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Two cases affecting the liability of attorneys to bailiffs' fees as fixed by the masters under 1 Vict. c. 55, were heard on appeal before the Court of Exchequer on the 8th inst., and decided in effect that a bailiff who seizes the goods of a debtor but does not realise cannot recover his charges against the attorney who sets him in motion. The court said that to entitle the bailiff to recover the service must be valuable to the attorney's client, the execution creditor. It will be remembered that in these cases (Merriman v. Newman and Newman v. Russell) the sheriff had been ordered to withdraw. The Judge of the court below held the attorney liable for the costs of exeuting the fi. fa. and taking possession, a ruling which has been reversed. We are informed that on the argument of the appeal it was assumed that if the sheriff could recover at all under such circumstances the attorney would be liable.
AT length, after the Bankruptcy Act has been in operation for over two years, a construction has been placed by the Chief Judge upon one of its most important provisions, in fact a provision which in cases of insolvency is usually the sole cause of the initiation of bankruptcy or liquidation proceedings. Rarely, if ever, would a debtor resort to such a process unless legal proceedings were instituted against him by a diligent creditor, and it is somewhat singular that the rights of such a creditor have remained so long without being authoritatively defined. When the Act came into operation it was the practice on a petition in bankruptcy or liquidation being presented to restrain execution creditors of every degree, be they in possession for debts over £50 or under that sum, traders or non-tradors. Now by a series of decisions we find that the court has no jurisdiction to interfere with executions against the property of non-traders under any circumstances, and in the case of a trader only where the execution is for a sum exceeding £50. What injustice must have been suffered during two years by a large number of diligent creditors who have been restrained, and how little it is to the credit of the Legislature that an Act of Parliament should have been passed which so ill expresses what was intended! A short report of the case an appeal from Mr. Serjt. WHEELER, upon which these observations are founded, appears in another column, but we propose to revert to the subject on the appearance of our usual report.
THE law is sometimes indebted to novelists, as we have recently had occasion to remark, but the latest effort of literary skill in our direction, from the pen of Mr. EDMUND YATES, is, to say the least, not happy. In his work entitled “Nobody's Fortune," he introduces a Mr. BARNSTAPLE, Q.C., who is a man of enormous fame. Captivated by the charms of a young lady engaged to someone else, the great advocate agrees to go down to a remote part of Cornwall to defend a domestic in the establishment of the young lady's uncle charged with stealing from a hole where
was buried "Nobody's Fortune." Uninstructed, as it appears, by any attorney, the great man is described as bursting upon the gaze of the astonished magistrates in full forensic costume, and Mr. YATES ventures to give his speech to the magistrates verbatim, the speech, however, not being delivered until the silk gown has been brought into confidential relationship with the magistrates-a circumstance which, had it actually occurred, would have elicited stirring articles on the subject of justices' justice. We are not at all sorry that Mr. YATES should have a high opinion of the influence of the Bar, but, in justice to the magistrates, it ought not to be supposed that any learned gentleman, "however eminent he may be," to quote Sir JOHN COLERIDGE, can, by appearing in a costume utterly out of place in a police court, upset the intellectual equilibrium of even a country Bench, and we would recommend Mr. YATES, before again attempting to paint legal portraits, to study a little more closely the habits and customs of the Bar.
THE jurisdiction of the Lord Mayor's Court is among the jurisdictions which the Judicature Commission propose to abolish, and, considering the slight ground upon which it is assumed, no one would be inclined to object to a move in the direction contemplated. The Superior Courts have looked with considerable jealousy on the extension of what is purely a local jurisdiction to matters of wide importance simply on the ground that the parties have inadvertently brought themselves within it, and they are disposed on all occasions where there is a plausible pretext, to release suitors so caught. A case in which no hardship resulted, but which shows upon what very shadowy grounds a man incurring a liability outside the city may be drawn into a court having jurisdiction within it, was heard on Wednesday, and is reported by us to-day. A defendant, on being sued went to the plaintiff's attorney's office and said: I am prepared to pay the debt less your costs,' and a small sum to which he objected. The offer was refused, but the proceedings in that action were quashed, there being no jurisdiction. Another action was then commenced on the alleged promise of the defendant to pay, as contained in his statement to the plaintiff's attorney's clerk, and upon this the court exercised urisdiction. As a matter of strict law, we consider that jurisdic
tion could not be given by such a statement as that made by the defendant; but the learned COMMON SERJEANT was possibly right in refusing to exercise his discretion in favour of the defendant, the amount in dispute being small. It is easy to see, however, that if debtors residing far from London, but casually in London, and whilst there offering to pay a debt, are to be held thereby within the local jurisdiction of the City Court much hardship will be created, and this will certainly be an argument for putting the court upon the footing of an ordinary County Court.
