« EelmineJätka »
LIMITED INTERESTS IN CONSUMABLE CHATTELS. IN the year 1797 Lord Alvanley, the then Master of the Rolls, speaking with especial reference to "live and dead stock," is reported to have said: (Porter v. Tournay, 3 Ves. 314.) There has been great doubt among Judges what a person having a limited use of such consumable articles must do. Some learned Judges have thought they must be sold, and that a person so entitled is to have only the interest of the money. That is a very rigid construction." It appears that the lapse of three-quarters of a century has been insufficient for the resolution of the doubt which was historical even in Lord Alvanley's time; for in the case of Cockayne v. Harrison, decided by Lord Romilly on the 11th ult. (20 W. R. 504), we find him saying that, there was a conflict of authority as to the precise effect of a gift of a life interest in perishable articles, such as farming stock, and that after an examination of the authorities, he had come to the conclusion that the point was not settled.
In the case last named, the testator, a tenant farmer at Sneinton, in the county of Nottingham, had bequeathed to his wife, during her widowhood, his farming stock and all other his personal estate at Sneinton, with a gift over on her death or second marriage. On the testator's death, in 1868, the widow entered on the farm and possessed herself of the farming stock, and in 1870 married again. In a suit for the administration of the testator's estate, the chief clerk had certified that the farming stock included first, growing roots, seeds, tillage, and manure (included in the term of tenant right); secondly, general crops; thirdly, implements of husbandry; fourthly, horses, cattle, and pigs; and the question was, whether the widow's interest in those articles terminated with her widowhood, or was absolute.
The Master of the Rolls said that he should follow his own decision in Phillips v. Beal (32 Beav. 25), and hold that as the farming stock was apparently given in order that the farm might be carried on, it was a gift of a limited interest only; and that if any part of the stock had been sold, she would be entitled only to the income arising from the invested proceeds. The case of Phillips v. Beal, to which reference was made, when closely examined, seems scarcely an authority for the case just decided by Lord Romilly. There a wine merchant, possessed of a large stock of wine, bequeathed all his household goods, furniture, &c., and everything he died possessed of, to his wife for life, and after her death bequeathed the whole of his effects that might be then remaining to his daughter; and it was held that the wife took absolutely the wine which the testator had for private use, but a life interest only in the rest.
Now, as it seems to us, this decision may be supported on the ground that the wine constituting the stock in trade passed as residue under the expression "everything that I may die possessed of," and not specifically, and that to such residuary bequest, the rule as to conversion established in Howe v. Earl of Dartmouth was properly applicable. There was no intention apparent that the widow should carry on the wine trade of her deceased husband, and it must therefore be admitted that, if the rule in Howe v. Earl of Dartmouth does not apply, Phillips v. Beale is a case even stronger than Cockayne v. Harrison. The tendency of modern decision, and notably of the decisions of Lord Romilly and of Lord Hatherley when Vice-Chancellor, seems to be towards cutting down as far as possible the rule established-that there can be no limitations of specific chattels quæ ipso usu consumuntur (a doctrine sometimes impressed on the student mind under the expression that there cannot be a tenant for life of a bottle of wine ") by creating exceptions which we fear will, in many cases, give rise to expensive and impracticable inquiries, involving more mischief than the maintenance of a hard and fast rule, which, like other rules, must sometimes countervene the intention of testators. Of the existence of the rule itself there can be no doubt. In Andrews v. Andrews (1 Coll. 691), Knight Bruce, V. C. said, "Upon the propriety of the rule that the gift of the use and enjoyment of consumable articles for life is the gift of the absolute interest I do not know that I ever thought, because I have considered it as settled in this court for many years. That such is the rule appears to me clear, and I must act upon it."
The rule of law we confess appears to us to go further than the reason of the case requires. While fully admitting that a person to whom a restricted interest in consumable articles is limited is at liberty not merely to consume them personally, or dissipate them in hospitality, and even to give them away or sell them at pleasure, we never could understand why such articles if not so consumed or disposed of, or what remained of them, should not be permitted to devolve according to the intention of the settlor or testator, in the same way that a fund limited in default of appointment by the first taker would devolve according to such intention. In cases where the duration of the first taker's interest is very short, and the amount of consumables limited is large, the first taker may have neither the opportunity nor the wish to consume or dispose of them, and there the hardship of the rule is obviously considerable. Where, as in Harrison v. Cockayne, and in the earlier case of Groves v. Wright (2 K. & J. 347), the court has inferred that the limited interest in the farming stock was only given in order that the farm might
be carried on, the case becomes one of extreme difficulty. A testator in such a case vaguely intends that a farm is to be carried on as he himself would have carried it on, and scarcely ever has an idea that a strict account must be taken of all the live and dead stock on the farm at his decease; that such stock, or its value, must be treated as capital, and sharply discriminated from revenue or income, and that every portion of the stock which is sold or disposed must be charged as capital against the first taker, who is only to be held entitled to what on approved financial principles is or can be deemed net profit or revenue.
Such discrimination of capital from profit or revenue involving all manner of possible and impossible inquiries, appears to be the necessary outcome of cases like Harrison v. Cockayne and Groces v. Wright, in which last-named case it may be observed that the Lord Chancellor, as Sir W. P. Wood, did not think that the doctrine relating to things que ipso usu consumuntur could have any application to a gift of farming stock, but only to cases where a personal use exhausts the subject of gift. This, however, is quite opposed to the case of Bryantv. Easterson, before Sir J. Stuart, V.C., (32 L. T. Rep. 352), where the first taker was held absolutely entitled, without any liability whatever, to account for the value of consumable stock as capital. The whole subject requires discussion and elucidation in the appellate courts.
