A DIGEST of the EXAMINATION QUESTIONS in Common

Law, Conveyancing, and Equity, from the commencement of the Examinations in 1836 to Hilary Term 1872, with ANSWERS; also the Mode of Proceeding, and Directions to be attended to at the Examination. By RICHARD HALLILAY, Esq., Author of The Articled Clerk's Handbook." By GEORGE BADHAM, Esq., Solicitor. [Will be ready in about two months.

London: HORACE Cox, 10, Wellington-street, Strand, W.C.

The Law and the Lawyers.

THE LORD CHANCELLOR is said to have abolished the County Court Circuit No. 56, the Judgeship of which was recently vacated by the death of Mr. SAUNDERS. A re-adjustment of several of the neighbouring circuits is proposed to take effect from the 20th May next. It is to be assumed that this is a step in the reduction of the number of County Court Judges recommended by the Judicature Commission, and inaugurated by the proceedings with reference to the Lancashire courts.

VOL. LII.-No. 1517

THE candidates for the possible vacancy in the office of Common Serjeant are becoming numerous. In addition to the gentlemen whose names we have already given we may now mention Mr. J. J. POWELL, Q. C., Mr. Serjeant SIMON, Mr. BOURKE, Mr. W. W. COOPER, and, by the time the vacancy is declared, the list will doubtless include all the eligible men at the Bar having any city influence whatever. Sir THOMAS CHAMBERS has held the office since 1857.

MR. H. T. COLE, Q.C., of the Western Circuit, has been appointed recorder of Plymouth and Devonport, in the place of Mr. CHARLES SAUNDERS, deceased. It was reported that the offices, which were annexed under the régime of the late recorder, having been previously held separately, would be again disunited. But the Home Office has maintained the existing arrangement. By this appointment the recordership of Penzance is vacated. This borough is situate only ten miles from Helston, and the two were formerly held by the same recorder; the business being small, and the salary of each barely covering the cost of journeys to the extremity of England, they will, doubtless, be again reunited in the person of Mr. PRIDEAUX, Q.C., the present recorder of Helston.

ONE of the questions put to the candidates for the last Final Examination for solicitors was, What are general average and particular average?" Considering that judges have sought to be enlightened on this subject by the evidence of average staters, and that after hearing such evidence no satisfactory result has been arrived at, it is going rather too far to expect articled clerks to settle the difficulty. In the familiar case of Kidston v. The Empire Marine Insurance Company (15 L. T. Rep. N. S. 12; L. Rep. 1 C. P. 535), Mr. Justice WILLES said that the word “average' is a word used in a great variety of phrases as applicable to different subjects-matter, and not with any fixed or settled application. It would be tedious to go through the various uses to which it is applied." We should like to hear the explanation of such a question getting into the examination paper.

SOME Correspondence has been going on in our columns with reference to the admission of solicitors to the Inns of Court with the view of being called to the Bar. One correspondent suggests that, as barristers are allowed to become solicitors after an apprenticeship of three years, solicitors should be admitted to the Bar on keeping eight terms. We can certainly see no objection to such an arrangement, although, as most barristers are University men, and entitled to afreduction of two years' service, they would get nothing by being barristers. Indeed, we incline to the opinion that an examination should be the only test, and that on passing such examinations as might be instituted, or such as now exist, solicitors should be admitted barristers, and vice versa, without further formality. It is an undoubted fact that many barristers pursue their profession in desperation, when they would, if they could, willingly retire into the less prominent sphere of the solicitor; and to solicitors aspiring to the Bar every facility ought to be given. But it must be remembered by our correspondents that the Bar is an excessively jealous and exclusive body, self-governed, and to introduce a reform of the nature suggested would be a work of intense difficulty.

A MATTER connected with the Admiralty Jurisdiction of the County Courts was brought before the High Court of Admiralty recently, which deserves some attention from both the judges of those courts, and persons interested in suits brought before them. A collision suit was heard and decided in the County Court of Northumberland, and the judgment was given for the defendants. The plaintiffs therepon appealed to the High Court of Admiralty, and a motion was made in that court for leave to produce witnesses at the hearing of the appeal, on the ground that the notes of the evidence filed for the purposes of the hearing were insufficient. These notes were before the court on the motion, and they appeared to be merely rough notes taken down by the County Court Judge at the hearing. There were no questions taken down at all, and the answers, instead of being the full words used by the witnesses, were abbreviations of those answers; and it was evident upon the face of the notes, that only a portion of those answers had been taken down. There was no judgment delivered by the County Court Judge, as far as appeared from the documents filed, so that the Admiralty Court had no means of knowing in what way the decision had been arrived at. Under these circumstances Šir. R. PHILLIMORE felt himself compelled to allow the motion, and to admit witnesses on the appeal. This is a course which a court of appeal is, rightly, most reluctant to follow, as it opens out to appellants a chance of fortifying the weak parts of their case, and, in fact, concocting evidence for the purposes of the appeal, and it introduces something in the nature of a new trial, which is absolutely contrary to the practice of the Admiralty Court. In allowing the motion, Sir R. PHILLIMORE felt himself compelled to call attention to the 32nd rule of the General Orders for regulating the practice

