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judicial and political offices. Constitute a Chief Judge in Equity and make him a Peer, and let his office, late Lord Chief Justice COCKBURN's, be for life. Then let us have a department of justice of which the LORD CHANCELLOR may be the head, and do away with the absurd and anomalous legal duties of the HOME SECRETARY.” In all this we heartly concur, as we do in the concluding remark of our correspondent that the reforms of legal administration will never be satisfactorily carried forward so long as a combination of duties and offices rests upon the shoulders of one man.
repeatedly recognised and zealously guarded by the Legislature, there is a plain duty incumbent on the officers with whom it rests to administer the law, to see that the bail is substantial, and were it possible for a prisoner to escape on insolvent bail, justice would be miserably defeated. The wholesome effect of Mr. Justice WILLES's strictness is apparent by the general postponement of the application. We cast no aspersion on the persons tendered : they may have simply been indisposed to subject their affairs to a public scrutiny, and it is perfectly plain that the learned Judge would not have been justified in holding the examination in private. There is no doubt as to the law, and it is impossible to suggest that it has been improperly administered in the present instance.
The Times has stirred what is with solicitors and suitors a very sore subject-remanets. It complains, as we think justly, that after the parties and their witnesses have been brought to the assizes, their counsel instructed and fee'd, and all made ready for the hearing, they should be turned over to another assize, with doubled cost added to the vexation, and often serious loss, of delay in the settlement of the dispute. The Times rightly contends that this should not be—that longer time should be allowed for the accidental protraction of an assize, and that the convenience of Judges or Counsel should not be permitted to take precedence of the interests of the suitors. Solicitors will unanimously indorse the indignant remonstrance of the Times, for they share the annoyance with their clients, and are immediate sufferers from the discredit which thence attaches to the administration of justice. But fully admitting the grievance, we must confess that the remedy is not easy. The assizes are appointed with reference to the business anticipated at the time that the arrangement is made. It happens frequently that some new cases turn up, or trials last longer than had been expected, and so the calculation is baffled. Then why not complete the business in the one county, and postpone the business in the next county? But this would be beset with difficulty. How is notice to be given to the jurors, suitors, and witnesses in the deferred district, so as to save them a useless journey? And it must be remembered that if the next following county is deferred, the next one must be, and so on through the entire circuit, until it might happen that the last on
the list might be subjected to four or five adjournments. Having given some thought to the question, the only practicable plan we can discover is so to appoint the assizes that there shall be intervals between them long enough to secure ample time for all probable business. This would, of course, involve the giving to Bench and Bar, in ordinary cases, some days of leisure between the assizes in each county. At the worst it would put them only to the expense and trouble of a return journey to town for the interval. This would be disagreeable, certainly, but it is more tolerable for those who are paid for their work than is the burden now imposed upon the suitors, to whom it is all loss and no gain. And, after all, it would be nothing more than is done at present by many of the County Court Judges who live in London and go to and fro to their counties to hold their
CRIMINAL PROSECUTIONS AND PUBLIC
PROSECUTORS. The Lord CHEF JUSTICE only expressed the general feeling of the Profession when he said at Lewes that “our whole system of criminal prosecutions is bad, and requires revision.” Indeed, it may safely be said that nothing can be worse. The immediate occasion of the observation was a disclosure of a practice which it oppears prevails in many counties (though not, we believe, in boroughs) of the clerk to the magistrates conducting the prosecutions of prisoners committed for trial. This the Lord Chief JUSTICE said is a vicious practice, because it gives the clerk a sinister interest in the committal of prisoners for trial, or, what is as bad, the appearance of it.
It was, indeed, observed by counsel, that, considering the practice of these gentlemen, the pecuniary advantage is not likely to be a very powerful motive. But this is a very fallacious way of looking at it. There are other considerations far more powerful and influential than mere pecuniary profit, and one of these is the dispensation of forensic patronage. Clerks of the peace have brothers or friends, as committing magistrates have sons, at the Bar. There are members of the Bar who have more than one relative clerks to different Benches of magistrates, and the pleasure of giving a relative a brief every now and then, and thus promoting his progress in the Profession, is very likely to prove an influential motive. The undoubted fact is that where such motives exist briefs are prepared and delivered with the most liberal fees in the most trivial or untenable cases, whereas, where such motives do not exist, counsel are sometimes not retained at all, even in case of murder. The undoubted fact also is that one sees young gentlemen just called with brief after brief in criminal cases, while gentlemen who have gone the sessions and assizes for ten or twenty years, and have acquired great knowledge and experience, sit idle. So much for prosecutions directed by magistrates and conducted by their clerks. But there are worse sources of influence than these. Dlagistrates and their clerks are at least certain to be gentlemen ; but police inspectors and superintendents are far worse prosecutors, for many reasons and far worse dispensers of forensic patronage. They have a dual interest in the success of the prosecution, and are often--or their subordinates--the principal witnesses in support of it. Nothing can be worse than that they should conduct the prosecution in court and retain counsel. Yet in very many cases they are the real prosecutors, and are often bound over to prosecute; and in that capacity they-unless the prosecution is put into the hands of an attorney-virtually conduct it. It is far preferable that it should be in the hands of a gentleman of position in the Profession, though if he be clerk to the committing magistrate there arises the appearance of indirect interest, and there is the opening to the exercise of indirect influence.
The only remedy is a proper system of public prosecutors, but the construction of one is a question of much difficulty. We have reason to believe that the Government are contemplating such a scheme, but one of a nature certain to be unsatisfactory. We hear that they contemplate temporary appointments, which no gentlemen of position would accept, and that they couple their project with schemes of economy and parsimony certain to cripple or destroy its efficiency. Trivial cases should be disposed of as far as possible summarily, and only serious cases put into the calendar in our Superior Courts, Courts of Quarter Sessions, or Assizes. But cases worth prosecuting at all should be done well, and no risk should be run of justice failing for want of due preparation or proper professional skill. We understand that a sort of average of expense based on the present wretched system has been taken as the foundation of the plan, on which it appears that the fee to counsel is a guinea, and the costs paid to the attorney about two guineas. That upon some such average the idea has been arrived at of a total expense of £60,000 a year. But all such calculations are fallacies, for under the present system it is a chance whether counsel are employed or not; and if they are, the costs are calculated on the most niggardly scale, unless where the Treasury undertake prosecutions, and then the expense is, in proportion, enorinous. The average between the expense of Treasury prosecutions and of ordinary, prosecutions would afford a far safer guide. No public prose: cutor worth having is likely to accept a less salary than £1000 a year, and that requires an expenditure of £50,000 a year or thereabouts. Then there are the expenses of counsel to be con
BAIL. IT may
be supposed that Mr. Justice Willes was exceptionally strict with regard to the bail required in the case of the Tichborne Claimant. His Lordship, however, was certainly justified in requiring the very letter of the law to be complied with and in exercising his discretion in every respect in favour of the prosecution.
