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MERCANTILE LAW.

NOTES OF NEW DECISIONS. BANKER AND CUSTOMER-TRUST MONEYLIEN OF BANKER-NOTICE OF TRUST-BANKRUPTCY OF CUSTOMER-When a customer has opened with his bankers separate accounts specially headed with the names of the trusts to which the moneys paid into those accounts belong, the bankers are not at liberty, upon the bankruptcy of the customer, to apply those moneys in payment of the balance due to them upon the customer's overdrawn private account. Decision of the Chief Judge in Bankruptcy (24 L. T. Rep. N. S. 198) affirmed: (Ex parte Kingston, re Gross, 25 L. T. Rep. 250. Chan.)

TEED ANALYSIS" SENT WITH SAMPLE-WAR

SALE OF GUANO BY SAMPLE-A "GUARANRANTY-CONTRACT.-The secretary of the defendants wrote to the plaintiff on the 13th Jan. inquiring the terms on which he would supply the society with Peruvian guano, and adding as follows:-" A sample, with guaranteed analysis, to accompany your offer," to which the plaintiff, on the 23rd Jan., replied by a letter, in which he said: "I will be glad to do the best I can for your society.".. "I may say that my guano contains 18 per cent. of ammonia; this is the highest analysis this year." And on the 1st Feb. the plaintiff forwarded three samples of guano, with a letter offering them to the defendants at certain prices-viz., No. 1, at 14l. 2s. 6d.; No. 2, at 13. 10s.; and No. 3, at 121. 5s. per ton; and in that letter he said: I enclose a copy of analysis, and can send three more in a day or two." The copy printed analysis, which was so inclosed, set out the specific proportion per 100 of the various constituent parts, and at the foot of it was the following note: "Containing nitrogen, 14:31 equal to ammonia 17:37." On the 4th Feb. the defendant's secretary wrote as follows to the plaintiff: "The directors have agreed to accept your tender, according to the conditions named in your letter;" and on the 8th March he wrote an order to the plaintiff for a quantity of "the best Peruvian guano, No. 1, price 14l. 2s. 6d. delivered, conditions and analysis as per yours of the 1st Feb." The guano was delivered by the plaintiff according to the defendants' order, and after the bulk had been broken and distributed amongst the customers of the society, the defendants, in consequence of complaints made to them of the quality of the article, sent a sample of it to their own analytical chemists, the result of whose analysis was that the bulk did not answer the analysis sent by the plaintiff, or resemble in appearance the sample No. 1; but was of inferior quality, and contained nearly 5 per cent. less ammonia than the proportion mentioned in the plaintiff's analysis. In an action by the plaintiff to recover the price of the guano, it was Held, by the Court of Exchequer (Martin, Channell, and Pigott, BB.), that the correspondence between the parties, upon which the whole matter turned, contained a warranty that the bulk was equal to the sample, but none that it was equal to the analysis. The term "guaranteed analysis," as there used, did not mean a "warranted" analysis in the sense of a warranty that the bulk should correspond precisely in its constituent parts and proportionate strength with the analysis, but merely that an analysis should be fairly made, in the usual and proper manner, according to the custom of the trade: (Towerson v. The Aspatria Agricultural Co-operative Society (Limited), 24 L. T. Rep. N. S. 297.)

TRIBUNALS OF COMMERCE.

THE following is the Report of the Select Committee appointed last Session to inquire into the expediency of establishing tribunals of commerce, or of otherwise improving the administration of justice in causes relating to commercial disputes in England

"The report of the evidence taken by the select committee appointed in 1858 having been referred to your committee, it appears that much important information was then obtained respecting the constitution and operations of tribunals of commerce in several states of Europe. In further pursuing the inquiry, your committee have examined several witnesses, who, from their position and connections, were competent to express the views generally entertained by the commercial classes respecting the present state of the judicial system in this country, and your committee have come to the conclusion that general dissatisfaction exists amongst the mercantile community at the manner in which justice is administered in commercial cases by the Superior Courts.

"This dissatisfaction may be ascribed to the following causes;-Delay in the progress of the cause; expense in the preliminary procedure and in the trial of the cause: the difficulty of bringing the real question in dispute before the court in a satisfactory manner; the frequent inability

of the court to try the cause, and the consequent reference of it to arbitration; the inefficiency, delay, and expense of the arbitration to which the cause is remitted.

"To these evils may be added the great risk that is incurred in many branches of commercial dealing, that the evidence of the transaction in dispute may be seriously impaired unless it be obtained and recorded as soon as the controversy arises. In some cases an immediate inspection of the commodity respecting which the dispute has arisen might settle the question in difference; in others an accurate recollection of verbal statements whilst fresh in the memory of parties and witnesses would be secured, which after the lapse of months becomes involved in doubt. In cases connected with shipping, the departure from England of parties or witnesses either necessitates the issue of commissions to take evidence, attended with difficulty, expense, and delay, or results in the loss of the evidence altogether. Nor can it be doubted that the uncertainty, difficulty, and expense of pursuing a just demand in the Superior Courts deter many persons from resorting to the courts for redress, and that thereby commercial morality is seriously undermined, and discreditable traders are encouraged to repudiate their engagements, or to execute them in a dishonest manner.

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Your committee have not thought it necessary enter into a minute examination of all the details of the procedure and cost of litigation in particular cases, to ascertain in what manner the feeling of the commercial community adverse to the Superior Courts has grown up, because it appears to them that whatever may be the theoretical excellence of the rules of procedure, and the apparent moderation of the scale of costs, the opinion of the general public has arisen from their experience of practical results on which that judgment is formed.

"It may be urged in vindication of the existing system that questions in dispute are examined and determined with the utmost care and deliberation, and the courts are enabled to lay down rules of law which constitute the commercial code of the country, and become of the greatest service to the mercantile community; but, however valuable this consequence may be to the commercial classes in general, it seems to your committee to be no sufficient reason for imposing upon individuals who merely require a speedy decision of some particular dispute that may have arisen in their commercial dealings, the delay and expense of protracted and costly litigation. It is, however, open to doubt whether precise rules of general application are always the fruit of protracted and costly litigation, for the language in which judicial decisions are generally pronounced is not unfrequently a source of fresh perplexity and embarrassment, when it becomes necessary to ascertain the law applicable to cases not identical in all points with the one already decided. It would be more just and reasonable for the nation to provide a commercial code for the guidance of the community.

"It has, indeed, long been the prevailing opinion amongst the chief states of Europe that the nature of commercial disputes differs so widely from other causes brought before the ordinary courts of justice, that it has been deemed expedient to establish special courts, called tribunals of commerce, for their decision, under a special code of procedure. These courts are in France composed of three judges, selected from the commercial class. In places where no tribunal exists, the local judge associates with himself mercantile judges to constitute a tribunal for the occasion; but in Hamburg the tribunal is composed of a number of the legal profession, assisted by two commercial men.

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The tribunal of commerce in France possesses exclusive and compulsory jurisdiction for the trial of all commercial disputes, which are thus classified in the French Code, subject to some special qualifications, which will be found in detail in chapter 2 of the Code On the Jurisdiction of the Tribunals of Commerce,' appended to this report:

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'631. Tribunals of Commerce shall be competent to adjudicate on the following matters; 1. All disputes relative to engagements and transactions between traders, merchants, and bankers. Co. 1. 2. Between all persons as to disputes relating to acts of commerce. Co. 632, 633.