and procedure of the County Courts admiralty jurisdiction, which provides that, at the request of either attorney, and at his cost in the first instance, or by order of the Judge, at the cost in the first instance of the plaintiff, the evidence of witnesses examined in court shall be taken down by a shorthand writer or reporter appointed by the court, and sworn in each case to report the evidence." The learned Judge said that what he understood by that rule was, that a shorthand writer should be present in all such cases, even though a transcript of his notes might not be required. He called attention to the fact that the expense of having a shorthand writer present was small, being about one guinea, and that it was only in case of an appeal that any further expense would be incurred, and he then said, "If that were done this court would have a fair opportunity of exercising the functions of a court of appeal." Recently in a case of considerable importance a County Court Judge deliberately said, "as I understand there is to be an appeal, I shall give no reasons, but pronounce for the plaintiff." This could scarcely happen in any other court. If it were an appeal to the Privy Council, that tribunal would compel the Judges to give their reasons, and we cannot see why County Court Judges should refuse to state them. It is manifestly a matter of the greatest importance that appeals should be within the reach of all, and not made expensive by the action of the Judges of first instance. The hearing of witnesses in an appeal is a costly proceeding, and might be avoided by following the rule already mentioned.

THE Times devotes a leading article to an attack on the prosecution in the TICHBORNE case for giving to the proceedings an undue importance. The perplexity of the leading journal is thus expressed :-"We cannot understand why the ordinary machinery of justice, which is deemed sufficient for the discovery and punishment of crime in common cases of perjury, forgery, and fraud, was deemed unsuitable in his case. Whatever the weight of the reasons for removing the case from the Old Bailey and a common jury to the more august jurisdiction of the Queen's Bench, we cannot conceive why it can be necessary to postpone the trial for months, and summon a cloud of witnesses from two distant continents." A little reflection must have shown the writer that the Treasury must either have abandoned the prosecution or determined to go to the very root of the old controversy as to identity. Serjt. BALLANTINE stated this week in the Queen's Bench that issues of the very gravest character must arise, which could only be dealt with satisfactorily by a special jury. The evidence from Chili and Australia appears to us to be indispensable, and therefore the trial of the cause must be postponed. We think the Times and other journals would do well to leave the Treasury alone to conduct this most important prosecution as it may be advised. Comments of the kind to which we have referred must inevitably operate prejudicially, and tend to defeat the very end which they are intended to promote.

A POINT of some nicety and of very considerable interest to suitors and practitioners in the Mayor's Court, London, came before the Court of Queen's Bench on Thursday last. The Mayor's Court, as many of our readers are aware, has been in the habit for centuries, of granting new trials in cases where it is considered that the verdict was against the weight of evidence. The authority of the court to pursue this practice has now been called in question. In a case of Roux v. Merton, tried on the 16th inst., before Sir THOMAS CHAMBERS, the Deputy-Recorder, a verdict was given for the plaintiff, which it would appear did not meet with the approval of the learned Judge, for, upon the application of the counsel for the defendant, he granted a rule to show cause why a new trial should not be had upon the ground that the verdict was against the weight of evidence. This rule having been made absolute, the plaintiff moved the Court of Queen's Bench for a mandamus to compel the Mayor's Court to proceed to judgment on the original verdict, contending, upon the authority of Ree v. The Mayor of Oxford (3 N. & M. 877), and The Mayor of London v. Cox (L. Rep. 2 E. & I. App. 286), that the Mayor's Court was a court of inferior jurisdiction, and as such could grant new trials on the ground of fraud or surprise only, and not upon the merits. The court granted a rule to show cause why a mandamus should not issue to the court below, compelling them to proceed to judgment on the original verdict, and we shall look with some interest for the argument on the rule and the decision, which may very seriously affect, and possibly diminish, the practice of the court.

MR. JOSEPH BROWN, Q.C., has delivered his opinion of the Bill to Amend the Law of Evidence, lately introduced into the House of Commons by Mr. HERON, Q.C., and Mr. PIM-a Bill framed apparently by Mr. Justice LAWSON, whose code we recently noticed. We can only briefly notice Mr. BROWN's views. In the first place, he seems to favour the proposal to allow atheists to give evidence; secondly, he would make prisoners competent witnesses; thirdly, he disapproves of the clause taking from witnesses the privilege of declining to answer questions tending to convict them of crime unless accompanied by a

provision indemnifying them against prosecution, the policy of which indemnification, however, in all cases he doubts. The Bill proposes to extend the privilege of lawyers to decline to disclose professional communications, to clergymen. Mr. BROWN asks, Why should not the privilege be also extended to medical advisers? Further, Mr. BROWN would allow charges damaging to a witness's credit to be proved, although there has not been a conviction for the alleged offence; and he would admit letters or other documents of dead men, who could have given material evidence if living. Section 19 of the Bill proposes to admit

