Page images

marriage, unless the same be recelebrated within a given time, say within six months after the passing of the Act. We have considered this point more at length in the article above referred to. Perhaps, and probably, our anxieties as to the details of the alteration in the law are somewhat premature, since there is too much reason to fear that in the present as in former sessions the vis inertia of the House of Lords will be sufficient to resist any alteration whatever.


WHEN Lord WESTBURY called the attention of the House of Lords to the subject of the Judicature Bills he ought to have borne in mind that no one was less entitled than himself to do so. For beyond all doubt he it was, more than anyone else, who caused their failure by his opposition in the Lords. They were framed in substantial accordance with the recommendations of the Judicature Commission, signed by Lord CAIRNS, and, although that noble and learned lord made some just criticisms on the reverse side, they were not designed to defeat the measure; and, in point of fact, his influence succeeded in passing it through the House-at least such part of it as remained. But it was lost in the House of Commons mainly through the delay caused by the opposition of Lord WESTBURY upon grounds utterly untenable. One was that the Bill did not include the rules, and left them to be framed by the Court. This, however, was in entire accordance with the first principles of jurisprudence, with the most approved precedents, and with the recommendations of the commissioners. And eventually the House passed the Bill without the rules, thereby in a great degree affirming the same view. But Lord WESTBURY had excited such prejudice against the Bill by calling it a " Skeleton Bill," that it was long delayed. Again, he objected that there was no provision that the rules should be promptly made. To meet this objection the CHANCELLOR provided that the rules should be made by a Committee of the Privy Council, of which the CHANCELLOR of the EXCHEQUER should be a member. This, again, was in entire accordance with ancient precedent, and the CHANCELLOR of the EXCHEQUER is in fact a member of the Court of Exchequer, and in that character is sworn, and there takes precedence of the LORD CHIEF BARON, and sits with the Judges when the sheriff's are appointed. But be that as it may, the alteration was made to meet Lord WESTBURY'S objection, and so soon as it was made the Bill was assailed by the LORD CHIEF JUSTICE on that very ground, and he called on the CHANCELLOR to adhere to the Bill as it was originally drawn. This, however, was so late in the Session that the Bill was virtually lost. The House of Commons, however, were accessory to the loss of the Bill. for during the interval which had elapsed after the Bill left the Lords, no effort was made nor a single question was asked to promote its success, and the Government finding, on the one hand, no effort used in its favour, and, on the other hand, a strong secret influence exerted among their supporters to defeat it, mainly through the LORD CHIEF JUSTICE and Lord WESTBURY, they, having a tolerable excuse on account of the period of the session, allowed it to drop. That it was defeated by the influence of the supporters of the Government is clear. The Minister has a large majority. The Bill had been passed in the Lords by the influence of Lord CAIRNS; its warm opponents were Liberals. The Government were all powerful in the Commons; they could have passed it if they had pleased. It could only have been the machination of their own supporters that prevented it. And the delay caused by Lord WESTBURY afforded the only possible excuse. He then is more than any other person responsible for the loss of the measure, and he of all men was least entitled to complain of it. We have spoken of it as one measure, because in any view the measures really constituted one, and the subject requires to be so treated. We have had enough, as Lord CAIRNS said, of piecemeal legislation on the subject. It requires to be treated as a whole. This was the view of the Judicature Commissioners, who, finding that by the original commission they were not authorised to deal with the jurisdiction of the House of Lords, and of the County Courts, suggested an extension of its scope, so as to comprise both those parts of the subject; and that course was accordingly taken in the constitution of the new commission now sitting.

Lord WESTBURY seems to desire the regulation of appellate jurisdiction separately by itself, without regard to jurisdiction of first instance, or to procedure. But this is a very difficult course to take satisfactorily, for appellate jurisdiction is necessarily dependent upon jurisdiction in first instance, and its exercise is necessarily implicated with procedure. How is the subject of appellate jurisdiction to be dealt with, unless it be first settled whether the courts of Westminster Hall are to continue courts of first instance? or, whether, as appears to be contemplated, the County Courts or provincial courts of a superior character are to be the courts of first instance, and the Judges of the Courts of Westminster are to be reserved for the constitution of Superior Courts or Courts of appellate jurisdiction? One of the truest observations of Mr. BENTHAM Was this that judicature and procedure are so implicated that it is impossible to treat them satisfactorily apart; for

instance, the valuable recommendations of the Judicature Commissioners as to procedure would tend very materially to lighten the labours of the judicature, and this has an obvious connection with the constitution of courts and the distribution of jurisdictions. These considerations appear to show that it is not possible thoroughly and satisfactorily to deal with the subject unless it is treated as a whole.

It is the general opinion of the Profession that it would never do to extend the jurisdiction of the County Courts without improving their procedure; and, indeed, it is, we believe, a pretty general impression that their jurisdiction has been extended already farther than it ought to be with the present imperfect and defective procedure. As Mr. Justice MAULE pointed out twenty years ago, it is impossible or difficult to exercise appellate jurisdiction - which can only relate to the law where the judge decides without a jury, and to decide both fact and law, for it is often difficult to separate fact from law, which is essential to an appeal. There again we see how judicature is implicated with procedure, and how impossible it is to settle appellate jurisdiction without reference to courts of first instance. Lord WESTBURY'S observations as to the defects of our appellate jurisdiction have been often made during the last half century, and they were made by Lord BROUGHAM and Sir EDWARD SUGDEN long ago. It is easy to point out faults in a system; the difficulty is in providing the proper remedy, and in that way Lord WESTBURY has done nothing. The labour has been thrown upon the Judicature Commissioners, and our own idea is, that the subject cannot be dealt with satisfactorily until they have presented their report. This appears to be the impression of the CHANCELLOR who has submitted his Bill to them, but on this subject one part of it so depends upon another that it is difficult to deal with them separately. The original jurisdiction in first instance forms the necessary basis or foundation, and to begin with appellate jurisdiction appears to be like beginning a building with the superstructure. The first question to be settled is, What are to be our courts of first instance? And as to that we must await the report of the Judicature Commission. If they cannot agree upon the subject how is it likely that the Legislature will be able to do so? And if they can, then it will be best to begin at the basis, and work our way upwards to the summit. Since the session of 1870 the subject has progressed, and is now in a much more advanced position. It is become apparent that we require our local jurisdiction to be reconstructed, and if the local courts are made courts of first instance (as in every other country), then our Judges at Westminster will be made available for appellate jurisdiction.