The offences of perjury and subornation of perjury are bailable by statute (11 & 12 Vict. c. 12, s. 23). The original intention in allowing bail at all was to relieve subjects against malicious imprisonment upon slight accusations, and historians tell us that
power was abused, and a statute of Philip and Mary enacted that the statute West. 1, c. 15 should in future be the law of bail and mainprise. That latter statute provided that “if any withhold prisoners replevisable after they have offered sufficient surety, he shall pay a grierous amerciament to the king." And modern enactments having defined in what cases a prisoner is entitled to bail the duty of a Justice is clear.
The process of admitting to bail is a judicial act, and the Judge or Justice is entitled to demand the names of the sureties and to ensure that reasonable notice be given to the prosecutor. And for the
purpose of determining the ability of the persons tendered they may be put upon their oath “ to make true answer to all such questions as may be demanded of them.” They may then be asked questions as to their means, property and liabilities—whether or not they have been bankrupt or insolvent, or are surety for another. In Reg. v. Saunders (2 Cox C. C. 219) it was expressly laid down that a Justice ought not to interfere in any way to dissuade the persons tendered from becoming bound as bail
. Baron MARTIN, in Reg. v. Broome (18 L. T. 19), laid it down that if the Justice is satisfied of the solvency of the persons tendered as bail he is not justified in rejecting them on account of any alleged objections to their moral character, and from the fact that they are indemnified by the prisoner.
The popular notion, no doubt, has been that so long as a man was a householder he had only to offer himself as bail to be accepted. Now, although the right of prisoners to bail has been
character, who may not bring upon his victim lifelong ruin and misery. Cases such as those of Sir TRAVERS Twiss ought not to pass without leaving a lesson in legislation as well as in morality..
sidered. Counsel are now so ordinarily retained to defend prisoners, that in many cases it is improper not to have counsel for the prosecution. And if it is intended to have the services of men of competent knowledge and experience, then fees must not be fixed on the wretched scale allowed by the Treasury in cases not conducted by themselves, but rather on a scale more approaching to the fees allowed to their own counsel. Above all, the fees should be apportioned to the importance of the cases, and upon some settled system, instead of being left as at present, to all the circumstances of chance and caprice, or the influences of indirect interest.
THE LEGAL IMMUNITY OF LIBELLERS AND
IMPOSTORS. The recent scandal which has ended so disastrously for one of the most eminent and respected members of the Bar, draws attention to the present position of the law of libel, which it seems to us is not so satisfactory as it might be. In the first place the old saying, “ the greater the truth the greater the libel," would appear to have been based upon a most just estimate of human character. A great truth may prove to be maliciously defamatory in the very highest sense of the term; the truth may be one which concerns only the persons implicated; it may be spoken or published to gratify private animosity of the most detestable kind. How then does the law say that it shall be dealt with? Putting aside the civil action to which a plea of the truth of the libel is a complete defence, the 6 & 7 Vict. c. 96, s. 6 enacts that, on the trial of any indictment or information for a defamatory libel, the defendant having pleaded such a plea as thereinafter mentioned—that is to say, a plea of justification on the ground of the truth of the libel and that it was for the public interest that it should be published-the truth of the matters charged may be inquired into, but the plea shall not amount to a defence, unless it was for the public benefit that the matter should be published.
Now upon this statute this condition of things appears. A person actuated by the worst motives may publish the most gross and scandalous libels, and may add to his iniquity by pleading in justification that they are true. And these libels are to be inquired into; the torture of a public inquiry, which means the investigation of private character before the domestic forum of every household in the kingdom by means of the public press, is to be endured, with what results, whether to the innocent or the guilty, we have lately seen. It would be difficult for the most upright among us to stand a searching public examination into our lives, such an examination being conducted by a malignant and utterly unscrupulous enemy. Therefore it strikes us as a mistake in the enactment referred to to say that the matter shall be inquired into, and that subsequently, when all the torture of a preliminary inquiry has been endured, and private character made the sport of a coward, then the law shall say whether the truth, if proved, shall amount to a defence, by applying the test whether the publication was for the public benefit. Why not provide that at the very outset a libeller shall prove to the satisfaction of a magistrate that it is for the public benefit that the libel was published? If there had been such an enactment on the statute book could CHAFFERS have enjoyed for so many days his detestable notoriety? On the contrary he would now have been undergoing the punishment which he so richly deserves.
But we pursue the same lenient course towards all persons who can establish even a presumption of legal right. Our Continental critics laugh at us for permitting the TICH BORNE claimant to make the possessions of an ancient family and a lady's fair fame the sport of an audacious and villanous ambition. Why, they ask, did not the ATTORNEY-GENERAL, as the only public prosecutor we have, at once fix upon some point and break the neck of an imposture, and consign the claimant to the police? We can reply that had such a course been attempted the ATTORNEY-GENERAL would have been hounded down by the lovers of " fair play,” for at the present time there are advocates in the Press who wish that the case “had been tried out.” And had such a course been possible, the difficulties in the way would have been very considerable--difficulties which would not be encountered in adopting our suggestion as to libel. We reach the height of absurdity when we not only do not compel a libeller to justify at the outset, but furnish him with a statutory form for defaming private character.
