Number

advises abstemionsness in the use of adjectives;' and Sir J. Fitz James Stephen confines himself to denouncing with accustomed vigour 'the misuse of pronouns.' The last observation reminds us that a great many legal and lay people are guilty of writing, "The dog who." One thing we may be pardoned for setting down: we have observed that our own paragraphs which have contained the least law have brought us the most praise. There seems to be an unholy itching after literature in the legal profession.-Albany Law Journal.

WAIVER OF FORFEITURE BY DISTRESS. Kirkland v. Briancourt (see post, p. 449) illustrates very well a point in the law of landlord and tenant which was expressly decided by a case in the Year Books (14 Ed. III. 3rd Ass, cited by Mr. Justice Blackburn in Ward v. Day, 33 Law J. Rep. Q. B. 13), but which, though frequently arising in practice, has not until last week been expressly decided since. It is well known that a forfeiture arising out of the ordinary proviso for entry for breach of covenant contained in a written contract of tenancy is waived by acceptance of rent, action for rent, demand of rent, and, above all, by distress for rent (see Woodfall, 14th ed. ch. viii. 8. 5, subs. (f)). But there is this vital distinction between waiver by distress and waiver by other acts, that whereas the waiver by other acts extinguishes the forfeiture up to the day on which the rent accepted was due, waiver by distress extinguishes it up to the day of the distress itself. Such was stated obiter to be the law by Mr. Justice Crompton in Ward v. Day, and so it has been expressly ruled by Mr. Justice Day in Kirkland v. Briancourt, the learned judge observing it to be "clear that if you distrained upon a person who was at one time in the position of your tenant, it was an affirmation that such person still continued your tenant." Kirkland v. Briancourt also affirms the dictum of Mr. Justice Willes in Grimwood v. Moss, 41 Law J. Rep. C. P. 239, that the "Statute of Anne," 8 Anne, c. 14, 88, 6, 7, whereby a distress may be made at any time within six months after the determination of a tenancy, does not apply to determination by forfeiture, so that the case doubly calls for careful consideration by all persons interested in the law of landlord and tenant.-Law Journal.

RULES UNDER "THE DEEDS OF ARRANGEMENT AMENDMENT ACT, 1890."

1. These Rules may be cited as the Deeds of Arrangement Amendment Act Rules, 1890.

2. The affidavit to be filed pursuant to section 2, sub-section 1, of the Deeds of Arrangement Amendment Act, shall be in the form in the Appendix, with such variations as circumstances may require.

3. The abstract of the contents of any documents and affidavits to be entered on the Register shall be in the form in the Appendix.

4. Abstracts from any document or Affidavit filed under the said Act shall be limited to the dates of the petition and order in Bankruptcy mentioned in section 2, sub-sections 1 and 3, of the said Act-the name, address, and description of the debtor, and a short statement of the nature and effect of the resolution of creditors confirmed by the said order in Bankruptcy. APPENDIX.

SCHEDULE:

Addresses

Amount of debt due to or claimed by each Creditor¿ after deduction of the value of securities held by the Creditor

& 8. d.

USURY.

I do not propose to follow in the footsteps of Jeremy Bentham, and write another "Defence of Usury;" but It may not be time wasted to suggest to the profession that as occasion serves, its members should endeavour to influence the repeal of statutes against usury, of which it is not too much to assert that they are relics of barbarism, infringements of personal liberty, and inconsistent not only with constitutional rights but with themselves.

The statutes of the State of New York in particular labour under these conditions. They provide that whoever receives more than six per cent. per annum for the loan or forbearance of money is guilty of a misdemeanor, the penalty for which, on conviction, may be a fine of not more than one thousand dollars, or imprisonment for not more than six months, or both. A few years ago, 1880, the lawful price of money was changed from seven per cent. per annum to six; so that the same transaction which would have been virtuous and legal in 1875 is a crime in 1885. Here is an inconsistency, since whatever is right at one time is right at all times.

Licensed pawnbrokers may, however, charge and receive thirty-six per cent. and twenty-four per cent. and twelve per cent. per annum. Now, if usury is a crime per se the State does wrong to license men to commit such a crime; and if usury is not a crime per se, the State does wrong to punish citizens criminally for taking as much rent for the use of money as the borrowers are willing to agree to pay.

