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they incli ne to economy and efficiency combined, they will promote Mr. Justice FITZGERALD. If they can persuade themselves to set aside political prejudices altogether, and to be guided only by the interests of suitors and the wishes of the Profession, by a regard for long services and eminent ability, they will promote Baron FITZGERALD, than whom no worthier successor of the late CHIEF BARON Could be chosen from the ranks of the Irish Bench or Bar." How can Mr. GLADSTONE possibly appoint anybody but Baron FITZGERALD after that? The feeling in Ireland is nevertheless very strong that the judicial strength of the country ought not to be weakened. On the whole the Government is placed in an awkward difficulty by the death of the CHIEF Baron.

A SOMEWHAT novel application was made to the County Court Judge of Birmingham on the 18th ult. An action being brought upon a dishonoured bill, the defendant gave notice of a special defence, which was that he had filed a petition for liquidation, and that his creditors had had a first meeting and passed the usual resolution, and appointed a trustee. No notice of the meeting had been given to the plaintiff, and he had not attended, and he claimed to be entitled to go behind the resolution. His Honour intimated that he had power under 289 of the Bankruptcy Rules to res train the plaintiff from proceeding with the action, and he seemed disposed to make an order there and then. It was suggested, however, that an application to him sitting in Bankruptcy was necessary, and he thereupon adjourned the case to enable such application to be made. The position of the creditor in the County Courts is even more disadvantageous than it is in the Superior Courts. County Court Judges being Judges in Bankruptcy, and adjourning causes from court day to court day, frequently upon slender pretexts, it becomes a matter of impossibility for a creditor to reap the fruits of his diligence if before he gets to trial the debtor liquidates. In the case at Birmingham the resolution was clearly irregular, but the plaintiff was delayed to enable the debtor to call another meeting and pass a proper resolution and obtain a restraining order. This is carrying the power of restraint very far.

THE YEAR 1873.

THE year which has just closed was a remarkable year from a legal point of view. The judicial system which has been the growth of centuries-the great division between equity, the offspring in its recent developments of the power arrogated to themselves by successive Lord Chancellors, and law, the creature of custom and statute extended and explained by judicial decision- has been swept away by the strong hand and overwhelming influence of a Lord Chancellor who accomplished his reform while still a novice in his high office. The Profession and the public during the last twenty years had welcomed small innovations in the respective jurisdictions, the introduction of common law remedies into Chancery, and of equitable defences into common law, without venturing to contemplate the fusion of equity and law. And perhaps the most remarkable circumstance connected with the great measure of reform which will render ever memorable in our legal history the year 1873, is that it does not on its face enact a fusion of two branches of jurisprudence. Its noble and learned author foresaw that if he were to propose to merge the courts and shuffle the Judges together, and submit all questions upon our different laws to courts so merged, there would be an outcry based on reason which might imperil the success of the measure. prudence which many Chancellors of perhaps a higher order of genius than Lord Selborne have lacked, he preserved existing courts and their Judges, keeping the courts distinct even in their nomenclature, and providing for the business to run almost precisely in the grooves in which it has run hitherto.

With a

We feel that when the magnitude of the Judicature Act is regarded, all other measures sink into comparative insignificance. At any other time the Railway and Canal Traffic Act, which took away an important jurisdiction from a common law court, and gave it to commissioners, would have been looked upon as a very important measure-much as the Election Petitions Act of 1868 was considered, seeing that it took from the House of Commons the exercise of important judicial functions, and transferred it to the common law Judges. And the Act of this year is undoubtedly one of great moment, as it seems to facilitate the redress of grievances alleged by and against the great carrying companies of this country. The general legislation of the session we have already noticed in these columns, and we do not propose to carry our readers over the ground again.

Next in importance to the great change in the judicial system of this country is the operation of death and promotion in the ranks of the Judges and the Bar. The death roll for this year exhibits the names of men who could ill be spared. One of the greatest lawyers England ever saw was lost to our court of ultimate appeal in the person of Lord Westbury. The Court of Chancery had scarcely been adorned by the elevation of Sir John Wickens, one of the most scholarly, accomplished, and able men of his generation, before illness incapacitated him to perform the duties of his office, and in a short time terminated fatally. The

Court of Common Pleas lost its Chief Justice, who, while more distinguished at the Bar than on the Bench, was a painstaking and conscientious Judge, and particularly capable in presiding over his Court at Guildhall, which at the time of his appointment was a favourite tribunal for the trial of heavy commercial causes. The Court of Exchequer sustained a serious loss in the retirement of Baron Channell, who died shortly after. An Irish Judge of eminence, Chief Baron Pigot, died at the close of the year; and this completes the list of our judicial losses. Dr. Lushington, for a long period Judge of the Court of Admiralty, died during the year, but he had previously retired from all judicial duties. The other lawyers of position or note abroad and at home, who must be named as having been lost to us, are: Chief Justice Chase (of the United States), Mr. T. Chisholm Anstey, the Hon. Sir George Rose (ex-Judge of the Court of Review), Mr. Thomas Tomlinson, Q.C., Mr. James R. Hope-Scott, Q.C., Mr. T. H. Haddon, Sir Wm. Alexander, attorney-general to the Prince of Wales, Mr. Serjeant Bellasis, Mr. Serjeant O'Brien, Mr. Edward Masson (formerly Attorney-General for Greece), Mr. Dominick M'Causland, Q.C., Mr. Edmund Fitz Moore, Q.C., and the Hon. William Jardine, Judge of the High Court of the NorthWestern Provinces of India.

a successor.

