courts, at least such is the direction in which the legal mind of England is moving, Scotland, though adhering to her own path, has found great benefit from the careful development of principles of equity so near its own doors. The decisions of the Chancery Courts in Eugland are daily quoted with more confidence and authority in Scotch courts; and, along with the appellate jurisdiction of the House of Lords, exercise a wholesome and broadening influence on the equity of Scotland.

From the institution of the Court of Session till the year 1808, nearly three hundred years, the fifteen judges formed one court, and all sat together and gave judgment according to the opinion of the majority. This must have caused a great waste of judicial strength, and must have tended greatly to protract the discussion and decision of suits. At present it would be intolerable. The change introduced in 1808 brought in the arrangement under which the court has ever since acted. The court is divided thus: There are two chambers consisting of four judges each, and the remaining seven (now reduced to five) sit separately, each composing a court of his own. The five separate judges are called "Lords Ordinary," and their courts are collectively styled the "Outer House." Before them cases are brought, pleadings prepared, discussions heard, and judgment in the first place given. An appeal lies from a Lord Ordinary's judgment to one or other of the chambers or "divisions" of the " Inner House." These divisions are co-ordinate, and equal in power and jurisdiction; no appeal lies from one to the other, but from each there is an appeal to the House of Lords. If the four judges of either division are equally divided in opinion (which is not very frequent), an additional judge or judges, or in cases of great importance all the other judges, are called in, and the case is discussed, either at a second oral hearing or by written arguments.

In the Outer House the case is prepared for judgment, in the first place, by bringing the parties together, and requiring them to state their grounds of action and defence, and to prove by documentary or parol evidence the facts on which they rely; and, secondly, by the discussion before the Lord Ordinary, and his judgment on the merits of the case. To the formal judgment or decree pronounced by the Lord Ordinary, he is required to append a "note" explanatory of the grounds of his judgment. The note, which is often a lengthy exposition of the law and facts of the case, enables the unsuccessful party to judge of the probable success of an appeal to the Inner House, and it matures and concentrates the case for what is generally a more searching discussion before four judges. Only about two-fifths of the Lord Ordinary's judgments on the merits are appealed to the Inner House. The delay of this system is no doubt a drawback, for many cases are not so difficult or complex as to require two hearings and the opinions of five judges. On the other hand, in more important and intricate cases, it is of great advantage to have an appeal within the court itself, so as to guard against the risk of immature judgments or miscarriages, without the greater expense and delay of an appeal to the House of Lords. The previous discussion in the Outer House also tends greatly to shorten the debate in the inner. This question has been much agitated of late, and many opinions were given by legal practitioners examined before the Scotch Law Courts' Commission, at present sitting. In the following sentences, a very large majority of the commissioners, some of whom are English lawyers, express a favourable opinion of the system: "Having fully considered the whole of this important matter we have come to the conclusion that the system of having causes submitted in the first instance to the scrutiny and decision of a single judge, such as a Lord Ordinary, whose judgment may be submitted to the review of a plurality of judges, such as one of the divisions, is good in principle. It is calculated to afford every reasonable facility for obtaining a careful, cheap, and expeditious decision; and it provides for review by a court of sufficient strength, and having sufficient advantages, to give weight to its judgments. We think it decidedly preferable to any other system that has been suggested, and therefore recommend that it be continued." In England also, there is an intermediate review prior to the final appeal to the House of Lords. From the courts of common law (Queen's Bench, Exchequer, and Common Pleas), consisting of four or five judges each, the case may be taken to the Court of Exchequer Chamber, composed sometimes of a larger, but often of the same number of judges temporarily withdrawn from the other two courts. The larger number of this tribunal may give it greater weight, but the constant changes in its members must detract from the feeling of responsibility of its judges, as well as from the weight and consistency of its judgments. In England we believe it is not reckoned a satisfactory court. In the Courts of Chancery there is also an intermediate appeal from the Vice-Chancellors and Master of the Rolls, who sit as single judges, to the Lords Justices-Court of Appeal in Chancery, a court composed of two judges-a somewhat anomalous tribunal of review. It may be interesting to state shortly the system under which the facts and law of a case are brought before the Scotch courts. Most contested cases originating in the Court of Session begin with a summons prepared on behalf the pursuer (plaintiff). In its style it is an antique document, running in the name of the sovereign, and setting forth the names of the pursuer and defender, and the particular demand made upon the latter; and concluding with an order (in the sovereign's name) to messengers-at-arms (bailiffs), to cite the defender to appear and answer the demand under pain of being held as confessed and decree going by default. The demand, technically called the conclusion of the summnons, may in form be infinitely various e.g., to pay an account; to fulfil an obligation under a deed; to pay a sum of money as damages; to "count and reckon," and pay over the balance of the defender's intromissions with funds in which the pursuer has an interest; to reduce (set aside) a deed or decree improperly or fraudulently obtained. Or, it may be couched in that most convenient and direct of all forms, which is the envy of English lawyers, a conclusion of "declarator "-to have some right declared by the court to subsist in favour of the pursuer: e.g., to have a marriage declared; to have the legitimacy or illegitimacy of some person declared; to have the pursuer's right to lands, or to a servitude or burden over another's lands declared; to have his rights declared under certain deeds which may require to be construed and interpreted by the court. In all such cases the terms of the declarator sought must be distinctly set forth, the subject of it must truly be in dispute, and the defenders must be properly contradictors to the right sought to be established in the pursuer; for the decree can have no effect in a question afterwards between the pursuer and some third party claiming an interest, and not called or represented in the declarator. The summons, therefore, which may be either a short and simple demand, or consist of many and long conclusions, is the measure of the pursuer's demand. It may be amended, so as to enable the court to do justice between the parties; but it cannot be so altered as to submit to the court a larger demand than that at first made.

Appended to the "summons" is a "condescendence:" that is, a statement of the facts on which the pursuer founds his demand. The averments in the condescendence should be precise and accurate, without being

prolix, or a mere rehearsal of anticipated evidence. They should be such as to disclose a relevant case, if the pursuer's is such. At the end of the summons and condescendence the pursuer adds his "pleas in law;" i. e., a short statement of the grounds in law, as applicable to the facts of the case on which he founds his demand. They are intended, as it were, to bring to the surface the doctrine or doctrines of law which the pursuer invokes. He is not, however, foreclosed from pleading to the court what has not been embodied in the pleas in law; he may have new pleas added, and the court may order such; but it is very useful, and tends to accuracy of pleading, to require the parties (for the defender has also to state his pleas in law) to disclose to each other and to the court the special propositions in law which they maintain and on which they rest their case.