Corporations may not plead usury, or complain to the magistrates against those persons who receive high interest from them. That is, usury is a crime, and burglary is a crime; but you may practise one crime with impunity provided the victim is a corporation, while it still remains a felony if you burglarize a corporation.

So much for the inconsistent demerits of the statute in force in the most populous and wealthy State in the Union, in 1890. How does such a statute affect the rights and personal liberty of the citizen?

One of the axioms of civilised society is that a citizen may do what he likes with his own property, so long as he does not injure any other person. Humanity has curtailed this right as to the particular instance of cruel treatment of animals, recognising in them, and justly, a certain personality and citizenship. But he is at liberty to give away his grain, or sell it for all he can get, or keep it; but the usury statute forbids him to treat in the same manner the price he may have received for the grain. He may give it away or he may keep it; but if he sells it for all he can get, he may be sent by the judges of special or general sessions to the penitentiary for six months, and his reputation be clouded during his life and thereafter.

The advocates of this usury statute aver that the person who violates the statute does injure another person, namely the borrower, by "taking advantage of bis necessities" and thus causing him to pay for money more than it is worth. I have heard a United States Circuit Judge use these identical words.

If this view is correct, then the baker who receives from me ten cents for a loaf of bread which costs him three cents "takes advantage of my necessities." Certainly I must have the bread or go hungry. But the baker would say, "Do not send me to the peni. tentiary for this; if you don't like my loaf at ten cents, go to another baker, or satisfy your hunger with some other edible." And the money-lender would also say, "If you do not like my money at fifteen per cent, go to some other lender; or make your purchases or satisfy your creditor in some other way." And if the baker is right, the money-lender is not wrong.

In fact the position of the baker is not so tenable as that of the money-lender; since the supply of grain or bread may be monopolised, but the supply of money never can be monopolised. There is more money than grain or bread or any other one commodity all over the

world, and the supply is more equally distributed; hence money is less liable to be "cornered " than any other commodity.

One might even maintain this proposition, namely, that there is no such thing as usury; since upon absolutely safe security, such as British consols, United States bonds, and bullion, money can always be had, wherever money exists, at a minimum of charge, usually less than legalised rates. When securities are not absolutely safe, and the element of insecurity is disclosed, whatever excess is charged is an insurance premium. But the statute makes it criminal for a lender to take such a premium; although by statute the pawnbroker may take a premium without the risk, and by statute you may commit this crime with impunity against a corporation.

At common law there can be no penalty for usury, because the common law enforces all contracts, not fraudulent or contra bonas mores, made between adults of sound mind.

Equity might step in, and say to the lender, Your charges under the circumstances are too onerous; you must accept your principal with so much less interest.

Finally appears an act of a legislature, by which you not only lose your loan, but may be consigned to the penitentiary in 1890 for doing what was declared to be by a foregoing legislature eminently virtuous and proper in 1875, and what you have in reality a right to do at all times.

It is the effect of absurd statutes to defeat their own purposes. Large capitalists as a rule do not lend money on dubious securities. Borrowers on insecurities seek out small capitalists, who not only charge insurance premium on the risk of loss, but another and larger premium on the risk of a defence in court, and another and larger premium on the risk of prosecution in a criminal court. There are thousands of borrowers in New York and King's counties who are to-day paying one hundred per cent. per annum for money which, but for the usury statutes, they could borrow at twenty-five or thirty per cent. The latter percentage in the average case covers the risk of loss; and would not distress the average small borrower, whose principle may be summarised thus: "I would rather borrow money at thirty per cent, and get it, than talk about borrowing it at six per cent and not get it."

I have not begun to cover the ground, as to this subject; but this article is long enough. Green Bag.

INTEREST ON BILLS OF SALE.