THE QUALIFICATION OF JUSTICES OF THE PEACE. THE Earl of ALBEMARLE in the session of 1870 introduced into the House of Lords a Bill, the object of which was to do away with the property qualification which the law now requires for such as are placed in the Commission of the Peace. The measure was, how. ever, withdrawn. On Thursday last week the noble Earl introduced another Bill on the same subject, though its provisions somewhat differed from those of the previous Bill. Instead of simply re pealing the statute which now regulates the qualification of magistrates as was done by the former Bill, the provisions of the latter measure only amended the law by rendering eligible for the office persons who were not possessed of land, but who had incomes from personal property of the same amount as the estate now required in land. Such estate must at present comprise freehold or copyhold estate for one's own use in possession for life, or for some greater estate in law or in equity, or an estate for years determinable on a life or lives, or for a certain term originally created for twenty-one years or more of the clear yearly value of £100 over and above what will satisfy all incumbrances affecting the same or a reversion or remainder in lands of the value of £300 a year. This is so since the statute 18 Geo. 2, c. 20, which reenacted, with slight modifications, an Act passed in the 5 Geo. 2. Previous to that the qualification was that imposed by the 18 Hen. 6, c. 11, the first statute that required a fixed property qualification for the magistracy, which was an interest in lands to the amount of £20 by the year. Various statutes had been enacted prior to the last-named Act, relating to the appointment and qualifications of Justices of the Peace, but they merely required the persons to be appointed should be men of substance without fixing any particular sum. There was, doubtless, good ground for the restriction in olden times, when men of property formed the only educated class in the country; but the times have since changed, and it is difficult to understand why a qualification so anomalous should be maintained, and the more especially inasmuch as it often keeps men out of the commission of the peace, who, from their character, influence, and fitness, are quite as capable to administer justice as those who have landed estates. But, in our opinion, the whole system is inconsistent with modern ideas. Justice's justice has become proverbial, and it seems a mockery to entrust the administration of the laws to untrained men. The jurisdiction of justices of the peace is now most extensive, comprising as, it does, their power to deal summarily with cases of much importance, and their jurisdiction as the Judges of the Courts of Quarter Sessions. In the more remote times there was always a quorum which was formed of lawyers, and it was necessary that one of the quorum should always be present to try any of the more important cases; but even that is now gone, so that we are far worse off than our ancestors were. It is true in large towns stipendiary magistrates are gradually being appointed, and in many counties barristers of experience are elected chairmen of Quarter Sessions. Lord ALBEMARLE Would be a great benefactor of his country if he were to strike at the root of the evil, and if he were able to succeed in entirely abrogating the present system and obtaining in its stead the universal appointment of stipendiaries. The question of cost is the only real objection. But it is by no means clear that the country would be much burdened by the change, and even if it were, the better administration of justice which would un doubtedly be secured would be more than ample compensation. In the discussion in the House of Lords on Lord ALBEMARLE'S Bill, the chief objection raised to any change was that it would interfere with the existing powers of justices over the finances of the counties. That was altogether an issue beside the question, and it cannot be long before we shall have in every county a financial board, duly elected by the ratepayers, instead of an irresponsible body.
THIS is an edition of the new German Code of Mercantile Law, with an excellent commentary, designed for practical purposes, by Herr Markower, attorney and notary. In the introduction the editor gives a brief history of the conference of the representatives of the various German states who drew up this code. The movement which finally led to the codification of the German Mercantile Law began in the years 1848-9, while the Frankfort Parliament was sitting. The subject was taken up seriously by Prussia in 1850, and, at the request of the Governments of Wurtemberg and other states, the Prussian Government undertook to furnish a complete plan of a general code. In 1856 this sketch was presented to the Federal Assembly, which instituted a commission for the purpose of executing the Prussian plan, and invited the various states to send jurists or experts as deputies to Nürnberg to take part in the work. On the commission, which first met in 1857, were legal representatives of all the principal states, besides a number of experienced mercantile men sent by the different Governments. On the 12th March 1861, after 589 sittings, the conference, having completed its work, laid the new code before the Federal Government. It was found during the progress of the work that the law of practice, and the organisation of the courts, were so different in the various states, that it was impossible to include this part of the law to any great extent in the new code until certain reforms were carried out by some of the states; the greater part of the Prussian plan relating to this subject was therefore withdrawn. In the preliminary articles of the code it is enacted that in particular cases which do not come within its provisions, the usages of trade shall have the force of law. The rest of the code is divided into five books, each of which is divided into titles, the titles into divisions, and the whole into sections, of which there are in all 911.
The first book, which is divided into seven titles, treats of the mercantile community, defining the legal status of the various persons composing it, such as merchants, agents (Prokuristen), factors, brokers, assistants, &c,, their relations to each other, and to the community at large. This book also contains provisions relating to the constitution of trading firms, their registration, and the keeping of their books. The second book, which concerns mercantile partnerships and companies, is divided into three titles, treating separately of (1) common trading partnerships, (2) KommanditGesellschaften, and (3) joint-stock companies. The various kinds of partnerships and companies recognised by the code are there defined, and provisions are made for the retirement of partners, dissolution, liquidation, &c., In this book, too, the relations of partners and shareholders to each other, and to third parties, and the duties of directors of companies are fixed and defined, and numerous provisions are made for the regulation of private firms and public companies, many of which, such as the registration of ordinary partnerships in the books of the Handels-Gericht, bear no analogy to anything in our law. The third book treats of what are called silent partnerships (stille Gesellschaften). These differ in some important particulars from the Kommandit-Gesellschaften, which are thus defined by the code:
A Kommandit-Gesellschaft exists when one or several partners in a commercial business, carried on by a joint firm, participate by advances of capital only (Kommandisten), whilst the participation of one or several others is not thus limited-partners personally liable (Art. 150). The Kommandit-Gesellchafter shares in the profits and losses of the partnership, according to the amount advanced; he is not liable beyond the amount of his advances; the capital advanced by him is not subject to the private debts of his active partner.
In the stille Gesellschaft the sleeping partner is somewhat in the position of one who advances money on the security of a commercial business; his name does not appear on the Handels-Register as a partner; he draws profits proportioned to the success of the business, and his advance is subject to the private debts of his active partner. The second title of this book treats of associations on common account for particular ventures.
The fourth book, concerning commercial business, begins by defining the different sorts of trades of which the code takes cognisance, and contains a vast number of provisions relating to the law of contract, the law of carriers, and to mercantile law generally, which we cannot notice in this short article.
The law of bills of exchange is not touched by the code, being regulated entirely by the Allgemeine Deutsche Wechsel-Ordnung, which is of older date than the code, having been in force since 1849.
The fifth, and last, book treats of maritime commerce. book, which seems to have cost the commission an immense deal of labour, is certainly a most complete piece of work. It is divided into twelve titles, and treats in the various titles of shipowners and charterers, of shippers, of the crew, of the carriage of goods, of the carriage of passengers, of bottomry, of average,
of salvage, of creditors of the ship (Schiffs-Gläubiger), of insurance, and of limitation. As to the merits of the code, we can only say that it has been some ten years in operation, and seems to give general satisfaction. In the work under review, besides the text of the code, with a commentary, we have the law of 1869, establishing a Supreme Court of Appeal for the North German Confederation (which, we believe, has since been extended to the whole empire), and a number of other important laws relating to subjects comprised in the code.