as corroborative evidence entries in the books of men who are still alive. Mr. BROWN would add that, to be admissible, the entry should appear to have been made before the dispute arose, and that notice to inspect the entry should be given to the other side before trial. In questions of pedigree the Bill proposes to admit the declarations of illegitimate relations. This the learned critic approves. Sect. 22 proposes to admit declarations of deceased persons made after the dispute had arisen, leaving it to the jury to say what weight should be given to them. Mr. BROWN would limit this to persons having no interest in misrepresenting the fact in question. Lastly, he agrees with the proposal contained in sect. 36 to allow evidence of previous convictions of a prisoner to be laid before the jury. In concluding his remarks, Mr. BROWN pointed out that our law of evidence is mainly the work of the Judges, and his final observation is: "There is no reason, therefore, why Parliament should scruple to alter and amend what was laid down without the assent of the great council of the nation, and I humbly conceive that by doing so, they will greatly aid the discovery of truth where it is now often suppressed or concealed, and the detection of crime which now too often escapes punishment."

THE ISSUES FOR THE GENEVA ARBITRATORS. WE are glad to find from our correspondence that the lawyers throughout the country are anxious to follow the proceedings in the great international arbitration which is at present considered to be pending. In response to a suggestion that we should inform our readers of the case made on either side, we now proceed to sum up as briefly as possible the several views put forward.

Taking the case of the United States we find, according to the introduction, that the Americans "propose to show, by an historical statement of the course pursued by the British Government towards the United States, that there was on the part of the British Government a studied unfriendliness, or fixed disposition adverse to the United States, which furnished a constant motive for the several acts of omission and commission hereinafter complained of, as inconsistent with its duty as a neutral." They next endeavour to indicate what they deem to have been the duties of Great Britain towards the United States in respect of the several cruisers named, failure to perform those duties, and consequent liability to remunerate the United States for losses thus inflicted upon them, upon their citizens, and upon others protected by their flag.

We may safely pass over the historical part of the American case, and may even take it as established that there was a predisposition on the part of many eminent English statesmen in favour of the seceded states. Passing then to Part III., we arrive at the American definition of "the duties which Great Britain as a neutral, should have observed towards the United States." By means of a somewhat left-handed argument, our municipal laws passed so recently as 1870, are used for the purpose of showing that we fully understood what our duties were; but primarily the definitions contained in the Foreign Enlistment Act of 1819 are relied upon. The case says that "the United States will therefore confine themselves to attempting to deduce from the statute the definitions of the principles and the duties which are there recog nised as obligatory on the nation in its relations with other powers." The only deduction material to be noticed is the third in the category of acts which ought to be prevented: "The equipping, furnishing, fitting out, or arming any vessel with intent, or in order that it may be employed in the service of a foreign government, or of persons assuming to exercise the powers of government over any part of a foreign country, as a transport or store ship, or to cruise or carry on war against a power with which the neutral is at peace." This statute, according to the Americans, was stripped of all its effective power by the construction of the English courts, and the depredations of British built and British manned cruisers upon the property of the United States, is said to have "awakened Great Britain to its senses." This refers to the Commission appointed in 1867, which recom mended that it should be made a statutory offence to "fit out, arm, dispatch, or cause to be dispatched, any ship, with intent or knowledge that the same shall or will be employed in the military or naval service of any foreign power in any war then being waged by such power against the subjects or property of any foreign belligerent power with whom HER MAJESTY shall not then be at war. The same commission proposed to make it a statutory offence to "build or equip any ship with the intent that the same shall, after being fitted out and armed, either within or beyond HER MAJESTY's dominions, be employed as aforesaid."

Upon these recommendations are based the following observations: "The Tribunal of Arbitration will not fail to observe that these recommendations were made by a board composed of the most eminent judges, jurists, publicists, and statesmen of the Empire, who had been in public life, and participated in the direction of affairs in Great Britain during the whole period of the Southern rebellion; and that they were made under a commission which authorised these distinguished gentlemen to consider and report what changes ought to be made in the laws of the kingdom for the purpose of giving to them an increased efficiency and bringing them into full conformity with the international obligations of England. Viewing their acts in the light of their powers and of their instructions, the United States feel themselves justified in asking the tribunal to assume that that eminent body regarded the acts which they proposed to prevent by legislation as forbidden by International Law."

This is the first point upon which the counter case joins issue. At page 7 it is observed that to state the United States' proposition, that whatever the municipal laws of a country prohibit, that the country must regard as prohibited by the law of nations, and that by that standard she must be tried, is to refute it. The counter case proceeds to argue thus: "If it were a true assumption that the municipal laws of a state, wherever they prohibit acts which may affect the security or interest of other States, must have been founded, not on considerations of policy and expediency, but on conceptions of international obligation, it would nevertheless be impossible to contend, with any show of reason, that, by these conceptions, and not by the general rules of the law of nations, the State was to be judged in any international controversy in which it might become engaged. Such a rule, it is evident, would produce the most fantastic consequences. In place of a common and equal standard of obligation, we should then have a varying and unequal one, varying with the nations to which it was applied, and with the notions of duty which they might from time to time entertain."