How is the interest on a bill of sale to be calculated? This seems a simple question enough, especially as the Legislature has provided so many safeguards for the unfortunate grantor of a bill of sale; and yet, as we know by practical experience, the unfortunate borrower is now in worse plight than ever. Before the 1882 Act came into force it was usual enough to find bills of sale to secure the payment of the loan and "interest thereon at 30 per cent, per annum "; whereas now it is almost always 60 per cent., and this in consequence of the many dangers the bill of sale holder has to encounter by reason of the Bills of Sale Acts,

Of course it is easy to calculate 60 per cent. on an advance of, say, £100 for a year; but it becomes more involved when you have to allow for monthly repayments off the loan. In these cases we know that some bill of sale holders calculate interest (and, indeed, so express it in the deed) at the rate of "5 per cent. per month." Thus they charge-Advance, £100; one month's interest, £5; total, £105; deduct first month's instalment, £10; result, £95. Then for the second month they charge interest on this balance, and so on, which is plainly enough "compound interest," thus increasing the rate to over 100 per cent.! It was held in Goldstrom v. Tallerman, L. R. 18, Q. B. D. 1, by the Court of Appeal that compound interest could not be charged, and Fry, L.J., remarked that interest was to be calculated "in the same way as upon building society mortgages," but he

did not state what that plan was. We recently met with a case in which a bill of sale holder charged com. pound interest in this way with monthly rests, and as he seized under the bill of sale for the balance he alleged to be due, an action was brought for damages for tres. pass against him in the County Court. Of course he was obliged to give up his compound interest calcula tions, but he easily worked on another principle. His account, as submitted to the County Court Judge, ran thus:-Advance, £100; received first month's instalment, £10, being as to £5 for the month's interest, and as to balance of £5 on account of principal; balance owing, £95. The second month's interest was calculated on the balance of £95, and again appropriated partly on account of interest and partly for principal, the result being, of course, exactly the same as if com pound interest had been charged. The County Court Judge made an independent calculation of the interest, but found the bill of sale holder entitled to nearly the sum he had demanded. It is highly desirable, inasmuch as these are matters of everyday occurrence, and involve many thousands of pounds charged to poor people, that there should be either an authoritative decision as to how the interest on bills of sale should be calculated, or a clear statutory provision in the Lord Chancellor's new Bills of Sale Bill now going through the House of Lords.-Law Gazette.

HIRE-PURCHASE AGREEMENT-WHEN A BILL OF SALE.

There seems to be a general difficulty in distinguishing between such a case as The North Central Wagon Co. v. The Manchester, Sheffield and Lincolnshire Rail. Co. on the one hand, and such a case as Re Mary Watson on the other haud. And yet we think the line cau be clearly drawn. Let us try to explain in simple language. A. B. wants £100. He possesses some furniture worth £200. C. D. has £100, which he would gladly let A. B. have the use of on the security of A. B.'s furniture, A. B.'s and C. D.'s wishes could of course be easily effected by means of an ordinary bill of sale, given by A. B. to C. D. to secure the loan of the £100, made by C. D. to A. B. But this would involve publicity-the bill of sale would have to be registered, and neither A. B. nor C. D. wish this. Is it possible that the £100 may be transferred from C. D.'s pocket to that of A. B., and that the property in A. B.'s furniture be transferred to C. D., by any other means than a bill of sale?

Certainly it is, if A. B. does not mind handing over the furniture to C. D., since C. D. can purchase it. But A. B. does not want this, he wants the use of the furniture still and the use of C. D.'s £100 as well. Caunot the thing be done by means of a sale to C. D. of the furniture, and then a hiring back of the goods by A. B. Well, that is the question. Can it ? The answer comes "Yes" from the House of Lords, in the N. C. Wagon Co.'s case, and "No" from the Court of Appeal, in Re Mary Watson. And how is this? Because what transpired in one case was not the same as what transpired in the other. But where is the difference? This is what we hope to make clear. If A. B. goes to C. D., and says to him, I want a loan of £100 on my furniture, can you let me have it? and C. D. says Yes; and A. B. remarks that he cannot give a bill of sale, as it will rain him to have a bill of sale registered, is C. D. willing to buy the furniture from him for £100, and then let it back to him (A. B.) at a rent of £10 for twelve months, on the understanding that if the rent is paid the furniture shall be A. B.'s again, and if at any time any instalment of the rent is not paid, C. D. shall be at liberty to take the furniture, and A. B. shall forfeit what he has paid. C. D. is agreeable. The money is handed over, the furniture becomes C. D.'s, and an agreement is then and there signed by A. B. and C. D. whereby C. D. lets the furniture to A. B. on the terms agreed. A. B.'s wishes have been effected, he has C. D.'s £100 and his furniture also, and no one knows, except C. D., that he has been compelled to borrow the money.

