the County Court judge hears evidence and orders the memorandum to be recorded, he is acting in a judicial capacity, and not in a ministerial capacity, and an appeal lies upon a point of law from his decision. Binning v. Easton & Sons, 1906, 8 F. 407, dissented from. Johnston v. Mew, Langton, & Company, K.B.D. 11th June.

23 T.R. 607.

326. Sec. 104 of the Factory and Workshop Act, 1901, covers the occupation of a hut in a dock by contractors for haulage. Held that defendants were engaged in the process of coaling a ship in this dock as sub-contractors to the plaintiffs, and that they were bound to relieve the plaintiffs, under sec. 4 of the Act, of a claim by an injured workman of the defendants. Stewart v. Darngavil Coal Co., 1902, 4 F. 425, referred to. Pacific Steam Navigation Co. v. Pugh & Son, C.A. 18th June. 23 T.R. 622.

Appointments, Business Changes, &c.

DUMFRIES. The Secretary for Scotland has appointed Mr. Fred G. Watson, solicitor, Dumfries, to be Sheriff-clerk of Dumfriesshire, in succession to the late Mr. Charles M'Kie. Mr. Watson is the eldest son of Mr. T. Watson, editor of the Dumfries Standard. Five years ago he became partner of the firm of Messrs. Wilson & Watson, solicitors, Dumfries. He is a member of the Dumfries Town Council, and holds a number of public appointments.

ASSOCIATION OF BURGH OFFICIALS OF SCOTLAND.-The autumn meeting of the Association of Burgh Officials of Scotland was held in the Council Chambers, Lanark, on Friday, 30th ult. Mr. James Annan, town-clerk of Lanark and president of the Association, occupied the chair, and the attendance numbered about forty. On behalf of the Corporation of Lanark, Bailie Ferguson welcomed the members of the Association. In a paper entitled "How to form and carry out a burghal drainage scheme from a legal point of view," Mr. J. L. Anderson, town-clerk, Cupar, discussed the question whether a Town Council having such a scheme in hand should proceed under the Public Health Act of 1897 or the Police Act of 1892. Other papers were contributed by Mr. John Cameron, procurator-fiscal, Greenock, on "Whether the Probation of First Offenders Act, 1897, applies to Scotland"; by Mr. Macindoe, town-clerk, Kirkcaldy, on "The Provisions in the Burgh Police (Scotland) Act, 1903, as to a Register of Streets," and by Mr. Kirkpatrick, joint town-clerk, Hamilton, prepared by him and his colleague, Mr. Pollok, on questions which had arisen under the Electric Lighting Orders in regard to transfers, borrowing powers, and free wiring. A discussion took place on the question if a Town Council that had adopted the Public Libraries (Scotland) Acts, 1887 to 1899, were entitled to claim out of the library rate a fee or allowance in respect of the service of their officials collecting the library rate and keeping the library accounts, the answer to the question in the affirmative being finally carried by 17 votes to 9. In the evening the members were entertained to dinner in the Clydesdale Hotel by the Provost, Magistrates, and Town Council, when Bailie Ferguson presided.

Or recent years hundreds, nay, thousands, of businesses have been converted into limited liability companies. We are now a long way from the year 1862, when the Companies Act was passed, and things have changed very greatly since then. For every company floated in 1862 there are scores floated now. At one time only large businesses were converted into limited liability concerns, but nowadays many small businesses are so converted, and a considerable number come to grief and require to be wound up.

The existing state of the law hardly meets the case of these small companies. As a first step to remedy the present state of matters, we suggest that the jurisdiction of the Sheriff be extended. It should be made competent to any creditor who has an unsatisfied claim of, say, £20 or upwards to apply to the Sheriff for a winding-up order in the case of any limited company having a capital not exceeding £10,000. And, similarly, any such company, or a liquidator or creditor, might be authorised to apply to the Sheriff for a supervision order should a voluntary winding-up have been resolved upon previously. In the case of every such insolvent company the liquidation should also be put under the supervision of the Accountant of Court. We deal with this point, however, at a later stage, and the suggestions which we make in connection with the amendment of procedure in the Court of Session may prove useful in connection with procedure in the Sheriff Court.

In the case of larger companies the jurisdiction of the Court of Session would, of course, be retained, but the procedure might be very much simplified. At present there is a good deal of circumlocution. First of all, a petition to the Court is drafted, and a very verbose document it is. It sets out

Y

with the story of the formation of the unfortunate company, and states into how many shares the capital was divided, and how many were taken up. Then it quotes ad longum the terms of the doleful resolution, "That it has been proved to the satisfaction of the company," &c. Then the terms of sec. 147 of the 1862 Act are quoted (indeed, there is a good deal of quotation all through), and thereafter there is a long "prayer." This petition is revised by counsel, and is printed and presented to the Court. A deliverance is pronounced, and wordy advertisements are inserted in the Gazette and one or more local papers. Answers" are ordered, and are seldom, if ever, lodged. Thereafter another deliverance is pronounced granting the prayer of the petition. All this might be much simplified, and expense saved. After all, the whole procedure is purely formal and non-contentious, and the petition is granted almost as a matter of course.