The United States clearly misinterpret the object of municipal laws, and their Case singularly suppresses some important portions of documents which it quotes. Two instances of this are given in the Counter Case. The American Case credits Lord RUSSELL with

having said That the Foreign Enlistment Act is intended in aid of the duties .. of a neutral nation." His words were, That the Foreign Enlistment Act, which was intended in aid of the duties and rights of a neutral nation, can only be applied, &c." Again, the American Case omits the introductory words of the recommendations of the Royal Commissioners of 1867: “In making the foregoing recommendations we have not felt ourselves bound to consider whether we were exceeding what could actually be required by international law, &c." Upon this the Counter Case observes: "Thus, by leaving out the words in which the Commissioners observe that their recommendations may exceed the requirements of international law, and by using in one sense words which (as the context proves) they employed in another, they are represented as saying the very thing which they expressly guarded themselves from being supposed to say, namely, that all the acts which they proposed to prohibit were, in their judgment, already forbidden by international law."

The views alleged to have been put forward by the Commissioners are further said to be ratified by a decision of Sir ROBERT PHILLIMORE in the case of the International, where he spoke of the Foreign Enlistment Act 1870 as strengthening the hands of her Majesty's Government, and enabling them to fulfil more easily than heretofore that particular class of international obligations which may arise out of the conduct of her Majesty's subjects towards belligerent foreign States, with whom her Majesty is at peace. Such a general remark upon the purview of a statute is simply valueless for the purposes to which the Americans would apply it, and the citation is referred to in a note of the counter case as being utterly irrelevant. It certainly admits no breach of international obligations in the past, and merely refers to the greater security in the future for the observance of international obligations generally. However the United States "confidently submit that the new provi. sions inserted in the Act of 1870 were intended, at least as against the British Government, as a re-enactment (sic) of the law of nations, as understood by the United States to be applicable to the cases of the Alabama, and other ships of war constructed in England for the use of the insurgents." Further, they ceive that Great Britain is committed to the doctrines therein stated, not merely by the articles of international law expressed in its statutes, but also by the long-settled common law of England, confirmed by Acts of Parliament."

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We might take exception to such expressions as the reenactment of the law of nations, and inquire what distinction there is between statutes and common law confirmed by Acts of Parliament, but we will close the present article by quoting the reply of the counter case. Her Majesty's Government "declares in the most explicit manner that the law to which it has submitted its conduct, and by which it has consented to be tried, is the international law recognised in common by all civilised States, coupled with the three rules embodied in the treaty; that this law is to be gathered, not from British statutes or ordinances,

but from the general consent of nations, evidenced by their practice; and that the laws and ordinances of Great Britain herself can be appealed to only for the single purpose of proving that her Government was armed with sufficient power to discharge its international duties, and not for the purpose of extending, any more than of restricting, the range of those duties."

