if the accused person shall not deliver himself up, the police officer or other person authorised to execute the warrant, may, if after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance, break open such zenana or apartment, and execute the process entrusted to him, first giving notice to any woman as aforesaid, in such zenana or apartment, not being a person against whom a warrant has been issued, that she is at liberty to withdraw, and affording her every facility for withdrawing (sect. 95). These provisions are applicable only to the cases of arrest by a police officer or other person in execution of a warrant, and of arrest by a police officer without a warrant. The last provision, relating to searching in the apartments of native females, is, as an express enactment, peculiar to the case of arrest under warrant under the Code of Criminal Procedure. They are in many respects similar to the rules governing the same subject which have been deduced from the principles of English common law, and which are applicable in the presidency towns; while these rules, so far as they relate to private arrest in the case of crimes of violence, would, it is presumed, apply by analogy to an equal extent in the mofussil. Thus, according to English law, before the person whose duty it is to make an arrest breaks open an outer door] it is in general proper to signify the cause of coming and to demand admission: (Semayne's Case, 5 Rep. 91; 8. c. 1 S. L. C.. 3rd prop., 6th edit., 89. But it is doubtful whether such a notification and demand are necessary before breaking in cases of felony [or of offences analogous to felony]: (per Cur. in Launock v. Brown, 2 B. & A. 592), and indeed, in any case where the party pursued is beyond doubt in the house, it might be absurd (and would consequently be unnecessary) to demand admittance at the door when he might be escaping by the window or firing at his pursuers: (see per Lord Alvanley, C. J. in Ratcliffe v. Burton, 3 B. & P., 223, 229; and per Cur. in Aga Kurboolie v. Reg. 4 Moo. P. C. 247.) The law requires the ceremony to be observed only when it possibly may be attended with some advantage, and may render the breaking of the outer door unnecessary (Id.) So, when a felony is in course of commission, it would be out of the question to pause until a demand of admission had been made, and due time for compliance had elapsed: (see Handcock v. Baker, 2 B. & P. 260.) But the notification and demand should be made when it is not likely to frustrate the arrest. It is prudent, before breaking into a stranger's house, to have certain knowledge that the accused is there; for if he were not, the pursuers who broke into it would be trespassers: (2 Hale, 103.) They would not, it seems, be justified in entering and searching it on mere suspicion even if the outer door were open, or in breaking inner doors even after refusal of admission (Johnson v. Leigh, 6 Taunt. 246; comp. Ratcliffe v. Burtoa, 3 B. & P. 223, 229) [except in cases under the Code of Criminal Procedure which in terms justi. fies the person entering into the house if he has reason to believe that the accused is inside-sects. 106 and 108]. A demand of entrance is not necessary before breaking the inner doors of the house of the accused, or of the house in which he is taking refuge (Hutchinson v. "Birch, 4 Taunt. 619); nor before breaking outer ones, if the pursuers, after entrance, have been expelled or excluded: (Aga Kurboolie v. Reg. 4 Moo. P. C. 239; see also| Sandon v. Jervis, 28 L. J. 156, Ex.; and Banister v. Hyde, 29 L. J. 141, Q.B.; and the cases cited there.)

The same extremeties may be resorted to when the accused escapes after arrest: (1 Hale, 489; and see Code of Cr. Pro., ss. 112, 113.)

The same powers are given, and the same extremities are justifiable, in interposing to prevent the commission of any felony which is accompanied by force. Thus, if a man were committing murder in a house, it would be lawful to break into the house and overpower the murderer with all the force necessary to secure him: (Handcock v. Baker, 2 B. & P. 260.) But if the felony be not accompanied by force, as po ket picking, the killing of the culprit, while in the act, in order to prevent its commission, is not lawful: (1 Hale, 458.) But when the arrest is made, not in pursuance of the duty imposed, but in exercise of the power given by law, as where it is made by a private person on suspicion only (sup. ss. 2, 3, 4), no greater violence is justifiable than a gentle imposition of hands. If, indeed, the prisoner proved guilty of the felony, the private person who arrested him on suspicion would be justified by the event in resorting to the same extremities, when necessary, as if the felony had been committed in his presence. But if the person proved innocent, any excess of violence beyond that just mentioned would be actionable: if he were killed, it would be manslaughter; and if he killed his pursuer, it would (in the absence of express malice) be only manslaughter: (1 Hale, 490; 2 Hale, 83, 92, 119; Fost. 318, s. 16.) In arresting for misdemeanors, and generally in all Cases in which the Queen is a party, the

persons authorised to make the arrest have the same power of breaking into houses, and repelling force by force, and even of killing their opponents, if they resist, and their resistance cannot be otherwise overcome, as in arresting for felonies committed in their presence: (1 Hale, 494; Fost. 270, s. 2; and 320, s. 23; 1 Russ. Cr. 535.) So, in the case of misdemeanors in course of commission; thus, if there is an affray in a house, and the doors are shut, and a demand of entrance is not complied with, any person is justified in breaking them open and entering: (1 Hale, 589.) But there is this difference, that in arresting for misdemeanors, the person sought to be arrested may not be killed if he flies, although his capture cannot otherwise be made: (1 Hale, 481, 494; Fost. 271.) If the offence be per se only a misdemeanor, but is in particular case a felony in consequence of a previous conviction of the offender, a person ignorant of this last circumstance would not be justified in resorting, for his arrest, to any other measures than those allowed in cases of misdemeanor. Thus, he could not lawfully shoot him to stop his flight: (R. v. Dodson, 2 Den. 35.)