This composite document-summons, condescendence, and pleas in law (commonly styled a summons)-duly signed by a solicitor though frequently prepared by counsel, is served by a messenger-at-arms upon the defender. If he intends to oppose he is required within twenty days from the citation if in Scotland, and twenty-seven if out of Scotland, to lodge "defences," consisting of two or three parts, as the case may be: first, answers, arti culate admissions, denials, or explanations of the various articles of the pursuer's condescendence; second, if he has a substantially different case to present by way of defence, a statement of facts similar to the condescendence; and third, pleas in law. This document, prepared and signed by counsel, is lodged in court: and if the pursuer desires, and can show that a revisal of his condescendence, in view of the defences now lodged would be desirable, the Lord Ordinary may allow each party to revise; otherwise, and that is the usual case, the summons and defences are held to embody the case; and, in technical language, the Lord Ordinary "closes the record."

If the relevancy of the action is disputed, there may be a discussion at once, corresponding to a discussion on demurrer of the English courts; and a judment pronounced by the Lord Ordinary, and on appeal by the Inner House. The court, however, may, without disposing of the question of relevancy, allow a proof of the facts "before answer or judgment by the court; that is, the court may reserve the question of relevancy to be discussed after the facts have been ascertained. This is done in cases where the facts are numerous, intricate, or delicate, and it would be perilous to decide hypothetically on the facts as averred by the parties; neither the condescendence nor the statement of facts being made on oath. If no evidence has to be taken, the facts averred being all admitted by the parties, and the question of law only remaining, the parties renounce probation; and the case is debated on the closed record, and any documents referred to in it, and admitted by the parties. The Lord Ordinary's judg ment is given, and may be appealed to the Inner House.

If evidence is to be taken, it is arranged or decided by the Lord Ordinary whether it should be by jury trial, by proof before the Lord Ordinary, or by commission. Cases of damages, such as slander, personal injuries, cases' founded on fraud, &c. naturally go to a jury; for which purpose the pursuer must lodge an issue or issues, containing shortly the question or questions of fact which he proposes to submit to the jury, and which have now in most classes of cases assumed a stereotyped form. Of jury trial in civil cases in Scotland we shall afterwards have occasion to speak.

If the case is not suited for a jury-e.g., if it contains much documentary evidence, or refers to marriage, divorce, or legitimacy-or in any case if the parties desire it (which they now generally do), the Lord Ordinary may have the evidence taken before himself without a jury. A short-hand writer sworn for the purpose takes down the evidence, and afterwards writes it out for the Judge and parties. A hearing takes place immediately after the evidence is closed, by one counsel on each side (there being no opening speeches), and judgment is pronounced; which is appealable, like other judgments, to the Inner House, before whom the evidence is laid in print. (To be continued).

LAW LIBRARY.

The Doctrine and Practice of Equity: A concise Outline of the Proceedings at the High Court of Chancery. By GEO. GOLDSMITH, Barrister-at-Law. Sixth Edition. London: Butterworths. A WELL known law students' book, the best, because the most thoroughly complete yet simplified instructor in the principles and prac tice of equity that has ever been provided for him; and that its value has been recognised by those who have made use of it is proved by this, that their commendations have carried it to a sixth edition. The principles of equity are as they were; but the practice has so changed since the publication of the first edition, that every part of this division of the work has required to be re-written almost as often as a new edition was demanded. Of course, the size of the work has grown also, and from being, as we remember it, a little book we carried in a pocket, it has become a portly volume; and this fairly represents its increased merits. Now that every student aspiring to the Bar is to be examined before admission, good books for instruction in the law will be more than ever in request.

A Practical Treatise on the New Law of Compensation to Tenants in Ireland. By ISAAC BUTT, Q.C. Dublin.

AMID his multiplied occupations as an agitator and his engage ments as an advocate, Mr. BUTT has contrived to find time for the production of a voluminous treatise on the New Irish Land Law. But it bears no marks of haste or carelessness as might have been expected. It is rather distinguished for painstaking accuracy, and the matter is so well arranged and treated, in language so simple and clear, that it will be a manual, not for lawyers only, but for landowners and tenants also. The index is very copious.

We have received The Lawyer's Companion and Diary for 1872 (Stevens and Son). It is edited by Mr. JOHN THOMPSON, Barristerat-Law, and contains the usual collection of useful materials required for reference in the office, together with a complete Law List, Diary, and Memorandum Book. This is the 26th year of its publication, and it has grown in favour with the Profession with every successive issue.

NOTES OF THE WEEK.

COURT OF APPEAL IN CHANCERY.
Dec. 5, 6, and 22.

(Before the LORDS JUSTICES.)
HEASMAN V. PEARSE.

Will-Trust for sale and distribution after estate tail-Remoteness-Rule against perpotuilies. THIS was an appeal from a decision of Malins, V.C. By his will, dated the 3rd March 1819, William Gratwicke devised the residue of his real estate to his grandson for his life with remainder to his children in tail, and in default of such issue to trustees in trust to sell, and as to onethird part of the moneys to arise from the sale upon trust, to pay and divide the same unto and amongst all and every the children of his sister Amy Heasman, deceased, except his nephew, J. G. Heasman, who should be then living, and the issue of such of them as should be then dead leaving issue, and the issue of his said nephew J. G. Heasman, except his son J. W. Heasman, share and share alike, but so as the issue of such of the children of his said sister Amy Heasman as should be then dead, should have no greater share than their, his, or her deceased parents would have had if living, and so as the said issue of his said nephew, J. G. Heasman, should have no greater share than the issue of any other of the children of his said sister Amy Heasman, deceased, was directed to have, in case of the decease of their, his, or her parent. And the will contained a proviso, by which, to prevent all doubts which might otherwise possibly arise, the testator declared his will to be that if it should happen that his real estate should ever be sold under the limitations aforesaid, and the money thereby arising should ever become payable to the issue of Amy Heasman, or of J. G. Heasman, and any one or more of such issue should be then dead, having left lawful issue, then the issue of such issue as should be so dead, should have and receive the part or share to which their, his, or her parent would have been entitled if living. Malins, the proceeds of sale, so far as it was in favour V.C. held, amongst other things, that the gift of of the issue of unborn issue was void, as offending against the rule of perpetuities, his Honour considering that the will must be construed as if the divesting proviso had been omitted from it. The grandchildren, who were thus excluded from sharing, appealed against this

decision.

Cole, Q.C. and Miller for the appellants.

Shapter, Q.C. and Stallard, and Kay, Q.C. and Shebbeare, for the respondents.

Lord Justice JAMES, who delivered the written judgment of the court on the 22nd Dec., said that they must differ from the Vice-Chancellor and admit the divesting proviso, so that the grandchildren must be admitted to share in the distribution of the proceeds of sale. They were also of opinion that all the issue of Mary Heasman, who took under the will, took as joint tenants, and

not as tenants in common.

Solicitors. E. Carleton Holmes and Son; Wood, Street, and Hayter.

ROLLS COURT. Friday, Dec. 22.