632. The law regards the following as acts of commerce: All purchases of goods and merchandise for the purpose of re-sale, either in raw state or after they have been worked up, or even simply let out for use; every undertaking of a contract to supply carriage by land or water; every transaction relating to furniture, of agencies, of opening places of business, of establishments for sales by auction, and public entertainments; every operation relating to exchanges, banking, or brokerage; all the operations of public banks; all obligations between traders, merchants, and bankers; and between all persons as to notes of

exchange, or remittances of money made from one place to another. Co. 110 S.

663. The law likewise considers as acts of commerce-Every enterprise for building, and all purchases, sales, and resales of vessels for internal and external navigation. Co. 195-226. All maritime expeditions; all purchases or sales of rigging, tackle, and stores; all freight or hire of ships, borrowing or lending on bottomry; all assurances and other contracts relating to maritime trade; all agreements and contracts for payment of wages and hire of crews; all engagements of seamen for the service of merchant ships.

634. The tribunals of commerce will consider likewise as Acts of commerce:-1. Actions against all persons employed by merchants, for their acts in reference to the business of the merchant by whom they are employed. 2. Notes or bills made by receivers, payers, collectors, and other officers of the public money.'

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The tribunal is invested with the power of summoning the defendant to answer a complaint at a short notice, which in special cases does not exceed a few hours, and of regulating the progress of the case according to circumstances. parties generally appear personally, and may be compelled to do so, but are permitted to avail themselves of a particular class of agents; the proceedings are all of a summary character, and the cause is generally disposed of with expedition at a moderate expense. The right of appeal to the ordinary courts is recognised. There seems

to be no reason to doubt that the manner in which

justice is administered by tribunals of commerce affords satisfaction to the commercial community. Your committee have, therefore, deemed it right to consider whether this system, which so extensively prevails in Europe, might not with advantage be introduced into this country.

"It is worthy of observation that, whilst the commercial classes in England are obliged to submit their disputes to the Superior Courts, with their complex legal machinery, the public has, at the same time, recognised, for its own protection and convenience, the propriety of a more simple, expeditious, and inexpensive procedure for a large class of cases which come within the criminal law. Though the reputation or liberty of the subject is often seriously affected by a criminal prosecution, no difficulty seems to be experienced in the prosecutor attending before a single justice of the peace, who generally is not a lawyer, for the purpose of making a statement of his complaint, or in the justice of the peace issuing a summons, or even a warrant, to compel the defendant to appear before him on the next day, or in then proceeding with the trial of the case, either alone or with another justice of the peace, or adjourning it from time to time until it is decided, if it be within summary jurisdiction, or until the case has been committed for trial to

another court.

'With few exceptions the County Court is the only local tribunal for the administration of civil justice. Its compulsory jurisdiction is limited to claims of small amount, except where the court is invested with the power of a court of equity or of admiralty, when the jurisdiction extends to matters varying in value for the several classes of cases up to 1000l., and excepting where the court has the power of a court of bankruptcy, when the jurisdiction is unlimited. But whilst the Royal Judicature Commission is still prosecuting its labours to determine in what manner justice should be administered by the several local courts and the Superior Courts, your committee have not thought it expedient to attempt to engraft the system of tribunals of commerce upon any of the existing courts of justice. Yet in any reorganisation of the judicial system of the country it seems to your committee that the County Courts might form a convenient and economic basis for the establishment of such tribunals.

"Your committee would not interfere with the

ordinary jurisdiction of the County Courts for sums under 201., but they are of opinion that a tribunal of commerce should be established in such of the large towns throughout the country as might be selected as centres of surrounding districts, having regard to the population and commercial activity of each district; and that the curt should be composed of one member of the legal profession as the president, and of two other members selected from the commercial classes for the office of commercial judge, with a registrar to carry on the routine business of the court. Some approach to this system was made when the admiralty jurisdiction was conferred on the County Courts. The judge in these cases is assisted by two nautical assessors, and it appears from the evidence that the court so constituted gives great satisfaction. Should the business of the tribunal be so extensive as not to admit of the County Court judge and registrar conducting the business of the court, the President and registrar should be appointed by the Crown. The selection of the commercial members of the court is by no means free from difficulty. It will be seen from the

paper recently laid before the French Chamber, and translated in the appendix, that several changes have taken place in the mode of making the selection in France which have been greatly influenced by political considerations; but as the sole object of appointing the commercial judges is to secure impartial and intelligent judges, in whom those subject to the jurisdiction of the tribunal may have confidence, your committee are of opinion that this object would be best attained by empowering the Lord Chancellor to appoint persons engaged in business in the district of the highest probity and reputation to be commercial judges.

"The number of the mercantile judges to be appointed for each court should be proportioned to the business to be conducted; so that each judge would only be required to attend the court for a limited period. The attendance might ordinarily be by rotation, reserving to the legal judge the power of selecting from the mercantile judges those skilled in the business out of which the dispute may have arisen, whenever it might be found to be desirable. The office of commercial judge, like that of a justice of the peace, should be regarded as an honourable duty, not as a source of emolument.

"The jurisdiction of the tribunals should be compulsory and exclusive over all causes which might be classified as commercial, either according to the French classification, or according to that which has prevailed in the country, in discriminating between the trader and the nontrader under the bankruptcy laws. The fact that special tribunals so long existed with a jurisdiction over traders alone for the administration of those laws shows that no practical difficulty need be apprehended on this point.

"It appears to your committee that in order to derive all the benefit expected from a Tribunal of Commerce, it is essential that the procedure ihould be of the simplest and most summary character, like that before the Tribunal of Commerce in Franc, or before justices of the peace in this country. The complainant should be at liberty to attend before judge or registrar to prefer his complaint, and obtain a summons returnable at any time according to the nature of The defendant should appear in person or through an agent to answer the complaint, and further stages of the proceedings if required should be regulated by the circumstances of the dispute so as to bring the case to a speedy termi

the case.

nation.

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"Your committee think it unadvisable to exclude altogether the intervention of professional legal agents. They would, therefore, recommend that counsel and attorneys should be admitted to assist the parties, without superseding their personal attendance, as your committee are of opinion that in the greater number of cases the tribunal would be able to dispose of the complaint on the first appearance of the parties, by unravelling the cause of dispute and suggesting a fair and reasonable adjustment of their differences, without even resorting to a formal decision; and that in many other cases the tribunal would be enabled to decide on the admitted facts whilst they were fresh in the recollection of the disputants. A small number of cases, however, would present features of legal complexity which might deserve the consideration of a higher tribunal. Your committee believe that the present system of appeal from the County Courts and from magistrates has been found sufficient for the protection of the suitor from injustice. They, therefore, think that a similar system of appeal might be adopted for the tribunals of commerce. In any case under 5001, the appeal should only be allowed with the sanction of the court, and above that amount it should be allowed on the demand of either party.

"Without knowing what other changes may be introduced into the judicial system of the country, your committee are unable to determine whether any additional expense would be occasioned by the establishment of tribunals of commerce. But it seems to your committee that if a reasonable scale of fees were charged for the business transacted, the receipts would be sufficient to cover the expenditure. The withdrawal of all commercial causes, in the first instance, from the Superior Courts would afford a reasonable expectation that the number of judges of those courts might be diminished, so that the saving of charges on that account would be equal to any deficiency arising from the expense of the tribunals of commerce. 'August 3, 1871."

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MARITIME LAW.

NOTES OF NEW DECISIONS.
RIGHT OF SHIP'S AGENT TO SUE FOR NECES.