Appellate jurisdiction culminates in the supreme tribunal; and as to this, Lord WESTBURY adopts our suggestion to strengthen the Lords, as the supreme judicial tribunal, by making the Judges of the Superior Courts and of the Judicial Committee members of the House for judicial purposes. But this, it is obvious, must in a great degree depend upon how far the Judges are at leisure to exercise appellate jurisdiction in the supreme tribunal, and also in the intermediate tribunal; and this again depends upon what are to be the tribunals of first instance.


THE rules respecting the right of partners in a bankrupt firm to prove in competition with their own creditors has been considered in the recent case, Re Cania's Estate, and the judgment of V. C. Malins materially affects the law which previously obtained with reference to this very important question. The facts on which the decision was given are shortly these: In 1866 Mr. Cania was a merchant in Bombay, being the sole member of the firm under which he traded. He was also a partner in a London firm holding seven-eighths shares, while another partner held one-eighth. This London firm failed, and at the time of the failure was indebted to the Bombay firm to the extent of some £32,000 on bills for advances. The Bombay firm soon afterwards failed also, and the claim made before the Vice-Chancellor was that the representatives of the bankrupt Bombay firm should be allowed to prove against the bankrupt London firm for this £32,000. It was contended that the case came within the exception to the general rule forbidding bankrupt partners to prove in competition with their creditors, which permits proof where the debt is in respect of a distinct trade carried on by one or more of the partners. The Vice-Chancellor, however, considered that even if this exception could now be sustained, which he very much doubted, it could only be in respect of goods sold, and not of cash advances; that, therefore, if Mr. Cania had remained solvent he could not have proved, and his creditors had not a better right than himself; so the proof was disallowed. The general rule as to bankrupt partners proving against the bankrupt estate is the well known rule laid down by Lord Eldon, in E parte Sillitoe (1 Gly. & J. 382). The exception which was relied on in Cania's case was established by Ex parte Cook (Mont. 228), and the exception has always been considered and acted on as sound. Cania's case, however, has not definitely removed the exception, but the doubt expressed by the Vice-Chancellor has so shaken the portion of it left in existence, that it cannot be followed with

safety. The case positively decides that if the debt sought to be proved is for money, the exception made in Cook's case does not apply, but the general rule prevails, and the ViceChancellor has virtually expressed a very grave doubt as to whether Cook's case can now be considered law at all. It is very unsatisfactory to have a point of such great and widespread importance left so doubtful.

It will be noticed that Cania's case was one in which all the partners of the firm seeking to prove were members of the firm against which the claim was made. It is important to remember that if the positions had been reversed, and the London firm, containing a partner who did not belong to the Bombay firm, had claimed to prove against the Bombay firm, the claim would have come within another exception to the general rule — one resting on altogether different grounds. This exception was established so long ago as St. Barbe's case (11 Ves. 413), and has since been repeatedly affirmed. Neither this exception nor the reasoning on which it is based has been at all touched by the decision in Cania's case, and they still remain law.

THE HARE AND RABBIT GRIEVANCE. A VERY creditable attempt to get rid of what farmers will recognise as the hare and rabbit grievance, has been made by Sir HENRY SELWIN IBBETSON, and sundry honourable members acting with him. They have brought in a Bill for the amendment of the laws relating to game and trespass, the object of which is to redress the hardships of which complaint is now frequently made, when hares and rabbits are permitted to increase and multiply under the fostering care of restrictive covenants, rigidly enforced by game-preserving landlords. There are few lawyers who have not, at some time, had cases brought under their notice in which tenants or neighbours have complained of serious damnum but which their legal advisers were compelled to describe as sine injuria. The Bill which now lies before us aims at abolishing this anomaly, by giving every occupier of land a right to protection from the ravages of ground game, which he may grant away or surrender if he likes, but which if kept in his own hands, will make excessive game-preserving a very expensive hobby to the landlord, and a very fairly remunerative source of income to the farmer.


Passing over the inevitable short title and interpretation clauses, we come to the 5th section, which contains, as it were, the marrow of the entire measure. When the Bill has become law, every occupier of land will, prima facie, be entitled to pursue, take, and kill hares and rabbits, unvexed by fear of forfeiture, and untroubled by dread of action, suit, prosecution, or proceeding, any covenant, reservation, grant or agreement with the owner or any other person to the contrary notwithstanding." We do not quite understand why the words we have put between inverted commas were inserted, because, as might have been expected, existing rights of landlords and other persons are expressly saved, as are also the tenant's powers of contracting himself out of any rights the Bill may confer upon him. The operation of the section is limited to land above 2s. 6d. an acre net annual rateable value. The Act is to apply to all cases where hares or rabbits are maintained in excessive and unreasonable numbers on a "holding," or part of a "holding," which is elsewhere defined as "any continuous tract of land in the occupation of one occupier, whether as owner or tenant to one or more owners, or partly in one way, and partly in the other;" which holding is to be deemed continuous, if severed only by fences, walls, ditches, roads, or railways. We cannot see the use of this long and involved definition, or the reason for making the sufferer's right to redress in any degree dependent upon the manner in which the wrongdoer holds his land. It is true that an attempt is made to get rid of some of the difficulties which the term," continuous tract of land" suggests. But the books abound in hard cases which have arisen out of circumstances unforeseen by framers who have inadvertently used words which, when judicially spelt over, have been found to fail of their object through exceeding care in explaining what might safely have been left at large. The principle of the Bill is that the person who preserves hares and rabbits to such an extent as to injure his neighbour, is no longer to be exempt from the applicacation of the maxim, Sie utere tuo ut alienum non lædas. The soundness of the principle none can question. Why then should those who recognise it seek to limit it by the accidental and utterly immaterial circumstances of continuity or non-continuity of a tract of land, unless indeed they want to clear the way for the passage of the traditional coach and six through their Act of Parliament ?