We have seen it suggested that we should establish courts of preliminary inquiry, but although we approve of the suggestion we very much doubt whether our reverence for the liberty of the subject would allow us to carry it into effect. We now simply deter sham and vexatious actions by compelling security for costs or remitting to County Courts, but this does not prerent trials coming to the surface which ought to have been suppressed at the earliest stage of their career. We admit, however, the difficulties which would attend the attempt to control cases of the TICHBORNE type, but as regards libels we think the course is plain and simple. We ought at once to adopt measures to stop the foul mouth of the traducer before he makes a public court the vehicle of his calumnies, and if some such steps as we have indicated are not taken, there is no member of society who, at the caprice of any villain who can, or who thinks he can, hit a blot in his or her
THE FAILURE OF PRIMARY AS AFFECTING
SUBORDINATE DISPOSITIONS. Our attention has been directed by the case of Hunter v. Bullock, decided by Vice-Chancellor Sir J. Bacon on the 6th inst. (L. Rep. "Weekly Notes,” 16th inst.), to the uncertain state of the law as to the effects of the failure, under the laws of mortmain, or otherwise than under the rule against perpetuity, of a primary gift, upon a secondary or subordinate gift. In Hunter v. Bullock, a testator desired that after his niece's death his executors should pay to the trustees of a certain benevolent institution £1000 stock
for the following use, that is, to pay the required amount for painting and keeping in repair the gravestone or gravestones in Kensal-green Cemetery or elsewhere” (which the testator bad previously mentioned) “yearly, if required, and to divide the balance that may remain into two equal parts,” to be divided between the pensioners of the institution in the shares and at the dates mentioned. It was contended that the gift failed either in whole or in part, and went wholly or in part to the residuary legatee. The Vice-Chancellor, however, held that though the trust for repairing the gravestones was void, the gift to the institution was perfectly good. This is quite in accordance with the decision of Lord Hatherley, when Vice-Chancellor, in the very similar case of Fisker. The Attorney-General (17 L. T. Rep. N. S. 27). This was in the year 1867, but going back to 1861, we come upon the case of Fowler v. Fowler, before Lord (then Sir John) Romilly, reported 10 L. T. Rep. N. S. 682, where it was held that a bequest of £500 upon the permanent trust of applying the income for repairing and keeping in repair certain graves, and then to pay the surplus income to the rector of B. for the time being, was void as to the tombs for perpetuity, and as to the surplus for uncertainty, and that the £500 went to the residuary legatees. The Master of the Rolls there says:
I have looked into the authorities cited in the argument in this case, and they seem to establish this proposition, that where there is a sum of money, part of which is to be applied to a purpose that fails, or cannot be ascertained, and the remainder to a valid purpose, then the whole gift fails in consequence of the failure of the first trust. I do not very clearly see why, on prin. ciple, that should be the rule, or why the first part of the gift should not be treated as a void legacy in a will followed by a residuary bequest. In that case the void legacy would fall into the residue. But the authorities are decisive on the point."
In Kirkman v. Lewis (21 L. T. Rep. N. S. 191) Lord Romilly decided similarly on similar reasoning. There a testator directed the residue of his personal estate to be converted into money, and the money applied in the construction of a well, and the erection of a public pump and tank on any convenient place in the village of Llangorse, and, if there should be any surplus, directed the same to be paid to the rector for the benefit of a school there. This was the case of a general residue, but the nature of the disposition was such that there was but small ground for contending, as was contended before Lord Lyndhurst in a somewhat similar case (Mitford v. Reynolds, 1 Phil. 198) that the trust was only a charge on the residue, and not an appropriation of an integral part of it. In addition to this the nature of the failing trust was such that it was almost impossible to estimate antecedently the cost of its fulfilment. In each of the three cases to which we bave first referred, the gifts were particular and not residuary, and we find it difficult to reconcile the decisions of Vice-Chancellor Bacon and Lord Hatherley with that of Lord Romilly in Fowler v. Fouler. Perhaps the true question, one of intention and construction, to be determined in each case, whether the bequest is particular or residuary, is, whether the bequest which fails is an appropriation or a mere charge?
If a charge on the particular fund, the failure of the charge would enure for the benefit of the particular fund. If, on the contrary, the failing bequest be an appropriation of an integral part of particular fund, the failure would enure for the benefit of the general residue. So, again, if the failing bequest be an appropriation of an integral part of a general residue; on such failure, it lapses altogether, but if a mere charge, the failure would operate in augmentation of the residue.
The question of intention is frequently a most difficult one. Whether the failing gift is intended to be a charge, or whether it is an appropriation, or whether, as in cases like Hall v. Rudall (31 L. T. Rep. 341; 4 K. & J. 603), the taking effect of the primary gift which fails is or is not to be treated as a condition precedent to the validity of the secondary gift, often involve questions on whichi the most judicial minds may be excused for differing.
We incline to the belief that in the case of Fouler v. Fouler the authorities did not oppose any insuperable difficulty to a decision that the trust for the repair of the graves was a charge on the fund and not an appropriation of part of it, and that the more recent cases of Fiske v. The Attorney-General and Hunter v. Bullock will be followed.
Moreover, if the void trust in Fovler v. Forler is to be considered an appropriation of part of the 5001., and not a charge on that fund, it is not clear why an inquiry could not have been directed as to the amount of the fund requisite for producing an income adequate to meet the repairs, according to the suggestion of Sir W. Grant, in Chapman v. Brown (6 Ves. 404), and in conformity to the course of proceeding adopted by Lord Lyndhurst in Vitford v. Reynolds (ubi sup.), unless, indeed, as in Cramp v. Playfoot (4 K. & J. 479), the fund was too small to render such an inquiry of any avail. The case last cited seems to show that when there is the gift of what is substantially " the surplus, if any” of a given fund after fulfilling a trust which the law declares to be void, it must primâ fucie be implied that the gift which fails operates as an appropriation rather than a charge, and that unless the quantum or amount representing the gift which fails can be ascertained, the gift of the surplus fails also. Our readers will regard the above remarks as hints or suggestions merely ; in the present state of the authorities it would be rash to dogmatise. We have purposely abstained from any examination into the effect on ulterior limitations of the failure through remoteness of preceding gifts. On such failure, the courts infer an intention on the part of the settlor or testator, that the ulterior disposition is not to take effect unless the primary disposition can do so. On this subject we beg leave to refer to an article on “ The Failure of a Gift for Remoteness as affecting Ulterior Limitations" (Law Times, vol. xlviii. p. 388.)