But is C. D. safe? Most certainly not-the hire and

purchase agreement under the circumstances was a bill of sale to secure money; by reason of its not being in the right form and registered it is waste paper; even as against A. B., C. D. has no claim to the furniture, let alone any claim as against A. B.'s execution creditor or his trustee in bankruptcy. C. D.'s transaction is tarred with the brush of Re Mary Watson. The purchase by C. D. and the hiring by A. B. were one transaction; the hire and purchase agreement must be read as. document by which in reality goods were transferred by A. B. to C. D., of which goods A. B. remained in possession," and, therefore, as a bill of sale requiring registration, &c.

Now, let us suppose that A. B. and C. D. went more warily to work, and without any previous arrangement the following circumstances occurred: On Monday A. B. went to C. D. and sold him his furniture for £100, and C. D. paid his purchase-money. The property thereupon became C. D.'s. Not a word was said as to C. D. letting the goods back to A. B. On Tuesday C. D. goes to take away the goods he bought, and A. B. buttou-holes him, and requests him, as a convenience to him (A. B.), to let the goods remain where they are; he (A. B.) will hire them from him at £10 a month for twelve months, and if at the end of the twelve months A. B. has paid him £110, the goods shall be his (A. B.'s); and if not-if he makes any default-C. D. can take away the goods. And C. D. agrees, and the agreement is reduced into writing, aud signed by A. B. and C. D. Is C. D. safe? He is. The transactions were distinct. First there was a sale, then there was a separate agree. ment, whereby C. D. let the furniture to A. B. The hire and purchase agreement was not a document transferring goods from A. B. to C. D., of which goods A. B. remained in possession, but a document transferring goods from C. D. to A. B., of which goods A. B., and not C. D., keeps possession. The Bills of Sale Acts do not apply; the transaction is tarred with the brush of the N. O. Wagon Co.'s case. A. B. has in effect borrowed money on his chattels without publicity, but the Courts cannot say that the transaction was a loan, for the facts show that it was not; the Bills of Sale Aots have been successfully evaded.

Of course if, as in the case last supposed, there was, when A. B. sold the furniture to C. D., any tacit agree ment or understanding that C. D. was to let the goods back to A. B. on the morrow, then, as the Court will go bebind the transaction, the sale and subsequent hire would be regarded as one transaction, and the hiring agreement would be a bill of sale requiring registration. This is our view of Re Mary Watson and the North Central Wagon Co.'s case. Do our readers follow us? Law Notes.

PROHIBITION TO JUSTICES.

The writ of probibition is a writ issued to prevent an inferior court from entering upon or at least completing some business over which it has no jurisdiction, and for most purposes it covers much the same ground as the writ of certiorari which is issued to quash a judgment already done and finished, There is much learning surrounding the various circumstances under which prohibition is allowed, for it is not an ordinary remedy, but requires the leave of the High Court to make use of it. It is also chiefly employed in modern times against the minor courts of civil jurisdiction, especi ally county courts, because the steps in a civil suit are nsually sufficiently far between to allow of some third party intervening and forbidding the inferior court to go further. This is no doubt the reason why the writ of prohibition is so seldom resorted to against justices, for the remedies they administer are so swift and summary that there is scarcely time to turn round before the whole business is over. Nevertheless, occasionally there are applications for prohibition against justices, and when that is the case the procedure is much the same whatever be the name given to the inferior jurisdiction. The great variety of learning brought to bear on matters relating to the writ of prohibition was well