In civil cases, the powers effecting an arrest are the same as in cases of misdemeanor, except that an entrance by breaking outer doors, windows, or walls, cannot be lawfully made into the house in which the person sought to be arrested resides, although entrance be denied, unless he has been already arrested, and it be to effect his recapture: (Aga Kurboolie v. Reg. 4 Moo. P. C. 247.) But his outhouses, and the houses of others in which he does not reside, but in which he has taken refuge, are not equally sacred. The outer doors may be broken, if entrance be not given upon demand; for it is only his own dwelling that is a man's castle, and it is a castle for himself only, and not for those who do not dwell in it: (Seymane's case, Rep. 91; Fost. 319.) Finally, no greater violence is ever justifiable than is necessary to effect the arrest: (Fost. 319; Levy v. Edwards, 1 C. & P. 40.)

Stated compendiously, the law upon this part of the subject [independent of the provisions of the Code of Criminal Procedure] seems to be as follows :—

(1.) As to the person. In interfering during the commission of a felony [or of an offence of the nature of a felony] accompanied by force, it is lawful to use all the violence necessary for the purpose, and even to kill the offender, if this be necessary to prevent the perpetration of the crime. But this extremity is not lawful when the felony is not accompanied by force.

After any felony has been committed, the offender may lawfully be killed, if this be necessary to prevent his escape, whether by flight or successful resistance.

In misdemeanors and civil cases this extremity is lawful, when necessary, if he resists; not if he files.

(2.) As to his dwelling.-When a felony is in course of commission, or has been committed, outer doors may be broken; and this may be done without previous demand of entrance, if necessary. In all criminal cases they may be broken after demand of entrance; and in all cases, civil as well as criminal, after expulsion or exclusion, without demand. Inner doors may be broken without demand of entrance when the house has been lawfully entered.

(3.) As to his out-houses.-They may be entered in all criminal and civil cases, whether they are open or by breaking the outer doors.

(4.) As to the houses and out-houses of strangers. They may be entered in all criminal and civil cases, whether they are open or by breaking the outer doors, if the party sought to be arrested be there.

When a person is apprehended in the commision of an offence, or upon fresh pursuit afterwards, it is not in general necessary to give him notice of the business of those who thus interfere with his liberty; for he must know the cause of his arrest: (1 Russ. Cr. 623.) But in some cases the cause of the interference should be stated, as well as the character in which the party interferes, otherwise the person sought to be arrested would be justified in treating him as a trespasser. Thus, in riots and affrays, the justices or other persons who proceed to separate the combatants should notify their friendly intent; otherwise the persons engaged might imagine that they came as the allies of their antagonists. But a small matter amounts to a due notification. It is sufficient if the peace is commanded, or if the officer or other person who interposes declares with what intent he does so: (Fost. 310; 1 Hale, 460.) The policeman's uniform, if visible, would be a sufficient notification of his office and intent, to dispense with his mentioning them: (ld.) When the arrest has been made, all severity beyond what is absolutely necessary to prevent the escape of the prisoner is unjustifiable: (see Code of Cr. Pro. s. 96). The captors are undoubtedly justified, for they are bound to take all reasonably necessary measures to prevent the escape of their prisoner; but what

those measures shall be must depend on his temper and conduct when in custody, on the nature of the charge, and other circumstances: (per Williams, J., Leigh v. Cole, 6 Cox, 329). Thus, it is not lawful to handcuff a prisoner unless he. has attempted to escape, or it is necessary to prevent his escape: (2 Inst. 381; Wright v. Court, 4 B. & C. 596; R. v. Lockley, 4 F. & F. 155.) The right to search a prisoner also depends on the circumstances of the case. [On this subject the Code of Criminal Procedure is silent.] It has been sometimes said that it was not lawful to search a prisoner except when he was in custody for felony But it is difficult to see on what principle this rule rests; on what ground, for instance, it can be reasonable to search a man charged with larceny or abusing a girl under ten, and not reasonable to search him when charged with obtaining property by false pretences, or abusing a girl between ten and twelve. It would seem, on general principles of law, that the officer or jailor, or other lawful captor or custodian, being responsible for the custody of his prisoner, is entitled to take from him every article or instrument by which he might effect his escape, whether by injuring others or not, and is therefore entitled to search him for such things: (see Leigh v. Cole, 6 Cox, 329.) In some cases, a search for the purpose of obtaining evidence against the prisoner is allowed by statute, as where a person is reasonably suspected of carrying something stolen or unlawfully obtained (2 & 3 Vict. c. 47, s. 66, Metropolitan Police), or of having counterfeit coin in his possession (24 & 25 Vict. c. 99, s. 27, Offences relating to the coin-England). stances of such enactments may be found in the Arms Act XXXI. of 1860, s. 31; the General Police Act, V. of 1861, s. 23; Police Act XIII of 1856, s. 46; Acts IV. of 1866 (Bengal), s. 32; VIII. of 1867 (Madras), s. 23; II. of 1866 (Bengal), s. 16.] The search of a person may also be justified in cases where it is advisable for the protection of the person searched or of his property, as in cases of helpless drunkenness, lunacy, illness, or infancy. But, except as above stated, it does not appear that our law justifies the search of prisoners, and it would seem therefore not justifiable to search them for letters or papers which might compromise them.

[In

Any property found upon the prisoner should not be taken from him, unless it be in some way connected with the offence, as if it be the instrument, or the fruit, or evidence of the crime: (R. v. Barnett, 3 C. & P. 600; R. v. O'Donnell, 7 C. & P. 138; R. v. Kinsey, id., 457; R. v. Burgiss, id. 488; R. v. Boney, id. 515; R. v. Jones, 6 C. & P. 343; R. v. Bass, 2 C. & K., 822.)

