« EelmineJätka »
mon a jury de circumstantibus. The “barrister" replies to LEX doubt winked at the immorality with which the bargain was refusing to accept such a statement, and we certainly cannot credit tainted in the eye of the law, in order to enforce a claim in itself it, for the proceeding is not sanctioned by any statute relating to perfectly just. "In their notes to Collins v. Blantern, the learned County Courts. Nor, we believe, has a Judge at the assizes or at Editors of Smith's Leading Cases in noticing Fisher v. Bridges Nisi Prius any power to order a tales de circumstantibus save upon (2 E. & B. 118; 3 Ibid 642),
where an agreement to sell land was the application of the parties, and then only if a sufficient number impeached on the ground that the plaintiff well knew the land of properly summoned jurymen are not present. The order is was to be sold by lottery, say “ This case belongs to a class which given to the sheriff, who selects duly qualified persons, and the it has been the tendency of some modern decisions to enlarge, of idea of a Judge making a random selection from the audience in solemn contracts not in themselves transgressing any positive court is too ridiculous to be soberly considered.
rule of law, yet held to be void by reason of some Failing, as we do, to believe that County Court Judges are in structive illegality, or supposed tendency to contravene public the habit of exercising powers which are not in any way vested in policy.” And they add "The expression upon which the judg. them, we do not think it necessary to warn them that the practice ment of the Court of Exchequer Chamber turns, that the referred to as prevailing among them is wholly illegal. One other contract was void because it was to pay a sum of money point only remains to be noticed. A correspondent has sent us a tainted with illegality, is surely vague in itself and dangerous newspaper report of case a before Mr. HOMERSHAM Cox, and which, a precedent. Still more unsatisfactory would it be to after it had been before him for two hours, he stopped, and ordered say that a solemn promise is not binding because from subsequent to be tried by a jury. It did not appear that either party applied knowledge of the promisor, and without fraud on the part of the to have the case so tried, and for a Judge to force a jury upon promisee, that the state of facts was such that had they been suitors without application seems to us to be an improper and known at the time no such promise would have been made. arbitrary proceeding. The Act of 1846 says “that in all actions There is no illegality, no fraud, no intentional deceit, but albona where the amount claimed shall exceed 51. it shall be lawful for the fide conviction of the existence of an honest claim. It is comproplaintiff or defendant to require a jury to be summoned to try the mised, the defendant, as Cockburn, C.J., said, in Callisher' v. Bissaid action; and in all actions where the amount claimed shall not choffshein escapes the vexation of litigation ; shall he also escape exceed 51. it shall be lawful for the Judge, in his discretion, on the liability by assuming which alone he relieved himself or others or application of either of the parties, to order that such action both from such vexation? In Ockford v. Barelli, the defendants be tried by a jury; and in every case such jury shall be summoned not only wished to escape litigation, quâ litigation, but there according to the provisions hereinafter contained.” And another were certain family matters which it was considered desirable section of the Act (sect. 71) provides for the payment by the not to make public. The plaintiff assents to a compromise, and the party requiring the jury of the sum of 58. to the clerk of the defendants attain their end. Having done so, they seek to back court for the payment of the jury. In fact, every provision in the out of their contract. The Court of Exchequer held them to it, Act relating to juries shows that a jury is to be had only on and it will be an extraordinary legal phenomenon if the court of the application of one of the parties, who is expected to pay for error does not take the same course. The policy of the law is in the privilege, and that where no application is made the Judge favour of upholding contracts, unless parties have been induced is bound to try the case himself. His only means of avoiding to enter into them by fraud. They should not be hastily voided on the task is by a recommendation to the parties to have a jury—a the plea of illegality. The course taken by Callisher v. Bischoffrecommendation which might or might not be adopted according sheim and Ockford v. Barclli is in accordance with correct principle to the character of the Judge. But the suggestion that a Judge and the weight of precedent, and on every ground is to be can order a case to be tried by a jury is wholly unfounded.
THE ELEMENTS OF THE LAW OF AVERAGE. THE COMPROMISE OF SUITS AS CONSIDERATION There is no easily available treatise on the law of average, a most FOR A PROMISE.
important branch of maritime jurisprudence, and we propose to law is every day becoming more unsatisfactory, and a craving give, in two or the short papers, a plain statement of its princiis common among lawyers for first principles. But whilst we ples and practice. crave, we are still subservient to cases to an extent which is, if not
PRELIMINARY DEFINITIONS. surprising, at any rate lamentable. We very rarely hear of what The term “ Average" in its original acceptation, as applied to is called a case of the first impression. The first duty of a lawyer maritime, commerce, denoted only general average, which when a case comes under his notice is to endeavour to find a deci- means “a contribution by all the parties concerned in a sea sion upon an analogous state of facts; he cannot venture to act adventure to make good a specific loss or expense incurred by one upon general principles without ascertaining what the courts may or more of them for the general benefit: (Stevens on Average, have thought about the matter. Such a condition of things sup- 5th edit. 3.) ports, in the plainest possible language, the necessity for a code. Particular Average has special reference to policies of insur
A good example of the kind of law which may be most satis- ance on ship, cargo, or freight, and means a partial loss of any factorily codified, is furnished by the two cases of Callisher v. kind whatsoever arising from perils insured against, or a claim on Bischoffsheim (L. Rep. 5 Q. B. 419) and Ockford v. Barelli (25 the underwriters in respect of sea damage : (Stevens on Average, L. T. Rep. N. S. 504). Without going at length into these cases, 3, 76, 77.) the decision briefly stated is this, that where a plaintiff in an action Petty Average is what is referred to in the printed part of a or suit, such action or suit being brought bonâ fide and honestly, bill of lading by the words “average as customary;" but the agrees to a compromise, and forbears to prosecute such action freight is now understood, in the absence of special stipulation, to or suit, the agreement is binding, and he gives sufficient considera- cover all the liabilities which formerly attached to the cargo in tion for a promise to pay in pursuance of such agreement. There respect of ordinary port charges, quarantine dues, &c., originally was no debt due to the plaintiff in Callisher v. Bischoffsheim.