AN important point relating to discovery has been decided by Vice-Chancellor WICKENS in the suit of Dixon v. Enoch, that decision being-to use the VICE-CHANCELLOR's own words-that by force of the 19th section of 6 & 7 Will. 4, c. 76, re-enacted by 32 & 33 Vict. c. 24, "a person complaining of a libel in a newspaper, may file a bill against the printer and publisher to ascertain the names of the proprietors for the purpose of bringing his action against the proprietors alone;" and he added, "I do so because that conclusion seems to me consistent with the spirit and intention as well as with the words of the statute." The section referred to is somewhat singularly worded, running thus: If any person shall file any bill in any court for the discovery of the name of any person concerned as printer, publisher, or proprietor of any newspaper, or of any matters relative to the printing or publishing of any newspaper, in order the more effectually to bring or carry on any suit or action for damages alleged to have been sustained by reason of any slanderous or libellous matter contained in any newspaper respecting such person, it shall not be lawful for the defendant to plead or demur to such bill, but such defendant shall be compellable to make the discovery required; provided always that such discovery shall not be made use of as evidence or otherwise in any proceeding against the defendant save only in that proceeding for which the discovery is made." It will be observed that who may be a defendant in such a suit is not indicated, and if the words are taken in their wide sense it is difficult to say that a perfect stranger happening to know who the proprietors of a certain journal are, could not be made a defendant-a difficutly which the VICE-CHANCELLOR evaded as being a matter which it was not neccessary to consider. And indeed, it is not very material, as in every case of a newspaper libel the bill of discovery would be directed against the printer. But this shows the loose way we have of legislating. The doctrine now settled is in itself important, because various views have been held by the judges at common law as to whether a defendant could by means of interrogatories be compelled to disclose the names of the proprietors of papers. In Tupling v. Ward (6 H. & N. 749) interrogatories framed with this object were disallowed. We do not see why such discovery should be denied, so long as the information obtained is not used for ulterior purposes. This is expressly provided for by the section of the Act which we have quoted, and the same principle has been lately upheld more than once at common law. The cases are collected in Kerr on Discovery, at page 270.
THE TRUE ISSUE IN THE COLLIER CASE. WHAT we propose to say may possibly be in time to have a little influence upon the discussion in the Houses of Parliament with reference to the appointment of Sir R. COLLIER; and two lawyers of reputation, Mr. Justice WILLES and Sir ROUNDELL PALMER, having taken up the defence of the Government, it is essential that the true issue should be kept well in the front. The Act of Parliament (34 & 35 Vict. c. 91) under which the ap pointment was made, gives HER MAJESTY power to appoint as paid members of the Judicial Committee four persons "qualified as in this Act mentioned." The same section says "any persons appointed to act under the provisions of this Act as members of the said Judicial Committee must be specially qualified as follows; that is to say, must, at the date of their appointment, be or have been Judges of one of HER MAJESTY'S Superior Courts at Westminster, or a Chief Judge of the High Court of Judicature at Fort William in Bengal, or Madras, or Bombay, or of the late Supreme Court of Judicature at Fort William in Bengal."
Now Sir ROBERT COLLIER was for three weeks a Judge of the Court of Common Pleas. He was, therefore, at the "date of his appointment" to the Judicial Committee, a "Judge of one of HER MAJESTY'S Superior Courts at Westminster." Therefore, as Mr. Justice WILLES says, "the appointment was legal, and within the terms of the statute;" but, as Lord Chief Justice BOVILL says, concurring with the Lord Chief Justice of England, the appointment, "though it might be strictly within the words of the Act, was contrary to the spirit and to the intention of the Legislature, and it was in that sense, and that sense only, an evasion of the statute." Evasion, according to Mr. Justice WILLES, is a sensational expression; but it is strictly applicable. It will be observed that Indian Judges are mentioned as eligible for appointment to the Privy Council. Had Sir R. COLLIER been sent out to Calcutta or Madras as a Judge of the Supreme Court and brought home again at the end of three weeks, his appointment to the Judicial Committee of the Privy Council would have been perfectly legal, but the evasion
of the intention of the Legislature, as expressed in the Act, would have been so grossly palpable that no epithet applied to the transaction could have been sufficiently sensational. To do the same thing at home is only an offence against the purpose of the Act smaller in degree. The judicial experience which it was manifestly the wish of Parliament to introduce into our highest Court of Appeal is wanting, and, as between Indian and English judgeships, SIR ROBERT COLLIER would have been utterly ignorant in the one case, while in the other he may be assumed to have the knowledge of judicial duties in England which every practitioner at the Bar must acquire. An Attorney-General is not even a quasi-judge, and many leading Queen's Counsel who assist the Judges on Circuit would have more judicial experience than he. An argument in support of the appointment is put forward that the ATTORNEY-GENERAL has a vested right to any judgeship which may fall vacant during his term of office, and if, by common consent, he is considered eligible for the highest common law judgeship in the kingdom, he must be considered a fit and proper person to be appointed a member of the Judicial Committee. This is another "evasion:" he is not "qualified" according to the Act, and the fact that he is eligible for an office whose holders are expressly named in the Act, cannot possibly be a justification for raising him at once to the tribunal dealt with by the Act.