Subsequent portions of this measure provide that when by lease, reservation, covenant, grant, or agreement, the owner, or those claiming under him, have the right to destroy hares and rabbits reserved to them, the owner is to be sued. In every other case, the occupier is to be responsible, thus in effect making the author of the mischief answerable for his own acts. In Scotland, "the exclusive right" of taking, &c., game, is vested in the occupier in the absence of express reservation--a provision which will probably merely cause the introduction of a few words not hitherto included in Scotch conveyancer's common forms. By the 9th section the sporting value of land is to be included in its

annual rateable value, and care is taken for the proper adjustment of the sporting and agricultural proportions of the rate between the different persons entitled. And the 10th, by a formidable array of sub-sections, endeavours to effect the same object with respect to shootings in gross.

[ocr errors]

The machinery by which the newly acquired rights of the injured occupier are to be vindicated, is somewhat complex in character. Proceedings are to begin by a notice from the claimant to the defendant, giving particulars of alleged damage, and of the place where the damage-doing animals are maintained. The defendant has a month at least, by way of tempus pœnitentiæ, but if the nuisance then continues unabated, he may, within not less than one month, nor more than two mouths, serve a second notice reciting the first, and threatening to proceed under the Act. Personal service is not to be required. The claim is limited to one year, and not more than one claim a year can be inquired into, and then only when proper particulars have been supplied. The defendant is to be at liberty to enter upon the claimant's land for the purpose of destroying the obnoxious quadrupeds in his own way, subject only to liability to further payments for any damage he may do; and the plaintiff's refusal to permit entry for such a purpose is to bar his right of action. Either party to the dispute may appoint a surveyor to inspect the other party's holding, free from risk of criminal or civil proceedings for trespass, and seven days' notice must be given of intention to cut, gather, or feed off any crop, &c., for injury to which damage is claimed. Default in doing this is to bar the right of action in whole or in part.

Having thus taken all conceivable pains to make sure that the litigants shall know exactly what they are fighting about before they go to law, the Bill provides for the nomination of referees and umpires by agreement in the ordinary way. Failing agreement, either party may apply to the local County Court in England, or to the Sheriff's Court in Scotland, to nominate "a surveyor, valuer, or other competent person," to inquire and report as to the nature and amount of damage; the reasons for believing that the mischief has been done by the defendant's hares and rabbits; the means the defendant has taken to get rid of them; and any other matters which the arbitrators, &c., may think fit. Here we see a curious example of non-professional dread of law and lawyers. The reference is to take place before non-professional persons, who will have to construe a new Act, abounding with nice points, instead of appointing as arbitrator some barrister or solicitor, who might be perfectly competent, not only to ascertain the facts, but to apply the law. We are bound to add that the success of this part of the plan bids fair to be precisely as great as its merit. The Court which has directed the surveyor to report, is to take all the circumstances into consideration, to hear evidence, if necessary, and to direct the payment of damages and costs as it shall think fit. The tribunals mentioned are to have unlimited jurisdiction in the first instance. No appeal from them is to be permitted except on matters of law, and then only by leave of the court, but as the appellate tribunal is not named. we do not quite understand where an intending appellant is to go with his special case, or what court will feel competent to enter tain it, unless the omissiom is supplied before the Bill passes. The two concluding sections deal with existing interests, and with the cessation or transfer of liability on change of tenancy.

He is

As already intimated, the Bill which now lies before us is by no means faultless. Its value is in the principle it affirms, rather than in the machinery it provides. If, as is probable, disputes arising under it are of such a nature that a reference will be the best way of getting at the truth, it would be far better to authorise a reference to a legal umpire, by whom the whole matter could be disposed of at once, with power to state facts for the opinion of a County Court Judge, or of a Superior Court, as the parties may prefer, the appeal lying direct to the latter, unless both parties should desire to have it disposed of by the former. In appearance, the Bill promises "to do the thing cheap" by keeping clear of the lawyers, In reality, it casts upon suitors the expense of a double or treble inquiry, through which they will be practically compelled to avail themselves of legal assistance. The parties are to go before "a surveyor, valuer, or other competent persou," who will act partly upon evidence, partly upon view, and partly upon his own notions as to what the Act means. not to make an award, nor even to assess the damages. He is to report the result of his inquiries to the court, which may confirm or reject his conclusions in whole or in part, may hear evidence, and in short go into the whole matter de noco. This will necessitate the furnishing of copies of the report to the litigants some time before the court sits, and those who know how much ingenuity is often employed in picking a hole in an adverse award, will be able to estimate the chance of maintaining what will be virtually an award, which lacks only the element of finality. We do not know that the Profession would have much reason to complain of this, if they were content to consider the matter solely in the light of their own interests; but as every honourable practitioner must wish the law to be free from fair cause of reproach, we can but advise the honourable baronet who has introduced the Bill to modify his machinery if he desires to achieve the success to which his sincerity as an unofficial law reformer undoubtedly entitles him.


SIR GEORGE BOWYER did good service in drawing attention to the defect in the law as to statutory declarations, and we were happy to observe a notice of a question in Parliament upon the subject. We are not sure, indeed, that the fault was in the law; and that it was not rather in its administrators. We understand that in the City the Aldermen will not allow a statutory declaration before them without observing what is declared, and exercising a judgment upon it so far as to see that it is not an abuse, at least not an obvious abuse, of the statutory power. And we must say that this appears a far more proper and sensible view of the law than that which appears to prevail in the Police Courts of the rest of the metropolis. It is a scandal to see the name of a magistrate affixed to an atrocious slander. It is no answer to say that the statute in general terms allows declarations to be made. The Legislature never intended that the power should be abused for the purposes of slander, and no magistrate is obliged to take part in what he knows to be a gross abuse of the law. The Legislature intended the power to be exercised for useful purposes-for the purposes of businessand not to be abused for the purposes of private defamation or the extortion of money. It is easy to see if a case is of this character; and if it is, then no one will say that the declaration ought to be allowed. There are innumerable cases in which merely to follow the words of a statute would cause intolerable vexation. Blackstone gives instances, in order to show that a sensible construction is always to be placed upon a statute. The truth is that a statute is always to be construed, as Lord COKE says, along with the common law, and so far subject to it that it is always to be construed in accordance with the common law, except so far as the intention of the Legislature has been clearly expressed to the contrary. If, however, the Act allows of such an absurdity as that the signature of the magistrates should be affixed to attest and authorise an obnoxious slander, then the sooner it is altered the better. But that it is not so appears from this, that if the magistrate in such a case were to decline to affix his signature, the Queen's Bench most certainly would not grant a mandamus.