SARIES.-The agents of a foreign ship in a British
port, who have paid for necessaries supplied to
her, or who have rendered themselves liable to
pay for such necessaries, may sue the ship for
such advances as were made on the ship's account,
but not for the balance of a general account
against her owners. A co-partner in a ship may
sue the ship for such advances made by him, but,
semble, not if the co-partner is interested in the
particular voyage for which the ship is supplied.
The West Friesland (Swa. 455) followed: (The
Underwriter, 25 L. T. Rep. N. S. 279. Adm.)

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COUNTY COURTS.

BIRMINGHAM COUNTY COURT. (Before R. G. WELFORD, Esq., Q.C., Judge.)

WOOD v. ROBERTS.

The liability of married women to be sued.
M. Maher appeared for the plaintiff, and Dale
(from the office of Messrs. Duignan and Lewis,
Walsall) for the defendant.

His HONOUR gave the following judgment in this case:-This is an action by Mr. EdwardsWood against Mrs. Roberts for his bill of charges as an attorney in respect of proceedings taken on her behalf in the Divorce Court. Mrs. Roberts was then a feme covert, but she had not SHIPPING-CONTRACT TO LOAD COALS-SUB- seen, nor had any communication with, her hus SEQUENT DISPUTE AS TO PRICE-ACCEPTANCE band since Sept. 1863, when he deserted her. GIVEN AT A TIME WHEN CARGO LOST-FAILURE Her husband, in April 1865, was resident in ScotOF CONSIDERATION.-The plaintiff, a shipbroker land, under the name of Samuel Donslaw William and coal merchant at Newport, was, in Dec. last, son. On the 11th April his estate was sequesin negotiation with the defendant, a merchant at trated, and one Malleson was appointed trustee Liverpool, with reference to the plaintiff's ship of the sequestrated estate. This was a Scotch ping a cargo of coals on board a vessel at Newport bankruptcy. The 28th April was duly appointed called the Vectis, chartered by the defendant for a or the public examination of the bankrupt, who voyage to Lisbon, the charter stipulating it was to failed to appear, and on the 29th April a warrant be loaded in five clear working days, or demurrage was granted to apprehend him under the 88th would become payable. The coals were sold to section of the Bankruptcy (Scotland) Act 1856, the defendant at Liverpool on the 14th Dec., at 19 & 20 Vict., c. 79. Under this warrant the bank10s. a ton, by the plaintiff's agent there, who sent rupt may be apprehended in any part of the the order to the plaintiff by post on the same day, United Kingdom. A duly certified copy of the and on the following day, the 15th, sent him a warrant is in evidence. The bankrupt had in telegram as follows: "Please load Vectis for fact absconded to Australia, and on the 21st Lisbon, now ready at your port for Cohen," to March 1865 he wrote a letter from Melbourne which the plaintiff replied that as his stem was at to Mr. Johnston, in Edinburgh, in which is present so heavy he could not load the vessel, this passage: "Mr. Tod's action and the and that coals were not then to be got, the defen- complexion things assumed made me think dant had better get coals elsewhere. In reply it advisable to leave Edinburgh. I have settled to that the defendant wrote urging the plaintiff my business here, and am going to San to do his best to load the vessel at once in order Francisco in a few days." He then gives an to save demurrage, and forwarding notice of address for letters at the General Post Office in lay days having commenced. The plaintiff San Francisco. The bankrupt has never been answered that it was impossible to load the vessel captured on the warrant, nor has he returned to within the time, and asked for an extension of it, the United Kingdom. Indeed, the defendant beor if coals could be gotten elsewhere, to which, on lieved him to be dead. Nevertheless, she has the 19th Dec.. the defendant replied, hoping more since 1870, when the plaintiff's debt was incurred, time for loading had been procured, or that the obtained a divorce from the bankrupt-substitute plaintiff had been able to get equally good coal service on him having been made according to the elsewhere at the same price. The plaintiff pro- rules of the Divorce Court. Under these circumcured the coal at an increased cost of 6d. a ton, stances the question to be decided in this action and informed the defendant thereof, who, on the is, whether the bankrupt must be taken to have 20th, telegraphed to the plaintiff, objecting to pay become "an exile," or to have "abjured the the extra G., and stating that the coals must be realm," so as to render his wife liable to be sued loaded at the contract price at once. On the same at common law on her own contract as a feme day the plaintiff telegraphed to the defendant, sole? In order to a decision, I will first dispose "We have arranged to load the Vectis to night," of the objection that "abjuration of the realm' and on the 21st Dec. the defendant instructed the has been abrogated by Act of 21 Jac. 1, c. 28. plaintiff by telegram as follows: "Load up Vectis By that Act sanctuary in England was abolished, immediately, and save demurrage, and pay ad- and thereupon abjuration, according to the forms vance as per charter. Will arrange price after- then used, in the case of offenders taking refuge wards," and by post of the same day he wrote to in a sanctuary, ceased. But whether the term the plaintiff that if 6d. a ton extra were now "abjuration of the realm" or "exile" be still in charged he should deduct it from the next cargo use, it is certain that there are conditions of loaded for him by the plaintiff. On the 21st the absence from the realm on the part of the loading of the vessel was completed, and 461. ad- husband which will give his wife remaining in vanced by the plaintiff to the captain for the de- this country the power of suing and the li fendant on account of freight. On the 22nd the bility of being sued, in her own name-and as bill of lading was signed by the captain, expressing a feme sole-upon her own contracts. Whether the delivery "to order or to assigns" at Lisbon, the conditions under which the bankrupt huswhich bill was, with the invoice and a bill of band of Mrs. Roberts absented himself from the exchange for the full price of 10s. 6d. a ton, sent realm have given her in contemplation of law the by the plaintiff to his agent at Liverpool on status of a feme sole I will endeavour to ascertain. that day, with instructions to hold it till the The cases on the subject seem to produce this defendant had "paid the advance and accepted general result, "that where the absence of the the bill of exchange at 10s. 6d. a ton." The de- husband was voluntary, however far it may have fendant refused to accept the bill of exchange, appeared to be, or may have been, from his intenwithout an understanding as to the price, as men- tion to return to the realm, still such absence tioned in his letter of the 21st. After some dis- would not invest his wife with the legal attributes cussion the plaintiff, by post of the 24th Dec., of a feme sole in this country. But where the agreed to allow the extra 6d., and on the 27th Dec. abjuration or exile was such that the husband the defendant repaid the advance and accepted the could not return to the realm, that it would have lost at sea, in the Bristol Channel, on the morning wife in this country must be treated as a single bill of exchange. The Vectis and her cargo were been contrary to law for him to do so, then the of the 24th Dec., and in an action by the plaintiff woman, and will therefore be capable of binding to recover the amount of the above acceptance, it was herself by her own contracts. To see whether this held by the Court of Exchequer (Bramwell, Chan- case falls under a voluntary or compulsory abnell, and Pigott, B.B.), making absolute a rule to sence on the part of the defendant's husband, I enter a verdict for the defendant that, as the will examine shortly the old law as to abjuration coals had not been shipped in pursuance of any of the realm and exile, and the principle on which contract between the parties, the plaintiff could it is founded. Blackstone (vol. 4, Christian's edit. not recover. The contract was to load on board 332), after describing sanctuary, and how the at 10s. a ton, and if, when the plaintiff charged 64. accused person, by confessing and describing his a ton extra, and the defendant objected to it and offence before the coroner, and by oath abjuring said, "load the vessel and we will arrange price the realm, and engaging to depart at an assigned afterwards," the plaintiff had agreed to that pro- port, never to return, might obtain the opportu posal, he might have recovered on a quantum nity of going abroad without personal punishment, meruit; but he did not do so. He went on dis- adds, "But by his abjuration his blood was puting as to the price, and instructed his agent to attainted, and he forfeited all his goods and hold the documents till his terms were accepted chattels." Now the obvious reason why the wife of by the defendant, and when at last he agreed to a person who thus abjured the realm was enabled allow the extra 6d., it was too late, the coals had to sue in her own name, was that her husband then gone to the bottom. The coals, therefore, had become what was designated civilly dead; were not shipped on board in conformity to any that is, his civil right in this country had ceased contract, enabling the plaintiff to maintain the to exist. Again, in Coke's Commentary upon action, and there was an absence of all considera- Littleton (132 b, 133 a) it is said:"In some tion entitling him to recover on the bill of ex- cases a wife hath ability to sue and be sued withchange: (Williams v. Cohen, 25 L.'T. Rep. N. S. out her husband, for the wife of Sir Robert Bel300. Ex.) knap, who was exiled or banished beyond the sea,

