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which are usually under the control and management of the wife," and sustained a judgment against the husband." In Holt v. Brian (4 B. & Ald. 252), it was held that where a husband not separated from his wife makes an allowance to her for the supply of herself and family with necessaries, during his temporary absence, and a tradesman with notice of this, supplies her with goods, the husband is not liable for the debt.

So again, in the case of Jewsbury v. Newbold (26 L. J. 247; 29 L. T. Rep. 128) (May 1857, Ex.), it was said, "to establish credit being given to the wife, it must be shown that there was a distinct private transaction. When you say, 'credit was given to the wife,' you mean credit was given to her to the exclusion of him-not affirmatively to her, but negatively to to him." The verdict against the husband was therefore upheld: (See Bentley v. Grifin, 5 Taun. 356.)

Even when the authority of the wife is unrevoked, the question still may be-what are necessaries? (2 Smith's L. Cas. 430 (1862) and Ryder v. Wombwell, 17 L. T. Rep. N. S. 609; 19 L. T. Rep. N. S. 491.)

In the case of Schoolbred v. Baker (16 L. T. Rep. N. S. 359) (Nisi Prius, before Willes, J.), the action was for the price of two silk dresses and a silk mantle, amounting in value to £28 19s. 10d. The plaintiffs were drapers, and the defendant was lessee of the "restaurant department" of a first-class hotel. The delivery of the goods, and that the prices were fair and reasonaole, were admitted on the part of the defendant. The defence was-(1) That the wife was not entitled to pledge the credit of her husband, as by arrangement with him she received £100 a year to supply her personal wants, and on condition that she was not to pledge his credit. (2) That the goods were not nccessaries, being unsuitable to the station in life of the defendant. On cross-examination the defendant said: "My wife lives with me; I have seen the mantle and dress on my wife, and I have been out walking with her whilst she wore them." Willes, J., told the jury: "The husband had a right to be master in his own house, and to determine what his expenses are to be. A man may have £10,000 a year, and yet his wife may not be entitled to live in a manner proportionate to that income. He may, if he wish, spend only £100 a year, and if he tells his wife so, she must conform to his wishes on the subject. The wife, if not restrained by the husband, would be the person to give orders for the ordinary clothing of the family, and in the absence of express stipulations on the part of the husband, it would be presumed the wife had authority to order things suitable to the condition in which the husband may choose to live. That raises the question as to the suitability of the articles, supplied to the wife, to their station in life. The other question is a very important one, as it affects the peace and happiness of many families. Most serious and lamentable results would follow, if when the husband says to the wife "You must not pledge my credit," the wife were allowed, nevertheless, to run up large bills, which the husband would be compelled to pay. The law has been laid down in this court that the husband has a right to control his wife in this respect and that if it is made out that he has told her so, he will not be responsible. In a case where the husband says that he has really put a check to extravagance which might lead to his ruin there is no remedy against him. But a jury, in order to come to this conclusion, must be satisfied that the husband's objection did not consist in mere grumbling at the wife's expenditure, but that he really restrained her from pledging his credit. I think the real question for a jury in such cases is whether it is made out to their satisfaction that the husband did put a check on his wife beyond a sort of grumbling which is said to be the privilege of every man in the country. Whether that has been done in the present case depends on the evidence of the husband himself; his act in paying the former bill which his wife owed to the plaintiff seems inconsistent with his statement. I am obliged to be very distinct in laying down the law on this subject, on account of a case alluded to, and an observation made in a case in the Court of Queen's Bench. Verdict for the plaintiff.