denominated“ petty average : (Stevens on Average 3; Benecke The Honduras Government, against whom he was proceeding Principles of Indemnity, 160, 242). originally, were under no legal liability to him. He was not aware Such expenses, when incurred incidentally because of contrary of this, nor was Bischoffsheim, and the latter promised to com- winds, the want of provisions, &c., and not through sea perils, pensate the plaintiff if he would forbear to take any further in the course of a voyage, and therefore chargeable to the owners proceedings, and he forbore accordingly. No fraud was alleged- of the ship, still receive the name of “ petty average.” no mala fides even suggested. It is an elementary principle When a ship, in the course of a voyage, puts into a port of that fraud vitiates every contract, and to compromise a fraudulent refuge in a disabled condition, and incurs expenses which conclaim can of course be no considerrtion for a promise to pay. In stitute general or particular average, she is said to be under Cook v. Wright (30 L. J. 324, Q. B.) the court said distinctly average. that “ the real consideration depends on the reality of the claim A partial loss or particular average claim under a policy of made, and the bona fides of the compromise."
marine insurance is termed an “average loss,” in distinction from The case of Ockford v. Barelli seems to us stronger than the a “total loss." precedents. The plaintiff had contracted a bigamous marriage
GENERAL AVERAGE. with the testator, whose legitimate sons, to avoid litigation, agreed General average (to explain it more fully) is a contribution by to give her a widow's share of his estate. She forbore to sue in all those who are interested in a sea adventure to make good the consequence of this agreement, which the defendants sought to loss falling upon one or more of them, in consequence of anything avoid. The plaintiff had positively no claim at all, although she on board of, or belonging to the ship, having been voluntarily, in bonâ fide thought she had. After a very lengthy argument the time of peril, cast or cut away, destroyed, injured, or exposed to Court reserved its judgment, and at length determined to follow loss or damage for the general safety, or to reimburse any expenses, Callisher v. Bischofsheim, suggesting to the parties that if they not ordinarily incident to the adventure, incurred, in case of miswished to alter the law they must go into error.
hap, for the common benefit of ship, freight, and cargo: (Stevens We trust that the defendants in that case will not incur the on Average 6 to 29; Benecke Pr. of Indem. 169, 170.) expense of attempting to alter a principle which is perfectly The master of the ship has a lien on the cargo for general sound. It should not be the disposition of the courts in any way to average; he may withhold delivery of it, in the manner prescribed aid in voiding solemn contracts on the ground either of want of by law,'until the consignee signs an average agreement binding consideration or of illegality. We remember criticising a colonial him to pay his due proportion of general average and charges, ofs decision allowing a tradesman to recover against a prostitute for if considered necessary, until he or the proprietor of the goods goods supplied to a notorious house of ill-fame. The Judge no gives sufficient security or makes a deposit in the hands of third
parties for his estimated proportion. The proprietor of cargo is
NOTES ON ENGLISH LAW REFORM AND LEGAL liable for general average, whether he signs such an agreement or
EDUCATION. not: (Scaife v. Tobin, 3 B. & Ad. 52.)
(BY AN AMERICAN BARRISTER.) A voluntary loss, or an expense incurred for the safety of a ship which is in ballast, and not chartered, or for the safety of the
Allow me most respectfully, as an American lawyer, and thereby ship or cargo after the cargo is finally separated from the ship
more or less remotely a party in interest, to congratulate your when the adventure is unavoidably broken up by sea perils, like
journal, the English Bar, and the general public, upon the new
and noble movement for the reform of your jurisprudence. wise gets the name of, and in its apportionment among several interests, or in its application to policies of insurance, should be
I greet your journal, to which it opens a more wide and worthy treated as, general average : (Stevens on Average, 229; Benecke
field of service; the Bar, which it designs to elevate from an Pr. of Indem, 173, 473.)
occult craft into a social function; and the public, to whom it pro
mises the daily bread of civic justice disencumbered by a weight GENERAL AVERAGE LOSSES.
of tax that makes one's advocate his more real adversary. If a mast be cut away, or part of the cargo be thrown over
But do I not, you would perhaps ask me, fall into the mistake board, in order to righten the ship when thrown on her beam of confounding law reform with legal education ? No, I dare ends, or to float her when stranded, if an anchor and chain be
assure you, not in the least. I do but superadd to your proposal slipped from to avoid any imminent danger, or if materials be
of the proper means, the greater complement of the end or result, cut up or expended at sea to rig jury masts when the ship has
which alone can give those means their public value.
You want been dismasted, or to stop a leak, the loss thereby occasioned, the lawyers educated, that the laws may be cultivated (not to call the cost of replacing them or an allowance for damage, is borne it civilised) for a civilised community. This end should therefore as general average by those whose property is saved : (Benecke be declared aloud, I think, to give full grandeur to a project which Pr. of Indem. 182.)
appeals for sanction and support to the Government and to the In the adjustment of such a claim, any of the ship's materials public. For otherwise they would be apt to say, or to suspect, which are made good in general average are subjected to the that the matter was some fresh coterie concern of the lawyers same deductions, in respect of new for old materials, as would be made in the case of a particular average on ship, as noticed
themselves, or at best a crotchet of professional discipline-not a
conception of national interest. hereafter in discussing particular average. The amount made good for any general average loss bears its
This full disclosure is also due to the able lawyer who is the proportion of the contribution.
prime mover, and who descends, or rather ascends from the Jettison, the throwing overboard of cargo or anything in the ship,
common goal of piling money to correcting the abuses which help for the common safety, the most ancient source of general
him and others to that vulgar eminence. It might be said, I average: (Stevens on Average, 9.)
think, of most callings, and even of aggregate societies, that most The term “jettisons" which occurs in an
is done for their advancement by those luckless members who
dinary policy of marine insurance on ship, goods, or freight, comprehends general
have least gained by them. It is a form of the adage that necesaverage losses of every description, whether by throwing over
sity begets invention. On the one hand, the prosperous are
content usually with the old ways, so that the rare exceptions of board cargo, or by cutting away or throwing overboard anything belonging to or on board of a ship, or other voluntary loss of
reformers amid prosperity display the double merit of purer motives property incurred for the general safety.
and loftier ends; their action must be without pressure, and their The property saved is made to contribute proportionately
aims unselfish, if not fully social. And if Sir Roundell Palmer towards the loss by jettison, the value of the jettisoned articles
can pursue to its natural results the project now announced by thus restored being also included among the sums liable to such
the name of legal education, he will leave the only name in your contribution.
