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"On giving a notice of motion to commit a defendant for contempt for disobeying an order for discovery the plaintiffs omitted to serve with the notice of motion a copy of an affidavit, which they stated in the notice that they should read in support of the motion. Held, that rule 4 of Order LII. applied to such a motion, and not only to a case in which a writ of attachment would have been issued under the old common law practice, and that the motion was therefore irregular."

The Master of the Rolls, who, as Mr. Cozens-Hardy, Q. C., had appeared for the respondent to this motion before Mr. Justice North in 1884, said that the case was argued on both sides with regard to a motion of attachment and that, any other view of the case as reported would have made the judgment of Mr. Justice North irrelevant. No other authority on the question was to be found in the books, and although the text-writers had adopted the view that affidavits must be served with the notice of motion, whether to commit or attach, that was because they had accepted the statement of the law contained in the headnote to Litchfield V. Jones in the Law Reports. It was contrary to the plain meaning of the rule that it should apply to motions to commit, and inconsistent with the policy of the rules on the subject. It was never intended, said the Master of the Rolls, to treat committals and attachments as identical in the Rule, and although there is no good reason in practice why they should not be so treated, it is not likely after this judg ment of the Court of Appeal that they will be again regarded as synonymous until there is some further amendment of the Rules which puts them formally, so far as procedure is concerned at least, on the same footing.

REDEMPTION OF DEBENTURES.-A person who subscribes for a debenture may look to a transfer of the debenture as a means of getting his money back when he wants it, and the company are, therefore, able sometimes to introduce their own provisions as to repayment in the debenture; but the recent decision of Parker, J., in Re Tewksbury Gas Co. (1911, 2 Ch. 279), shews that such provisions must not contradict the primary liability of the company to pay the debt; they cannot leave the payment to the option of the company. In that case debentures issued in 1892, contained an agreement for repayment "on or

after 1st January, 1898," and provision was made for redemption of the debentures, and for determining by ballot which should be repaid. The 1st of January, 1898, passed, and the company never held any ballot or paid off any debentures, but they regularly paid the interest. A transferee of a debenture gave six months' notice requiring repayment, and on the money not being paid, sued for it, and Parker, J., held that the action was maintainable. The provision for payment on or after the fixed date allowed the company to postpone payment till that date, but the money then became payable on demand; and the provision under which the company might at their option hold a ballot, and repay according to the ballot, was repugnant to their primary liability to repay, and was void. The learned Judge also followed Re Chicago and North-West Granaries Co. (1898, 1 Ch. 263), in holding that a debenture cannot be construed by reference to the prospectus in pursuance of which it was issued. The contract between the company and the debentureholder is contained in the debenture, and the prospectus cannot be looked at for the purpose of seeing what the contract was.

LIEN FOR COSTS ON PROPERTY RECOVERED.-The decision in Re Cockrell's Estate (1911, 2 Ch. 318), is unsatisfactory from the solicitor's point of view, for it shews that although a solicitor may be entitled to a lien on property, under sec. 28, of the Solicitors Act, 1860, for the costs of proceedings to recover or preserve it, yet he may lose the benefit of his lien in consequence of his client being indebted to the estate of which the property forms part. Section 28, provides that where a solicitor is employed to prosecute or defend any suit, matter or proceeding in any Court of justice, the Court may declare him entitled to a charge upon the property recovered or preserved. In Re Cockrell's Estate the action was a creditor's action brought in 1907, for administration of the estate of a testator who had died in 1901. One of the executors died in 1908, having been previously declared a bankrupt. The plaintiff asked for the sanction of the Court to a provisional sale of property form-' ing part of the estate for £383. The solicitor of the surviving executor opposed this, and a sale by auction was ordered and produced £400. The surviving executor was found to be indebted to the estate to the extent of £64, and on further

consideration he was allowed his costs, but these were to be set off against the £64 due. Owing to his circumstances, this meant that his solicitor would not be paid, and the solictor sought to avoid this result by applying for a lien on the £400 for his costs of the sale. At first sight it may not be clear that any property was "recovered or preserved" in a "suit, matter or proceeding;" but Neville, J., held, that these words were wide enough to cover the realization of property under the order of the Court, and hence the case was one in which the declaration of lien might have been made, notwithstanding that the actual benefit, having regard to the costs of the sale, was nil. But the previous order as to costs had, in the learned Judge's opinion, rendered this impossible. The client had already obtained an order for payment of his costs, including the costs incident to the sale, and provision had been made for their payment by set-off. In these circumstances, to have allowed the lien would have been equivalent to paying the costs twice over, and the application, therefore, was refused.