OBTAINING POSSESSION OF A CHEQUE BY TRICKERY
AVINIO FURANDI: WHEN LARCENY. As important case came recently before the Court of Common Pleas in Pennsylvania, involving the question under what circumstances there can be larceny of a cheque. The cheque in question had been obtained by the defendant from the city of Philadelphia for the purchase of certain stock; but, instead of so appropriating it, he converted it to his own use. In the first count of the indictment he was charged with the larceny of the cheque, and, as the Court observed, that was the vital point in the case. The Court say: It is to be observed that the count in question rests entirely upon statute. There was no such thing known to the common law as the larceny of a cheque, qua cheque. It is true an indictment would lie for the larceny of a cheque as a piece of paper, of the value of a fractional part of a penny, but as a valuable piece of property, representing the dollars which it named, a cheque was not the subject of larceny. To remedy this evil, our Criminal Code (sect 101), has expressly made it larceny to steal cheques and other securities. A similar statute exists in England, from which the section above referred to is in the main copied. So that at the present time, a cheque is as much property, and the subject of larceny, as a horse or a bale of muslin, and it is to be treated, not as a mere piece of paper, but as the representative of the money which it calls for, and of a corresponding value. This case is to be considered precisely as if the defendant, instead obtaining a cheque, had obtained the money from the City Treasury.
It was urged upon the argument that the stealing of a cheque, in the hands of the drawer, before it had been put into circulation was not larceny. It is difficult to see the soundness of this view. The value of a cheque consists in its being the representative of money, in being an order or paper, by the presentation of which at the proper place, a certain sum of money can be obtained. The moment the maker has filled it up and signed it so as to enable the holder to draw the money, its value attaches, and it becomes property to steal which is larceny. This point has been expressly ruled in England. In Rex v. Metcalf (1 Moody, 433), the prisoner was indicted for stealing a cheque. The cheque was drawn to bearer, and given by the drawer to the prisoner, for a specific purpose, to wit: to deliver to the Messrs. Caldecott. Instead of doing so, the prisoner applied it to his own use. He was found guilty of the larceny of the cheque. Upon the trial the question was reserved, “whether the cheque in the hands of the drawers was of any value, and could be the subject of larceny ?" The case was considered, and the judgment affirmned, eight of the nine eminent judges who heard the case concurring ; only one of them, Littledale, expressing a doubt. We are of opinion that the moment this cheque was so far completed as to enable anyone obtaining it to draw the money, it was the subject of larceny in the hands of the City Treasurer. We do not regard the fact that the cheque, after its payment by the bank, was returned to the City Treasurer, affects this view of the case. It came back, it is true, so far as the piece of paper was concerned, but its value, that for which the law makes it the subject of larceny, was gone. Here, again, we must keep in mind the distinction between the cheque as a thing of value, as the equivalent of 33,000 dols., and a worthless piece of paper. Every cheque stolen from the drawer must come back to him in case of its conversion by the thief, and we have seen, in Rex v. Metcalf, that a cheque is the subject of larceny in the hands of the drawer. It it imInaterial what became of the cheque after it reached the possession of defendant, if it were obtained feloniously, as in the latter case the offence was complete the moment it was so obtained.
But it was strongly urged by the learned counsel for the defendant, that the otfence at most was but a false pretence, and that in any event it was not larceny, because there was no felonious intent.
The distinction between larceny and false pretences is a very nice one in many instances. In some of the old English cases the difference is more artificial than real, and rests purely upon technical grounds. Much of this micety is doubtless owing to the fact that at the time the cases were decided larceny was a capital felony in England, and the judges naturally leaned to a merciful interpretation of the law out of a tender regard for human life. But whatever may have been the cause, the law has come down to us with such distinctions, and we propose to administer it as we find it. It is not our purpose to go a hair's breadth beyond the decided
The distinction between larceny and false pretences is well stated in Russell on Crimes, 4th edit., p. 200. After an exhaustive review of the
cases, that learned authority says : “The correct distinction in cases of this kind seems to be that if by means of any trick or artifice the owner of property is induced to part with the possession only, still meaning to retain the right of property, the taking by such means will amount to larceny; but if the owner part with not only the possession of the goods but the right of property in them also, the offence of the party obtaining them will not be larceny, but the offence of obtaining goods by false pretences.
A review of the numerous cases cited upon the argument would be interesting, but would exceed the limits of this opinion, and the result would be to bring us to the principle above cited. By that principle this case must stand or fall, so far as this branch of it is concerned. The difficulty, if any, is not in the law ; that is uniform, and easily understood. But it is in applying the facts of each particular case to the law, and thus to ascertain what offence, if any, has been committed. It will be our endeavour to subject this case to this test.
It must be conceded, that if the city intended to part with its property in this cheque, at the time the defendant obtained it, and not with the possession only, then the offence would not amount to larceny. As if a man enter a store, and by reason of a false statement, induce the owner to sell him a bill of goods upon credit; here the vendor of the goods parts with the property in said goods absolutely, and the relation of debtor and creditor is created. The merchant may have been overreached, but it is not larceny-at most a false pretence. Did the city intond in the case now under consideration, to part with its property in the cheque, regarding said cheque as we are bound to do, as the representative and equivalent of 33,000dols.? Certainly not as in favour of the defendant.
The court adds to this :
We do not think this a case of false pretences, because there was not any intention on the part of the city officers to part with the property in the cheque, but with the possession merely; and no relation of debtor and creditor arose out of the transaction.
Then it goes on fully to investigate whether the offence was larceny, and reviews particularly Reg. v. Johnson, Reg. v. Heath, Reg. v. Perry, Reg. v. Bronn (1 Dears. C. C. 616) Reg. v. Aickles, Reg. v. Robins, Reg. v. Patch, and Reg. v. Robson, and concludes thus :
These and numerous other cases which might be cited illustrate the principle that the obtaining the possession of goods or property, animo furandi, by trick, fraud, or artifice, amounts to larceny. In this case it is claimed that there was no larceny, because there was no felonious intent. It was the especial province of the jury to dispose of this question, and they have settled it against the defendant. It was fairly submitted to them as a question of fact, with the instruction, substantially, that they must be satisfied from the evidence, beyond a reasonable doubt, that the defendant took the cheque feloniously, with intent to convert it to his own use, or that he obtained it by a trick or artifice, with a like felonious intent at the time he obtained it. Shall we say the jury were wrong and reverse their finding ? If there were no evidence of any felonious intent, or if the evidence greatly preponderated against such intent, we should feel bound to set aside this verdict. While we seek to administer the law impartially, we will not be astute in opening avenues of escape for criminals. We cannot say that there was not sufficient evidence of the felonious intent to sustain this verdict. For what purpose did the defendant get that cheque ? He was upon the eve of failure. He had already hypothecated for his own debts th3 loan of the city placed in his hands for sale. He had unlawfully obtained 300,000dols. in cash as a loan, and it is reasonable to suppose that he could obtain nothing more from the City Treasury by any ordinary means. Then it is that he goes there, and with a falsehood upon his lips, obtains 33,000dols. more. The jury have found the intent with which this was done. We are not prepared to say they were wrong. In an ordinary case, the facts would have been too clear for doubt, and we will not hesitate here, because of the magnitude of the offence, or the standing of the offender. The justice which we administer to the humblest criminal will be accorded to this defendant. Nothing more, nothing less.