CRIMINAL TRIALS IN THE QUEEN'S BENCH. A QUESTION of interest has recently been started in the Tichbornecase whether a charge of felony could be tried in the Queen's Bench by a special jury. The Master said it could not. The Judges seemed surprised, and it was evidently contrary to their impressions. But it will be found to be quite clear that they were right, and that he, except in some very strict and narrow sense, was wrong. He was right only in this sense, that a special jury could not be struck, in a case of felony, in the ordinary way-that is before the Master, in a panel of forty-eight, to be reduced by striking off twelve on each side. Of course this would not be applicable to a capital case, in which the prisoner could challenge thirty-five peremptorily. Therefore, the modern practice of striking special juries was never applied to such cases, and, down to our own time, felonies were nearly all capital. Hence in the Jury Act of 1825 (6 Geo. 4), which was just a year or so before Peel's Acts reducing capital felonies (7 & 8 Geo. 4) in the clause continuing the modern system of striking special juries, treason and felony were necessarily excepted. But there was a previous clause, expressly reserving to the Court of King's Bench all the powers it had ever exercised, as.to order-ing the summoning of juries in criminal cases; and, among these, was the power of directing the sheriff, in cases of felony or treason, to summon a "good" jury: that is, a jury-as Mr. Justice Lush in his Practice defines it--summoned from the same class as a special jury. So that a "good" jury is really a special jury struck in the ancient instead of the modern way. In Mr. TIDD's Practice (the edition of 1828 after the Jury Act), he alludes to the old practice, and calls a "good" jury a "better sort of common jury," and adds that "before the introduction of special juries, the rule for a good jury appears often to have been granted." So that the practice of good juries was anterior to special juries struck in the modern way, which is far less suited to criminal cases, even not capital. For if the defendant or his attorney should not attend, then the master struck off twelve on his behalf in his absence (Ree v. Hart, Cowper's Reports), and thus the jury is struck behind his back, which has not, in a criminal trial, a very pleasant aspect. It is otherwise with a "good" jury. The sheriff is simply ordered to return into open court a list or panel of good, that is substantial, jurors, out of which the jury are chosen in open court, the prisoner having his open and public challenges. This is far more satisfactory, and it has the additional advantage that it is equally applicable to cases of felony and misdemeanor, and thus the anomaly and absurdity are avoided of trying a charge of perjury with one kind of jury, and a charge of forgery with another. The ordering of a good jury, it is to be observed, is of daily occurrence in cases of compensation or writs of inquiry, and is so stated by Mr. Justice LUSH in his Practice. It was also the subject of an elaborate judgment by the Court of Common Pleas only last year. It is true that it is not usual in criminal cases; but that is because in modern times there rarely occur criminal cases of difficulty or importance enough to require any other than an ordinary jury, added to which in treason and capital felonies both the Crown and the prisoner are provided with power of challenge, which attain the same object. In Mansell's case, for instance, a few years ago, we saw the power of the Crown to direct jurors to stand aside for reasons such as would be no legal ground of challenge; and their not being substantial enough, would be a very fair reason. Moreover, in modern times, cases of felony in the Queen's Bench have been extremely rare, and when they have occurred, have not been of any great interest or difficulty. In ancient times it was otherwise, and when trials were at bar, or before the full court, as they were until the middle of the last century in the King's Bench, in any criminal case, the trial never took place without a good jury. The Act of Geo. 1, giving the power to any single judge to try cases, carefully reserved to the court all its ancient power as to juries, and declared that a trial at Nisi Prins should have the same effect as at bar: (12 Geo. 1, c. 31.) And that power was exercised in the King's Bench in 1740, in Ratcliffe's case, a case of treason. That is, the court ordered the sheriff to return a good jury instanter. This is the power carefully reserved by the Jury Act of 1825 (6 Geo. 4), and it might be exercised by the court without having a trial at bar. It is not, therefore, necessary that the court should order a trial at bar. The ATTORNEY-GENERAL intimated that he might claim it as a privilege, though we believe his privilege only applies in cases where the Crown is interested. But certainly the court could order a trial at bar if it thought proper to do so; and as lately as 1850 such an application was entertained. The power to order such a trial is unaffected by any statutes, and the power to direct a good jury-which was incident to it--is expressly reserved. There was always a good jury on a trial at bar, for the

obvious reason that if a case was of sufficient importance to be tried before the full court it was also of sufficient importance to be tried by a good jury. On the same principle, if the case is of sufficient importance to be removed into the Queen's Bench at all, it is of sufficient importance to be tried by such a jury. And the power of the court to direct such a jury applies equally whether the trial is before a single Judge or at bar. We assume, in these remarks, that the case is removed into the Queen's Bench; but we are surprised that it should have been removed, because a good jury could have been obtained at the Central Criminal Court; as the power of directing such a jury belongs to any court of oyer and terminer, and though the practice was rare except in the King's Bench, it was usually exercised in cases of special commission. However, assuming the case to be duly removed, it is for the interest of all parties that it should be tried in the best way, and that will be, if not by a trial at bar, at all events with a good jury, returned and chosen in open court, with fair opportunity of challenge and of choice. And we have shown that this salutary power is still possessed and exercised by the courts.

THE DISPATCH OF BUSINESS AT COMMON LAW. A LETTER from a Northern Circuit "junior appeared in the Times on Monday, which deals with one of the prominent grievances connected with our Courts of Common Law. He indeed makes but a single suggestion, namely, that three instead of two Judges should go the Northern Circuit, and that if a third cannot be spared by the existing staff, an additional Judge ought to be created. But the consequences to flow from the adoption of this suggestion are representative consequences-consequences, that is, which ought to prevail in London as well as in Liverpool and Manchester; and with these we propose to deal briefly.

A primary advantage of a third Judge is this: that the duration of the circuit would be diminished; secondly, a multiplication of circuit courts would bring about a greater distribution of the business-a good thing, as the Times correspondent remarks, for the silks and leading juniors, at present overburdened with work, and for their clients, "but particularly for the Bar themselves, for it cannot be advantageous that the men who will have to do the future business of the circuit shall spend in enforced idleness those years of their life when they are most apt for acquiring knowledge of the practice of their profession." There can be little doubt that at present junior barristers possessing little or no connection, labour under immense disadvantages. It is a mistake to suppose that very much is learned by the mere fact of attending court; practice is essential, and a man who spends the first five years of his professional life in enforced idleness has to begin to learn his work over again, should he indeed succeed in getting rid of the ill effects of having had nothing to do for so long a period. The present system of "holding " briefs is, in many respects, objectionable. It brings no remuneration to the deputy, and is unsatisfactory to the client, but under the monopoly which exists, it is almost the only mode of getting into notice. This brings us to consider the monopoly of which the Northern circuit Junior speaks.