jurisprudence that could rank with Bacon. The loss of freight of goods jettisoned is likewise paid in
For both these personal and public reasons, I should first im general average, and is made to contribute its proportion ; but
press upon your readers this close connection of law reform with if goods be shipped in lieu of those which were thrown over
legal education. All your failures in the former have been due to board, the freight thereof, less the charges of shipping them, should
oversight of this conjunction; of the plain truth that, to reform go in reduction of the loss of freight on the jettisoned goods.
the law, you must first reform the lawyers. The present moveWhen any of the jettisoned goods are recovered, their value or
ment is thus the only serious step towards law reform, of all the proceeds of sa le, less the salvage charges recovering them, must
long succession of Royal Commissions since the days of Bacon. To of course be deducted from the amount made good in general
reform the law is even a logical impossibility while those who make
and minister it remain unreformed; and with you it is the lawyers If a ship puts back to her loading port after jettison of part of
who, either through Parliament or the Bench, really give the law and the goods jettisoned are there replaced by the
its form, in manufacture as in ministration. How could you, then, merchant under the original contract of affreightment, and the ship
expect conflicting effects from the same agency ? or hope the afterwards completes her voyage, in adjusting the general average
ignorance that deformed, could have the science to reform ACat the port of destination, the actual cost of purchasing and putting
cordingly, it would be libel on the memory of the lawyers and on board the goods shipped in lieu of those jettisoned is the
statesmen, who wrought upon or instituted the Commissions amount to be made good in general average, but the contributory
alluded to—along from Bacon, who alone perhaps had the usual interests are the net values of ship, cargo, and freight, on arrival,
honesty of genius, to the Digest-of-Law instance under present inincluding the net arrived value and freight of the jettisoned goods.
cubation-to believe that they expected any results much more The cost of replacing property lost by jettison in the condition
serious than a job to some political lawyers, or a sop to the grumin which it would have come into the owner's hands if not
bling public. jettisoned, is the true measure of indemnity. That is the
The reason of this tie and order of improvement between law amount expended to avert a total loss of ship, cargo, and freight.
and lawyers is, however, although plain in principle, not withThe property jettisoned is considered as if it had never been out difficulty in the concrete case, owing, no doubt, to the lost—as if it still remained on board of the ship when she arrives enormous magnitude and complication of the subject matter. It with the rest of the cargo at the port of destination: (Emerigon, might be reduced to the singleness of the old puzzle of the ch. 12, s. 4:3, Translation by Meredith, 504; Fletcher v. Alexander, naturalists respecting the priority of the bird or the egg. It is L. Rep. 3 C. P. 387.)
admitted that your Bar laid the chaotic egg of our jurisprudence; Yet it has been recently decided that underwriters are primarily
and this in turn reproduces the lawyers in the typic species. But liable for the insured value of jettisoned goods, as having been legal education supervenes to break this vicious circle. And how ? totally lost; with a right of recourse against the other con
This, in fact, is still a problem in natural science as in jurisprutributors. The various inequitable results, the disturbance in the
dence. Doctor Darwin has lately solved it by throwing the egg practice of average, and the diversity of opinion arising from this quite overboard, and referring for the transformations of the bird new rule of law, it is not convenient here to discuss.
to chance or nature. But between the egg and bird there has The jettison of cargo stowed on deck is, as an ordinary rule, been gradually unwinding itself onward through the past excepted from the amount to be contributed for in general eternity, a spiral of development of which we see but the expandaverage; but deck cargo saved contributes to general average :
ing end, which is therefore taken for a closed circle, and which (Sterens on Average, 10.) There is a well-known usage of
masks the grades of continuity back to the unity of origin. This carrying wood goods on deck in voyages from the Baltic, the
interlying range of progress is, in man or mind, what we call White Sea, and British North America, and therefore the education; as attested by the word itself, which denotes just this jettison of wood goods from deck on such a voyage is con.
evolution. And the season of education, in lawyers especially, is tributed for by all who are parties to the stowage of cargo on deck.
youth. A school for adults, set up in Lincoln's Inn, would be of But, on the other hand, there is an established usage that under- poor promise. The lawyers indeed of all regions must, for reform, writers do not pay general average for goods stowed on deck " be caught young," in accordance with Johnson's recipe for without express stipulation in the policies of insurance: (Miller v. 'making something of Scotchmen.” Titherington, 6 H. & N. 278; 3 L. T. Rep. N. S. 893; 7 H. & N. But the wisdom of the course may be shown more familiarly, 954; 9 L. T. Rep. N. S. 231.) For convenience, therefore, in and perhaps gravely. There are two factors to the questionstatements of average, the claim for jettison of deck cargo re- the law and the lawyers. But how reform first the law, which is an ceives the name of “ General Contribution” to distinguish it from inert and abstract body, less prone to method than to disorder, the general average for which all underwriters are liable. and which of itself takes this last direction? It can have (To be continued).
form then but from the active element, the lawyers; and who
are also the self-developing and sole ingredient in our power. But these, in order to reform the law, must be themselves reformed, as being naturally of a piece with the defects of the jurisprudence.
It is true a worthy member of the fraternity, and also of Parliament, objected to this project on its introduction in the last session, this very correlation of the lawyers to the law. “The English lawyers,” said he, “and their educations are the fittest possible for English law;" and I fear there were few members who could expose this hoary sophism. that, for instance, pickpockets must not be legally reformed because already the fittest class in the community for picking pockets. The test of fitness is left to oscilļate between the agent and subject, where it will apply as well to matters vicious as to the virtuous, and omits the bearing of both conjointly upon the object which gives the character. The question is not whether the English lawyers be already fittest for the English law, or the law for the lawyers; but if both be fittest for the public good. In a community where picking pockets was to be the object of society, the light-fingered experts would be Lord Chancellors and Justices. And this incidental sample, besides illustrating the main thesis, may prepare also against a repetition of this vulgar wisdom in the ensuing Parliament.
It may be urged that, in other systems, the course however has been otherwise. The Roman law, I may be told, was codified by its own native lawyers without any reinforcement from education for the achievment. I would beg to deny the objection in both its clauses. The Roman law was never codified at all by Roman lawyers, nor by any lawyers without a special education or its equivalent. Nor would it ever have been reformed by the native lawyers without such preparation, as proved abundantly by their vain tentatives almost as numerous as the English. Already in the age of Livy the heap had swollen to the mass of cartloads, though that was half a dozen centuries in advance of Justinian. And when this great reform at length came, it was through the Greeks, as through them likewise had, a thousand years since, the great reform called the Twelve Tables.
