THE BENCH AND THE BAR.

THE TRANSLATION OF SIR ROBERT

COLLIER.

IN obedience to an order made by the House of Lords, on the motion of Lord Stanhope, the correspondence between the Lord Chief Justice of England and the Lord Chancellor upon the appointment of Sir Robert Collier to the Judicial Committee of the Privy Council, was published on Saturday.

This correspondence originally appeared in the Times, and need not therefore be repeated. In the official return is, however, comprised the following correspondence between the Lord Chief Justice of the Common Pleas and the Lord Chancellor, together with an opinion from Mr. Justice Willes: THE LORD CHIEF JUSTICE OF THE COMMON PLEAS TO THE LORD CHANCELLOR.

Coombe Wood, near Kingston, 9th Dec. 1871. My dear Lord Chancellor,-Having seen a copy of the correspondence which has passed between the Lord Chief Justice, Mr. Gladstone, and yourself, on the subject of the appointment of Sir R. Collier to a judgeship in the Privy Council, I feel bound, as the head of the Court of Common Pleas (which was made use of on that occasion), to state that I entirely concur in the views which the Lord Chief Justice has so well and forciely expressed upon the subject.

I must also add that when the appointment of Sir R. Collier as a Judge of the Common Pleas was made, if, as now appears to have been the case, it was intended that such appointment should not be a real permanent appointment, but merely as a qualification for another office, I think some communication to that effect might and should have been made to me as the head of that court.

I can only express my great regret that a little more condence does not exist between the Lord Chancellor and the chiefs of the Common Law Courts with respect to appointments in those Courts, more especially when I remember that on the first day of last Term I alluded to the filling up of the vacancy in the Common Pleas, and it now appears that at that very time Sir R. Collier had gone down to Balmoral with a view to his appoint

ment.

I have further to state to you officially that the delay in filling up the vacancy in the Common Pleas and the not filling up the vacant appointment in the Queen's Bench have prevented the Court of Exchequer Chamber continuing its sittings in error, and produced a serious arrear of cases in that Court, in fact, such an arrear as I do not remember to have ever before occurred.

I need scarcely add that my letter has no reference to Sir R. Collier personally, for his merits and his claims to high judicial office have never been questioned.

In conclusion, I beg to assure you that it is with very great pain and regret that I have felt myself compelle, as Chief Justice of the Common Pleas, to address this letter to your Lordship, for whom I have always entertained the highest esteem and regard. And believe me, yours very truly,

WM. BOVILL.

THE LORD CHANCELLOR TO THE LORD CHIEF
JUSTICE OF THE COMMON PLEAS.

31, Great George-street, S. W., 12th Dec. 1871. Dear Lord Chief Justice Bovill, Your letter did indeed pain me, because I did not think you would follow the course of the Lord Chief Justice of Eng. land.

He has pronounced, and as you say, "forcibly expressed," a very elaborate condemnation of Mr. Gladstone's conduct, without even asking for an explanation, and you now, in like mauuer, condemn me unheard.

I waive all question as to the right of the Lord Chief Justice of censuring, ex cathedra, the Executive Government, and pronouncing judgment without citation or hearing, but I felt strongly the impropriety of either Mr. Gladstone or myself entering into au unseemly contest with the Lord Chief Justice of Englaud, and declined doing more than state that I was prepared to justify the matter complained of, at a fitting time. I think that such explanation, if given at all, should be in Parliament.

I would not, therefore, allow myself to be tempted even by the assumption of the Lord Chief Justice that general indignation existed on the part of the Bench and Bar, to dispute any one of his propositions.

As regards ourselves, I feel in like manner that nothing would be more unseemly thau a public altercation between two persons holding our respective offices.

I am surprised that, after reading my letter (for you say you have read the correspondence), you could not wait a little longer for the explanation there promised, or at all events, if you thought yourself entitled so to do, have sought an explanation from me of that which you seem so long to have condemned.

You have preferred to follow the Lord Chief Justice's example in condemning the conduct of Government without a hearing.

In that state of the case, I think it useless to explain that upon which you have already decided. For the same reason I waive for the present my reply to other matters of detail referred to in your letter.

With respect to such matters I will only say that I am not aware of any wilful discourtesy or want of confidence on my part towards all or any of the judges. On the contrary, I had thought till lately that I had lived on such terms of intimacy and friendship with them all that it would not, at least till after ample opportunity of explanation given, be judicially determined that I had been guilty of colourable evasion" in any act, public or private, of my life. Yours faithfully,

HATHERLEY.

P.S.-With reference to an eighteenth judge, the appointment of a judge to the Court of Queen's Bench is delayed till I hear from the Lord Chief Justice, in answer to a letter I sent to him last week, proposing that the new judge should undertake bankruptcy, the Vice-Chanceller's court in equity being heavily pressed.

The Vice-Chancellor did not originate, but he does not object to, the proposal. I await his Lordship's views on the subject.

The Right Hon. the Lord Chief Justice Bovill. I do not intend to publish our correspondence, but reserve my right to refer to it in making any explanations. THE LORD CHIEF JUSTICE OF THE COMMON PLEAS TO THE LORD CHANCELLOR,

Coombe Wood, near Kingston, 16th Dec. 1871. ing to your letter until to-day. I can truly say that it Dear Lord Chancellor,-I have been prevented reply. was equally painful to me to write the letter which I addressed to your Lordship, as it could have been to you to receive such a letter from me.

Until the correspondence with the Lord Chief Justice was published, though feeling strongly upon the subject, I did not consider myself called upon to express my opinion officially; but when that correspondence was made public I felt that I, as Lord Chief Justice of the Court through which Sir Robert Collier had been appointed to the Judgeship in the Privy Council, could not, consistently with my position, and from what I knew to be the general opinion upon the subject, any longer remain silent. Your Lordship has declined to give any explanations at the present time in answer to the Lord Chief Justice's letter, beyond stating your both its fituess and its legality, and at the same time conviction that the arrangement was justified as regards stating that you had acted advisedly and were prepared to vindicate the course pursued, but reserving your The fitness of explanations, in effect, for Parliament. Sir R. Collier and the legality of the appointment were not the points of the Lord Chief Justice's objections, and to those objections no explanation was offered or suggested by your Lordship.