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did sue out a writ in her own name, without her husband, he being alive." So Lord Coke says:— King Edward the Third brought a quare impedit against the Lady of Maltravers, and she pleaded that she was covert of baron; whereunto it was replied for the king that her husband, Lord Maltravers, was put in exile for certain cause, and she was ruled to answer.' In these and other cases of the same sort the husband was banished "or put in exile" without any formal sentence by any court, but merely by the will of the Crown, and was bound to remain there" until he obtained the king's grace." In each case of exile there were none of the disabilities implied by the term civil death, but the husband was out of the realm under a species of compulsion, and could not return without becoming liable to personal consequences of a penal character. But the reason for giving the wife the attributes of a single woman applied as much to the latter class of cases as to the former, i.e., her husband being absent under compulsion, could not stand in the ordinary legal relation to her and her contracts as he would do when here, or might do if his absence was purely voluntary. Accordingly, we find that the principle of the exceptions to the rule that the wife shall not sue without her husband, which had been established under the old law, has been extended to transportations, whether for life or for shorter periods. The case of Carroll v. Elencow (4 Espinasse Rep. 27) seems to be a clear authority for the proposition, that where the husband's sentence of transportation has expired, if, in fact, he has not returned to this country, the right to sue alone remains in his wife. And Lord Alvanley in that case expressly held that, if the defendant in such an action by the wife meant to rely on the husband's return, the proof of it lay on the defendant. It is said that transportation having been'abolished-or at least discontinued that that case cannot govern the present; but, inasmuch as the principle of the old law of abjuration and exile was applied to transportation, so I apprehend the same principle must be equally applied to new circumstances which involve the same consequences, as, for instance, to the case of the husband undergoing a sentence of penal servitude. Regarding the question in the present action by the light of the previous applications of the law, can it be held that Mrs. Roberts's case is brought within the exceptions I have referred to ? I think it is properly so brought. Iam of opinion that her husband is absent from the realm under circumstances which enable her to sue, and subject her to be sued alone. Her husband is a bankrupt, whose property of every kind has passed to his trustee. He has failed to attend on the day fixed for his public examination, and a warrant for his apprehension has consequently been issued. Under that warrant he may be arrested the moment he sets his foot in the

United Kingdom, and the letter he wrote from Melbourne proves that he is fully aware of the legal, I may say the penal, consequences which will occur to him on his return, by reason of his flight from justice. His condition of exile is as complete as it can be made by anything short of a judicial or Parliamentary banishment. As regards property, in his power over his wife's personal contracts his disabilities are as absolute as those of a man who, in the language of the old law, was held to be civilly dead. Upon reason and principle, therefore, I feel bound to hold that Mrs. Roberts, the defendant, is liable to be sued alone on the contract she has made with the plaintiff. There will be a verdict for the plaintiff. I have looked through the plaintiff's bill of costs (with the aid of the registrar), and I think the sum of 31. 15s. is amply sufficient for the work done. For that sum the plaintiff will

have a verdict.

DEWSBURY COUNTY COURT.
Friday, Sept. 29.

(Before Barber, Esq., Deputy Judge.)
Re ELLIS.

Bankruptcy-Fraudulent preference-Pressure. In July, 1869, Edwin Ellis, cloth manufacturer, of Morley, effected an arrangement with his creditors for payment of a composition of 10s. in the pound, by three equal instalments at four, eight, and twelve months, respectively. William Ramsden, estate agent, of Leeds, his brother-in-law, becoming surety for payment of the last instalment, which came to abcnt 2601, and the latter receiving, as counter security, a second mortgage of the debtor's dwelling house.

The debtor met the first instalment when it became due, and in April 1870, when the second was about falling due, sold his machinery for the purpose of meeting it; at the same time renting premises and machinery on favourable terms, in order to carry on his business as usual.

Shortly afterwards Ramsden sold the property comprised in the second mortgage given to him, but realised less than was expected; and, after satisfaction of the first mortgagee's claim for

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principal and interest, left a balance of only 1431. applicable towards payment of the third instalment of dividend. Accordingly, the surety was at this time uncovered to the extent of about 1171.

On Friday, the 6th May 1870, Ellis was served with a debtor's summons in bankruptcy, at the instance of Mr. William Pritchard, wool merchant, of Leeds, a creditor for 2821. in respect of goods supplied since the date of the composition, and this coming to the ears of Ramsden, he at once went over to Morley, and on the Monday morning took Ellis with him to Leeds, and there saw Mr. Walker, solicitor, who had acted professionally for Ellis in the matter of the composition, and also prepared Ramsden's mortgage security. Ellis, at that time, declared that he was being pressed by no other creditor, and that be had 100 ends of cloth in the hands of Mr. John Purchon, cloth finisher, which, if sold, would realise enough to satisfy the debtor's summons, in addition to the sum due to Purchon, and accordingly Eilis and Ramsden went together to the finisher and tried to induce him to part with the goods; but, however, without success, as some portion had been delivered to the fuller and some to the dyer, both of whom wanted balances of Ellis, and Purchon considered the remainder would not more than about satisfy his own claim.

On the Tuesday morning Ramsden went over to Morley again and saw Ellis, and having ascertained that the debtor had a few ends of cloth in hand, induced him, by persuasion, to go with him to Mr. Hirst, his landlord, and sell the ends for 701., payment being made in a three months' accptance, which was the same day endorsed over to Ramsden, who in due course met the third instalment of composition, and after giving credit for the proceeds of his mortgage security and the 701. acceptance, was left deficient about 471. Before the end of May 1870 Ellis was adjudicated bankrupt, on the petition of Pritchard, for the nonpayment of the amount of the debtor's summons, and the bankrupt's balance-sheet afterwards filed in court disclosed liabilities 3191., and available assets 1271. The present application was by way of motion on the part of the trustee in bankruptcy for recovery from Ramsden of the amount of the acceptance received by him from Ellis, and Mr. Simpson, solicitor, of Leeds, who appeared in support of the motion, contended that the transaction constituted a fraudulent preference under sect. 92 of the Bankruptcy Act 1869, nasmuch as the debtor had given the acceptance to Ramsden, out of regard for the relationship existing between them rather than from any pressure operating on his mind at the time; and laid stress on the fact that when the acceptance was handed over, Ramsden had not been called upon to pay anything on account of his suretyship, the last instalment of composition not being due. On the other hand, Bond, solicitor of Leeds, who appeared to oppose the application, reviewed at length several cases bearing on the subject, and maintained that his client was entitled to the preference he had got, being a creditor in good faith

and for valuable consideration.