In fact, this difference of race and culture had the force of special education. The Greeks had the advantage of a higher philosophic training, through which it was they kept their own jurisprudence from coarse amassment; while, however, it lacked the logical compactness of the Roman law. This might be said to excel in tissue, as the Greek law did in frame or form. It is exactly the relation between logic and dialectic. The Greeks were thus the men to supply the Roman law with form, being also alien to it in sympathy, and free to treat it through the pure intellect. Thus it was that De Lolme had written best on your constitution, and the Americans were lessoned likewise in things, by another Frenchman. But Trebonian and his fellow Greeks had, along with this advantage, a serious drawback in the more concrete subject of jurisprudence, of which the effects must be familiar to proficients in the Institutes. The frame is here so stringent as to rend the tissues of the Roman law. To combine sympathy with intellect, and habit with acquirement is, then, the mixture which would carry off all points, as the poet has it. But this is just what may be done, if at all, by legal education.
But look, it may be still urged, at your own American Bar. Have they not rid themselves of large masses of the maternal rubbish, and codified the laws and jurisprudence of several states; and this without the adjuvant of special education? The educa. tion, I admit, remains as low, or lower than the English. But I must still deny those codes to be due solely to the lawyers. The fundamentals of the problem were altered in America. The colonists had left behind them that traditional chaos of interests, which either forms or forces the English lawyers to the long endurance. And even so, they could not codify the mainly personal jurisprudence, but for another accident, such as befel the Roman law. The modicum of method in constitution, code, or class book, attained by the Americans, is of Franco-Spanish origin; or taken from the Southern States, with their laws and writers of these extractions. Those improvements that reach you here are manufactures at second hand, but with the advantage of Northern sympathy in working into them the raw material. So that the American advances are a refined case of our previous results, going to show that real . reform must depend on legal education.
Why Sir R. Palmer should have veiled this end it seems hard to comprehend, unless through fear by the resistance of the lower ranks of the Profession. These would fear, he may think, to have themselves reformed, but not the law. For my part, in his place, I should have little fear or care for it. The aim, as now laid open, involves the vastest of national interests, and the public are effectual masters of the lawyers and the law makers. The Americans say of their ancestors that they have two characters, which are apparently antagonistic. I mean trimming and thoroughness. If you leave them, it is said, to routine they will trim and truck and trick indefinitely; but make them see at last, or even at first the real difficulty, and you will find them breast it with the proportioned energy and amplitude.
I was forcibly reminded of these dicta the other day in passing from the precincts of your Temple towards the river. What a metamorphosis ! I remembered that river side as an interminable tract of all that is obstructive, unsightly, and unseemly--dirty barge docks, noisome cesspools, rotting animals, and Scotch dukes. The London people could for centuries see no harm in all this. No one fell into the cesspools, unless by felo de se. The miasma was not caught in flagrante delicto of striking down people by the dozen in the streets. Nor did the ducal borderers levy black-mail on the river trade. In short, then, “ the thing worked well"quite as do the lawyers and law.
But at length it was the other day found that it would not work at all. A neighbouring region of this immense factory called London got quite clogged, and it was seen that the sole relief for it must be the Thames Embankment; and forthwith the same people set to work upon this vast task, and not merely achieve the expedient, but convert the nuisance into an ornament, an endless tract of moulded granite, gravelled walks, and planted gardens, which beyond anything else in London would announce the capital of a great empire.
And so it may be found with the lawyers and law of the same people if Sir R. Palmer but pursue his
oject, and we all second the noble enterprise.
NOTES OF THE WEEK. gave up a part of the property in favour of the
Tuesday, Dec. 5. nieces, the landlord would not accept him_as
CALISHER V. FORBES. COURT OF APPEAL IN CHANCERY.
tenant, and he would lose the farming stock. The Priority — Notice — Sale of commission – Army nephew thereupon, without having had any inde
agent. Monday, Dec. 4.
pendent advice, executed a deed whereby he gave (Before the LORDS JUSTICES.)
up a portion of the property in favour of the This was an appeal from a decision of the Master
testator's nieces and the other legatees under the of the Rolls as to the order of priority of several ELLIS V. BARKER.
will, and he was afterwards accepted as tenant of persons entitled to charges on the proceeds of the Trustee-Coercion-Family arrangement--Suit to the farm. On a bill by the nephew, the Master of sale of the commission of the defendant, who was set aside deed.
the Rolls set aside the deed and ordered the formerly a lieutenant in the 92nd Highlanders. This was an appeal from an order of the Master of where the facts of the case are fully stated.) The trustees to pay the costs (see 25 L. T. Rep. N. S. 7,
On the 29th March 1869, the plaintiff discounted
a bill for 621. 10s. for the defendant, who on the the Rolls setting aside a deed on the ground that it trustees appealed from this decision.
same day agreed to charge the proceeds of the had been executed under coercion. Francis Ellis, who was tenant from year to year of a farm in
The Solicitor-General (Jessel, Q. C.), Fry, Q. C., ther advances, together with interest and costs:
sale of his commission with that amount and fur. Lincolnshire, devised his real estate to his nephew, and Bedwell for the appellants. John Ellis, and authorised his trustees to give up
Without calling upon
This bill not being paid at maturity, the defendant the tenancy of the farm in favour of his nephew, who appeared for the plaintiff, and
Sir Richard Baggallay, Q. C.. and Macnaghten, being the amount of the former bill, with interest
accepted another bill on the
2nd Aug. for 88l. 14s. provided the landlord would accept him as tenant, and in that event bequeathed to him all the stock
Coltman, who appeared for the testator's discounted another bill for 251. for the defendant,
and costs. On the 18th Sept. 1869, the plaintiff on the farm; and the testator directed his trustees
nieces, to set apart a certain sum out of his personal
Their LORDSHIPS held that the decision of the had been discounted on the 13th Aug. 1869 for the
and afterwards he bought up a bill for 801. which estate in favour of his nieces. On the testator's Master of the Rolls was perfectly right both as to defendant by one Benjamin. death it turned out that if a mortgage to which the the relief granted and as to the costs of the suit, 1869, the defendant wrote to Messrs. Hopkinson real estate was subject were paid out of the per. and they dismissed the appeal with costs. sonalty, and if the nephew took the farming stock, Solicitors for the appellants, Scott and Co., for his commission with 621. 10s. which had been ad
and Sons, the agents of his regiment, charging nothing would remain for the nieces, and accord Henry Liversedge, Winterton.
vanced to him by one Rubenstein. On the ingly one of the trustees, who was also agent to Solicitors for the plaintiff
, R. Lambert and Son, 23rd July 1869, the defendant wrote a similar the landlord, informed the nephew that unless he | for Shepherd, Crust, and Todd, Beverley.
letter to the agents charging his commission with 300l. which had been advanced to him contended that his revocation of his application witnesses in support of her statements as to the by the Oriental Bank Corporation. The defen. for shares was valid.