After such a reply to the Lord Chief Justice, I had no right to ask, nor could I have expected, any further explanation from your Lordship, and I, like the rest of the Profession and the public, was left to form my own opinion upon the subject. That opinion was that the manifest and expressed intention of the Legislature was that the new Judges of the Privy Council should be men of tried judicial experience, and that this had been clearly indicated, not only by the language of the statute itself, but by the debates in Parliament. It appeared to me, therefore, as it did to the Lord Chief Justice, and to almost everyone both in and out of the Profession to whom I have spoken upon the subject, that the appointment of Sir R. Collier, though it might be strictly within the words of the Act, was contrary to its spirit and to the intention of the Legislature, and that it was in that sense, and in that sense only, an evasion of the statute.

Considering who the Judges were to whom the appointments are understood to have been offered in the first instance, it would seem as if your Lo dship had at first acted upon the same view of the intention of the Legislature.

The appointment of Sir R. Collier as a Judge of the Common Pleas, not with the real object of his fulfilling the duties of that position, but simply for the purpose of clothing him with a qualification which he did not otherwise possess, also seemed to me, as it did to the Lord Chief Justice, to be a mere colourable appointment so far as the Common Pleas was con. cerned, and therefore a degradation of the judicial office.

I also could not help feeling that by the arrangements which were made a slight had been passed upon other members of the Bench, and which I was sure was keenly felt.

I cannot consider that I am fairly open to the observation of condemning your lordship without an opportuuity of your being heard, especially when you reserved your explanation for Parliament, thus selecting a time and place when and where no reply could be offered by either the Lord Chief Justice or my self.

Your lordship has construed my expression of regret at the absence of confidence towards the chiefs of the Common Law Courts as a charge of discourtesy. I freely acknowledge, as every one I think must do, your general courtesy and kindness, and I have always been proud of enjoying your friendship and intimacy; but these have only made the absence of all confidence in our official relations the more painfully apparent. There was a time when the Lord Chancellor though it right to communicate confidentially with the heads of the Common Law Courts with respect to the arrangements and the changes and appointments in their respective courts, and in that way he became not only better acquainted with any special requirements in the constitution of the courts, but also (without the slightest iuterference with his selection of a judge) usually obtained much better

Borough.

Berwick-on-Tweed Canterbury

Carmarthen

Chichester Deal Faversham Leeds Shrewsbury Wigan

information than he could possibly himself possess as to those members of the Bar who were best qualified and the most eligible for promotion to the Bench, or to fill a particular vacancy; and I am satisfied that such con. fidential communications were very advantageous to the public service. On the several occasions of the removal of Sir Montague Smith from the Court of Common Pleas to the Privy Council, of the appointment of Sir R. Collier as a Judge of the Common Pleas, and of his subsequent removal to the Privy Council, and of the subsequent appointment of Mr. Justice Grove, I never received the slightest communication, direct or indirect, from your lordship upon the subject of the changes in the constitution of the court over which I have the honour to preside; nor was any intimation made to me by your lordship as to the nature or object of Sir R. Collier's appointment, or that it was to be a merely nominal and temporary appointment. It seems

to me also that a letter was a more suitable occasion than a debate in Parliament for a few words of explanation on this part of the subject.

Your Lordship has been good enough to inform me of your intentions with respect to the vacant judgeship in the Court of Queen's Bench, and I have no hesitation in expressing my opinion, not only as to the propriety, but the actual necessity, of filling up the vacancy in that court; but considering the various duties of the Common Law Judges, and the arrangements which have to be made among themselves for discharging those duties with regularity (and which no one who is not acquainted practically with these matters can properly appreciate), I shall consider such a scheme as you have suggested (of adding the duties of the Judge of Bankruptcy) wholly impracticable; and I venture to dissuade you from attempting it, even if such an ap pointment should come within the meaning of the last Bankruptcy Act, which I have not had an opportunity of considering.

You can use this correspondence in any way you think proper, and I reserve to myself the same liberty, though I have no present intention of publishing any part of it. Believe me to remain, yours very faithfully, WIDLIAM BOVILL.

The Right Hon. the Lord Chancellor.
THE RIGHT HON. MR. JUSTICE WILLES TO THE LORD
CHANCELLOR.

Otterspool, Watford, 5th Feb. 1872. My dear Lord Chancellor,-I have no objection to your stating or reading anywhere my views of the appointment of Sir Robert Collier.

1. The appointment was legal, and within the terms of the statute.

2.

Evasion" of the law, by appointing a fit man "" sensational' expression. according to the law, is a The appointment may have surprised those who had not sufficiently considered the terms of the Act, but it was no evasion of the Act.

3. Whether Parliament was surprised into passing the Act by any suppression, for which its framers are auswerable, is a political question with which I decline to medale. Parliament must decide that for itself.

4. I had nothing to do with the Lord Chief Justice's letter to the newspapers, or the correspondence then published. I do not agree to the legal o jections there should be so advertised. suggested. I much regret that the judge's opinions

5. The practical objection is to the statute itself, for not providing a sufficient inducement to the judges to accept the office, because of making no provision or compensation for their existing staff. Upon this ground I thought from the beginnning that the framers of the Act must have contemplated the appointment of Sir Robert Collier or some other newly-appointed judge, in the event of judges of older standing declining the office. It is now, however, clear that this was not the general impression, though I believe that no lawyer upon an impartial construction of the Act could pronounce the appointment to be other than lawful.

Probably you will prefer reading this letter directed to yourself, instead of that written to Sir Robert Collier, which, though in effect and substance the same, may contain expressions too lively for public reading, an end not thought of at its writing.-Yours J. S. WILLES. faithfully,

The Lord Chancellor, &c., &c.

DATES OF APPOINTMENTS. The letters patent appointing Sir Robert Collier a judge of the Court of Common Pleas are dated 7th Nov., 1871.

The Royal Warrant appointing him a paid member of the Judicial Committee of the Privy Council, is dated the 22nd Nov. 1871.