The petition having thus been granted, a remit is made to one of the Lords Ordinary, and the liquidation is placed under his charge. A proper step at this stage would be to bring in the Accountant of Court. Every trustee in bankruptcy, every judicial factor, and every curator bonis is subject to the control of that official, and why not the liquidator of an insolvent limited liability company? In such a case liquidation is simply bankruptcy. The Accountant of Court, in time past, has proved himself to be an admirable official, and the matter would only resolve itself into an addition to his staff. The fees to be drawn in his department would no doubt more than meet the additional outlay.

Another reform is that every liquidator should be compelled, within a definite period, to lay a statement of the insolvent company's affairs before a meeting of creditors. At present there is nothing to compel a liquidator to call such a meeting unless he is specially ordered by the Court to do so, and this rarely, if ever, happens. Sometimes creditors and shareholders do not get the slightest information as to how matters standnot even a circular. We have known liquidators who took up high ground on this subject. They contended that, as they were acting under the supervision of the Court (although that supervision is not always lynx-eyed), they were responsible to the Court alone, and they seemed to resent inquiries. On many occasions a meeting of creditors is most desirable, and why should creditors be ignored? After all, they are the persons really interested in what goes on. More particularly, when a liquidator applies to the Court for "special powers," he should be ordered, if the matter be of any great importance,

to ascertain the views of the creditors, and he should also furnish a report on the subject by the Accountant of Court.

In connection with applications to the Court by liquidators praying to have their accounts approved of and their remuneration fixed, a pernicious system is not unknown. Mr. A, when applying for his discharge as liquidator, has the hardihood-we are using a mild term-to suggest to the Court the name of Mr. B (with whom, doubtless, he is on excellent terms) as a fit and proper person to audit his, Mr. A's, accounts, and to adjust the little matter of remuneration. The suggestion is made in a most insinuating form, and sometimes the Court has agreed to it and made the desired remit. Perhaps the Lord Ordinary Officiating on the Bills in vacation time, or some judge who was not familiar with the matter, signed the needful interlocutor on a busy day, and thought no more of it. In such cases it will readily be supposed that the fee suggested by friendly Mr. B will be fairly substantial, and will not err on the side of frugality. Having made the remit to Mr. B, the Court may well feel that it has no option but to award the fee suggested by him. Thereafter the position of parties may be reversed. Mr. B is liquidator this time, and, when applying for his discharge, he suggests the name of Mr. A! We think that nothing of this sort should be tolerated. No suggestion of the kind should be considered for a moment. In every case the fee should be fixed by the Accountant of Court, and we are bound to say that he will do justice to all concerned, not only to the liquidator, but also to the unfortunate creditors.

We trust that we shall not be thought guilty of the old offence of "murmuring a judge" if we plead for a little more supervision than there is at present. Creditors are entitled to have their interests safeguarded in a reasonable way. The committee of their number appointed to act along with the liquidator are sometimes very useful persons, and sometimes they are mere figure-heads. At best, a committee of creditors can do very little. Further, it is not enough to say that creditors can "lodge answers, if so advised," and object to this, that, and the other thing, and that, if they do not, they must be held as "confessed." To lodge answers means appearing in Court and litigating, and, possibly, throwing good money after bad. A creditor will often submit to some injustice rather than do so. Facilities might at least be granted to a creditor to make his voice heard when a liquidator is applying for his discharge. Intimation of this should be sent to every creditor

by post. Why should the latter be in a worse position than the creditor in a bankruptcy?

We have thrown out a few suggestions, but we have not by any means covered the whole ground. The subject deserves ventilation, and an Act of Sederunt placing certain of these matters upon a better footing, so far as the Court of Session is concerned, is a desideratum.

R. A. B.

VESTING SUBJECT TO DEFEASANCE.

To a disembodied testator revisiting the chambers of his late legal adviser to inquire in what manner his testamentary wishes had been given effect to, probably no reply could be less satisfying than to be told that matters had been arranged in his absence by the Court of Session by the application of the principle of "vesting subject to defeasance." If he retained his earthly forms of thought, and were inclined for ghostly argument, he would probably refer respectfully to the late Lord Rutherfurd Clark, and say he agreed with that distinguished judge that the doctrine appealed to was a contradiction in terms.

The latest application of the principle is to be found in the case of Searcy's Trustees, 19th March, 1907, S.C. p. 823. There, the directions of the testator to his trustees were, in brief, to hold for his daughter Mrs. Murray in liferent only, and her whole children equally in fee, and, in the event of the daughter predeceasing or dying without leaving issue, the trustees were to realise and divide equally between the family of John Searcy and the family of William Brown. Mr. Searcy, the testator, died in 1882, when there were some five persons representing the John Searcy and William Brown families. The daughter lived till 1904 and died childless, but at this date, in consequence of changes by death, the members of the two families called to the succession were different persons from those of 1882. The question to be determined was, whether the first set of persons had or had not acquired the right to the estate at Searcy's death? In other words, whether vesting in the John Searcy and William Brown families had been postponed to the daughter's death?

In answer to this question (in its last form), the Lord Ordinary said "Yes," and the First Division said "No," this substantial difference of opinion resulting from the application by the Court of Appeal of the doctrine of vesting subject to defeasance. The instructive judgment of Lord Johnston (Ordinary) acknowledged the doctrine, although of modern date, as one now recognised and accepted in the law of Scotland, but