On the 4th June
husband's faculties, and to dispense with the dant's retirement from his regiment was gazetted The VICE-CHANCELLOR said that the miscar- notice required by Rule 89 to be given to the hus, on the 7th Dec. 1869, and on the 9th of the same riage of the letter was due solely to Townsend's band. The husband has not answered the original month the purchase-money of his commission, omitting to state bis full address in the form of petition, nor the petition for alimony, and as he amounting to 5001., was paid to Hopkinson and application for shares furnished to him, and he was supposed to be keeping out of the way the Sons. On the evening of Saturday the 7th Dec., ought not now to take advantage of his own court had ordered substituted service of both. after office hours, the Oriental Bank Corporation omission. The notice of allotment must be con- Under the circumstances left a notice in writing at Hopkinson and Son's sidered as having been duly delivered to him on the office, requiring them not to part with the 5001. 16th March, and the contract to take the shares without notice.
The Court permitted the witness to be called without paying their charge of 3001. At the open as being then complete. He must, therefore, be
Attorney for the petitioner, Ingledev. ing of their office on Monday morning, similar placed
on the list of contributories, and the order notices were served by the plaintiff and Ruben. made in chambers must be discharged. stein and other persons. On a bill to decide the Solicitors : G. S. and H. Brandon ; De Jersey
SARGENT v. SARGENT. priorities, the Master of the Rolls held that and Micklem.
This was a similar case, the respondent having Rubenstein was entitled to the first charge, that
answered neither the petition for dissolution nor the plaintiff, in respect of his bill for 88l. 14s.,
for alimony. No order, however, had been made came next; then another incumbrance, then the
V. C. BACON'S COURT.
for substituted service. plaintiff in respect of his other advances, and that
Wednesday, Dec. 6.
The COURT declined to allow the witnesses to the Oriental Bank came last of all, on the ground that their notice to Hopkinson and Sons was of no Interlocutory injunction Colourable imitation the chitico en lamik.e.
ISAACSON v. THOMPSON.
be examined, but ordered substituted service of value, as it was given before the fund came into their hands. The Oriental Bank and the plaintiff This was a motion for an interlocutory injano
, Ewbank appealed. Sir Richard Baggallay, Q.C. and Freeman for tion to restrain the defendant from representing SANDERSON v. SANDERSON AND STEPHENS AND
HiscoX. the Oriental Bank.
that his shops were the shops of Madame Elise, or Swanston, Q.C. and Kisch, for the plaintiff.
in any way connected with her business, and from Matrimonial suit-Wife's application to amend, Horton Smith, for Rubenstein.
using any name, inscription, or device to her answer, by praying for dissolution instead Chitty for other parties.
mislead the public, or to obtain for the defen. of judicial separation, refused.
dant custom intended for the plaintiff. The This was a husband's petition for a dissolution of Their LORDSHIPS held that the Oriental Bank's plaintiff, who is the husband of Madame Elise, his marriage on the ground of his wife's adultery; potice, having been left at the office after business carries on the business of a milliner at 170, Regent. The respondent in her answer charged her husband hours on Saturday evening, must be treated as street, under the style of Madame Elise. The with adultery; and also made a general allegation having been given on Monday morning at the defendant carries on a similar business at 59, of cruelty against him. In the prayer of her an. same time as the others, and that the priorities of Brompton-road,
under the name of Best. It appears swer she asked for a judicial separation. Subse; all the incumbrancers 'must therefore be accord. that in 1870 'the defendant set up a second quently she gave particulars of the cruelty, and ing to the dates of their securities. The plaintiff millinery establishment at 252, Regent-street, alleged specific acts of violence. was first in date, and his charge being for further with the name "E. Louise " painted over the door, Petherham now moved to alter her answer by advances, covered the bill for 881. 14s., and that and shortly afterwards a third shop at 210, substituting a prayer for dissolution for the prayer for 25l., but not the 801. bill bought up by him. Regent.street, with “ Agnes Ellis" painted over for judicial separation. Rubenstein was entitled to the second charge, and the door. The plaintiff charged that these names the Oriental Bank came next. No costs of the were chosen as colourable imitations in sound of
G. Browne, for the husband, opposed. appeal.
The Court declined to grant the motion on the Solicitors: Fuller and Saltwell; Sidney.
the name of Madame Elise, and he produced the ground that cruelty was a circumstance within evidence of several people who had boen thus led the wife's knowledge from the first; and that as
into error. The first of such instances was in Dec. originally pleaded it did not amount to legal ROLLS COURT.
1870. Evidence was also produced of letters in, cruelty. At the same time it intimated that, if at
tended for Madame Elise which had been delivered the hearing the facts amounted to legal cruelty, Monday, Dec. 4.
by mistake at the
defendant's shops, and had not it would entertain an application to vary the GIBBS v. GRADY. been forwarded. The defendant alleged that the
prayer of the petitioner. Marriage settlement - Volunteers — Inoperative two shops in Regent-street were established for
Solicitor for the petitioner, R. W. Roberts. trusts. the benefit of two of his daughters, whose Christian
Solicitor for the respondent, Price. By a settlement made in 1815, on the marriage of names were Emma Louise and Agnes Ellis; and the plaintiff, then an infant, certain property, he denied that there was any attempt at frauda.
COURT OF ADMIRALTY. consisting of choses in action belonging to her, lent imitation. The bill was filed in Nov. 1871. were settled upon trust for her husband for life, Kay, Q.C. and Marten in support of the motion.
Tuesday, Dec. 5. then to the plaintiff for life, with remainder to the E. K. Karslake, Q.C. and W. W. Karslake for
THE THURINGIA. children of the marriage, if'any, and in default of the defendant.