LEGISLATION AND JURISPRUDENCE,

LAW REFORM. MR. H. T. BROWN, late senior judge in the Island of Trinidad, writes:-As the subject of Law Reform engrosses so much public attention, I venture to make a few remarks founded on practical experience. Of all the plans of legal reform which have been put forth, none appears to me more deserving of attention than that of Mr. Vernon Harcourt.

Many years ago I commenced practice as a barrister in one of our colonial courts. There were three judges and no jury, in all matters criminal as well as civil. The system of laws was founded on a code, based, like most foreign codes, on the Roman or civil law. But where both code and civil law were silent (which often happened); recourse was had to English common law and equity cases. All matters of law and fact were decided by the judges. There was a perfect fusion of law and equity, and the only rules with respect to pleadings were that they should be plain and intelligible, and not exceed two pleadings on each side. The pleadings, therefore, very much resembled the libel, answer, duplica and replica, of the Roman law; and as by the code in force in the colony actions or suits could be brought for a wrong done, doing, or apprehended, every species of relief could be obtained in the same court. As soon as the pleadings were concluded, the cause was set down for hearing. Witnesses were examined viva voce, and not upon interrogatories, and, unless any impediment arose from some error or slip in the pleadings, judgment was given, either instanter or after due deliberation. from the state of the pleadings, judgment could not be given, leave to amend was granted, and the cause reheard. Under this system delay seldom or ever occurred, costs of litigation were moderate, and, what is of more consequence, suitors, both plaintiffs and defendants, were satisfied.

If,

Unfortunately for the colony, this legal system was changed for the common law and equity prothat trial by jury was an inestimable benefit, and ceedings of England. Every one seemed to think that great good would result from the change of system. But alas! suitors very soon found that matters did not go on so smoothly as before. If the decision of the jury had been final, not only upon questions of fact, but also upon the assessment of damages, they could have understood the change which had been made; but when they found that the judges had to decide whether the

jury had decided rightly, they began to think it would have been much better, cheaper, and more without troubling the jury; while the jurors expeditious if the judges had decided the matter themselves, after the novelty of the thing began to wear off, came to the conclusion that they would have been much better employed attending to their own affairs than in performing the part of amateur judges.

In former times when monarchs were despotic and judges subservient, there can be no doubt that trial by jury was necessary for the security of the subject; but now that the power of the Sovereign has been so much curtailed, and the independence of the judges so well secured, it may be worthy of consideration, whether trial by jury (at least in civil matters) is not maintained at too great a cost and denial of justice to suitors.

the mistakes of the jury, there are also the mistakes of the judge to be rectified.

But even supposing the unfortunate suitor has got through this labyrinth of legal difficulties, another pitfall awaits him. The defendant may have pleaded a plea which the plaintiff has demurred to. The cause being thus split into two, one part goes before the judges, while the other goes before the jury; and if the judges should decide against the plaintiff, notwithstanding the jury decide in his favour, he finds himself precisely in the same situation he was in before he entered the action, and only knows that something has gone wrong in the pleadings, and that he can only recover by entering a new action. The case of Willoughby v. Willoughby (6 Q. B. Rep. 722), is an illustration. In that case the defendant in an action pleaded several plea in bar; to one of which the plaintiff demurred, on had judgment on the demurrer, the cout holding the others issues of fact were taken. Defendant the declaration bad. The issues in fact were tried and found for the plaintiff.

not arise. New trials are seldom allowed, and then In criminal procedure the same difficulties do only in extreme cases, while there is but one final Court of Appeal for criminal matters. Juries are not so often wrong in criminal matters as in civil. It is only when peculiar circumstances arise that their verdicts give dissatisfaction. In Kelly's murder of police-constable Talbot) the law itself case (the man who was tried in Ireland for the was as much to blame as the jury. In indictments for murder, if provocation be proved, the jury may acquit the prisoner of murder, and find him guilty of manslaughter, although the indictment contains a positive charge of murder and of no other crime; and yet if the clearest evidence be given that the prisoner wounded the deceased, but a doubt arises as to whether the wound was the cause of the death, the jury cannot find the prisoner guilty of cutting and wounding with but must acquit him altogether, and let him go intent to kill, or to do some grievous bodily harm,

free.

tribunal appears to be far preferable to one comI have mentioned three judges, because such a div ded, no judgment is given, so that the plaintiff posed of four. If I understand the matter rightly, where there are four judges, and they are equally and defendant (much to their disgust, no doubt) find thems lves precisely in the same situation they were in previous to the entry of the action, with the additional mortification of having to pay costs. Where there are three judges, the plaintiff or defendant, as the case may be, has two to one on his side, so that the costs incured are not

thrown away, and judgment is given, and the dis

pute is at an end unless carried to the Court of Appeal.

great measure to make law expensive. If Mr. The system of centralization also tends in a Vernon Harcourt's plan were adopted, and the Courts of Law and Equity, instead of all sitting in one place, were distributed over the country, there would not be occasion for so many counsel to be employed in each case as is now the practice, neither would there be so frequently the double Barristers would confine themselves more excluemployment of country attorneys and town agents. sively than they do now to one particular court, so in the event of the absence of any particular that there would be no occasion to make provision counsel at the precise moment when the cause is

called on.

I do not wish it to be inferred from what I have

THIS was an adjourned summons, on the part of the defendant company, requiring the plaintiff company to give security for costs. The defendant company, having a mortgage upon all the property of the plaintiff company at Moscow, filed their bill for a foreclosure, and then this suit was instituted, that it might be declared that the mortgage was not binding on the plaintiff company, the powers of borrowing not having been properly exercised.

Charles Hall (Horace Davey with him), for the defendants, stated that the only property of which the plaintiff company was possessed, was that at Moscow in mortgage to the defendants.

Fry, Q.C. and Montague Cookson for the plaintiffs, contended that this was a cross bill which was necessary in order that the City of Moscow Gas Company might make a perfect defence in the suit for foreclosure, and that although nominally the plaintiffs they are substantially

defendants.

Lord ROMILLY was of opinion that this was not a cross bill, and held that the plaintiff company must give security for costs.

Solicitors: C. Clements, Harrison, Beal, and

Harrison.

numerous commentators, and these commentators do not always agree in opinion upon the points Where decisions are given, the arthey discuss. guments of counsel help much in the understanding of them, for the report generally contains the case on both sides; but with commentators you have only the arguments and reasons of one side. I do not think any code can be made so perfect as decisions. As was said by an eminent judge many "In general law all cases cannot be years ago, foreseen, and, if foreseen, cannot be adequately provided for."

to render unnecessary both commentators and

THE NEW PEDLARS' ACT.