[ocr errors]

The following are the regulations respecting " statutory declarations" in force at the Mansion House:--"5. The subject matter and the facts set forth in the affidavit or declaration will be examined, and only such affidavit as is authorised by law (see para. 6), or such declaration as appears to be necessary and proper,' will be taken. 6. Affidavits must be such as justices are authorised by some statute to take; and, if under a foreign or colonial law, in order to give validity to instruments designed to be used there, the Act, or a verified extract from it, should be produced. In all other cases where the document is required for a foreign country, or the colony of Victoria, an affidavit seems to be the proper document to be made. 7. As a general rule declarations should be made in all cases where they are required to be used in the United Kingdom, and in our colonies, except Victoria. Declarations may also be made in all the cases referred to in paragraph 6, wherein an affidavit is necessary. The Statutory Declaration Act (5 & 6 Will. 4, c. 62) authorises the taking of a declaration in relation to actions in our colonies except Victoria; and of execution of wills or deeds (sect. 16); and also by sect. 18 where it may be necessary and proper in many cases, not herein specified, to require confirmation of written instruments or aliegations, or proof of debts, or of the execution of deeds or other matters."" Mr. OKE adds, "declarations will, therefore, not be received respecting immoral practices, or involving criminal charges or supposed criminal charges, affecting the declarant or other persons, whether or not they are the subject of proceedings commenced, pending, or determined, nor in any other improper Of course, an affidavit of the same purport cannot be




CITY, THURSDAY, MARCH 14. THE markets for Public Securities have ruled fairly steady since we last wrote, but there has been a decidedly smaller amount of business transacted, with a marked falling off in the extent of speculative operations. The main reasons for this latter feature are traceable primarily to two causes; first, as prices are high generally the new large issues in the shape of foreign loans, one or two of which are daily expected, will enter into strong competition, as they must obviously appear upon the market offering inducements to intending investors, and also to holders of other stocks, so that they may be tempted to exchange; secondly, the continuous drain of gold, which, upon a comparatively unimportant scale, proceeds unchecked when considered collaterally with the prospective efflux, which, to some extent, must follow the success of one or two large operations of the kind, under, existing circumstances, deters the speculator, who wisely waits for the lower level which would immediately follow a rise in money before he further operates. Interest has been chiefly centred upon the Erie Railway property, the shares of which have advanced a further 34 dollars since last Thursday upon

the collapse of the most gigantic swindles that ever stained the commercial history of any country. The new Eric Board is, according to the latest news, in full power, with everything working harmoniously, although Gould and three of his supporters have been permitted for the present to remain upon the board. It may be fairly concluded that he and his confederates are no longer able to exercise any separate control over any of the operations of the company, and that he has simply been allowed to remain for a time in order to make use of his intimate knowledge of the state of affairs for more speedily clearing the way to repair the mischief that has been done. Attention in the stock markets this week so far has been absorbed by the fortnightly settlement, which has revealed but a limited extent of speculation. A scarcity of stock was particularly apparent in the home railway market.

The Bank rate of discount remains at 3 per cent., and the demand has not been sufficient to justify the impression that there would be any rise in the value of money at present.

By comparison with last Thursday the British Funds have fallen, and Bank of England Stock 2 per cent., which latter movement usually precedes the shutting of the transfer books till the 6th of April, Indian Enfaced Four and a Half Paper and the Five and a Half Joint Stock is higher.

In American Securities, besides the rise in Erie Railway Shares already referred to, there has been an advance of 5 in the Atlantic and Great Western Bonds and also in the Debentures, but the Five Twenty Bonds of 1862 are lower.

The changes in the prices of British Railway Stocks are mostly unfavourable for the week, owing to the absence of speculative buying and the realisations which, as a rule, immediately precede the settlement, which is concluded to-day. Owing to the scarcity of stock the contango rates have been light; otherwise the traffic receipts are considered satisfactory. The principal changes in prices are a fall of 14 in North Eastern; of 1 in Great Northern; of in London and North Western; and of in Great Northern A, and Lancashire and Yorkshire, &c. On the other hand London and Brighton has risen 2; and South Eastern }. The usual operations in the markets preliminary to the introduction of a new loan have been apparent in the case of Peruvian. The Peruvian Six Per Cents. of 1870 are 3 higher, and the Five Per Cents of 1865 23, and the new loan for about £30.000.000 sterling is daily expected. Sontl American Stocks are all higher; but Spanish and French have been dull. Turkish have improved between and per cent. Uruguay Stock has risen 2 this day.

The principal movement in Miscellaneous Shares has been a rise of 24 in Telegraph Construction.

One or two small new undertakings have appeared during the week, but in this respect there has been a lull. The condition of the Money Market is still favourable to appeals for capital, and it is probable, unless adverse circumstances of an unforseen nature occur, that more activity in new projects will be witnessed in the coming week.

The sum of £2000 has been withdrawn from the Bank this day, and there has been a heavy discount demand.

The latest quotations for British Funds are as follows: Consols, for money, 92 to 923; ditto 5th April Account, 92 to 92; Reduced, 91 to 911 ex. div.: New Three per Cents., 91 to 914 ex. div.; Exchequer Bills, 2s. to 7s. prem.; India Five per Cent. Stock. 109 to 110; ditto Four per Cent., 102 to 103; ditto Enfaced Paper Four per Cent., 96 to 97; ditto Five and a Half Per Cent., 1081 to 108; Bank of England Stock, 246 to 248; Metropolitan Three and a Half per Cent., 95 to 961; and French Rentes in this market, 55 to 56.

The price of French Rentes received from Paris this morning was 56f. 82c. Market firm.

In the market for American Securities, the United States 5-20 Bonds of 1882 are marked 921 to 92; ditto, 10-40 Bonds, 89 to 89; Atlantie and Great Western Bonds, 42 to 42; ditto Debentures, 46 to 47; Eries, 35 to 35; Illinois, 108 to 109; and United States Funded Loan, 891 to 894.

