parishes to take offenders," enacts that, if the offender or his goods cannot pay such charges, then the justices shall grant a warrant for payment of the same to the treasurer of the county, and repeals the old statute of James as to taxing. But the part of the Act to which the law officers refer is the proviso excepting the county of Middlesex from its operation. The words supporting their opinion are as follows: "But that within the said county of Middlesex the expenses of the constable or other officer, occasioned by his conveying of any person to gaol by virtue of a warrant from any justice or justices of the peace, shall (after such expenses have been examined into upon oath and allowed by such justice or justices, and for which no fee or reward shall be taken) be paid by the overseer or overseers of the poor of the parish or place where the said person was apprehended, who is and are hereby authorised and required to pay the same; and the sum or sums so paid shall be allowed in his or their accounts." This section applies to the whole county of Middlesex, but the circular only mentions the Metropolitan Police District. It is, however, difficult to see why there should be any distinction between one part of the country and another, or why inhabitants of the metropolitan area should have these expenses thrown upon their local rates, while in other parts the same charges are defrayed out of the Imperial exchequer. The ratepayers of London and its suburbs are already too heavily burdened without such an aggravating addition. This will, too, seem still more unfair, as its incidence will be unequal, those parishes being most highly rated where most of our criminals are apprehended.

A GREAT deal of unnecessary expense and trouble is not unfrequently caused to suitors and solicitors in the Probate Division of the High Court of Justice by the fact that a rule of practice long established and invariably acted upon by the President of that division is unfortunately not so well known as it should be. Sir JAMES HANNEN (except in certain formal matters) never acts on a single affidavit uncorroborated. This rule is not alluded to in any of the works on the practice of this division, and, although well known to every barrister and solicitor who regularly prac tises there, is comparatively unknown by the rest of both branches of the Profession. An application (In the Goods of Daniell) made to the President of the Probate Division on Tuesday last may be mentioned as an illustration of what takes place Tuesday after Tuesday, and not unfrequently in several cases on the same day. The application was for probate of the will of THOMAS DANIELL, a mariner, supposed to have been lost at sea during the year 1878. The affidavit of the widow of the deceased stated that he had sailed from Gravesend in a ship called the Cromwell, on the 15th March 1878, bound for Pomeron, in Spain, that the ship had been spoken off the Isle of Wight on the 26th of the same month, that she had never since been heard of, and that the underwriters had paid for her as a total loss, on the 20th May. To the affidavit were certain exhibits consisting of letters from the owners to the widow, extracts from newspapers giving particulars of her loss, and the original letter from the underwriters to the owners that had contained the cheque by which the vessel had been paid for as a total loss. His Lordship said, in effect, "that he had no moral doubt that the facts were as stated, but that he could not depart from the rule requiring corroboration which he had laid down and continued to act upon for so long." The whole value of the estate in question is only about £200, and thus the parties are put to the expense of coming before the court a second time. Yet nobody is to blame, because none of the books mention the practice of the court in this respect. That the rule is in itself founded on the soundest principles of reason and good sense, and is a most valuable protection against possible malpractices, needs no argument to demonstrate. THE Judges of the Wandsworth and Marylebone County Courts, as will be seen from a reported judgment in our last issue, have been engaged recently in the investigation of certain irregularities in the case of Diedrich v. Rutland. The action was in the Croydon County Court, but the summons was sent to the Wandsworth County Court to be served. The alleged irregularities were threefold. First, an untrue return made to the Croydon court by a late bailiff, stating that the original summons had been served upon the defendants, whereas it had not been so served; secondly, a letter written by the court keeper of the Croydon Court, at the request of the plaintiff, to the defendant, threatening him with further proceedings in the event of nonpayment at once of the debt and costs. This letter was written long after such return had been made to the Croydon Court, and after judgment had been obtained upon it. It was written, too, on the court paper, with the Royal arms, and entitled, "In an action;" and, thirdly, an untrue return to the Croydon Court by a bailiff of the court, stating in effect that he had failed to serve the bailiff in the first complaint referred to with a subpoena from that court when in fact he had served him. We are glad that these charges have been made the subject of a careful examination. Poor suitors or defendants, the class of people who form the bulk of the litigants in County Courts, are very much at the mercy of the officials. There are a thousand ways in which pressure may illegally be brought to bear upon such suitors. Take, for instance, the case of an official

employing letter paper belonging to the court, and stamped with the Royal arms, for the purpose of compelling a defendant to satisfy a plaintiff's claim, and we have an instance of most gross irregu larity, if not worse. It is of the highest importance that County Courts should be respected, that the administration of the law in those courts should be above suspicion, and that no opinion should get abroad amongst the classes who are more capable of opinions dictated by their prejudice, their sympathy, or their antipathy, than of forming an unbiassed judgment, that those courts are incapable of controlling their own officials. The tendency of things appears to be to extend the jurisdiction of County Courts. Hence the greater necessity, if such were possible, to check any such irregularity as that to which we have alluded. The subordinate officials of County Courts cannot learn the lesson too soon that there are duties, no less than rights, incident to their position, and that they must act in complete good faith, and take no advantage of their position, which, after all, if a minor one, is one of trust.

