We are persuaded that much misapprehension and difficulty has arisen with respect to this doctrine of fraudulent preference, from the exclusive appropriation of the term voluntary to payments induced by a preference. Without any metaphysical refining, it is plain a payment may be voluntary, though not induced by a preference: indeed, whatever be the motive which influences a trader to make a payment, he makes it voluntarily; he acts as under the present circumstances seems best to him. The expression "voluntary preference" is manifestly incorrect.1 It is important that the term "preference" should be rightly understood. If an insolvent trader, who may be supposed to have all his creditors before him in his mind's eye, through personal favour selects, chooses or prefers one to receive payment, this is a preference in the strictest and most proper sense, and is, under the circumstances, deemed by the law fraudulent. But though a creditor apply to an insolvent trader for payment, and receive it, not through personal favour, there is still a preference or choice on the part of the trader, but of a different kind, and such is not considered fraudulent. Hence in many cases we find the term preference used to signify the advantage gained by a creditor through the act of the debtor, in whatever motive that act originated; and in consequence of this general meaning of the term, it has been found necessary to use some epithet when it is wished to designate that particular kind stigmatised by the law as fraudulent.

One more observation, and we have done. By the 81st section of 6 Geo. 4, c. 16, the present Bankrupt Act, all dealings and transactions by and with any bankrupt, bonâ fide made and entered into more than two calendar months before the commission against him, shall be valid, provided the party have no notice of a prior act of bankruptcy. A transaction must be deemed bonâ fide when the parties mean nothing by it but what is apparent,-when it is not a contrivance to conceal some secret purpose. Now if a delivery or transfer of goods be made by a trader more than two calendar months before the issuing of a commission against him, to a creditor, in satisfaction, or part satisfaction, of an existing debt, and the creditor have no notice of a prior act of bankruptcy, can such a See it in De Tastet v. Carroll, 1 Stark. 88, among other cases.

delivery or transfer be deemed fraudulent and an act of bankruptcy? Lord Tenterden, at nisi prius, thought not; "for the fraud, as it is termed, only consists in the evasion of the Bankrupt Law, and is not inherent in the nature of the transaction."1 That learned judge for one moment forgot that an "evasion of the Bankrupt Law" is the very essence of a fraudulent preference, and his decision has been overruled by the Court of Common Pleas.

W. C. W.

ART. V.-WHITE'S EDITION OF CRUISE'S DIGEST.

A Digest of the Laws of England respecting Real Property. By William Cruise, Esq. Fourth edition, revised and considerably enlarged. By Henry Hopley White, Esq. Barrister at Law. London: Saunders and Benning. 1835. We have always considered the plan of this work extremely well adapted both for reference in practice and for the instruction of pupils, and this our opinion seems to be confirmed by the steady sale which has attended the successive editions. Mr. Cruise's object, as we understand it, was to give a view of the leading doctrines respecting the different parts of the Laws relating to Real Property, without pursuing those doctrines into all their ramifications and details, but at the same time illustrating and proving the grounds on which they were established by copious extracts from the leading cases. And if it be true, as it undoubtedly is, that practitioners as well as students should seek for general principles, and not merely confine their attention to the naked point decided, it is most important and instructive to view the foundations of our Real Property Law, as traced out and established in the luminous judgments of Lord Hardwicke and other sages of the law.

It cannot be denied that the first edition of Mr. Cruise's work contained many grievous errors and mis-statements: every succeeding edition has been improved in this respect; but still, though the present editor speaks truth when he says that

1 Verba Lord Tenterden, C. J., in Tucker v. Barrow, 1 Moo. & Mal. 141. See 5 Taunt. 545.

29 Bing. 107.

the edition which he presents to the public has been revised, we regret to say that errors and blemishes yet remain which a little more care and circumspection could easily have removed. We do not pretend to have examined every part of this voluminous work with a critical eye, but two or three of the most popular titles we have read over with care, and we shall proceed to give our readers some of the products of our labour.

We may observe generally, that Mr. White has in many places corrected and amended the text by the insertion of words and paragraphs, which, however, are easily distinguishable from the text of his author; he has appended, too, several notes; and has added two entire new chapters on most useful and interesting subjects to the profession; one on powers of sale and exchange, the other on the doctrine of merger. He states in his preface, that nearly 1100 cases, either stated or referred to, have been added in the present edition; and the Acts relating to Real Property passed in the last session of parliament, as well as previous enactments which have been passed since the publication of the third edition, are referred to throughout the work. The editor has also offered some observations upon a few points that have occurred in practice, principally respecting the construction of the English Act for abolishing Fines and Recoveries.