illustrated in the leading case before the House of Lords in 1867. There are many nice questions confronting the person who seeks a prohibition. One is, whether he has not applied too soon; another is whether he is not too late; a third is, whether the application is one of right or only a matter of favour; a fourth is whether the evidence of facts on which the inferior court has proceeded, or which such court was pleased to call facts, can be reviewed by the High Court. Again there is sometimes a question raised, whether the applicant has not already acquiesced in the jurisdiction and thereby precluded himself from making the application to stop all further proceedings. On each of these points there is always much to be said on both sides, and few cases are more resolutely fought out than those involv. ing the application for a prohibition. In the leading case of Mayor of London v. Cox, L. R. 2 H. L. 239, process had issued for debt in the mayor's court against a person under an alleged custom of foreign attachment, and there were no facts showing that the debt had arisen within the city of Londou or between citizens there, and after a vast display of learning, the House of Lords held that a probibition was a proper remedy. The conclusion of that litigation was, that whenever an inferior court proceeds in a cause properly within its jurisdiction, no prohibition can be awarded till the pleadings raise some issue which the court is incompetent to try. But where the foundation for the jurisdiction is itself defective, a prohibition may be applied for at once. In that case Willes, J., said that it was an error to suppose that the writ of prohibition at suit of a party was in the discretion of the court. He said the High Court was bound to issue the writ, as soon as it was duly informed that the inferior court had committed such a fault as to found the authority to prohibit, though there might be a possibility of correcting the fault by appeal.

The point whether the writ of prohibition is discretionary or a matter of right was supposed to be left by that case somewhat vague, and it had always been thought that if the party bas acquiesced in the inferior jurisdiction and taken his chance, as it were, of its deciding in his favour, then he was not entitled to the writ. This was, to some extent, settled by the recent case of Broad v. Perkins, 21 Q. B. D. 533. A Court of Appeal, consisting of six Lords Justices, met to decide that question. The plaintiff had sued the defendant for libel in the mayor's court and obtained verdict of 40s, and costs. Before execution it was discovered that there had been no publication of the libel, so as to give jurisdiction. The High Court held that after going on with the action so far, it was discretionary to grant a prohibition and it ought to be refused. The whole Court of Appeal met and decided that this was right. The court said that the true doctrine was laid down by Willes, J., in the case first mentioned, and it was this: Where the defect of jurisdiction is not apparent and depends upon some fact in the knowledge of the applicant, which he bad an opportunity of bringing forward in the court below, and he has thought proper without excuse to allow that court to proceed to judgment without setting up the objection, and without moving for prohibition in the first instance, yet, considering the conduct of the applicant, the importance of making an end of litigation, and that the writ, though of right is not of course, the court would decline to interpose except perhaps upon an irresistible case, and an excuse for the delay, such as disability, malpractie or matter newly come to the knowledge of the applicant. These grounds peculiarly apply to what goes on before justices of the peace, and bence it is obvious that a person, after acquiescing and taking his chance, is not to be allowed to come afterwards and ask for a prohibition.

Another point which is applicable to prohibition against justices is as to their finding of the facts on which the jurisdiction depends, and how far their finding is conclusive. In Elston v. Rose, L. R. 4 Q. B. 4, the County Court Act gave jurisdiction in ejectment if the value of the teuement or the rent did not exceed £20.

In that case the plaintiff's interest, after deducting the

rent he paid, was less than £20, and the County Court assumed jurisdiction, though the plaintiff could let the premises for more than £20. On an application for a prohibition the High Court held that value meant marketable value, of which rent was a fair criterion, and as the county court judge had assumed jurisdiction, not by deciding on conflicting facts, but on a wrong assumption as to a point of law, the High Court could review bis decision as to the fact of value. The court held his decision wrong, and that he had no jurisdiction.

An application for prohibition granted against justices thus usually involves the right of the High Court to review the finding of fact on which they founded their jurisdiction. A very recent notable example of a prohibition against justices was that of R. v. Furrant, 20 Q. B. D. 58, and 52 J. P. 116. In that case Mr. Farrant was mayor of Taunton, and a practising surgeon. Three men in the town one night had a quarrel, and one Mattock was assaulted by Burch. Mattock sent for his medical man, who was the Mayor, and who visited bis patient. Mattock told the mayor he intended to take proceedings before the magistrates, whereupon the mayor remarked: "Don't do anything in that respect in a hurry till you see me again," and next day the mayor said "it would be better not to go into court in the circumstances." Nevertheless, a summons for assault was taken out, and Mattock's solicitor issued a subpoena to the mayor to attend. It was surmised by the mayor that this subpoena was merely resorted to in order to prevent the mayor sitting on the bench as a Justice, and the solicitor of Mattock was reported to have said as mucb. The mayor, however, was sitting on the bench when the hearing came on. It being late in the day the summons was adjourned, and, on the adjournment, Mattock's solicitor objected to the mayor sitting on the bench, on the ground of a bias in favour of the defendant. An adjournment of a month was again ordered, and, meanwhile, the prosecutor's solicitor obtained from a judge in chambers a rule absolute for a writ of probibition. Afterwards a supersedeas to set aside the prohibition was obtained, on the ground that the facts did not warrant any interference by prohibi tion. The facts were set forth in affidavits on both sides, and the main question was whether, on those facts, there was any evidence of that kind of bias which would justify a court in setting aside the adjudication of justices if the proceedings had reached a final point. It was obvious that the judge who made the order absolute for a prohibition must have thought that the facts did show an illegal bias. On a review of that finding the Queen's Bench Division came to the conclusion that all that the mayor said or did was to give the very sensible advice to men who had been quarrel. ling, and who were all respectable, namely, not to go into litigation about such a matter. The court thought that the facts showed no improper bias, and having power to review the facts the rule for a prohibition was discharged.