The Government has really got itself into the difficulty by endeavouring to avoid the expense of providing for the staff of any existing Judge who might be placed on the Committee. The ATTORNEY-GENERAL had no existing staff, and in an evil moment he was selected for the office. The true issue is not, as suggested by Mr. JUSTICE WILLES, was the transaction legal, in the dry technical sense, but, as raised by Sir WILLIAM BOVILL, was not Sir ROBERT COLLIER'S election to the Common Pleas under the circumstances, a degradation of the judicial office in that court, and was not his promotion from that court to the Judicial Committee within three weeks an evasion of the plain intent of the Act, defeating the manifest object of the Legislature?
INTERNATIONAL LAW AND THE ANGLO-AMERICAN ARBITRATION.-V.
MORE than one administration in both England and America has attempted to bring about a compromise of the Alabama claims. Earl RUSSELL repudiated them and refused a proposal made by Mr. ADAMS for arbitration. Lord STANLEY upon the change of Government in 1866 and his becoming Foreign Secretary, negotiated with Mr. SEWARD for a reference to arbitration, but the negotiations fell through. In June 1868 Mr. REVERDY JOHNSON succeeded Mr. ADAMS as United States Miuister at London. He came here actuated with an earnest desire to put an end to the differences between the two countries; and after a lengthened correspondence a convention was concluded on the 14th Jan. 1869, between him and the Earl of CLARENDON, who had replaced Lord STANLEY, whereby it was provided that four Commissioners should be appointed, two by each country, who should impartially and carefully examine and decide to the best of their judgment and according to justice and equity, without fear, favour, or affection to their own country all claims existing on the part of the citizens of either country against the other. This arrangement was fair to both sides, yet the Senate of the United States, to whom treaties have to be submitted for ratification, unanimously rejected it. Mr. JOHNSON was soon after recalled and Mr. MOTLEY sent in his place. With him Lord CLARENDON re-opened negotiations; and in the result a joint high commission was appointed for the purpose of determining the basis and the principle of the settlement. The British representatives were Earl DE GREY, Viscount GODERICH, Sir STAFFORD NORTHCOTE, Sir EDWARD THORNTON, Sir J. A. MACDONALD, and Mr. BERNARD; the American were Mr. Secretary FISH, General SCHENCK, Judge NELSON, and Messrs. HOAR and WILLIAMS. They met at Washington, and on the 8th May 1871, concluded the now somewhat notorious treaty with which we propose to deal to-day.
The treaty opens with an expression, "in a friendly spirit of the regret felt by Her MAJESTY'S Government, for the escape, under whatever circumstances, of the Alabama and other vessels from British ports"-that is, with an apology which was most ill-advised, if we are to consider the treaty as a legal document providing for the reference to a legal tribunal of a dispute. It then goes on to state that "the high contracting parties agree that all the said claims growing out of acts committed by the aforesaid vessels, and generally known as the Alabama claims, shall be referred to arbitration." The expression in italics we will comment upon directly-at present we will run over the first eleven articles. To the court little exception can be raised. It is composed of members selected by the QUEEN, the PRESIDENT of the UNITED STATES, the KING of ITALY, the PRESIDENT of SWITZERLAND, and the EMPEROR of BRAZIL respectively. But the manner in which the arbitrators are to proceed is simply absurd. They are to be guided by the following rules, viz., that a neutral Government is found
First, to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or carry on war
against a Power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.
Secondly, not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.
Thirdly, to exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties.
But our Commissioners expressly stated that they could not assent to the above as a statement of principles of international law which were in force at the time when the claims mentioned arose -in other words, that the arbitrators are to decide not in accordance with what was law, but with what has since become so. Apply this doctrine to affairs of everyday life, and whose property or person would be safe? What contracts could be formed? If ex post facto legislation were to be permitted, the foundation of society would be dislocated. And is that which is totally unsound when applied to private affairs in the least degree tenable when applied to public matters? The treaty states that Her Majesty's Government allowed the promulgation of these rules "in order to evince its desire of strengthening the friendly relations between the two countries, and of making satisfactory provision for the future." The whole reference is, however, in the nature of a lawsuit; and it was the duty of those who represented the two litigants to uphold their client's rights, to give and take just what the law allowed, and no more nor less.
The tribunal is to take each vessel separately, and to determine with respect to it whether this country has in any degree failed in her international duties, as determined by the above rules or the general principles of international law. If such dereliction be held established, the tribunal may award a gross sum to be paid by us to the United States, or the quantum of damages may be assessed by a board consisting of three members, to sit at Washington, New York, or Boston, and to determine impartially and carefully according to justice and equity all claims presented by either side. The result of the proceedings, whether before the arbitrators or the assessors, to be a full, perfect, and final settlement, and all claims not brought before them to be finally settled, barred, and thenceforth inadmissible. Cases and counter cases are to be prepared, and the two Governments are to be heard by counsel. Cases have accordingly been prepared; and the Americans in theirs demand indirect damages on account of the increase in the rates of insurance, the loss of trade and transfer of commerce to other nations, and the prolongation of the war, amounting to £200,000,000.