The changes in the Bench and Bar by promotion have been gradual, but in one sense remarkable. When we say gradual, we intend to indicate that Government has not made any appointment until the very last moment. By the retirement of Lord Romilly from the Mastership of the Rolls it became necessary to appoint With some motive, never thoroughly comprehended by the Profession and the public, Lord Selborne assumed the functions of a Judge of first instance, and transacted for a considerable period the business of the court. At length Sir George Jessel was appointed, thereby, although not necessarily, removing from the House of Commons a politician having little influence as a law officer, and who had particularly distinguished himself as the uncompromising opponent of reform in legal education. The Rolls Court proved to be for him a congenial sphere, and the appointment was universally acknowledged the only one which could properly be made. On the retirement of Baron Channell, Mr. Pollock, Q.C., was raised to the Bench in the Court of Exchequer; and the death of Vice-Chancellor Wickens made an opening on the Equity Bench to which the stuffgownsman in the largest practice at the Equity Bar was promoted, and Sir Charles Hall has proved himself to be a capable Judge.

The promotion of Sir George Jessel vacated the office of Solicitor-General, to which, after considerable delay, as usual, a member of the Bar and the House of Commons who had distinguished himself for his ability and independence, was selected, in the person of Mr. Henry James. The Government having sustained a succession of reverses in the constituencies, the re-election of their Solicitor became a matter of vital importance, and rarely has the contest on the re-election of a law officer proved so exciting. The solicitor was re-elected, but when the year closed the return was still threatened by petition. Within a few weeks of Mr. James's appointment and re-election, the Attorney-General (Sir John Coleridge) was raised to the vacancy created by the death of Chief Justice Bovill, and Mr. James became Attorney-General. This rapid rise of one whose reputation at the Bar had not been of the highest order, but who had been known as a shrewd lawyer and clever speaker, is perhaps unparalleled, and deserves a prominent position in the facts of the year. The SolicitorGeneralship vacated by him was filled by the appointment of Mr. Vernon Harcourt, an accomplished debater but not a practical lawyer. Sir John Coleridge, soon after his elevation to the Bench, was further elevated to the House of Lords, to which assembly he will add judicial strength for the remaining period that it will be required, and debating power of an essentially aristocratic order. The business transacted in our courts has been such as to call for little observation. In the Queen's Bench a trial at bar has been in progress for more than half the year, keeping at work all the long vacation three learned Judges and a strong Bar. The case which has occupied the attention of the court is in itself extraordinary, but it has been embellished with forensic asperity and impudence which will make it a subject of curiosity and wonder to coming generations. The case will further be considered as proving the extremely useful purpose which is served by our system of trial by jury, for twelve men have evinced an amount of intelligence and practical knowledge which has done much to facilitate the just determination of the most gigantic prosecution which has ever encumbered a court of law.

It must be considered that speaking generally the legal business in the country has declined, whilst, we believe, both branches of the Profession have considerably added to their numbers. Vigorous measures have been taken during the year by the solicitors to improve the Incorporated Law Society and to bring within it, or into action with it, the important law societies of the provinces. The agitation for improved legal education, which lay dormant during the passage of the Judicature Act, was revived by a deputation to the Lord Chancellor at the close of the year, and promises to lead to legislative action with reference to the Inns of Court.

Here we think we may close the review of the year. The

wisdom of the great change which that year inaugurated will be tested in the immediate future, and to that future it is impossible to look without some anxiety, but nevertheless with great interest and confidence in the power and efficiency of our tribunals.

DUTIES PAYABLE BY REASON OF DEATH. (Continued from p. 141.)

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THE fourth case to which we shall refer, viz., Solicitor-General v. Law Reversionary Interest Society, relates to the Succession Duty Act, and the facts of which as reported are as follows: testatrix by will dated in 1839, devised her real estates to trustees upon trust for her cousin T. for life, with remainder for T.'s children, and in default of children, for W. in fee. W. was a cousin of the testatrix; or, if we may be excused for using the phrase, a 5 per cent. relation. W. first mortgaged his reversion to the defendants, and subsequently conveyed his equity of redemption to trustees for them. W. died in 1870, and T. died, without issue, in 1872, whereupon the defendants became entitled to the possession of the real estate. The Crown claimed the payment from the defendants of succession duty upon the capital value of the property at the rate of 5 per cent. upon the ground that they were successors, and being a body corporate, were liable to have the duty assessed upon the capital in pursuance of sect. 27, the rate being settled by sect. 15. The defendants contended that the 27th section applied to those cases only in which they took real property "as successors," and not as purchasers, that they were not successors within the meaning of the second, the defining section, that the 15th, 20th, 42nd, and 44th sections clearly referred to successors as persons who could not be purchasers, and that as W. was, therefore, the successor, and he had died, no duty was payable by them, as W. would never have been liable to any duty, or at all events that they were only liable to the payment of such duty as would have been payable by the heir at law of the alienor, and upon the basis of his life under sect. 21, but that the Crown had not pointed out the heir at law, so that the rate could not possibly be fixed, as that must be decided by his relationship to W., from whom he would have taken the property by devolution. The court decided that the defendants must pay the duty as claimed by the Crown, as they were within the meaning of the 27th section of the Act, having had a succession vested in them by alienation.

