to the plaintiff in such a case than the Common Law. The lessee and his assigns are the only parties who can sue on a lessor's contract to repair. If any one can be liable in tort to a third party for damage due simply to this contract not having been fulfilled, it is the lessee, who has possession and control of the building: see Nelson v. Liverpool Brewery Co. (1877) 2 C. P. D. 311, where the head-note, though strictly correct when read with the judgment, might mislead a hurried practitioner. In Cavalier v. Pope the plaintiff's best argument was that the lessor's agent had made a deceitful representation which brought the case within the authority of Langridge v. Lery; but no representation of fact could be made out; and moreover it is obvious that a person living in the house and seeing every day that the repairs had not been done was not relying on any representation real or supposed.

The decision of the House of Lords in Ruben v. Great Fingall Consolidated, noted from the Law Journal in L. Q. R. xxii. 356, is now reported in the Law Reports [1906] A. C. 439.

In Thomas v. Bradbury, Agnew & Co. [1906] 2 K.B. 627, 75 L. J. K. B. 726, the Court of Appeal has held that, where the defence of fair comment is set up in an action for libel, the plaintiff may prove by external evidence that the defendant was actuated by malice in the sense of personal hostility to the plaintiff, apart from an honest opinion as to the demerits of the work or conduct of the plaintiff which was open to public criticism. This is not contrary to any positive authority and is in accordance with a dictum of the Master of the Rolls's predecessor Lord Esher in Merivale v. Carson, 20 Q. B. Div. at p. 281. But the somewhat elaborate reasons given by the Master of the Rolls are not very easy to reconcile with the tenor of Merivale v. Carson as a whole, or with the earlier leading case of Campbell v. Spottiswoode, 3 B. & S. 769. Those cases were supposed to have decided that fair comment on public acts, writings, or performances is a matter of common right and not of privilege: and it is settled that in general the law does not inquire with what motive a common right is exercised. Now the judgment of the M. R. in the principal case (practically a judgment of the Court, as Cozens-Hardy L. J. and Sir Gorell Barnes agreed without adding a word) reads as if the Court would have liked to put the defence of fair comment on the same ground as the defence of privileged communication, except that, as Campbell v. Spottiswoode settled, the writer's good faith is not a sufficient excuse. This, it seems to us, with great respect, cannot now be done unless by the House of Lords.

Lord Esher's suggestion, however, was not that there was a privilege rebuttable by proof of malice, but that criticism not honestly made was not fair comment, and therefore was not an exercise of the public right at all. It is submitted that Lord Esher's way of expressing the result is the best as well as the shortest; the point itself is now as certain as any authority short of the House of Lords can make it, for it was already contained in the unanimous decision of Plymouth Mutual &c. Society v. Traders' Publishing Association [1906] 1 K.B. 403, 75 L. J. K. B. 259 by Vaughan Williams, Stirling, and Fletcher Moulton L. JJ. Attacks on personal character outside public conduct are of course not fair comment in themselves, and so not justified if not demonstrably true, whether there be external evidence of hostile motive or not. We think the number of cases in which such evidence can be necessary or will be material is never likely to be large. In the principal case we incline to think there was enough on the face of the review complained of, suggesting as it did inferences of fact which were positively denied, to warrant a jury in finding that it was not fair comment. On that point the case is on all fours with Campbell v. Spottiswoode.

Since this note was written our learned friend Mr. Radcliffe has sent us a fuller discussion which will be found at p. 97 below.

The administration of justice consists in the balancing of a number of general principles, giving to each its due weight; and it is just in this balancing and nice adjustment of competing principles that judicial genius discovers itself. The reflection is suggested by the case of Re Crigglestone Coal Co. [1906] 2 Ch. 327 ; 75 L.J. Ch. 662, 7 C. A. It is a sound general principle that a creditor of a company, who cannot get paid, is entitled to a winding-up order. It is a sound general principle that the expensive winding-up machinery of the Court is not to be set in motion if it will yield nothing. It is a sound general principle that debentureholders, whose security exhausts the assets, are entitled-as owners of the security-to realize it in their own way. The art lies in reconcilement, in settling the due precedence among such principles, and this can only come from an enlarged comprehension of the policy of the law, from discriminating the relative importance of principles. Looked at in this light, it is clearly a matter of the first importance that a creditor-whether he is a creditor of a company or of an individual-should not be robbed of his remedy.. The whole fabric of our social system of credit rests upon the existence of such remedy. The machinery of the Court is of secondary importance. So is it whether debenture-holders shall deal with their security at their free will or subject to the super

vision of the Court. Neither consideration ought to interfere with the creditor's right to a winding-up order. Debenture-holders' liquidations have been getting of late so common as almost to oust the jurisdiction of the winding-up Court. And here In re Crigglestone Coal Co. comes in as a salutary check. Apart from the fulfilment of contracts there is now a duty of censorship-in the interests of commercial morality-vested in the Court, and it ought not to be defeated by debenture-holders withdrawing a company's affairs from the cognizance of the Court.

The decision of Farwell J., as he then was, in Re Bourne (see L. Q. R. xxii. 125) is affirmed by the Court of Appeal [1906] 2 Ch. 427, 75 L. J. Ch. 474. The attempted limitation of a surviving partner's power was rejected as incompatible with the object of the law, which is to enable the partnership assets to be realized and distributed. For this purpose there is no reason for making any difference between real and personal property. The judgment of Fletcher Moulton L. J. gives judicial confirmation to the doubt expressed by several writers as to the propriety of applying the word 'lien' to the right of a deceased partner's estate; the usage, however, seems to be inveterate.