ON the 1st Jan. next, "The Pedlars' Act 1871," takes the place of the Act passed in the previous year, and an abstract of some of its provisions may be of use. No person is to be allowed to act as a pedlar without a certificate obtained from the chief officer of police of the district in which the person applying has resided for one month previous to the application; and anyone acting as a pedlar without a certificate, or in a district in which he is not authorised, is liable for a first offence to a penalty not exceeding 10s., and for any subsequent offence to a penalty not exceeding 1. The police officer must be satisfied that the applicant is above 17 years of age, of good character, and intends in good faith to carry on the trade of a pedlar. A fee of 5s, is now to be

paid for the certificate, which remains in force for one year from the date of the issue thereof, and no longer, and which has the same effect as a hawker's licence for the purposes of "The Markets and Fairs Clauses Act 1847," and any Act incorporating the same. Any pedlar who, having obtained a certificate, desires to act in some other police district, may have his certificate endorsed by the police officer of the district in which he 6d. A register of certificates is to be kept in each wishes to act, on payment of a fee not exceeding district, and forms of application are to be kept at every police office in every district, to be given gratis to applicants. No pedlar is allowed to lend, transfer, or assign his certificate to another person, under a penalty not exceeding 20s., the person who borrows it being liable to a like penalty. Any person making false representations in order to obtain a certificate, or who forges or aids in forging a certificate, or travels with a forged certificate, will be liable to a penalty not exceeding 21. for the first offence; and for any subsequent offence, either instead of or in addition to such penalty, to be imprisoned for any term not exceeding six months, with or without hard labour. Convictions are to be endorsed on the certificate of the offender, and may be used as evidence against him; and a pedlar who is convicted of any offence may be deprived of his certificate. For begging, the Act directs that he shall be deprived of his certificate. A pedlar may also be summoned before any court of summary jurisdiction, and if he fails to appear, or to satisfy the court that he is in good faith carrying on the business of a pedlar, he shall be deprived of his certificate. A pedlar is bound, on demand, to show his certificate to a magistrate, a police officer or constable, any person to whom he offers his goods for sale, or any person in whose private premises he may be found, under a penalty not exceeding 5s. A pedlar refusing to show his certificate, or attempting to prevent the inspection of his pack, may be apprehended and conveyed before a magistrate. A police officer or constable may at any time open and inspect a pedlar's pack, anyone refusing being liable to a penalty not exceeding 20s. The term "pedlar means any hawker, pedlar, petty chapman, tinker, caster of metals, mender of chairs, or other person who, without any horse or other beast bearing or drawing burden, travels and trades on foot from town to town or to other men's houses, to sell goods, or procure orders for goods immediately to be delivered, or selling or offering for sale his skill in handicraft. Commercial travellers, sellers of vegetables, fish, fruit, or victuals, and sellers of goods in markets or fairs, do not require a certificate.

ESTATE AND INVESTMENT JOURNAL.

STOCK AND SHARE MARKETS. The following are the fluctuations of the week.

ENGLISH FUNDS. Fri. Sat. Mon, Tues Wed.[Thu

239 924 924 924 924

per annum.

National Bank of Scotland.-Dividend of 13 per cent., together with a bonus of 3 per cent., for the present year.

of 4 per cent., and an extra dividend of 30s. per Provincial of Ireland.-A half-year's dividend 1007. share, and of 12s. per 10l. share.

London and River Plate.-The report announces the payment of a dividend of 5 per cent. for the half-year ended September last, making with 5 paid in June, a distribution of 10 per cent. for the year. MISCELLANEOUS COMPANIES.

interim dividend, at the rate of 6 per cent. per British Indian Extension Telegraph.-A second

annum.

Ceylon Company.-An interim dividend at the rate of 6 per cent per annum declared. Ebbw Vale Steel, Iron, and Coal.-Interim dividend, 10s. per share.

National Steamship.—Dividends at the rate of 10 per cent. per annum.

dend of 6d. in the pound, making 10s. paid to the Pile, Spence, and Co. (Limited.)-A final divicreditors, is announced.

African Steamship.-A half-year's dividend of 8s. 6d. per share declared.

rate of 64 per cent. per annum. Bombay Gas.-Interim dividend declared at the Conservative Land Society.-Dividend declared for the year 5 per cent.

Crystal Palace.-A dividend of 1 per cent. declared. MINING COMPANIES.

Great Wheal Vor.-Quarter's dividend, 2s. 6d. per share.

ASSURANCE COMPANIES.

County Life Assurance.-Messrs. Cooper Brothers announce a dividend of 15s. in the pound to the

creditors.

SOLICITORS' JOURNAL.

NOTES OF NEW DECISIONS. SETTLED ACCOUNT-BILL FOR ACCOUNTCOMPOSITION DEED-JURISDICTION-FRAUD.A debtor executed a composition deed under the Bankruptcy Act 1861, whereby he covenanted to pay his creditors a composition of 8s. in the pound. This deed was duly registered, and assented to by the required majority of creditors. Subsequently a person who had acted as the debtor's agent in certain business transactions claimed to be his creditor for 3001., and his name was entered as a creditor for that amount in the schedule to the 92 92 deed, and he received the composition on it. The debtor having afterwards discovered several fraudulent overcharges in his agent's account, filed a bill for an account: Held (affirming a deci sion of the Master of the Rolls), that the plaintiff was entitled to a decree for an account notwithstanding the composition deed: (Pike v. Dicken. son, 25 L. T. Rep. N. S. 579. L. C.)

921

25s.a

228.a

2s.a 2s.a 78.a

28.a

...

78.a

97

a Premium. b x. d.

፧፧

104

...

MATRIMONIAL SUIT-JURISDICTION-APPEARANCE ABSOLUTELY -VALIDITY OF RULES AND ORDERS-PLEADINGS.-The Judge Ordinary sitting alone has power to make rules and orders for governing the practice and procedure of the court. An objection to the jurisdiction of the court when intended as a preliminary objection can only be raised in the manner pointed out by the 22nd Rule of the New Rules and Orders, i.e., by entering an appearance under protest. Nevertheless, where a respondent had entered an absolute appearance, and had afterwards pleaded to the jurisdiction, the court allowed the answer to stand, on condition that she amended it either by pleading to the merits as well, or by making it clear on the face of the answer that a plea to the jurisdiction was the only answer she intended to make: (Wilson T. Wilson and Howell, 25 L. T. Rep. N. S. 600. D. & M.)

in that form than if divided. The defendants objected to a sale, and preferred partition. In estate like the one in question was not within the the court below, Malins, V.C. held that a large purview of the Act, and that the court might take into consideration the wishes of the parties, and made a decree for partition: Held (overruling the Partition Act 1868, where the parties interested to decision of Malins, V.C.), that under sect. 4 of the court was imperatively bound to give effect to the extent of one moiety asked for a sale, the such request, unless the objecting parties would

purchase, under sect. 5, the shares of the parties asking a sale, or the court saw some good reason why a sale should not take place. The Partition perties: (Pemberton v. Jones, 25 L. T. Rep. N. S. Act 1868 applies to large as well as to small pro577. L. C.)