When the arrest is effected under a warrant, and cannot be justified under it, care must be taken not to arrest any other than the person described in it; for any other, even though he were the person really intended, would be justified in resisting, if not entitled also to sue for the trespass [and this remedy would not be defeated by a plea, for instance, under the 43rd section of the General Police Act (V. of 1861), which makes it lawful for a police officer to plead that any act done by him in his official capacity was done by him under the authority of a warrant issued by a magistrate, for on the production of the warrant it would appear that the act was not directed to be done; thus] Richard Hood cannot be arrested under a warrant calling him John: (Hoye v. Bush, 1 M. G. 775.) Nor could he be arrested by the name of Hood, unless the warrant alleged that his christian name was unknown: (R. v. Hood, 1 Moo. C. C. 281.) Identity of name or personal resemblance would not excuse the arrest of the wrong person; and even if, when asked his name immediately before hands were laid on him, he falsely gave as his the name of the party mentioned in the warrant, the arrest would not be justifiable: (Conte v. Lighworth, F. Moo. 457; Thurbane's case, Hard. 323, cited in Com. Dig. Imprisonment, L. 2; and Bac. Ab. Trespass. D; accord. per Parke, B., in Freeman v. Cooke, 2 Ex. 654; see also Oxley v. Flower, Selw. N. P. 920; and see Fisher v. Magnay, 5 M. & G. 778, and 787-8.) But if he gave a false name before the warrant was issued, he could not afterwards sue for the arrest made in consequence: (Price v. Harwood, 3 Camp. 108.) If he corrected the mis-stat ment after the arrest, it would not be lawful to continue the imprisonment: (Dunston v. Patter. son, 26 L. J. 267, C. P.; 2 C. B., N. S., 495).

The arrest for all indictable offences may be made at any time of the day or night, and on Sunday as well as any other day: (Rawlins ▼. Ellis, 16 M. & W. 172; Johnston v. Colston, 1 T. Raym. 250; and see sup. c. 2, s. 10). In all such cases, and perhaps in all other criminal cases, the officer arresting, if he is within the limits of the place in which he is an officer, is not in strictness bound to show his warrant, though a sight of it be demanded, for he is presumed to be known within his district; still it is desirable that he should do so: (see per Lord Kenyon in Hall v. Roche 8 T. R. 187). He must, however, acquaint the party with the cause of the arrest: (2 Hale,

116; 2 Hawk. c. 13, s. 28.) If he were beyond those limits, he would be bound to show it, if demanded: (Id.). A private person when armed with a warrant is in all cases bound to show it, on demand: (Id.) [Lord Kenyon, in Hall v. Roche, calls it a dangerous doctrine to hold that the officer need not show his warrant, and this view is adopted in the Code of Criminal Procedure, which (s. 90) directs a police officer or other person executing a warrant of arrest to notify the substance of the warrant to the person to be arrested, and, if required to do so, to show the warrant to such person.] If the proceeding be of a civil nature, the officer is bound to produce his warrant, if required: (per Lord Kenyon in Hall v. Roche, sup.; and per Williams, J., in Robins v. Hender, 3 Dowl. 543). Not to do so makes the arrest illegal. And he must have it with him at the time of the arrest; incapacity to produce it making the arrest equally illegal, although no production is demanded: (Galliard v. Laxton, 31 L. J. 123, M. C.).

If the party charged be in jail or any other place of imprisonment, the justice may, if he pleases, hold the examination within its precincts, and thus have the accused present; or he may issue his warrant in the usual way, and the officer charged with its execution may, upon application obtain a writ of habeas corpus from the Superior Court [in cases where a writ of habeas corpus lies] to have the accused brought before the justice from day to day. [This proceeding would be practically never resorted to in India, for there are no courts in the mofussil competent to issue a writ of habeas corpus, and the writ issuing from the High Court does not run in the mofussil. And in the presidency towns] a magistrate of police may have him brought up, with respect to any charge, case, or proceeding before him, by an order addressed by the magistrate to the keeper of the prison: (Police Act, 1860, s. 25).

PUBLIC RIGHT TO CLEAN STREETS.-A very amusing and instructive lawsuit is likely to occupy the French courts immediately, unless some compromise should be arrived at in the meantime. It

Borough.

will be founded on Article 1382 of the Code Civil, which lays down the general principle that all neg. ligence which occasions damage to anyone brings with it a liability to the culpable party to make reparation for the loss which he has occasioned. The Omnibus Company of Paris will be the plaintiffs in this case, and the municipal administration of the city will be the defendants. It appears that 200 horses of the company have latterly been disabled and rendered unfit for all work, and that this circumstance has occasioned a loss to the company of about 300,000 fr. The company attribute the cause of this loss to the default of the Paris corporation, who have allowed the snow, which fell so heavily last week, to remain in the streets for several days, and made no attempt, or made insufficient attempts, to remove it. The consequence of this mistaken economy was that locomotion in the streets became nearly impossible, and that there were frequent accidents during the week. The French lawyers are accustomed to recognise the existence of a contract, and, therefore, of all the liabilities which flow from its breach, between the citizen who pays a tax and the public authority, whatever it may be, which receives that tax. The ratepayers are entitled to a protection for which they have paid in advance, and which includes their personal safety and the protection of their goods. In the present case there is particular ground for the application of the principle and for the liability of the corporation, inasmuch as all carriages in Paris pay a special tax, and this tax is peculiarly heavy in the case of such public conveyances as ply for hire in the streets. In Paris omnibuses do not belong to a number of different proprietorships, as here, but to one large company, and the contingent which that company supplies to the municipal recipts is enormous. The question is not only very interesting, but, to us Londoners, somewhat suggestive. We hear on all sides of complaints against our municipal authorities of a somewhat similar nature, and we also hear of the marvellous efficacy of the force of public opinion. When we find, however, that public opinion is inoperative, might it not be time to resort to the remedies of law ?-Globe.