In giving judgment, His HONOUR recapitulated the facts as stated, and pointed out, as an important circumstance indicative of pressure, that the bankrupt had been followed about for several days by Ramsden, who, even when the acceptance was drawn and in the hands of Ellis, was unable to obtain it until after a course of importunity or "teazing," as one of the witnesses termed itextending over an hour. Recent decisions went the length of determining that even where the debtor had mixed motives for preferring one creditor before another, yet if any one degree, how. ever slight, of actual pressure was brought to bear in good faith by the favoured creditor, he should be entitled to the fruits of his diligence and importunity. On the facts as disclosed by the evidence, the learned judge had no hesitation in deciding that Ramsden was a creditor for valuable consideration, who had exercised actual and bona fide pressure, and, therefore, he dismissed the motion, but without costs, believing the case to be one in which the trustee was fairly justified in putting the creditor to proof of the validity of his claim.

Bond asked for his Honour's ruling as to the costs of a former motion which had been aban

doned on the ground of irregularity; and, ultimately, the parties agreed, with the sanction of the court, to an order allowing costs on the motion just heard, no costs being asked for on that previously abandoned.

FAVERSHAM COUNTY COURT.
Friday, Oct. 13th.

(Before W. C. SCOTT, Esq., Judge.)
HIGHAM v. SMITH.

Liability of a father for goods supplied to his son,
whilst at a boarding-school.
Held: The father was liable to the tradesman sup-
plying them, although the master was expressly
forbidden to pledge his credit.

THIS was an action against Dr. Smith, the fathe

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of one of the boys at the Faversham Grammar School, for goods which had been supplied by the plaintiff, a tailor in the same town, to the defendant's son. The facts of the case were as follows:

In Jan. 1871, Dr Smith, of Cheltenham (the defendant), placed his son, a boy between fifteen and sixteen, at the Faversham Grammar School, under the care of the Rev. James Hunt, the principal. The lad had been previously at Cheltenham College, but having incurred a consider able number of debts, had been removed by his father. The fact of the son's debts whilst at Cheltenham had been communicated to the principal of Faversham School, and in one of his letters to the father of the boy were these words-"In a small town like this, I could at once prevent him from running into debt." The master had been repeatedly forbidden by the boy's father to allow him to incur any liabilities whatever, other than the school expenses.

The boy had been handsomely provided with clothes and other necessaries, previously to his becoming a pupil at the school; but it appeared that during his stay there, the principal wrote to the plaintiff the following letter: "Please supply Dr. Smith's son with a pair of flannel trousers, &c. ;" upon receipt of this, the plaintiff from time to time served the defendant's son with clothes amounting in value to upwards of 121. He now sought to recover this sum from the defendant.

Hayward (of Rochester), contended that the defendant was liable for the goods supplied. They were clearly necessaries, because the other boys in the school had them, and therefore they were customary for persons in the boy's station in life. The master had given the plaintiff the order, and there was an implied authority from Dr. Smith that he would be answerable for the debt incurred. He submitted that the letter of the defendant to the master, desiring him not to allow his son to pledge his credit, did not effect this action, as the implied contract to pay moved from the father to the tradesman.

F. G. Gibson (Sittingbourne), argued, first, that the goods supplied were not necessaries, they consisted of cricketing and rowing suits, &c., which the defendant's son did not in any way need; the school was intended for the most part for sons of gentlemen of limited income, and it could not be supposed they were to spend large sums every year in fancy suits. Secondly, there was nothing to charge the present plaintiff, there being a total denial of the master's agency, and the implied authority to pay (if any) was from the master to there was no privity whatever, either by implica the tradesman, and from the father to the master, tion or otherwise between the present plaintiff and defendant. Thirdly, even if the master was an agent for the father, the latter could only be liable for goods specifically ordered, and he submitted that the words "et cetera extensive a construction as had been put upon them by the plaintiff in this action, who had, by the the value of 10%. He argued the defendant was authority of those words alone supplied goods to not liable for any of the goods.

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between Higham (the plaintiff) and Dr. Smith His HONOUR said he was of opinion that as (the defendant), there was an implied authority for the master to pledge Dr. Smith's credit for goods supplied to his son, and that this existed, notwithstanding the express direction given by the latter to the contrary. He also considered the "et cetera" included not only the goods specifically ordered on that particular occasion, but also all the goods, and notwithstanding the father had never seen the clothes, they were properly described as necessaries." He therefore gave judgment for the whole amount.

.

F. G. Gibson applied for leave to appeal, which was granted. Judgment for the plaintiff.

BANKRUPTCY LAW.

NOTES OF NEW DECISIONS. BANKRUPTCY ACT 1869, s. 95, SUB-SECT.

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AND

s. 125, SUB-SECTS. 4, 5, AND 7-SEIZURE UNDER EXECUTION-SALE DELAYED BY INJUNCTION— APPOINTMENT OF TRUSTEE UNDER LIQUIDATION BEFORE SALE- - EXECUTION NOT PROTECTED AGAINST TRUSTEE. After execution levied on the goods of a debtor, a petition for liquidation was filed by the debtor, and notice thereof served on the bailiff. On the day appointed for the sale an order of the court was obtained for the appointment of a receiver, and an injunction was granted to restrain further proceedings under the execution. Subsequently a trustee was appointed. Held, that the goods seized were the property of the trustee, and that the execution creditors were not entitled to be paid their debt out of the proceeds of the sale: (Ex parte Veness, re Gwynn, 25 L. T. Rep. N. S. 311. Bank.)

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62. Proof of creditor holding security. The creditor may, on giving up his security, prove for his whole debt, otherwise he must state in his proof the particulars of his security, and the value at which he assesses it, and he may then prove for the deficiency. The trustee or any creditor, if dissatisfied with the value put upon it, may call upon him to realise, and the trustee will be entitled to any sum realised beyond this, but the creditor must bear any loss; or the trustee may redeem at the assessed value at any time before realisation: (Gen. Rules 99, 100, 101, and 136.)

if such property had been duly surrendered to such uses as he might appoint: (sect. 22, 1869 Act.)

VII. CRIMINAL LAW AND PROCEEDINGS BEFORE MAGISTRATES.

71. Crimes and offences-Difference.-A wrong done with a criminal intent which affects the

public at large would amount to a crime, whilst an infringement of the civil rights which belong to individuals, considered merely as individuals, would amount to a civil injury and be cognizable in the civil courts only: (Broom's Com. p. 861, 3rd edit.)

72. Punishments, penalties, and damages Difference. - Punishments are the penalties for transgressing the law made to the community at large, and not to private persons, and consist mainly of imprisonment and penal servitude. Penalties consist of fines or other pecuniary forfeit, and these are awarded for crimes, or are reserved under agreements to secure the perform ance of the contract. The difference between penalties and damages is, that a penalty exceeds the actual damage occasioned by the wrongful public or private act, whilst damages are a compensation awarded proportioned to the private injury sustained.

63. Creditors of the firm, and of separate partners. By sect. 103 of the 1869 Act, the separate estate of each partner is applied in the first place towards satisfaction of his separate creditors, and any surplus after payment of all the separate creditors in full is applied towards satisfaction of the joint debts. In the same way the joint estate-In is applied in the first place in satisfying the joint debts, and in case of any surplus after paying them in full, the share of each partner in such surplus is applied in payment of his separate debts (Sect. 100, et. seq., Gen. Rule 76.)