THE Free Vintners of London have undoubtedly many privileges, but it is startling to be told that one of these consists in a right to keep a disorderly house without interference by the police or the chance of summary conviction before a magistrate. Such, however, is the defendant's contention in the case of Mr. KENT, of the Buckingham Hotel, though Mr. VAUGHAN thought otherwise, and convicted under the 15th section of the Licensing Act 1872, imposing a penalty of £20. Notice was given of appeal, and the point is surrounded by doubt and difficulty. It is clear, in the first place, that Free Vintners are not directly affected by the Licensing Acts, for by the saving clause nothing therein is to affect "the exemption from the obligation to take out a licence as defined by this Act, or a licence from the Commissioners of Inland Revenue, enjoyed by the company of the master, wardens, and commonalty of Vintners of the City of London." Sect. 15, referred to by the magistrate, applies to 66 any licensed person who is convicted of permitting his premises to be a brothel," and a "licensed person is defined in the interpretation clause to be "a person holding a licence as defined by this Act," which does not include Free Vintners, who sell under an independent authority from their company. So far there seems to be no case for the prosecution; but they appear to have called the Police Act in aid, and certainly that part of sect. 41 of 2 & 3 Vict. c. 47 which is still unrepealed is to the purpose. We there find that every Free Vintner selling foreign wine by retail, to be consumed on the premises, within the Metropolitan Police District, without licence "shall be subject to all the provisions of all Acts made for the regulation of persons so licensed " except the provisions as to taking out a licence. We presume the magistrate held that this general provision covering future statutes had the effect of applying sect. 15 of the Licensing Act to Free Vintners as being a provision for the regulation of persons so licensed," and that, therefore, he had the power of summary conviction and to impose a penalty, although he was clearly not able to forfeit the licence. And, without going further, there is much in this argument; but when we find that the Licensing Act 1872 actually repealed the very part of this section which would have supported the convic tion, the case is very different. The clause we have quoted from the Police Act originally concluded with the words, "and in case of any offence committed by him or her against the tenor of a licence granted under the provisions of any Act for the sale of excisable liquor, to be drunk or consumed on the premises, shall be liable to be dealt with, proceeded against, and punished in like manner as if selling wine by licence, and not by virtue of such claim or privi lege.' Here we have careful provision made against what has happened, and jurisdiction distinctly given to magistrates over offending Free Vintners. But this part relating to offences is now repealed, and, as far as we know, it has nowhere been reenacted; perhaps, indeed, it was forgotten. After this it is difficult to argue that the Legislature meant the punishment of Free Vintners for offences to be included in the application of regulations affecting licensed houses, which is the only part of the section now left, and which we think indicates a contrary intention. There is, of course, the remedy by indictment against anyone keeping a brothel, and it may be that Parliament meant to leave the Free Vintners solely to the care of their company, without interference by police or magistrates; but if not, and it is most unlikely, then the law had better be cleared up at once to prevent the recurrence of such cases, which are scandalous, even if acci dental.

66

APPEALS from the master to the judge at chambers, as well as from the judge to the court, must be brought strictly within the time limited by the rules, unless that has been enlarged. This was doubtless generally known and followed, but the recent case of Bell v. North Staffordshire Railway Company puts the point of practice very plainly. There the original application came before the master on 23rd Dec. On the next day the defendant took out an appeal summons, which, however, was not made returnable until the 31st. Upon the face of it, therefore, Order LIV., r. 4, was broken, we presume by a mistake of the clerk that no judge would be at chambers any sooner. But, when the summons came for hearing before Mr. Justice HAWKINS, he dis

missed it on the ground that it was too late, and should have been made returnable on the 27th, as a judge was there on that day. On argument before the court by way of appeal, it was contended that the true construction of the rule was, that it was sufficient if the appeal summons was taken out within the four days. An ingenious distinction was also sought to be drawn between a summons and a motion—the former being spoken of as the act of the court, like a rule nisi; while the latter is but the application of the party. But the Court adopted the view that the summons must be returnable within the four days; so that the actual hearing upon appeal may take place within that period. This may be considered the companion case to Fox v. Wallis (L. Rep. 2 C. P. Div. 45), which decided that a notice of motion by way of appeal to the court from a judge at chambers is too late if given on the eighth day. This was under rule 6 of the same Order LIV., where the words are similar to those used in rule 4, though perhaps more positive. Both cases proceeded upon the principle that the actual appeal must be within the time limited by the rule, which is spoken of as peremptory and without ambiguity. Four days Four days is certainly a short time within which to consult country clients as to appealing, but further time can always be given by the master himself or by the judge; and, at all events, care can be taken to see that the summons is not made returnable too late for its purpose.