In the Railway Market the prices are:-Caledonians, 117 to 117}= Great Eastern, 49 to 493; Great Northern, 135 to 136; ditto, A, 158 to 159; Great Western, 112 to 112 ex div.; Lancashire and Yorkshire, 157 to 157; London and Brighton, 794 to 793; London, Chatham, and Dover, 27 to 274; London and North- Western, 154 to 154: London and South-Western, 108 to 109; Manchester and Sheffield, 72 to 73! = Metropolitan, 69 to 694; ditto District, 33 to 334; Midland, 142 to 148: North British. 613 to 623; North Eastern Consols, 176 to 1774; SonthEastern, 98 to 98); ditto deferred, 77 to 78; Grand Trunk of Canada, 20 to 20%; Great Western of Canada, 21 to 213; Antwerp and Rotterdam 19 to 19; Great Luxembourg, 174 to 17; and Lombardo Venetian, 19 to 19.

The prices of the principal Foreign Stocks are recorded thus-Argentine, 1868, 951 to 954; do., 6 per cent., 1871, 92 to 92: Brazilian, 5 per cent., 1865, 95 to 94; do., 5 per cent., 1871, 951 to 954; Egyptian, 7 per cent., 1858, 35 to 85: do., Viceroy Loan, 88 to 90; do., Khedive Mortgage Bonds, 79 to 793: Greek 5 per cent. Stock, 17 to 174: French Morgan 6 per cent. Loan, 100 to 100; do., National, 63 to 6 pm.; Italian of 1861, 67 to 68; Mexican, 14 to 15; Paraguay 8 per cent. 881 to 88= do. Scrip, 8 to 8 pm.; Peruvian, 5 per cent. 1865, 100 to 100; do., 6 per cent. 1870, 841 to 841; Spanish 3 per cent. 31 to 314; do. Quicksilver, 80 to 81; do. 3 per cent. 1871, 311 to 313; Turkish, 5 per cent. 1865, 51 to 51; do. 6 per cent. 1865, 66 to 67; do. 6 per cent. 1859, 614 to61; do. 6 per cent. 1871, 73 to 734; and Uruguay, 744 to 741.

In the Telegraph Market, Anglo-American Stock is quoted at 118 to 120: Anglo-Mediterranean. 169 to 171; British Australian, 9 to 94; British Indian Extension, 113 to 12; ditto Submarine, 10 to 103; Chinas, 9 to 9}; Cubas, 8 to 84; Falmouths, 11 to 11; Great Northern, 15 to 16; Marseilles, Algiers and Malta 8 to 94; Mediterranean Extension. 44 to 5 = Renter's, 10 to 11: French Cables, 23 to 244; Submarine, 225 to 235; and West India and Panama, 63 to 63.

In miscellaneous shares the prices are as follows:-Credit Foncier of England, 5 to 5; Crystal Palace, 22 to 24; General Credit and Discount. 23 to 23 pm.; Globe Marine Insurance, 14 to 1: Hooper's Telegraph Works, 2 to 3 pm.: Hudson's Bay, 10 to 10; London Finance, 16 to 17; London General Omnibus Company, 81 to 86; London Tramways, 12 to 12; National Discount, 13 to 13; Native Guano, 18 to 20; New Lombiero Phosphate, 8 to 9: Phosphate Sewage, 39 to 41; Royal Mail Steam. 89 to 91; Telegraph Construction, 31 to 32; and Universal Marine, 8 to 9pm.


COURT OF APPEAL IN CHANCERY. (Before the LORDS JUSTICES.) Feb. 26 and March 2, 3, and 7.


Will-Construction-Two codicils-Repetition of legacies-Cumulative or substitutional. THIS was an appeal from a decision of Bacon, V.C. By his will, dated the 8th Sept. 1860, Sir De Lacy Evans, after giving certain legacies, &c., gave all the residue of his property to his two nephews John and Henry O'Leary in equal shares. The testator's will, together with two codicils, one dated the 17th June 1867 and the other undated, but in fact executed in Jan. 1868, was duly proved by the executors. In both the codicils the testator gave legacies to the same persons, the amounts given to some of the legatees in the second codicil being the same as those given to them in the first. The residuary legatees contended that the second codicil was evidently intended to be substituted for the first. The following tabular form shows the legacies given by the two codicils :

[ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small]


Eddis, Q.C., Charles Hall, and H. S. Milman, for the other legatees.

Lord Justice JAMES said that it had been conended that the two codicils were so similar that the court must from that fact arrive at the conclusion that the testator intended to substiute the second for the first one. It was, however, admitted that that part of the first codicil giving the legacy to Mrs. Warr, which was omitted in the second codicil. must stand. There was not enough to lead the court to depart from the general rule of construction that gifts by two tes tamentary instruments to the same person are to be construed cumulatively. The Vice-Chancellor's decision must, therefore, be upheld.

Lord Justice MELLISH concurred.

[blocks in formation]

March 1 aud 8.


Company-Trustee of shares-Implied agreement by cestui que trust to indemnify-Express agreement Suit for indemnity by liquidator in name of trustee.

THIS was an appeal from a decision of Malins, V.C. On the 4th Dec. 1865, the plaintiff, at the request of an agent of the defendant, applied for and was allotted 250 £10 shares in a company. The defendant furnished the money payable on application and allotment, and it was understood that the plaintiff was to have no beneficial interest, but was to hold the shares to dispose of them as the defendant should direct. He, however, received twenty-five guineas as a consideration for his part in the transaction, and he signed a receipt for this money in which it was expressed to be paid to him in consideration of his taking risk of applying for the shares, the application and allotment money only being paid thereon. On the 9th Dec. 1865, the defendant directed the plaintiff to ransfer the shares to one Pott, and on the 12th of the same month the plaintiff did so. The com Iany, however, refused to accept Pott, and the

plaintiff remained on the register until the winding-up in Dec. 1866, when he was placed on the list of contributories, and was compelled to pay a large amount for calls. On a bill by the liquidator in the name of the plaintiff against the defendant for an indemnity, the Vice-Chancellor held that there was an implied obligation on the part of the defendant to indemnify the plaintiff, that this implied obligation was not varied by the terms of the written receipt, and that the liquidator was entitled to enforce this obligation in the plaintiff's name. (See 25 L. T. Rep. N. S. 483.) From this decision the defendant appealed.

Higgins, Q.C. for the appellant.
Without calling upon

Cotton, Q.C. and T. A. Watson, who appeared for the respondents,

Lord Justice JAMES said that it was a perfectly plain case, and that the decision of the Vice-Chancellor must be affirmed.