Collision Abandonment — Registrar's reportchildren to the next of kin of the plaintiff, The VICE-CHANCELLOR said that on the evi.
Motion for further evidence-Affidavit-Practice. omitting the usual power of appointment by deed dence he should have felt it his duty to grant an THE Thuringia came into collision with the J. B. or will. The plaintiff, her husband having died injunction restraining the defendant from using Watt, and the latter vessel was much injured, and and there being no children of the marriage, filed the names in question, if the plaintiff had made her bill praying that the trusts of the settlement an earlier application. But he considered that afterwards lost. The Thuringia was found solely
was abandoned by her master and crew, and was in favour of her next of kin might be declared void there had been unwarrantable delay on the part of to blame, and the matter was referred to the and not binding upon her, and that she was the plaintiff, and he should, therefore, order the registrar to report whether the abandonment was entitled to the trust fund absolutely. motion to stand over till the hearing of the cause. justifiable, and to assess the damages.
The Fischer for the plaintiff.
Solicitors : Dodd and Longstafe; A. Gordon registrar heard the evidence of witnesses, and Pontifex for the defendants, the trustees. Briton.
admitted the affidavit of one Leney, the second Lord ROMILLY said the settlement could not be
captain of a French man-of-war, who went on reformed, but that the trusts for collaterals being COURT FOR DIVORCE AND MATRIMONIAL | board soon after the collision, and whose opinion merely voluntary, and not coming under the con.
was that she might have been got ashore. This sideration of marriage, were inoperative, and the plaintiff was entitled to deal with the property as
Tuesday, Dec. 5.
witness was not produced for cross-examination, she pleased.
(Before Lord PENZANCE, J.O.)
but it did not appear that the plaintiffs did more
than object to the reception of the evidence, on Solicitor, William Bristow.
PARKES V. PARKES.
the ground that they could not cross-examine. Alimony – Permission refused to cross-examine They did not apply for an adjournment, nor take V.C. MALINS' COURT.
husband on an answer which was only alleged to it when offered. Evidence was also given that be incorrect-Rule 85.
she might have been temporarily repaired at Dec. 4 and 6. This was a petition for alimony, and
Heligoland, which was about eighteen miles from Re THE IMPERIAL LAND COMPANY OF G. Browne applied for an order that the hug. the place of the collision. The registrar reported
MARSEILLES (TOWNSEND's CASE). band should attend and be cross-examined on his that he found that the abandonment was not jus. Company-Contributory-Allotment of shares- answer, on the ground that it was inconsistent tifiable ; that the ship might have been saved, and
Notice of, sent to wrong addressRevocation with the facts. This he proposed to show by read that the plaintiffs were only entitled to recover of application for shares.
ing affidavits, and relied on the 85th Rule, which the actual damage done by the collision. The This was a motion to discharge an order which says that a wife, if not satisfied with the hus. plaintiffs objected to the registrar's report, and had been made in chambers removing Joseph band's answer, may object to the same as in. now moved the court to hear further evidence on
the objection. They filed an affidavit made by Henry, Townsend, of 36, Westland-row, Dublin, sufficient, and apply to the Judge Ordinary on from the list of contributories of the above com- motion to order him to give a further and their proctor, alleging surprise, and that he would pany, now in conrse of being wound-up. On the fuller answer, and to order his attendance on the be able to produce evidence which would show 6th March 1866, Townsend applied through his hearing of the petition, for the purpose of being that the opinion of Leney and the other evidence,
was founded on a mistaken notion of the fact, but brokers, Woodcock and Co., of, Dublin, for thirty examined thereon, sbares in the company, giving his address as “ 36,
The COURT.-You must show the inconsistency did not state the nature of that evidence. Westland-row" only, and paid a deposit of 11. per on the face of the affidavits, and not by affidavits. Butt, Q.C. and Clarkson, moved for the plain. share. On the 15th March, an allotment was
If the husband's answer is meagre and insuffi. tiffs. made to him of fifteen shares, and on the 16th cient, then you can call upon him for a fuller and Sir J. Karslake, Q.C. and Phillimore for the de. March the notice of the allotment was posted and further answer-it is only when the answer is fendants. addressed to Townsend at “ 36, Westland-row," manifestly evasive that you can ask to have him
The Court refused to allow the application on the ornitting the word “ Dublin.” The letter was re- cross-examined on his answer.
ground that the plaintiffs had had ample opportu. turned to the company through the_dead-letter office, and was then reposted to Townsend's, Attorney for petitioner, Pyke.
nity to produce the requisite evidence before tho
registrar. The only case in which the court will brokers, at Dublin, and forwarded by them to Attorney for respondent, Martin.
admit further evidence is where parties can satisfy him. On the 20th March, Townsend wrote to the
the court that they have used due diligence to pro. company withdrawing his application for shares,
ROBINSON v. ROBINSON.
cure the evidence they seek to produce in time for and requesting the return of his deposit.
Notice to examine witnesses in support of petition the reference, and it has been impossible to do so. Glasse, Q C. and Higgins, for the official liqui.
for alimony dispensed with.
Thə affidavit filed upon such a motion must set dator, contended that there was a binding contract This was a petition for alimony pending a suit out clearly the witnesses who are to be brought on Townsend to take shares and that he ought to for a judicial separation on the ground of deser. forward, and the nature of their evidence. remain on the of contributories. tion.
Proctors for the plaintiffs, Dyke and Stokes. Cotton, Q.C. and Locock Webb, for Townsend, Inderwick proposed on behalf of the wife to call Proctors for the defendants, Pritchard and Sons.
Auctioneers whose names
---sold for 3007.