The jury having found the animus furandi, and in the opinion of the court, upon sufficient evidence, our judgment is, that the offence committed by the defendant in this case was larceny.
A Concise Treatise on the Law of Arbitrations and Avards, with an
Appendix to Precedents and Statutes. By JOSEPH HAWORTH REDMAN, of the Middle Temple, Barrister-at-Law. London :
Butterworths. There is evidently a disposition on the part of legal authors to attempt the concise treatment of subjects. We have lately seen the law of Landlord and Tenant for a long time represented by the bulky volume of Woodfall, reduced to moderate dimensions, and if the work before us is done well it will stand in favourable contrast with the cumbersome treatise of Russell.
A singular feature in this work is that it has no footnotes, and this is a decided recommendation. Mr. REDMAN goes straight through his task, and gives his cases at the end of his propositions. Commencing with a brief introduction, his second chapter
a treats of " who may be parties to a reference,” and each succeeding chapter, divided into sections, exhausts the successive steps in the process of arbitrament. The question of costs, which is apt to cause difficulty, is very clearly put before the reader; and indeed the chief merit of the work is the singular lucidity with which the law is exponnded.
No peculiar knowledge of law or literary ability was necessary in the complation of this book, and we give it all the praise which it can claim when we say that the arrangement is good, the style clear, and the work exhaustive. There is a useful appendix of precedents and statutes, and a very good index.
THE STOCK MARKETS.
City, THURSDAY, MARCH 21. The tendency of the prices of public securities has been fairly strong in the upward direction, but the chief attention has been directed to certain stocks and shares in connection with which unusual and exceptional circumstances of a farourable nature have revealed themselves. The event in financial circles calling for the first place in our remarks is the new Peruvian Loan, particulars of which will be found below. Very large transactions are reported to have taken place in the scrip at 1 per cent. premium. The interest manifested in the final overthrow of the Erie “Ring," and the installation of General SICKLES, to whom GOULD transferred his shares, has been reflected in the considerable fluctuations in the price of the shares and the large rise that has been established so far. The settlement which will begin on Monday is expected to show that the operations in these shares have been enormous. Yesterday and to-day there has been rather a tendency to curtail engagements generally in view of the Easter holidays, and there will be probably a dimunition in the extent of purchase-business for the rest of the week.
As regards the future course of the Stock Markets, the question of the value of money assumes from week to week more importance, although there is still no evidence at the moment to justify the belief that a rise in the discount rates is very near at hand-a view which is justified by the Bank rate still remaining at 3 per cent. Much depends upon the application of the proceeds of the subscriptions to the New Peruvian Loan, and to what extent other expected loans may affect the supply of money.
There has been a tolerably brisk demand for money at the Bank, but nothing much doing in the open market, where the rates for short paper have ruled at 2; to 3 per cent.
3 Subscriptions were invited yesterday by Messrs. J. H. Schröder and Messrs. Stern Brothers, for a Peruvian Government 5 per cent. Con solidated Loan, 1872. £15,000,000 sterling bonds of which are for rail. road and other public works, and £21,800,000 like bonds to provide for the extinction of the existing bond debt, as set forth in the prospectus. The bonds are redeemable at par by half-yearly drawings, through the operation of an accumulative sinking fund of 2 per cent. per annum, commencing in July 1872, and the price of issue is 77.!per cent. The bonds will be to bearer in amounts of £1000, £500, £200, £100, and £20, carrying interest at the rate of 5 per cent. per annum, payable by coupons half-yearly on the 1st Jan. and 1st July in each year (the first being payable on the 1st July next). The coupons will be payable in London, in sterling; in Paris, at the exchange of 25fr. per £; and at Amsterdam, at the exchange of the day on London. The general bond, of which a copy is appended, guarantees that the bonds shall be exempt from Peruvian taxes of all kinds. The redemption will be effected by half-yearly drawings at par ; commencing on the 1st July 1872, by the operation of a sinking fund of 2 per cent. per annum on the nominal capital, plus the interest on the redeemed bonds, so that the entire amount will be paid off in twenty-six years from that date. The bonds so drawn will be paid off with interest three months afer the date of drawing.
The British Funds have improved per cent. since last Thursday; but French Rentes as quoted in this market have declined .
In the American market the United States 5-20 Bonds show no variation in price; but Erie Railway shares, after rising to 471, and receding to 42) yesterday afternoon, are now 9 dollars higher than last Thursday, at 44 to 41. The funded loan is 1 higher.
The movements in Home railway stocks are somewhat equally divided, circumstances exercising opposite infinences having come into play. The North Eastern Stock has fallen 3 per cent, 2 per cent. of which occurred yesterday on a falling off in the traffic receipts for the week to the extent of £2000. Metropolitan District stock is 2 per cent. lower on a discouraging report of the directors. On the other side, Manchester and Sheffield has risen 4 per cent., the buying
having been occasioned by the rumour that the chairman of this line was about to occupy also the post quitted by Lord Salisbury at the board of the Great Eastern Company, in which case it is anticipated that the facilities for carrying the coal from the north on to the latter line, by means of a branch from the Manchester and Sheffield system, which has been already attempted, may be carried out. North British is 2 higher; London and Brigton 14; Caledonian, Great Eastern, and Great Northern 1. To-day this market is flat.
The principal rise in the Foreign Market is in Paraguay Stock of 2 , the principal movement being the recovery of the 2 per cent. dividend last Friday. Attention has been directed to Greek and also to Mexican of the neglected stocks, and both are better, some arrangement of the claims by the respective Governments being looked for. Turkish have improved latterly on the publication of the budget, and the other leading stocks are generally higher, with the exception of French and Spanish--the latter being about lower on unfavourable reports again from Madrid.