The most salutary effect of splitting up the business into three courts, he says, would be “in ameliorating the tone of the Bar, for it would do something to assuage that selfishness, and that grasping greed that a monopoly never fails to engender." When a few men of extensive connection can control the business, riding as it were two horses, with one foot on each, a large number of men must be absolutely excluded from the work. The harvest reaped by the fortunate men is a rich one, and those who enjoy it grudge an atom of it to the briefless. Suitors will retain the most popular advocates, even at the risk of not receiving the services which they pay for; and it would really operate for the public benefit if this mania were impossible of gratification. We must here take occasion to remark upon the way in which this monopoly is fostered by some courts, and it is most conspicuously illustrated by a city court under the jurisdiction of the LORD MAYOR. Over that court the COMMON SERJEANT at present presides, and it is on record that he has absolutely adjourned his court and altered the fixed days for sitting to suit the convenience of two counsel who absorb nearly the whole of a very large business. For any suitor, however humble, to be delayed a single day to suit the convenience of counsel-to enable counsel to earn ten guineas instead of five seems too monstrous to be countenanced. Yet it is reported that the leading counsel in the LORD MAYOR'S Court constantly induce the judge to postpone causes, and, as we have said, positively adjourn his court, to allow those same counsel to retain their briefs in his court without detriment to other business which they may have elsewhere. The result of this is that the large Junior Bar which attends the court is kept at arm's length, and only occasionally trench upon the unhealthy monopoly which prevails.

To return, however, to the wider question-the position of common law business consequent upon the scamping of cause lists which takes place on circuit. The work is absolutely slipping out of the hands of the Profession; Common Law is becoming what

Chancery was; and the delay almost invariably attendant upon motions for new trials, demurrers and special cases, is driving all the great commercial bodies to lay arbitrament. In cotton contracts, and we have no doubt many others, clauses are now generally inserted providing for the disposal of disputes by means of arbitration, and in those arbitrations neither attorney nor counsel appear. The recent comments of the Times reporters during the assizes reveal a curious state of things—a collection of causes either too trifling to deserve the attention of the Judges or too heavy to be disposed of in the period allowed for the assizes. We incline to the opinion that no cause is beneath the attention of a Superior Court which the parties deem it advisable to bring before it. But most certainly when brought before it all causes ought to be fairly disposed of. No cause ought to be made a remanet by reason of defective judicial machinery, no cause should be scamped because there is not time to get through the list.

In the end, however, we come to the inevitable conclusion that to remedy these evils we must have radical reforms. It is little use remodelling our courts of first instance, if we have not a means of speedy rectification of errors of Judges and juries. Our present system of obtaining new trials, and of upsetting verdicts, is dilatory to an extent frequently amounting to a denial of justice. As an illustration we report a case this week which was tried on the Norfolk Circuit in 1869. A rule to enter the verdict for the defendant was refused by the Exchequer in the same year, but the Court of Exchequer Chamber only recently affirmed the judgment of the court below, and enabled the plaintiff to recover the damages awarded him by the jury. In connection with appeals, the Common Law Courts may well take a leaf from the book of the Chancery Courts, where cases go on appeal from the various courts of first instance to the Lords Justices within the space of a few days, and are thus finally disposed of. And we believe there is a growing disposition, where possible, to take causes into Chancery rather than incur all the uncertainties and delays of an action at Common Law.

Reform is urgently wanted by the public and by the Profession, and any Government which will carry it through speedily, will deserve the applause and the gratitude of the nation.

MR. LOCKE KING'S ACT AMENDMENT ACT (30 & 31 VICT. c. 69.)

WE have previously (LAW TIMES, Vol. xliv., p. 428, and LAW TIMES, Vol. xlix., p. 84), discussed at some length the effect of this Act (30 & 31 Vict. c. 69), and particularly of the 2nd section, which provides that "In the construction of the said Act (the 17 & 18 Vict. c. 113), and of this Act; the word 'mortgage' shall be deemed to extend to any lien for unpaid purchasemoney upon any lands or hereditaments purchased by a testator." We then pointed out that two important questions arose on the construction of the 2nd section, which in substance were these, viz. First, whether the interest of a vendor prior to the time fixed for the completion of the purchase, and while he retains the legal estate and possession, is a lien within the Acts; and secondly, whether a purchase by an intestate is within the Acts.

:

On the first point we showed that the decision of Sir J. Wickens, when Vice-Chancellor of the Duchy of Lancaster, in Evans v. Poole (LAW TIMES, Vol. xlix, p. 50), is in favour of answering the first point affirmatively.