THE practice upon appeals from the County Courts by way of motion is gradually getting settled, with the aid of decisions in the High Court of Justice. Sect. 6 of the Act of 1875, by which the plan was introduced, gave no working details, and the rules also left the matter to shift for itself. It is no wonder, then, that difficulties continue to arise in carrying out the new and naturally more popular method, on account of its many advantages over the cumbrous form of proceeding by special case. But it is not yet clear what is the power of the court to which an appeal is made by motion with regard to ordering judgment to be entered for the party succeeding. In Whiteman v. Hawkins this point came before the Common Pleas Division only the other day, and they decided that upon appeal by motion they had power, in reversing the decision of the County Court judge, to order judgment to be entered for the opposite party, and they did so accordingly. This conclusion was arrived at upon the ground that, as sect. 14 of the Act of 1850, which gave the court power to grant a new trial, or order judgment to be entered for the party successful upon an appeal by special case, has not been repealed, it remains, and can be applied to an appeal by motion under the Act of 1875. Although sect. 6 makes no mention of the matter, certainly, in the silence of the last Act upon the point, this is a reasonable view of the question; but it is one that does not seem to have been taken by those who framed the County Court Consolidated Rules 1875. For we there find in Order XXIX. no less than eleven carefully drawn rules as to the procedure upon appeals by special case, the last of which provides for cases in which the Court of Appeal shall order a different judgment to be entered; but the order concludes by stating that the foregoing rules "shall not apply to appeals by motion, but such appeals may be had under the provisions of sect. 6 of the County Courts Act 1875." We are thus sent back to the statute, which gives no guidance whatever, while in the absence of any regulations it is difficult to see how the order of the Court of Appeal as to entering judgment can well be carried into effect. There is certainly a confusion about the practice of appeals from County Courts by way of motion that might well be cleared up with great advantage.

THE practice in reference to certiorari, and the relation of the Court of Appeal to the Court of Quarter Sessions, are well illustrated by the recent decision of the House of Lords in Overseers of Walsall v. London and North-Western Railway Company (39 L. T. Rep. N. S. 453), and in the elaborate judgment of Mr. Justice FIELD in Reg. v. Chantrell (33 L. T. Rep. N. S. 305), where the Queen's Bench decided that a writ of certiorari cannot issue to bring up and quash an order of sessions affirming a conviction, subject to a case for the opinion of the Superior Court, the certiorari having been taken away by the Act under which the conviction proceeded. His Lordship's judgment sets forth very explicitly the main features of the practice in relation thereto. The form of the commission of the peace, which gives to justices jurisdiction, requires the justices, in case of difficulty, to obtain the opinion of a judge, and by implication requires the judge to give his opinion. No traces appear to be discoverable of the manner in which the presence of a judge at sessions was ever obtained. The requisition that justices of the peace should attend at the assizes was not in early times a mere form. Having pointed out that there could be no difficulty in obtaining the presence of a justice of either bench so long as the pressure of business was not so great as to prevent his having time to attend to the sessions business, he went on to explain that a practice arose by which, instead of adjourning the sessions to the assizes and then deciding the case in the presence of the judge of assize, the sessions stated the case on which they found difficulty in writing,

and decided it according to the opinion of the judge of assize given upon that case. Traces of this practice are found as late as the year 1734. Owing to its inconvenience, however, it was discontinued in favour of the practice which is now established, according to which the appeal is decided conditionally, and subject to the opinion of the court upon any question of law stated by the justices upon a case stated by them. In the time of Lord HOLT (Anon. 2 Salk. 486) an attempt was made to reserve a case for the opinion of the Court of King's Bench. That Court refused to entertain it, and remitted it to the judge of the assize. In the time of Lord HARDWICK, however, the modern practice existed, though not to the complete exclusion of the old practice. The modern practice had completely superseded the old practice, at any rate by the year 1807, as appeared from Nolan's Poor Laws, which was published in that year. In the more recent case to which we have referred the House of Lords decided that the Court of Appeal had jurisdiction, under sect. 19 of the Judicature Act 1873, to entertain an appeal from a decision of the Queen's Bench Division upon a rule for quashing an order of quarter sessions as to the validity of a rate. The Court of Appeal was equally divided upon this question: Chief Justice COCKBURN and Lord Justice BRETT holding that there was no jurisdiction; Lords Justices BRAMWELL and COTTON being of a contrary opinion. The judgments of the noble Lords who heard the arguments in the House of Lords contain an elaborate statement of the relations of the Queen's Bench and Quarter Sessions. Lord CAIRNS devoted some time to a consideration of the jurisdiction exercised by the Queen's Bench, and came to the conclusion that when the Court of Quarter Sessions had determined a rate, that determination was, as a general rule, final upon the merits, for there was no Court of Appeal in the ordinary sense of the term before which the facts upon which the Court of Quarter Sessions had proceeded could be brought by way of review. "But," continued his Lordship, "the Court of Quarter Sessious, like every other inferior court in the kingdom, was open to this proceeding; if there was, upon the face of the order of the Court of Quarter Sessions, anything which showed that the order was erroneous, the Court of Queen's Bench might be asked to have the order brought into it, and to look at the order, and upon the face of it to put an end to its existence by quashing it— not to substitute another order in its place, but to remove that order out of the way as one which should not be used to the detriment of any of the subjects of Her MAJESTY." "I feel inclined," said Lord PENZANCE, "to base my judgment in this matter entirely upon the simple proposition that the Judicature Act says that there shall be an appeal from all judgments and orders of the High Court of Justice, and that the interpretation clause of the Act says that a rule is an order, and consequently sect. 19 is to be read as if it included the word rule." This view was taken by Lord O'HAGAN also. In the result the Court of Appeal has the jurisdiction contended for by the appellants. THE power of a municipal corporation to employ its borough funds in opposing attacks upon its rights or privileges is not very clearly laid down in the cases. In the Attorney-General v. Mayor and Corporation of Brecon, heard by the MASTER of the ROLLS on the 16th Dec., this exact question was raised. By a Bill in Parliament it was proposed to take away from the corporation a right of veto as to the erection of slaughter-houses in the borough, to enable a company to lower certain tolls without the consent of the corporation, and to give the latter the right of purchase of the company's property on certain terms, with the necessary powers of borrowing. The corporation opposed this Bill in both Houses, and not altogether unsuccessfully, and then sought to charge the expense upon the borough funds, there being no surplus, within the meaning of the 92nd section of the 5 & 6 Will. 4, c. 76, applicable to "the public benefit of the inhabitants." The corporation had not previously obtained the consent of their ratepayers to their opposing the Bill, as they are now empowered to do by the 35 & 36 Vict. c. 91, s. 4, and the above information was brought to restrain them from applying their funds in payment of the costs of their opposition. Perhaps our readers are acquainted with the 92nd section of the Act of Will. 4, which is one of the largest sections of an Act of Parliament ever passed, and provides for the application of the "borough fund," both when there is a surplus and when there is none. In the latter case certain specific objects are mentioned, and it may also be applied in payment "of all other expenses not therein otherwise provided for, which shall be necessarily incurred in carrying into effect the provisions of the Act." No mention is made as to the expense of any action or other proceeding seeking to take away the corporate property or attacking the corporate existence, which was apparently left to the general law. In the wellknown case of Reg. v. Mayor of Sheffield (L. Rep. 6 Q. B. 652) the question was argued as to the right of a corporation to apply the borough fund under the 92nd section in opposing a waterworks Bill, and the Court there held that, however bona fide the opposition was, the payments-there being no surplus-were not within the section, and the borough fund could not be so applied. Curiously enough, the case of Bright v. North (2 Phillips, 216), an important case on the general rights