In the minor markets the principal changes in prices are a rise of 16 in Phosphate Sewage, and 8 in Native Guano, and of 6 in Royal Mail Steam Company.
Twenty-five thousands have been withdrawn to day from the Bank for Germany. The discount demand bas been good.
The latest quotations for British Funds are as follows: Congols, for money, 921 to 92%; ditto 5th April Account, 923 to 93 ; Reduced, 91: to 913; New Three per Cents., 911 to 910; 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., 961 to 97; ditto Five and ? Half Per Cent., 1081 to 108 ; Bank of England Stock, shut ; Metro. politan Three and a Half per Cent., 96 to 96.1; and French Rentes in this market, 55 to 56.
French Rentes were quoted this morning in Paris at 55f. 57c. Market undecided.
In the market for American Securities, the United States 5-20 Bonds of 1882 are marked 921 to 924; ditto, 10-40 Bonds, 89 to 89} ; Atlantic and Great Western Bonds, 42 to 42; ditto Debentures, 48 to 49; Eries, A 14 to 41}; Illinois, 108} to 1091 ; and United States Funded Loan, 90% to 90%.
In the Railway Market the prices are :--Caledonians, 118 to 118!; Great Eastern, 50 to 503; Great Northern, 135 to 136 ; ditto, A, 157 to 1581; Great Western, 111; to 1113; Lancashire and Yorkshire, 156} to 157 ; London and Brighton, 81 to 814; London, Chatham, and Dover, 27} to 273 ; London and North - Western, 1534 to 153); London and South-Western, 107 to 108; Metropolitan, 692 to 70; ditto District, 30 to 31 ; Midland, 143 to 143} ; North British, 63. to 64 ; North Eastern Consols, 1739 to 174; South-Eastern, 98 to 981 ; ditto deferred, 77 to 77}; Grand Trunk of Canada, 20.4 to 203; Great Western of Canada, 20, to 21; Antwerp and Rotterdam, 19 to 19); Great Luxembourg, 171 to 17%; and Lombardo Venetian, 19 to 19).
The prices of the principal Foreign Stocks are recorded thus :-Argen. tine, 1868, 97 to 97; do., 6 per cent., 1871, 921 to 93; Brazilian, 5 per cent., 1865, 96 to 96}; do., 5 per cent., 1871, 95% to 96; Egyptian, 7 per cent., 1868, 86 to 867 ; do...Viceroy Loan, 90 to 91 ; do., Khedire Mortgage Bonds, 80} to 80; Greek 5 per cent., 22 to 23!; French Morgan 6 per cent. Loan, 1003 to 100%; do., National 5 per cent. Loan, 64 to 64 pm.; Italian of 1861, 681 to 687 ; Mexican, 161 to 163; Paraguay 8 per cent. Loan, 887 to 89; Peruvian, 5 per cent. 1865, 100. to 1011: do., 6 per cent. 1870, 82 to 83; Russian 5 per cent. 1871, 91 to 911; do., Nicolai Rail., 75, to76); Spanish, 30 to 31; do. Quicksilver, 80 to 81 ; do. 3 per cent. 1871, 30% to 303 ; Turkish, 5 per cent. 1865, 514 to 51; do. O per cent. 1865, 69; to 691 ; do. 6 per cent. 1869, 623 to 63}; do. 6 per cent. 1871, 74 to 741.
In the Telegraph Market, Anglo-American Stock is quoted at 120 to 123 ; Anglo-Mediterranean, 170 to 175; British Australian, 93 to 93; British Indian Extension, 11% to 12 ; ditto Submarine, 10, to 11 ; Chinas. 91 to : Cubas, 8 to 8.; Falmouths, 111 to 11); Great Northern, 151 to 16; Marseilles, Algiers and Malta 81 to 91; Mediterranean Extension, 1 to 5); Reuter's, 107 to 11; French Cables, 22 to 23, ex all; and West India and Panama, 6% to 6%.
In miscellaneous shares the prices are as follows :-Credit Foncier of England, 5% to 5; Crystal Palace, 22 to 21; General Credit and Discount, 23 to 2 pm.; Hooper's Telegraph Works, 27 to 3 pm. ; Hudson's Bay, 101 to 10.; London Finance, 17 to 175; London General Omnibus Com. pany, 77 to 82; London Tramways, 129 to 13; National Dis wount, 13 to 13); Native Guano, 20 to 30 ; Phosphate Sewage, 56 to 57; Royal Mail Steam, 94 to 97; and Telegraph Construction, 314 to 32.
NOTES OF THE WEEK. murred on various grounds, and the Master of the Bristowe, Q.C., Fischer, Q.C., W. F. Robinson,
Rolls allowed the demurrer only on the ground of J. T. Humphrey, and James' Kaye, for other COURT OF APPEAL IN CHANCERY.
want of parties or misjoinder, inasmuch as some appellants.
of the persons on whose behalf the bill was filed
Joshua Williams, Q.C., Fry, Q.C., Speed, and
Lord Justice JAMES said that the order of the The COMMISSIONERS OF SEWERS OF THE City for: (See 25 L. T. Rep. N. S. 614.) Leave was OF LONDON v. GLASSE.
given to amend the bill in this respect, and it was Master of the Rolls was quite right. The hill
accordingly amended by making the following ex. was one by a person claiming a general right Pleading-Demurrer-Rights of common-Forest courts-- Jurisiliction-Irant of parties.
ception from the persons on whose behalf it was against a number of persons claiming several
filed, “except such of them as are defendants rights, and it was better that the question should Tuis was an appeal from a decision of the Master hereto, or are hereinafter alleged to be sufficiently be tried in one Chancery suit than by an action by of the Rolls. The bill was filed by the plaintiffs represented by the defendants hereto or some of cach owner and occupier against each person er; on behalf of themselves and all other the owners thein." Some of the defendants again demurred croaching. Every principle was in favour of such and occupiers of lands and tenements within to the amended bill
, on the grounds (amongst a bill as this. As for the objection to jurisdiction, Epping Forest against the lords of several manors others) that the alleged right was one which could there was no evidence of exclusive jurisdiction in within the forest, and the Attorney-General, as not have any legal existence, that the forest courts the forest courts. Nor could the objection for the representative of the Crown, praying for a had exclusive jurisdiction, and on the ground of want of parties be sustained, for nothing deteta declaration that they were entitled to a right of want of parties. The Master of the R is having mined in the suit would be a res judicatu against pasture upon all the waste grounds within the overruled the demurrer, the defendants aj any person not represented in it. forest, and that the defendants might be restrained pealed.