In the case of Phillipson v. Hayter (23 L. T. Rep. N. S. 556), the plaintiff carried on business as a stationer in a town in which the defendant lived. The defendant was a man of about £400 a year, rented a house of £70 a year, and kept three servants. The wife had purchased goods on credit from the plaintiff, in respect of which he claimed £20 4s. 2d. Among the articles purchased were a gold pen, a pencil case, guitar, music, &c. They were bought without the husband's knowledge. Byles, J. left it to the jury to say "whether the articles were necessaries suitable to the degree of the defendant, and whether the plaintiff had ever countermanded his wife's authority to pledge his credit. The jury found for the full amount. The Court of Common Pleas set aside the verdict. Willes, J. said: "The defendant's wife eloped, and he then, for the first time, found that she had professed to pledge his credit for things which he never saw or heard of, and which he never authorised her to order, but which he is nevertheless expected to pay for. If he is to pay, it must be because the law infers from the relation of man and wife an authority from the husband to the wife to pledge his credit for such things. The wife, no doubt, has authority to order what seems necessary for the style in which the husband chooses to live, so long as the article belongs to the domestic department, which is ordinarily under her control. That such and such an article does fall within that department must be shown affirmatively by the person who seeks to make the husband liable. It is not sufficient for the plaintiff to prove that an article which was ordered by the wife, which may or may not be suitable to the condition which the husband chooses his wife to assume, or which may or may not fall within the wife's department, but he must show so strong a probability that the articles were within the wife's department, and were suitable to the condition of the husband, that a reasonable mind may conclude that she was authorised by the husband to pledge his credit for them. It will not do in this or any other case, when the burthen of proof is on the plaintiff, to prove a state of facts which are equally consistent with the affirmative or negative, and which only show there may or may not have been authority." But in the case of Burton v. Scott (23 L. T. Rep. N.S. 566) it was admitted that the defendant and his wife in 1864 went to the plaintiff's shop, sometimes together and sometimes separately, and ordered goods, and goods ordered by her were paid for. In 1866 there was a deed of separation, but no part of the supplies related to the period of separation. In 1867 the wife again lived with the husband, under a second deed, which gave her £400 a year for household expenses, which was paid to her. There was no covenant to apply it for that purpose, and it was not stipulated that it was to be the only fund for this purpose, though it was to be all which was to be paid to her, and she was told not to pledge her husband's credit. The goods for which payment was claimed were ordered by her from Oct. 1866 to Dec. 1869. The husband had given no notice to the plaintiff or to other creditors not to give credit on his account. The jury were told that if the husband had so acted as to lead tradesmen to believe the wife had authority, and the tradesmen had honestly so believed, the plaintiff was entitled to recover, otherwise not. The jury found for the plaintiff, and leave to move against the verdict was refused.

The opinion of that most able Judge, Sir William Erle, the late Chief Justice of the Common Pleas, and of the Judges of the Court of Common Pleas who concurred with him, in the case of Jolly v. Rees (15 C. B. 628), there can be little doubt, will be treated as the truest exposition of the law as it is of morals. This latter case does not disturb the general rule, that the wife may bind the husband in the purchase of necessaries; but it does limit the operation of the rule, in case the husband has refused to her permission, as his agent, to purchase on his credit, even though the refusal is unknown to the tradesman. I can only repeat what I said on a former occasion, namely, the only safe course in dealing with the wife is to inform the husband that his wife has proposed to pledge his credit for goods, and to ascertain from him that he assents to his wife purchasing goods in his name, and pledging his credit for the payment of the same. I have also constantly given this general rule of dealing to plaintiffs-"If one person purchases goods, and another person is represented as the person who is to pay, apply to such other person without delay, and ask if he assents to pay." So, in order to be safe, this rule of virtue, of safety, of prudence, and of morals, may be extended to all cases, and it should be especially acted on, by directly asking the husband if he approves of his credit being pledged by his wife. There is nothing but what is fair, and just and proper in such a course. It should also be remembered that the wife has only the authority of an agent for her husband, and it is in the power of the husband expressly to revoke that authority at any time. He is the master of his own household, and of his own purse, but he would not be master of his own purse, or of the liberty of his own person, if, when he permits one dealer of goods to supply necessaries to his wife, the law enabled four or five other persons at the same time, engaged in a similar branch of trade, to supply, as is frequently done, what they may call necessaries" without his consent. Any person, however, who has recognised the dealing" on credit of his wife with a particular tradesman, must give express notice to such tradesmen when the authority of his wife to charge his credit is to be revoked by him. Those persons who desire a new law to protect poor people," should understand that poor people have, at this time, the most perfect protection. By their own act they can revoke the authority of wives to pledge their credit. If the husband has never authorised any dealings with a particular tradesman, he can revoke his wife's authority without notice, though some public notice shows the bona fides of the revocation. When he has sanctioned any such dealings, then notice of the revocation of the wife's authority to continue to deal with such tradesman on credit, must be expressly given to the tradesman. The husband has perfect power to protect himself, and no tradesman is safe in dealing on credit with any married woman unless he informs the husband that his wife has asked to pledge his credit.