SUPREME COURT OF MISSOURI (U.S.). March Term, 1871. BRYANT v. HAWKINS. Liability of Attorneys for acts of each other afterdissolution of partnership.

APPEAL from St. Louis Circuit Court.

WAGNER.-This was an action to recover of defendant money which it is charged he collected, as an attorney at law, for plaintiff, upon two certain that defendant, in connection with one Moore, connotes against one John H. Stokes. The case shows stituted a law firm at Cape Girardeau, under the name and style of Moore and Hawkins, and as such they received the notes of the plaintiff for collection, and gave receipt therefor in the name of the firm. Suit was instituted upon the notes and duly prosecuted to judgment. Execution was issued upon the judgment and the appeared as attorneys of record. money made by the sheriff. Moore and Hawkins The firm was dissolved before all the money was paid, and Hawkins notified the sheriff not to pay any money on that account to Moore. But, notwithstanding this warning, Moore obtained the money, appropriated it to his own use and is now a non-resident. This suit is brought against Hawkins individually to recover the amount so collected by Moore and converted to his own use. It is objected that as the petition declares on a liability against Hawkins, and as the evidence shows that the money was received and appropriated by Moore, that therefore the judgment which was rendered for the plaintiff should be reversed. But we are of the opinion that the petition is sufficient according to the case as made out. The firm was certainly liable jointly and severally for the money collected. Under the statutes of this State all contracts which are joint only, by the common law, are to be construed as joint and several (1 Wag. St. p. 269, s. 1); and where a joint liability is incurred an action will lie against one of the joint contractors for the act of another. Moore and Hawkins were jointly and severally liable for all the contracts and undertakings arising in the prosecution of their business. The dissolution of the partnership, and the agreement between them that Hawkins should wind-up the business, cannot affect the rights of the plaintiff. And the fact that Hawkins notified the sheriff not to pay the money to Moore will not excuse him. It might, under certain circumstances, furnish a remedy against the sheriff, but cannot in anywise impair the obligation of the defendant Hawkins to the plaintiff. The principle is universal, that no dissolution of any kind will affect the rights of third parties, who have had dealings with the partnership, without their consent. Parties may agree as they please about their joint property, and their agreements will be valid, so far as they do not affect the rights of third parties; but if they do have that effect they will be utterly and wholly void. The collection of the notes was a partnership duty, and it continued so far as the plaintiffs were concerned, with such member after the dissolution of the firm. The credit was given to the firm, and the dissolution did not operate as a release of the obligation. Something has been said about part of the money having been paid to Moore when he was acting with the enewhat principle that can be invoked to prejudice mies of the government, but we cannot see on the just claims of the plaintiff. Judgment affirmed. The other judges concur.-Chicago Legal News.

The Irish Court of Chancery has just given judgment in another of those questions, more than one of which have come up lately, as to the religious belief in which a minor is to be educated. The father of the infant, William Peter Garnett, was a Protestant residing in the county of Meath, and the mother when married was a Protestant, band's death took the boy, who is now thirteen but had changed her religion, and after her hus years of age, away from the Protestant school in which he had been placed by his father, and had him sent to a Roman Catholic establishment. One

twelve o'clock.

LEES (Jas.), Esq., Delph Lodge, Saddleworth, York. Jan. 8; Samuel Learoyd, solicitor, Huddersfield. Jan. 15; M.R., at eleven o'clock.

MASSON (Joseph W. A. R.), 5, Langford-place, St. John'swood, N.W. March 1; Monckton and Monckton, solicitors, 1, Raymond-buildings, Gray's-inn, W.C. MILLER (Wm. N.), 18, Circus-street, Greenwich, Kent, bricklayer. Jan. 39; H. Harris, solicitor, 16, High-street, Southwark. Feb. 13; V.C. W., at twelve o'clock. RADLOFF (Otto H. M.), 18, Cleveland-street, Cleveland Works, Mile End-road, Middlesex. Jan. 16; J. Pullen, solicitor, 1. Cloisters, Temple, E.C. Jan. 30; M.R., at eleven o'clock. SHERMAN, otherwise ANNISON (Daniel), 11, Ivy-cottage, Queen's-road, Dalston, Middlesex, gentleman. Jan. 8; Thomas Angell, solicitor, Guildhall-yard, E.C. Jan. 16;

V.C.W., at ten o'clock.

TAYLOR (Silas), Leighton-house, Leighton-road, Kentishtown, N.W. Jan. 31; Burton and Co., solicitors, 25, Chancery-lane, W.C. Feb. 10; V.C.W., at twelve o'clock.

WADE (Albany), Esq., Ratby, Leicester. Jan. 12: Hillyer
and Co., solicitors, 12, Fenchurch-street, E.C. Feb. 1;
V.C.M., at twelve o'clock.
WILLATS (Henry), Drake's Cottages, Exminster, Devon.
Jan. 20; H. W. Hooper, solicitor, 18. Bedford-circus,
Exeter. Jan. 30; V.C.M., at twelve o'clock.

CREDITORS UNDER 22 & 23 VICT. c. 35. Last day of Claim, and to whom Particulars to be sent. ATKINS (Jane), 18, Trinity-place, Windsor, Berks, Jan 31; F. L. Soames, solicitor, 10, New Inn, Strand, W.C. BLAIR (Robert), Green Bank, Harrington, Cumberland, ironmaster. March 1; A. B. Were, solicitor, Sandhillslane, Whitehaven. BROOKS (Rev. Geo. W.), Filey, York. Jan. 15; A. Lake, 29, Westborough, Scarborough.

BROWN (Robert A.). The Chelsea Pensioner. 1, Queen's.

Feb, 1; Lewis and

road, West Chelsea, Middlesex. Watson, solicitors, 89, Gracechurch-street, E.C. CAMPBELL (Major Patrick S.), 42, Aldridge-road-villas, Westbourne-park, Middlesex, major in the Royal Artillery. Jan. 20; Makinson and Carpenter, solicitors, 3, Elm. court, Temple, E.C. CLARKE (John, otherwise JOHN STOW), Cerrigdwidion, Denbagh. Jan. 31; G. T. Woodrooffe, solicitor, 1, New-square, Lincoln's-inn, W.C. CURSHAM (Geo.), Esq., M.D., 55, Victoria-street. Westminster, Middlesex. Feb. 12: H. Devonshire. solicitor, 1. Frederick's-place, Old Jewry, E.C. DALTON (John), Esq., Hemingford Grange, Ripon, York, and Tillingham Castle, Lincoln. Feb. 1; Wise and Son, solicitors, Ripon. ESAIN (Alexander), Esq., Clifton, near Bristol, professor of music. Feb. 3: W. Ackland, solicitor, 37, Lansdowne Crescent, Notting-hill, W. FINDLAY (John), Liverpool, Lancaster, shipwright. Feb. 1; Forshaw and Hawkins, solicitors, 12, Sweeting-street, Liverpool. FLINT (Thos.), Mill-hall, Aylesford, and Maidstone. Kent, coal and corn merchant. Feb. 12; J. B. Stephens, solicitor, Week-street, Maidstone.