The commentary of Herr Makower is a most laborious and useful work, consisting of the protocols of the commission, remarks by other commentators and text writers, and, above all, the terse and perspicuous notes of the learned editor.
The appendix is a mine of particular laws, regulattons, forms, &c., of great practical value for Germans, but of no great service to foreigners, as they are of purely local application. It also contains the important law by which the code was introduced into Prussia.
The work is one exhibiting the greatest industry, and must be of immense utility to merchants and practical German lawyers; it is, moreover, a work which may often prove useful in an English library, and deserves to be known in this country. The text of the code has been translated into French and English.
THE STOCK MARKETS.
CITY, THURSDAY, APRIL 18. THE favourable course of these markets, which might reasonably be looked for with the return to ease in the money market, which is indicated by the discount rates in the open market, being a full per cent. below the Threadneedle-street minimum, has been prevented by two circumstances more particularly this week. Not much heed has been given to the "indirect claims" question, as a matter about which there has been SO much good natured interchanging of despatches is looked upon already as deprived of whatever dangerous elements at one time formed component parts of the Washington Treaty. The heaviness which has of late prevailed has been more especially in sympathy with the depression on the Paris bourse, where uneasiness could not fail to result from the attitude of the President of the Republic, which has resulted, it is stated, in Prince Bismark having at length put his foot down and demanded a certain line of action, as regards the army and the military estimates. Another somewhat disquieting influence has been exercised by the ominous_withdrawal of support recently from our own Government. It cannot be said, however, that any distinct anxiety is manifested as regards these causes of depression of late, in confirmation of which statement the position of the Home Funds may be cited at a rise of since we last wrote. As the contango rates in the other markets are more likely to increase in the future than diminish, sales have preponderated; but so far the fall since Monday has not been sufficient to neutralise the previous rise up to the close of the past week.
In the market for Home Railway Stocks, with the exception of Metropolitan District Stock and North British, the changes since last Thursday are favourable. The chief rise is in South Eastern Ordinary of 6 per cent., owing to a scarcity of stock through conversion; while the ditto Deferred is 2 higher; Great Northern A, London and North Western, and Midland are 1 better; Lancashire and Yorkshire, and London and South-Western 1 per cent; Erie Railway Shares have dropped.
The favourable news from the River Plate as regards the Republic of Paraguay, has sent that loan over 97, but that price has not been fully maintained, owing to realisations. The flat prices which have been received for some days past from Paris have adversely affected most other descriptions in the foreign market. Argentine, Egyptian, and Turkish have been the firmest, and show an advance for the week, while French and Spanish have been conspicuously flat.
The changes for the week in Telegraph stocks and shares are a rise of 1 in Anglo American, and of a fall of 1 in Anglo-Mediterranean. French cables are higher.
In Miscellaneous shares Phosphate Sewage have fallen 5 for the week; Native Guano, 4; Hooper's Works, 1; and Indiarubber and Gutta Percha, .
There have been no operations in bullion at the Bank this day. Since the issue of the last return £230,000 has been sent in. The discount demand, both at the bank and outside, has been light.
The Urban Phospho-Manure Company (Limited) is another new undertaking, with a capital of £100,000, in 10,000 shares of £10 each; first issue 5500 shares. The object is stated to be to test the utility of Manning's patents for the concentration of the valuable properties of night soil, retaining all the fertilising and useful properties of the raw material, and reducing it to a manure which would be available for transport to all parts of the kingdom and abroad. The testimonials to its efficacy at home and on the sugar cane plantations abroad, where it has been tried, are too numerous for the scope of a prospectus, but may be seen at the offices of the company; and the strongest practical proof is afforded of the estimation in which this manure is held by planters and others in the fact that the sales and out-turn which three years ago amounted only to, say, £2500, increased in the next year to £7000, and last year amounted to over £14,000. The works are situated at Churchbridge and Bloxwich, in South Staffordshire, in the vicinity of large towns, where there are no adequate sewage arrangements, and from which the company can procure an almost unlimited amount of the raw material, and there is direct canal communication with the works at a very small rate of carriage.
The latest quotations for British Funds are as follows: Consols, for money, 923 to 92; ditto 3rd May Account, 92 to 923; Reduced, 91 to
91; New Three per Cents., 91 to 91; Exchequer Bills, 2s. to 78. prem.; India Five per Cent. Stock, 110 to 110; ditto Four per Cent., 102 to 103; ditto Enfaced Paper Four per Cent., 96 to 974; ditto Five and a Half Per Cent., 108 to 108; Bank of England Stock, 241 to 243; Metropolitan Three and a Half per Cent., 96 to 96; and French Rentes in this market, 54 to 551.
The latest price for French Rentes received from Paris was 55f. 30c. market flat.
In the market for American Securities, the United States 5-20 Bonds of 1882 are marked 90 to 904, ex. div.; 10-40 Bonds, 89 to 894; Atlantic and Great Western Bonds, 41 to 42; ditto Debentures, 514 to 52; Erie Railway Shares, 51 to 51; Illinois, 109 to 110; and United States Funded Loan, 89 to 89 ex. div.
In the Railway Market the prices are:-Caledonians, 113 to 113 ex. div.; Great Eastern, 51 to 52; Great Northern, 134 to 135; ditto, A, 154 to 155; Great Western, 110% to 1103; Lancashire and Yorkshire, 1574 to 157; London and Brighton, 81 to 81; London, Chatham, and Dover, 26 to 27; London and North-Western, 150 to 150; London and South-Western, 107 to 108; Manchester and Sheffield, 75 to 75 Metropolitan, 67 to 67; ditto District, 31 to 31; Midland, 1434 to 143; North British, 62 to 634; North Eastern Consols, 1694 to 169; SouthEastern, 105 to 105; ditto deferred, 774 to 78; Grand Trunk of Canada, 20 to 204; Great Western of Canada, 21 to 21; Antwerp and Rotterdam, 181 to 19; Great Luxembourg, 18 to 19; and Lombardo Venetian, 172 to 181.