NOTES OF NEW DECISIONS. LARCENY-STEALING A COUNTY COURT WARRANT-24 & 25 VICT. c 96, s. 30.-A judgment debtor whose goods had been levied upon, and were in possession of a County Court bailiff, under an execution, forcibly took the warrant from the bailiff and turned him out of possession, in the belief that it was the actual possession of the warrant alone which entitled the bailiff to remain in possession. Held, that such taking away of the warrant was for a fraudulent purpose, and a felony within the 24 & 25 Vict. c. 96, s. 30, but not a

larceny: (Reg. v. Bailey, 25 L. T. Rep. N. S. 882 Cr. Cas. Res.)

AN EVENING BEVERAGE CACA'OINE. -The Food Journal says:-By a new process to which the nibs are subjected, the principal part of the oil is effectually removed; a thin beverage, well adapted for afternoon or evening use, as a substitute for tea, being the result. The flavour of Caca'oine will, in addition, be a great attraction to all." Each packet or tin is labelled, "JAMES EPPS & Co., Homeopathic Chemists, London." Also makers of Epps's Milky Caca'oine (Caca'oine and Condensed Milk.)

REAL PROPERTY AND
CONVEYANCING.

NOTES OF NEW DECISIONS. LANDLORD AND TENANT-OUTGOING AND IN. COMING TENANT-CUSTOM OF THE COUNTRY.

By custom of the country the outgoing tenant looks for payment of tillages and straw left on the premises to the landlord, and the landlord looks to the incoming tenant in return. The outgoing tenant being about to give up a farm in favour of the defendant, two valuers were nominated to value the amount to be paid by the defendant. After the defendant had come into possession, the outgoing tenant not having paid his rent, the landlord requested the defendant to pay the amount of the valuation to him, which he did. In an action brought by outgoing against incoming tenant to recover the value of acts of cultivation performed by the former: Held, that a valuation being made between the incoming and outgoing tenants was not sufficient to create a contract between them to the exclusion of the landlord's rights; and that no such privity of contract existed between the parties as to enable the out. going tenant to sue the defendant: (Stafford v. Gardner, 25 L. T. Rep. N. S. 876. C. P.)

LANDLORD AND TENANT-EXCESSIVE DIS. TRESS. The plaintiff was the tenant of a house, in respect of which rent became due to the amount of £9. The defendant, who was the landlord, issued a distress warrant, whereby he claimed £18 for arrears of rent, and seized £100 worth of goods on the premises. The rent justly payable was tendered, with costs, but the defendant declined to receive the same, and remained in possession until an undertaking was given on behalf of the plaintiff for payment of the whole sum claimed, part of which, viz., £2 78. was then actually paid, whereupon the distress was withdrawn. The plaintiff brought an action against the defendant, declaring for an excessive distress, and upon the common money counts. It appearing at the trial that all the goods in the house had been assigned to trustees, one of whom resided with the plaintiff, on trust for the wife of the plaintiff, who also lived with her husband in the house, the plaintiff was nonsuited. A rule having been obtained for a new trial, on cause shown: Held that the enjoyment of the use of the goods gave the plaintiff a special property in them which entitled him to maintain the action formally alleging them to be his goods, although he was neither the legal nor the equitable owner: (Fell v. Whittaker, 25 L. T. Rep. N. S. 880. L. and H., JJ.)

MARITIME LAW.

NOTES OF NEW DECISIONS. COLLISION-COMPULSORY PILOTAGE-BURDEN OF PROOF-Costs.—In a cause of damage by collision, where the defence relied upon is compulsory pilotage only, and the defendants prove that the vessel was in charge of a licensed pilot by compulsion of law, and that he gave orders for the purpose of avoiding the collision, and that these orders were obeyed, and here the plaintiffs seek to show that the collision was due to the defective steering power of the defendants' vessel, it lies upon the plaintiffs to prove such defective steering power by substantive evidence. Defendants in a cause of damage, who rely at the hearing upon the defence of compulsory pilotage only, and succeed in this point, but whose pleadings raise other issues which are not proved, are not entitled to their costs: (The Livia, 25 L. T. Rep. N. S. 887. Adm.)

SALVAGE-JURISDICTION-MERCHANT SHIPPING ACTS.-The jurisdiction in salvage cases where the value of the property saved is under £1000, taken away from the High Court of Admiralty by the Merchant Shipping Act 1854 (17 & 18 Vict. c. 104), s. 460, and the Merchant Shipping Amendment Act 1862 (25 & 26 Vict. c. 63) s. 49, is restored to that court by the County Courts Admiralty Jurisdiction Aet 1868 (31 & 32 Viet c. 71): (The Empress, 25 L. T. Rep. N. S. 885. Adm.)

COUNTY COURTS. LORD MAYOR'S COURT. Wednesday, Feb. 14.

Amount of debt is £14 2s. The goods were supplied on a written order. I was served with a summons in a previous action in this court. I entered an appearance in person, and gave notice to plaintiff's attorney at his office. That action was quashed. This is an action for the same debt. In the first action I saw plaintiff's clerk at Cannon-street, I said, "I am prepared to pay the The debt less your costs and 8s. struck off." clerk said, "Why not our costs?" I said, "Never That offer was mind; there is the appearance.' refused. This action was then brought. Morgan Howard submitted that this was not sufficient to give the court jurisdiction. The offer to pay was only conditional, and could not be said to amount to a promise to pay. Further, if it was a promise, it was without any consideration.

The DEPUTY RECORDER said that it was the case of an account stated and an acknowledgment of indebtedness by the defendant. A letter posted, or anything done within the city which could be taken to be a promise to pay or an admission of the debt, gave jurisdiction to the court. He did not think that, looking at the matter equitably, he could refuse to exercise jurisdiction. Howard applied for leave to move or to appeal, but was refused.

MARYLEBONE COUNTY COURT.
Wednesday, Feb. 7.

(Before THOS. E. M'TAGGART, Esq.)
ABDOOLLAH . FOSTER.

Master and servant-Right of the master to re-
cover against the servant who leaves without
notice.