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We consider the decision in the last-mentioned case to have been erroneously given. We cannot agree that a purchaser is a successor, nor can we conceive that a purchaser should have to pay any duty to which his vendor, the person originally entitled, would not have been liable. Under sect. 2, to make a person a successor, he must become entitled to the property "either originally or by way of substitutive limitation," and to show that the framers of the Act did not consider that a purchaser came within sect. 2, we have only to refer to the first part of sect. 15, which provides that in case at the time appointed for the commencement of the Act any reversionary property expectant on death shall be vested by alienation or other derivative title in any person other than the person who shall have been originally entitled thereto under any such disposition or devolution as is mentioned in the 2nd section of this Act, then the person in whom such property shall be so vested shall be chargeable with duty in respect thereof as a succession at the same time and at the same rate as the person so originally entitled would have been chargeable with if no such alienation had been made or derivative title created. The above, we think, clearly explains what person was intended to be pointed at by the use of the word "successor,' viz., the person originally entitled, and it further shows that a purchaser was not considered a successor, as it was thought necessary to make him chargeable with duty which would clearly have been unnecessary if he had been within the 2nd section. We have no hesitation, therefore, in saying that in cases of alienation of reversionary property before the commencement of the Act, no duty would have been payable by the purchaser but for the 15th section, as he is not a successor, because he was not originally entitled, and his vendor was not a successor, because at the commencement of the Act he was not beneficially entitled. Where reversionary property has been sold by the original owner since the commencement of the Act the case is somewhat different. So soon as the Act began the original owner became a successor, and his property became a succession, and in referring to such original owner and his property the second part of the 15th section uses the words successor and succession, but such part speaks of the purchaser as "any other person," not any other successor; the 20th section speaks of "the successor or any person claiming in his right or on his behalf," "in his right" clearly referring to purchasers, and the 42nd and 43rd sections speak in a similar manner; the 44th section speaks of the person in whom the property shall be vested by alienation as someone beside the successor; and the 45th section requires the persons made accountable for duty to send to the Commissioners a true account of the property "together with the names of the successor and predecessor, and their relation to each other." There is no doubt that a purchaser has to pay the same rate of duty as would have been payable had no alienation have taken place. That rate is fixed by sect. 10

according to the degree of consanguinity of the successor to the predecessor; unless, therefore, the names and relationship of the predecessor and the original owner are sent to the commissioners, they cannot find out the rate; but if the word successor referred to any person other than the original owner the rate could not be arrived at. The several sections to which we have referred appear to us clearly and unmistakably to refer to the original owner and not the purchaser when the word successor is used, and we therefore cannot agree that the 27th section had any reference to the question at issue, such section only operating when the defendants became entitled as successors, which it appears to us they had not done in the case before the court. If, therefore, the defendants were not liable upon the basis of the capital value, they could only be liable upon the basis of the life estate of some person who could be brought within the meaning of the word successor as used in the 21st section.

That a purchaser is not a successor appears to have been the view of Martin, B., who, in his judgment in Attorney-General v. Cecil (page 272), referring to sect. 15, says it refers "to an alienation in the ordinary sense, as if, for instance, the late Lord C. had sold the whole of his interest to some third person before it came into possession. In such a case the words of the 2nd section would not be apt to describe the condition of things at the time when the interest fell into possession and the duty became payable, and this clause was therefore inserted in order to prevent the Crown from being deprived of the duty by a transaction of that

nature."

Neither can we agree with the decision of the court upon the question of the rate of duty. Our strong impression is that a purchaser is only liable to the payment of the exact amount of duty, neither more nor less, which the original owner would have paid had he not sold his reversion; and this view seems strongly confirmed by the note to sect. 44 in Mr. Hanson's valuable book upon the Probate, Legacy, and Succession Duties, which is as follows: "Beside the successor.-The successor himself continues to be personally accountable for the duty, although he has sold his succession." The word successor cannot, refer to the purchaser, and the word "continue" appears to us to have been appropriately used and implies a previous liability. It cannot be said that a reversioner would be liable to pay duty upon the capital value where it is clearly laid down by sect. 21 that his life estate is to be the basis of the calculation. Previously to the sale there is no doubt he was only liable to the payment of duty at a rate fixed by his degree of relationship to his predecessor, and upon the basis of his own age, and in the event of his death previously to that of the tenant for life, neither he nor his heir-at-law or devisee would have been liable to any duty by reason of his succession. Can it be said that his liability was increased by the fact of his selling the reversion? If so, the word "continue" is inappropriate.

Assuming, however, that a purchaser is liable to duty to which his vendor would not have been liable, how is that duty to be fixed? The 15th section states that "the duty payable in respect thereof," i.e., the succession of the successor "shall be paid at the same rate and time as the same would have been payable if no such alienation had been made." Assuming, as we before said, that any duty is payable where the reversioner predeceases the tenant for life, which we do not admit, the duty payable can only be that which would have been payable if no alienation had taken place, viz., that which would have been payable by the heir-at-law or devisee of the reversioner. That such duty should be fixed by the relationship of the heir or devisee and the reversioner seems clear from the words of the 2nd section, and from the remarks of Kelly, C. B. and Cleasby, B. in De Lancy's case, and from the decision in Attorney-General v. Cecil. The court in the case under consideration decided that the words "as if no alienation had been made," should be read as equivalent to " as if the alienor had succeeded and had to pay the duty," although they admitted "that taken literally the words would rather point to the real position of things at the death of the tenant for life." That the court acted under the impression, clearly erroneous and contrary to their own decisions in the above-mentioned cases, that the rate of duty payable by the heir of a reversioner who had predeceased the tenant for life was fixed by the heir's relationship to the original settlor, that is the predecessor of the reversioner, and not by the heir's relationship to the reversioner, which was settled by the above cases, appears clear from what is said in their judgment, viz.: “If the remainderman outlived the tenant for life there could be no difficulty; but, if he died before then it would be necessary to find out who would have been his heir, and thus from his relationship to the predecessor get at the rate of duty under sect. 10. It was said by the learned Solicitor-General that the rate payable by the alienor himself would almost always be less, or at all events not greater than the rate payable by his heir, and that the Crown was content to adopt the construction which in general imposes the lower duty." If the predecessor of the reversioner be considered the predecessor of the reversioner's heir we admit that what was ,said by the Solicitor-General would be correct; but as the previous decided cases, which are not referred to in the judgment and therefore must still be considered law, declare that the reversioner shall be his heir's predecessor, the statement of the Solicitor-General appears to be without foundation and incorrect.

