« EelmineJätka »
and elaborate argument the appeal was respited by consent, in
A BARRISTERS' GUILD. order that a case might be stated for the opinion of the Queen's
A SECTION of the Bar is doomed, unless redeemed, to sink beneath Bench.
the contempt of the public. Malpractices may go on for a time
unchecked, because undetected. The older men may put their A CONTRIBUTOR writes: “A question of no little importance to the consciences in their pockets, or entrust them to that convenient Bar arises in bankruptcy cases in the County Courts. In the individual the clerk; and younger men, finding that by some London Bankruptcy Court the appearance of counsel before the process business is showered upon those who have so entrusted their registrars is a matter of daily occurrence, and its propriety cannot consciences to their pockets or their clerks, may gradually become be called in question. But there all the registrars are members of accustomed to view the possession of a conscience, and too nice a the Bar, and it is not considered a breach of etiquette for counsel
regard for professional respectability, as forming a barrier to to appear before them, seeing that by their profession they are advancement. Advancement is the end and object of a harrister's equals, while, by the office they hold, the registrars are, as it were, existence, and in pursuit of this desirable consummation a path official superiors. In the County Court where the Judge himself already well trodden is followed, and the number of “shady" sits and adjudicates, counsel, of course, appear; but a great deal of men at the Bar gradually increases, until now, at this present the bankruptcy work in County Courts is done by the registrars, moment, in the particular class to which we refer, the dark elements and these are invariably members of the lower branch of the predominate, and will continue to predominate to the enormous Profession, and for that reason it is supposed to be contrary to the detriment of all concerned, unless steps are taken to stop the custom of the Bar for any counsel to appear before them. It
abuse by the only available means-moral coercion. is an established rule Ithat before the Chief Clerks in Chancery --the Chief Clerks being solicitors-no counsel appear so that
Now there is undoubtedly a moral coercion of limited influence it often becomes necessary, where from the importance of the
existing at the present time. Men who do questionable things issue the services of counsel may be thought to be required,
and excite the suspicion of their brethren of the same cloth, are to refer the matter from the Chief Clerk to the Vice-Chan
avoided and made extremely uncomfortable. But this does little. cellor of the particular court in which the suit is instituted.
A man who finds that he has excited suspicion, and has become a If the registrars of the County Courts exercised only the somewhat
marked man, is likely to rush into extremities rather than attempt matter of form jurisdiction exercised by the Chief Clerks in
to amend his ways--to drag down the reputation of the ProfesChancery, the want of counsel would not be much felt; but under
sion rather than clear his own. This ought not to be possible. the Bankruptcy Act of 1869 the Judges of the County Courts have
There ought to be such cohesion among the members of the Bar within their districts exactly the same jurisdiction and powers as
that a man who could venture on bold malpractices could be exthe Chief Judge in Bankruptcy; and among other powers that of
tinguished spontaneously as it were. A society outside the tri.
bunals of the Inns of Court should be formed, before which comdelegating to the registrars of their respective courts full powers to adjudicate in all cases in bankruptcy. In London the Chief
plaints against barristers should be carried, previous to any petiJudge has exercised this power, and in the country districts the
tion being preferred before the Benchers. Many things may be Judges of the County Courts have done the same; so that in most
done which tend to degrade the Bar and lower the Profession in cases of bankruptcy the registrars of County Courts become vir
the eyes of the world, but which fail to amount to tually the sole judges. The bankruptcy law is full of the nicest
crime cognizable by the Benchers of the Inns of Court.
And it would not be difficult to constitute such a society. The technicalities, and questions will always arise when it may be supposed the attendance of counsel would give greater
legal is unlike any other profession. It is at present pretty much satisfaction, and would be more conducive to the ends of
centralised or concentrated. In term time a square mile near justice than by the appearance of attorneys.
Are the public
Temple Bar would enclose nearly all practising barristers. There to be deprived of the services of counsel simply because
is nothing, therefore, to prevent all practising barristers from the person who sits as Judge happens to be a solicitor?
joining a society or guild, which shall have a committee for the And that such deprivation is often prejudicial to the interests of
purpose of investigating the proceedings of members of the Bar, justice is known to none better than to solicitors. Of course the
and determining whether they are to be upheld or County Courts have brought into existence a class of solicitor.
demned. We at once admit that this would complete the trades
unionism of the Bar. The fact is that the Bar must resort to advocates, and, so far as we know, many of them do their work admirably; but, as a rule, the large body of solicitors do not prac
trades unionism to protect itself—the honest must avail them
selves of it to check the dishonest; and there is a great deal more tise advocacy, and are likely to suffer much if counsel decline to appear for them in cases of bankruptcy in the County Courts.
reason in barristers seeking to prevent other barristers from The etiquette of the Bar is certainly a most desirable thing to up
accepting smaller fees than the etiquette of the Profession allows, hold, and the high standard of professional morality at the Bar
than in workmen saying, where no etiquette exists, and there is has, more than anything, obtained for the Bar the high repute in
no tacit mutual obligation universally imposed on entry into the which it is universally and deservedly held. And for this reason
particular society that none but fixed limits of remuneration shall the utmost care should be taken that nothing derogatory to the
be observed, that work shall not be done under certain wages, Bar should be done by members of it. But then comes the
arbitarily fixed upon by a particular clique. For centuries
question, Is it derogatory to the position of counsel to
the regulations hemming in the Bar have been observed. before a
appear person who is invested with full judicial powers simply because he
They are known to ereryone who puts horsehair on his head happens to be a solicitor? The question must, sooner or later, be
and a gown on his back. On entering the Profession a man is answered, and that by competent authority. If the matter were
presumed to take an oath of allegiance to the traditions of it, to submitted to the Benchers, perhaps a satisfactory answer would
respect its etiquette, to cherish its fair fame, and to resent and be obtained. But to us it does not seem that there can be any.
