He cited Mayor of Rochester v. The Queen, 27 L. J. Q. B. 434; Reg. v. Mayor of Monmouth, L. R. 5 Q. B. 251, 18 W. R. Dig. 19.

LAWRANCE, J.-I am of opinion that this rule should be discharged. The sole point is whether a revising barrister has the right to manage the business in his own court. It is contended on behalf of the applicant that at any time prior to the actual moment when a claimant's name is struck off the list he has a right to appear before the revising barrister and have the claim heard. On the other hand, it is said that the revising barrister has power to make arrangements for the transaction of the business of his court. In this case the barrister gave notice that he would hold his court on the 16th and 17th of September, and that the list would be closed on the 17th. That was done, and by eight o'clock on the 17th the claims and objections of all persons who had attended the sitting of the court had been determined by the barrister in accordance with 6 & 7 Vict. c. 18, s. 41, and the barrister then declared the list closed. On the following day the revising barrister sat in open court in order to initial the names which had been inserted or expunged, and the only question in this case is whether a person could then come, while the list was being initialled, and put forward a claim. In my opinion there is no such right as is contended for. In large towns, where the lists are very long, it would be impossible ever to get through the business if claims and objections were being put forward while the list was being read and initialled. The applicant in this case did not appear when the court was being held, and that being so he has no right, in my opinion, to appear in support of his claim after the list has been closed and when the purely clerical work is being done.

COLLINS, J.-I am of the same opinion. I am clear that no case has been made out either for a mandamus or a special case, and I have very little to add to the reasons given by Lawrance, J. The practice which has been adopted by the barrister is one entirely in the interests of the public, for it would be most inconvenient if all persons with claims had to sit in court while lists of enormous length were being read, and to have their claims dealt with intermittently. Mr. Soden therefore very properly laid down the rule that he would on the first two days deal in open court with the claims and objections, and then when he had disposed of all the cases in court he would deal with the clerical work. When the revising barrister closed the list he had adjudicated on all the claims and had finally decided against the claims of all persons who had not attended the court and supported their claims. The next day this final decision was formally recorded in the manner provided by the statutes, but after the revising barrister had declared his decision by closing the list no one had a right to be heard, although the purely formal work still remained to be done.

Rule discharged.

The applicant appealed.

May 4.-Mattinson, Q.C., and Sylvain Mayer, for the appellant.

W. Graham, for the respondent, was not called upon. Lord ESHER, M.R.-It seems to me that the revising barrister has in this case followed the ordinary course adopted by revising barristers generally. He had given due notice of the days on which he was going to sit for the purpose of revising the lists for the East Division of Leeds, and he had given notice that the lists for that division would close on the evening of the last day. Accordingly, at the close of

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the sitting on the evening of the last day the revising barrister asked the agents on both sides whether there were any more claimants or persons objected to present who desired to be heard, and he was told that there were none. He also made inquiries in open court, and no one came forward to be heard. Therefore the agent who acted for the appellant said in effect that the appellant was not present and did not desire to be heard. The revising barrister thereupon declared the lists closed. That was in effect a decision that the name of the appellant should be struck out. The next day the revising barrister had only to go through the manual labour of initialling the names inserted or struck off, and such like work. The appellant had no right to be heard then, and the mandamus was rightly refused.

A. L. SMITH, L.J.-I am of the same opinion. The revising barrister gave due notice that he would hold his court on Monday and Tuesday, the 16th and 17th of September, to revise the lists, and that the lists would close on the evening of Tuesday. On Tuesday evening accordingly he asked the agents and made inquiries in open court whether anyone else desired to be heard in support of his claim, and no one applied to be heard. On the next day he initialled the names inserted or struck out. Thereupon the appellant applied to have his claim heard and adjudicated upon. The revising barrister refused to hear him, and in my opinion he was not entitled to be heard then. I can see no ground for this application for a mandamus.

RIGBY, L.J.-I am of the same opinion.
Appeal dismissed.

Solicitors for the revising barrister, Hickin, Smith, & Capel Cure.

Solicitors for the applicant, A. Scott Lawson, for Walter & E. H. Foster, Leeds.

Landlord and tenant-Lease-Stipulation for payment of additional rent of £3 per ton by way of penalty for every ton of hay or straw sold off the premisesMaterial difference between manurial value of hay and straw-Penalty-Liquidated damages-Stipulations of varying importance.