That the court adopted the view expressed by the SolicitorGeneral is further confirmed by their decision" that the Crown at all events made out a prima facie case to be paid the duty which would be payable by the alienor, as they need not prove the death of the alienor, and that if events have happened by which the duty would be less the defendants must prove them." It appears, however, from the report that the fact of the reversioner's death was stated in the information, so that it seems to us the Crown showed no title to duty at all, for they did not state who would have been the reversioner's heir-at-law, and unless that individual were pointed out the rate of duty could not possibly be fixed, as that entirely depends upon his degree of relationship to his predecessor, the reversioner. We have always understood that it was the business of the plaintiff to prove his own case, and we have always considered that in matters at variance between the Crown and the subject the latter was to have the benefit of any doubt which might be raised. That such, however, is not always the case appears to have been the opinion of the late Vice-Chancellor Wickens, who, during the course of his extensive practice at the bar, had occasion upon many occasions to study the Act and decisions. In a case before him, Ring v. Jarman (L. Rep. 14 Eq. 363), he stated his opinion to be entirely in favour of the contention on behalf of the subject, "but," added he, "the case appears to me to be covered by authority," referring to the case of Attorney-General v. Gell (3 H. & C. 615) decided by the Court of Exchequer; and he significantly continued: "The Succession Duty Act has in some cases received an interpretation which seems not very consistent with the old canons of construction as applied to statutes laying burthens on the subject." (To be continued.)

HUSBAND AND WIFE AS CONTRACTING PARTIES. WE have before us two County Court decisions, which introduce a new element of uncertainty into contracts entered into between married persons and the public. To one of these cases we have referred on previous occasions, and shall advert to again presently. The second turns upon the construction of the first section of the Married Women's Property Act, being a decision of Mr. Stonor upon a case presenting a peculiar state of facts. Before criticising this judgment we must confess to a certain amount of diffidence. The cause was twice tried, and on both trials the learned Judge came to the same conclusion. His Honour recognised the difficulty of the case, but he laid down a broad proposition of law which is open to criticism, apart from the surrounding facts of the case. That proposition of law was this: that it is not necessary to the separate carrying on of an employment, occupation, or trade by a married woman, within the meaning of the Married Women's Property Act 1870, sect. 1, that she should live apart from her husband, but only that her husband should not interfere or take part in carrying on such business.

It is clearly impossible to say that this is unsound in point of law; but, looking to the object with which the Act was passed, can it be taken to have been the intention of Parliament to protect married women living with their husbands? As some evidence that it was, the County Court Judge cites the 13th section, by which a married woman is made liable to maintain her husband. For such a purpose, however, this section is, we think, of no weight, but rather, on the contrary, contemplates a husband who, living apart from a wife having separate property, becomes chargeable to the parish. And what are the words of the first section? "The wages and earnings of any married woman acquired or gained by her in any employment, occupation, or trade in which she is engaged, or which she carries on separately from her husband," shall be taken to be her separate property. There is nothing in these words to indicate a necessity for the wife to be residing separately from the husband, and the little light which decided cases throw upon the question seems to support the view of the County Court Judge, and to make the question one of evidence on the facts of each particular case. In Reg. v. Harrald (L. Rep. 7 Q. B. 361; 26 L. T. Rep. N. S. 616), wherein it was sought to establish that the Married Women's Property Act had got rid of the political disabilities of married women, the Lord Chief Justice spoke of the Act as recognising and establishing the power of married women "to hold property." And Mr. Justice Hannen said, "The Married Women's Property Act was intended to protect married women in the enjoyment of the rights of property." These expressions, wide and general as they are, do not leave room, as it appears to us, for the suggestion that it is contrary to the intention of the Act that a married woman living with her husband should be incapable of holding or enjoying the rights of property.

But in a previous issue we observed that we considered that the decision of the learned Judge opened a wide door to fraud, because nothing can be easier than for a man to set his wife up in business in a house rented and occupied by him, and whilst she earns money by the separate carrying on of this trade, for him to obtain all the credit of being the owner of the business. Before dwelling upon this aspect of the questions, and the protection which creditors may throw round their transactions with a married woman,