COUNTY COURTS.

CITY OF LONDON COURT.
(Before Mr. Commissioner KERR).
PROUT V. HASLETT.

Damage to boat-Admiralty jurisdiction. THIS was a suit, brought under the County Courts Admiralty Jurisdiction Act, by the plaintiff, a lighterman at Woolwich, and owner of a boat called the Three Jacks, against the defendant, a resident at Woolwich, and owner of the yacht Ripple, for damage to the boat by the yacht in breaking from her moorings off Woolwich, and coming in collision with the boat, also moored off the same place. Evidence was given of the insufficiency of the chain of the Ripple, and of the collision, and a verdict entered for the plaintiff for the sum of 6l. with costs. This case was before Mr. Pitt Taylor, at the Woolwich County Court, on the second Nov. last, when his Honour delivered an elaborate judgment to the effect that he had no power to try it-all jurisdiction in collision cases (unless between boats or barges propelled by oars only) being now in the City of London Court, under its Admiralty jurisdiction. The case now came on before Mr. Kerr, in the course of which

His HONOUR remarked that, according to the law as laid down by Mr. Pitt Taylor, in which he entirely concurred, all collisions from Westminster to Sea Reach would now come before him.

COUNTY COURTS OF SURREY.
Nov. 17 and Dec. 12.
(Before H. J. STONOR, Esq.)
KNIGHT v. WAYTE.

Equity case

Clerk of the Peace.

J. Gordon.

What notice of appeal to be given

J. H. Barker.

Chester

Monday, Jan. 8.

H. Lloyd, Esq.

10 days

J. Walker.

Chichester

Tuesday, Jan. 2.

J.J. Johnson, Esq., Q.C.

10 days

E. Titchener.

Colchester

Friday, Jan. 5..

F. A. Philbrick, Esq.

8 days

J. S. Barnes.

Doncaster

Friday, Jan. 5..

Exeter

Monday, Jan.. 1..

10 days Statutory.

E. Nicholson.

Faversham

T. J. Bremridge. F. F. Giraud.

Gloucester

F. W. Jones.

Hythe

W. S. Smith.

King's Lynn

Kingston-on-Hull

Leicester

Ludlow

Northampton

Penzance

Monday, Jan. 1 Tuesday, Jan. 9 Monday, Jan. 8 Thursday, Jan. 11 Thursday, Jan. 4 Friday, Jan. 5. Tuesday, Jan. 9 Friday, Jan. 5

Saturday, Dec. 30

E. J. Meynell, Esq....
H. C. Lopes, Esq., Q.C.
George Francis, Esq.
C.S.Whitmore, Esq.,Q.C
R. J. Biron, Esq.
D. Brown, Esq., Q.C..
S. Warren, Esq., Q.C....
C. G. Merewether, Esq.
H. J. Hodgson, Esq.
J. H. Brewer, Esq.

7 days
8 days

Statutory.. 8 days 10 days

T. G. Archer.

R. Champney, jun. R. Toller.

H. Salwey.

W. Borlase. R. E. Moore.

J. Howard.

10 days

C. Hughes.

Wednesday. Jan. 3

H. T. Cole, Esq., Q.C....

8 days

Plymouth

C. Saunders, Esq...

14 days

Portsmouth

Tuesday, Jan. 9

Mr. Serjeant Cox

10 days

Rochester

Monday, Jan. 1

F. Barrow, Esq.

8 days

Friday, Jan. 5

J. D. Chambers, Esq.

10 days

Scarborough

Monday, Jan. 8

J. Middleton, Esq.

10 days

Shrewsbury

Wednesday, Jan. 3

Tewkesbury Worcester

Friday, Jan. 12

W. F. F. Boughey, Esq. J. Fallon, Esq.

14 days

Thursday, Jan. 4

Statutory. 10 days

Salisbury

MARITIME LAW.

F. T. Streeten, Esq.

W. W. Hayward.
F. Hodding.
J. J. P. Mody.
R. Clarke.

W. Winterbotham
R. T. Rea.

MERCANTILE LAW.

matter, as nobody, unless by accident, would let a time-policy run out before renewing it; but THE EXPIRY OF A TIME-POLICY OF INSUReven this precaution could not prevent litigation, as the re-insurance, in the actual course of busiANCE-A nice question, depending upon the exactness, was by no means necessarily to be effected hour of the shipwreck of a vessel which was in- with the same underwriters. sured by a time-policy, came before the Court of Common Pleas this week, in the case of Morton v. Wylie. The policy on the ship in question, the Lucerne steamer, expired at midnight on March 19, 1869, and it was disputed whether the wreck and total loss, which occured off Ushant, took place before the policy expired or after. The counsel on both sides argued from elaborate calculations as to when the ship could have been wrecked; the plaintiff, who sued upon the policy, contending that already on the 19th the steamer was amidst "the grave of rocks near Ushant, so that it would probably be wrecked before midnight; and the defendant arguing that on the afternoon of the 19th she had open sea before her. The crew had all been drowned, and the evidence was that of witnesses from the shore, whose observations, however, were made under the disadvantage of thick and heavy weather. Eventually the jury found for the plaintiff, holding that the steamer was lost before the policy sued on had expired. It is difficult to conceive a nicer question coming before a court of law, and it was apparently inevitable once the strange conjuncture of circumstances had occurred. At first sight it might be thought that re-insurance would have mended the

