to sue by its directors: (Taylor v. Hughes, 2 Jo. & Lat. 24.) A member against whom judgment has been obtained may apply to have the execution stayed and his name erased from the register: (Bargate v. Shortridge, 5 H. of L. Cas. 297.)

BILLS OF SALE AND BANKRUPTCY.

Two important cases affecting bills of sale in bankruptcy have just been decided by the Court of Appeal, and are worthy of immediate notice. In Ex parte Cooper, Re Baum, reported in the Times of the 20th inst., the facts were these: The debtor had given a bill of sale over what was substantially the whole of his property to a creditor to secure a judgment debt, and an old claim for money lent. This was executed the 28th Aug. 1876, in pursuance of a written promise by the debtor, made on the preceding 4th July, to give such a mortgage in consideration that the creditor did not issue execution upon his judgment. This was not done, and the debtor carried on his business until the 29th Aug. taking money at Cremorne Gardens meanwhile. Another creditor then put in an execution, and the debtor filed his liquidation petition on the 1st Sept. The question was whether the bill of sale so given in pursuance of the promise, and upon the consideration of forbearance, was valid against creditors, and the Court decided in the negative. The ground of the Lords Justices' judgment was that, if the creditor had enforced his judgment by execution there would have been an act of bankruptcy under clause 5 of sect. 6, of which the creditors might have availed themselves, and might have obtained the goods. They thus held that the giving time formed no equivalent for the bill of sale, and stated that to decide otherwise would be to render nugatory sect. 87 of the Bankruptcy Act. They based their judgment upon Woodhouse v. Murray (29 L. T. Rep. N. S. 570), preferring that to Philps v. Hornstedt (L. Rep. 1 Ex. Div. 52) as being more consistent with the settled bankruptcy law.

In Woodhouse v. Murray, which was decided in 1868, the facts were similar to the above, with the important exception that as the debtor had ceased to carry on his trade before giving the bill of sale, there was no advantage to the creditors in the time granted him, so that there was no equivalent whatever for the assignment. And the judgment delivered by Chief Baron Kelly is given upon this point, and also upon the ground that, were such a transaction to be allowed, it would bring about the very evil which sect. 87 was enacted to prevent. It will be observed that in the last case the Lords Justices do not attach any importance to the fact that the debtor undoubtedly carried on his business, and earned money for his creditors by means of the time given him. They hold dis

tinctly that there can be no equivalent in such forbearance, because, if the judgment creditor had levied his execution, all the creditors might have obtained the property under sect 87, and so nothing was given by way of consideration. But it is obvious that they might not have done so, and by reason of the time given him the debtor might have retrieved his position.

This latter was the view taken in the case of Philps v. Hornstedt, decided in 1875, and as to which the Lords Justices expressed some dissent. Here there was no judgment debt, but the debtor had given a creditor an authority to sell some brandy which formed his whole property in consideration of the creditor taking his debtor's acceptance at seven days for an overdue bill and an old debt. The transaction was found to be bona fide, and the whole point was whether the seven days' time given to the debtor was a sufficient equivalent to prevent the transaction being held an act of bankruptcy under clause 2, sect. 6. The Court of Exchequer Chamber held that it was, and judgment was given in favour of the creditor by Lord Coleridge. We there read: "The taking up or retiring an old bill, and giving seven days' time, might have been of great value to the debtor and his estate; it might have saved his credit, though it did not save him from bankruptcy in the present instance." Again, "it remains to be considered whether an honest giving of time to a trader, as in the present case, may not be as fair and valuable an equivalent and as advantageous to him as a fresh advance in money." The test that should be applied in such cases in considering whether there was a sufficient equivalent is here declared to be" whether it was such an advantage as might, or as the parties reasonably supposed might, enable the trader to go on." The Lords Justices have practically decided that this is no longer the proper test for such cases, and they transfer the possibility contained in the word "might" from the debtor to his creditors, and prefer to consider only what the latter "might" have done under the circumstances.

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The second case which arises upon the same estate is that of Ex parte Cooper, Re Baum, reported in the Times of the 23rd inst. There the question was, whether a receipt written at the foot of an inventory of the debtor's furniture was a bill of sale, and as such required registration. The receipt was in these words: Received the 26th day of May 1876, of and from Mr. Alexander Isaacs, the sum of £600, being the amount of purchase money in respect of the goods, chattels, plate, linen, and effects mentioned in the foregoing inventory.' The goods remained in the apparent possession of the debtor at the time of his liquidation, and the trustee claimed them on the grounds of fraud and conspiracy, in which he failed, and on the ground that the receipt required registration, upon which he succeeded.

The decisions of Alsop v. Day (7 H. & N. 457) aud Byerley v. Prevost (L. Rep. 6 C. P. 144) were really overruled by the Lords Justices, who, however, held that that was hardly necessary, as the new Bills of Sale Act would have the same effect by including as bills of sale all "inventories of goods with receipt thereto attached." It is a curious result that the law should be thus decided on the eve of a new statute coming into operation, after the cases now set aside have for years been looked upon as standard and binding authorities. The Lords Justices, to judge from their language in this case, ane prepared to take a wide view of the subject, and to bring all documents of a similar nature within the provisions of the Bills of Sale Acts. They say that, if such a receipt as that above quoted 66 were held not to be a bill of sale, the result would be to make the Act a plaything for verbal ingenuity. It would establish by judicial decision a precedent to enable persons to make a perfectly good bill of sale and yet not subject themselves to the provisions of the Act." If this is the interpretation put by the Court of Appeal upon the clauses of the Act of 1854, it is not likely to be less liberal and compre hensive in considering what documents will require registration under the larger section of the Act of 1878.

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of the United Kingdom on behalf of the council of the said society (being the society mentioned in the Solicitors Act 1877) of his being a fit and proper person to practise as a barrister, shall be entitled to be admitted a member of any of the Inns of Court upon payment of the usual fees (other than deposit or caution money) payable on such admission, and after having been so admitted he shall be entitled to be examined by the Council of Legal Education, or other the duly authorised examining power, at the next final or any subsequent final examination of members of the Inn to which he has been so admitted, and on passing such examination to receive a certificate that he has so passed as if he had kept all his terms and had otherwise qualified himself for such examination, and upon obtaining such certificate he shall as regards his being called to the bar be in the