we will look at two cases which are cited in text books as throwing some light upon the construction of the first section of the Married Women's Property Act. Petty v. Anderson (3 Bing. 170) was an action of assumpsit for goods sold and delivered. The wife had carried on business on her own account during the imprisonment of her husband, and he having returned to live with her after his discharge, it was held that he was liable for articles furnished in this business with his knowledge, after his return, though the invoice and receipts were in the name of the wife, and she was rated to and paid the poor's and paving rates. At the trial Chief Justice Best, in summing up the case to the jury, made a point of the circumstance of the husband being in the house where the business was carried on, assisting in the business, and subsisting on the profits. He directed the jury to find for the plaintiff, on the ground that obviously the wife was the agent of the husband. On the argument of the rule for a new trial the same learned Judge said "the husband took advantage of the trade that was carried on by living on the profits, and a legal presumption arises from that circumstance that the wife conducted the trade as his agent." He added, however, "undoubtedly the presumption arising from his presence might have been rebutted, but there were no facts in the present case to repel the presumption." The other judges, Mr. Justice Park and Mr. Justice Burrough considered the circumstance of the husband cohabiting with the wife conclusive, Mr. Justice Park citing Langford v. Tilor (1 Salk. 113), which went directly to that effect. Mr. Justice Burrough said "the husband was present and assisting in the business, and therefore clearly liable to the plaintiff's claim." The other case to which we refer is Smallpiece v. Dawes 7 (C. & P. 40), where the evidence fell short of establishing the agency of the wife, and an action against the husband for goods supplied to the wife in her business, carried on in his absence, failed. For nine years the husband was absent, avoiding a bankruptcy commission. During that period the wife carried on the business, and the husband was seen at the shop on only two or three occasions, and had been present at the marriage of two of his daughters in the neighbourhood. Baron Parke said that this evidence was insufficient, and that the defendant coming to his wife's house could only make him liable for necessaries supplied to her.

We think it may be fairly argued that if before the passing of the Married Women's Property Act it was a question in actions against the husband for supplies to a wife carrying on trade, whether the fact of his cohabiting with her fixed him with liability, it must arise with greater force, and so as to weaken the presumption of law against him since the passing of that Act. Before that Act as Chief Justice Best said in Petty v. Anderson, the presumption arising from the circumstance of the husband cohabiting with his wife might be rebutted. The Act of 1870 almost disposes of the presumption of law. A married woman may hold and enjoy the rights of property. If she is trading in her own name, can it be said that there is any presumption of law at all that she is acting as the agent of her husband? We feel driven to the conclusion that the presumption is perhaps stronger that she is trading "separately," and that the onus lies upon the creditor of the husband seizing the goods claimed by the wife to show that she is trading as the agent of her husband. We candidly confess that we have arrived at this conclusion against our first convictions, and strongly against our inclinations, and in opposition to our idea of what is expedient.

Now the business carried on in the Croydon case was that of a lodging-house, and the case really set up on the part of the claimant was that whenever the husband interfered in the business he was acting as her agent. He paid money to one of the creditors, and requested him to give credit for it to his wife. The invoices of the tradesmen were also made out to the wife. This latter fact we do not think of much importance, as it is a common thing for tradesmen supplying necessaries to a household to send in the invoices to the wife. The rate collector had been told that the husband was tenant of the house, and had so entered it in his rate book, but the landlord was dead. The facts will be found more fully detailed and discussed in the judg ment of the learned Judge; but we think that we have said enough to show that there was a pretty even balance of evidence on the one side and the other-in favour of the presumption of the wife acting as the agent of her husband, and of the wife's separate trading. To which side under such circumstances ought the law to lean? We think clearly against the separate trading of the wife. A married woman has it in her power to make it plain and unmistakeable that she is trading separately, so as to secure the protection of the Married Women's Property Act. Cohabiting with her husband, the law implies a liability on his part for necessaries supplied to her order; and the Married Women's Property Act does not render the wife liable to an action upon her contracts. It is hardly possible to conceive a state of things in which creditors could be more easily defrauded; and although we feel constrained to agree that the learned County Court Judge has taken an accurate view of the Act, we think the facts of each case should be narrowly watched, and the onus thrown heavily on the wife of establishing a separate trading.

The second County Court case to which we have referred was reported by us on the 20th ult., and carried the right of the hus

hand to relieve himself from liability for necessaries supplied to his wife to limits which, supposing them to be reached by any existing authority, places persons dealing with married women in a position of peril. Notwithstanding Jolly v. Rees, it is considered an open question whether a husband by private prohibition can relieve himself from liability for necessaries supplied to the wife, more particularly where those necessaries are not personal to the wife but peculiar to the household. Contemplate for a moment this position of things:-A married woman living with her husband unable to pledge his credit for bread. A married woman carrying on business in a house occupied by her husband, the rent of which he pays, and to which he is rated; neither husband nor wife liable for goods supplied to the wife in such business. What an absolutely monstrous state of the law! We say, therefore, that it behoves judges to apply it with as much caution as possible, and to presume as much as they can against a state of circumstances which in effect is calculated to operate to the prejudice of those who have dealings with married women.

ENGLISH AND AMERICAN LAW RELATING TO STIPULATIONS BY CARRIERS.

A VERY exhaustive judgment was delivered in the United States Supreme Court by Mr. Justice Bradley in last October Term. After fully going through the American authorities the learned Judge concluded as follows:

It is argued that a common carrier, by entering into a special contract with a party for carrying his goods or person on modified terms, drops his character and becomes an ordinary bailee for hire, and, therefore, may make any contract he pleases, that is, he may make any contract whatever, because he is an ordinary bailee; and he is an ordinary bailee because he has made the contract.

We are unable to see the soundness of this reasoning. It seems to us more accurate to say that common carriers are such by virtue of their occupation, not by virtue of the responsibilities under which they rest. Those responsibilities may vary in different countries, and at different times, without changing the character of the employment. The common law subjects the common carrier to insurance of the goods carried, except as against the act of God or public enemies. The civil law excepts, also, losses by means of any superior force, and any inevitable accident. Yet the employment is the same in both cases. And if by special agreement the carrier is exempted from still other responsibilities, it does not follow that his employment is changed, but only that his responsibilities are changed. The theory occasionally announced, that a special contract as to the terms and responsibilities of carriage changes the nature of the employment, is calculated to mislead. The responsibilities of a common carrier may be reduced to those of an ordinary bailee for hire, whilst the nature of his business renders him a common carrier still. Is there any good sense in holding that a railroad company, whose only business is to carry passengers and goods, and which was created and established for that purpose alone, is changed to a private carrier for hire by a mere contract with a customer, whereby the latter assumes the risk of inevitable accidents in the carriage of his goods? Suppose the contract relates to a single crate of glass or crockery, whilst at the same time the carrier receives from the same person twenty other parcels, respecting which no such contract is made. Is the company a public carrier as to the twenty parcels and a private carrier as to the one?