repel any invasion or aspersion upon its honour. How this prething to prevent the appearance of counsel in cases of the nature
sumption is rebutted by evidence of what is done daily under the alluded to. It is not before a solicitor that he appears, but before
public eye we now know, and every honourable member of the a Judge. It is not the past, but the present position of
Profession blushes for his order. But blushing is of little use; the individual who adjudicates that we should consider. Besides,
strong measures must be taken to place honourable men above if counsel may appear before lay arbitrators, surely there
suspicion and to utterly exterminate those practitioners who lower
their intellect and their attainments, to undermining honest can be no objection to their appearing before registrars of County Courts sitting as Judges in Bankruptcy. Barristers, we
business and rendering vain the patience of honest men. believe, are constantly in the habit of appearing before lay arbi- In answer to the proposition to form a guild it may be said that trators in references. Again, under a recent statute a solicitor
Circuits and the Benchers' Courts are sufficient for all purposes. may be in the commission of the peace, and as such may, of course,
To this it is surely sufficient to reply that the very fact that such sit in petty sessions and decide cases, and even may be appointed gross abuses exist, shows that these courts are to a large extent chairman of quarter sessions. Barristers are often called upon to
impotent. The jurisdiction of the circuit mess embraces those appear before magistrates in petty sessions, and in most counties
only who belong to the mess, and the extent to which its punishhave exclusive right of audience in quarter sessions. Are they to
ment is carried does not go beyond expulsion, the effect of which be no longer permitted to do so, if on the bench there happens to may, or may not, be appreciable. The Benchers' Court, on the sit a solicitor? We certainly think not. It is not in his capacity
other hand, is a tribunal before which it is impossible to go withof solicitor he sits on the bench; it is in the exercise of his
out the fact being generally known, and the unlucky supposed privileges as a magistrate. So also we think that in cases arising
delinquent bearing, in his mind at least, the brand of the indignity, under the Bankruptcy Act in County Courts counsel have full
whilst it is a fact in his history which his considerate neighbours right to appear before the registrars though they are solicitors,
and friends are not likely to forget. We are not surprised, therebecause they do not adjudicate in the latter capacity, but as duly
fore, that petitions to the Bench should be discouraged. They qualified and responsible Judges. The subject is of some weight, are weapons which may be maliciously used to effect personal and merits serious consideration. Not only is the Bar interested
objects of the meanest character. in it, but also the public at large. We do not wish to see barristers Whilst, therefore, we have the partially operative court 'of a doing anything that may be construed to their disfavour; on the circuit mess on the one hand, and the dangerous and ponderous contrary, we never shrink from our duty in denouncing any mal. machinery of the Bench on the other, it is quite clear that some practices that occasionally come to light. At the same time it is sort of preliminary inquiry should be possible, by means of which only fair that counsel should enjoy fully their rights and pri- an abuse should be investigated and the blame, if any found to vileges, and this the more especially since in our opinion the exist, placed on the right shoulders. If a society of the nature we welfare of the Bar andthe interests of the public are closely allied." have indicated were formed, no difficulty could be experienced in
carrying out inquries in a secret and delicate manner. If offences were ascertained to have been committed of a trifling character, a communication with the offending party would satisfy the requirements of the case. Should the offence turn out to be more serious, he would be sent before the Bench, whilst the violation of the laws of the society, brought home to him, would be sufficient to induce all other barristers to refuse to hold a brief with him in any case whatever.
We believe we are proposing nothing Utopian. A society formed as we suggest would be the best security which could be provided for the preservation of the honour and reputation of the Bar. It would also serve as a useful check upon the irregular practices of attorneys in instructing barristers, which, as a matter of course, would also be brought before the society. We should be glad to receive the names of barristers anxious to join the Guild, and a number of consentients being obtained, the matter might be placed in private hands to be brought to maturity.
A COUPLE OF LEGAL QUARTERLIES. (a) On taking up these two volumes the first remark which suggests itself has reference to the business of the printer and binder. The American periodical is printed on what we believe is called toned paper, cut at the edges and in limp covers, whilst the English review is, though excellently printed, issued uncut, and in the most obstinate order of cover. We have been long anxious that American improvements in the art of book-producing should be introduced into this country.