E.C.

Portsea.

LINOWSKA (Frances 8.), Hitchin, Herts. Feb. 20; Oliver and Sons, solicitors, 61, Carey-street, Lincoln's-inn, W.C. LYON (Jos.), Ormskirk, Lancaster, of the firm of Roskell and Co., 21, Church-street, Liverpool. Jan. 31; W. W. Wynne, solicitor, 115, Chancery-lane, W.C. MASON (Thos. F.). Wimbledon, Surrey, Jan. 31; Venning and Co., solicitors, 9, Tokenhouse-yard, E.C. MEERS (Chas.), 9, Westbourne-place, Eaton-square, Middlesex, gentleman. Jan. 22: Tippetts and Son, solicitors. 5, Great St. Thomas Apostle, Queen-street, E.C. MORTIMER (John), Esq., Pippingford-park, Uckfield. Sussex, and 14, Hanover-square, Middlesex. Feb. 21; H. P. Bird, solicitor, 58, Lincoln's-inn-fields, W.C. PARK (Alexander A.), Esq., Heddon-house, Isleworth, Mid. lesex, and Lincoln's-inn, W.C., Senior Master of the Court of Common Pleas at Westminster. March 1; G. Cowburn, solicitor, 43, Lincoln's-inn-fields, W.C. PARK (Rev. James A.), Newbus Grange, Durham. Feb. 10; G. Cowburn, solicitor, 43, Lincoln's-inn-fields, W.C. QUARTERMAINE (Samuel), 22, Weighton-road, South Penge Park, Anerley, Surrey, March 1; Willoughby and Cox, solicitors, 13, Clifford's-inn, E.C. ROSCOE (Thos. Esq.), 43, Acacia-road, St. John's-wood, N.W. Jan. 20; Walker and Sons, solicitors, Founder's-hall, St. Swithin's-lane, E.C. SWAN (Richard), 44, Eldon-street, Newcastle-upon-Tyne, gentleman. Feb. 20; Allen and Davies, solicitors, 23, Granger-street, Newcastle-upon-Tyne. TAYLOR (Joseph), Braunston-gate, Leicester, hosier and innkeeper. Feb. 18; Miles and Co., solicitors, Cank-street, Leicester.

FORSTER (Percival W.). Old Elvet, Durham. Jan. 31; Per- the existing system by which the possession of a
cival Forster, solicitor, Durham.
seat in Parliament has become an almost indispen-
GORDON (Capt. Geo. J.), 31, Upper Gower-street, N.W.,
79th Regiment of Foot. Jan. 15; Elmslie and Co., solicitors, sable condition to elevation to the judicial bench.
27, Leadenhall-street, E.C.
In England the evil of which we complain is not
HALL (Peter B.), Esq., Ellecker House, Richmond, Surrey,
and 23, Lombard-street, E.C., gunpowder manufacturer.
so sensibly felt as in this country. The appoint-
Feb. 29; Wilson and Co., solicitors, 1, Copthall-buildings, ment of the puisne judges and vice-chancellors is
HENDRY (Agnes M.). 7, Buckland-road, Buckland, Portsea. vested in the Lord Chancellor, and this duty is
Jan. 25; Pearce and Marshall, solicitors, 13, Union-street, discharged with a strict regard to professional
merit. As to the higher places-the chief places
HEWETT (Samuel), 10, South Beach, Great Yarmouth, gen- in the common law courts, the Lord Chancellor-
tleman. March 1; F. Dollman, solicitor, 45, Cornhill, E.C.
HILLMAN (Robert), Lyme Regis, Dorset, solicitor. Feb. 20; ship, and the offices of Lord Justice of Appeal-
John Sharpe, 5, Manor-road, Stamford-hill, London. they are indeed the reward of the law officers of
HOPWOOD (Geo.), Accrington, general agent. Feb. 1; the Government, and so far political considera-
Handsley and Artindale, solicitors, Burnley.
HOYLE (John), Ducie House, Greenheys, Manchester, silk tions are permitted to intervene. But, for many
manufacturer. Feb. 27; Allen and Prestage, solicitors, 69, reasons, this system does not operate so unfavour-
Princess-street, Manchester.
JAMES (Robert), Rochester Castle, High-street, Stoke New. ably in England as in this country. In the first
ington, Middlesex, licensed victualler. Feb. 16; J. M'Millin, place the leaders of the Common Law and Equity
JANE (Mary), Dorset-villa, West Clifton, Bristol. Jan. 31; greater degree to their professional fame, and in a
solicitor, 39, Bloomsbury-square, W.C.
Bar are indebted for their seats in Parliament in a
A. and F. Nash, solicitors, 30, Broad-street, Bristol.
JENKINSON (Rev. John S.), 24, Spencer-road, New Wands- lesser degree to local interest than in Ireland.
worth, Surrey. March 1: Nicholl and Son. solicitors, Then, again, they are not removed by their Parlia-
8, Howard-street, Strand, W.C.
JONES (Charlotte), Ditchling. Sussex. Feb. 24: White and mentary duties from the scene of their profes-
Co., solicitors, 6, Whitehall-place, Westminster.
sional labours. They take part, no doubt, in
LEWIS (Major Geo. C. D.), Edgeware-road, Middlesex-
Jan. 24 Carleton and Co., solicitors, 12, Bedford-party divisions, and occasionally in debate. But
row, W.C.
such lawyers as Sir Roundell Palmer, Mr. Jessel,
or Sir John Coleridge, cannot be accused of neg-
lecting their professional duties, and are no
less qualified for the judicial bench from the
selves in the field of politics. In Ireland also,
fact that they have also distinguished them-
before the Union, a successful barrister might at
the same time attend to his business, and take
his place in the national Legislature. But the two
things are utterly incompatible in Ireland. There
is no sufficient guarantee that the barrister who
is fortunate enough to obtain a seat in Parliament
is in the foremost rank of his profession. In a
country like Ireland, where local, political, and
sectarian influences are so much more powerful
than abstract considerations of professional merit
or desert, the very reverse is occasionally the fact.
But even if the barrister who is the fortunate
possessor of a seat in Parliament happens to have
been a leader of the Common Law or Chancery
Bar, he is practically removed from the ranks
of the practising members of the Profession,
to the great inconvenience of suitors, and to
the injury of his own qualifications as a
It is sometimes forgotten of how re-
cent growth is this evil.
In the early years
of this century the necessity of having one
of the law officers in Parliament was not realized
or imagined by the Government. For thirty-five
years after the Union (as we pointed out some
time ago), not one of the successive Irish Attorney-
Generals, with the single exception of Plunket,
entered the House of Commons. Bushe, O'Grady,
Saurin, Joy, and Blackburne, were the leaders of
the Bar; and had ample means to bear the expense
of Parliamentary contests, and the consequent sacri-
fice of business. The Governments of those days
had peculiar facilities for introducing their law
officers into Parliament. And yet not one of the
eminent men to whom we have referred ever entered
Parliament. The same may be said of the Penne-
fathers, of Crampton, of Burton, and in fact of all
the eminent lawyers who adorned the Irish Bar
and Bench in the earlier half of the present century.
The rush of Queen's counsel to Parliament in the
hopes of obtaining places, is an evil which has
sprung up within the last few years. We have no
hesitation in saying that it has produced and is
producing the most disastrous effects upon the
Bench and the Bar; and through them upon all
who are engaged in the administration of the law,
and upon the interests of the general public.