On this point there are several authorities which support our view, some of which are noted in the margin. (a)

A common carrier may, undoubtedly, become a private carrier, or a bailee for hire, when, as a matter of accommodation or special engagement, he undertakes to carry something which it is not his business to carry. For example, if a carrier of produce, running a truck boat between New York city and Norfolk, should be requested to carry a keg of specie, or a load of expensive furniture, which he could justly refuse to take, such agreement might be made in reference to his taking and carrying the same as the parties chose to make, not involving any stipulation contrary to law or public policy. But when a carrier has a regularly established business for carrying all or certain articles, and especially if that carrier be a corporation created for the purpose of the carrying trade, and the carriage of the articles is embraced within the scope of its chartered powers, it is a common carrier, and a special contract about its responsibility does not divest it of the character.

But it is contended that, though a carrier may not stipulate for his own negligence, there is no good reason why he should not be permitted to stipulate for immunity for the negligence of his servants, over whose actions, in his absence, he can exercise no control. If we advert for a moment to the fundamental principles on which the law of common carriers is founded, it will be seen that this objection is inadmissible. In regulating the public establishment of common carriers, the great object of the law was to secure the utmost care and diligence in the performance of their important duties-an object essential to the welfare of every civilised community. Hence the common law rule which charged the common carrier as an insurer. Why charge him as such? Plainly for the purpose of raising the most stringent motive for the exercise of carefulness and fidelity in his trust. In regard to passengers, the highest degree of carefulness and diligence is expressly exacted. In the one case the securing of the most exact diligence and fidelity underlies the law, and is the reason for it; in the other it is directly and absolutely prescribed by the law. It is obvious, therefore, that if a carrier stipulate not to be bound to the exercise of care and diligence, but to be at liberty to indulge in the contrary, he seeks to put off the essential duties of his employment. And to assert that he may do so seems almost a contradiction in terms.

Now, to what avail does the law attach these essential duties to the employment of the common carrier, if they may be waived in respect to his agents and servants, especially where the carrier is an artificial being, incapable of acting except by agents and servants? It is carefulness and diligence in performing the service which the law demands, not an abstract carefulness and diligence in proprietors and stockholders who take no active part in the business. To admit such a distinction in the law of (a) Davidson v. Graham, 2 Ohio St., 131; Graham v. Davis and Co., 4 Ohio St., 362 Swindler v. Hilliard, 2 Rich. 286; Baker v. Brinson, 9 Rich. 201; Steel v. Townsend, 37 Ala. 247.

common carriers, as the business is now carried on, would be subversive of the very object of the law.

It is a favourite argument in the cases which favour the extension of the carrier's right to contract for exemption from liability, that men must be permitted to make their own agreements, and that it is no concern of the public on what terms an individual chooses to have his goods carried. Thus, in Dorr v. The N. J. Steam Navigation Company (1 Kern. 485) the court sums up its judgment thus: "To say the parties have not a right to make their own contract, and to limit the precise extent of their own respective risks and liabilities, in a matter no way affecting the public: morals, or conflicting with the public interests, would, in my judgment, be an unwarrantable restriction upon trade and commerce, and a most palpable invasion of personal right."

Is it true that the public interest is not affected by individual contracts of the kind referred to ? Is not the whole business community affected by holding such contracts valid? If held valid, the advantageous position of the companies exercising the business of common carriers is such that it places it in their power to change the law of common carriers in effect, by introducing new rules of obligation.

The carrier and his customer do not stand on a footing of equality. The latter is only one individual of a million. He cannot afford to higgle or stand out and seek redress in the courts. His business will not admit such a course. He prefers rather to accept any bill of lading, or sign any paper the carrier presents; often, indeed, without knowing what the one or the other contains. In most cases he has no alternative but to do this, or abandon his business. In the present case, for example, the freight agent of the company testified that though they made forty or fifty contracts every week like that under consideration, and had carried on the business for years, no other arrangement than this was ever made with any drover. And the reason is obvious enough-if they did not accept this they must pay tariff rates. These rates were 70 cents. per 100lb. for carrying from Buffalo to Albany, and each horned animal was rated at 20001b., making a charge of 14dols. for every animal carried, instead of the usual charge of 70dols. for a car load; being a difference of three to one. Of course no drover could afford to pay such tariff rates. This fact is adverted to for the purpose of illustrating how completely in the power of the railroad companies parties are; and how necessary it is to stand firmly by those principles of law by which the public interests are protected.