The contents of the two volumes, however, are of about equal merit, the preponderance of interest being decidedly on the side of our own Law Review, which contains the only exhaustive biographical notice we have seen of the late Sir John Rolt. The lamented Lord Justice was one of the self-made men for whom we almost involuntarily entertain a strong feeling of respect. The author of this
paper tells us that Sir Jony commenced an autobiography, embracing the salient points of his life, shortly after his elevation to the Bench, and that it was carried to a conclusion during his illness. The first passage of this autobiography exhibits Rolt's ingenuous frankness, for speaking of his parentage he says,
My father was always called a merchant by those amongst whom I lived, but my own impression from all I heard and recollect was and is, that he was a trader, supplying wealthy natives in the interior of India with furniture and other European commodities.” Concerning his schooling he is equally candid, and his biographer says, “ It will be seen how small a share was due to school work in the training of a mind not inferior to those of the best of his contemporaries in disciplined vigour, in acuteness governed and tempered by sagacity, and the skill to grasp and deal with the most complicated questions presented by the business of life.” He was drilled in the most elementary portions of the Eton Latin Grammar, and up to vulgar and decimal fractions in arithmetic. The defects of his education were never repaired. Later in life, as he tells s, he bought a Latin dictiontionary, and for months endeavoured almost daily to hammer Latin into English-" But I had no one to whom I could say what I was doing-certainly no one to criticise--no one to encourage by praise when right, and by correction when wrong. It was too cheerless, and I gave it up without any advantage from the time I had sacrificed to it.” As to the change of his religious and political views, the transition from Radicalism and Dissent to Conservatism and Church membership, seems to have been natural and well considered. Rolt's career, from the time of entering Sharpe's chambers as a pupil, and his first brief from Field and Company, to taking silk and attaining to the Bench, is known in outline, and we have not space to fill up the details, for which we must refer our readers to the
But as to the qualities which enabled him to gain such high professional distinction we shall give an explanatory passage :
“ He himself,' says the writer, "attributes his success in life to his rarely, if ever, attempting any work save that of doing as well as he could the duty that lay nearest him; and in a sense this may partly be accepted as the true theory. Within the limits of personal and professional honour (and by none could those limits be more strictly observed), no one more constantly and strenuously than Rolt strore to win his client's case. But of course this was far from being all. He was not a great orator; but his dignified aspect, his agreeable tones and winning manner, were eminently calculated to please and to inspire confidence; and though his style rarely rose above the colloquial, his case was put with a neatness, a precision, and force that were all his own. He could hardly, I think, be called a consummate lawyer; at least, he had no very great amount of legal book-learning; but of law as a working system, controlling, under maxims not always to be found in books, and under influences sometimes too subtle to be described, and which must be felt in order to be understood, the actions and ways of men, he was a thorough master. Hence, he accurately
discerned all the prospects and probabilities of his case.
All the points he saw in their due proportion, not exaggerating nor unwisely insisting upon the weaker or the less important. His judgment was sound, his tact refined, his perceptions rapid. Facts were quickly understood, and as quickly converted into an argument. His mind was flexible and the disposition of its forces was readily changed when circumstances so required. He was of those advocates who think much of their clients and little of themselves, who fight for victory and not for applause, and are often rewarded with both."
An important contribution to the literature of the criminal law is given by the pen of Mr. C. S. GREAVES, Q.C., as a commentary on the case of Reg. v. Child (24 L. T. Rep. N.S. 556), which, in his opinion, diminishes the usefulness of sect. 7 of 24 & 25 Vict. c. 97. This section says that, “whosoever shall unlawfully and maliciously set fire to any matter or thing being in, against, or under any building, under such circumstances that, if the building were thereby set fire to, the offence would amount to felony, shall be guilty of felony.” As far as we have comprehended the ground of Mr. GREAVES's quarrel with Reg. v. Child, it is this—that the Judges held in that case that the jury having found that there was no intent to injure the house, but only the goods and their owner, there could not be a conviction under sect. 7, whereas Mr. GREAVES contends that the section includes every case where the consequence of setting fire to goods is the burning of the house. “In the present case,” says Mr. GREAVES, “the jury found that the prisoner was guilty, but not so that, if the house had caught fire, the setting fire to the house would have been wilful and malicious; and the facts are a malicious setting fire to the furniture in the house, and the house would almost certainly hare been burnt had not the police interfered, and (for the purpose of this question) we must suppose that the house actually caught fire. We have, then, a malicious setting fire to the furniture. Now, if the burning of the house by it is to be considered one act, we have a malicious burning of the house. But if the lighting of the fire, and the setting fire to the house, are to be considered separate acts, the malice with which the furniture was set on fire extended to the setting fire the house, as matter of law. Quâcunque via, then, the burning of the house was malicious in point of law, and the finding of the jury to the contrary was null and void. Both the direction to the jury, and their verdict, were erroneous, and on the facts prored, the court ought to have affirmed the conviction."
In addition to the valuable papers already mentioned, there is a curious article on Legal Education, in which it is suggested that everyone ought to be made familiar with the main principles of our laws. The notions of the author we take leave to call absurd. He proposes that every student at our universities should be compelled to pass an examination in law. He also proposes that, assuming no existing text book is efficient, Mr. Justice Willes, Sir BARNES PEACOCK, and Sir H. S. MAINE, should superintend the production of-a text book! If Mr. Justice Willes were to undertike in earnest all the work which an admiring country would cast upon him, he would be either a veritable legal Hercules, or break down deplorably under the enormous weight of his burden. Our author appears, too, to be somewhat of an exception to ordinary law students. He was “thrilled" when he read the old reports“thrilled with a feeling of pride when first dawned on our minds the fact that we were members of a profession whose old masters wielded our language with such skill and grace, who expressed their views with as much charm as clearness, and who have left us examples unsurpassed in literature for power and grandeur." Verily our friend's lines fell in pleasant places. All the crookedness of our jurisprudence is to be made straight by“ law reform," and the legal education of the people. " The only great difficulty in the way of all law reform is" we are informed, “the indifference of the people," which the writer attributes to ignorance. “ Remove this ignorance, the foundation of the present stumbling-block, and the vis inertice of the superincumbent indifference would ipso facto be overcome.” This is grand, to say the least, and it would be a good way to begin the enlightenment of the people to inform them that by removing the foundation of a stumbling block, the Latin description of a superincumbent something would by another Latin construction be overcome. This is reform of the riglit sort.
We can only briefly notice in conclusion that the English Review contains articles on The Co-operative Societies Act of 1871 (by Mr. Brabrook, Assistant Registrar), on the Notes to Wms. Saunders, the Law of Pawnbroking, the ouse of Lords, the Statute of Frauds, Nationality and Domicil under the Conflict of Laws, and Local Courts and the bounds of their Jurisdiction (by Mr. SerJt. Pulling.)