A lease of a farm contained a stipulation that the lessee should pay additional rent at the rate of £3 per ton by way of penalty for every ton of hay or straw which should be sold off the premises during the last twelve months of the tenancy. It was proved that there was a material difference between the manurial value of hay and the manurial value of straw.

Held, that the sum of £3 per ton was a penalty, and could not be recovered as liquidated damages.

Wright v. Tracey, 7 Ir. R. C. L. 134, not followed. Application for a new trial or judgment. The plaintiffs were the executors of the lessor of a farm, and the defendants were the executors of a deceased lessee and the surviving lessee. The action was brought on the expiration of the lease to recover liquidated damages at the rate of £3 per ton for hay or straw sold off the farm during the last twelve

(a.) Reported by F. G. RUCKER, Esq., Barristerat-Law,

months of the tenancy, or in the alternative for unliquidated damages for breach of covenant.

The lease was expressed to be for a term of twentyone years at a certain rent payable by half-yearly payments, and contained the following clause: And also yielding by like half-yearly payments the additional rent of £3 per ton by way of penalty for every ton of hay or straw which shall be sold off the premises during the last twelve months of the tenancy, provided also that for every ton of hay or straw so sold off the premises before the lastly herein before mentioned twelve months the lessees shall bring an equivalent in manure on the land."

The lease also contained a covenant on the part of the lessees that they would not during the last twelve months of the tenancy sell or dispose of or carry away any hay, straw, grass, clover, turnips, or fodder, which should grow upon or be produced from the demised premises or any part thereof, but would spend and consume the same upon the said premises.

The action was tried before Collins, J., and a jury. It was admitted that the defendants had sold hay and straw off the premises, and the defendants had paid into court the sum of £62 10s. The learned judge, being of opinion that the sum of £3 per ton mentioned in the lease was a penalty and not liquidated damages, left to the jury the question what was the manurial value of the hay and straw sold off the premises. Evidence was given showing that the manurial value of hay was from 15s. to £1 per ton, and the manurial value of straw was 4s. or 5s. less. The jury, having found that the manurial value was £60, judgment was entered for the defendants.

The plaintiffs asked for a new trial or judgment on the ground that the learned judge had misdirected the jury on the question of damages. They contended that the sum of £3 per ton was liquidated damages, and that they were entitled to damages at that rate. Forbes, Q.C., and H. F. Manisty, for the plaintiffs. Channell, Q.C., and W. A. Meek, for the defendants.

The following cases were cited: Kemble v. Farren, 6 Bing. 141; Astley v. Weldon, 2 B. & P. 346; Magee v. Lavell, 22 W. R. 334, L. R. 9 C. P. 107; Sainter v. Ferguson, 7 C. B. 716; Wright v. Tracey, 7 Ir. R. C. L. 134, 21 W. R. Dig. 132; Dimech v. Corlett, 12 Moore, P.C., at p. 229, 7 W. R. H. L. Dig. 10; In re Newman, Ex parte Capper, 25 W. R. 244, 4 Ch. D. 724; Wallis v. Smith, 31 W. R. 214, 21 Ch. D. 243; Lord Elphinstone v. Monkland Iron and Coal Co., 11 App. Cas. 332, 35 W. R. Dig. 68.

Lord ESHER, M.R.-The question is whether the sum of money in dispute is a penalty or liquidated damages. It is clear that if it is liquidated damages, there was nothing to be done but for the jury to give a verdict for that sum; but if it is a penalty, then it would be the duty of the jury not to give a verdict for that sum, but to determine the true damages to which in their opinion the plaintiff was entitled. It is equally clear that the question whether it was a penalty or liquidated damages was for the judge, though any facts which it might be necessary for him to know in order to determine that question might be left by him to the jury. He had to determine the question on the construction of the lease, and a fact which it was necessary for him to know was whether there was any difference between the manurial value of hay to be consumed on the farm and the manurial value of straw to be consumed on the farm. It was shown that there was a difference-viz., a difference of 5s. a ton. The learned judge thought that it was a material difference, and, inasmuch as by the terms of the lease the sum of £3 a ton was to be paid

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whether there was a breach with regard to hay or a breach with regard to straw, he held that the sum was a penalty. The parties themselves say that the sum is to be paid as additional rent by way of penalty. It is argued that it ought to be considered as rent, and treated as such. The contention is that it is not expressed to be payable as a penalty, but merely by way of penalty. I cannot see the distinction which is sought to be drawn. That, however, is not decisive. If we were now laying down the law on the subject for the first time, I should be disposed to say that we ought to keep the parties to what they have said, and that as they have called the sum a penalty, it ought to be treated so. But it has been held that the use of the word "penalty" is not conclusive, and that the circumstances are to be looked at. No case, however, says that the words used are to be disregarded.