If the customer had any real freedom of choice, if he had a reasonable and practicable alternative, and if the employment of the carrier were not a public one, charging him with the duty of accommodating the public in the line of his employment; then, if the customer chose to assume the risk of negligence, it could with more reason be said to be his private affair, and no concern of the public. But the condition of things is entirely different, and especially so under the modified arrangements which the carrying trade has assumed. The business is mostly concentrated in a few powerful corporations, whose position in the body politic enables them to control it. They do, in fact, control it, and impose such conditions upon travel and transportation as they see fit, which the public is compelled to accept. These circumstances furnish an additional argument, if any were needed, to show that the conditions imposed by common carriers ought not to be adverse (to say the least) to the dictates of public policy and morality. The status and relative position of the parties render any such conditions void. Contracts of common carriers, like those of persons occupying a fiduciary character, giving them a position in which they can take undue advantage of the persons with whom they contract, must rest upon their fairness and reasonableness. It was for the reason that the limitations of liability first introduced by common carriers into their notices and bills of lading were just and reasonable that the courts sustained them. It was just and reasonable that they should not be responsible for losses happening by sheer accident, or dangers of navigation that no human skill or vigilance could guard against; it was just and reasonable that they should not be chargeable for money or other valuable articles liable to be stolen or damaged, unless apprised of their character or value; it was just and reasonable that they should not be responsible for articles liable to rapid decay, or for live animals liable to get unruly from fright and to injure themselves in that state, when such articles or live animals became injured without their fault or negligence. And when any of these just and reasonable excuses were incorporated into notices or special contracts assented to by their customers, the law might well give effect to them without the violation of any important principle, although modifying the strict rules of responsibility imposed by the common law. The improved state of society and the better administration of the laws, had diminished the opportunities of collusion and bad faith on the part of the carrier and rendered less imperative the application of the iron rule, that he must be responsible at all events. Hence the exemptions referred to were deemed reasonable and proper to be allowed. But the proposition to allow a public carrier to abandon altogether his obligations to the public, and stipulate for exemptions that are unreasonable and improper, amounting to an abdication of the essential duties of his employment, would never have been entertained by the sages of the law.

Hence, as before remarked, we regard the English statute called the Railway and Canal Traffic Act, passed in 1854, which declared void all notices and conditions made by common carriers except such as the Judge, at the trial, or the courts should hold just and reasonable, as substantially a return to the rules of the common law. It would have been more strictly so, perhaps, had the reasonableness of the contract been referred to the law instead of the individual Judges. The decisions made for more than half a century before the courts commenced the abnormal course which led to the necessity of that statute, giving effect to certain classes of exemptions stipulated for by the carrier, may be regarded as authorities on the question as to what exemptions are just and reasonable. So the decisions of our own courts are entitled to like effect when not made under the fallacious notion that every special contract imposed by the common carrier on his customers must be carried into effect, for the simple reason that it was entered into without regard to the character of the contract and the relative situation of the parties.

Conceding, therefore, that special contracts, made by common carriers with their customers, limiting their liability, are good and valid, so far as they are just and reasonable; to the extent, for example, of excusing them for all losses happening by accident, without any negligence or fraud on their part; when they ask to go still further, and to be excused for negligence-an excuse so repugnant to the law of their foundation and to the public good-they have no longer any plea of justice or reason to support such a stipulation, but the contrary. And then, the inequality of the parties, the compulsion under which the customer is placed, and the obligations of the carrier to the public, operate with full force to divest the transaction of validity.

On this subject the remarks of Chief Justice Redfield, in his recent collection of American railway cases, seem to us eminently just. "It being clearly established, then," says he," that common carriers have public duties which they are bound to discharge with impartiality, we must conclude that they cannot, either by notice or special contracts, release them. selves from the performance of these public duties, even by the consent of those who employ them; for all extortion is done by the apparent consent of the victim. A public officer or servant, who has a monopoly in his department, has no just right to impose onerous and unreasonable conditions upon those who are compelled to employ him." And his conclusion is that, notwithstanding some exceptional decisions, the law of to-day stands substantially as follows: "1. That the exemption claimed by carriers must be reasonable and just, otherwise it will be regarded as extorted from the owners of the goods by duress of circumstances, and, therefore, not binding. 2. That every attempt of carriers, by general notices or special contract, to excuse themselves from responsibility for losses or damages resulting in any degree from their own want of care and faithfulness, is against that good faith which the law requires as the basis of all contracts or employments, and, therefore, based upon principles and a policy which the law will not uphold."

The defendants endeavour to make a distinction between gross and ordinary negligence, and insist that the Judge ought to have charged that the contract was at least effective for excusing the latter.

We have already adverted to the tendency of judicial opinion adverse to the distinction between gross and ordinary negligence. Strictly speaking, these expressions are indicative rather of the degree of care and diligence which is due from a party, and which he fails to perform, than of the amount of inattention, carelessness, or stupidity which he exhibits. If very little care is due from him, and he fails to bestow that little, it is called gross negligence. If very great care is due, and he fails to come up to the mark required, it is called slight negligence, and if ordinary care is due, such as a prudent man would exercise in his own affairs, failure to bestow that amount of care is called ordinary negligence. In each case the negligence, whatever epithet we give it, is failure to bestow the care and skill which the situation demands; and hence it is more strictly accurate perhaps to call it simply "negligence And this seems to be the tendency of modern authorities. (a) If they mean more than this, and seek to abolish the distinction of degrees of care, skill, and diligence required in the performance of various duties and the fulfilment of various contracts, we think they go too far, since the requirement of different degrees of care in different situations is too firmly settled and fixed in the law to be ignored or changed. The compilers of the French Civil Code undertook to abolish these distinctions by enacting that "every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it."(b) Toulier, in his commentary on the code, regards this as a happy thought, and a return to the law of nature. (c) But such an iron rule is too regardless of

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the foundation principles of human duty, and must often operate with great severity and injustice.

In the case before us, the law, in the absence of special contract, fixes the degree of care and diligence due from the railroad company to the persons carried on its trains. A failure to exercise such care and diligence is negligence. It needs no epithet properly and legally to describe it. If it is against the policy of the law to allow stipulations which will relieve the company from the exercise of that care and diligence, or which, in other words, will excuse them for negligence in the performance of that duty, then the company remains liable for such negligence. The question whether the company was guilty of negligence in this case, which caused the injury sustained by the plaintiff, was fairly left to the jury. It was unnecessary to tell them whether, in the language of law writers, such negligence would be called gross or ordinary.