:

64. Settlements by bankrupt void.-If the settlement is voluntary, by 13 Eliz. c. 5, if made with a view to insolvency, or when in insolvent circumstances, it may be set aside by creditors. By 32 & 33 Vict. c. 71, s. 91, unless of the wife's property, if made by a trader, it is void if the settler becomes bankrupt within two years after the date, or if within ten years of the date, unless the bankrupt can show that he was otherwise solvent at

the time.

73. Proceedings either criminally or for damages. cases of a public nuisance causing any individual special damage, of assault, libel, also cases under Lord Campbell's Act (9 & 10 Vict. c. 93) for compensation in the case of personal injury causing death, forging trade marks (25 Vict. c. 88); infringes the provisions of 22 & 23 Vict. c. 35, s. 24. also where a vendor, or mortgagor, or his solicitor, 74. Advice in such cases.-The principle to be considered is whether the punishment of the offender for the public wrong, or the compensation of the party for the private injury be more desirable: (see Rex v. Wheatley, 2 Burr, 1125.)

75. Difference between the criminal procedure in the Anglo-Saxon times and now.-In ancient times the onus of proving himself innocent rested upon the prisoner, and for that purpose he had to undergo the trial by ordeal, or by battle; the characteristic difference between that and the present procedure is, that now a prisoner is supposed innocent until proved guilty, and the onus of proving the guilt lies upon the prosecutor: (see 4 Steph. Com. 497, et seq. 6th edit.) 76. Necessary ingredient to crime.-First, there must be a vicious will; and, secondly, an unlawful act consequent upon such vicious will. The case of an assault by a lunatic would be an instance when, if he were not conscious that he was acting contrary to law he would not be liable; but it would be otherwise if conscious that he was doing wrong: (4 Steph. Com. 111, 6th edit.)

65. Of misdemeanors. The following are some of the principal for which he is liable to imprisonment not exceeding two years, with or without hard labour:-If he does not discover to the trustee all his property, or deliver up all in his control or all his books, or conceals any part of his property to the value of 101. or any debt due to or from him, or fraudulently removes any part of his property, or allows a false debt to be proved, or false entry to be made in his books, or prevents production of them, or mutilates them within four months of petition, or attempts to account for any part of his property by fictitious losses, or within four months of bankruptcy obtains goods on credit by false representation, which are still 77. Classes of persons exempt from punishment. unpaid for; or, being a trader, pawns property-Persons of unsound mind, infants under fourwhich ho has not paid for. He is also liable to teen in certain cases, and under seven in all cases, one year's imprisonment, and with or without and married women in certain cases, are esteemed hard labour, if he obtains credit by false pretences incapable of committing, or at least excused from or by means of any other fraud, or makes any the guilt of, crimes; also crimes which are the gift or transfer of property with intent to defraud mere creations of human laws may be excused by creditors, or conceals or removes, with a like duress per minas, but such duress cannot excuse intent, any part of his property within two murder. The above are excused on the ground of months before the date of any unsatisfied judg; ment or order for payment of money obtained against him: (sect. 11, Debtors Act 1869.)

66. Bankruptcy, justices of the peace. He remains incapable of acting as a justice of the peace until he has been newly assigned by her Majesty in that behalf: (32 & 33 Vict. c. 62, s. 22.)

67. Property not belonging to bankrupt-Divisible. All goods and chattels at the commencement of the bankruptcy in the possession, power, or disposition of the bankrupt, being a trader, with the consent and permission of the true owner, of which the bankrupt is reputed owner, or has undertaken the sale or disposition as owner, but things in action other than debts due in course of trade or business are excepted: (sect. 15, 1869 Act.)

68. Presentation to ecclesiastical benefice. The bankrupt is entitled to present, as the property which vests in the trustee does not include the right of nomination to a vacant ecclesiastical benefice: (sect. 15, 1869 Act.)

69. Land burdened with onerous covenants

want of will: (4 Steph. Com. 113, 6th edit.)

78. Exemption on the ground of madness. A person may be suffering under a diseased mind, yet, unless it can be proved that he was quite unaware of the nature, character, and consequence of the act he was committing he will be criminally responsible: (1 Steph. Com. 118, 6th edit., and see Hadfield's case there cited.)

79. Insanity-Evidence.-The state of mind of the accused at the time of the commission of the offence should be investigated and inquiries should be made of the medical attendant and others as to whether the prisoner or any member of his family ever previously exhibited any symptom of insanity, also whether the prisoner suffered from any delusion that prevented his knowing at the time that he was committing a wrong, or which at any rate disguised from him the murderous nature of his act : (See Broom's Com. 886 et seq. 4th edit.)

80. Principals and accessories in felonies and misdemeanors.-A principal in the first degree is Property saleable. In such a case the trustee second degree is one who is present either actually the perpetrator of the crime; a principal in the may disclaim by writing under his hand, notwithor constructively aiding and abetting the fact to standing he has taken possession of the property, be done. An accessory before the fact is one who or exercised any act of ownership in relation is absent at the committal of the felony, yet prothereto, unless he neglects to do so within twenty- cured, counselled or commanded another to commit eight days, or such further time as the court it. An accessory after the fact is one who, knowallowed after application in writing by the party ing a felony to have been committed, receives, interested to do so, and in such case it shall be deemed to be forfeited, determined, or surrendered from the date of adjudication, but no estate or interest shall remain in the bankrupt, and any person interested may apply to the court for such disclaimed property to be delivered up to him, and any person injured by a disclaimer shall be deemed a creditor and prove as a creditor: (sects.

23 and 24, Act 1869.)

relieves, comforts, or assists, the felon. There are no accessories in misdemeanors: (4 Steph. Com. 128, et seq. 6th edit.)

81. Principal rules of evidence.-They are: that the best evidence the nature of the case will admit of must be produced, if it is possible to be had; if not, then the next best evidence that can be had shall be allowed; that hearsay evidence is not admissible that entries made by a person since deceased The when against his own interest, or made in the usual course of business, may be received; that the court must construe written documents, and that

70. Copyhold or customary property; trustee need not be admitted to copyholds, but may deal with the same in the same manner as

the jury must decide upon the facts; the law presumes in favour of the innocence of the accused; that it regards the evidence of accomplices with suspicion; that a confession is admissile, if voluntary; that dying declarations are admissible. In case of perjury two witnesses are necessary to convict: (Broom's Com., 994, 4th edit.) 82. Murder of B. by A., at the instigation of C. and of A. by C. to conceal facts-Evidence of the murder of B.-On the trial of C. for the murder of A. the evidence of B.'s murder would be admissible, as showing the motive for the prisoner's wrongful act: (Rex v. Clews, 4 C. & P. 221; Russell on Crimes, 290, 4th edit.)

81. Direct evidence and circumstantial evidence. -Direct evidence is that of eye witnesses or those who speak from their actual and personal knowledge of the existence of a fact. Thus, if a witness attest that he saw A. inflict a wound on B., this is direct evidence. Circumstantial is where the fact in dispute is to be inferred from other facts satisfactorily proved. Thus, if a witness attest that a deceased person was shot with a pistol and the wadding is found to be part of a letter addressed to the prisoner, the re idue of which is found in his pocket, the evidence is circumstantial : (1 Taylor on Evidence, 78.)

84. The cardinal rules respecting circumstantial evidence.-1. The circumstances from which the conclusion is drawn should be fully established. 2. All the facts should be consistent with the hypothesis. 3. The circumstances should be of a conclusive nature and tendency. 4. The circumstances should, to a moral certainty, actually exclude every hypothesis but the one proposed to be proved: (1 Starkie on Evidence, 571, 575, 3rd edit.