NOTES OF NEW DECISIONS. STOCK EXCHANGE TRANSFERS.-The Court of Common Pleas-Re Case v. M'Lennan-has decided bound to sign a transfer acknowledging the rethat a person selling stock at a certain price is ceipt of a larger price, where the transfer contains the usual memorandum explaining that the price mentioned is that paid by a sub-purchaser. The judges held that this memorandum had the effect of an interpretation clause, and that a seller who objected to the words "paid to me" and caused damaged by refusing to sign, so that the transaction had to be completed otherwise, was without a case. The usual Stock Exchange transfer is thus sanctioned; but as the words in question are too frequently a stumbling-block to the miscellaneous public, it might perhaps be advisable for the Stock Exchange Committee to consider whether a clause could not be framed getting over the difficulty more simply. Could it not be made to say expressly, chasers from me?" "Paid to me, or to intermediate pur

the purchaser with a draft of the intended underlease, and which should contain covenants therein mentioned, and also all such other covenants as were contained in the lease under which the vendor held the premises, and the purchaser was not to require the vendor to produce the freeholders' or the original lessor's title, or his (the vendor's) title, and any requisition as to the draft underlease was to be made in writing within seven days after the delivery thereof, otherwise it was to be deemed approved and accepted, and all objections waived, and in all cases time was to be deemed the essence of the contract. The purchaser was to pay 251. deposit, and complete on the 17th July 1871, or to pay interest from that day till the completion. If the vendor should be unable or unwilling to remove any objection, or to comply with any requisition, he should be entitled to rescind the contract on repayment of the deposit. The vendor delivered a draft underlease in due time, and the purchaser did not make any objection or requisitions as to such draft or otherwise as to the purchase within the prescribed time, but the vendor appears to me to have waived the benefit of this objection, although time was originally made essential (according to the cases of Boehm v. Wood, 1 J. & W. 420; Levi v. Lindo, 3 Mer. 81; Hunter v. Daniel, 4 Hare 420; Parkin v. Thorold, 16 Beav. 59, 69, 71; Wells v. Maxwell, 32 Beav. 408), and he did not insist on it at the hearing. After some delay the purchaser, by his solicitor, called for the production of the original lease to see that the Covenants in the draft underlease corresponded with the covenants contained in such lease, and at the same time objected that the description of the vendor in the draft underlease was insufficient. The vendor produced the original lease, whereby it appeared that the lease, which was dated 1846, was made to John Lester, and not to the vendor, and no subsequent assignment was then produced. The purchaser does not appear to have made any objection on that score at the time, but insisted on the objection already made by him as to the draft underlease, viz., the insufficiency of the description of the lessor and refused or neglected to complete until the vendor filed this bill for that specific performance of the agreement. Upon the hearing the defendant relied on the following grounds for resisting a decree :-First, That the description in he clearly proved, but the plaintiff then and there the draft underlease was insufficient, whieh I think supplied a proper description. there had been a misrepresentation of the preSecondly, that mises by the vendor's agent, and that I think he

failed in proving. Thirdly, that the lease showed that the premises were vested in a third person, the original lessee, and not in the vendor. The last objection the vendor met by producing an assignment to him of the lease dated the 7th Nov., 1865, by Charles M'Bean, but no mesne assignment or assignments whereby the lease became vested in M'Bean were produced or recited, and mention is also made in the assignment by M'Bean to the vendor of an underlease dated 2nd Nov. 1865, between the said Charles M'Bean and George Joseph Jennings, whereby the premises were demised to Jennings for the term of twenty-seven years less ten days, at the yearly rent of 371. 10s., which would be still subsisting, and not being mentioned in the agreement of sale, appears to me to be a valid objection to the completion of the contract, until it is removed. There must be an order referring it to the registrar to inquire and certify whether the plaintiff can make a valid underlease of the premises to the defendant, in pursuance of the agreement of the 29th June 1871, free from incumbrances, having regard to the lease and assignment produced, and the underlease mentioned in such assignment, or the bill must stand dismissed. Adjourn further consideration. No costs to either party to the present

time.

BANKRUPTCY LAW.

HALIFAX BANKRUPTCY COURT.
Friday, Dec. 22.

(Before Mr. Serjt. TINDAL ATKINSON, Judge.) Re WILLIAM JOHN HUGHES. Refusal by registrar to register a special resolution. The fact that a special resolution for liquidation by arrangement has been passed unanimously at a meeting of creditors, at which meeting no credi tor was present whose debt exceeded 101., will not make such resolution valid, so as to enable it to be registered.

In this case the first meeting of creditors, held on 23rd Nov., three creditors only attended and voted, having proved for debts amounting respectively to 12s. 6d., 61. 6s. 3d., and 4. 13s. There were other creditors whose individual debts exceeded 10., but who, from various causes, were absent from the meeting. The three creditors above men

of creditors the privilege of counting in the majority in value, but refusing to allow them to vote in the majority in number, it seems that the Legislature intended to guard against the mischiefs which would arise from a number of small and insignificant creditors combining and outvoting in number those whose debts were of such an amount as to make it just and reasonable that they should have the management of the estate in their hands. With reference to the point raised by Mr. England, the 293rd General Rule, as I read it, applies only to an "ordinary" resolution, enabling the creditors generally to pass, "in the absence of any enactment to the contrary," any resolution requisite for the conduct and manage ment of the debtor's estate, for which a special resolution is not required. In arriving at this conclusion, I regret to differ from the very experienced and learned judge of the Liverpool Bankruptcy Court (Mr. Serjt. Wheeler), who, in the case of Re Franckel (49 L. T. 114), in a case similar to the present, held that the special resolutions there ought to be registered, on the ground that "where the creditors are all of one mind, then the question of majority does not arise, and the resolutions are perfectly valid though passed by a number of creditors, the debt of each of whom does not exceed 101.," but it appears to me, for the reasons I have stated, that the creditors in cases where they are all of one mind, must be creditors qualified to vote, and that such information must be given to the registrar when the special resolution is brought in for registration, as to enable him to see that the requisitions of the statute have been complied with. I am, on these grounds, clearly of opinion that these resolutions ought not to be registered.