Lord Justico MELLISH was of the same opinion. from inclosing or permitting to remain inclosed Sir Richard Baggallay, Q.C., Southgate, Q.C., He saw no reason why the right alleged in the any part of the waste lands of the forest subject and Naliler, for the lords of the manor of Alders. bill should not have a legal existence. The case to such commonable rights. The defendants del brook, &c.
alleged was, in his Lordship's opinion, one capable
out a new summons.
of being proved at the hearing, and that was and subsequently the solicitor of the company existence of the first suit. The executors who enough to dispose of the demarrer on that point. handed back his deposit to Davies. It was ad. were defendants to both suits now moved that
Appeal accordingly dismissed with costs. mitted by Davies in cross-examination that it was Lucas v. Siggers might be transferred from the Solicitors for the appellants, Collyer-Bristowe, part of the arrangement when his firm were court of Malins, V.C. to the Rolls. Withers, and Russell ; Druce, Sons, and Jackson ; appointed agents of the company that they should Gardiner, for the applicants, submitted that Sewell and Edwards.
take 250 shares, and it appeared that Templeman, where there were two concurrent suits, and a de. Solicitors for the respondents, Horne and another member of the firm, had applied for 200 cree had been made in one of them, it was the in. Hunter, for T. J. Nelson, City Solicitor.
shares, and paid a deposit of £1 a share on them. variable practice to transfer the other cause to Under these circumstances the Vice-Chancellor that branch of the court where the cause was in
held that Davies must be fixed on the list of con. which the decree had been made. Thursday, March 14.
tributories in respect of the fifty shares. From Fry, Q.C. and Rawlinson, for the plaintiffs in this decision Davies appealed.
the first suit, supported the contrary contention, Ex parle HEYMAN; Re HEYMAN.
Cotton, Q.C. and Lindley, Q.C., for the appel. relying upon Orrell v. Busch (22 L. T. Rep. N. S. Bankruptcy Act 1869, s. 86–Arrest of bankrupt, lant.
461; L. Rep. 5 Ch. 467), where Giffard, L.J., held Informal affidavit.
Glasse, Q.C., and Higgins, Q.C. for the official that where a person, knowing that a suit has been This was an appeal from an order of Mr. Registrar liquidator.
instituted in one branch of the court, files a bill in Hazlitt, committing Mr. Moritz Heyman to prison Lord Justice MELLISH said that there was an another branch of the court in respect of the same under the 86th section of the Bankruptcy Act agreement that the firm should become agents of subject matter, the second cause will be ordered 1869, on the ground that he was about to remove the company, and they did become agents, and to be transferred to the court to which the first his goods or chattels with a view of preventing or according to Davies's own evidence, it was part cause is attached, and the plaintiff in the second delaying such goods or chattels being taken pos- of the arrangement that they should take 250 cause will, as a general rule, be ordered to pay the session of by the trustee. The registrar's order shares. Templeton applied for 200 and Davies costs of the application for such transfer. recited the affidavits upon which the warrant had for fifty shares. The company made no objection, Lord Justice JAMES said that the rule laid down been issued, and it appeared that one of these and that was sufficient proof that they assented in Orrell v. Busch was one to which he would affidavits had not been sworn at all. On this to that division of the shares between the partners, always adhere. It made no difference that a deground the bankrupt appealed from the registrar's but the mere retaining of the deposit would not cree had been made in the second suit. It must order.
have been sufficient evidence of the company's be transferred from the Rolls to the court of De Ger, Q.C. and Robertson Griffiths, for the assent, had there not been a previous binding Malins, V.C., and the plaintiffs in the second suit appellants, urged that under these circumstances arrangement. The order of the Vice-Chancellor must pay the costs of the application. the order of the registrar could not be sustained. must, therefore, be affirmed.
Lord Justice MELLISH concurred. T. E. Winslow and Warmington, for the respon. Lord Justice JAMES concurred.
Solicitors for the applicants, Nicholson, Nicol, dent, contended that even if the informal affidavit
Appeal accordingly dismissed with costs. and Son. were treated as a nullity, the order could be sus- Solicitor for the appellant, John Tucker.
Solicitor for the respondents, James Mason. tained on the evidence contained in the other Solicitors for the official liquidator, Murray and affidavits.
Hutchins. Lord Justice JAMES said that in a matter affect.
POPE v. PROBYN. ing the liberty of the subject, the technical rules
Specific performance-Agreement for lease-Parol
Saturday, March 16. of practice ought to be strictly adhered to. One
agreement -Written memorandum.
Gough v, SMITH. of the affidavits upon which the registrar's order
This was an appeal from a decision of the Master was based appeared to be informal. The judgment Trustee-Breach of trust-Trust to permit married of the Rolls. In Sept. 1858 the plaintiff verbally of the registrar was partly founded on that affi.
woman to receive rents - Liability of co-trustee. agreed to take a lease of a farm belonging to the davit, and, therefore, the warrant was bad, and This was an appeal from a decision of the Master defendant for fourteen years, at a rent of 22s. an the bankrupt must be discharged, but without of the Rolls. The plaintiff, Martha Gough, acre, and he at once entered into occupation of prejudice to the right of the respondent to ta'se widow, and her brothers A. B. Smith and 0. Smith, the farm. On the 20th Dec. 1859, on his paying
were, under their father's will, entitled to certain his rent, the landlord, at his request, signed the Lord Justice Mellish was of the same opinion. fee farm rents as tenants in common in feo, sub following memorandum: "I undertake to grant a Solicitor, H. Sydney.