Is this claim admissible before the arbitrators? If so, is it well founded? We have already stated our opinion as to the merits of such a claim if put forward in an ordinary action; but we must examine the present one in connection with the language of the treaty, and with the acknowledged facts of the case. From the very commencement of the Alabama difficulty many prominent statesmen, and a large section of the press of the United States have urged their Government to demand from Great Britain compensation to the uttermost farthing for even the most remote losses suffered by them, individually or as a nation. Mr. SUMNER had in a remarkable but sensational speech, given shape and substance to these demands; and Mr. FISH, in his equal famous despatch to Mr. MOTLEY in Sept. 1869, had formally adopted them. All this was well known to the British Commissioners, and Mr. FISH was one of the representatives of the other side with whom they were dealing. Yet they took no precautions, they obtained from the United States Commissioners no abandonment of the demands that had been so loudly and persistently put forward; but on the contrary, they first stated in a preamble, in order to dissipate every species of misconception, that their object was "to remove and adjust all complaints and claims on the part of the United States," and they then concluded a treaty to settle all the claims growing out of acts committed" by the Alabama, &c. Now what is the common sense and common law construction to be put on the words " growing out of" when read in connection with the expressed object of those who wrote them? There is nothing on the face of the treaty to qualify their generality. Parol evidence if permitted at all-which, in accordance with the commonest principles, should not be permitted, the treaty by underseal-would not detract from their effect; it would simply show that no doubt existed in either country as to the nature of the claims put forward by the United States, viz., not merely for losses occasioned by, but for the far wider ones which have grown out of the proceedings of the Alabama. We have provided for a reference" of all matters in difference in the cause between the parties." It has been urged that our Commissioners were not lawyers, were not up to their work, not fully competent to meet and foil American legal skill and ingenuity. So much the worse for England. She has been her own counsel, and has had a most unmitigated fool for her client. The treaty is a legal document, and was intended to be such. Its framers were famed diplomatists and erudite jurists, and like all theorists who intrude
upon the domain of practice, they have encountered sad humiliation. It was the finale to long-continued negotiations. It was a legal and not a political settlement; and we must consequently assume that its language was most carefully weighed, and expresses exactly what its participators desired to express. We frankly confess that we cannot comprehend the outcry that has been raised on the appearance of the American case. Even supposing the indirect claims not within the purview of the treaty, is it statesmanlike, is it dignified, is it becoming a mighty nation to shrink or bluster because its opponents put a diverse construction upon a joint instrument? The matter, in fact, is no longer within the power of either party. It has been removed from the region of passion and the arbitrament of war to the tribunal of reason and law. True enough, we have physically the power to withdraw, but withdrawal now would leave a slur upon our national honour and judgment. Why did we propose arbitration. at all, why did we assent to the court that has been created, if we mentally reserved the right to repudiate either the arbitrators or the claims that should be submitted? The arbitrators are to "decide all questions that shall be laid before them on the part of the two Governments -do not the dreaded claims come within this provision? Is not their remoteness a most fitting question for the court? What would be thought of a person who, in an ordinary court of justice, refused to be bound by the verdict unless judge and jury took his interpretation of the contract in dispute? The whole matter seems to us absurdly simple. Certain differences have been for a considerable time existing between Great Britain and the United States; the two Governments have, after carefullest deliberation, devised a means for clearing away those differences; they have to refer all of them which have grown out of certain acts to a tribunal constituted in a mode and located in a place which are decidedly in the advantage of Great Britain; the tribunal has the largest powers, and is to determine all questions-and yet the offending party, who has already apologised, denies the compe tence of this tribunal to decide what it has always known to be one of the most important of the differences.
But, though we are satisfied that the claims for indirect losses are within both the letter and the spirit of the convention, we are equally satisfied that they are without foundation. A line must be drawn; but it is for the arbitrators to say where, and we will not presume to anticipate their judgment. That a rise in the rates of insurance would be a natural consequence of the escape of ships like the Alabama is a fact which the American counsel may fairly urge; and should England be convicted of negligence as to the escape, she may find it difficult to escape condemnation in damages for the expense entailed upon American shipowners in the matter of insurance. The transfer of the carrying trade from home to foreign bottoms, is a totally different affair. Assuming it to be true, as may perhaps be admitted, and caused by dread of the Alabama, &c., which is denied by the most competent authorities, and attributed instead to American shipping laws and customs regulations, yet not the most liberal construction of the rules at present laid down for assessing the measure of damages would render us liable for the same. There must be some connection of cause and effect between the tort and the loss resulting; there must be some such connection between the cruise of the Alabama and the pro tempore destruction of American commerce; but the permanent transfer of the same into other hands, if true, was a contingency altogether unexpected. As to throwing upon us the expense of the last two years of the war, the claim is preposterous; the United States Government might with equal reason charge us with the loss occasioned by the manumission of the slaves, on the ground that it was the prolongation of the war which brought about their freedom.