I think it is true that there is no absolute decision on the point now before us except the Irish case of Wright v. Tracey. But there is a series of dicta of great judges on the question. In Wallis v. Smith Jessel, M.R., went through them all and criticised them, and showed that he did not agree with them. His opinion was that the parties ought to be bound by the words which they had used. But since then the point has been before the House of Lords in the case of Lord Elphinstone v. Monkland Iron and Coal Co. I think that they did not actually decide the point now before us, but it seems to me that they followed the previous dicta of which Jessel, M.R., had disapproved. Lord Watson said: "When a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage, the presumption is that the parties intended the sum to be penal and subject to modification." If, instead of " trifling damage," he had said "less substantial damage," then I think his statement would support the previous dicta. Lord Herschell said: "The agreement does not provide for the payment of a lump sum upon the non-performance of any one of many obligations differing in importance. It has reference to a single obligation, and the sum to be paid bears a strict proportion to the extent to which that obligation is left unfulfilled." In the present case there is a substantial difference between the two obligations for the breach of which compensation is to be paid; yet the same sum is payable in the event of the breach of either. Therefore I think that it is a

penalty, and not liquidated damages. We are not bound by the Irish case; and, in my opinion, the appeal must be dismissed.

A. L. SMITH, L.J.-The lease contains a covenant that if the tenant shall remove hay or straw during the last twelve months of the tenancy he shall pay additional rent at the rate of £3 per ton by way of penalty. The defendant says that this sum cannot be recovered as liquidated damages, but that the plaintiff must show the damage which he has actually suffered. I have no doubt that the covenant ought to be so construed. There are two separate stipulations, one as to hay, the other as to straw, and evidence was given showing these stipulations to be of varying importance; and I take it to be the law that where one sum is fixed for breach of stipulations of varying importance that sum is prima facie to be treated as a penalty. I do not think that the use of the word " penalty" in the covenant is conclusive; but when, as seems to me to be the case here, the circumstances show that the sum is one which the courts treat as a penalty, the fact of that word being used by the parties seems to me to make the case stronger,

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It

RIGBY, L.J.-I have not so clear an opinion on this question as the other members of the court. is a question on which learned judges have taken different views. In my opinion the courts have gone wrong in departing from the principle of giving effect to the intention of the parties in construing written agreements. The result has been that it is now impossible to reconcile the various decisions in accordance with any principle. The conclusion to which I have come is that I do not feel able to dissent from the judgment of Collins, J., in this case, though I confess that I have a good deal of doubt on the matter.

KISSAM v. LINK. (a.) Banker-Inspection of banker's book-Banker resident in Scotland-Jurisdiction--Bankers' Books Evidence Act, 1879 (42 Vict. c. 11), s. 7.

The English court has jurisdiction under section 7 of of the Bankers' Books Evidence Act, 1879, upon an application made in an English action, to order inspection of a banker's books where the banker is resident in Scotland.

Appeal from an order made by Care, J., at chambers.

This was an application by the plaintiff under section 7 of the Bankers' Books Evidence Act, 1879, for liberty to inspect and take copies of entries in the books of the Union Bank of Scotland (Limited), of Glasgow, containing the account of the defendant.

The application was granted by the master, but his order was reversed by Cave, J., on the ground that there was no jurisdiction to make such an order on a Scotch bank.

The plaintiff appealed.

A. T. Lawrence, for the plaintiff.-By the terms of section 7 the application can only be made by a party to a legal proceeding; and section 10 shows that the court to which the application is made must be the court in which the legal proceeding is held or taken. Therefore in this case the order can only be made by the English court. There is nothing in the Act which says that the order cannot be made by an English judge when the banker is resident in Scotland.

C. C. Scott, for the defendant.-There is no jurisdiction to make the order. The banker must be a banker over whom the court has jurisdiction. The Act does not provide any machinery by which an order could be enforced against a Scotch or Irish banker; and the court will not make an order which cannot be enforced.

Lord ESHER, M.R.-The question is whether an English judge may make an order under the Bankers' Books Evidence Act on a banker resident in Scotland. The interpretation clause says that the expression judge" in the Act means, with respect to England, a judge of the High Court of Justice. I think that the

(a.) Reported by F. G. RUCKER, Esq., Barristerat-Law.

a

meaning of that is that where the cause is in England the order is to be made by a judge of the High Court. There is no limit in the Act as to where the banker may be resident. Therefore, where the cause is in England, the order may be made by a judge of the High Court, though the banker be resident in Scotland.