The prices of the principal Foreign Stocks are as follows: Argentine, 1868, 96 to 974; do., per cent., 1871, 921 to 93; Brazilian, 5 per
cent., 1865, 95 to 96; do., 5 per cent., 1871, 944 to 944; Egyptian, 7 per cent., 1868, 87 to 87: do., Viceroy Loan, 92 to 94; do., Khedive Mortgage Loan, 77 to 77; French Morgan 6 per cent. Loan, 97 to 97; do., National 5 per cent. 1871, 5 to 5 pm.; Italian of 1861, 67 to 67; Mexican, 15 to 15; Paraguay 8 per cent. Loan, 94 to 95; Peruvian, 5 per cent. 1865, 101 to 101; do. 6 per cent. 1870, 80 to 81; Russian 5 per cent. 1871, 90 to 911; do. Nicolai Rail. Bonds, 76 to 77; Spanish, 293 to 29; do. 3 per cent., 1871, 29 to 29; Turkish, 5 per cent. 1865, 52 to 52; do. 6 per cent. 1865, 71 to 71; do. 6 per cent. 1869, 60 to 603; and do. 6 per cent. 1871, 70% to 714, ex. div.
The New Russian Loan is quoted at 13 to 13 pm.; and the Peruvian of 1872 at
In the Telegraph Market, Anglo-American Stock is quoted at 117 to 119; Anglo-Mediterranean, 172 to 174; British Australian, 9 to 91; British Indian Extension, 11 to 12; ditto Submarine, 104 to 10; Chinas, 9 to 9}; Cubas, 7 to 7; Falmouths, 11 to 11; Great Northern, 15 to 16; Marseilles, 8 to 94; Mediterranean Extension, 5 to 6; French Cables, 22 to 221; and West India and Panama, 64 to 6.
In miscellaneous shares the prices are as follows :-Credit Foncier of England, 5 to 5; Crystal Palace, 22 to 24; General Credit and Discount, 2 to 2 pm.; International Finance, dis. to pm.; Hooper's Telegraph Works, 2 to 2 pm.; Hudson's Bay, 10 to 10; India Rubber and Gutta Percha, 43 to 44; National Discount, 13 to 14; Telegraph Construction, 32 to 32; Royal Mail Steam, 90 to 92; Native Guano, 15 to 18; Phosphate Sewage, 30 to 33; New Sombrero Phosphate, 8 to 9; and Phospho Guano, 11 to 11.
NOTES OF THE WEEK.
HOUSE OF LORDS.
Friday, April 12.
OVEREND, GURNEY, AND Co. v. GIBB AND
Company-Liability of directors. THIS was an appeal from a decision of the Lord Chancellor, reversing an order of Malins, V.C. The appellants filed a bill against the respondents, the surviving first directors of the company, seeking to render them liable for neglect of duty and breach of trust in having carried out the powers given them by the company in purchasing the business of the old firm of Overend, Gurney, and Co., when they knew that that firm. was insolvent; and also for having neglected to obtain a sufficient guarantee by that firm, or a mortgage of the private estates of the partners, to secure or make good the difference between what they knew to be the actual and nominal
value of the assets of the old firm. There was a demurrer to the bill, on the grounds that it was incompetent for a company to sue its own directors for such a breach of duty; that the proper remedy was by an action at law for damages; and that, if the Court of Chancery could give any relief, it was under the machinery of the Companies Act 1862. Malins, V.C. overruled this demurrer, chiefly on the authority of Charitable Corporation v. Sutton (2 Atk. 400). The Lord Chancellor reversed the decision of Malins, V.C., on the grounds that the pany must take the consequences of having entrusted their money to persons of sanguine temperament, who made a purchase, which turned out to be a bad one;" and that there was not, on the part of the directors, such crassa negligentia as to amount to fraud. The case is reported below in 20 L. T. Rep. N. S. 652; 21 Id. 73; 4 L. Rep. Ch. App. 701.
Cotton, Q.C. and Ferrers for the appellants. Sir R. Palmer, Q.C., Sir G. Honyman, Q.C., and Jackson, for the respondents.
The LORD CHANCELLOR now gave judgment in favour of the respondents, on the grounds stated in his original judgment.
Lord CHELMSFORD said that the respondents were appointed directors for the very purpose of purchasing the business of the old company. There was no allegation of fraud or mala fides against the respondents; but it was virtually sought to make them responsible for acting bonâ fide in the exercise of the powers entrusted to them, because this purchase turned out disastrously. The appeal must be dismissed with
Lord WESTBURY and Lord COLONSAY concurred.
Solicitors for the appellants, Markby and Tarry Solicitors for the respondents, Uptons, Johnson, and Co.
COURT OF APPEAL IN CHANCERY.
(Before the LORD CHANCELLOR and the LORDS JUSTICES.)
PHILLIPS V. THE GREAT WESTERN RAILWAY COMPANY.
Railway company-Covenant to stop trains at refreshment station-Trains not under control of company excepted-Mails-Postmaster-General 1 & 2 Vict. c. 98.
THIS was an appeal from a decision of Wickens, V.C. By an indenture dated the 18th Dec. 1841, the Great Western Railway Company granted to Messrs. Rigby, their executors and administrators and assigns, for a term of ninety-nine years, at a nominal rental of 1d. per annum, a lease of certain land at the Swindon station of the railway, whereon the lessees had at their own expense erected certain refreshment and waiting rooms. the company that, in consideration of the outlay This lease contained a covenant on the part of of the lessees, they would give them every facility for enabling them to obtain an adequate return by means of the rents and profits to be derived from the refreshment rooms, and "that all trains carrying passengers, not being goods trains, or trains to be sent express, or for special purposes, or which should pass the Swindon Station, either up trains not under the control of the company, or down the line, should, save in cases of emergency, or unusual delay arising from accidents, stop there for refreshment of passengers for a reasonable period of about ten minutes; and that so far as the company could influence trains not under their control to stop for the like purpose they would do so;" and they engaged not to do any act which should have an effect contrary to that agreement. In 1848 Messrs. Rigby assigned their interest under the lease to the plaintiff. In Nov. 1871 the Postmaster-General, acting in pursuance of the powers conferred upon him by the 1 & 2 Vict. c. 98, gave the company notice that the 915 a.m. train from Paddington and the 12 25 p.m. train from Exeter must in future stop with the mails at Swindon for five minutes only, instead of ten as theretofore. The company having complied with this requisition, the plaintiff instituted the present suit to prevent them from breaking the Covenant. The Vice-Chancellor granted an injunction restraining the company from carrying passengers by these two trains or either of them, so long as they should be precluded by the regulations of the Postmaster-General from stopping at Swindon for any shorter time than a reasonable period of about ten minutes: (See 26 L. T. Rep. N. S. 157, where the case is reported.) From this order the railway company appealed.