The American review contains but four articles, all of consider. able length, dealing respectively with Estoppel of a Tenant to deny his Landlord's Title, Misunderstandings of the Civil Law, Doubtful Points under the Bankruptcy Law, and Married Women. They are all able, and, as far as we can judge, exhaustive. The author of the paper on Married Women contemplates the speedy emancipation of that class of ladies from the trammels of the law. He says, “The law of the status of women is the last vestige of slavery. Upon their subjection it has been thought rests the basis of society; disturb that, and society crumbles into ruins. By the Married Women's Property Acts, the first blow
(a) The Law Magazine and Law Review. November 1871. London: Butterworths.
The American Law Review. October 1871. Boston: Little, Brown, and Company.
has been struck. The cheek of the idol has fallen to the ground; the thunder is silent, and the earth preserves its accustomed tranquillity. The huge idol will sooner or later be broken to pieces." That is decidedly forcible.
A large portion of the volume is devoted to a digest of English and American cases which must be useful to all lawyers.
MARRIED WOMEN AND THE MUNICIPAL FRANCHISE. A Case which came before the court recently held at Abingdon for the revision of the list of burgesses for that borough, involves a point of some interest and importance, both to those persons who have constituted themselves the advocates and the champions of what are now popularly known as the rights of women, and to tho:e married women who are separated from their husbands, and who may be desirous of possessing municipal privileges. In the case referred to the name of a certain married woman living apart from her husband had been inserted in the burgess list, and her right to be a burgess was claimed on the grounl of her being a duly qualified occupier of a house in the borough. The name was, however, objected to, and in support of the objection it was urged that a married woman is disqualified for being a burgess, that her occupation of a house must be deemed to be the occupation of her husband, and that she is so disqualified although she may be living apart from him. On the other hand it was contended that under the Municipal Corporation Acts marriage constitutes no disqualification for becoming a burgess, the only disqualifications mentioned in those Acts being that the person claiming the right is an alien, and the receipt of parochial relief or other alms within a specified period. It was also contended tha, inasmuch as the Municipal Corporations Amendment Act of 1869 provides that every person of full age who shall have occupied within any borough a house or certain other buildings mentioned or referred to in the Act for the prescribed period, and who has been rated and has paid rates in respect of such house or other buildings shall, if duly enrolled according to the provisions of the Municipal Corporation Act (5 & 6 Will. 4, c. 76) be a burgess of the borough, and as the 9th section of the Act of 1869 provides, in effect, that the word person shall include wo nen as well as men, the mere occupation of the house by the clai nant in this case-she having been rated, and having duly paid the rates in respect of it—was sufficient to give her the right to b: enrolled as burgess; for that, although for the Parliamentary f anchise a person must occupy either as owner or tenant, the word as owner or tenant" do not occur in the Municipal Corporati n Acts, and that although the tenancy of the house, that is, the right to occupy it, may have been in law the husb.und's, the actual occupation had been by the wife. The court haring heard the arguments, adjourned to consider its deci. sion, and ii the end the name was retained. As the point raised in the case is a novel one, we propose shortly to discuss it from a legal point of view, and also to inquire how far the decision of the court can, from the same point of view, be supported. It is clear that under the Municipal Corporation Act (5 & 6 Will
. 4, c. 76) such a point coull not have been raised, as that Act, in making provision with regard to the municipal franchise, employed the words “male person ” which had, of course, the effect of conferring tha: franchise on men only. The 9th section of that Act, which specified the persons who should be entitled to the fianchise, and the conditions upon which it might be obtained, was, however, repealed by the 1st section of the Act of 1869, in which the words“ male person ” do not occur and which instead of the former provision enacts that “every person of full age who on the last day of July in any year, shall have occupied any house, warehouse, counting house, shop, or other building, within any borough during the whole of the preceding twelve calendar months," and who shall have fulfilled the conditions therein ment'oned, shall be a burgess and a member of the budy corporale of the mayor, aldermen, and burgesses of the borough; and the 9th section of the same Act provides that, both in that Act and in the 5 & 6 Will. 4, c. 76 and the Acts amend'ng the same, “ wherever words occur which import the masculine gender the same shall be held to include females for all purposes connected with and having reference to the right to vote in the election of councillors, auditors, and assessors." There can, therefore, be no doubt that unmarried women and widows who occupy a house or other building within the meaning of the statute just mentioned, and who have duly fulfilled its conditions and requirements, are entitled to the municipal franchise. It is equally free from doubt, we imagine, that married women who are living with their husbands are not entitled to that franchise, as they can neither be occupiers of a house or other building within the meaning of the Act, nor be in a position to fulfil the conditions and requirements which it prescribes. But, how does the case stand with regard to women who are not living with their husbands? In dealing with this point, it will not be necessary to refer to more than two cases of separation, viz., the case of a separation under a judicial sentence of the Court of Divorce and Matrimonial Causes, and the case of a separation by mutual consent of the parties. With regard to the