Lord Justice MELLISH concurred.

Appeal accordingly dismissed with costs. Solicitors for the appellant, Alfred Cox. Solicitors for the respondents, Linklaters, Hack wood, and Addison.

Thursday, March 7.

Ex parte MARSHALL; Re Waddington. Company-Bankruptcy of contributory after commencement of winding-up-Order of discharge Liability provable-Release of contributory. THIS was an appeal from an order of Mr. Registrar Brougham, sitting as Chief Judge in Bankruptcy, dismissing a debtor's summons issued by the appellant against Waddington. The appellant was the registrar of the Stannaries Court, and as such the official liquidator of the Wendren Consolidated Mining Company, which was ordered to be woundup in the Stannaries Court in Nov. 1866. Waddington was placed on the list of contributories. In Dec. 1868 he was adjudicated a bankrupt, and in his statement of affairs he entered the company as one of his creditors in respect of calls. In Feb. 1869 he obtained an unconditional order of £156 15s. 6d. having been made against hiin in discharge. An order for a call amounting to against him for that amount. Nov. 1870, the debtor's summons was issued having dismissed the summons, on the ground The Registrar in the bankruptcy, the official liquidator appealed. that the company's debt might have been proved De Ger, Q.C. and Bagley, for the appellant. Without calling upon

Rexburgh, Q.C. and Doria, who appeared for the respondent,

Lord Justice JAMES said that the case was N. S. 645; L. Rep. 6 Ch. 582), where their Lordclearly governed by McEwen's case (24 L. T. Rep. became bankrupt after the commencement of the ships held that the liability of a contributory, who that the bankrupt, on obtaining his discharge, winding-up was provable in the bankruptcy, and was entitled to be removed from the list of contributories.

Lord Justice MELLISH concurred.

Appeal accordingly dismissed with costs. Solicitors for the appellant, Le Riche and Sole. Solicitors for the respondent, R. W. Stacpoon.

Ex parte RAYNER; Re JOHNSON. Bankruptcy Act 1869, s. 87-Execution on goods of trader for over £50-Seizure without sale-Petition for liquidation-Rights of execution creditor and trustee-Injunction restraining sale. THIS was an appeal from a decision of the Chief Judge in Bankruptcy, affirming a decision of the Judge of the Liverpool County Court. The facts were shortly as follows. The sheriff of Chester under a writ of fi. ja, seized the goods of Johnson, a trader, on the 12th Oct. 1871, to satisfy a judgment obtained by Rayner for £819 odd. On the 14th Oct. Johnson filed a petition for liquidation by arrangement, and on the same day a receiver was appointed, and an interim injunction granted restraining the sale by the sheriff. On the 16th Oct. the receiver entered into possession, and on the following day the sheriff withcrew. On the 16th Nov. the sheriff re-entered and another interim injunction restraining the sale was granted on the 21st Nov. and made absolute on the 29th Nov. The execution creditor appealed to the Chief Judge, who dismissed his appeal, and he now appealed to this court.

De Gex, Q.C. and Arthur Cohen (of the Common Law Bar), for the appellant.

Little, Q.C. and W. Potter (of the Common Law Bar), for the trustee.

Lord Justice JAMES was of opinion that the case was concluded by the words of the 87th section of the Act, the meaning of which was that the title of the execution creditor was not to be completed even by sale, if within fourteen days from the date of the sale the trustee received notice of a bankruptcy petition. It was the plain intention of the Legislature that in such a case the seizure and sale of the goods should not vest in the creditor an absolute title to

the proceeds of the sale, but the sheriff, if he had notice of a bankruptcy petition was to hold the proceeds on trust for the trustee. A fortiori was this the case where there had been a seizure and no sale. The trustee was, therfore, entitled to the proceeds of sale; he was not, however bound to have the goods sold, but was entitled to have them delivered to him.

Lord Justice MELLISH was of the same opinion.

Appeal accordingly dismissed with costs. Solicitor for appellant, William Thomas, for Eden, Pears, Logan, and Eden, Liverpool. Solicitors for the trustee, Neal and Philpot, for W. and A. Clare, Liverpool.

Friday, March 8. COHEN v. WATSON.

Vendor and purchaser · Specific performance Delay-Subject matter of contract in ruinsNeglect of vendor.

THIS was an appeal from a decision of the Master of the Rolls. The plaintiffs, who were mortgagees with a power of sale of certain leasehold property put it up for sale by auction, on the the 26th Nov. 1868, it being provided by the conditions that the concurrence of the mortgagor should not be required, and that the sale should be completed on the 5th Dec., and the defendant became the purchaser. In Oct. 1868, the mortgagor had instituted a suit to restrain the mortgagees from selling, and had registered the suit as a lis pendens. The defendant refused to complete unless the lis pendens were removed, which the plaintiffs refused to do, saying that it was unnecessary, as an injunction had been refused in the suit. The plaintiffs filed their bill in Jan. 1871, for specific performance of the contract. The Master of the Rolls having dismissed the bill on the ground of delay, the plaintiffs appealed. It appeared that the plaintiffs had neglected the property, and allowed the houses to go to ruin.

Sir Richard Baggallay, Q.C. and Bush for the appellants.

respondent. Southgate, Q.C. and G. W. Lawrance, for the

Lord Justice JAMES said that the vendors were they were not entitled to come here for specific not justified in neglecting the property, and that their duty and allowed the property to go to rack performance, when they had so utterly neglected

and ruin.

Lord Justice MELLISH Concurred.

Appeal accordingly dismissed with costs. Solicitors for the appellant, Evans and Laing. Solicitors for the respondent, Paule and Fearon.

Saturday, March 9. BISHOP v. WISE.

Will-Construction—Absolute gift—Qualification of gift in subsequent part of will. THIS was an appeal petition from a decision of Wickens, V.C. By his will, dated the 16th May 1821, Benjamin Bishop, after giving certain legacies, directed the residue of his property to be divided into equal portions, and to be paid to as many of his children as should be living at the time of his decease, to be for ever at their dis posal, with the following reservation only: "The eldest daughter, Martha Bishop, whom it hath equal share or portion which shall fall to my pleased God to afflict with fatuity, shall remain in certain investments" (specifying them) “and the proceeds or interest of such her equal portion shall be applied for her support and maintenance during her life. At the death of my said daughter, Martha Bishop, the property thus bequeathed to her shall be divided in equal portions among as many of my other children as may be living at the time of her decease." The testator died in 1824, leaving, in addition to Martha Bishop, three other children, a son and two daughters, him surviving. Martha Bishop, who was in 1843 found to be a person of unsound mind, survived her brother and two sisters, and died in Feb. 1870. The suit was

one for the administration of the testator's estate, and the petition was presented to settle who was entitled to Martha Bishop's share on her death. The Vice-Chancellor having held that Martha Bishop had acquired an absolute interest in her share, the petitioner appealed.