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Credit is more important to working men than very many persons believe. The old small debt courts afforded sufficient evidence of this fact. Imprisonment formerly for the non-payment of a debt satisfied the debt, and judgments were for the early payment of the whole amount which few could pay in one sum. Now, orders to pay are made according to the means and ability of the defendant to pay, and if he cannot pay he ought not, by law, to be committed to gaol. But this is the real difficulty, namely, what is to be done when there are old and recent judgments, and new debts are inevitable? Who is to have priority? The effect of the accumulation of debts, and the necessity of some limitation of time within which judgments which current wages cannot discharge may be extinguished, are disregarded, but these important facts also ought not to be forgotten, namely,

1. That the wages for a week or a fortnight of workmen are in many occupations kept in hand by the masters, in order to secure the perforformance of contracts, and that the shopkeepers supply food and clothing to the workmen during the days the payment of wages is thus suspended. 2. That in the case of a retail dealer, the wholesale merchant expects to be paid out of the profits on the sale of the goods he supplies. When that fund is wasted the source out of which payment was expected is gone. Bankruptcy is then inevitable. When, however, credit is given in respect of income, salary for services, or wages, so long as a portion of these sources of income is applicable to the payment of debts the fund which authorised the credit exists.

It may be advisable if when debts under £6 remain unacknowledged for one or two years, the remedy to sue were suspended; and that judgment for debts under this amount should cease to be operative in two or three years.

LAW LIBRARY.

The Income Tax Laws. By STEPHEN DOWALL, M.A., AssistantSolicitor of Inland Revenue. London: Butterworths. THIS is simply a collection of the Income Tax Statutes made easy of reference by a copious index. There are foot-notes, but they are necessarily few, there having been scarcely any decisions on the Acts. The Acts are connected together by cross-references, and for practical purposes the compilation must prove very useful.

A Manual of Public Health. By W. H. MICHAEL, Barrister-at-Law, W. H. CORFIELD, M.A., M.D., and J. A. WANKLYN, M.R.C.S. Edited by ERNEST HART. London: Smith, Elder, and Co. IF in the multitude of counsellors there is wisdom, this ought to be a reliable work. It was called forth by the Public Health Act of 1872, and contains directions for carrying that enactment into operation. The subject is one not generally interesting to lawyers, therefore we notice the book shortly. A most curious and interesting feature is the Index to Statutes Pertaining to Public Health-of which there are no less than eighty-one, all passed in the present reign-and the Index to powers under the Sanitary Acts, covering sixteen octavo pages. These indices are followed by an Index to Penalties under the Sanitary Acts, occupying nearly fifteen pages. These indices indicate the nature of the labour imposed upon those who have to apply our sanitary laws, and prove the value of a good manual. We have looked through this manual, and it appears to be carefully done, and the style is clear. We think it may be safely adopted as a guide.

SOLICITORS' JOURNAL.

FREQUENT complaints reach us from country solicitors upon the subject of the jurisdiction exercised by the Lord Mayor's Court of London, whereby process is served all over the country, and the clients of country solicitors, being defendants, are put to the great expense and inconvenience of defending actions for small amounts, the proceedings in which are conducted often at the greatest possible distance from their place of business and residence. As to pleading to the jurisdiction, solicitors are quite right in advising their clients not, as a rule, to venture on such a course. Nothing can well be more unsatisfactory than the present system of service out of the jurisdiction.