Appeal dismissed.

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.

66 A

TRANSFER OF STOCK.-The following letter, in reply to a letter published in the LAW TIMES, is taken from the Liverpool Daily Courier: great deal of comment has been provoked by the decision in the action of Case v. M'Clellan, but so far I have not seen any suggested improvement on the present system of transferring railway and other stocks. The letter of An Attorney' to the LAW TIMES, which was reprinted in the Courier a day or two ago, betrays a thorough ignorance of the subject, as I will show. In the first place, he assumes that the objectionable footnote' is appended exclusively to the form of transfer adopted by the Liverpool Stock Exchange,' and says that neither Birmingham nor Manchester transfers have any such footnote. As far as Manchester is concerned, I dispute his assertion. Transfers are used in Manchester, London, Liverpool, Glasgow, Edinburgh, and other places, both with and without this footnote - although brokers do not consider it by any means essential. As for Birmingham, where Attorney's' experience seems to be the most extensive, so few transfers ever come from there that it is almost a matter of indifference whether they have the note or not. 'An Attorney's' opinion is that this footnote is not addressed to the seller, but (he would'venture to suggest ') to the last purchaser. I will venture a further suggestion, viz., that it is not addressed to either one or the other particularly, but appended for the information of both, and as a guide to anyone who may have to write out the transfer. The suggestive picture which

An Attorney' draws of the field this decision opens out for fraud is brilliant in the extreme. The imaginative effect of two or three stockbrokers in Liverpool having a particular stock to sell,' and putting a much larger sum in the transfers than the real selling price,' and thereby creating a fictitious value of that stock,' and their knowlege of 'how to avail themselves of the circumstance,' is simply amusing. It would puzzle Attorney' to demonstrate this. Suppose a broker has 50,000l. of a particular stock' to sell, and (by 'An Attorney's' mode of reasoning) wishes to create a fictitious value for it by fictitious considerations.' How is he to do it? As a seller of the stock he has no control over the

fourths in value.

England (solicitor) appealed against this decision, and contended that under the General Rule 293, Bankruptcy Act 1869, the special resolutions in this case were duly passed, and ought to be registered. That rule provides that when any resolution is required to be passed, or any act to be done by the creditors present at any meeting, in the absence of any enactment to the contrary, the majority required for the purpose is a majority in value of the creditors present.

this case

donors in your columns.

EDWARD S. ALDERSON.

CLAIMS BY SHERIFFS' OFFICERS FOR FEESLIABILITY OF ATTORNEYS.-Since the decision of the learned judge of the Worcester County Court, in favour of the officer (Bennett v. Snow and another, LAW TIMES 2nd Sept. 1871) much correspondence and contrary rulings have appeared in your columns, and, as you say you hope "the discussion His HONOUR.-I am of opinion that the regis- will be continued until a satisfactory settlement is trar has acted quite rightly in refusing to register arrived at," I venture to refer to the following these resolutions, which, being special, require, numbers of your paper in aid of pending appeals under General Rule 275, Bankruptcy Act 1869, on the subject, viz., 2nd Sept. 1871, p. 331; 30th before the court can take cognisance of them, to Sept. p. 386; 7th Oct. pp. 396, 402; 14th Oct. be signed by a "statutory majority" of the credi- p. 408; 2nd Dec. p. 88. The law of distress and tors assembled at the meeting at which such reso- fees allowed to be taken thereunder may also, by lutions were passed, and it appears to me that in way of analogy, be referred to. 8 Anne, c. 14, s. 1, no such statutory majority existed. enacts that "no goods, &c., shall be liable to be Under Part 6 of the Act, which treats of liqui- taken by virtue of any execution, on any pretence dation by arrangement, sect. 125, sub-sect. 1, a whatsoever, unless the party at whose suit this general meeting of creditors may pass a special execution is sued out, shall before, &c., pay to the resolution as defined by the Act, and declare that landlord money due for rent at the time of such the affairs of the debtor shall be liquidated by execution." Moreover, the sheriff must levy arrangement; and by sub-sect. 2, all the provi- for and satisfy the rent before the execusions of the Act relating to a first meeting of cre- tion creditor can take anything. How, then, ditors in the case of bankruptcy, including the when there is not enough to satisfy rent, is description of creditors entitled to vote, are to it possible to say that there has been any levy at apply and further by sub-sect. 4, the special all under the execution? It may equally well be resolution passed at such meeting is to be pre- argued that a sheriff's officer (without any instrucsented to the registrar, whose duty it is to inquire tions beyond those furnished by a ca. sa.) might whether such special resolution has been passed have arrested and taken to gaol a wrong man and in the manner directed by the section; and then claim from the attorney issuing the writ his fees. follows sub-sect. 14, which enacts that in calcu- Again 57 Geo. 3, c. 93, s.1 (Expenses of Distresses) lating a majority on a special resolution for the enacts that "no person shall make any charge for purposes of the section, creditors whose debts any act, matter, or thing, mentioned in the scheamount to sums not exceeding 107. shall be dule, unless such act shall have been really done." reckoned in the majority in value, but not in the With regard to the absence of " hardship on majority in number. On looking at the schedule attorneys, inasmuch as they can charge their of forms to the Act (No. 114), I find in the "list of clients or get the sheriff's fees beforehand" creditors to be used at every general meeting," a alluded to by one of your correspondents, my column headed "Number of assents of creditors answer is, that such a remark is quite beside the whose debts exceed 101.," clearly to my mind show-question, because sheriff's officers take care of ing that, whether by agreement without division, themselves out of the first assets; and I maintain or by a vote determined by a majority, all credi- that, if there are no assets, they cannot legally tors whose debts do not exceed 10l. are to be charge. carefully excluded in the numbers taken. In making this distinction-namely, giving this class

AN ATTORNEY OF FORTY YEARS'

EXPERIENCE.