The Treaty also provides (Article XII.) for the reference to three Commissioners of all claims on the part of citizens of the United States, arising during the years 1861-65, other than those "growing out of the acts" complained of, against this country; and of all claims on the part of the QUEEN's subjects against the United States which arose during the same period. This article refers to the claims of private individuals; the Government of the United States had stated their grievances in the former clauses of the treaty; and as they have made no demand or account of the Confederate agency at Liverpool they are barred, supposing the arbitration be carried out, from ever setting up the same. The claims of British subjects are more formidable than is commonly imagined. The New York Herald of 9th May 1871 published a list of those which had been filed in the Foreign Office up to 31st March 1864-it contains a total of 451 distinct items for vessels taken or stopped by the United States, some of them condemned, others released, in some cases damages and costs given against the captors. This list, long as it is, was not to be deemed conclusive, since it did not contain many claims which had been registered in the British mission at Washington. In addition, large quantities of cotton and tobacco belonging to British subjects were seized during the war in the South. Indeed the Herald says that as "it seems to be conceded that all the British claims of various kinds hitherto set up will more than counterbalance all the claims of American citizens for property destroyed by the Alabama and all the other Anglo-Confederate pirates, it is not easy to imagine how much the bill of JoHN BULL may finally foot up."
The treaty also provides for the adjustment of other differences, i. e., the Fishery question, the navigation of the St. Lawrence and other rivers and canals within the Dominion of Canada, customs' regulations between Canada and the United States, and the San Juan boundary line. Upon these, however, we have nothing to observe; they are outside our sphere, but they are one and all matters which threaten the peace of the two countries, and it would be the wisest policy to lay them for ever. The opportunity is given us now and may not again arise.
We are now of opinion that the American construction of the treaty is correct; and that the generality of the language used, not once, but repeatedly, justifies them in bringing forward all claims not thoroughly unconnected with the civil war, and our attitude during the same. In the same way we shall be justified in making our case as strong as possible. If the war were not a civil one then the North has conquered a new country, and is liable for the Confederate debt; if it were civil, then the North is liable to us for the loss occasioned by the prevention of our commerce with the South, and for the consequent stoppage of our cotton manufacture and the Lancashire famine." In fact, the Northern counsel would find themselves in a dilemma; they cannot approbate and reprobate; they cannot say the construction of the treaty is for the tribunal, and at the same time demur to our exposition of our claims. But our case must be drawn by lawyers not "jurists," by an attorney in preference to a Secretary of State or a Lord President of the Council; and if this be done "it is not easy to imagine how much the bill of John Bull may finally foot up."
We had intended to say a few words on the question of a Supreme International Tribunal, but the history of the present arbitration would be a bitter sarcasm on all such speculations. If the two great branches of the Anglo-Saxon race cannot lay the basis for such a court, it is hopeless for other nations to attempt the task. And the court itself when established would become a nonentity, if claims submitted to it are, before hearing, to be reviewed, reviled, repudiated by public agitators and a party press.
OFFICIAL LIQUIDATORS AND ALLEGED
THE lucid judgment delivered by the Lord Justice James on Tuesday last, in Re the Contract Corporation; Gooch's Case, will have been read with great satisfaction. It goes far to settle the relative positions of official liquidators and alleged contributories. The appeal was from an order of the Master of the Rolls, made at the instance of Mr. Gooch whose name was sought to be placed on List B, directing that the official liquidator of the company should make the common affidavit as to documents in his possession. And the substance of the judgment is this: that where the alleged contributory is liable as a continuing member of the company, or in other words, his name is sought to be placed on List A, he is entitled to have discovery of everything relating to his particular shares; but that where it is sought to place the alleged contributory's name on List B, the official liquidator can be no party for discovery or otherwise in any litigation begun by the alleged contributory, inas much as liability to be placed on List B is not a question with which an existing company has anything to do, but is one in which every creditor's hand may be against every other creditor and past shareholder, and the official liquidator is bound to hold himself strictly neutral. These were the actual points decided, and the order of the Master of the Rolls was discharged, the respondent, if he desired it, to have an order that the liquidator should make the usual affidavit as to documents relating to the particular shares in question.
Even greater, however, than the value of the actual decision, is the worth of the language used by the Lord Justice James in describing the position and duties of an official liquidator. He stands, said the Lord Justice, in the position of a manager or receiver in a partnership suit, and it is his duty to hold an impartial hand between all persons whose interests are involved in the winding-up, and to afford every facility to any such person for finding out what documents in his possession are relevant to such person's case. In fact that, as an impartial officer of the court, an official liquidator is bound to give every opportunity to all persons interested in the winding-up-whether alleged contributories or creditors-for enabling them to make out their own rights by the aid of the books and papers of the company. This is not the first time that this definition of an official liquidator's position and duty has been given; but it is the first time that it has been laid down in such broad terms, and with such high authority.