The very recent case of Reg. v. Justices of Kent, ante, p. 453, was another instance of a prohibition to justices. A baker bad been duly appointed to act as postmaster for a district, and had been supplied with the regulation scale and weights for weighing letters. These weights were said to be used in the baker's shop, not only for letters but for weighing bread. One day the inspector of weights took upon himself to enter the shop and test the post office scale and weights, and finding them on the counter and seeing no others, presumed that they were used for bread. Having tested them, he found they were false or incorrect by a quarter of an ounce, and, under the Weights and Measures Act, took out a summons against the baker for using false weights. Before the justices had heard the case a rule nisi for a writ of prohibition was obtained, and, on showing cause, the question was, whether the prohibition was not applied for too soon. It was true that the baker was supplied with scales and weights by the PostmasterGeneral, but the justices might find, on hearing evidence, that he was using these for his ordinary business; and if so, why should he be exempt from conviction? It

was contended that the justices had jurisdiction, and they had not yet adjudicated. It was not to be presumed that they would adjudicate wrongly, and it was premature to interfere until the justices went wrong. If the justices went wrong there were ample remedies by certiorari or mandamus or prohibition at a later stage. On the other hand it was contended that a prohibition ought to go, because in no possible event could the justices have any jurisdiction to decide in this case. The baker was appointed by a servant of the Crown to make use of scales and weights, the property of the Crown, for the purposes of letter weighing, and for no other purpose. The affidavits showed that these weights were not used for weighing bread. Therefore, it followed that the case did not come within the Weights and Measures Act, which applied only to ordinary businesses and not to the use of Crown property. As Mathew, J., observed, if the Weights and Measures Act applied, the consequence would be that people using innocently these weights would commit an offence; that the inspector might confiscate and take away the weights which were the property of the Crown and so put a stop to the business of the post office. Hence, the rule for a prohibition was made absolute.

These cases show that on such a rule the High Court will review any finding of fact that may arise in order to see whether the justices have jurisdiction, and, consequently, if the facts, when so reviewed, do not Aupport the jurisdiction, the justices will be prohibited from entertaining the matter further.-Justice of the Peace.

THE ACTION OF DECEIT.

"Crescit in orbe dolus" was once given as the reason for the ever-increasing literature of the law. Certainly fraud has been the element for consideration in several recent cases, and it is worth while considering those cases for the sake of estimating the scope of the principles laid down in Derry v. Peek, 14 App. Cas. 337, the locus classicus, as to liability for misrepresentation. In that case a special Act, incorporating a tramway company, provided that carriages might be moved by animal power, and, with the consent of the Board of Trade, by steam power. The directors issued a prospectus containing a statement that by their special Act the Company bad the right to use steam power instead of horses, and, on the faith of that statement, the plaintiff took shares. Subsequently application was made to the Board of Trade for their consent to the use of steam power; they, however, refused, and the company was afterwards wound up. Action was brought agaiust the directors, based on this false statement. Stirling, J., held the directors not liable; the Court of Appeal reversed his decision, but the House of Lords (Lord Halsbury, L.C., and Lords Watson, Bramwell, Fitzgerald, and Herschel) restored it, coming to the conclusion there was no reason for discrediting the evidence of the directors; that evidence was to the effect that inasmuch as they had got the Act of Parliament, it never occurred to them that the Board of Trade would refuse their consent, and consequently, though they knew that consent was required before steam could be used, they presumed they would get it at once, and it never crossed their minds to mention in the prospectus that obtaining that consent was a condition precedent to the use of steam power under the special Act. But if that evidence was to be credited, the inaccurate and misleading statement in the prospectus as to the right to use steam power had been made by them in the honest belief that it was true, and such a statement made in such a belief was not fraudulent, and did not render the person making it liable to an action of deceit.