of corporations having public duties to perform, was not cited, notwithstanding that there the LORD CHANCELLOR held that commissioners for the conservation of the banks of a river were justified in opposing a Bill attempting to interfere with the banks lower down, on the ground that the powers sought might possibly injure the banks of the river vested in and under the control of the commissioners. The ground of relief put forth by the court was simply that the commissioners were in the position of ordinary trustees, and were justified in the opposition for the protection of the trust property. The result of the Sheffield case was apparently the above-mentioned Act of 1872, which allows such an opposition if (by sect. 4) the consent of the ratepayers has been obtained. The questions argued in the Brecon case were first of all as to the effect of the Act of 1872 on the previous law; and, secondly, if that Act left the previous law as it stood, whether a corporation was justified under the old law in defending its rights and privileges when attacked, and expending its corporate funds for that purpose. The MASTER of the ROLLS delivered a long and most important judgment, in effect deciding they had such a right, and that the Act of 1872 left the same intact. In his opinion the effect of the various Municipal Corporation Acts is to relegate corporations from being absolute owners of their property and entitled to deal therewith in any way they like to that of trustees for the ratepayers-their ccstuis que trustent. The 92nd section no doubt does not give corporations any express power to apply their funds even in defending their existence or their property, but in his opinion, either under the general purposes of the section or the general law relating to trustees, a corporation is justified in expending its corporate funds in defending either its charter or its property when attacked. He further sees no distinction in principle between an attack on the property of a corporation, and one on its rights and privileges, and he did not, on an examination of the cases, think they conflicted with that view. If the Sheffield case did, then that decision could not stand in the face of the previous decision of a Superior Court in Bright v. North. The Act of 1872 he did not think altered the rights of the parties, although it had increased the responsibility of the corporation in showing the reasonableness of the expenditure, there being a means pointed out of obtaining the consent of their cestuis que trustent, the ratepayers, thereto. That being so, the question remained whether there was a sufficient interference attempted, and on the facts of the case his Lordship was clearly of opinion that a substantial interference was intended by the Bill with the rights and privileges of the corporation, and he therefore considered them justified in having opposed the passing thereof, and in defraying the costs of their opposition out of the borough funds.