HIS HONOUR.-The defendant in this case was
hired by the plaintiff as a menial servant,
duration of the hiring, or as to notice on either
to the
no express contract being made as
side. The wages were payable quarterly, on
the day on which the quarter's wages were
due. The defendant received them, and then
at once quitted the service, without notice. No
ment by the master justifying her leaving without
other misconduct on her part, and no illtreat-
notice is alleged. The plaintiff now sues for the
amount of a month's wages by way of compensa-
tion for the defendant having quitted the service
without notice or payment of a month's wages;
and the question which I have to decide is whether
that amount, or any amount, is recoverable upon
that ground. Such an action is not common; and
whether it lies at all, either for the amount of a
month's wages, or for any amount, is a point
upon which there seems to be a difference of
opinion, and which has never been directly
decided in the courts at Westminster. The diffi-
culty in the way of an express decision is that it
must turn, not upon an abstract rule of law, but
upon what is as a matter of fact the custom en-
grafted in the case of menial servants upon the
ordinary contract of hiring, where no express
conditions are made to the contrary. Under an or-
dinary contract of hiring, when the service is not
menial, it seems clear that either party is liable to
the other in damages for terminating the service,
without lawful cause, before the stipulated
period of hiring, or, where the hiring is made
determinable, either expressly or by implica-
tion upon a specified or a reasonable notice,
for determining it without such notice. The
damages would vary with the circumstances, but
it has never been contended that the rights and
remedies of the employer and the employed, as
regards the putting an end to the hiring, are not
mutual. Under a contract of hiring of a menial
servant, in the absence of any special condition to
the contrary, there is this custom undoubtedly
engrafted upon the general contract of hiring,
that the master is at liberty to terminate the
hiring either by a month's notice, or, without such
notice, by paying the amount of a month's wages
in addition to the wages pro rate up to the time
of dismissal. And if he dismisses (except for law-
ful cause) without such notice and without such
payment, the servant can recover in addition to
any wages accrued up to the time of dismissal,
the month's wages (and only that amount) by way
of damages for being so dismissed without the
stipulated compensation. What, on the other
hand, are the rights and obligations of the servant
by custom as to terminating the service on his
part? Is he, like the master, bound to give a
month's notice? And if he leave without it, is he

(Before the DEPUTY RECORDER (T. Chambers, bound to pay or forfeit the amount of a month's

Esq., Q.C.)

DUCK v. LUCK.

Jurisdiction-Conditional offer to pay-Held a promise to bring the defendant within the jurisdiction.

Kemp for plaintiff; Morgan Howard for defen

dant.

This was a claim for goods sold and delivered. There was a single plea to the jurisdiction. The defendant Luck said: I reside at Lewisham. Plaintiff resides in London-road, Southwark.

wages by way of compensation to his master, or to pay that amount by way of damages if he leave without either notice or payment? Now, unless he be liable to pay, in the one form or the other, some compensation for leaving without notice, the custom comes, practically, to this, that the servant may leave without any notice; that notice is not a condition in the contract so far as he is concerned a condition the breach of which involves no liability being to all intents and purposes, no condition at all. If, therefore, that be the custom,

its effect is to preserve to the servant the protection against a sudden dismissal which he would have had under any other contract of hiring, and to deprive the master, at the same time, of the protection which he would have had, under any other contract of hiring, against a sudden desertion of the service by the servant. It is not uncommonly supposed that the servant, if he leaves without notice, between one pay day and another, forfeits all accruing wages. I will notice this point presently; but, even assuming this to be the rule, it is clear that it affords no protection to the master against the servant leaving, as in the present case, on the day of payment, after receiving the wages due. The custom, therefore, if it were as I have suggested, and as it appears to be sometimes assumed, would destroy the mutuality as to notice, which exists under all ordinary contracts of hiring, and could, in the case of a menial servant, make such notice or compensation compulsory upon one of the parties only. Such a custom, I confess, seems to me to be so utterly unreasonable on the face of it, that I doubt whether it ought to be admitted as a custom at all. But, at all events, its unreasonableness affords strong grounds for rejecting it in favour of the custom which is more generally supposed to exist, and which is properly reasonable, namely, that neither servant nor master can terminate the hiring without either notice or compensation. I may observe, that in Turner v. Robinson. (14 M. & W. 112), which was an action by a domestic servant against a master for dismissal without notice, the declaration alleged, and, as far as my experience goes, the declaration always alleges, that either party agreed to give a month's notice to the other before terminating the hiring; and that is some evidence that that is the customary condition. And if it be, as, for the above reasons, I hold it to be, it seems to me simply absurd to say that the liability, though the breach of it by the master does. breach of the condition by the servant involves no Whether the measure of damages in an action for terminating the hiring without either notice or payment is the same in both cases, seems to me more doubtful. It is not, on the face of it, absothe damages for not paying it, should be liquidated lutely unreasonable that the compensation and in the one case, and unliquidated in the other. But I think that the more reasonable construction certainly is that the custom fixes at the same time

the extent both of the master's and the servant's rights and remedies, and makes the amount of a month's wages the price at which either party is at liberty to terminate the contract, and the amount of damages to which either is liable for terminating it without paying that price. It is not necessary, however, to decide this point in the present case, because I am of opinion that the month's wages claimed here is an amount which certainly does not represent more than the actual damage and inconvenience caused to the plaintiff by the defendant, and that he is therefore entitled to recover that amount. I have already adverted to the question whether a domestic servant who leaves without notice forfeits all wages the day of payment for which has not arrived. Upon this point also there is a difference of opinion. My own opinion is that he does not, unless the leaving without notice is preceded or accompanied by misconduct, or is brought about by his being discharged without notice for misconduct. In either of these cases there is a breach of the implied condition that he shall serve faithfully up to the time of leaving. He has, therefore, not done all things necessary to enable him to claim for his services. Whether he forfeits the accruing wages by merely quitting without notice depends upon the question which I have already treated, namely, whether custom has fixed the precise amount which he is to pay or forfeit for so quitting, as it has the amount which the master must pay if he discharges him at once. If custom permits, as part of the contract, that the servant may, like the master, free himself from the condition as to notice by payment of a stipulated sum, he commits no breach of contract by quitting at once upon such payment, and is therefore entitled to the balance, if any, of the wages accruing up to the time of his leaving. If on the other hand, he is, as to notice, simply in the position of a non-domestic servant, and therefore liable to unliquidated damages for quitting without notice, he cannot claim in such case for the broken period between one pay day and another, because it is not part of his contract that he may get rid of the condition and his breach of the condition is fatal to his in it as to notice by payment of a stipulated sum; claim for accruing wages under the contract of which it forms part. If this view be correct, it seeems to me to afford another reason, on the ground of reasonableness, for holding that custom, in order to prevent the contract of hiring of a menial servant from binding too stringently either master or servant, fixes an amount upon payment of which either party may terminate the hiring at once, and makes this amount the same as regards either party.