The Solicitor-General (Sir G. Jessel, Q. C.), Mackeson, Q. C., and H. A. Giffard, for the appellants.
Sir Roundell Palmer, Q. C., Osborne Morgan, Q. C., and Montague Cookson, for the respondent. Their LORDSHIPS were unanimously of opinion that the trains in question being subject to the regulations of the Postmaster-General, were "trains not under the control of the company,"
which expression meant not under their control for the purpose of stopping them at Swindon station, and were therefore not subject to the covenant. As the company had ceased to stop these trains at Swindon for the period of ten minutes before they received formal notice from the Postmaster-General, there would be no costs, if the plaintiff would undertake not to proceed at law in stoppage of the trains prior to the receipt of respect of any damage occasioned by the nonformal notice; otherwise the appeal must be dismissed with costs.
Solicitors for the appellants, Young, Maples, Teesdale, Nelson, and Co,
Solicitors for the respondent, Park and W. B. Nelson.
Re THE ENGLISH ASSURANCE COMPANY
Assurance Company-Winding-up-Policy holders -Amount of proof-Principles on which estimate is to be made.
THIS was a specimen case, raising the question as to the mode of assessing the amount for which policy holders were entitled to prove in the English Assurance Company granted a policy for winding-up of a life office. In July 1870 the £500 on the life of Joseph Smith, which was subsequently assigned to Mr. Holdich. The company was now in course of liquidation, and a summons was taken out on behalf of Mr. Holdich that he might be permitted to prove in the winding-up against the assets of the company under the 158th section of the Companies Act 1862, which provides that where a company is being wound-up, all debts payable on a contingency, and all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages, shall be admissible to proof against the company, a just estimate being made so far as is possible of the value of all such debts or claims as may be subject to any contingency, or sound only in damages, or for some other reason, do not bear a certain value. In Bell's case (L. Rep. 9 Eq. 706) James, V.C. held that a policy holder was entitled to prove for the sum which would be required by a solvent assurance office, having the same rate of premiums and the same extent of proprietary capital as the company in liquidation, to be paid, in order to give the policyholder a policy of the same amount, under the same conditions, whether ordinary or special, at the same premium. Lord Cairns, in the Albert arbitration in Lancaster's case (16 Solicitors' Journal, 103) adopted the following mode of assessment, called the " pure premium" valuation. The then present value of the reversion in the sum assured at the date of the winding-up order is to be ascertained according to certain tables, and the then present value of the future annual premiums, taking into consideration the pure premiums only; and the difference between those two sums is to be the value of the claim on a policy.
Southgate, Q.C. and Field for Mr. Holdich. Sir R. Baggallay, Q.C. and Haddan for the official liquidator.
Lord ROMILLY, after referring to Bell's case and Lancaster's case, said that in the latter case Lord Cairns, in effect, decided that the question of the state of health of assured parties at the date of the winding-up order could not be taken into consideration, and seemed to have overlooked the fact that part of the bargain between the office and the assured is, that the latter is to be entitled to the enhanced value of the policy arising from accident or disease. He saw no reason why the policy holder should lose the pecuniary advantage which accident or disease gave him, by reason of the company being wound-up. He thought that the rule was correctly laid down in Bell's case, namely, that the measure of proof is the sum which would, under the peculiar cir. cumstances, be required to purchase a policy of the same amount, at the same premium, in a perfectly solvent office and that that rule should be followed in the present case.
Solicitors: Field and Co., Young, Maples, and Co.
V. C. BACON'S COURT.
MACKETT v. MACKETT.
JOHN BROUGH, by his will dated the 16th Sept. 1861, gave the residue of his property, both real and personal, to Sarah Mackett, the wife of George Smith Mackett, and to her heirs and assigns for ever, but upon trust as to all the freeholds for the sole and separate use, and for the bringing up and maintenance of her son, John Mackett. And as to the personal property so given as aforesaid to the said Sarah Mackett, to and for her own proper use and benefit for ever, but not to be subject or liable to the debts, control, or engagements of her present or any future husband, and her receipt alone to be a good and sufficient discharge for the same, and the proceeds to be applied by her in the bringing up and maintenance of the said John Mackett, and all other the children of the said Sarah Mackett. The testator died on the 25th Jan. 1867, and a suit was instituted for the administration of his estate. A question as to the personal property comprised in the above gift was raised upon further consideration-viz., whether there was a trust for the maintenance of children, or whether Sarah Mackett took the property abso. lutely, discharged from any such trust. Karslake, Q.C., Bristowe, Q.C., and Everitt for the plaintiffs.
Kay, Q.C. and Herbert Smith, Amphlett, Q.C., Hinde Palmer, Q.C., and Hill for other parties. The VICE-CHANCELLOR held that the case was governed by Lambe v. Eames (25 L. T. Rep. N. S. 175), and that there was no trust. Sarah Mackett took the property absolutely, and without condition.
Solicitors: Baylis; Fielder and Sumner.
COURT OF PROBATE.
In the Goods of BAILLIE BRETON. Will-Imperfect attestation clause-Attesting witnesses not forthcoming-Citation of advertisement ordered. BAILLIE BRETON died leaving a holograph will, dated 28th Dec. 1863, purporting to be attested by two witnesses. The attestation clause was imperfect, but it appeared by an affidavit from Mr. Burnaby, the residuary legatee, that these two witnesses were in the service of the testator, that they could not be found now, and that no one could be found who knew their handwriting. There was an affidavit from the niece of the testator to the effect that the whole will was in the handwriting of the deceased.
Lord PENZANCE.-You ought to advertise for the attesting witnesses. The time is so recent that they cannot both have disappeared, but if they do not answer to the advertisement you may take the grant. Solicitor, Lewis.
In the Goods of W. LAWS. Will not produced by executor in whose possession it was supposed to be-Citation to produce not obeyed-Subpoena to attend and be examined. WILLIAM LAWS, late of Prudhoe Castle, in the county of Northumberland, died 17th Aug. 1856, having duly executed a certain paper writing or script, purporting to be his will, and bearing date 10th June 1853, whereby he appointed his wife Sarah Laws, and her sons, Cuthbert William Greville Laws, William Laws, and John Laws, his trustees and executors. Sarah Laws died May 1857, and William Laws died 24th Feb. 1861, without proving the will of William Laws. It was suppose to be in the custody of C. W. Laws, who had supplied a copy to Mr. J. Rogers, the
husband of one of the deceased's daughters. On 28th Feb. 1871 a subpœna was issued, calling on C. W. Laws to bring in and leave in the principal registry the original paper or script purporting to be the will of William Laws: C. W. Laws did not bring in the will, and
Searle now moved on behalf of Rogers, the deceased's son-in-law, for a subpoena under the 26th section, directing C. W. Laws to attend and be examined. As the witness resided in Northumberland, he suggested that he should attend in the district registry to be examined.