I therefore think that the appeal must be allowed.

A. L. SMITH, L.J.-I am of the same opinion. This is an application under section 7 of the Bankers' Books Evidence Act, which says that "on the application of any party to a legal proceeding a court or judge may order that such party be at liberty to inspect and take copies of any entries in a banker's book for any of the purposes of such proceedings.” Section 10 says that the court means the court, judge, arbitrator, persons, or person before whom a legal proceeding is held or taken; and "a judge" means with respect to England a judge of the High Court of Justice, and with respect to Scotland a lord ordinary of the Outer House of the Court of Session, and with respect to Ireland a judge of the High Court of Justice in Ireland. Further, the judge of a county court may, with respect to any action in such court, exercise the powers of a judge under the Act. The Act clearly applies to Scotland and Ireland; and in my opinion, where the action is proceeding in England, the order may be made by an English judge on a banker who may be resident in Scotland or Ireland.

It is said that there is no machinery provided by the Act by which an order if made against a Scotch or Irish banker can be enforced. I am not at all sure that that is correct. But however that may be, I think that there is power to make the order. RIGBY, L.J., concurred.

66

The statement of claim in an action for the recovery of land contained the following paragraph: By the will of the said H. L., mude on the 27th of February, 1785, and duly proved on the 18th of July of that year, the said M. L. became entitled to the said estates in fee in reversion on the determination of certain estates tail limited in the said will.”

Held, that the paragraph was properly pleaded under ord. 19, r. 21, and that it was not necessary to set out the precise words of the will.

Appeal from an order of Lawrance, J., that a paragraph in a statement of claim should be struck out as embarrassing.

The statement of claim in an action for the recovery of land alleged that in 1728 Mary Taberner was seised in fee and in possession of certain lands and hereditaments, and that in 1765 Mary Taberner married Holt Leigh, and they jointly levied a fine of the said estates to certain uses limited therein.

The 4th paragraph was as follows: "By the will (a.) Reported by F. G. RUCKER, Esq., Barrister-atLaw.

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of the said Holt Leigh, made on the 27th of February, 1785, and duly proved on the 18th of July of that year, the said Mary Taberner or Leigh became entitled to the said estates in fee in reversion, on the determination of certain estates tail limited in the said will."

The statement of claim then alleged that the last of the said estates tail was determined by failure of the issue of the said Holt Leigh in or about the month of June, 1868, and that the plaintiffs were entitled in fee as heirs at law of the said Mary Taberner or Leigh. The plaintiffs claimed possession of the said estates.

The defendants took out a summons under ord. 19, r. 27, asking that the 4th paragraph of the statement of claim might be struck out as embarrassing, inasmuch as it did not sufficiently set out the words of the will.

Lawrance, J., having ordered that the paragraph should be struck out unless it was amended within a certain time, the plaintiffs appealed.

C. A. Russell, for the plaintiffs.

Ambrose, Q.C., and R. Eaton White, for the defendants.

Lord ESHER, M.R.-In this case the question is whether the plaintiff has pleaded improperly so as to make it right that the judge should order part of his statement of claim to be struck out. That seems to me to depend on whether he has followed the terms of ord. 19, r. 21, which says that "wherever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material." In the case of Philipps v. Philipps, 27 W. R. 436, 4 Q. B. D. 127, things were said, which, I think, throw light on the meaning of that rule. A distinction was drawn between two kinds of facts-viz., facts which it is necessary for a party to prove in order to support his case, and facts which are evidence of those necessary facts. In pleading, as a general rule, the party ought to state the facts which it is necessary for him to prove. Rule 21 deals with facts which are evidence of the facts which have to be proved. The question is how to deal with a document which is evidence of facts to be proved. The rule says that it is sufficient to state the effect thereof as briefly as possible. That is the general rule, to which there is this exception: "Unless the precise words of the document or any part thereof are material." This exception refers to cases of libel, and although in my opinion we ought not to say that it is confined to libel, still I think that the cases other than libel in which the precise words of a document are material, must be very few. But are the precise words material here ? I think not. The effect of the document is material, and the plaintiff, having stated the effect, has not broken the rule. The case of Philipps v. Philipps is not against our present decision. The paragraph in question is properly pleaded, and ought not to be struck out. The appeal

must therefore be allowed.