Such an answer was necessary to the decision. The point, however, seems to have been very inadequately argued, and it is by no means clear that such a construction could be maintained, the principal objection being, first, that it is incongruous and unusual to speak of the right of a vendor who has the complete legal control and possession as a lien; and, secondly, that the natural presumption is that a purchaser (originally, at least) intends to pay the purchase money out of, and to diminish pro tanto, his personal estate. On the other hand, as we have pointed out, there is considerable difficulty in holding "that the lien arises for the first time at the period fixed for completing the purchase, and in the event only of the purchaser then obtaining the legal estate or possession without having paid the whole of the purchase money." In Harding v. Harding (Weekly Notes, 20th April 1872) ViceChancellor Bacon seems to have assumed that the first point must be answered affirmatively, since he rested his decision on the more doubtful ground that the second point must be answered negatively. In that case, one John Martin had died intes tate, in November 1867, having contracted for the purchase of a freehold reversion, the title of which had been acccepted, nothing remaining at his death for the completion of the purchase but the payment of the purchase money and the execution of the conveyance. The Vice-Chancellor held that the heir was entitled to have the contract carried into effect at the expense of the per sonal estate, and that the case of a contract entered into by an intestate was a casus omissus unaffected by the 30 & 31 Vict. c. 6, the language of which was express.

Here, then, we have a direct conflict between the decisions of Sir James Bacon and Sir John Wickens, the latter having thought that under similar circumstances he might "in carrying out the obvious meaning and intention of the statute venture to go, perhaps, a little beyond its words, and order that the

purchase money should be made primarily payable out of the real estate." In judging between the two decisions the simple question (but one more easily asked than answered) is whether the language of the statute is so utterly intractable as to render all considerations arising from the maxim of statutory construction in reference to the old law, the mischief, and the remedy, out of place. If those considerations be admissible, Sir J. Wickens's decision was right, for there can be no manner of doubt as to the old law, as to the mischief or supposed mischief, and the remedy intended, and whether the decision were right or not we cannot wonder that he should shrink from imputing to the Legislature an intention so grotesquely absurd as that of giving to the heir a right of exoneration and denying it to a devisee, who, according to the rules governing the administration of assets, is, and with reason, more favoured than the heir.

Our attention has been directed to the recent case of Hudson v. Cook (26 L. T. Rep. N. S. 180), as one in which the decision of Lord Romilly supports that of Sir J. Bacon in Harding v. Harding. The facts of that case were peculiar, inasmuch as the vendor, after the death of the intestate, and without communicating with the heir, who was abroad, availed himself of a condition enabling him to rescind in case the purchaser should make any requisition with which the vendor should be unable or unwilling to comply, and the Master of the Rolls there held that the heir was entitled to have the money which would have been paid for the property if the contract had been carried into execution. It is much to be regretted that the existence of the 30 & 31 Vict. c. 69, and the possible bearing of that statute on the case, appear, judging from the report, to have never once suggested themselves either to the counsel engaged or to the Judge, and we therefore, although the point in question was immediately involved, do not think that the case of Hudson v. Cook can weigh at all in the controversy. On the present condition of the question and of the authorities, the only course we can recommend to our readers, is the unsatisfactory one of a suspension of judgment.

THE LIABILITY OF MINE OWNERS AND THE MINES REGULATION BILL.

ONE of the principal features of Mr. Bruce's Mines Regulation Bills is that they impose a greater responsibility on the owners and managers of mines. Certain general rules are laid down for the management of mines, and, at the end of the section it is enacted "that every person who is guilty of any contravention of or non-compliance with any of the general rules in this section, shall be guilty of an offence against the Act, and in the event of any contravention of or non-compliance with any of the said general rules in the case of any mine to which the Act applies, by any person whatsoever being proved, the owner or agent of such mine shall be guilty of an offence against this Act, unless he proves that he has taken all reasonable means to prevent such contravention or non-compliance." Mr. Bruce hopes much from the responsibility thus put upon owners. He knew, he said, in moving leave to bring in the Bill, that in some places owners did take care that the workings were kept in a proper state of stability, and whenever the owners had taken the matter in their own hands there had been a reduction in the loss of life and the number of accidents. He was, therefore, of opinion that a great step would be taken towards the saving of life if this responsibility were thrown upon the owners. No doubt Mr. Bruce is right. But the penalties are not particularly heavy; an owner or agent who is guilty of an offence against the Act is liable to a penalty not exceeding £20. Moreover, they are not intended as compensation to a sufferer, and are manifestly insufficient if they were. They may be recovered by any person, though no damage be done, and are to be paid into the Exchequer. The Secretary of State, it is true, has the power to direct the penalty to be paid to persons injured, if he sees fit; but it is expressly said that "the fact of such payment shall not in any way affect or be receivable as evidence in any legal proceeding relative to or consequent on such offence." For compensation for damage, therefore, sufferers must still look to their civil remedy; at the same time that a civil remedy is valuable as an additional penalty likely to aid in preventing accidents. It may, therefore, be not uninteresting to consider briefly a mine owner's civil liability to his servants in damages for injuries received in the course of their employment. We speak of mine owners in particular, but of course their liability depends on the principles generally applicable to master and servant.