Greene, Q.C. and Cecil Dale, for the appellant. Dickenson, Q.C., Osborne Morgan, Q.C., Hardy, Q.C., Mellor, Kingdon, and Dauney for the next of kin of Martha Bishop.

Lord Justice JAMES said that the first gift was an absolute gift of the share to Martha Bishop, but it was contended that the gift was cut down to a life estate by the subsequent words. The testator directed her share on her death to be divided equally among as many of his other children as might be then living. None of his other children were then living, and the principle was that where a gift was cut down for a certain purpose, it was not cut down for other purposes not expressed. The Vice-Chancellor's decision must therefore be affirmed.

Lord Justice MELLISH was of the same opinion. granting specific performance of contracts founded Appeal accordingly dismissed with costs. on letters. Here there was more than a doubt as Solicitor for the appellant, Charles Fiddey. to the agreement. There was really no written Solicitors for the respondent: Tompson, Picker-memorandum of an agreement. ing, Styan, and Neilson; Baker, Folder, and Upper- Lord Justice MELLISH concurred. ton; Purson and Lee.

March, 12 and 13.

COOPER v. KYNOCK. Settlement-Construction-Estate of trustee-Rule in Shelley's case.

THIS was an appeal from a decision of the Master of the Rolls. The suit was one by a vendor for specific performance of an agreement to purchase certain real estate. By a settlement made on the marriage of the plaintiff with her late husband, and dated the 10th Nov. 1841, the property in question was limited to the use of the plaintiff's father and mother successively, during their respective lives, with remainder in case the plaintiff should at the death of her mother be discovert to the use of the plaintiff in fee, but in case she should then happen to be a married woman, to the use of Benjamin Smith, his heirs and assigns, upon trust, to take and receive the rents, issues and profits thereof, and to pay the same when received into the proper hands of the plaintiff for her life for her separate use, and after the determination of that e tate to stand seised of the premises to such uses and upon such trusts as the plaintiff, notwithstanding coverture, should by will appoint, and in default of such appointment to the use of the heirs and assigns of the plaintiff for ever. The only question was whether the plaintiff was entitled under this settlement to an estate in fee simple in the property. The Master of the Rolls held that the estate of Benjamin Smith, the trustee, was confined to the plaintiff's life, and consequently that the limita tion to her heirs and assigns was legal, and did not coalesce with her equitable estate for life, and his Lordship accordingly dismissed the bill for specific performance with costs. (See 26 L. T. Rep. N. S. 10.) From this decision the plaintiff


C. Hall and Whitehorne for the appellant. Sir Richard Baggallay, Q.C. and Bedwell for the respondent.

Lord Justice JAMES said that the Master of the Rolls appeared not to have had present to his

mind the br ad distinction between the rules as

to the construction of technical words in a deed and in a will. To hold that the words of the limitation in this case did not give the trustee the

fee would be to overrule all the cases on the Statute of Uses. There was not such a doubt as to the title as to prevent the court from forcing it upon a purchaser, and the plaintiff was therefore entitled to a decree for specific performance, Lord Justice MELLISH was of the same opinion. Solicitors for the appellant, Sheffield and Sons. Solicitors for the respondent, Budd and Son.

Wednesday, March 13.


Specific performance-Agreement for lease-Memorandum in writing-Correspondence-Statute of Frauds.

THIS was an appeal from a decision of the Master of the Rolls. The suit was one for the specific performance of an alleged agreement by the defendant to take the plaintiff's house for seven years from Michaelmas 1870, at the yearly rent of £120. The bill alleged a verbal agreement to that effect, followed, first. by a letter from the defendant to the plaintiff agreeing to take the house upon certain conditions, but not stating when the term was to commence; and, secondly, by another letter from the defendant to the plain. tiff, in which the defendant stated that he thought it best to say that it was clearly understood on his part that the plaintiff agreed to let the house for seven years from Michaelmas 1870, upon the conditions mentioned in his first letter. These were conditions as to the house being put in proper repair, and were more fully set out in the second letter. The plaintiff did not admit that they formed part of the verbal agreement, and in his reply to the defendant's second letter did not expressly accept those conditions, but promised generally that the house should be put into good repair. The defendant having afterwards refused to take the lease, the plaintiff filed his bill for specific performance, which the Master of the Kolls dismissed with costs on the ground that the correspondence did not constitute a memorandum in writing of the alleged agreement sufficient to satisfy the requirements of the Statute of Frauds. From this decision the plaintiff appealed. Dayney (Southgate Q.C., with him) for the appellant.

Without calling upon

Fry, Q.C. and Chitty for the defendant, Lord Justice JAMES said that the first letter was a mere written offer, and that the second letter contained other terms which were not accepted. The court had gone quite far enough in

Appeal accordingly dismissed with costs. Solicitors for the appellant: Pearson and Lee. Solicitors for the respondent: Aldridge and Thorn.

March 4 and 11.


Will-Construction-Specific bequest of farming
stock during widowhood.
THIS was a suit for the administration of the
estate of James Cockayne, who, by his will, gave a
specific legacy of his farming stock, consisting of
beasts, stock of hay and straw, turnips, clover,
beans, and other consumable articles, to his wife
during widowhood, and she claimed to be entitled

H. Davey for the plaintiff.
Fellowes for the widow.

Sir R. Baggallay, Q.C. and Miller, Q.C. for other parties.

Lord ROMILLY held that the widow was only entitled to an interest in the farming stock during her widowhood, that the property should be sold and the proceeds invested, and the income paid to her until her death or second marriage. Blyth, and Marsland. Solicitors: Field and Roscoe; W. Berry; Wilkins,

Tuesday, March 12. WOOD. WEIGHTMAN.

-22 & 23 Vict. c. 35.