Lord PENZANCE, having referred to the 26th section, held that the court had no power to make the order in this form. The order must go for C. W. Laws to attend and be examined in open court, or interrogatories might be exhibited to him. Solicitors: Miller and Smith.
LEGISLATION AND JURISPRUDENCE,
HOUSE OF LORDS.
The LORD CHANCELLOR.-My Lords, in rising to move the resolution which I have put on the notice paper for the consideration of the House, I wish in the first instance to again state what I mentioned on a former occasion-namely, that my reason for proceeding by this method rather than by introducing at once my Bill for the constitution of the court which I would wish to establish, if your Lordships agree to transmit to another tribunal the appellate jurisdiction of this House, was that I thought it more respectful to your exercised by this House, though in many instances Lordships that a jurisdiction which had long been not without considerable contest, and though it was not introduced originally without considerable contest, should not be abolished by means of a Bill, before the whole subject had been submitted for your Lordships' careful consideration. I am aware that, in proposing to effect a great change of this kind in a long-established institution, and more especially in the case of an institution connected with the administration of justice, the burden is imposed on me of showing that the institution itself requires a total change in consequence of defects which have been found to exist in carrying its functions into operation, and also of showing that the change proposed to be made will remedy those defects. Indeed, this is a burden which I apprehend is imposed on every one who proposes a change in what has been long established. Now, my Lords, as regards this particular change, if I were about to propose that your Lordships should surrender anything which contributed to the useful portion of your Lordships' functions in respect of the administration of justice in this kingdom, or, if I supposed that the result of the transfer of your jurisdiction in respect of appeals would be to weaken the authority of your Lordships' House, I should hesitate for a long time indeed before I recommended any such proposal to the notice of your Lordships. But, my Lords, I shall be prepared to show-I trust with as much brevity as possible, though the subject is a long one-that in reality your Lordships never exercised as a body an appellate jurisdiction without such an amount of contest as tended to weaken the authority of this House, and that it is a quarter of a century since, in the case of Mr. O'Connell, your Lordships as a body declined to exercise such jurisdiction. I shall show also that men of great eminence in the law have been so struck with the anomalies of the appellate jurisdiction of this House that they have been induced to declare that it was extremely unsatisfactory. I think it will be found that even in the House itself, at a time when opinion was not yet ripe for any measures of very extensive reform, there was a misgiving on the part of men of great influence with your Lordships, arising from a conviction that the system did not act in such a manner as to give satisfaction and inspire confidence. I may call your Lordships' attention to the fact that within the last sixty years three committees have been appointed by this House to investigate the subject of its appellate jurisdiction, with the view of seeing what could be done for its reform and improvement. The first of those committees was appointed in 1811, the next in 1823-both in the time of Lord Eldon, who occupied the woolsack-and the third in 1855. In respect of the members who composed it, the last was a very powerful committee. But before I refer to any of the recommendations, it may be as well that I should briefly state in what way the appellate jurisdiction of this House attained to full and complete existence. You have now, and you have had from a very early period, full jurisdiction in writs of error coming from the common law courts in respect of conclusions and decisions of these courts. You have also and have had, but from a very much later period, jurisdiction
in cases brought by way of appeal from decisions of the courts of equity. Since the union with Scotland, in which country there is not that division of law and equity which exists in England, you have had jurisdiction in respect of both branches, and since the union with Ireland you have had jurisdiction in appeals from the Irish Court of Chancery. This jurisdiction in equity you have possessed for about 200 years, but not without contests. I do not, however, allude to those contests with the view of throwing the least doubt on your jurisdiction, because they are strongly confirmatory of the fact that since the period to which I have just referred it has been continually exercised. But there are other matters in which you never have exercised jurisdiction, namely, in appeals from the colonies, in appeals from the Admiralty, and in appeals from the ecclesiastical courts. Besides the appellate jurisdiction, your Lordships have wide jurisdiction which is not appellate, and with which neither my resolution nor my Bill proposes to deal. Your Lordships have, of course, jurisdiction respecting your own privileges and all that concerns them. You have a jurisdiction in respect of claims to peerages, and you have a criminal jurisdiction, if, unfortunately, a criminal charge should be made against any peer. Your Lordships have full jurisdiction, also, in cases of impeachment brought by order of the other House. In such cases this House is a court in which high crimes and misdemeanours may be tried. The Bill which I shall hereafter introduce is confined entirely to the appellate jurisdiction which this House exercises in respect of common law and equity in England, and of civil proceedings in Scotland, and also to the appellate jurisdiction exercised by it in respect of cases arising in Ireland. I have not, however, confined my invesfacts of so much interest in connection with the tigations to those particular objects. There are proceedings of this House in respect of its appellate jurisdiction that I think I ought not to omit to go back a little and mention some of them to your Lordships. A contest arose in the reign of Charles II., which has been given in some detail by Sir Matthew Hale, whose account of it, with Harvey's notes, will be found in the library. The matter has been entered into more fully and more clearly by Lord St. Leonards. Your Lordships' jurisdiction in writs of error from the courts of common law dates, as I have already mentioned, from a very remote period anterior to the Great Charter. It dates, indeed, from the beginning of the Norman rule in this country, when the sovereign was regarded as the author of justice. Petitions from those who sought justice were addressed to the King, who arranged in the manner he thought best for hearing and deciding upon them. When Parliament was convened he had his peers; at other times he was surrounded by his great officers of state, whose assemblies afterwards branched off into courts of justice. There was the Aula Regis and the Concilium Regis, with officers which corresponded to the Lord Chancellor and the Lord Chief Justice, the latter being called the chief justiciary. This system of moving tribunals was continued up to the time of the Great Charter, but as it had been found inconvenient it was provided when the Great Charter was framed that there should be a stationary court. Then the Court of Common Pleas branched off, but reference was made to the peers, and no doubt in this way writs of error found their way to your Lordships' House from the courts of common law. It will be found that, from the beginning of the reign of Edward I. down to the reign of Henry IV., the appellate jurisdiction continued to be exercised in the case of writs of error coming from the courts of common law; but after that time there appeared to be a lull, caused by the Wars of the Roses or for some other reason. The records of the times do not show that any controversy arose as to what was and what was not within the jurisdiction of the Lords, but during the reign of Henry IV. this House repeatedly asserted its sole right to hear and decide on appeals. It protested against the supposition that any right in respect of appeals was vested in the other House of Parliament. In the reign of James I. the Commons began to assert their privileges. The way in which they did so was not very satisfactory, nor do I think the action of the Lords was very much more so. A Roman Catholic gentleman, Mr. Edward Floyd, was accused of having disparaged the Electress Palatine, daughter of the King, and the Commons took upon themselves to try him, order him to the pillory, and fine him £1000. The House of Lords took offence. Lords asserted that the jurisdiction lay with them, and not with the Commons, and they ordered Mr. Floyd to be branded on the forehead and fined £5000. That was an attempt to establish an original jurisdiction in criminal cases. Lord St. Leonards calls attention to a case which shows the difficulty the Lords experienced when endeavouring to assert an original jurisdiction, and also an appellate jurisdiction respecting cases arising in the Court of Chancery. In the case of