Attorney for the plaintiff, Clarke.

FLOGGING.-An account of all the prisoners who have been flogged since the practice of corporal punishment was definitely revived in 1864 makes a bulky Parliamentary paper. Only the initials of the convicts are given, with the nature, reason, and amount of the punishment, the persons by whom it was ordered, and those by whom it was witnessed. In the seven years covered by the return 5614 floggings were administered in England and Wales. The great instrument is still the birch, and boys are its chief subjects. Most of the boys thus birched were over ten years of age; the majority seem to be between eleven aud fourteen. There are, however, a considerable number at eight and nine; about a couple of dozen at seven years of age, and one small incorrigible who stands in the catalogue as only four-which we are inclined to hope is a misprint for fourteen. He is down as having been sentenced at the Marylebone police court in April last, and as having received ten stripes with the birch. The more formidable instrument of punishment is, of course, ouly used for older criminals; and is still used but sparingly. The cat" appears to be used in about one case in fifty. In 178 cases it has been administered under the powers of the Act of 1864; in a majority of the other cases it has been ordered chiefly by visiting justices as a punishment for disorderly behaviour in the prison. In Ireland corporal punishment is almost limited to juvenile offenders, and of these only 103 have been sentenced to it. There are no visiting justices of prisons in Ireland, and the boards of superintendence have not the power, as the visiting justices have in England, to order whipping for prison offences. The result is that in the seven years only two adult prisoners have been flogged in the sister island.-Daily News.

CORRESPONDENCE OF THE

PROFESSION.

NOTE. This department of the LAW TIMES being open to free discussion on all professional topics, the Editor is not responsible for any opinions or statements contained in it. COUNTY COURT PRACTICE.-I take the liberty of addressing you on this subject, and trust it may receive your favourable consideration. It is now admitted in our branch of the Profession that County Court business is scarcely worth having to a respectable attorney. Fifteen years ago it was different. Since then a system has grown up by which a number of irresponsible uneducated persons called debt collectors have usurped all the business of attorneys in the County Courts which was worth anything, namely, the conduct of undefended or slightly defended causes, and we now get nothing but what either comes out of our offices, or debt collectors cannot manage. The fault is with the judges and registrars. In a few years, if things do not mend, it will not be worth the while of a respectable attorney to attend the court at all, and it will become the refuge for the destitute in our profession. In the first place, take the undefended list. The registrar takes the most informal proof, it is done in a slipshod, hasty, anyhow, way. The agent is unchecked, and the plaintiff does not attend the court. A debt collector will thus get through twenty or thirty cases a day at least. Now I protest against this. The registrar should make the plaintiff attend himself or by attorney, and the person who delivered the goods or lent the money, &c., should attend. An agent has no business in the witness box at all, and certainly has not a right to call and examine witnesses. His evidence ought not to be taken as anything more than corroborative proof, for it only is that he has applied for the debt, and it was not denied by defendant. That is all the evidence that an agent can give, and it comes to little in point of law. Then take the defended cases before the Judge. I have had to sit sometimes an hour or more until a number of cases in which agents are

concerned are taken, until my turn came. I say, without hesitation, it is unjust to the suitor, illegal, and cruel to the attorneys, that a judge should allow an agent's evidence to be of any weight in itself, except as corroborative of the plaintiff's, and yet the judges have relapsed into a slovenly way, and admit it. I maintain that unless County Court advocacy is to go down to the very lowest and most incompetent persons, unless young practitioners are to be disgusted with what is popularly supposed to be nice prac tice and the most "rising" court in the kingdom, the whole system must be changed. Fifteen years ago, when I first began, I had on an average eight causes a court day; now, with an established reputation, and the best practice at the Bar, I have not half that number. I used to conduct causes which agents now do, and it really does not pay me to attend the conrt, and my friends at the Bar all say the same. I do not care much for such work myself now, bnt. I have the interest of the Profession at heart. Without unity nothing can be done, but let us unite. Let us by intercommunication arrange in every town where a court is held

in a given week, say the second in April, for a meeting of advocates of each bar, and let the attorneys attend the Judge and come to a proper understanding, and let every registrar and judge help the advocates, and vice versa. With combination, the debt collectors will be snuffed out. Only one question remains-the interest of the suitor. An attorney charges a fixed fee, an agent or debt collector 20, 25, and even 30 per cent on the amount recovered. I would finally suggest that unless the attorneys get what they require they should retire in a body from the court, and take no business there. AN ATTORNEY OF A QUARTER OF A CENTURY'S EXPERIENCE.