LOPES and RIGBY, L.JJ., concurred.
Appeal allowed.

Solicitors for the plaintiffs, Cartwright & Cunningham, for Donnison & Edwards, Liverpool.

Solicitors for the defendants, White, Borrett, & Co.

From Q. B. Div.

(Lord Esher, M.R., and Lopes and Rigby, L.JJ.)

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March 23.

By a mortgage deed the mortgagor attorned tenant to the mortgagee from year to year, there being a clause in the deed that the mortgagee might at any time, without giving any previous notice of his intention to do so, enter upon and take possession of the premises and determine the tenancy created by the attornment. The mortgagee having brought an action to recover possession of the premises,

Held, that the tenancy created by the attornment clause was a tenancy at will which the mortgagee could determine at any time; that the claim to possession was not based on a forfeiture; and that the writ could be specially indorsed under ord. 3, r. 6 (f), and judgment for possession signed under ord. 14, r. 1.

Arden v. Boyce, 42 W. R. 354, [1894] 1 Q. B. 796, distinguished.

Appeal from an order of Cave, J., at chambers giving the plaintiffs leave to sign final judgment for possession under ord. 14, r. 1.

The writ was indorsed with a claim for possession of certain premises and mesne profits. The defendant by deed mortgaged the premises to the plaintiffs to secure the repayment of £2,500, with interest at the rate of 4 per cent. per annum. By the deed the defendant attorned tenant of the premises from year to year to the plaintiffs at the annual rent of £100, payable half-yearly; and the deed also provided that the plaintiffs might at any time, without giving any previous notice of their intention so to do, enter upon and take possession of the premises, and determine the tenancy created by the aforesaid attornment.

Default having been made in payment of the interest, the plaintiffs brought this action, and applied for leave to sign final judgment under ord. 14, r. 1. Cave, J., made the order as asked. The defendant appealed.

Montague Lush, for the defendant.-This case does not come within ord. 3, r. 6 (ƒ), and therefore the writ cannot be specially indorsed. This is an action to recover possession founded on a forfeiture, and Arden v. Boyce, 42 W. R. 354, [1894] 1 Q. B. 796, shows that ord. 3, r. 6 (f), does not apply to such a The attornment in the mortgage deed created a tenancy from year to year, and the subsequent clause giving the mortgagee power to retake possession at any time was a forfeiture of the tenant's estate.

case.

Further, assuming that a tenancy at will was created by the attornment clause, such a tenancy does not come within ord. 3, r. 6 (f), as it is not a tenancy for a "term which has expired": Daubuz v. Lavington, 32 W. R. 772, 13 Q. B. D. 347; Hall v. Comfort,, 35 W. R. 48, 18 Q. B. D. 11; In re Willis, Ex parte Kennedy, 36 W. R. 793, 21 Q. B. D. 384.

A. T. Toller, for the plaintiffs, was not called upon. Lord ESHER, M.R.-In Arden v. Boyce it was decided that ord. 3, r. 6 (ƒ), does not apply to a case where the determination of the term is brought about by a forfeiture. The question therefore is whether there was in this case a determination of the term by a forfeiture. There is a clause in the mortgage deed

(a.) Reported by W. F. BARRY, Esq., Barristerat-Law.

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whereby the mortgagor attorns tenant to the mortgagee from year to year. But there is also a subsequent clause which gave the mortgagee power, without there being any default on the part of the mortgagor, to enter upon and take possession of the premises at any time without giving previous notice. This latter clause is entirely independent of any forfeiture. Accordingly the decision in Arden v. Boyce does not apply, and judgment can be signed under order 14.

LOPES, L.J.-I am of the same opinion. In Arden ▼. Boyce this court held that ord. 3, r. 6 (f), does not apply to a case in which the right to eject is based upon a forfeiture. In the present case the mortgagee seeks to eject the mortgagor, simply because the relationship of landlord and tenant has determined. True, one clause in the mortgage deed says that the mortgagor is to be a tenant from year to year. But by a subsequent clause the mortgagee might at any time, without giving any notice, enter upon and take possession of the premises, and determine the tenancy. That is to say, the mortgagor was made tenant at the will of the mortgagee, the landlord. The landlord has determined the tenancy as he was entitled to do, and there has been no forfeiture, and the decision in Arden v. Boyce does not apply.