This judgment was wanted. It is quite true that an official liquidator is an officer of the court, and is in the position of a manager of the estate of the company he represents, though endowed with wide powers. But in the eyes of the public he is something more. He represents the company itself in the proceedings which may be taken on its behalf against contributories, or by creditors against the company. It is not easy for nonprofessional people to recollect that the person who actually is suing them or defending a suit commenced by them, is simply an im
partial officer holding the balance between them and a shadowy plaintiff or defendant company. The knowledge too that the official liquidator is paid out of the assets of the company does not assist plain people's recollection as to his exact position. is a matter of congratulation then that so full a description of an official liquidator's duties and position should have been given under the high authority of Lord Justice James.
This judgment will also prove valuable to alleged contributories, by definitely deciding that so far as the assistance of the official liquidator extends, they have quite as much right to it as any creditor of the company, and that as against the company they can require that the utmost facility be given to them in getting materials to support their case from the company's books and papers. In this respect it forms a valuable adjunct to Re the Brampton and Longtown Railway Company (L. Rep. I1 Eq. 428), which decided that an alleged contributory had a right to crossexamine creditors claiming against the company.
FROST v. KNIGHT IN THE EXCHEQUER CHAMBER. It is always satisfactory to find oneself in the right; and as it is rarely possible to feel sure of being so on a point of law, the satisfaction is in that case enhanced. Wherefore, with the greatest possible respect for the Lord Chief Baron and Baron Channell, who decided Frost v. Knight in the Court of Exchequer, we refer with some pride to the clinching arguments advanced against it at p. 113 of Vol. 1. LAW TIMES (Dec. 17. 1870), and to the unanimous decision of the Court of Exchequer Chamber in accordance with the view which we there took. The action, it will be remembered, was brought to recover damages for breach of a contract of marriage before the time for its performance had arrived, such period being the death of the defendant's father. In noticing the Chief Baron's decision that the action was not maintainable until the time for performance had arrived, we said, "The grounds of his ruling are perhaps reducible to two: first, that the defendant cannot break his promise until the time for performing it (his father's death) has arrived; and, secondly, the difficulty of assessing the damages when such assessment must depend upon a set of circumstances as they are to exist at a future time. To neither of these grounds can we attach much weight. The relation that had been created between the plaintiff and defendant is not expressed by simply saying that he was a promissor and she was a promisee; a contract had been by his promise made between them, creating an obligation on his part not only to marry her when his father's death, which might happen at any time, occurred; but also to continue and be ready and willing to marry her, during the whole time that intervened between his promise and his father's death, which she on her side engaged to continue, and be ready and willing to marry him whenever the time arrived. Should she then continue bound after his declaration that he was no longer ready and willing to marry her, and that he would not be ready and willing when his father died? If she married after this declaration, would the law enable him to sue her for breach of promise, or would it not rather say that he sought to take advantage of his wrongful act? If he would not, then, enforce the' contract, the contract is at an end, and at an end through his act,' And we concluded thus:- On the whole, then, we think the principle of Hochester v. De la Tour quite in harmony with common sense, and that it may occasionally be most advantageous to an injured party, while we can hardly imagine a case where it prejudices unduly a defendant; we may also add that we think the principle fully applies to the facts in Frost v. Knight, and that the judgment of the Court of Exchequer in that case cannot be relied on as giving a correct statement of the law.”
It is unnecessary to do more now than quote one or two passages from the judgments, and upon the point which we particularly urged, the peculiar nature of the contract of marriage, the Lord Chief Justice said: "The contract of marriage appears to afford a striking illustration of the expediency of holding that an action may be maintained on the repudiation of a contract to be performed in future. On such a contract being entered into, not only does a right to its completion arise, with reference to domestic relations, and possibly pecuniary advantages, as also to the social status accruing upon marriage, but a new status-that of betrothment-at once arises between the parties. This relation, it is true, has not, by the law of England, the same important consequence which attached to it by the Canon Law and the law of many other countries. Nevertheless it carries with it consequences of the utmost importance to the parties. Each becomes bound to the other; neither can, consistently with such a relation, enter into a similar engagement with another person. Each has an implied right to have this relation continued till the contract is finally accomplished by marriage. To the woman more especially it is all-important that the relation shall not be put an
Independently of the mental pain occasioned by the abrupt termination of such an engagement, the fact of its existence, if followed by such a termination, must necessarily operate to her serious disadvantage. During its continuance others would naturally be deterred from approaching her with matrimonial intentions, nor could she admit such approaches if made; while the
breaking off of the engagement is too apt to cast a slur upon one who has been thus treated. There is, therefore, every reason for applying the principle to such a case, and for holding that the promise is broken, not only in its present, but in its ultimate obligations and consequences. To hold that the aggrieved party must wait until the time fixed for marrying shall have arrived, or the event on which it is to depend shall have happened, would have the effect of aggravating the injury by preventing the party from forming any other union, and, by reason of advancing age, rendering the probability of such a union constantly less."