THE HARINGTON PEDIGREE.-My attention has been called to a letter appearing in your issue of Feb. 3, headed with my name, and signed tion as to the right of my cousin, the present Sir "A Barrister," the writer of which raises a quesJohn Edward Harington, to the title of baronet, grounding his objection on the statute 13 Car. 2 st. 1, c. 15. But for reading the letter in your paper, I could not have imagined that the pedigree of a County Court judge could, under any circumstances, be a subject of interest to your readers, and it was with some surprise that I observed your insertion of a letter on a matter so exclusively of private and family interest to myself; and that A Barrister" should have thought it worth while to call attention to the "shadow of a doubt" on the subject, referred to by Mr. Serjt. Burke, as a reason for regretting the non-existence of a tribunal qualified to dissipate it, a shadow which I thought had vanished a quarter of a century ago, when, under the direction of the chapter of the Heralds' College, the opinion of an eminent counsel was taken upon the point. I do not apprehend that my cousin will be much disquieted by "A Barrister's" doubts, but as they have been brought before your readers it is right that I should not allow them to pass unnoticed, lest it should be supposed that the "shadow" is cast by some substance. My late father, who was much interested in all matters connected with family antiquities, caused the Harington pedigree to be verified and registered at the Heralds' College in the year 1845 and 1846. The chapter of that body then called attention to the statute 13 Car. 2, st. 1, c.;15, upon the construction of which the opinions of the late Serjt. Hill, Mr. Hargrave, and Mr. Jeremy had been formerly taken by the late Sir John Edward and others interested. The gentlemen thus consulted all agreed that the statute 13 Car. 2 st. 1, c. 15 did not forfeit the dignity as against the heirs of the degraded baronet, but the chapter required the further opinion of a counsel approved by them. That of Mr. Turner, Q.C., was accordingly taken on the 3rd Nov. 1815, who expressed a decided opinion that the hereditary dignity had not been forfeited. This opinion satisfied the Chapter of the Heralds' College, and the pedigree was recorded by them accordingly. Anyone who takes the trouble to look carefully at the statute will observe that it is not, like the statute 12 Car. 2, c. 30, an Act of Attainder. Sir James Harington was never, by verdict, judgment, or statute, convicted or attainted of high treason. It is true that he was excepted out of the Act of Oblivion, but, unlike the active regicides, he, with Lord Mounson (not "Thomson") was expressly reserved to future pains and penalties, not extending to fe. These were declared, by the 13 Car. 2, st. 1, c. 15, intituled "An Act Declaring Paines, Penalties, and Forfeitures imposed upon the Estates and Persons of certain Notorious Offenders Excepted out of the Act of Free and General Pardon, Indemnity, an Oblivion." No mention of heirs or issue is made in this statute, which does not profess to attaint, or to inflict the penalties incident to an attainder, and which, upon the ordinary rule of construction of penal statutes, would scarcely, even by the judges of that day, have been construed to inflict a forfeiture upon innocent persons not named in it. There were also special reasons why Sir James Harington should have been treated with exceptional leniency. He was nominated on the Regicide Commission against his will; he sat but once, and that upon compulsion; he uniformly protested against the murder of the king, and positively refused to take part in passing the sentence or siguing the warrant. His cousin and namesake, the author of the Oceana," though a theoretical republican, was groom of the chamber to, and the devotedly attacl el se v n of, the king, whom he attended on the scaffold-an incident alluded to by Lord Erskine in his defence of Paine. In my ancestor's case accordingly, even the forfeiture imposed by the Act was not insisted on, for the family estate of Merton in Oxfordshire, was restored to his wife, and remained in the family for several generations. The title of baronet was used without objection by his son, and since uninterruptedly, and without question by his heirs male. I have had no opportunity of verify. ing your correspondent's assertions with reference

to the baronetage of 1741, but assuming him to be correct, the omission is easily accounted for by the circumstance that the then baronet, Sir James Harington, the great grandson of the regicide, and grandfather of the late Sir John Edward, was of Jacobite opinions, and lived for many years in exile with Prince Charles Edward; and, as his political bias was probably known, it is not surprising that his right to the baronetcy should have been put out of sight by compilers of a work intended to be acceptable to the party in power. I have troubled you at greater length than I intended, but I have thought it as well to point out the reasons why the questions with which your correspondent concludes his letter. "The lives of the regicides are spared, but were they not equally attained sic (? attainted) as if they had been tried, convicted, and executed?" should, so far at least as my ancestor is concerned, be answered in the shadow." negative without even "a doubt which is but a

RICHARD HARINGTON.

[Our reason for inserting the letter was this: We had previously noticed, in stating Mr. Harington's appointment, what his family was, and out of this arose the "Barrister's" letter.ED. L. T.]

COMMISSIONERS' FEES. Some uncertainty seems to exist as to what fees a commissioner is entitled to take in the country for oaths administered by him, as a commissioner to administer oaths in Chancery in England, to executors and administrators for probates and administrations. I have always imagined the fee for each oath to be 2s. 6d., and 18. for each exhibit, with a fee of 6s. 8d. where there is an administration bond to be attested by the commissioner. Some contend the fee for each oath is only 1s. 6d. If you can clear up the point through the LAW TIMES, I shall F. W. G. feel much obliged.

AN APPEAL.-In your issue of the 12th Jan. 1861, there appears a very laudatory and truthful notice of a gentleman, who, previous to his death in Dec. 1860, had acted as revising barrister of the City of London. He was survived by a widow who is now nearly seventy years of age, and it is on her behalf that I take the liberty of writing you, as the knowledge of her present unfortunate position communicated through your columns may induce some of her late husband's friends to extend some assistance in the emergency in which she is placed. The whole sum left her by her late husband, together with an additional sum subscribed by some of his intimate friends at the Bar, was invested in the purchase of an annuity from the European Assurance Society, and this annuity has since formed the widow's only source of maintenance. By the collapse of the society she is left entirely destitute, and I am sure that fact requires only to be made known through your columns to induce the many benevolent members of the profession to lend a helping hand. The manager of the National Bank of Scotland, in Nicholas-lane, E.C., has kindly agreed to receive subscriptions, and it will be a favour if you will do so also. A LAWYER.