RIGBY, L.J.—I am of the same opinion. The law

takes no notice in general of the length of a term of years. A term does not give the seisin. It merely gives the possession as long as the term continues. The word "term" signifies a right to possession until the term comes to an end. The term may be for 1,000 years, or for any other fixed period, or during the will of the landlord. But in each case the term is of the same quality in the eye of the law. The decision in Arden v. Boyce was founded upon a principle which had been established by a long course of practice at chambers under ord. 3, r. 6 (ƒ), and the previous statutory enactments containing similar words, that the court will not give a summary judgment in cases where an action for the recovery of land is based upon a forfeiture. A forfeiture is founded upon some default. In the present case there was no default whatever. It was agreed under the terms of the mortgage deed that there should be a tenancy from year to year, subject to a very important condition that the tenancy could be put an end to at any time without any precious notice, and without any default on the part of the tenant. The landlord determined the tenancy under the provisions of that clause. There was therefore no forfeiture. It would be strange, indeed, if a tenant for 1,000 years would, at the determination of the term, be liable to have judgment for possession entered against him under order 14, while a tenant at will would, on the determination of his tenancy, have a higher right.

Appeal dismissed.

Solicitors for the plaintiffs, Field, Roscoe, & Co., for Stone, Billson, Willcox, & Dutton, Leicester.

Solicitor for the defendant, L. Kirkman, for Bulman, Leicester.

From Lancaster Palatine Court
of Chancery.

Lindley, Kay, and A. L. Smith, L.JJ.))

March 5, 6.

KENNEDY v. DE TRAFFORD. (a.)

Mortgage Power of sale - Mortgage by tenants in common-Sale by private tender to one of mortgagors for exact amount of mortgage debt-Other mortgagors not informed of sale-Validity of sale.

A mortgagee is not a trustee of a power of sale for the mortgagor, and is entitled to look after his own interests first, provided that he does not fraudulently, wilfully, or recklessly sacrifice the property of the mortgagor.

A sale under the ordinary power of sale in a mortgage was made by the mortgagee, by private contract to one of several of the mortgagors, at a price exactly equal to the amount of the principal interest and costs, but without the knowledge or consent of the other mortgagors;

Held, that such a sale was not necessarily invalid; and it appearing that an out and out sale was in fact intended, and that the mortgagee had previously given all the mortgagors the fullest opportunity of obtaining a transfer of the mortgage or of selling, if they could, the transaction was upheld as a valid sale to-not a mere redemption by-one of the several mortgagors.

Dictum of Lindley, L.J., in Farrar v. Farrars

(Limited), 37 W. R. 196, 40 Ch. D. 395, explained.

Appeal from the Vice-Chancellor of the Duchy of Lancaster.

On the 1st of March, 1877, certain property in Manchester was mortgaged to Sir H. de Trafford by two tenants in common, Dodson and Carswell, to secure £60.000. The mortgage contained a power of sale in the usual form.

Sir H. de Trafford, the mortgagee, died on the 4th of May, 1886, and on the 9th of August, 1886, one of the mortgagors, Carswell, became bankrupt.

From the year 1883 the mortgagee's solicitor, Mr. Taylor, began to ask to have the mortgage money reduced, and on the 4th of November, 1886, after the bankruptcy of Carswell, notice calling in the Various propositions were mortgage was served. subsequently made for the reduction of the mortOn the gage, but no part of it was paid off. 9th of January, 1888, the plaintiff, Dr. Kenthe trustee in Carswell's banknedy, became ruptcy. In May, 1888, Mr. Taylor was informally advised that the security was insufficient for a loan of £60,000, and he again pressed for payment, threatening foreclosure. Upon this there was further correspondence with a view to finding a purchaser, but nothing was done. In August, 1888, the plaintiff put up Carswell's moiety in the equity of redemption for On the 10th of August sale, but there was no bid. Taylor wrote a letter to Kennedy to the effect that the mortgagees intended to deal with the property as they pleased without further notice to him. That letter was not answered. In November, 1888, Mr. Taylor No tenders, however, were made. Dodson received advertised the mortgaged property for sale by tender. the rents of the property, paying the outgoings and the interest on the mortgages. Subsequently to Carswell's bankruptcy Dodson applied some part of the rents in reduction of the mortgage debt, which was then reduced to £58,123 5s. Dodson, one of the mortgagors (without the knowledge or consent of Kennedy), then offered to buy the property for £58,806 if the mortgagee would accept from him a mortgage for £54,000. This offer was ultimately accepted, and on the 16th of May, 1889, the pro

(a.) Reported by ARNOLD GLOVER, Esq., Barristerat-Law.