two gentlemen named Matthews there was an application to this House to exercise this double jurisdiction. The Lords came to a singular resolution, directing the Lord Keeper to apply to the King for the appointment of commissioners to try the case, which resolution showed the doubts entertained by their Lordships in respect of original jurisdiction and of appellate jurisdiction not arising on writ of error. In the time of Lord Keeper Williams there was a case which was interesting on somewhat similar grounds. In the time of the Long Parliament matters respecting the jurisdiction of their Lordships went on in a very irregular way, and ultimately there arose the great case referred to by Hale. One Mr. Skinner complained of the East India Company in regard to an estate which he possessed in one of the East India islands. He made a singular claim to this House for relief, which, if it had been acceded to, would have established your Lordships' authority over every case arising in the colonies. Lord St. Leonards cites, without disapprobation, language of Sir Matthew Hale, which is very strong as bearing upon the exercise of judicial functions by peers who are not lawyers. Hale asks whether it could be supposed that any one came into the world imbued with the knowledge of the laws of this kingdom, or that the acquisition of a title of honour could inspire him with that knowledge. A case was decided in your Lordships' House in opposition to the opinions of all the Judges of the time. It has been said that it was well decided, and perhaps it may have been; but certainly it was not decided in accordance with the law as it existed when the decision was given. It is impossible that the appellate jurisdiction of your Lordships' House could have continued to be exercised for so long a period by the House as a body were it not that the opinionsdelivered were in reality those of very great lawyers. Those opinions were accepted because of the authority of the men from whom they proceeded. Certainly they did not derive additional weight from being the decisions of your Lordships' House. In the reign of Queen Anne a remarkable case arose. Proceedings were taken against a sheriff for refusing to record a vote at an election of a member of Parliament. The case came before this House; but the House of Commons protested against the Lords pronouncing the decision as to who ought and who ought not to vote for a member of Parliament. After much discussion this House came to a decision, on which the voting was 50 peers to 16, 13 peers out of the 16 entering a protest against the House taking upon itself to come to a judgment founded on legal arguments. All those cases are collected in a note on Mr. O'Connell's case in the second volume of the House of Lords Reports. Before the case of O'Connell there was one which excited a good deal of interest. It was the case of the Bishop of London v. Fitch. The question as to whether a general bond of resignation-one which did not specify the particular person in whose favour it was made, was a valid
The bishops took a prominent part in the discussion of that case, and addressed to the House arguments which will be found in Lord St. Leonards' book, and in which they stated that though certain propositions might be good law, they were not founded on philosophy or on religion. By a majority of 19 to 18 the House decided against the legality of the bond. The last time at which an attempt was made to have the appellate jurisdiction of your Lordships exercised by the House as a body was on the occasion of the appeal in Mr. O'Connell's case. That would have been a very dangerous repetition of the priviledge. Some noble lords expressed a readiness to vote who had not heard the arguments in the case, and others who had heard them but who were not learned in the law, were desirous of taking the same course. A remonstrance having been made on the subject, they wisely resolved not to have anything to say to it, and they left the decision to the law Lords. Since then, it is idle to talk of the decisions of the House of Lords as the decisions of your Lordships as a body. The decisions have been in reality those of a small committee of law lords. They are called the decisions of the House of Lords, and I will now show the great inconvenience of this fiction. It is not a new one, and in consequence of its existence, a course grew up and prevailed for a long time of securing the attendance of three Lords, that being the number necessary to make a House. During the Chancellorship of Lord Eldon this was done; and whether the two Lords who sat with the Lord Chancellor were law lords or not appears to have been regarded as a matter of but little consequence. Of course, the Lord Chancellor was glad to get two other law lords, but there was no personal obligation on the law iords to attend. In the next place, there was great uncertainty as to whether there would be a sitting for the hearing of appeals, the Lord Chancellor being required in the Court of Chancery. In 1811 a Committee was appointed to inquire into the mode of exercising the appellate jurisdiction of your Lordships' House, and as to whether any improvement in the
said mode ought to be effected. Well, the inquiry produced this result that it was found as a matter of fact the Lord Chancellor was frequently obliged to be absent in consequence of his attendance being needed in the Court of Chancery, and it was also found that some 290 or 300 appeals were in arrear. It was suggested, in order to enable the Lord Chancellor to attend more frequently, that an additional judge in Chancery should be appointed. It was believed that if a Vice-Chancellor were appointed, the Lord Chancellor would be enabled to sit in this House for appeals on three days in the week during the session. This was not very satisfactory. Subsequently the appointment of deputy speakers was recommended, but there was no provision for the attendance of other law lords. In 1813 a ViceChancellor was appointed, and the Lord Chancellor had more time to give to appeals. On looking at the first volume of the reports for 1813, I find there were forty-two appeals, of which only eight or nine were English. The majority were Scotch, and a few were Irish. Lord Redesdale sat with Lord Eldon in the majority of the cases, and no court of two members could have been stronger; but in one-third of the whole number of appeals heard during the session of that year, Lord Eldon sat alone. I say nothing about the fact of some of the appeals being from his own decisions in the Court of Chancery. I presume that on many occasions he was assisted by two lay peers, but, except in one case, there is nothing said about those noble Lords having opened their mouths. The exception is that of a Scotch marriage—a case which seems to have required much investigation. There was a question as to whether the lady had given her consent to the marriage, and a lay lord is reported to have said that when the gentleman asked the lady she made a courtesy, and this the lay lord took to be a consent. (A laugh.) It could not be considered a satisfactory state of things when the hearing of appeals, the decisions on which were to be pronounced in the name of the House of Lords, was relegated to a single