85. Proceedings in a case of felony. - The offender must first be brought before a justice of the peace, who hears the evidence against him. The depositions of the witnesses are taken down, signed by the witnesses and justice, and then read over to the prisoner, who is asked whether he wishes to say anything in answer to the charge; he is duly cautioned, and whatever he may say is taken down in writing, and may be used against him. He may also call witnesses, and if he does their evidence is taken down, signed, and transmitted in the same way as that of the Crown wit

nesses. After he is committed for trial the indictment is prepared, and if a true bill is found by the grand jury the trial takes place, and if In the evidence is sufficient he is convicted. general there is no appeal in criminal cases as to facts. Error in procedure may be taken advantage of by motion to quash the indictment, error in law by writ of error, or a case may be stated for the opinion of the Court for Crown Cases Reserved. A new trial may be obtained where the indictment is preferred in the Queen's Bench, if the verdict is against the weight of evidence: (Arch. Crim. Pl. 178, et seq. 17th edit.)

CORRESPONDENCE OF THE

PROFESSION.

NOTE.-This department of the LAW TIMES being open to free discussion on all professional topics, the Editor is not responsible for any opinions or statements contained in it.

OUR INVADERS.-The sensible and temperate letter of "A Solicitor" in the LAW TIMES of Oct 21, is refreshing after the nonsense which I had the trouble of answering in my last letter; and certainly, on the broad basis of being a means of redressing all the Profession's grievances, his Law Guilds Scheme is much more palatable than when I considered it as simply a means for exterminating a few poachers on our preserves. No one would welcome more heartily than myself the restoration of the departed power of the Profession, as a profession, or, if it be only dormant, its awakening; and though I have not, I confess, much faith in the present scheme, yet I should be most sorry to throw cold water on any scheme which has so bold and commendable an object. My reasons for fearing it will not succeed are, that much sundered by political opinions and other the different members of the Profession are so causes, and so much separately welded into other combinations and other societies for law guilds to have any chance of drawing each out of his own groove and welding them into a fresh mass, and of thus creating a new body out of the severed limbs of others. It is much the virtues of the Profession as their apathy, or any other cause, that will prevent the lawyers, as a body, forming into any kind of trades union or other political combination. Most of them are too high-minded to sacrifice their separate opinions and private sympathies, to give up their separate political consciences and to throw their united weight on Parliament in order to secure some selfish end; yet unless they could be persuaded to do this, unless they would consent to sacrifice all private associations to the good of the body, the "law guilds" would be simply centres of contention, masses of discord,

and battle-grounds for political discussions, and professional rivalry. The trades unions and combinations which are so powerful in the country, are composed of men who prefer their own selfish purposes to all other considerations, who would unhesitatingly shipwreck the country, or throw a curse on humanity, if by so doing they could forward their own particular dogmas; and their strength lies in their unscrupulousness. Solicitors will never stoop to a combination such as one of these, and an attempt at any other, an attempt to make men hold together over certain professional topics, but not on general political opinions, to fight in the same campaign, yet not bearing on the struggle, with an ardour that will sink all other considerations, to combine for political purposes yet not to go to the lengths of supporting any ministry or any party however bad, that will promise aid to the guild's own particular views, will I fear, end in a lukewarm struggle, and a hopeless failure, it will be beaten in the race for existence by its more unscrupulous rivals, and end in disappointment, irritation, and defeat. Moreover, the lawyers are not sufficiently numerous to have much power from mere weight of numbers, unless they hold very closely together, and they no longer possess that monopoly of learning, and power of position that anciently belonged to the ecclesiastical lawyers. Such are my fears for "A Solicitor's" scheme, but most sincerely do I hope they may be unfounded, and should his exertions call into existence a power such as he has indicated, without the evils I have foreshadowed, he may be certain that no such paltry question as whether it ought or ought not to use its influence to suppress "Our Invaders" will prevent its receiving my most hearty, though humble support. F. W.

[We cannot insert further correspondence on this subject.-ED.]

EXECUTION CREDITORS v. TRUSTEE.-Far] be it from me to object to the utmost freedom of discussion on any comments or arguments of mine a writer on a subject of controversy in a public print expects and invites criticism of his statements and reasoning, but on the other hand it is necessary for him to disclaim an incorrect representation of his argument by an unsuccessful attempt to exhibit it in a short form, and to guard against responsibility for opinions he has not expressed, and does not entertain. That Mr. Salaman's misstatement of my argument was unintentional I never doubted, and in his last letter it is correctly stated. Of its soundness I must leave your readers to be the judges; but as some confirmation of its correctness let me refer to a remark of the Lord Chancellor in the portion of the judgment in Ex parte Rocke, given at p. 421 of last Saturday's LAW TIMES, who uses these words: "Whether it was called a security or not the right of the creditor to compel the sheriff to proceed to a sale could not be disputed; in fact, sect. 16 seemed to treat this right as a security." Some earlier remarks on the subject of sect. 95 show that the opinions of Lord Hatherley and Mr. Salaman are entirely opposed on that subject. To show that your correspondent's arguments are not unimpeachable, let me extract a few words out of his last letter. After setting out the proposition in my former letter that an execution creditor becomes a secured creditor, for he acquires the same right as a mortgagee regarded from an equitable point of view, though differing in the mode of creation and the manner of enforcement, he comments on it in these words: "No two things appear to my mind more dissimilar in every respect than a mortgage even of personal chattels and an execution-one deriving its origin from an act of the debtor, and the other from the act of the law." Because, then, a mortgage and an execution differ in their origin, they differ in every respect. If two things differ at all, they differ altogether, is the argument used by a disciple of Whately. A mortgage and an execution, though they undoubtedly differ in their origin, yet as certainly have the same object, to get payment of a sum of money due, although the object is pursued by different methods. I find also the following remarkable proposition: "The rights of an execution creditor are defined... by sections of the Act." No proof is offered of this remarkable assertion, and, in fact, the Act contains no trace of any such a definition, nor indeed could there be any occasion for it. Such rights exist independent of any bankruptcy system, and a definition of them in a Bankruptcy Act would be superfluous. I doubt whether the term execution creditor" is ever used in the Act. H. HODGSON BREMNER.

66

I have read with much interest the letters of your correspondents, Mr. Hodgson Bremner and Mr. Salaman, on this subject, and cannot but think that the law as at present settled is correctly stated by Mr. Bremner. It in effect stands thus: "That an execution creditor who seizes his debtor's goods before an act of bankruptcy can proceed to a sale thereof, notwithstanding that prior to the sale the debtor is adjudged bankrupt,

or his estate has gone into liquidation. If the debt be under 501. the execution-creditor has the right to sell sufficient to cover his debt and costs and to retain the same, but, if the debt be over 50%. he must, when bankruptcy or liquidation intervenes, hold the proceeds for the trustee of the creditors, and hand the same to him less the expenses of sale." The power of the court to restrain the proceedings of the execution creditor ought not according to the view of the Lord Chancellor expressed in Ex parte Rocke, re Hall (25 L. T. Rep. N. S. 285), to be exercised to the deprivation of the common law right of the execution creditor, but only, where consistently with those rights, the general body of creditors would be benefited. For instance, where half a dozen executions had been levied, and a sale under each was announced, or where the court was satisfied that the property was being sacrificed by a hurried sale, but in those cases the execution creditors would be entitled to their expenses of possession, &c. The court may restrain execution creditors whose debts are under 50l., but cannot dispossess them, and hence, when restrained, the cost of possession for several weeks is incurred with the sole object of giving the trustee of the creditors the right to sell the property-subject, of course, to payment of the execution creditor's debts and expenses. In where the execution creditor seizes for a