was the correct one, and that the rule consequently included all actions commenced in the Chancery Division, which are sent down to one of the common law divisions to be tried by a jury: (Hunt v. The City of London Real Property Company, 37 L. T. Rep. N. S. 344.) By Order XL., r. 4 a, it is further provided that, "Where at or after the trial of an action by a jury the judge has directed that any judgment be entered, any party may, without any leave reserved, apply to set aside such judgment, and enter any other judgment on the ground that the judgment directed to be entered is wrong by reason of the judge having caused the finding to be wrongly entered with reference to the finding of the jury upon the question or questions submitted to them," and that such application must be to the Court of Appeal. The time within which proceedings under this rule must be taken is regulated by Order LVIII., r. 15, which says that "no appeal from any interlocutory order shall, except by special leave of the Court of Appeal, be brought after the expiration of twenty-one days, and no other appeal shall, except by such leave, be brought after the expiration of one year." ." The time will therefore depend upon the nature of the question which is submitted to the judge and jury. If, as in ordinary cases, they are trying the whole question in an action it will be a year. If the question before them is merely preliminary or subsidiary to other legal proceedings, as is the case in an interpleader suit, or where an issue of fact is ordered to be tried by a jury under the 6th, 27th, or 29th rules of Order XXXVI., then twenty-one days only is allowed. As a very short delay may deprive a suitor of his remedy by new trial under Order XXXIX., r. 1 a, it is very necessary that the proceedings under that rule, and those in which resort must be had to the Court of Appeal, should be carefully distinguished, and disastrous consequences have followed the misapprehension of them. Thus in Yetts v. Foster (38 L. T. Rep. N. S. 742), the judge at the trial directed a verdict for the plaintiff, and judgment was given accordingly. On appeal to the Court of Appeal it was held that a divisional court would have been the proper tribunal. So where a nonsuit was directed (Etty v. Wilson, 39 L. T. Rep. N. S. 93), and so also where certain questions were left to the jury, and judgment was entered pursuant to their findings (Davies and others v. Felix and others, 39 L. T. Rep. N. S. 322). The general principle deducible from these cases is, that wherever it is the decision of the jury that is quarrelled with, whether such decision results from what has been told them by the judge or otherwise, the application must be to a divisional court. Where, on the other hand, it is not desired to disturb the finding of the jury, but the ruling of the judge upon such finding is disputed, the application must be to the Court of Appeal.

The same rules deal with the subject in connection with the second mode of trial, viz., that before a judge. Order XXXIX., r. 1 a, says that, "Where the trial has been by a judge without a jury, the application for a new trial shall be to the Court of Appeal;" and Order XL., r. 4a, that, "Where at or after the trial of an action before a judge, the judge has directed that any judg ment be entered, any party may, without any leave reserved, apply to set aside such judgment, and to enter any other judg ment, upon the ground that, upon the finding as entered, the judgment so directed is wrong," and that here also the application must be to the Court of Appeal. The first of the above provisions may be said generally to apply to the judge's decision as respects the facts of the case, and the second, to his application of the law to those facts, and the only limitation in the new rules as to the time in such proceedings respectively is that contained in Order LVIII., r. 15, above mentioned. The decision of the facts, if separable from the decision of law, would clearly be interlocutory, and if separate orders were made the matter would be simple. The appeal, upon the facts alone, would always be brought within the twenty-one days, and the appeal from the raling of law within one year or within twenty-one days according to the nature of the question, while it would always be in the power of the court to order the two applications, if both were brought, to come on together. Separate orders are, however, not made, and the decision of law and fact are not always distinguishable.

In Krehl v. Burrell the Master of the Rolls, at the trial, which took place on the 6th Dec. 1877, ascertained that the issue of fact to be decided was whether the plaintiff was entitled to a right of way. After hearing the evidence he found in favour of the plaintiff's right, and that the defendant had obstructed it, but he postponed his judgment in order to give the parties an oppor tunity of coming to terms. On the 28th Jan. 1878, upon motion for judgment, he gave judgment for the plaintiff, granting him a mandatory injunction, and one order was drawn up embodying both the finding of fact and the judgment. On the 2nd April the defendant gave notice of appeal from this order, and, upon the preliminary objection being taken that the appeal was too late, it was held that the verdict of the Master of the Rolls upon the facts, having been separately given, was an interlocutory order, and therefore conclusive upon the expiration of twenty-one days.

In Cummins v. Heron (36 L. T. Rep. N. S. 41) an interlocutory application on summons to vary the chief clerk's certificate was heard by Vice-Chancellor Hall at the same time as the further consideration of the cause. The Vice-Chancellor refused to vary the certificate, and this refusal was embodied in the final order

which he at the same time made in the cause. On appeal from the whole order, after twenty-one days had elapsed, it was held that the order upon the certificate was no less interlocutory because it was contained in an order which was final. This, therefore, was an authority that in the present case the fact of the decision of Dec. 6th being embodied in the order of Jan. 28th did not prevent its being itself an interlocutory order, if it were separable, which, owing to the precaution of the learned judge who tried the case, it clearly was. "The fact," said Lord Justice Thesiger, "of the verdict being recorded in a document which records also the final judgment in the action presents no difficulty in the way of our decision. There may well be in substance two orders, when in form there is only one. Looking to the manner in which the Master of the Rolls has dealt with the question of fact, to his definite verdict or finding upon that question, which is entered in his registrar's book as having been given on the 6th Dec. 1877, and which is proved by the shorthand writer's notes to have been orally given on that day, we are of opinion that his verdict or finding was equivalent to an interlocutory order made by him upon that day, and could only be appealed from within twenty-one days." By the course which had been taken the court were therefore enabled to treat the decision upon the facts as something entirely separate and distinct. If, however, that course had not been followed, but a mixed judgment of law and fact, given, the following remarks of the Lord Justice show the opinion of the court in that event: "If, therefore, the Master of the Rolls had not tried and definitely found a verdict for the plaintiff upon the distinct issue of fact which was in dispute between the parties upon the hearing before him, we should have been of opinion that the case was one for which no special provision is contained in the Judicature Acts or Rules, and in respect of which therefore the jurisdiction of the court would, under sect. 23 of the Act of 1873, have to be exercised as nearly as may be in the same manner as it might have been exercised in Chancery before the passing of that Act, and consequently that the appeal upon fact, as well as law, would have been in time."