ject to certain prior life interests therein. By the lease of the farm in Mr. Pope's occupation, from settlement made on the plaintiffs marriage with Lady Day 1860, at 22s. per acre, for a term of
her late husband, her third part of and in the fee fourteen years, determinable at the end of the first Re BROADWOop's SETTLED ESTATES. farm rents was conveyed to A. B. Smith and W. seven years, at Mr. Popo's option." In 1868 the Practice-Leases and Sales of Settled Estates Act Brin: upon trust to permit the plaintiff during plaintiff called upon the defendant to grant him
her life to receive the rents for her separate use the lease, and the defendant accordingly produced (10 & 20 Vict. c. 120) $s: 17, 36-39 — Infant without power of anticipation. In 1858 the prior a lease containing a stringent game clause, and the married woman-Mode of taking consent-Sepa- life interests determined ; and thenceforth A. B. plaintiff refused to accept it, as the written agree, rate examination. an appoal petition from an order
Smith collected the rents, and down to Lady-day ment contained no reference to such a clause, and of the Master of the Rolls. The petition was
1862 duly accounted for and paid one-third thereof he contended that it was not a usual clause. The presented under the Leases and Sales of Settled to the plaintiff. From that time, though he had defendant then gave him notice to quit, and sub. Estates Act to obtain the sanction of the received the rents, he had not paid any part sequently commenced an action of ejectment against court to a proposed sale of a certain settled thereof to the plaintiff. In 1863, the plaintiff him. The plaintiff then filed his bill for specific estate, to which Mrs. Atkinson was entitled called Brind's attention to the default of A. B. performance, which the Master of the Rolls disas tenant in tail. Mrs. Atkinson, who was
Smith, his co-trustee, but did not express any missed with costs. From this decision the plainmarried woman and an infant, was one of the desire that he should take legal proceedings to tiff appealed.
In petitioners by a special guardian appointed in compel him to perform his duty as a trustee. Fry, Q.C. and J. G. Wood, for the appellant. a suit, in which the petition was also entitled.1869 the plaintiff's husband died, and in June Southgate, Q.C. and Freeling, for the responThe Master of the Rolls gave his sanction to the 1870 the plaintiff filed this bill against the two dent, were not called upon. proposed sale, but was of opinion that as Mrs. trustees seeking for an account and for payment Lord Justice JAMES said that it was obvious Atkinson was an infant, her consent could not be of her share in the rents. The Master of the Rolls that the written memorandum was not intended taken by a separate examination, but that her con.
having held that it was Brind's duty on learn. to be the agreement, but was a mere continuation sent must be given on her behalf by a guardian ap- ing his co-trustee's default to give notice to the of the prior verbal agreement, to the term of which pointed for that purpose. The purchaser, with and if that course was ineffectual, then to file a plaintiff's own evidence something had been said
tenants not to pay the rents to A. B. Smith alone; one year was to be added. According to the the sanction of the Master of tho Rolls, brought bill, and that both trustees were therefore jointly about game at the time the verbal agreement was the question before the Lords Justices. Martineou, for the purchaser, referred to ss. 17 and severally liable for the plaintiff's share of the made, and the plaintiff must, therefore, have
known that there were terms of that kind in conand 36 to 39 of the Act, and submitted that they rents from Lady.day 1862, Brind appealed. empowered an infant married woman to give
Southgate, Q.C. and W. W. Karslake, for the nection with the defendant's farm. The plaintiff her consent in the same way as if she had been appellant.
might have a lease containing the game clause, on
Sir Richard Baggallay, Q.C. and Martinean, for paying the costs of the suit, or, if he did not wish Montague Cookson, for the petitioners. the plaintiff.
to accept that, the appeal must simply be disLord Justice JAMES was of opinion that the 39th
Lord Justice JAMES said that it appeared to him missed with costs. section of the Act showed that an infant married that there had been some misapprehension in the Lord Justice MELLISH concurred. woman was, for the purpose of consenting, to be The decree of the Master of the Rolls must there. and Goold, Newnham, Gloucestershire.
Brind had been guilty of no breach of trust. Solicitors for the appellant, W. Ford, for Carter treated as if she was of full age. Her consent
Solicitors for the respondent, Hunter, Gwatkin, must, therefore, be taken by a separate examina- fore be reversed, and the bill dismissed with costs. tion in the ordinary way.
Lord Justice MELLISh concurred.
and Hunter. Lord Justice MELLISH was of the same opinion.
Solicitor for the appellant, William Moon.
Monday, March 18.
Re NANTEOS Consols MINING COMPANY
(Thomas's Case.) Re VALPARAISO WATERWORKS COMPANY; Practice-Transfer of cause--Concurrent suits- Company-Winding-up-Agreement by secretary DAVIES'S CASE.
to take shares-Release by directors. Company- Agreement to become a member— Ap. This was an application that the above suit might This was a summons on the part of Mr. Thomas, pointment to ojjice of profit on condition of be transferred from the court of Malins, V.C., to the late secretary of the company, to have his taking shares-No notice of allotment.
that of the Master of the Rolls, in which a suit of name removed from the list of contributories in This was an appeal from a decision of Malins, Gray v. Siggers had been instituted for adminis. respect of 150 shares. It appeared that Thomas V.C. The company was formed in 1867 for the tration of the same estate. The suit of Lucas v. had agreed to take 1000 shares in order to provide purpose of acquiring a concession which had been Siggers was instituted first, but a decree had been money for the working of the mines, and had granted to one Waddington for supplying Val. made by consent in the suit at the Rolls, no de actually taken and paid for 850 shares leaving 150 paraiso with water. On the 21st April 1867, an cree having been made in the first suit. The first shares remaining, which he was bound to take under agreement was entered into between the company suit was defective, and leave had been given to the agreement. The company, however, not being and Messrs. Templeman and Co., whereby the amend, but it had not been amended in pursuance very profitable, Mr. Thomas offered to resign his latter were appointed the company's agents at of this leave. The plaintiffs in Lucas v. Siggers position as secretary so as to reduce the expenses Valparaiso. Davies, who was a member of the were Martha Lucas, a married woman, and two of the company, and a resolution was passed firm resident in England, applied for fifty shares infants by their next friend. The plaintiffs in accepting such resignation and relieving him of all in the company and paid thereon a deposit of £1 Gray v. Siggers were the two infants by another liability in respect of the 150 shares. It was conper share, but no notice of allotment was sent to next friend, Mrs. Lucas being made a defendant. tended on behalf of the official liquidator that him, por was he entered on the register. In May It appeared that the next friend in the second suit it was not within the powers of the directors to 1869, the company was ordered to be wound-up, was at the time of instituting it aware of the relieve him from his liability to take these shares.
of full age.