An English company carrying on business in the United Kingdom is the holder of all the shares in a German company. This fact alone does not turn the business of the German company into the business of the English company so as to render the English company assessable to income-tax under Sched. D. of 16 & 17 Vict. c. 34, upon the full amount of the profits made by the German company. This is the effect and the whole effect of Gramophone & Typewriter, Lim. v. Stanley [1906]2 K. B. 856,75 L. J. K. B. 1031. The case, however, has a certain importance. It marks a limit to the tendency of our Courts to hold that when a foreign business is in any sense carried on by an English company in England, the business is assessable to income-tax on the whole of the profits, even though they result from transactions taking place abroad.

The Companies Act, 1862, made no provision for the audit of a company's accounts. It seems It seems to have assumed that the ordinary principles as between partners would suffice. The Companies Act, 1900, now requires an annual audit, and also requires the auditors to report to the shareholders as to the accounts examined by them, and the accuracy of the directors' balancesheet.

Is it competent to the company by any resolution to

derogate from this statutory obligation of the auditors? That was the question in Newton v. Birmingham Small Arms Co. ([1906] 2 Ch. 378, 75 L. J. Ch. 627), and Buckley J. (now L.J.) has answered it in the negative. The particular asset, the application of which the company had resolved was not to be disclosed, was a 'Secret Service Fund.' There was nothing illegitimate, apparently, about the objects of the fund: it was merely thought impolitic to let the objects be known. The result may possibly prove inconvenient to companies who often cannot afford, with trade rivals in the field, to work like bees in a glass hive. But some remarks of Buckley J. go far to save the situation. Auditors' duty, he says, is 'to call attention to that which is wrong, - not to condescend upon all the details of that which is right.' Auditors may thus do their duty without giving away the secrets of the company to treacherous members, if there is no wrong involved to the shareholders in such secret dealings.

The Bankruptcy Act, 1883, says explicitly (s. 44 (1)) that the property of a bankrupt 'shall comprise all such property as may belong to or be vested in the bankrupt at the commencement of the bankruptcy, or may be acquired by or devolve on him before his discharge.' Such property vests on adjudication in the trustee. Now comes the casuistry of the Court exercised in interpretation. It is obviously right, the Court said in Cohen v. Mitchell (25 Q.B.D. 262), that the whole of the bankrupt's property at the commencement of the bankruptcy should vest in his trustee : still if the bankrupt is not in the words of Lord Hardwicke-to be the slave of the trustee, he—the bankrupt―must be allowed to acquire rights and property'; and therefore the Court could not hold that all property acquired by him after his bankruptcy vested in the trustee. This 'common law' exception or equity' of a bankrupt was formulated into a precise rule by the Court of Appeal in Cohen v. Mitchell (supra), and briefly stated it is this, that until the trustee intervenes all transactions entered into by a bankrupt in respect of property acquired after the bankruptcy with a person dealing with the bankrupt bona fide and for value are valid against the trustee. Money, choses in action, leaseholds, and personal property generally have been held within the rule, but in Re New Development Land Association v. Gray [1892] 2 Ch. 138, Chitty L.J. (then J.) held that the rule did not apply to real estate under a legal title, and that view seems to have met with the approval of Lindley and Kay L.JJ. The case of real estate under an equitable title has recently come up in Preston's Trustee v. Cooke (75 L. J. Ch. 757), and Neville J., while far from satisfied with Re New Development Land

Association v. Gray, did not see any ground for distinguishing the case of equitable real estate from that of legal real estate. Nor is there. The question is whether there is any sufficient reason for maintaining any anomalous exemption of realty from the operation of the rule in Cohen v. Mitchell, now that the Courts have fairly cut themselves adrift from the words of the Act.

In Re Wright, Whitworth v. Wright ([1906] 2 Ch. 288, 75 L.J. Ch. 500), it was held by Buckley J., following a decision of Farwell J. in preference to a decision of Kekewich J., that no question of election was raised by reason of the invalidity of certain gifts by will which were, or were assumed to be, in breach of the rule against perpetuities, and the decision is no doubt reported on that account. Some of these gifts were certainly bad, as infringing the rule, but one of them, assumed all through, and without argument decided, to be void, appears to have been perfectly good. According to the report, under a settlement made in 1871, W had a testamentary power of appointment over the settlement fund amongst her issue, and she by her will appointed part of the fund to her son by name at twenty-five, he being at the date of her death more than twenty-two. Buckley J. decided, incidentally, and it would seem per incuriam, that this gift infringed the rule. But evidently the gift could not fail to take effect, if it took effect at all, within the prescribed period. And it can be read into the settlement so as to satisfy the common test suggested by Lord St. Leonards (Sugd. Pow. 8th ed. 396, pl. 6) and by Mr. Jarman. There has been noticeable of late years a tendency to magnify the importance of this test (which is really nothing more than a process of verification), and even to treat it as involving the insertion in the principal instrument of the precise words of the ancillary instrument. But, as was pointed out by Joyce J. in In re Thompson, Thompson v. Thompson ([1906] 2 Ch. 199, 75 L. J. Ch. 599), that is not the proper way of applying the test: thus to apply it is indeed haerere in cortice. Moreover, In re Thompson is a direct authority, if authority be needed, in favour of the validity of the gift in question.

Another learned correspondent writes as follows:

M. G. D.

Re Wright, Whitworth v. Wright [1906] 2 Ch. 288, 75 L. J. Ch. 500. Note that the gifts which in this case were treated as void for perpetuity were so treated by reason of earlier documents and facts. which were not material to the point on which the decision is reported, and being long and complex were not set out in the report. The report deals only with the question of election on the assumption