Mr. Justice Byles had prepared an independent judgment, but which is precisely in accordance with the view taken by the rest of the court. Both on principle and authority he considered the plaintiff entitled to recover, and as a pithy statement of the law, his opinion deserves quotation: "An express pre-contract of marriage places the man and woman in the condition or status of betrothment. In this state there are certain mutual duties. The woman, for instance, may not, without a breach, marry another man, although it is possible he may die before the future day appointed for marriage, whether already fixed or contingent on a future event. So I conceive that the man cannot during the stipulated period of betrothment, without a breach of contract, marry another woman, though she may die in the mean time; so, for one of the parties to break off the mutual engagement by an express refusal to perform it though before the day-seems to me to be equally a breach of the contract, for it puts an end to the condition of betrothment, which, according to the contract, was to continue. In each of these three cases there is a repudiation of the duties springing from the new relation involved in the contract. Independently of the peculiarities attending the pre-contract of marriage, the decisions establish the principle that an absolute unconditional renunciation of a contract, before the time of performance amounts to a breach of the con
The old case of Hochester v. De là Tour being upheld, the law on this important subject is not likely to be again unsettled.
THE STOCK MARKETS.
CITY, THURSDAY, FEB. 15. JUST a week ago to-day the markets for public securities had reached their greatest point of depression as a consequence of the grave apprehensions which prevailed as to the issue of the discussions both here and in the United States upon the question of the Washington Treaty. Scarcely had prices shown a tendency to recover on indications in the advices from New York that a calmer feeling existed, and that all idea of hostilities was dismissed as absurd, than a new shock fell upon the markets in the shape of the dreadful intelligence of the murder of Lord MAYO. On its being ascertained, however, that this act possessed no political significance, there was again a rally, and since Monday afternoon the course of prices in all departments has been steadily upwards, the buying being upon a large scale notwithstanding the progress of the fortnightly settlement which is concluded to-day. The speculative element having been largely eliminated, the stock markets are steadier, and altogether in a sounder condition, so that intending investors, even at the present somewhat high prices, are more secure against depreciation than a week ago, although there is every reason to anticipate that, notwithstanding the unfortunate retrogression in the negotiations for the settlement of the Alabama affair, mutual consideration and forbearance will prevail on both sides, for the time a decided check has been given to enterprise and the introduction of new undertakings, especially of some known to be from America itself. The result of this has been for the present to check the efflux of capital from this country, rather to crease the abundance of money in this market, and to put out of the question, for the moment at least, any idea of an advance in the Bank rate. Under these circumstances, existing securities derive strength; and, provided no unforeseen circumstances occur of an unfavourable nature, the Stock markets are likely to remain steady or slightly to improve as regards the general level of values.
Consols., which touched 91, on Monday have recovered to 921 to 4. India stocks have been very little disturbed by the telegram of Monday, as the effect upon the markets had come and gone before holders had had time to tako alarm.
Colonial Government securities have been somewhat depressed, especially those of Canada and New Brunswick, but a rally nearly to the former level soon occurred.
The very satisfactory traffic receipts have contributed materially to cause a recovery in the price of British railway stocks, but investors must bear in mind that the current half year's dividend is known as the "little dividend." Metropolitan stock, whioh had been improving in price up to the date of the meeting yesterday, has fallen away again, the communications that were made not being of so promising a nature as were expected. Great Western on the other hand has been in prominent request. The chief changes in the prices of these stocks since last Thursday are a rise of 6 in North-Eastern; of 4 in Manchester and Sheffield, Midland and Sonth-Eastern deferred: of 3 in London and South-Western; 3 in South-Eastern Ordinary; and 2 in North British.
In the market for Foreign stocks the recovery which has taken place has
been due a good deal to purchases from the Continent. Since last Thursday there is a rise of 2 in Egyptian Seven per Cents of 1868; of 2 in all descriptions of Turkish stocks; of 1 in the Egyptian Khedive Loan; of 1 in the French Morgan loan; in the Old and New Spanish; and in the French National Loan.
In American securities the 5-20 Bonds of 1862 have completely recovered, and show no change. The 10-40 are 2 per cent. higher since last Thursday; Erie Railway Shares have risen 2, Illinois 1; and the United States Funded Loan 14.
Business has been restricted in the minor markets pending the arrangement of the fortnightly account, but where there are any changes in prices they are favourable. The announcement of a resolution on the part of the directors of the Val de Travers Asphalte Company to pay 25s. per share dividend for ten months, carrying a large reserve forward, has caused some buying, and the price has advanced to 20 to 21. No change has been made to-day in the Bank rate of discount, which remains at 3 per cent. In the open market there is a good discount business doing, but chiefly in connection with the Stock Exchange settlement. The ruling rates for short price bills are 21 to 3 per cent.
The price of Freach Rentes from Paris this morning is 56f. 67c. Market quiet.
The sum of £37,000 in gold has been withdrawn from the Bank this day, £10,000 of which is for South America. Demand for discount strong.
The latest quotations for British Funds are as follows: Consols for Money, 921 to 924; ditto 1st March Account, 921 to 921; Reduced and New Three per Cents., 921 to 921; Exchequer Bills, 3s. to 7s. prem. ; India Five per Cent. Stock, 1094 to 110; India Four per Cent. Stock, 105 to 1051 ; India Enfaced Paper Four per Cent., 964 to 964; ditto Five and a Half per Cent., 108 to 109; Bank of England Stock, 246 to 248; and Metropolitan Three and a Half per Cent., 96 to 974.