FORFEITURE OF DEPOSIT.-It is a well-known principle of law that a person cannot enjoy the advantages of rescission without yielding up every benefit he has taken by the previous part performance of the contract. It follows that a vendor cannot have rescission and damages for breach of a contract. But an exception occurs, or was thought to occur, in the case of a deposit paid to the vendor on a sale, and it seems to have been established by Dunn v. Vere (19 W. R. 151), and Howe v. Smith (27 Ch. D. 89), that, in the absence of a stipulation to the contrary, the intention will be implied, from the very nature of the deposit, that it shall be a guarantee for the purchaser's due performance of the contract, and shall be forfeited on his default to the vendor. It is true that in Macbeth v. Marlar (1 Cox 259), a vendor suing for rescission was decreed to return the deposit, but the point there was not argued or contested, and the decision must be taken as overruled by Howe v. Smith. Then came the case of Jackson v. De Kadich (1904, W. N. 168), where the deposit was in the hands of stakeholders, and the vendor asked for rescission and a declaration that he was entitled to the deposit, but Farwell, J., said the vendor could not have rescission, and at the same time damages for the breach of the contract; that in Howe v. Smith

there was no rescission, and in the absence of authority, he declined to make the declaration asked for. The learned Judge, however, was clearly wrong in saying that there was no rescission in Howe v. Smith; the vendor there had elected to rescind, and had, in fact, rescinded by reselling the property as owner. We discussed the matter before in relation to a decision of Neville, J., in Jones v. Burnell (since noted in W. N. 1911, p. 153). Curiously enough, the point again came before the Court for decision in Hall v. Burnell, when Eve, J., regretted that he should have to decide so important a point on the last day of the sittings. In that case the deposit had been paid to the plaintiff's solicitors as stakeholders, and the contract contained no clause as to forfeiture; the vendor asked for rescission and a declaration that he was entitled to the deposit. Eve, J., said he could not conceive that the fact of the deposit being in the hands of stakeholders could make any difference; he did not think Farwell, J., fully understood the facts in Howe v. Smith, and he made the order asked for. The point, therefore, seems to be finally settled.

NEW TRIALS IN CRIMINAL CASES.-The judgment of the Criminal Appeal Court in Rex v. Ellson, is also important as containing what can only be regarded as a strong protest against the policy of the Criminal Appeal Act, and an equally strong suggestion for the amendment of the Act, addressed to the legislature. Darling, J., of course, voicing the Court itself, said that it was greatly to be regretted that a new trial could not be ordered, as would have been the case in civil proceedings, where a verdict is set aside on the ground of misdirection: "It was desirable that all the facts should again be submitted to a jury with an adequate and proper direction, and they hoped that what he was saying would at all events be considered by those who had power to amend the law in this respect." With all deference to the Court of Criminal Appeal, it is by no means certain that the powers that be would be well-advised to "amend the law in this respect." The policy of the Criminal Appeal Act, 1907, is to afford facilities for the accused person to appeal from a conviction, not to enable the Crown to appeal against acquittals. Where "a point of law of exceptional public importance" is involved, sec. 1 (6) of the Act makes provision for an appeal to the House of

Lords by either prosecution or defendant, and one case under this enactment has occurred-Rex v. Ball (1911, A. C. 47). But this is the only instance in which the Act of 1907, does anything to enable the prosecution to appeal against acquittals. And the possibility that a villain may have escaped the hangman through the net provided by the Criminal Appeal Act, does not seem to be sufficient justification for further trenching on the broad differences that still exist between criminal and civil procedure. It is rather implied, in the strong remarks of the Court of Criminal Appeal in the case of Rex v. Ellson, that the want of power to order a new trial as in civil cases is a defect, or possibly a casus omissus, in the Criminal Appeal Act. It is submitted that the power of ordering a new trial was not accidentally omitted from the Act of 1907, and is better not conferred in criminal cases.

MORTGAGEES' COSTS.-Williams v. Jones, raised a rather important question with regard to mortgagee's costs. The mortgagee realized his security and admitted having in hand a surplus of £103. The mortgagor refused to accept that statement, and brought an action for account, the result of the account being to increase the surplus to £199. Each party claimed to recover costs against the other, and the question was whether this was an action in which the mortgagee was entitled as of right to his costs unless he had forfeited them by misconduct, or whether it was an action in which the incidence of the costs was in the discretion of the Court. On behalf of the mortgagee, it was contended that the action was in substance a redemption action, or partook so largely of the nature of redemption action as to involve the application of the well settled rule as to costs in redemption actions. On the other hand, it was said that this was not a redemption action, but one in which a cestui que trust was asserting, and a trustee was denying, the exist ence of a trust fund in the hands of the trustee. Eve, J., thought that the latter contention ought to prevail, and held that the action was not one in the nature of a redemption action, and therefore the costs were in the discretion of the Court. The learned Judge seems to have assumed, and the point was not argued, that the rule as to mortgagees' costs only applies to actions for foreclosure or redemption. But is this so? It is true that Lord Selborne in Cotterell v.

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