TAYLOR (Thos.), Esq., 18, Lawrence Pountney-hill, Cannon-
street, E.C., and Willesden, Middlesex, attorney and solici-judge.
tor. Jan. 31; J. E. Wilson, solicitor, 18, Lawrence Pount-
ney-hill, Cannon-street, E.C.
TAYLOR (William T.), Esq., Weston, near Bath. Feb. 1;
Western and Sons, solicitors, 7, Great James-street, Bed-
fordrow, W.C.

TODD (Mary), Thornby Moor, Alkton, Cumberland. Feb. 9;
R. H. Mounsey, solicitor, 3, Castle-street, Carlisle.
TUCK (Geo.), Shipdham, Norfolk, farmer. Jan. 31; F. L.
Soames, solicitor, 10, New-inn, Strand, W.C.
TYSON (John), Esq., Waterloo, near Liverpool, and Upper
Norwood, Surrey, March 1; Bateson and Co., solicitors,
26, Castle-street, Liverpool.
WILLANS (Eliza), 6, Brook-green-terrace, Hammersmith.
Feb. 10; M. T. Burgoyne, solicitor, 160, Oxford-street, W.
WITHINGTON (Benjamin), Esq., Manchester, and Alderley
Edge, Chester. Jan. 30; Cunliffe and Leaf, solicitors,
56, Brown-street, Manchester.

WRIGHT (Rebecca), 16, George-street, Greenwich, Kent.
Jan. 12; Smith and Batchelor, solicitors, Croom's-hill,

Greenwich.

THE BENCH AND THE BAR.

THE IRISH BENCH AND BAR. THERE is at present one subject which occupies the attention of the legal profession to such a degree as to render it impossible for a journal which represents its interests to pass over in silence. The appointment of a Solicitor-General is at all times a matter of importance, but upon the present occasion elements of peculiar interest have been introduced into the discussion of the question. It has been represented in the public press that there is likely to be a contest upon this occasion between political and professional recommendations as constituting qualifications for the office of Solicitor-General. There is nothing new in this issue. It has been raised on the occasion of almost every vacancy, and we regret to say that political and Parliamentary claims have for the most part proved the most effective. We make this remark without special reference to either of the great political parties; and indeed we are bound to say that the Government is in each individual case not so much to blame as It is, in our opinion, mere idle talk to comthe system under which it is compelled to act. plain of the appointment of law officers (and thus of judges) upon political grounds, so long as the duties of the law officers remain such as to render the presence of at least one of them in Parliament a matter of supposed necessity. All that can be said on the subject of the injustice and absurdity of appointing our judges upon any other grounds than legal learning and efficacy as advocates, we cordially endorse. We have more than once had occasion to protest against the system which results in the rejection of efficient, and the appointment of inefficient law officers and judges. No measure of legal reform would, in our opinion, be more calculated to add to the efficiency of the Bench, to raise the tone of public morality at the Bar, and to encourage the really learned and efficient class of practitioners, than a reformation of

How is this evil to be removed? We know of but two possible remedies. The law officers of the Crown might be made ex officio members of the Legislature, and the Government thus enabled to select the best men without regard to their command of the votes of some constituency. This would be regarded probably by many as a dangerous precedent, and is not at all likely to be adopted. The only other alternative which presents itself is that which we suggested in the article to which we have already referred. There is really nothing in the present state of things which renders the presence of one of the law officers in Parliament a matter of greater importauce than it was some thirty years since. The Irish questions then before the House were at least as important as any which are likely to engage its attention in the future. The gradual assimilation of Irish and English law renders the presence of an Irish legal representative of the Government a matter of decreasing instead of increasing importance. The political duties of the law officers might, without difficulty, be transferred to the Chief Secretary for Ireland, or some other political official. We, therefore, would suggest that the present system should be abolished of requiring the presence of the law officers of the Crown in Parliament. They have important functions at home with which their Parliamentary services are inconsistent. Their duties in the Legislature might easily be entrusted to some other members of the Government. It is certain that so long as the present system is continued professional qualifications

ADMISSION TO THE BAR IN NEW YORK. TEN years ago it seemed probable that the practice of the law would soon be open to every one, without regard to capacity or acquirements. The framers of the New York constitution of 1846 inserted in that instrument a provision designed to take from the Legislature and the courts all power of making effective general rules with regard to admission to the Bar. The declaration that "

any male citizen of the age of twenty-one years, of good moral character, and who possesses the requisite qualifications of learning and ability, shall be entitled to practise in all the courts of this State," theoretically permitted all intelligent

men to enter the Profession. It was intended to

do even more than this, that is, to allow every man who wished to set up a law office. The popular impression of that day was, that the lawyers were a privileged class. And there were some grounds for this impression. Almost all the public offices were filled by members of the Bar. They were exempt from jury duty, and, practically, from service in the militia and from civil arrest. They seemed to do little labour for large pay, and their business was secure from the dangers of a commercial crisis. It is not surprising that those who followed other callings believed that a position Open Sesame " to honour and wealth, and that they regarded, with jealousy, the

at the bar was an 66

existence of certain rules and customs which rendered the attainment of that position difficult. The most obnoxious rule, under the old system, was the one which made a long apprenticeship essential for admission to the Bar. This rule, in effect, excluded the great body of the people, as the time required was greater than could be afforded by one compelled to earn his own livelihood. Seven years were necessary to educate the lawyer, and though a concession was made to graduates of colleges by allowing the time passed in college to count as part of the needed years, this concession probably tended to make the rule, if any thing, more unpopular. Then the requirement could not be evaded, as the time must be spent, and it was not easy or profitable for the candidate to mislead the court concerning that matter.

The popular sentiment at last found expression in the fundamental law, but it was found that the way had not become entirely smooth, inasmuch as the courts, though no longer permitted to insist upon a term of clerkship, established a standard of intelligence and qualifications which could be attained to only through the instruction and discipline of a clerkship of some length. The Legislature of 1847 undertook to take away this last barrier against indiscriminate admission, by providing that any person of good moral character, although not admitted as an attorney, may prosecute or defend a suit for any other person provided he is specially authorised for that purpose, by the party for whom he appears, in writing, or by personal nomination in open court." But this Act was declared unconstitutional by Edwards, J., in the first, and Willard, J., in the fourth district, and no attempt has since been made to take advantage of it.