first case, it must, we take it, be admitted that, inasmuch as it is a well known principle that husband and wife become, by the act of marriage, one person in the contemplation of the law, and that the legal existence of the woman is suspended during the marriage, or is at least incorporated into that of the husband; and that as it is from this very merger or incorporation of the legal being of the wife into that of her husband, that her incapacity to exercise the franchise whilst living with him arises, it can only be in consequence of a judicial separation, having to that extent the effect of de. stroying, or rather of suspending, the effect of the coverture that she could become entitled to it when separated from him. Now, a judicial separation is the creation of the statute law in the place of the old form of divorce à mensâ et thoro. As such, its effect upon the legal status of the parties, as constituted by their marriage, must be measured by the provisions of the law by which it was created. Turning then to the statute under which the Court of Divorce and Matrimonial Causes was established (20 & 21 Vict. c. 85), we find it enacted in the 26th section, that “in every case of a judicial separation the wife shall, whilst so separated, be considered as a feme sole, for the purposes of contract, and wrongs and injuries, and suing and being sued in any civil proceeding; and her husband shall not be liable for any engagement or contract she may have entered into, or for any wrongful act or omission by her." So far then as the provisions of this section extend, the wife becomes, when judicially separated from her husband, a feme sole, but she becomes so no farther, and she regains by the separation only such of the rights (it is not necessary here to speak of her wrongs and liabilities) which were suspended by her marriage as the statute gives her, but the statute neither mentions nor refers to any rights other than those connected with contracts, or with wrongs and injuries. The hiring a house is a matter of contract. The right to vote in respect of its occupation, however, does not arise from contract, but is a right conferred by the State by legislative enactment and upon certain condi. tions, and cannot, therefore, be regarded as being given back to or conferred upon a woman judicially separated from her husband under the terms of the section just quoted. So much for the case of judicial separation. But the claim of the right of the wife to the municipal franchise, when separated from her husband by mutual consent, is eren weaker still. In such a case the parties agree, it is true, to abandon cohabitation, and they make certain terms in order to carry out that arrange. ment; but a deed of separation, even should there be one, would not suspend the effect of the coverture further than to free the hus. band from liability in respect of certain debts contracted or engagements entered into by the wife. It would not constitute the wife for all purposes, either as regards contracts or wrongs or injuries, a feme sole. The power to do away to such an extent with the legal consequences of marriage belongs not to any acts, however solemn, of private individuals, but requires the exercise of legislative authority. In the case, therefore, of a separation by mutual consent, as in that of a judicial separation, we regard the claim oj the wife to the municipal franchise as being without any real foundation in point of law.
DEBTOR'S SUMMONS. Tue elaborate judgments of the learned Barons of the Exchequer in the case of Johnson v. Sparrow (reported in the Law TIMES Reports of Saturday last and to-day), are unsatisfactory in one sense; but as an exposition of the views of men experienced in the law, they are interesting in relation to an important branch of the new bankruptcy statute.
Their views with respect to its provisions as applicable to “debtor's summons," deserve consideration. A summons of this description has hitherto been known as the most summary and economic process of bringing to account a debtor of questionable monetary character. A creditor who can a claim of 501. may, after previous application to his alleged debtor, obtain from the court a summons calling upon him to pay the amount claimed within seven days, or show a satisfactory reason for his default. The debtor, on making an affidavit denying the debt, may be heard, and then, if he satisfies the court there is no valid claim, obtain the dismissal of the summons. If, however, his evidence, which alone the court can consider, according to sect. 7, is not satisfactory, a bond for payment of such sum as may be recovered in an action, may be ordered, and the proceedings under the summons stayed. The court, however, although satisfied there is primâ facie evidence of a debt, may excuse a bond if there be proof of the solvency of the debtor, and a doubt raised as to the recovery of a verdict in the action. In the latter case it stays proceedings on the summons until the action is tried, as well as in the former, where the bond is ordered, but, according to the ruling of the learned judges, it is immaterial whether the bond ordered be given or not, for, if not given, the proceedings on the summons must alike be stayed.
This seems to us a monstrous proposition, and one unsupportable by common sense. In fact it amounts to this, that the rules require the court to stay proceedings where it is satisfied there is a debt to be tried; it gives it jurisdiction to order a bond in certain cases, but leaves it to the discretion
of the debtor to give it or not at his option. Surely this could not have been the intention of the framers of the rules. The order to stay proceedings ought, we venture to think, in case of a bond being required, to exist only for the time granted for giving the bond; to be extended if given, but to terminate on failure to give the bond. Had such been the case, the difficulty and the costly litigation which has been created in the case under discussion would have been obviated. Imagine a case which rested upon so shadowy a basis through the strictly technical view taken by the Court of Appeal in Chancery of the rules in bankruptcy, being magnified into one which in its results perplexed the minds of the learned Barons of the Exchequer, and unfortunately landed an honourable member of the Profession, with a loss of several thousands of pounds! The moral to be deduced is twofold: first, that no rules should, as in bankruptcy, have the force and effect of an Act of Parliament, but, if so, they should be drawn by persons of experience ; and secondly, that where certain prescribed forms of procedure are invested with the authority of a statute, they should be literally observed, and not as has been too frequently the practice with several of our most eminent Judges-Lord Westbury notably to wit—ignored, and the spirit of the Act regarded, irrespective of the express words of the statute and rules.