In an action of Deceit (their Lordships held) proof of actual fraud was required. Fraud was proved when it had been shown that a false representation had been made knowingly, or without belief in its truth, or recklessly without caring whether it was true or false. But statements made through carelessness aud without

reasonable grounds for believing them to be true were not necessarily fraudulent, though they might be evidence of fraud. In the recent case of Kosterlitz v. Mockford there is no new principle, but the ordinary law was sought to be applied to au alleged combination of circumstances in which undoubtedly (had the allega. tions been proved) it would have entitled the plaintiff to succeed.

The case failed for want of proof of the circumstances on which the charge of fraud was based; and it may be taken for granted that the extreme difficulty of proving fraud in such circumstances accounts for the absence of any earlier attempt to apply principles so well known to cases sometimes emphatically calling for relief. The allegations against the defendant were that he desired to rig the market for his own purposes so as to unload his shares and that with that object in view, that is, to raise the price of the shares in question so as to enable himself to profitably dispose of the shares he held in the company it became necessary to induce persons to buy. The defendant, it was alleged, well koew, as was the fact, that the shares were not then worth buying, but in order to make gain for himself, and to induce plaintiff to buy, and so raise the price of the shares, he in words of the statement of claim falsely and fraudulently represented to the plaintiff "that he advised an instant buying of the shares, that is to say, that he honestly believed that time to be a favourable time for buying the shares, and that the same were then worth buying at the then price, whereas in truth and in fact, as he well knew, he could not, and did not honestly advise anyone to buy the said shares and the said time, as he well knew, was not a favourable time for buying." Defendant was a company promoter. Plaintiff had carried on business for some years as a financial agent and underwriter of companies, and the advice was given gratuitously in a circular, and subsequently by word of mouth. Pollock, B., who tried the case without a jury, found that although the defendant's interest was likely to be served by the plaintiff acting on the representation or advice given to him, the plaintiff had not succeeded in showing (as be was bound to show) that the notice had been issued, or the advice given from a selfish or sinister motive.

The defendant, it will be noticed, owed no personal duty to the plaintiff, as his professional adviser, and consequently mere negligence or oversight was not sufficient to render him liable to au action. Pollock, B., thought the defendant must be taken to have advised plaintiff that as a marketable security he might safely buy these shares. Now, undoubtedly as a rule, statements of opinion (if there be no duty owed by the adviser) are not actionable, but in such cases there may be implied a representation of fact, uamely, that the party knows of nothing making his expressed statement false. Aud Bowen, L.J., in Smith v. Land Corporation, 28 Ch. Div. 7, suggested that this implied representation, if false, might found an action. Whether this suggestion of Bowen, L.J., in Smith v. Land Corporation (ubi sup.), can still, since the decision in Derry v. Peek (ubi sup.), be relied on, it is not needful to consider for the purposes of the case of Kosterlitz v. Mockford, for there the claim was made for relief on the ground that the defendant knew well the advice he gave was dishonest advice, given solely in furtherance of the giver's interest and sinister purposes. That this, if proved, would constitute fraud there can be no doubt.

Iu Kosterlitz v. Mockford the difficulty was not one of law-but of inability to prove the facts alleged, and its interest lay in an attempted new application of very old principles. In Bishop v. Balkis Consolidated Company, Limited, the alleged facts were proved, but on appeal were held insufficient in law to entitle the plaintiff to succeed for misrepresentation. The case is of undoubtedly great commercial interest, and instances the far-reaching effect of the doctrines laid down by Derry v. Peek (ubi sup.). The fact was as follows:-Action was brought by the purchasers of shares in the defendant company against that company for the value of £195, shares bought by the plaintiffs and the value of which they alleged the