A few

2 or 3 per cent on the purchase if the market have, save a loss to the operator of 10., the amount of extra stamp incurred, and perchance of happened to be a falling one? The seller of the stock to the operator would certainly not be misled by it. The clerk of the company who had to register the deed would look upon it as an error, and only concern himself to see that the stamp was sufficient. No other eyes would necessarily see the transfer except those of the operator himself. It requires a great flight of fancy to picture, say, the directors of the North South by East Junction Railway Company making heavy purchases in their stock on a tip' from their transfer clerk to the effect that Mr. Contango had been buying their stock 20 per cent. over market value according to the consideration in his transfer. words are necessary to explain to the uninitiated how these discrepancies of consideration sums between transferor's price and transferee's price arise:-A. sells a lot of stock to B., but before settling day arrives the stock has been resold twenty times, X. finally being the purchaser, and the only one in the lot who has bought the stock to pay for it. In order to avoid twenty different transfers, and the delay consequent upon them, A. and X. must be brought together. As only one consideration can be inserted, the law has fixed this consideration to be the sum to be paid by the buyer. If A. cannot understand the discrepancy he is referred to the footnote explaining the sub-sales. If he still has a scruple to put his name to a legal lie,' he has merely to strike out from the sentence in consideration of the sum paid to me by Attorney' writes as if this discrepancy was quite a new feature, confined to Liverpool alone, and of rare occurrence. It has always been so, and must continue so, and occurs everywhere and in five transfers in every ten; but the sum inserted is as often under the amount the seller receives as over it.-Yours, &c.,

of

"Dec. 21, 1871."

'the words 'to me.'

D.

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Milk.

NOTES AND QUERIES ON
POINTS OF PRACTICE.

NOTICE. We must remind our correspondents that this
column is not open to questions involving points of law
such as a solicitor should be consulted upon. Queries will
be excluded which go beyond our limits.
N.B.-None are inserted unless the name and address of the
writers are sent, not necessarily for publication, but as a
guarantee for bona fides.

Queries.

37. CONVEYANCE.-Will "Z. Y." favour me with further references on this point as Staveley v. Alcock appears to decide that persons having parted with their interest in land have lost all power to distrain, and not as "Z. Y." alleges, that the person who becomes entitled to the land does also become entitled to distrain for rent accrued before the commencement of his title. I would direct his attention to Sugd. V. & P., in an old edition of which the contrary seems laid down (4th edit., p. 204.) T. S.

50. CONVEYANCING.-Can you or any of your readers answer the following point in practice: The purchaser of property sends in his signed requisitions. Should the vendor return these signed requisitions or should he retain them, returning a copy thereof with his Which is the more advisable E. A. S.

signed answers thereto ?
course for the vendor to adopt?

THE process of English law by which a man tried by jury, convicted of a capital offence, and sentenced to death by the judge, may or may not be subsequently reprieved at the pleasure of the Home Secretary, has frequently been denounced. But as compared with the process by which condemned criminals in America are either snatched from the gallows or slowly tortured before hanging, we have much to be thankful for. It is not long since we called attention to the case of the

murderer Messner, the expectation of whose hanging on certain dates was made the ground. work of an extensive system of betting, behind which were men pulling the wires, dragging the wretch out to the scaffold, and then getting the execution postponed to suit the state of their "book." Such a case of deliberate villainy is, we trust, rare; but instances of men lying under sentence of death for a year, or even two years, are as common as slang in the American journals. At the date of the despatch of the last mail, for example, there was confined in the County Court House, New Jersey, a man named John Ware, who was arrested fifteen months ago on the charge of shooting his father. Ware was tried, found guilty, and sentenced to death; but as soon as the date of the execution was fixed, his counsel moved for a writ of error, and obtained a new trial. "The misery of trying a metaphysical case before a mutton-headed jury in Jersey," was, says a friendly reporter who recently interviewed Ware, illustrated by a second conviction, and the twicetried man was sentenced to die on the 15th of this

month. But the counsel have moved for a fresh

writ of error, and if they have been successful the wretched parricide is still lingering on, dying daily with the dread of the gallows overhanging him.-Globe.

The Evening Standard publishes the following from its Paris correspondent:-"M. Lachaud, the well-known crimin: 1 barrister, who defended Tonnelet, has thought proper to rush into print apropos of Prince Bismark's dispatch. I subjoin his letter, which is addressed to the Droit:'Paris, Dec. 24. My dear Confrère,-For some weeks past I have been reading, with painful emotion, the violent recriminations of M. de Bismark against the decisions of the jury in the cases of Tonnelet and Bertin. Every morning I expected to find that the Government would not

have left them unanswered, and this morning read

ing in the papers a last dispatch equally unfair towards our judicial administration, and threatening for our unfort nate provinces still occupied by the enemy, I have been unable to withstand the desire to

refute such attacks. I acted as counsel for Tonnecounsel for Bertin, and that gives me, I think, a claim to interfere to state the truth. The sense

let; my young secretary Charles Lachaud was the

of right is not extinguished in France, thank God! it is because it has survived all our disasters that honourable men have. in their soul and conscience, acquitted Tonnelet and Bertin, after hearing the defence of the two prisoners. M. de Bismark and the German papers completely over

LEGAL EXTRACTS.