The course pursued by the Master of the Rolls was therefore obviously reasonable and in analogy with the practice in the common law courts, and with the intention of the Judicature Acts. In cases where his example is not followed, there will be, if the above opinion is substantiated by judicial decision, a wide diver. gence between the practice of the two branches, inasmuch as the time previously allowed for appeals in Chancery was five years, and if the question ever arises it may probably lead to some alteration in the law. With respect to litigation generally, practitioners will do well to study the judgment which has led to these remarks, as it cannot be too clearly remembered that the courts have been very chary in exercising their power under Order LVII., r. 6, of extending the time for judicial proceedings, and that a bona fide mistake of the remedy to which a man has been advised he is entitled has been held to be no sufficient ground for doing so.

THE EFFECT OF BANKRUPTCY ADJUDICATION. THE effect of an adjudication in bankruptcy, as regards third parties, is a question of great importance, and one about which there has long been some uncertainty. It was not until very lately that these doubts have been set at rest; but we have now, by the decision of the Court of Appeal in Ex parte Learoyd, Re Foulds (39 L. T. Rep. N. S. 525), a clear statement of the law under the present Bankruptcy Act 1869. This judgment, too, is final upon the point, as we read that the appeal to the House of Lords, for which leave was obtained, has since been abandoned. Lord Justice James, in referring to the hardship which it was stated would result from this decision, said that was "a matter to be dealt with by the Legislature, who are about to try their hands on another amendment of the bankruptcy law." In view of this new Bill, which now seemscertain to be brought forward, it may be well briefly to consider a case which so far settles an important point in bankruptcy law and legislation both as to principle and procedure. The facts of the case are short and by no means uncommon, giving rise indeed to some surprise that the point has not sooner been decided. Upon the 3rd Jan. 1878, a bankruptcy petition was presented against Foulds, a tailor, in the Halifax County Court, the act of bankruptcy alleged being that he, a trader, had departed from his dwelling-house upon the 31st Dec. 1877, with intent to defeat and delay his creditors. Upon this he was duly adjudged a bankrupt, and the order was advertised in the London Gazette as is usual and recessary. Foulds had given a bill of sale to one Payne on the 30th Aug. 1877, which was never registered, while the property assigned remained in the bankrupt's possession until the 1st Jan. 1878, when it was taken away by Payne, and sold on the 8th Jan. The trustee claimed the proceeds of the sale on the ground that his title related back to the 31st Dec. when the act of bankruptcy was committed, the goods then being in the bankrupt's apparent possession, and the County Court judge, holding this claim to be well founded, made the order asked.

From this decision the bill of sale holder appealed to the Chief Judge, contending, as we presume he had done before, that the evidence showed as a fact that the debtor had not departed from

his dwelling-house on the 31st Dec. with intent to defeat and delay his creditors. The argument therefore was that, although the adjudication recited that the act of bankruptcy had been committed, and that although without that act of bankruptcy there was no foundation for the adjudication, it could still be inquired into and determined, even while the actual adjudication itself remained and was recorded. The Chief Judge adopted this remarkable and, we venture to think, most illogical argument, and reversed the decision of the County Court. His judgment itself shows the inconsistency of the result attained, for in it he says of the adjudication: "It is an (official act which, unless and until reversed, must have its full effect. If anybody wants to upset the adjudication he must proceed in the regular way. But this is not the position of the appellant. He does not dispute the adjudication; he admits it, and says, 'Well and good. I do not dispute the adjudication, but you must prove that there was an adjudication before I took possession.' ." The Chief Judge then finds there is no evidence to support the act of bankruptcy alleged, and con-cludes by saying that the case is wholly undefended. When a trained judicial mind can so hopelessly entangle two questions, there is ample excuse for others less experienced. But the obvious fallacy is in not seeing that by disputing the act of bankruptcy you also dispute the adjudication upon which it is founded, and without which it must fall. The confusion here doubtless arose from thinking of other earlier acts of bankruptcy to which a trustee's title may relate, but which he must prove affirmatively, as they do not found the adjudication, and are not therefore proved thereby.

The Lords Justices have now reversed the decision of the Chief Judge, and have held that an adjudication of bankruptcy is, as long as it stands, conclusive, as against third persons, that the act of bankruptcy on which the adjudication was founded was in fact committed. This they do upon the words of sects. 10 and 11 of the Bankruptcy Act 1869, in accordance with the general tenor of legislation upon the point, and in agreement with the one case that touches the matter. Lord Justice James shortly reviewed the former statutes, and pointed out the inconvenience of allowing an adjudication to be disputed, except by way of appeal to have it annulled; both in this country and abroad where our laws apply. After referring to the clauses of the Act of 1849, he said of sect. 10, which is now in force, that "It swept away all those particular provisions, and substituted the one general provision," by which a copy of the London Gazette containing the order of adjudication "shall be conclusive evidence in all legal proceedings of the debtor having been duly adjudged a bankrupt, and of the date of the adjudication." The judgment then proceeds upon the unanswerable argument that "duly adjudged" necessarily involves the commission of an act of bankruptcy. The 11th section clinches the point, for it deals with the rights of third parties, and enlarges the trustee's title by giving him power to go behind the act of bankruptcy supporting the adjudication to any earlier acts that may have been committed. But these latter must be proved by evidence, whereas the former rests upon the Gazette showing the adjudication, of which it is in itself part and parcel.