But the public sentiment exerted itself in other ways. The court could determine the qualifications, ability and learning, only by examination of the candidate, and this examination was necessarily brief and cursory. Whether made by the court or by examiners, it has usually occupied only a few hours, no matter how large a number presented themselves for examination at the specified time. Nothing but a vague and uncertain estimate could be made concerning any individual, and the examiners, not wishing to do injury, gave each applicant the benefit of any doubts they might have concerning his claims for admission. This slackness enabled many who were notoriously unqualified to pass the ordeal, which at length came to be regarded as a mere technical ceremony that the most stupid and ignorant need not fear. Now and then an examining committee, with a desire to put a stop to indiscriminate admissions, would recommend the rejection of a large proportion of the class brought before them, but this proceeding had only a temporary effect, as most of the rejected ones usually came through by the next committee. Then it grew to be not unusual to admit upon motion, and this in cases where the applicant was known to be unable to pass a satisfactory examination.

This ease of access has, of course, done great injury to the Bar, both in character and reputation. Great numbers of uneducated men have entered. Thus the average culture of the Profession is lowered. Very many become attorneys in order to profit by chicanery and trick. These injure the moral character of the Bar and destroy

MAGISTRATES' LAW.

MANNER AND PLACE OF ARREST. THIS is a very important branch of law, and it is ably elucidated in an Indian work on the "Duties of a Magistrate and Justice of the Peace in India,” by Mr. Broughton. We take the following verbatim:

-

An arrest under a warrant can lawfully be made only by the persons charged by the warrant with that duty. Thus, a warrant addressed to a parish constable could not be executed by a police constable: (Freegard v. Barnes, 7 Ex. 827; R. v. Sanders, L. Rep. 1 C. C. 75.) If it be directed to a person by his name, his authority is co-extensive with that of him who confers it, and he may execute it in any place within the magistrate's jurisdiction. But if it is directed to a person, not as an individual, but by the description of his official character, the authority delegated to such officer is limited to his own district: (R. v. Tooley, 2 Lord Raym. 1296; R. v. Weir, 1 B. & C., 288. [The General Police Act V of 1861, sect. 22, enacts that every police officer appointed under that Act shall, for the purposes of the Act, be considered as always on duty, and may be employed as a police officer in any part of the general police district, that is, in any presidency, province, or place, or any part of any presidency, province, or place in which the Act shall be ordered to take effect. Sect. 84 of the Criminal Procedure Code provides that when any person against whom a warrant is issued by a magistrate shall escape, go into, or be in any place out of the jurisdiction of the magistrate issuing such a warrant, the warrant may be executed in such place, apparently by the person to whom it is directed. This section would probably apply only to cases in which the person to be arrested was or was supposed to be in the jurisdiction when the warrant was issued

see sect. 88]. It is not necessary that the person so authorised should effect the arrest personally; it may be done by any person by his direction, provided the former be actually engaged in the same business. He must be the authority, but he need not be the hand that arrests, nor need he be in the presence of the party arrested, nor actually in sight, nor is any exact distance prescribed-per Lord Mansfield in Blatch v. Archer, Cowp. 63. But he must be actually engaged in the arrest, so that his assistants are under his immediate control.

When an offender is pursued by those who have authority by law and without warrant to arrest him, he may be taken by them, in the pursuit, not only in the county or district where the offence was committed, but in any other to which he flies -2 Hale, 76. [And this is the case when the arrest is made under a warrant issued under the Code of Criminal Procedure-see sect. 84]. But [in other cases] the warrant of a magistrate or any other officer can be executed only within the limits of the district mentioned for that purpose in the warrant (Milton v. Green, 5 East, 223; and that, it has already been mentioned, must not be out of the district for which he who issues

the warrant is a magistrate. If the offender fled [from the jurisdiction of a police magistrate] to another part of India, or to any other part of the

British dominions, it could not be executed without the intervention of other authority [unless the magistrate was appointed a justice of the peace for the place in question, as for instance, where he was a justice of the peace for a whole presidency, and the warrant were to be executed in the presidency, but out of the presidency town]. In such case, his warrant would be enforced by the local authorities, under the provisions of Act VII. of 1854, and the 6 & 7 Vict. c. 34; as to which, see inf. s. 7.

In arresting for treason, felony, or dangerous wound, in pursuance of the obligation imposed by [the English] law, it is lawful to use all the force reasonably necessary to effect the arrest, but no more. [And although there are no specific instructions in the Code of Criminal Procedure in cases where the arrest may be made without a warrant, such, no doubt, would be the rule. Where the arrest is made under warrant, the Code provides (sect. 92) that if the person against whom the warrant of arrest is issued shall forcibly resist the endeavour to arrest him, it shall be lawful for the police officer or other person exe cuting the warrant to use all such means as may be necessary to effect the arrest.] If the accused resists or flies, his resistance is to be overcome, or his flight stopped; and he may be killed, if this cannot otherwise be done, and his capture cannot otherwise be accomplished: (1 Hale 489; 2 Hale 85, &c.) If he flies into a house, whether his own or another's, the outer door may be broken open by those whose duty it is to make the arrest: (2 Hale 117; Semayne's Case, 5 Rep. 91; s. C., 1 S. L. C., 3rd prop., 6th edit., 89.)

[On this subject the Code of Criminal Procedure lays down the following rules: If there is reason to believe that any person liable to arrest without warrant, of whom a police officer is in search, has entered into or is within any house or place, it shall be the duty of the person residing in or in charge of such house or place, on the demand of such police officer, to allow ingress thereto, and all reasonable facilities for a search therein (sect. 106). If ingress to a house or place cannot be obtained under the last preceding section, the police officer authorised to make the arrest shall take such precautions as may be necessary to prevent the escape of the person to be arrested, and send immediate information to a magistrate. If no warrant can be obtained without affording such person an opportunity of escape, and there is no person authorised to enter without a warrant on the spot, the police officer may make an entry into such house or place and search therein (sect. 107). If there is reason to believe that any person against whom a warrant has been issued has entered into or is within any house or place, it shall be the duty of any person residing in or in charge of such house or place, on demand of the police officer or other person executing the warrant, to allow such police officer or other person free ingress thereto, and to afford all reasonable facilities for a search therein (sect. 93). The police officer or other person authorised by warrant to arrest a person may break open any outer or inner door or window of any house or place, whether that of the person accused or of any other person, in order to execute such warrant, if after notifica tion of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance (sect. 94). If information be re ceived that a person accused of any offence for which a warrant may issue is concealed in an apartment in the actual occupancy of a woman who, according to the customs of the country, does not appear in public, the police officer, or other person employed to execute the warrant, shall take such precautions as may be necessary to prevent the escape of the accused person;

and