AN ARGUMENT FOR THE FUSION OF LAW AND EQUITY.

(From the Tmes.)

WHEN the long-promised fusion. of law and equity becomes a fact, when, in other words, the of past generations delighted to shelter themnarrow rules under which the common law judges selves are merged in the wider principles of justice elaborated by successive Chancellors down to the time of Eldon-suitors will not be dismissed from one court and told they may get justice by applying to another. indeed, often happen now, for counsel and attor This anomaly does not, neys are usually able to advise their clients where they ought to carry their complaints; but every now and then a case occurs, to our scandal, and before Lord Penzance. A Roman Catholic priest the last instance was no later than Thursday, propounded the will of an aged widow, of whom he had for some years been the confessor; and under the will he claimed to be the appointee and residuary devisee of ertates said to be worth 70001. Catholic, opposed the grant of probate, on the a year. A nephew of the lady, himself a Roman ground that the will had been obtained by undue influence exercised by her father confessor. Some evidence was offered in support of his opposition jury that there was no evidence touching the real to the grant, but in the end the judge directed the issue. "There was," said Lord Penzance, " very cast on the nephew the burden of proving the wide room for suspicion;" but the law, he added, cercise of such an influence by the priest over the mind of the testatrix "that she had no will or mind of her own," and of this there was no evidence whatever. There might, however, be, the judge suggested, ground for applying elsewhere

for a declaration that the testatrix gave her bounty to the priest on secret illegal trusts, which made her gift void; but this question would have to be raised before another court, the Court of Chancery, and the jury in the Court of Probate had no choice but to establish the will. The reverend confessor is, accordingly, for the time, invested with all the advantages of residuary devisee of the widow, but, after the broad hint of the judge, it may be presumed that something more will be heard of the case in Lincoln's-inn.

The facts of the case before Lord Penzance were exceedingly simple, and no doubt necessitated the verdict he directed the jury to return. He was sitting as a judge of the Probate Court, and had to administer the law belonging to that branch of before the Court of Chancery on the same facts, our judicial system. Had the case been brought a different result might or might not have been pronounced; but, what is much more material, had the case been in Chancery, a Vice-Chan cellor would have been able to insist on the production of evidence into which the Court of Mrs. Jane Connelly, the testatrix, was the second Probate had no right to inquire. It appears that wife and widow of a Mr. Charles Connelly, who died in 1850, leaving a son, issue of his first marriage. Mr. Connelly was the possessor of the large estates in dispute-estates which were said to have been bought out of a fortune made by his father at the Chancery Bar, and in duty bound therefore, perhaps, to pay toll to the law. On the if his son had left issue the property would have father's death they passed to his son for life, and however, had the right to dispose of them if his devolved on his issue in remainder. The father, son left no issue, and by his will he gave power to his widow to dispose of them under the same contingency. The father, as we have said, died in 1850, Father Parfitt, a young proselyte and priest, and now the inheritor of the property, having taken up his residence with him four years earlier. Ever since 1850 Father Parfitt lived with the widow and fessor and latterly as her regular confessor and her stepson, acting at first as her occasional condirector. Early this year the stepson died, never having married, and a few days after the widow bulk of the property she had power to dispose of died, and it then appeared that she had left the tion, according to his own statement, disputed the to Father Parfit. Her nephew, after some hesita will, on the ground that the confessor had abused his position to influence the mind of the testatrix this, and the father himself swore that he had in his favour; but there was no direct evidence of known nothing whatever about the making of the disputed will. All that could be proved was that the testatrix had said to a niece, about the time she made her will, that " they would not let her tell her husband's relatives that she might expect to be able to dispose of his property in conse quence of her stepson dying without children, disappointment which must follow the discovery although she wished to warn them against the of this fact; and that on another occasion the old lady had said that money could not be left for masses, as that was illegal, but it might be left to a confessor, who could be told privately what to do with it. Neither of these statements, however, touched the issue in the Court of Probate, and the will was confirmed.

Lord Penzance told the jury that to prevent the grant of probate there must be evidence that the confessor exercised such influence over the testatrix "that she had no mind or will of her own." This

is not the doctrine of the Court of Chancery. It is enough that circumstances of confidential relarelation be of confessor and penitent, physician tionship are established in equity, whether the and patient, lawyer and client, guardian and ward, or parent and child. A gift from a person under such influence to the other possessing influence will be declared to be taken by the latter as trustee not perfectly independent of influence at the time only, if it is shown that the mind of the giver was of the gift. It is not necessary to prove that his will was subjugated by the other; it is enough to show that it was disturbed, and hence arises in to prove the independence of the giver. We may practice an obligation on the side of the recipient refer to a case in another column (Turner Collins) where the Lord Chancellor, speaking of bounty bestowed by a child coming of age upon a parent, says, "The court must be satisfied that actual deed of the child, and intended to have the the deed (conferring the bounty) was the real and operation given to it; must also be satisfied as to how that intention on and the count the part of the child was produced." It seems. gone to the Court of Chancery, asking that Father therefore, that if Mrs. Connelly's nephew had Parfitt might be declared a trustee for the heir-atmight have been obliged to prove the independence law and next of kin of the testatrix, the confessor of the lady's judgment. In addition to this the other aspect of the case to which Lord Penzance Court of Chancery would have dealt with that not obscurely referred as beyond the scope of his own jurisdiction. The testatrix told her niece