The conclusions to which we have come are-First, that a common carrier cannot lawfully stipulate for exemption from responsibility when such exemption is not just and reasonable in the eye of the law. Secondly, that it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants. Thirdly, that these rules apply both to carriers of goods and carriers of passengers for hire, and with special force to the latter. Fourthly, that a drover travelling on a pass, such as was given in this case, for the purpose of taking care of his stock on the train, is a passenger for hire.

These conclusions decide the present case, and require a judgment of affirmance. We purposely abstain from expressing any opinion as to what would have been the result of our judgment had we considered the plaintiff a free passenger instead of a passenger for hire. Judgment affirmed.

LAW LIBRARY.

WE have received from Messrs. JOHN FLACK and Co., of 3, Warwick-court, Holborn, an Indian Law Examination Manual, by Mr. FENDALL CURRIE, of Lincoln's-inn, City Magistrate of Lucknow. This manual is a digest of questions and answers. The questions are comprehensive and practical, and the answers very full. To students who are partial to this mode of studying law, the manual will prove an acquisition.

WE have received the admirable Diaries of Messrs. Letts and Sons for 1874. They comprise the Universal Diary, interleaved with blotting paper, for desk use; the Diary or Bills-due Book, containing a mass of general information in a compendious form; the Pocket Diary, and two pocket-book diaries. All these books are got up with great care and excellent workmanship, and sustain a well-established reputation.

PATENT LAW. (By C. HIGGINS, Esq., M.A., F.C.S., Barrister-at-Law.)

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COMPLETE SPECIFICATION. (Continued from p. 21.) Elliott v. Turner. Ex. Ch. 1845. In covenant on an indenture by which B. was licensed to make and sell buttons according to A.'s patent, the issue was whether certain buttons made by B. were made under the licence. The specification described the invention to consist in the application to the covering of buttons, of such figured woven fabrics wherein the ground, or the face of the ground thereof, is produced by a warp of soft or organzine silk, such as is used in weaving satin and the classes of fabrics produced therefrom." The jury asked how they were to understand the word "or" in the specification; whether it was used disjunctively, or, whether " organzine" was the construction of the word "soft." The judge told them, that, in his opinion, unless the silk was organzine, it was not within the patent. Held, that this direction was erroneous; for, that the judge should not have told the jury, absolutely, that soft and organzine silk were the same, but that the words were capable of being so construed, if the jury were satisfied that, at the date of the patent, there was only one description of soft silk,-and that organzine, used in satin weaving; but, otherwise, that the proper and ordinary sense of the word "or" was to be adopted, and the patent held to apply to every species of soft silk, as well as to organzine silk. (2 C. B. 446; 15 L. J. 49, C. P.)

McAlpine v. Mangnall. 1846.-If, taking the whole specification together, and giving its words

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all acids and alkalies, it is clearly bad, as there are some which will not answer the purpose. If it be a claim of those only which will answer the purpose, it is as clearly bad, in consequence of not stating those which will answer the purpose, and distinguishing them from those which will not, and so preventing the public from being under the necessity of making experiments to ascertain which of them will succeed and which will not." (2 Ex. 772; 19 L. J., N. S. 57, Ex.)

Stevens v. Keating. 1848.- Patent for "a process or method of combining various materials so as to form stuccoes, plasters, and cements, and for the manufacture of artificial stones, marbles, &c. used in buildings." The specification, after stating the invention to consist in producing certain hard cements of the combina- Beard v. Egerton. 1849.-In the construction tion of the powder of gypsum, powder of lime- of a specification, the whole instrument must be stone, and chalk, with other materials, such com- taken together, and a fair and reasonable interpre binations being (subsequent to their mixing) sub-tation given to the words used in it. A specificamitted to heat, described the method or process of making a cement from gypsum to consist in mixing with powdered gypsum, strong alkali (ex. gr. best American pearlash) dissolved in a certain proportion of water, this solution to be neutralized with acid (sulphuric acid being the best), the mass to be kept in agitation, and the acid to be added gradually till the effervescence should cease; and then a certain proportion of water to be added (if other alkali were used, the quantity to be varied in proportion to its strength); and the mixture having been brought to a proper consistence by the further addition of powdered gypsum, to be dried in moulds, and finally subjected to a furnace capable of producing a red heat. The specification concluded by stating that other alkalies and acids beside those before mentioned would answer the purposes of the invention, though not so well, and that the inventor claimed the method or process thereinbefore described: Held, that the specification was bad. It must either be a claim of all acids and alkalies, or of all acids and alkalies that will answer the purpose. If it be a claim of

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tion of a patent for "a new and improved method of obtaining the spontaneous reproduction of all the images received on the focus of the camera obscura," in describing the process, stated it is to be divided into five operations." The first consists in polishing and cleaning the silver surface of the plate, in order to properly prepare or qualify it for receiving the sensitive layer or coating (iodine), upon which the action of the light traces the design; the second operation, is the applying that sensitive layer or coating to the silver surface; the third, in submitting, in the camera obscura, the prepared surface or plate to the action of light, so that it may receive the images; the fourth, in bringing out or making appear the image, picture, or representation, which is not visible when the plate is first taken out of the camera obscura; the fifth, and last operation is, that of removing the sensitive layer or coating, which would continue to be affected and undergo different changes from the action of light; this would uecessarily tend to destroy the design or tracing so obtained in the camera obscura." It then proceeded to give a description of the first

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