In comparatively very few cases does the owner take any actual part in the working or management of mines. He nearly always employs agents and managers to work the mine for him, and possibly very rarely even sees his mine. Accidents must in such cases arise from the negligence (supposing there has been negli. gence), of some of his servants, or from defective machinery. Very often they arise from the negligence of the manager. Almost always the person actually in default is a "fellow servant," of the injured person engaged in the same employment, and the familiar rule is that a master is not liable to his servant for injuries occasioned by the negligence of his fellow-servant in the same

employment. This rule mostly comes in question, and the liability turns upon the limits of the immunity given by the rule, and what are the obligations of the master to his servant outside of it.

So far as the owner personally interferes and is guilty of negli gence which causes injury no doubt he is liable to his servant. For instance, if, instead of employing a manager he acts as his own manager, and the accident asises from his negligent performance of the duties of a manager, he is undoubtedly liable: (Ashworth v. Stanwise, 4 L. T. Rep. N. S. 85: 30 L. J. 183, Q. B.; Mellors v. Shaw, 1 B. & S. 437: Ormond v. Holland, E. B. & E. 103.) But where he does not personally interfere in the working or management, the rule is that he is not liable if he s et competent servants and provide proper and sufficient machinery, or the means of procuring it. In Ormond v. Holland, Mr. Justice Crompton says, the master is not liable unless there be personal negligence on his part, which negligence may be either by personally interfering in the work, or in selecting the servants who do interfere." And again he says: "If there is personal negligence in the master he is liable, and if he knows of defects of machinery which cause the injury, that is evidence of personal negligence.'

This, it will be found, is a correct statement of the law. It is laid down very fully by Lord Cranworth, in the Bartonshill Coal Company v. Reid (3 Macq. H. of L. Cas. 266), and by Lords Cairns and Colonsay in Wilson v. Merry (1 L. Rep. Sc. & Div. App. 326 ; 19 L. T. Rep. N. S. 30).

In the Bartonshill Coal Company v. Reid Lord Cranworth delivered a very elaborate judgment. There the respondent's husband had been killed through the negligence of a servant of the appellants in the management of the machinery for lowering and raising the miners at the appellants' pit. There was no evidence that the servant was incompetent. On the contrary, it was proved that he was a steady, sober, and skilled workman, who had been acting in the appellants' service for many years.

After explaining the principles upon which a master is ordinarily liable to a stranger for the acts of his servant, on the principle that qui facit per alium facit per se, his Lordship proceeds as follows: "But do the same principles apply to the case of a workman injured by the want of care of a fellow workman engaged together in the same work? I think not. When the workman contracts to do work of a particular sort he knows, or ought to know, to what risks he is exposing himself; he knows if such be the nature of the risk that want of care on the part of a fellow workman may be injurious or fatal to him, and that against such want of care his employer cannot possibly protect him. If such want of care should occur, and evil is the result, he cannot say that he does not know whether the master or the servant was to blame (as he could in the case of a stranger). He knows that the blame was wholly the servant's. He cannot say (as again he could in the case of a stranger) that the master need not have engaged in the work at all, for he was party to its being undertaken." And again he says, "When several workmen engage to serve a master in a common work they know, or ought to know, the risks to which they are exposing themselves, including the risk of carelessness, against which their employer cannot secure them, and they must be supposed to contract with reference to such risks." But in commenting on an earlier case he says, "It is a principle well established by many preceding cases that when a master employs his servant in a work of danger he is bound to exercise due care, in order to have his tackle and machinery in a safe and proper condition, so as to protect the servant against unnecessary risks." And it was held that the appellants were not liable, because the injury was attributable to the fault of the appellants' servant, not to the neglect of the appellants to provide proper machinery and a competent engineman.

In Wilson v. Merry, the appellant, Mrs. Wilson, recovered in a Scotch court a verdict against the respondents, mine owners, for the loss of her son, who was killed when engaged as a miner in their employment. The verdict was, however, set aside, and a new trial granted, and this was an appeal from the judgment setting aside the verdict. The question was whether the appellant's son's death had been caused by the fault or negligence of the respondents' servant, so as to free the respondents from liability. He was killed by an explosion of fire damp, an accumulation of which had been caused by the improper construction of a platform in the mine. It was not suggested that the respondents took any part in the erection of the platform, nor was any personal fault or negligence imputed to them. There was a general manager of the respondents' mines, and a manager of the particular mine under him. The charge of the arrangements, in carrying out which the defective platform was erected, were entrusted to the latter. It may be taken that it was his default which caused the accident. It was not disputed that both the managers were competent persons for the work in which they were engaged, selected by the respondents with due care, and furnished by them with all necessary materials and resources for working in the best manner. It was held that under these circumstances the respondents were not liable.

A preliminary objection on the part of the appellant, Mrs. Wilson,