Liability of executors-Advertisements for creditors THIS was a suit to make the executors of a deceased trustee liable for a breach of trust. It appeared that the executors had inserted adver. tisements for creditors to come in and prove their claims, in two local papers only, and that three weeks was allowed within which they were to come in and the executors claimed to be freed from liability, inasmuch as the plaintiff's claim was one of which they had not notice at the time of distribution. The plaintiff contended that the executors were liable, as the advertisement had not been inserted in the London Gazette, or in any London daily paper; and also because in those advertisements which had been issued, sufficient time had not been allowed for creditors to come in. Sir R. Baggallay, Q.C. and Chapman Barber for the plaintiff.

Fry, Q.C. and Marten for the executors.
Dunning and Rogers for other parties.
Lord ROMILLY said that the 22 & 23 Vict. c. 35,

exempted executors from liability upon their giving such or the like notices as would be given by the court in an administration suit, and the court always required these notices to be inserted in the London Gazette, generally in the Times, as well as in some other London daily paper, and also in the local papers in the case of country causes. The execu tors had not complied with the requirements of the Act, and further, three weeks was too short a time to fix as the period within which claims must be brought in. There must, therefore, be a decrec that the executors, as well as the estate of the testator, are liable for the breach of trust. Solicitors: R. H. Nettleship; Thomas and Hollams.

V. C. MALINS' COURT. Friday, March 8. ATTORNEY-GENERAL v. STEWART. Charity-Scheme cy près-Application to restore money to original purpose. THIS was a petition presented in the above suit, and also under Sir S. Romilly's Act (52 Geo. 3, c. 101), by three Highlanders, resident in London, with reference to a sum of money raised in 1809 to provide a Gaelic service in London "for persons coming from the Highlands of Scotland who could not speak English." In 1827 an information was filed with reference to this money, which was paid into court; and in 1830 a decree was made sanctioning a scheme by virtue of which the income of the fund was paid to a clergyman who conducted a Gaelic service in London until 1844, when he resigued. A reference having been made to the master, he found by his report in 1846 that a fit and proper person could not be then found to conduct a Gaelic service in London; that it did not appear from past experience that Gaelic preaching was required or desired in London, and he approved a scheme for the application of the money in educating Scotch children at the Caledonian Asylum. A decree was made confirming this report, and the money was applied accordingly until 1871, when this petition was presented. It was stated in the petition that a fit and proper person could now be found to conduct the Gaelic service, and the petition prayed that the money should be so applied. The petition was supported by the evidence of numerous persons who ex

[ocr errors]

pressed their desire for a Gaelic service. But there was no evidence that any Highlanders resided in London who could not speak English. Cotton, Q.C. and Kekewich, in support of the petition.

Glasse, Q.C. and Freeling for the Caledonian Asylum.

Hemming for the Attorney-General.

The VICE-CHANCELLOR said that the money must be considered as having been raised for the benefit of those "who could not speak English sufficiently to attend an English service with profit," and that there was no evidence of there being any such persons resident in London. An application to change a scheme settled by the made with the consent of the Attorney General, court, and acted on for a long period, should be whereas the Attorney-General was opposed to the present application. The petition must be dismissed without costs.

Solicitors: Day; J. T. Simpson; Raven and


Saturday, March 9.

NARRAWAY V. BEATTIE (CAMA'S ESTATE). Dissolution of partnership-Proof by partner against estate of firm-Distinct trades-Debt in respect of cash advances, and debt in respect of cools supplied.

B. F. CAMA, residing at Bombay, carried on business in London, in partnership with Prestonjee, under the firm of B. F. Cama and Co; and also carried on business in Bombay on his sole account under the firm of B. F. Cama, Sons, and Co. The business of the Bombay firm was distinct from that of the London firm, but the two firms had large mercantile dealings` together, and the London firm acted as the correspondents in England of the Bombay firm. There was a current account between them in respect of these dealings; and at the date of the stopping payment by both firms (which occurred in Aug. 1866), there was a balance of £35,000 due on this account from the London firm to the Bombay firm. Cama executed an assignment for the benefit of his creditors, and Prestonjee also executed a similar deed; but no assignment had been executed of the joint estate of the London firm. A bill was filed

a dissolution of the

by the assignees of Prestonjee against Cama and his assignees for London firm and accounts of the partnership. A dissolution was decreed, and in taking the accounts in chambers, Cama's assignees, who represented the Bombav firm, claimed to prove against the estate of the London firm for £35,000, being the balance of the current account. The question was adjourned into court.

Cotton, Q.C. and Kekewich for Cama's assignees, representing the Bombay firm.

Glasse, Q.C. and Macnaghten for the assignees of Prestonjee.

The VICE-CHANCELLOR said that a partner could not, in competition with his own creditors, prove against his own firm. An exception to this rule occurred when the partner carried on a distinct trade from his firm; but this exception was confined by the authorities to the case where the debt arose in respect of goods supplied. In the present case, therefore, where the debt arose in respect of cash advances, the proof could not be


Solicitors: Waller and Handson; Uptons, Johnson, and Upton.

V. C. BACON'S COURT. Thursday, March 7. Re THE PATENT FLOOR CLOTH COMPANY (LIMITED) (DEAN AND GILBERT'S CLAIM). Company Travelling agent Commission

Winding-up Compensation. MESSRS. DEAN AND GILBERT were employed by the above-named company as commission travellers and agents, for a period of three years certain from May 1867, and for their services they were to receive a commission upon all orders obtained by them of 5 per cent. On the 24th Jan. 1868 the company passed a resolution to wind-up voluntarily, for the purpose of reconstituting it on a different footing. Shortly afterwards the company was ordered to be wound-up under the supervision of the court. During the first year of their engagement Messrs. Dean and Gilbert received for commission the sum of £399. They now sought to be allowed to prove as creditors against the company for the same amount of commission for each of the two years which were unexpired under the agreement.

Kay, Q.C. and Locock Webb were in support of the application.

Little, Q.C. was for the liquidator.

The VICE-CHANCELLOR held, that Messrs. Dean and Gilbert were entitled to claim compensation under the agreement, and it was referred to the chief clerk to ascertain the amount.

Solicitors for applicants, Lumley and Lumley. Solicitors for liquidator, Phelps and Sidgwick.

« EelmineJätka »