In the market for American Securities, the United States 5-20 Bonds of 1882 are marked 911 to 92; ditto, 10-40 Bonds, 90 to 90; Erie Railway Shares, 28 to 284; Illinois, 108 to 109; and United States Funded Loan at 89 to 894.
In the Railway Market the prices are:-Caledonians, 115 to 1161;
Great Eastern, 50 to 511; Great Northern, 140 to 141; ditto, A,
NOTES OF THE WEEK. COURT OF APPEAL IN CHANCERY. Thursday, Feb. 8.
(Before the LORD CHANCELLOR.) ABBOTT v. BAKERS AND CONFECTIONERS' TEA Trustee Acts 1850 and 1852. Under the marriage
peal by Vice-Chancellor Wickens, before whom it
Trade mark-Colourable imitation-Injunction.
Horton Smith, for the petitioners, referred to the conflicting decisions of Mennard v. Welford (1 Sm. & Giff. 426) on the one hand, and Withington v. Withington (16 Sim. 104), and Re Watts's Settlement (9 Hare, 106) on the other hand.
Their LORDSHIPS inclined to the opinion that the incapacity to act meant a personal incapacity, but, without expressly deciding the point, directed the order to enable the court to appoint the new trus tee under the Trustee Act 1850, sect. 32, which, notwithstanding Re Blanchard (4 L. T. Rep. N. S. 426; 3 De G. F. & J. 131), their Lordships were of opinion, empowered the court to appoint a new trustee in place of one resident out of the jurisdiction.
Solicitor, D. Keane.
had formerly purchased the goods of A., might Practice-Company-Winding-up-Official liqui be deceived by the imitation of B.
Solicitors for the plaintiffs, Thomson and Son. Solicitors for the defendants, G. S. and H. Brandon.
Monday, Feb. 12.
(Before the LORDS JUSTICES.) Re BIGNOLD'S SETTLEMENT TRUST. Practice Trustee-Power of appointment-"Incapable to act"-Trustee gone to reside abroadTrustee Act 1850, s. 32.
THIS was a petition referred to the Court of Ap
dator-Discovery-Affidavit of documents. THIS was an appeal from an order of the Master of the Rolls (reported in 25 L. T. Rep. N. S. 526), directing the official liquidator of the above company to make an affidavit as to documents in his possession. The official liquidator was endeavouring to place Gooch on the list of contributories, on the ground that an alleged transfer made by his testator, being to an infant, was a nullity, and that he continued to be a shareholder. There was an alternative claim under these circumstances; the infant himself made a transfer, which was accepted and registered, and there had been sub
sequently dealings with the shares, and the liqui dator contended that if this prevented him from going back to the original void transfer, Gooch was at least liable to be placed on list B. Gooch alleged there were no debts of the company dating back beyond the time when he ceased to be a member, or at least none which there were not assets of the company sufficient to discharge, and that he, therefore, could not be placed on list B. It was with a view to discovery in support of his make the affidavit as to documents. The liquidator contention that the liquidator was required to appealed from the order of the Master of the Rolls.
Sir Richard Baggallay, Q.C. and J. W. Chitty, for the appellant, contended that he ought not to be required to make the affidavit, for if in every question to be settled in the winding-up of a comjustitia to treat the official liquidator as a litigant, pany every contributory was entitled ex debito purpose to examine all books and papers in his and to compel him to make discovery, and for that custody, it would add enormously to the costs of winding-up.
Osborne Morgan, Q.C. and Bagshawe for Gooch. Lord Justice JAMES, in delivering the judgment of the court, said that a winding-up was a partnership suit, in which the official liquidator was the receiver and manager appointed by the court of the partnership assets, and could not be treated
as a person liable to be treated as a defendant for the purposes of discovery. With regard to the for placing Gooch on List B, and if so, what question whether the statutory requisites existed was the extent of his liability, the existing comquestion in which every creditor and past member pany had really no concern with it; it was a might have his hand against every other creditor and past member. The liquidator, as the officer of the court, was bound to see that in this free fight everybody had a fair field and no favour, and to act strictly in the interest of truth and justice and none other. But he was no party for discovery or otherwise to any such litigation. The order of the Master of the Rolls must therefore be discharged; but, if Gooch desired it, the court would substitute for it an order to make the usual affidavit as to documents relating to the particular shares in respect of which Gooch was sought to be placed on the list.
Solicitors for the official liquidator, Linklaters, Hackwood, and Addison.'
Solicitor for Gooch, H. Wellington Vallance.
Jan. 13 and 22, and Feb. 13. CHATFIELD v. BERCHTOLDT. Legacy duty-Estate pur autre vie-36 Geo. 3, c.52, s. 20-Personal estate-Foreign domicil. THIS was an appeal from a decision of Bacon, V.C. The Marquis of Hertford, who died in 1842, by his will gave an annuity of £700, which he charged upon certain real estates in the counties