THE LIABILITY OF DIRECTORS OF A COMPANY FOR
CONCEALMENT IN THE PROSPECTUS. It is by no means surprising that a plaintiff who, having taken shares in a joint-stock company, finds himself threatened with tremendous liabilities in the shape of calls, in addition to the actual loss of the money laid out in the investment, should endeavour tutis viribus to escape from the meshes in which he finds himself involved. His first inquiry naturally is, What ground or pretext have I under which it may be possible for a court of equity to declare that I never was properly a shareholder at all, and to remove my name from the register of shareholders ? Has there been such fraud or misrepresentation, such suggestio falsi or suppressio veri in the prospectus or in the reports of the directors as will enable me to say that my contract was voidable, if not actually void? These are the questions of which Mr. Peek, the unfortunate purchaser of 2000 shares in Overend, Gurney, and Co. (Limited), has in the first place strenuously but vainly endeavoured to obtain a practical solution in his own favour; the history of the litigation being recorded in the cases of Oakes and Peek v. Turquand (15 L. T. Rep. N. S. 652), before Vice-Chancellor Malins, and on appeal to the House of Lords (16 L. T. Rep. N. S. 808), the result, and one which commends itself to us as a most righteous and satisfactory decision being, that a person who has subscribed for shares, and a fortiori one who has purchased shares, cannot, after the commencement of a winding-up, have his name removed from the list of contributories so as to escape from liability to creditors, on the ground of his having been induced to enter into the contract by any species of fraud.
Foiled in this direction, Mr. Peek has endeavoured to fix upon the late directors of Overend, Gurney and Co. (Limited), and the representatives of a deceased director, a personal liability to reimburse him for his losses, on the alleged ground that the prospectus issued by them, or with their privity, suppressed matters of vital importance-matters which, if disclosed, would have deterred the plaintiff from investing, and the decision of Lord Romilly on this contention was given on Monday last. His Lordship thought that the directors had suppressed vital matters, and that although their honest sincere belief in the probable success of the company exonerated them in a criminal court, as indeed was held by Cockburn, C.J., on the trial of Gurney and others on the same facts (see Rr. v. Gurney and others, 11 Cox. C. C. 414), it did not exonerate them in a court of equity. His Lordship remarked that, in his opinion, “ the concealment of a most material fact, which concealment the concealer believes will be beneficial to himself and the man whom he induces thereby to join with him in a speculation, does not exonerate him from the consequences." All this, and very much more to the same effect, appears to us unimpeachableadmirable. There ought not to be two opinions whether a person, whose relation to another is such that it is his positive duty to make a disclosure of a material fact, should be held liable for the proximate consequences of his not performing his duty. His Lordship thought that if any one of the shareholders bad shortly after the shares had been allotted to him, discovered the facts in evidence, and filed a bill to have the allotment cancelled and his money returned, the court would not have hesitated to give him the relief asked for, or, if that was impossible, make the directors personally liable for the loss he had sustained.” The judgment, which up to this point had occupied a considerable time in delivering, must have been somewhat reviving to the hopes of the plaintiff, which were now suddenly dashed by Lord Romilly continuing thus: “ There were, however, other considerations in the present case. Did the case of deception by the prospectus apply to the plaintiff, who was a tran-feree of shares, as well as to an original allottee, and had the plaintiff come in sufficient time and with sufficient diligence to induce the court to interfere in his favour?” With regard to the first question his Lordship thought that " if the allottee was bound by time or con
donation--the transferee was bound also by the same bar-the fact being that in the present case the allottee was cognisant of the whole matter. As regards the other question . . the shares were bought in Oct. 1865, and Jan. 1866, but the plaintiff never made any inquiry into the condition of the concern until after the failure in May 1866, and but for the failure would doubtless have made no inquiry at all.” On these grounds the plaintiff's bill was dismissed, but, to mark his Lordship's opinion of the delinquency of the directors, without costs. The magnitude of the case is such that the parties will almost certainly seek a decision from the court of ultimate appeal. On a somewhat cursory consideration of the matter, we do not attach a very high degree of weight to either ground relied on by the Master of the Rolls in dismissing plaintiff's bill
. On the first point-the cognisance of the allottee of the rottenness of the concern, would lead him to maintain a rigid silence so long as the shares could be placed at any price in the market. The original reticence of the directors was a dereliction of duty calculated to injure transferees is well as original subscribers, and for which, as it seems to us, a transferee if thereby damnified, is entitled to reparation. It is difficult to understand how knowledge on the part of the transferor of the unlawful concealment, or condonation, or even an actual release by the transferor, could be held to protect directors from the consequences of issuing a misleading prospectus, when the transferee seeking reparation, being himself in no default, was utterly ignorant both of the circumstances of the company, and of the knowledge, condonation, or release by which the transferor personally may have been affected. As to the second point, it does not appear that
any amount of diligence which could reasonably be expected of a reasonable man would have availed the plaintiff as an ordinary shareholder either in bringing to light before the general crash of the company on the 10th May 1866 the concealed deficiencies in the assets, which probably he had no reasonable ground to suspect, or in obtaining the removal of his name from the register before the same period on the ground of such concealment. Does any human being suppose that Mr. Peek would not have been baffled by every expedient of delay or dissimulation if he had proposed to satisfy himself of the actual condition of the company's affairs ? Assuming, as a general doctrine in these cases, that there must be some default on the part of the allottee or transferee of shares to disentitle him to relief as against the directors, a question suggests itself to our minds as to the position of the injured party in cases where the remedy against the directors is unavailable or inadequate. In that aspect of affairs, does the winding-up preclude the allottee or transferee from seeking reparation from the company itself? Would the liquidator be ordered, out of the assets of the company, after satisfaction of creditors, or, failing such assets, by further calls on the other contributories, to make such reparation ? There is much in the judgment of the Peers in Oakes and Peek v. Turquand which tends in favour of this view. The directors whose concealment is complained of are the agents of the company, and the members of a company are in general held civilly liable for the acts of their agents in conducting the business of the company. Up to the moment when the windingup commences, the allottee, if not the transferee, is entitled to avoid the contract under which he became a shareholder, and by instituting a bona fide suit anterior to the winding-up, may insist on having his name removed from the register (Reese River Silver Mining Company v. Smith, L. Rep. 4 E. & Ir. App. 64.)