The decision in the earlier case of Revel v. Blake (29 L. T. Rep. N. S. 67) was referred to for both sides of the argument. The Court of Exchequer Chamber there held that the adjudication itself was conclusive evidence that the court which made it had jurisdiction in the case. This was really going half as far as the present decision, and arose from an attempt to upset an adjudication by a third party on the ground that the County Court making the order had really no jurisdiction, as the debtor, in fact did, at the time, carry on business in London. But the judges refused to re-open the question, holding that the adjudica tion was good upon the face of it, and could only be set aside upon appeal to the Court of Bankruptcy. The other point was immaterial to the last case, and quite consistent with its decision. The Court allowed evidence to be adduced that the bankrupt was in fact a trader, though the adjudication described him as a nontrader, for the purpose of giving the trustee a title to goods taken in execution under sect. 87. But this was not an inquiry into. the act of bankruptcy founding the adjudication, which was noncompliance with a debtor's summons, and can therefore be committed by either a trader or a non-trader.

The argument for the bill of sale holder upon the appeal was, that it was a case of great hardship; and that the Legislature could not have intended that a third person who is not served with any notice, and has no knowledge of the adjudication until months afterwards, should be bound by the decision thereon that an act of bankruptcy was committed by which his rights had been destroyed. Certainly, looked at in this way alone, there seems some hardship in the matter, though even here it should be remembered, as Lord Justice Thesiger pointed out, that the administration of bankruptcy being for the interests of the general body of creditors, some separate individuals may have to suffer. But in answer to the complaint there is the appeal which is allowed to all persons aggrieved, under sect. 71, and which was decided to extend to third parties in the case of Ex parte Ellis (34 L. T. Rep. N. S. 705). Here the appellant was a bill of sale holder also, and he succeeded in annulling the adjudication. It is curious to remark that, in deciding that a third party had a right of appeal, Lord Justice Mellish, in his judgment in this case,

goes on to say: "Though he may not be bound by the order of adjudication, still it would so embarrass him that he may properly be said to be aggrieved by it." From which we see that this late eminent judge did not consider as at all certain the point now decided by the Court of Appeal.

The result is, that third parties are absolutely precluded from disputing the validity both of the adjudication and the act of bankruptcy upon which it is founded as long as the same remain recorded. Their only remedy is therefore to appeal to have the adjudication annulled, as it is clear they can do. But the question then arises, within what time, if any, must that appeal be made? Rule 143 of the Bankruptcy Rules 1870 allowed only twenty-one days, but the case of Ex parte Hayward (24 L. T. Rep. N. S. 782) shows that the court can and will extend that time, even after its expiration, upon good grounds. There was, however, a wider point than this raised in the course of the argument of the case under discussion, for Lord Justice James there said: "The time limited by rule 143 for bringing an appeal may perhaps not apply to any one who was not a party to the order appealed from." This is not indeed mentioned again in any of the judgments delivered; but we presume that, after this intimation, even if the rule did apply to third parties, the court would use their discretion in enlarging the time for appeal upon sufficient cause being shown. Some point was made in argument of the trouble that might arise from an appeal setting aside an adjudication some months afterwards, and when the estate had been partly administered; but this, we fancy, would be but of rare occurrence, and can be dealt with where it happens. The act of bankruptcy founding a petition is, as a rule, proved most conclusively before the court arrives at a decision and adjudicates, and it could seldom be disproved.

For these reasons we think that the decision now arrived at is the right one, and we hope that it will be kept in view by those framing the new Bankruptcy Bill. That an adjudication is conclusive evidence of itself, and also of the act of bankruptcy upon which it rests, is a plain principle of procedure that can be at once understood and acted upon. It is indeed no more than the present position of any judgment of a court of record, which, as long as it lasts, is conclusive evidence of the debt or damage upon which it is founded; and in the event of any dispute must first be set aside. The power of appeal within a time which the court can always enlarge sufficiently meets the hardship of the rare cases that may happen, but for which no other legislation is necessary or desirable.

LAW LIBRARY.

A Digest of the Principles of the Law of Trusts and Trustees. By HENRY GODEFROI, Barrister-at-law. London: Stevens and Sons. THIS is a curious book, more remarkable for its imperfections than anything else. It is not, we are told, a digest in the sense in which that word is used by jurists. This is the statement in the preface, which in itself is a remarkable bit of explanation. The object of the volume is to give in a concise form the principles which guide the Courts of Equity in matters of Trusts. To do this in the form of a digest is impossible without defeating the object of the work. This is to us absolutely unintelligible. We can, however, understand why our author did not attempt a digest. He has not, in our opinion, the necessary qualifications for such a work. What he has done is to make a number of short notes of decided cases, and arrange them under headings, without very much regard to order bent on carrying out "elimination" and "condensation," without providing any compensating advantages. For example, into what category can we put the following:

"OF ILLEGAL TRUSTS.

"The court will not enforce trusts which contravene public policy, or which infringe a statute or some rule of law.

"A trust of money to procure a peerage is void. As to trusts attempting to control the limitations of a peerage, see, &c. "All trusts which offend against public morals or religion are void.