cases

debt over 501. prior to an act of bankruptcy, but has not sold before adjudication or a petition which results in liquidation, there can no harm accrue by restraining the sale, for if it took place, the proceeds, by virtue of sect. 87,. must be handed to the trustee, less the expenses. The only consideration, I venture to think, which the court should regard in restraining an execution creditor whose debt is over 50l., is that it should reserve for him the expenses which he has incurred by his possession up to the day he is restrained. I will not touch upon the reasoning by which the learned judges have arrived at the conclusion that the common law rights of execution creditors are unaffected by the present Bankruptcy Act, but must express my concurrence with the views of Mr. Salaman, that, if the law has been properly expounded, the Act of Parliament falls short in carrying out the intentions of the Legislature. By the cause list for Michaelmas Term I find the case of Slater v. Pinder is to be further discussed in the Excheuquer Chamber; but seeing that it has been followed by the full Court of Appeal there is little prospect of its being disturbed. HY. BOLLAND.

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3. ARTICLED CLERKS ATTESTING WITNESSES. Where two clerks (one articled and the other not) attest the execution of a deed or other document, is it proper for the one who is articled to put at the end of his name "clerk with Messrs. A.," &c., and for the other to put "clerk to Messrs. A.," &c.? The question really is, ought there to be any such distinction made between two such clerks, and if so, why? P. P.

4. SUCCESSION DUTY. Can any of your readers inform me whether on payment of succession duty relating to cottages let to weekly tenants any deductions part of the year unoccupied ? are allowed for probable loss of rent from their being a

INQUIRER.

5. COVENANT-TRUSTEE-A., the owner of building land some years ago, sold part to B. fronting an intended new street, A. retained the land adjoining the his purchase. In B.'s conveyance A. covenants for street opposite B.'s purchase. B. has built houses on himself his heirs, executors, administrators, and assigns with B., his heirs and assigns to bear half the expense of making the street. The street has not yet been made. A.'s trustees have now sold to C. the land opposite, not providing that C. should be liable to the covenant. Is A.'s covenant with B. such a one, the liability of which will run with the land in C.'s hands? And whether so or not, is not C. entitled to an indemnity from A.'s trustees? Will some of your readers give SOLICITOR. their opinion with references.

6. CASE.-Can anyone inform me whether the case of Clayv. Yates (1 Hurl. & Nor. 73), has been overruled, or whether there is any subsequent case that bears upon the points therein decided. Reference to cases would oblige. H. R. B.

7. TALLYMAN'S BILL.-Can any of your readers inform me whether a poor man would have any defence to an action in the County Court brought to recover the balance of a tallyman's bill for goods supplied to the wife of the former without her husband's knowledge? None of the articles supplied were ever seen by him, but found their way to the pawnbroker, and immedi ately the matter came to his notice he called upon the I was under tallyman and repudiated the transaction. the impression there had been an Act passed some time ago to protect men from tallyshops, unless they signed for the goods; but as I cannot find it among the statutes I must have been in error. References to cases (if any) will oblige. J. C.

8. DEVISE-IMPLIED OR CONSTRUCTIVE TRUST. - A

testator devises and bequeaths all his real and personal estate to his wife and two sons, upon trust (inter alia), out of a competent part thereof to pay his father a weekly allowance, which he thereby gives and bequeaths to him, for and during the term of his natural life, with a right to live in the dwelling house in which he now resides, free and discharged from the payment of all and any rent for the same.' After testator's death his father, wishing to reside with other relatives, chooses not to live in the said dwellinghouse, and it is now let to other parties. Query, whether he is, under these circumstances, entitled to

the rents thereof.

G. J. C.

9. LARCENY-SUBJECT OF.-A. B. was charged with stealing acorns, under Criminal Justice Act, and convicted. The evidence went to show that the prisoner was found in a wood picking up acorns and putting them in a bag, and it was further proved that the acorns were valuable as food for deer and were regularly collected for that purpose. conviction was wrong, on the ground that acorns are not the subject of larceny and it is said they form part of the inheritance and would descend to the heir and also that they are not the products of cultivation. The acorns, of course, were previously severed, and it is submitted that the foregoing reasoning is erroneous, and that the conviction was right. The opinion of some of your able correspondents will oblige.

It has since been contended that the

J. W. M.

10. CONVEYANCING.-Will some of your readers give me their opinion on the following case? S., in 1869, made an assignment of all his estate and effects to A. B. and C. D., as trustees, for the benefit of his creditors. The deed was duly registered in conformity with the Bankruptcy Act 1868, and both trustees acted in the winding-up of the debtor's estate, which, however, of freehold property which had been mortgaged by him failed to pay a dividend. S. was at the time possessed to a loan society to its full value, and the society called upon the trustees to pay off the mortgage. This the trustees declined to do, and one of them (C. D.) then offered to purchase the mortgaged property in his private capacity, and his offer being accepted he took a conveyance from the society under their power of sale and paid the purchase money out of his own pocket. This sale was made before S.'s estate was finally wound-up, and the fact of C. D. having made the purchase was communicated to all the creditors by a statement to that effect at the foot of the balance sheet of the winding-up of the estate shortly afterwards sent them by the trustees. C. D. has recently contracted to sell a small part of the property thus bought by him to F., but F.'s solicitor declines to complete the purchase upon the ground that C. D. having been a trustee for the debtor and his creditors could not purchase the property in a private capacity. Can C. D. compel F. to complete, or can he obtain a confirmation of his conveyance from any and what persons?

A CONVEYANCING CLERK.

Answers.

(Q. 117.) ACTION ON STOPPED BANK NOTE.-From Miller v. Race (1 Burr. 452), Grant v. Vaughan (3 Burr. 1516), and Peacock v. Rhodes (Dough. 633, I find that prima facie the bearer of a bank note is entitled to receive the money merely on the score of his possession, that no other person is entitled to the note unless he is also entitled to the money; and whoever impeaches his title must take the burden of proof upon himself. But the principle of all the above cases is that the party in possession of the note is a bona fide holder for a valuable consideration. From the circumstances stated in the query of "An Old Subscriber," the note appears to have been received by the present holder upon an illegal consideration, and having given no valuable consideration for the note, before notice that payment thereof was stopped, he has no greater interest in the money payable thereon than the actual thief. Consequently no action can be sustained. I would refer your correspondent to Solomon v. The Bank of England, (13 J. S. C. East, 135).

LAW SOCIETIES.

LEEDS LAW STUDENTS' SOCIETY. THE first meeting of the above-named society for the winter session was held on Monday evening, the 23rd ult, in the library of the Philosophical Hall, Leeds. The subject for discussion was, "As to the expediency of abolishing the law of primogeniture." Before discussing the subject, the president, Vincent T. Thompson, Barrister-atLaw, delivered an inaugural address, and pointed out the advantages of such a society, and the benefit to be derived therefrom. Mr. W. Williams and Mr. E. Weston were appointed speakers for the affirmative, and Mr. J. M. Barwick, jun., B.A., and Mr. A. E. Flood for the negative. An interesting discussion followed, in which Mr. J. R. Ford, B.A., solicitor, Mr. Addyman, B.A., Mr. Hewson, Mr. Dixon, and other members took part. The debate having closed, the vote was taken, when the question was decided in the negative by a majority of one vote. The attendance was very good.

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