We think it by no means fellows that because, in the absence of a lis pendens, a winding-up renders the register conclusive evidence of proprietorship in favour of creditors, notwithstanding the original voidability of the shareholder's contract—that therefore a similar result must necessarily arise in favour of the other contributories, against whom it is to be presumed, from their passivity or absence of legal complaint, that the contracts under which they acquired their shares were altogether unimpeachable.
Papers on Maritime Legislation ; with a Translation of the German
llorcantile Law relating to Maritime Commerce. By Ernst Emil
WENDT. Second Ellition. London: Longmans. Tuis by no means elaborate work of our author has become a recognised authority to this extent—that it contains a correct translation of the German Maritime Law. By this remark we must not be understood to imply that the book is not valuable in other respects. Mr. Wendt is a keen critic of our maritime law and all his most pertinent comments on the Merchant Shipping Act, which appeared in his first edition, are reproduced in the second, with the clauses of the Act set out. This is an improvement.
One of the subjects to which Mr. Wendt particularly directs his attention, is that of average adjusting; and he considers that it would be acceptable to the mercantile community, if our new maritime law were to embody the international average rules framed at York in 1864, together with the international law of affreightment, framed at Sheffield in 1865. “I think,” he says, “it would not be difficult to issue a'regulation which, without at
all interfering with the independent action of the average stater, would more than hitherto secure a proper execution of the average statements, and prevent the ridiculous delay which now only too frequently takes place before a definite settlement of questions of general average can be arrived at, to the great prejudice of all parties concerned.”
These and other amendments of our law, Mr. Wendt seems to think can only be ascertained and effected in a proper manner by a royal commission. We are inclined to agree with him ; but in the absence of his own evidence taken by such a body, the work before us may have a most useful and beneficial influence. Our readers last week had an opportunity of judging of our author's style, in the extract which we made from his preface to this edition on the subject of admiralty jurisdiction.
will be gained by it. There seems a growing disposition to send law works of the less important character to the press without revision. As examples of gross carelessness which caught our eye, we may notice the case of Earl of Lonsdale v. Rigg cited as Earl of Lonsdale v. Briggs (p. 39), although the defendant's name is accurately given on the next page (p. 40),
with reference to another place where the case is not reported. What does the reference to Reg. v. Richard (4 F. L. F. 860), mean?-F. & F. i.e. Foster and Finlason, we suppose.
Even in the names of counsel, which would, one might have thought, be known to the author, he makes strange blunders-Mr. Edge is spoken of as Eagle; Mr. Streeten as Stetman; and the grammatical construction of the arguments put into the mouths of counsel and of Her Majesty's Judges, is in some cases extraordinary. The mode of stating the cases too frequently sacrifices everything to brevity. For example, at p. 39, we find Reg. v. Roe(22 L. T. Rep. N. S. 414), thus stated: “Indictment for stealing a dead partridge taken while still alive, yet in a dying state.” (sic.) The indictment was for stealing a dead partridge; the proof was that the partridge was not dead when it was taken, and the conviction was quashed.
Half this little work is composed of an appendix of the criminal law statutes of the year and an index, as if a digest wanted an index!
An Annual Digest of Criminal Law. By W. A. WARNER-SLEIGH, of the Middle Temple, Barrister-at-Law. London: Shaw and
Sons, Fetter-lane. MR. Sleigh is endeavouring in this digest to enlarge the scope ordinarily given to such a work. His book is not a mere compilation of head notes, but it is an abridgement of the reported cases. In many of the cases we find a few facts, some argument, and a summary of the judgments. Not being anxious to speak harshly of a young author, we do not condemn the work entirely; but it has evidently been prepared with a want of care which is very surprising, when we suppose it is hoped that reputation
NOTES OF THE WEEK. knowledge of all the circumstances, agreed with an immediate personal interest in keeping down
him in that course of proceeding. The directors the total cost to 15,0001. A perusal of the eviCOURT OF APPEAL.
must, therefore, be bound by what had taken dence showed that it would be unjust to leave the
place. The order of the Vice-Chancellor would be plaintiff to his remedy at law; the accounts were (Before the LORD CHANCELLOR.)
discharged. No personal costs of the appeal, but too complicated to be disposed of by a common Nov. 3 and 4. costs out of the fund.
law court, except by a reference, which in his Re THE LONDON AND MEDITERRANEAN BANK
Solicitors : Lewis, Munns, and Co.; Harris. Lordship's experience was the most dilatory and (LIMITED); Wright's CASE.
expensive of all tribunals. There must, therefore, Limited company-Winding-up-“B” list of con
be an inquiry what works had been executed by the tributories- Misrepresentation in prospectus
June 6 and 7 and Nov. 3.
plaintiff which were not included in the contract,
what works had been executed by the plaintiff Cancellation of shares by directors.
KIMBERLEY V. DICK.
under White's direction differing from the original This was an appeal by Mr. Joseph Wright from Building contract, Arbitration clause-Guarantee plans, and what is due to the plaintiff in respect an order of Wickens, V. C. Mr. Wright agreed by architect as to cost of building-Architect of such works. in June 1865 to take shares in a limited company, appointed arbitrator.