With this general statement, which we have extracted from the editor's preface, we turn now to the title "Mortgage" in the second volume, upon which we propose to make some particular remarks. As a specimen of the editor's annotations we shall first extract the following correct and useful note on the subject of leases granted of estates in mortgage.

"To the creation of a valid lease of an estate in mortgage, the concurrence of the mortgagee and mortgagor is essential. The mortgagee having the legal estate should demise, and the mortgagor should also demise and confirm. The rent may be reserved generally, and the covenants from the lessee should be made with the mortgagee, and also with the mortgagor, severally. Sometimes a power is reserved in the mortgage for the mortgagor to appoint by way of demise, in which case the lease takes effect as an appointment of the use to the lessee for the term: in this instance the reservation may be general, and the covenants should be entered into with the mortgagee, and also with the mortgagor, severally, as where the lease operates as a common law demise.

"If the mortgage is of leaseholds, of course the mortgagor cannot, under a power to lease in the mortgage deed, make an underlease of the legal estate, without the concurrence of the mortgagee.”1

We must object to Mr. Cruise's definition or description of. a mortgage as " a conveyance of lands as a pledge or security for the repayment of a sum of money borrowed, with a proviso that such conveyance shall be void on payment of the money borrowed, with interest, on a certain day." For it is obvious that a conveyance by way of mortgage is almost universally made with a proviso, not that it shall be void on payment of the money, but that the mortgagee shall in such case reconvey the premises.

The objection to a mortgage in fee, that in case of the death of the mortgagee the estate in the land goes to his heir or devisee, while the money belongs to his personal representatives, which, Mr. Cruise rightly states, is often attended with great inconveniences, may be obviated, as we have already stated in this work, by giving the executors of the mortgagee power to appoint the mortgaged premises through the medium of the Statute of Uses; at the same time confining this power within the term of twenty-one years from the death of the mortgagee, (so as not to offend against the rule against perpetuities), and in default of appointment, limiting the fee to the mortgagee in fee. This plan gives the same persons dominion over the estate in the land who are entitled to the money, and renders any recurrence to the heir at law or devisee of the mortgagee quite unnecessary.

Mr. Cruise states, that the Court of Chancery will relieve the mortgagor against "all restraints imposed upon the equity of redemption;" but this is scarcely expressed with sufficient precision, for though it is undoubtedly true that the mortgagor cannot be absolutely barred of this equity by any agreement made at the time of the mortgage, yet we apprehend we should go beyond the intention of the Courts if we were to adopt Mr. Cruise's rule, and conclude from it, that even an agreement that the mortgagor should not redeem the premises for a limited term, as five or six years, which is often found in mortgages, is void and of no effect.

The statement of the case of Mellor v. Lees is incorrect 2 2 Atkyns, 494.

1 2 vol. 87.

enough as given in Atkyns, but it is still worse as we find it in the text before us.

It is laid down in the chapter we are reviewing, that a mortgagee may, upon nonpayment of the interest, give notice of the mortgage to the tenants of the mortgaged premises, and so acquire a right to the rents then due and unpaid. We object to the qualification upon nonpayment of the interest, for we apprehend it is clear that if default be made in payment of the principal only, a mortgagee may enter into receipt of the rents, and apply the same in reduction of his debt. That the mere receipt of interest by a mortgagee does not preclude him from asserting his right to the possession of the mortgaged premises, is proved by the case of Doe v. Cadwallader, 2 Barn. & Adol. 473.

We think the opinion attributed to Lord Hardwicke, that a second mortgage or further charge, merely to secure interest in arrear, is" a hardship upon the mortgagor and an act of oppression," was scarcely deserving of being cited, for certainly such a transaction does not deserve such a character; if there be any hardship at all it is upon the mortgagee, who has been unjustly deprived of the use of his interest for the time it has remained unpaid.

We should have been inclined to add an observation to Mr. Cruise's objections to second mortgages: his first objection, that they may be defeated by a third mortgagee paying off the first without notice of the second, may be effectually removed by indorsing a memorandum of the second mortgage on one or more of the principal deeds, to which the first mortgagees would seldom object, unless they were desirous that their money should be paid off. And as to the objection, that the second mortgagee has no legal remedy for the recovery of his money, it is in a great measure obviated by the practice of giving him a power of sale, by which he can easily render his security available.

It is a rule in Chancery, that in all cases where the legal estate is outstanding, incumbrancers claiming under the beneficial owner or cestui que trust, must be paid according to the dates of their respective securities, but with this qualification and distinction, first insisted upon by Lord Chancellor Cowper, that a puisne incumbrancer has not acquired a better or