.ESTATE AND INVESTMENT former wife died in the lifetime of her husband, der to her husband, and subject thereto, and to JOURNAL.
and at his death the plaintiff bona fide claimed a the payment of some other annuities, to accumu. share of his property as his widow. To avoid late the rents for twenty-one years after his death,
litigation the defendants, who had taken out and out of the annuities from time to time to pay STOCK AND SHARE MARKETS. letters of administration, entered into the follow off the incumbrances on his estates, and his debts The following are the fluctuations of the week. ing agreement with the plaintiff, in her maiden and legacies. And he declared that the accu
name : “In consideration of your abstaining from mulations should be primarily and exclusively ENGLISK FUNDS, Fri, Sat. Mon, Tues Wed. Thu
making, and forbearing to make, any claim against charged with the incumbrances, debts, and
our late father's estate, we hereby respectively legacies, so as not to postpone their payment by Bank of England Stock 239
239 3 # Cent. Red. Ann.... 91a 91a 91 919 918 91 undertake to pay you over one-third part of the any other means, but so as that the capital of his 3 Cent. Cons. Ann.. 93% 922 92 921 911 921a net value and proceeds of the estate up to the estate, real, and personal, which might have been New 21 3 Cent. Ann...
time of his decease.” Held (following the deci. employed in such payment, might be restored ont do, Jan. 1894.
sion in Callisher v. Bischoffsheim (L. Rep. 5 Q. B. of the accumulations. The accumulation was to Do. 3} Bc. Jan. 1891
419), that the agreement was founded upon a cease on the death of the survivor of A. and her New 3 Cent. Ann. 912 913 913 914 914 914 valid consideration, and was therefore binding husband, and the attainment of twenty-one by 5 Cents. Jan. 1873 Annuities April 5, 1885
upon the defendants : (Ockford v. Barelli and her eldest son, who would, under the provisions Do, exp. Jan. 1880 another, 25 L. T. Rep. N. S. 504. Ex.)
of the will, thereupon become entitled in pos. Metropolitan Board of
WILL-PROSECUTION-EXECUTORS EXCLUDED session to the estates. He empowered his Works 31 7 c. Stock. 97 960 96ļa
FROM PROBATE-ADMINISTRATION WITH WILL trustees during the twenty-one years to lay out Corporation of London
ANNEXED—20 & 21 Vict. c. 77, s. 71.- A testator any part of the accumulation in purchasing estates 4 per c. Bonds....... Rad Sea Tele. Ann. 1908
left two testimentary papers, the second of which to be held on the same trusts as the estates Consols, for Acc.... 927 92ja 92 a 92ja 924a 92 a varied the disposition of his property, but neither devised by the will. He directed that as soon as India 57? Ceut, for Acc.
appointed new executors nor revoked the appoint all the incumbrances had been paid off A.'s annuity Do. 5 Ceut. July
ment of the first will. The court included both should be increased to 80001. The residue of his 1880
1301209 1105a papers in the probate, as together forming the last personal estate was to be held on trust to disIndia Stock, 1874
207 India 4 7? C'
. Oct. 1888 103 1037 1032 1037 103 1038 will of the deceased, but as one of the executors charge his incumbrances on his real estates, and India Stock, 5 # Cent.
was insane, and the other was a seafaring man any surplus was to be accumulated as the rents of Jan. 7, 1870
engaged on a voyage to the East Indies, it passed the real estate, and the accumulations to be held on India Bonds (10001.) ...
them both over and made a grant of administra- similar trusts. At the time of the testator's Do. (under 10001.) 21s.b 22s.b 256.b
tion, with the will annexed, to a third person, death his personalty exceeded 77,0001., while his Ex. Bills, 1001..
under the 73rd section of the Probate Act: "(In the debts, legacies, and incumbrances amounted to 5001.
18.b Do. 1001. and 2001.
goods of S. C. D. Lewis, 25 L. T. Rep. N. S. 510. only 70,0001. The income of the whole pro3c. 58.b Prob.)
perty, after paying all the life annuities, except India Enfaced Paper
NULLITY INCAPACITY OF WOMAN No A.'s, exceeded 13,0001. The trustees, however, 57 Cent. July 1880
STRUCTURAL DEFECT PRACTICAL IMPOSSI. | did not at once pay off all the incumbrances, but Do. Jan. 1872
BILITY OF CONSUMMATION.- Where the facts retained some of the personal estate, which was a Ex. Div. Premium.
disclosed a practical impossibility of consumma. invested at a high rate of interest, and paid A.'s
tion, even though there may be no structural im- annuity at the rate of 80001. from the death of the REPORTS OF SALES.
pediment, the court will interfere. The parties testator. The trustees had in hand nearly enough [Note. - The reports of the Estate Exchange are officially had lived together two years and ten months with personalty to pay off all the incumbrances: Held supplied in the following list.
out consummation, and the husband was admitted (reversing a decision of the Master of the Rolls), are registered there will oblige by reports of their own Bales.)
to be able and anxious to consummate. The wife that the trustees were justified in paying A.'s
had no structural defect, but she suffered from ex. annuity at the rate of 80001. a-year, and were Tuesday, Nov. 28.
cessive sensibility arising from hysteria, which made entitled to be allowed such payments in their By Messrs. DEBENHAM, TEwson, and FARMER, at the Mart, intercourse repugnaut to her, and she would not accounts:(Astley v. The Earl of Essex, 25 L. T. Rep Highbury. No. 12, Leigh-road, term 88 years-sold for 6501.
submit to the remedios prescribed. On the ground N. S. 470. Chan.) Wednesday, Nov. 29.
that consummation was practically impossible, By Messrs. GADSDEX, Ellis, and Co., at the Mart. and there being no doubt as to the bona files of
BAIL COURT. Dorset-square. No. 6, Milton-street, term 68 years---sold for the suit, the court granted a decree of nullity: (G.
Saturday, Nov. 25. East India Dock-road. No. 1, Brunswick-road, freehold
v. G., 25 L. T. Rep. N. S. 510. Div.) sold for 1307. OPTION TO PURCHAŞE-NON-PERFORMANCE OF
(Before Lush, and HANNEN, JJ.) Tuesday, Dec. 5. CONDITION.-By a deed executed in 1857, in pur.