Further consideration and costs reserved. and paid his allotment money in respect of them, Early in 1866 the defendant Dick, wishing to Solicitors for the plaintiff, Mackeson, Taylor, and and was registered as a shareholder. A settling build a mansion at Homewood, in the county of Arnould, for Puller and Pearse, Banbury. day on the Stock Exchange having been refused, the Wicklow, consulted Mr. William White, a London Solicitors for the defendants, Kinsey and Ade. directors entered into an arrangement to amal. architect, who prepared plans and specifications, gamate with another company, and with that view from which he was of opinion that a mansion
Friday, Nov. 3. passed a resolution that the allottees might, if could be built at a cost of not more than
WALKER V. WALKER. they thought proper, obtain repayment of such 15,0001., including everything, and he gave a
Demurrer--Parties-Suit by residuary legatees allotment money and have their allotments can- guarantee that the total cost of the building against testator's creditor-Erecutors. celled. This was made known to Mr. Wright on would not exceed that sum. The plans and DEMURRER. Alexander Walker by his will gave an the 20th Oct., and he thereupon signed a receipt specifications were approved by Dick, and put annuity of 2001. to his sister, Margaret Grainger for his deposit, which was returned to him by into the hands of the plaintiff, who is a builder at Walker, and made Sybil Walker and Michael Wal. cheque, and in the register of shareholders there Banbury, and who, without having, as he alleged, ker his residuary legatees. The bill in this case was written opposite to his name, money re- had sufficient time to work out the quantities, was filed by the residuary legatees against Margaret turned, and allotment cancelled.” On the 6th signed a tender, and afterwards, in June 1867, Grainger Walker and the executors of the will, Nov. it was resolved that the bank should be entered into a contract for the due execution of alleging that during his lifetime the testator had wound-up voluntarily, and this resolution was the work, according to the plans and specifications, purchased 40001. stock of the Bank of Scotland in confirmed, and liquidators were appointed. Mr. to the satisfaction of White, the architect, at the the name of his sister, that she claimed to be Wright had since discovered that the prospectus, sum of 13,6001. The contract contained a clause absolutely entitled to this sum of stock, but the on the faith of which he agreed to take his shares, referring all questions as to additional works, and plaintiffs alleged that she held it as a trustee for contained fraudulent misrepresentations, such as as to variations in the plans, to the arbitration of the testator, and that it formed part of his would have entitled him to have been relieved from White, whose decision was to be final. The plain- estate, and they prayed for a declaration accord. his shares if he had filed a bill for that purpose, tiff alleged that soon after he commenced the ingly. The matter came before the court last July prior to the winding-up. The voluntary winding building he discovered that the actual quantities in Walker v. Seligmann (25 L. T. Rep. N. S. 294; up was, in June 1866, ordered to be continued were greatly in excess of those taken out by White, L. Rep. 12 Eq. 152), which was a suit for adminisunder the supervision of the court. The 39th of upon the footing of which he made his tender, and tration of the testator's estate, and in which his the articles of association enabled the directors thereupon he instituted the present suit, praying Lordship held that, although Miss Walker had to accept a surrender of any shares. In Nov. 1867, for a declaration that, in addition to the contract been served with the decree, an independent suit on a summons by the liquidators, Mr. Wright was price of 13,6001., he was entitled to be paid by would be necessary for the enforcement of her placed on the A list of contributories as a measurement and value for all quantities of work liability to the testator's estate. The present present member, but on appeal he was removed, actually executed by him beyond the quantities suit was accordingly instituted. Miss Walker on the ground that the directors had a power to included in the original estimate, which he alleged demurred. accept a surrender of shares, and that the so to be wholly inadequate. White contended that Southgate, Q.C. and Ramadge, in support of called cancellation might be supported as tanta- the plaintiff was not entitled to anything beyond the demurrer, snbmitted that the suit ought to mount to a surrender. The liquidators having the contract price, and refused to certify for the have been instituted by the executors, and not by exhausted the “A” list, subsequently placed Mr. additional work, and Dick contended that, by the residuary legatees. They relied upon Stainton Wright on the “B” list of past members. On a White's guarantee, he could not be called upon to v. The Carron Company (18 Beav. 146); and Jer. motion to have his name removed, the Vice- pay more than 15,0001., which sum he offered to dein v. Bright (2 J. & H. 325). Chancellor held, that, not having shown a con. pay upon receiving the architect's certificate. Sir Richard Bagallay, Q.C. and Jones Bateman, eluded election on his part prior to the winding-up, Southgate, Q. C. and Begg, for the plaintiff. for the bill, contended that the persons beneficially to have his allotment cancelled on the ground of Sir Richard Baggallay, Q. C. and w. Pearson, interested in the testator's estate were the proper misrepresentation Mr. Wright was not entitled to for Dick.
plaintiffs. Moreover the executors appeared by have his name removed from the “B” list of con- The Solicitor-General (Jessel, Q. C.) and Cozens the same solicitor as the plaintiffs, and concurred tributories. On appeal, Hardy, for White.
in the present application. Jessel, Q.C., Karsluke, Q.C., and Everitt, for the Lord ROMILLY said that he was of opinion that Lord ROMILLY said that the bill conld not be appellant.
White was Dick's agent for all purposes connected sustained. If the executors refused to take pro. Harily, Q.C., and J. N. Higgins, for the liqui- with the contract, without any limitation as to ceedings the executors should have asked the dators. price, and the fact of White having guaranteed court for leavo to file a bill in their name.
The The LORD CHANCELLOR held that Mr. Wright that the cost should not exceed 15,0001. not having demurrer inust be allowed. Leave to amend rehad fully and completely exercised his election to been communicated to the plaintiff, rendered it fused. have the contract annulled before the winding-up impossible for the defendants to insist upon the Solicitor for the plaintiff, F. W. Hilbury. took place, and that the directors, with full arbitration clause, inasmuch as under it White had Solicitors for the defendants, Norris and Sons.