judge and two non-assisting lay assistants. In 1823 and 1824 matters were not found to be much more satisfactory; an inquiry was instituted, and a committee recommended the appointment of Deputy Speakers, and also that there should be ballot for lords to make up a quorum, the penalty for non-attendance to be £50. That was a somewhat singular proposal to make for the purpose of insuring the due administration of justice. I now come to the state of affairs in the time of Lord Lyndhurst. During that time I myself was present on several occasions when Lord Lyndhurst sat on appeals with two lay lords, who took no part in the discussion, who employed themselves, perhaps, in reading a newspaper, and who seemed to take very little interest in what was going on. Then it happened that the case did not always end in one day, and that the next day there were two other lay lords, and on the third day, when the decision was given, two others, who had not been in attendance on either of the previous days. On one occasion it occurred to me, much to my mortification, to have to accompany a very learned French jurist, who unfortunately understood English, to the House of Lords when an appeal was being heard, and I was obliged to tell him, in answer to a question which he put me, how matters were really being conducted, although I was in hopes that he would not see through it. Now, to speak of dignity under such circumstances, so far as this House is concerned, seems to me to be a political mistake of a very serious character. So far from such a state of things contributing to the dignity of your Lordships' House, I can, I confess, see nothing more undignified than that one or two noble lords should be placed in the painful position which I have just described, and I can hardly express my sense of that position in stronger terms than were used by my noble and learned friend on my right, in the evidence which he gave before the committee of 1855, when, in answer to a question which was put to him as to whether lay lords being present at the hearing of appeals, and evidently not attending to what was going on, was not a cause of disturbance and distraction, he replied, "We have long since ceased to take any notice at all of those lay peers." But things could not go on in this way, although matters had begun to mend. The tenure of office of Lord Eldon had been very long, but since the changes in the occupants of the woolsack have been more frequent, and you have in consequence secured the services of a number of learned lords, which you could not have obtained at the period to which I have been referring. Owing to that happy accident, the conduct of business in the hearing of appeals has been somewhat more satisfactory; but it was, nevertheless, in 1855, deemed to be highly expedient to appoint a committee to inquire into the subject, with the view of seeing what alterations were required for the purpose of improving the appellate jurisdiction of this House. That committee was very strongly constituted. Among the lay lords on it were the late Lord Derby, Earl Grey, and the Lord Privy Seal of the day. I cannot go through the
whole list, for I have not the names before me. Among the law lords were Lord Brougham, Lord Lyndhurst, Lord Abinger, and Lord Campbell. Well, what was the report of that committee? They reported that evidence had been given before them which spoke of the tribunal, as it was constituted, as giving satisfaction, but that the large preponderance of opinion was in favour of decided changes being made in its administration of jus. tice. They go on to speak of the defects of the tribunal. Among these they enumerate the difficulty of securing the attendance of peers at the hearing of appeals; and the House, after what I have stated, will not be surprised to hear that this was naturally a subject of complaint on the part of the witnesses, and that it made a considerable impression on the committee. They speak also of a second grievance, and this I may observe is involved essentially in the very constitution of the tribunal, which, being constituted as the House of Peers, sits only while the House is sitting. The second grievance is that, as the House usually sits only from February to August, while the ordinary courts of law sit from November to August, three months are lost with respect to the hearing of appeals. Your Lordships will further observe, although I do not know that the report of the committee refers to the point, that the House sits only four days a week. The committee found, besides, that complaints were made by certain persons in Scotlandthough Lord Moncrieff, who was at the time Lord Advocate, did not, I believe, take that view-that no peer had a seat in the House who was acquainted with the system of Scotch judica ture, or who had been on the Bench in Scotland. Lastly came the question of the greater expense created by the present mode of hearing appeals as distinguished from that involved in the hearing of appeals in the courts below. Such were the main points touched upon in the report, and I think you will regard it as a very strong report, coming from men who can scarcely be looked upon as being desirous of change. I now beg leave to call your Lordships' attention to the work of Lord St. Leonards on the law of property, from the introductory chapter of which it will be seen that he in a great degree concurs in the inexpediency of this House exercising an appellate jurisdiction in the mode in which it has been exercised, and which I have endeavoured to describe. The witnesses examined before the committee were, I may add, numerous, and well acquainted with the subject. My noble and learned friend to whom I have already referred was, I think, Solicitor-General at the time, and he gave very full testimony with respect to the grievances which I have mentioned. He described the way in which a noble lord would come into the House during the hearing of an appeal, read the newspaper or chat with other noble lords, and not appear to take any interest in the particular case in hand. The report of the committee, moreover, refers to other matters which may be worthy of your Lordships' attention, although I by no means put them in the fore front of the question. It speaks of the inconvenience arising from the mode of delivering judgment, caused by the circumstance that it is delivered as the judgment of the House of Lords. It points out that it is delivered in the form of a speech very often, and not ex cathedra, but standing up, and that a noble lord is in conse quence occasionally led to become more excited in its delivery than is quite consistent with the tone of judicial eloquence, the table being sometime slapped violently with the hand. Fault was also found with the absence of forensic attire; but these are points on which I do not now wish to lay any stress, in comparison with the other points which I have mentioned, such as the loss of time, the expense, and, above all, the pretending that the decisions given are the decisions of the House of Lords, instead of being, as they are, the judgments of one noble and learned lord, assisted by two or three others. In the evidence a case is detailed to which, but for its mention there, I should have some delicacy in referring, Malins, V.C., then Mr. Malins, was examined, and gave strong evidence in favour of the very measure I am about to propose-the transfer of the appellate jurisdiction from this House to a bond fde court, and not to a com mittee calling itself the House of Lords. He gave this instance of what occurred in the pre sence of Lord Brougham, who had an opportunity of replying to him by question and answer. A case was decided under the Acts for winding-up public companies, a case of considerable importance to a large number of persons who had embarked their fortune in an unprofitable adventure, and were called upon in many cases to sacrifice the last penny they had to make good their engagements. It was a case of first-rate importance with a view to ascertain who was liable or, in technical language, who and who were not contributories, and to have the law clearly laid down as to what constituted a contributory to govern, as it would govern, & vast number of cases hereafter. It so happened that a Master in Chancery, a near relative of Lord