Re EDWARD L. LEVY. By Messrs. FAREBROTHER, CLARK, and Co., at the Mart.
suance of a preliminary agreement and an Act of Applicatiou by attorney to renew certificate – Camberwell-road. No. 47, Brunswick-terrace, term 51 years Parliament confirming the same, certain water
Criminal act of attorney. Lisson-grove. An improved ground-rent of 111. 158. per works and property were transferred by an old Huddleston--- My lords, in the matter of annum, secured on No. 8, Devonshire-street, term 15 years company to a new company, upon certain terms, Edward Lawrence Levy, I have to apply for a rule - sold for 2031.
under which the latter was to pay to the former a to entitle the applicant to renew his certificate. rent equal to interest upon the share capital of My lords, Mr. Levy says he was duly admitted
the former at 5 per cent., with a clause for reSOLICITORS' JOURNAL.
an attorney in the year 1848, and took out a cerducing the rate of interest to 4 per cent. in tificate for that year, and from that time to the
certain events. The deed contained a proviso month of Dec. 1866 he continued duly to take out NOTES OF NEW DECISIONS.
that, if the transferees desirous of becoming abso. his certificate, that was, for a period of 18 years. PRACTICE – TRAVERSING NOTE — SERVICE lute owners of the works “should, on or before In April 1866, he says, in consequence of his hav. APPEARANCE ENTERED BY PLAINTIFF FOR DE- any 25th day of Dec., after having given to the ing by recent speculations and non-receipt of cerFENDANT-ORDER.- Where appearance has been old company six calendar months' previous notice tain moneys from Australia, become involved in entered by the plaintiff for the defendant, leave of their desire to avail themselves of the op- pecuniary difficulties, he left England and went to will be granted for service of a traversing note tion thereby given, pay unto the old company reside in Paris, and in consequence of labouring upon the defendant: (Hill v. Hill, 25, L. T. Rep. the amount of their share capital, the party under a disease from which he had suffered for N. S. 490. V. C. W.)
making such payment should thereupon become several years previously, and which was aug. Lost WILL-ENTRY AGAINST INTEREST AD. entitled to the works freed from the rent thereby mented by anxiety, he was advised to go to SwitMITTED IN PROOF OF EXECUTION.- Where a reserved. Notice to purchase was given in due zerland, which he accordingly did, and for upwill executed before the Wills Act was lost, and course, but the money was not paid at the wards of two years after so leaving England, he there was no surviving witness of its execu- time specified in the notice. Held, that the was unable to attend to any business whatever, tion, the court, following Higham v. Ridgway, right to purchase had not been lost by the non- and was unoccupied. That about a fortnight admitted as proof an entry from the ledger of the payment of the money : (Ward and Wolverhamp- after his so leaving England, a warrant was apsolicitor who made the will, and granted probate ton Waterworks Company, 25 L. T. Rep. N. S. plied for and obtained against him for forging of a copy: (In the Goods of Thomas, 25 L. T. Rep. 487. V.C. B.)
an acceptance to a bill of exchange. Subsequently N. S. 509. Prob. Ct.)
SURETY-POLICY OF INSURANCE-DEED OF remittances arrived from Australia, which enabled CERTIFICATE FOR COSTS-ACTION TO TRY A
ASSIGNMENT - FORECLOSURE. - Where A. and him to pay off and discharge a large part of his RIGHT-30 & 31 VICT. C. 142, s. 5.- Where a
B. jointly interested in a policy of assurance liabilities by a bill of sale on his house of furni. plaintiff in an action of tort recovers a sum under agreed to keep it up for their mutual benefit, ture and household effects. Then he says, in Feb. iol., and the judge who tried the cause refuses to paying the premium in certain proportions, and 1869 he returned to England, and went to reside certify under 30 & 31 Vict. c. 142, s. 5, the court B. ceasing to pay his portion of the premium, at Liverpool, and was there for six months, from will interfere with the discretion of the judge if the whole was paid by A.: Hold, that A. was en May to Nov. 1869, engaged and employed as the action involves a question of right, but they titled to a foreclosure decree against B. A deed principal clerk to á Mr. Turner, an auctioneer, will not so interfere if the action be for damages of assignment contained a clause providing that but not being fully acquainted therewith he left. only, Hatch v. Lewis, 5 L. T. Rep. N. S. 254, dis. it should not affect any surety nor any security On his leaving such engagement he was for about tinguished: (Hinde v. Sheppard and other's, 25 which any of the creditors might have, but if such three months employed as a temporary clerk to L. T. Rep. N. S. 500. Ex.)
security should be enforcible against the debtor or a šír. Goodere, an attorney, and that subsequently DEMURRER PARTIES -SUIT TO RECOVER
his estate, then the creditor (unless he should con- to such employment he was on the 1st of July Assets—RESIDUARY LEGATEES- Executors.- receive dividends upon so much only of his secured up to London to answer such charge, and was
sent to abandon his security) should be entitled to 1870 arrested on the said warrant, and brought The executors are the proper persons to sue to debts as might remain after such security should duly committed for trial on such charge, and subrecover assets belonging to a testator's estate. have been realised, or after credit should have sequently tried thereon at the Old Bailey sessions Accordingly, where residuary legatees filed a bill to recover a certain fund alleged to belong to their been given for the full value thereof; and a credi- of July 1870, and that no influence either directly testator's estate, a demurrer was allowed with valueless, proved for the full amount of his debt fully established the truth of his defonce, and
tor, holding a policy of assurance at that time or indirectly was used on his behalf, but that he costs, and leave to amend was refused : Walker v. Walker, 25 L. T. Rep. N. S. 481. M. R.)
and received a dividend thereon: Held, that there was acquitted and discharged, and a certificate
was no evidence of the creditor's intention to of such acquittal is annexed to the affadavit. AGREEMENT FOR COMPROMISING A DISPUTED abandon his security: (Parker v. Marquis of Angle. That after his acquittal in the month of Dec. CLAIM-VALIDITY OF, THOUGH THE CLAIM NOT sea, 25 L. T. Rep. N. S. 482. Rolls.)
1870, and up to the time of his death in the month A VALID ONE.—The compromise of a disputed claim, made bona fide, is a good consideration for 'OF TRUSTEE
TRUSTEE—CESTUI QUE Trust — DISCRETION of July, he was clerk to Mr. Cooper, an attorney,
POWERS OF MANAGEMENT OF and since his death he has been, and is clerk to a promise, even although it ultimately appears EstATE.-A testator by his will directed that his Mr. Smith, also an attorney. He says he has a that the claim was wholly unfounded. The plain. debts and legacies should be paid out of his per:
wife and ten children, all of whom are entirely tiff married her uncle, who was the father of the sonal estate, and if that was insufficient, out of dependent upon him for support, which he can two defendants by a former wife, who was living his real estate. He devised his real estates to only do by the aid of his profession. He says he at the time of such marriage, the fact of her being trustees, on trust out of the rents to pay 60001. a has done nothing rendering himself anfit or un. then alive being unknown to the plaintiff ; such year to his ughter A. for her life, with remain. orthy to be restored to practice. He then says