and

PRACTITIONERS' FEES IN COUNTY COURTS.Now that important changes are contemplated in the jurisdiction and status of the County Courts, it is to be hoped that some alteration will be made in the existing regulations as to the fees of practitioners. Under the present system, a plaintiff claiming less than £5 must either dispense with professional help or pay it out of his own pocket, whatever the result of the case may be, and however difficult the questions involved; and where less than £20 is claimed, the successful party can only recover 15s, towards his lawyer's charges. It may be sound policy to discourage the employment of professional men in cases where only a small amount is in question, and the facts are simple, but in cases where a considerable miss of evidence has to be examined sifted, or where questions of law arise, it is surely very unfair that the successful party, who must be taken to be in the right, should not be reimbursed all payments properly and necessarily incurred in placing his case before the court, whether the amount in question is large or small. The theory of the present system seems to be that where less than £20 is claimed the case is not of much consequence, and does not need much attention, and that when less than £5 is claimed, the sort of rough and ready drawing, which cases are apt to receive which are not presented by pro fessional men, is quite good enough for the case. As if a case of £10 or £15 might not require as much care and skill in preparation, and might not involve questions of as much difficulty as one of £30 or £40. What is to be desired, is that where people are discouraged from putting every trifling case into professional hands, the judges of County Courts should have power to allow a fair and reasonable sum for costs wherever in their opinion the importance or complexity of the case is such as to justify the employment of a

lawyer. The amount in question, if it be not so trifling as to come within the maxim de minimis non curat lex, ought not to determine the matter; the judge would, no doubt, take the amount into consideration. It is hard to see how any harm would result from the adoption of this plan. It would be no hardship to the losing party to have to pay the costs fairly incurred by the other side; for the issue of the case must be taken to prove that he has either preferred a wrongful claim or resisted a just one. On the other hand, the rule suggested would remove the great and obvious injustice of making the party who has succeeded pay the whole or part of his lawyer's charge, even where the employment of a lawyer was right and necessary. Of course there should be a limit to the charges allowed, and I think the higher scale in County Courts might very well be taken as a maximum in cases under £20, it being within the judge's power to direct the payment either of no costs at all, or costs upon the existing lower scale. The absurdity and injustice of the present system will appear from the subjoined instance: I was engaged for the plaintiff in a case where £12 was claimed for demurrage. The judge, after consideration, gave judgment for the defendant on a point of law. Though a good and careful lawyer, he appeared to be wrong in this instance, and I applied for a new trial. After a long argument, the judge reversed his decision, and granted a new trial, thereupon (ex ratio decidendi, being in my favour) the defendant consented to a judgment without the case being re-heard. I had to get up the case in the first instance, to conduct it, to attend court when judgment was given, to stick for two hours on the application for a new trial, and to attend court on the second judgment being given, besides taxing costs, &c.; and all I could get from the other side towards my charges was 158. The present system works most unsatisfactorily. It was designed, I suppose, to keep down attorneys' charges, but its practical effect is to favour the unsuccessful, not at the expense of the successful, and in an indirect and remote way, therefore to encourage the bringing of bad claims and defences into courts. An advocate in whom persons have confidence will always command a fair remuneration for his services; he has his fee whoever pays it, and few attorneys of decent position will go into court and waste the best part of a day for less than a guinea.

At tes

98. WILL-A testator, after giving numerous large legacies, proceeds in his will:-I give the interest of "the residue of all my property to B for life." tator's death, nearly the whole of his personal property was invested in securities, not properly tenable by trustees. The income arising from all the testator's property during the first year, after the testator's death until the conversion and payment of the legacies, was considerable. I should be glad of the opinions of some of your readers as to what interest B. is entitled to during the first year. References will oblige. H.

99. CONSIDERATION FOR A PROMISE-OSTLER'S FEES. -A. placed his horse and carriage at B.'s stable, B. being an innkeeper and keeping livery stables. C. by permission of B. acting as ostler at such stables, on the terms that B. was to pay C. nothing, but that C. was to get what he could out of persons putting their horses

up at B.'s stables. When A. placed his horse and carriage at B.'s stables he promised to pay C. 2s. 6d. a week for lookin after his horse and carriage, and, sub. sequently paid C. something on account. A. refuses to pay the balance. Query-Can C. recover? Is not B. impliedly bound to provide an ostler? if so, is such implied responsibility affected by the express promise to pay? Is there any case on the point?

L.

100. FEES FOR CERTIFICATE OF BURIAL.-I lately applied to the clerk to a burial board for two certificates of burials, stating that the funera's took place on certain days, a few years since. The clerk charged in each case 3s. 7d. I have always understood that 2s. 6d. is the proper charge for a certificate, and that the 1s. is for a search, in case the party is unable to give the date. This is the rule I acted upon whilst I was clerk to a burial board. On referring to the Act 16 & 17 Vict. c. 134, s. 8, I find that searches and copies of the register kept by the clerk are subject to the regulations of the Act 6 & 7 Will. 4, c. 86, the 35th section of which Act makes a payment for every search extending over a period of not more than one year the sum of 1s., and 6d. additional for every additional year, and 2s. 6d. for every single certificate. The burials, certificates of which I required, both occurred within eight months of each other. I have always understood that the charge for the search arose when the person applying for a certificate was unable to give the date, but when the date

102. MARITIME LAW TOWAGE ARREST COUNTY COURT JURISDICTION.-The Robert L. Lane, East Stone. house County Court. See report in LAW TIMES of the 10th inst. Looking at 3 & 4 Vict. c. 65, s. 6, and the County Court Admiralty Jurisdiction Act 1868, c. 71, s. 3, is not the judge's decision wrong? Towage not being within the meaning of "necessaries," cannot any ship, notwithstanding her nationality, be arrested for towage? Perhaps one of your numerous correspondents, who is familiar with County Court admiralty practice, will kindly answer these queries. W.J.

103. MARRIED WOMAN.-Sarah deposited certain sums of money in a savings' bank in the years 1868 and 1869, and in the year 1871 she married; are such deposits her separate property? By sect. 2, of 33 & 34 Vict. c. 93, it is enacted that any deposit "hereafter" made (the Act being dated Aug. 9, 1870, and subsequent to the dates of the deposits) in the name of a woman who may marry after such deposit, shall be deemed the separate property of such woman. Has any decision been come to on this point?

Ux.