"As to what will constitute an illegal trust as being against received religious doctrines, see,' &c."

This is simply a very cumbersome kind of index to cases. Perhaps, however, the most remarkable portion of the volume is that on "Getting in Wasting Securities." We will give some examples:

"The use of the word 'rents' to show an intention that the leaseholds are to be taken specifically (7 authorities cited). "Or 'dividends' (3 authorities); but see (5 authorities). "Or 'income' (3 authorities).

"Or 'profits (one case cited).

On p. 93 we read, "An inference against a conversion is to be drawn from the presence of a direction to convert," and a reference is given to Thursby v. Thursby (19 Eq. 408). This page should be 395, unless it is meant that expression is given to this luminous principle at p. 408. We have looked for it, but again find ourselves in inferences. Perhaps, however, we have not sufficient knowledge to enable us to appreciate a proposition so terse in its form.

We hardly know to what to attribute the unfortunate result of Mr. Godefroi's labours. We should say that he is not wanting in capacity. We conjecture that he found himself hampered by the mass of materials lying ready to his hand, and felt embarrassed as to the use to be made of them. We fear that practically the work will be of little value. It is not a treatise, and it is not a digest. It is an imperfect collocation of principles and facts of particular cases. With more care and labour our author might have produced a digest. He has tried his hand at a large scheme without, apparently, having the time or the industry to carry it out. The utmost we can say for him is, that he may have shown the way to others who may prove more ambitious and more painstaking. The Edictum Julianum. By Bryan Walker, M.A., LL.D., Law Lecturer of St. John's Coll. Camb., &c. Cambridge University Press.

THIS is one of the latest, we believe quite the latest, of the contributions made to legal scholarship by that revived study of the Roman law at Cambridge which is now so marked a feature in the industrial life of the University. We are glad that Dr. Walker was not content to establish his title to gratitude solely upon the editions of Gaius and Justinian which are due to him as joint labourer with Dr. Abdy. In the present book we have the fruits of the same kind of thorough and well-ordered study which was brought to bear upon the notes to the Commentaries and the Institutes. In presenting to Englishmen in a readable form the frag ments of the Perpetual Edict of Salvius Julianus, Dr. Walker has used every effort to avail himself of all the light which continental scholars have thrown upon these fragments; although it cannot but be regretted that the work of Rudorff was not in his hands before he set to work. It is very difficult for one person labouring alone to keep completely abreast of all that is being done in respect of his special subject by German scholars. In his introduction Dr. Walker gives a very clear summary account of the history of the Prætorian jurisdiction, of the various names given to the Prætorian Edict, and of the general scheme of the Edict of Julian. This last, he tells us, began with a Procenium containing a few regulations which could not be classified in any of the four parts which followed. The first part treated of initial proceedings in an action down to the issue of the formula by the Prætor; the second part of the proceedings in judicio; the third, of the effects of judg ment or of confession, and herein of Possessio Bonorum; and the fourth, of the remedies springing from the Prætor's imperium. The conclusions of Hoffter are much relied upon by the writer. Hitherto the Edict has been almost inaccessible to the ordinary English student, and such a student will be interested as well as perhaps surprised to find how abundantly the extant fragments illustrate and clear up points which have attracted his attention in the Commentaries, or the Institutes, or the Digest. An English translation of the original text might with advantage have been added as an appendix.

NEW EDITIONS.

Daniel's Chancery Forms and Precedents. Third edition. By WILLIAM HENRY UPJOHN, Student and Scholar of Gray's-inn. London: Stevens and Sons.

We have had this work in practical use for some weeks, and so careful is the noting up of the authorities, so clearly and concisely are the notes expressed, that we have found it of as much value as the ordinary text books on the Judicature Acts. We have spoken of "notes," but Mr. Upjohn has written above and below the forms, and those which are not notes he calls dissertations. These dissertations summarise the practice not only as to matters assigned to the Chancery Division, but also as to matters which, being begun in the Common Law Divisions, may come into the Chancery Division. An excellent specimen of exposition on practice is found at the outset of the volume on Parties. The first section treats of parties generally, and the second deals with adding, striking out, and substituting parties. Equally useful are the remarks on "plaintiff's proceedings in an action for the recovery of land" (p. 201), and Chapter 18 on "Execution." The precedents now include all the forms in the schedule to the Judicature Acts, and we agree with Mr. Upjohn in thinking that it will be as useful a work to practitioners at Westminster as it will be to those in Lincoln's-inn. The labour entailed in the compilation must have been severe, and we venture to predict a complete success for this new edition of an old friend.

Mr. BUCKLEY'S valuable work on the Companies Acts has reached a third edition. (London: Stevens and Haynes.) Our author says in his preface: "The decisions of the last three years have been numerous and important. The legislative changes have been few. The Companies Act 1877, and the 10th section of the Judicature Act 1875, are the only new statutory enactments of importance. Of these the former deals solely with a single isolated question of company law, while the latter contains within a small compass the possibility of modifications in the rights of creditors to which it would be difficult at present to assign a limit." As Mr. Buckley gave his personal attention to the revision of the work (assisted by Mr. A. C. Eddis), the Profession may rely upon its accuracy.