On

104. FIRE INSURANCE.-A lessor and a lessee enter into a lease, containing a covenant by the lessee to insure in both names and keep up the insurance, and be pays the first premium and a policy is effected in both names, stating that the lessor and the lessee (both therefore) "having paid-say 5s. for insuring," &c., "the society agrees with the insured," and so on. being asked by the lessor to state that the payment was (as was the fact) by the lessee, they refused to do so, as it was contrary to the'r custom. Now can they be compelled to do so? The covenant by the lessee is to insure and apply the money received from the office in repairing and rebuilding, but stops there, and does not authorise the lessor to effect, on the lessee's default, a fresh insurance. AN OLD SUBSCRIBER.

INNS OF COURT LENDING LIBRARY. THE annual meeting of the members of the Inns of Court Lending Library for Barristers' Clerk was held on Thursday at the Law Institution. The Hon. Baron Pigott presided, and called on the secretary, Mr. C. Button (clerk to Mr. Forsyth, Q.C.), to read the report, which stated that the library continued in a prosperous condition, its usefulness was becoming more extended and appreciated, many new members had joined, and that a larger number of books had been added; some of which had been purchased, and many presented by the authors; amongst others Mr. T. Hughes, Q.C., M.P., had given a copy of his works, and Messrs. Nisbet had presented twenty-three volumes of standard literature. Mr. C. Pollock, Q.C., F. Herschell, Esq., Q.C., J. Edwards, Esq., and other members of the Bar had given onations of money, and others donations of books. The Benchers of the Inner Temple had given substantial support since its foundation, and generously granted the free use of a large room in their chambers at 4, Fig Tree-court.

Mr. John Macgregor ("Rob Roy") moved the adoption of the report, and congratulated the members on the quiet but steady progress they were making. Mr. G. H. Whittell seconded it, and it was unanimously adopted. The following officers were elected for the ensuing year: Trustees-The Hon. Mr. Justice Lush, W. Forsyth, Esq., Q.C., LL.D., and T. Chambers, Esq., Q.C., M.P.; treasurer-J. Macgregor, Esq.; committee -Hon. G. Denman, Q.C., M.P., G. Chance, Esq., G. B. Hughes, Esq., and J. Macgregor, Esq., Messrs. C. Button (secretary), Fidler, Granger, The alteration of the hours of opening from five Hasler, Holcombe, Hilburn, Whittell, and Winn. to seven every day, except Saturday, was confirmed. Votes of thanks were given to the Benchers of the Inner Temple for their support, and to the council of the Incorporated Law Society for the use of the room in which the meeting was

held.

A vote of thanks to the Chairman for presiding was then carried with acclamation, and in reply,

Don't

the Chairman addressed a few remarks to the members on the subject of books and reading. He congratulated them most sincerely that they had such a good library, for when he was in the Temple it had often occurred to him how valuable such an institution would be, to provide the clerks with good wholesome reading for the many spare hours they sometimes had. The time had come when it was not a mere luxury, but a necessity for men to have books. The first public library was said to have been established at Athens, B.C. 525. Mr. Macgregor had founded this library, and he hoped he would live to see every clerk in the Temple and Lincoln'sinn a member of it. A great question now-a-days was how to recommend men to employ their time. No man could lay down a rigid rule or prescribe any given course of study for another. He believed it was Dr. Johnson who said of himself there never was a more desultory reader; but he did that which all should be recommended to do, whatever was worth his eyes passing over, was worth his thoroughly understanding it. read as a swallow skims over a pond; but when you come away from a book, come away with a thorough knowledge of it. As to novels, he would not recommend them to read much of them. He remembered Baron Alderson saying that after a hard day's work he always took up some light book and read a little. In that way novels were good, but unfortunately novels are not what they were. He regretted Scott's novels were not read more. Historical novels were good, for they give you dates, names, and events, in such a form that you never forget them. Still he would say read novels sparingly. Passing from novels there was another course of reading, which was that which would improve them in contending with their fellow men in the pursuits they followed. No man now-a-days has a chance except he is pretty well informed, and for them it would be a good thing to be well up in case law and the different reports. He had the good fortune to possess a clerk to whom he had only to mention some par. ticular about a' case, and he could at once give him the name and where to find it. That was most useful and valuable, and made him feel grateful for the assistance he had received. They should thoroughly master such things, for it would be of much avail to them and enable them to get on. Passing from that, he would come to the most important kind of reading-the search after real truth. That which all men seem to be anxious about at the present day is, what is the truth? Call it theology,' a knowledge of our nature," or what you will, men are asking, is there another life or is there not? And in this matter he doubted if in the multitude of counsellors there was wisdom. In selecting books on this subject, he would say, read only those that have a reputa tion for leading men right; for it was impos sible to read everything that was written on both sides this question; for if you took up the books of the present day, there would be found almost as many religions as the heathen had false gods, and no man could read all that was written. Therefore, what he would say was, make your selves acquainted with the Book of Books, if it was only a little every day. He felt that if he wanted a letter from his Saviour, he had nothing to do but to take up his Bible and read some of His marvellous sayings in the Gospels. In the present day the great object of writers seems to be to show their cleverness, or to show something new. Don't accept readily the scepticisms of the present day. There was nothing more alluring, ing, and dangerous, than was now written. Many more ensnaring, more confounding, more disturb. of the cleverest men, and the ablest men were infidels. He did not hesitate to say it, for he had read their books on science and scepticism, and he would earnestly warn them against infidelity, for books were either good things or very bad things-they were either food or poison-and, therefore, when you come to serious reading select withthe utmost care the book you would read. The last book published in London was the worst and the most dangerous he had scen-he would almost say that had been published since the Christian era. It leads you on from chapter to chapter and lands you in rank infidelity. If they really desired to seek light and wisdom on these things, seek it in the best of books, for remember what the Poet says:

99.66

The clouds may drop down titles and estates, Wealth may seek us; but wisdom must be sought. Sought before all; but (how unlike all else We seek on earth!) 'Tis never sought in vain. That is, if you really seek in earnest. There is one book he would advise them to read, and that was Bushnell's Nature and the Supernatural. It shows men that they are powers on earth, and that therein lies their likeness to the Almighty him. self; it shows them how high and noble a thing is wrapped up in the human frame. Then, as to poetry, while he admired and read Shakespeare with delight, when he passed to Milton he felt that Milton stood out in transcendent grandeur, and that finer language had never been used in