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THE Times has published a letter from a non-professional correspondent upon the subject of curtailing the length of deeds and documents of all kinds, under the heading Legal Conveyance of Land." The writer ignores the important fact that the length of deeds and documents is owing simply to the complex relations between different members of society which have gradually grown up since the "fourteenth century," referred to by the writer in question. The prolixity of which he complains is due, in a great measure, to efforts on the part of lawyers to meet the requirements of the age in which they have lived. Solicitors, in whose hands the conveyancing business of the country is, would be only too delighted to reduce the length of deeds, but this can only be done by altering the present system of remuneration.

WE are not in possession of full purticulars of the system of education adopted by the Incorporated Law Society of Ireland, but we may call the attention of the Council of the Incorporated Law Society in Chancery-lane to the fact that in Ireland it is not sufficient to attend lectures before examination, but those who attend them must receive from the Professor of Law, for the Profession of attorneys and solicitors, a certificate that they have attended at least three-fourths of each course of lectures before such attendance is allowed to avail the student in any way. We do not think it wise to leave students to attend lectures or not, as they please; moderate compulsion is very beneficial. Perhaps lectures are not the best mode of imparting knowledge of the law; but making attendance at them while they are in Vogue compulsory, ensures to most students a better knowledge of the matter lectured on than they would probably have otherwise.

accommodation in the London Bankruptcy Court for solicitors is simply shameful-in truth, a corner is appropriated to them. Wherever attorneys have audience their convenience and com

fort should be considered.

THE next preliminary examination will take place on Wednesday, the 11th Feb. next, and the following day.

NOTICES for the intermediate examination in Easter Term next must be left with the Secretary of the Incorporated Law Society, Chancery-lane, on or before the 14th March next. Renewed notices for examination in Easter Term next must be given between the 2nd and 7th of Feb. next. Renewed notices for admission in the same term must be left at the Master's Office, in the Queen's Bench, and also be entered in the books kept for that purpose at Judge's Chambers between the 2nd and 7th Feb. next.

THE Town Council of Edinburgh have unanimously appointed Mr. William Skinner, an eminent writer to the Signet, who was admitted in 1848, to the office of town clerk, at a salary of £500 a year.

ALITY

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NOTES OF NEW DECISIONS. PRACTICE DISCOVERY - REDEMPTION SUIT AGAINST MORTGAGEE IN POSSESSION-ANSWER -ACCOUNT OF RENTS.-A redemption suit against the general rule that a defendant who answers a mortgagee in possession forms no exception to must answer fully. A defendant to such bill, who by his answer admits himself to be redeemable, cannot decline answering interrogatories as to the state and particulars of the account, which it is one of the objects of the suit to take, but the court will prevent the plaintiff from pressing for any such minuteness of discovery as would be either vexatious or unreasonable. Decision of Malins, V.C., affirmed: (Elmer v. Creasy, 29 L. T. Rep. N. S. 632. Chan.) CORPORATION PAROL CONTRACT - MUTU. - CORPORATE SEAL - TOWN CLERK AUTHORITY OF. In pursuance of a resolution of the town council of K., passed on the 17th July 1872, and entered in the corporation books, and sealed with the corporate seal, a market, and the tolls thereof, belonging to the corporation, were, on the 18th July 1872, put up to lease by auction for the term of one year, with an option to the lessee to extend the term to three years. By the conditions of auction a lease was to be granted on or before the 17th Aug. 1872, the rent to be paid by equal monthly payments, the first payment to be made to the clerk of the lessors "immediately on the fall of the hammer," and the lessee to be always one month's rent in advance; and in case of failure by the lessee to perform any of the conditions, the rent then already paid was to be absolutely forfeited, and the lease to be null and void. The lessee was also, "at the fall of the hammer," to produce two sureties, to be approved of by the lessors or their clerk, for the payment of rent and performance of covenants, and who were also forthwith to sign the conditions and lease. The defendant, as the highest bidder, became the purchaser or renter of the said market and tolls for one year, and thereupon the contract at the foot of the conditions clerk, although the latter was signed by him, and also by the town not authorised by the corporation under seal so to do. The defendant also paid one month's rent in ad. vance to the town clerk; but, not being prepared given to him by the town clerk to produce them, with the required sureties, a week's time was which period was subsequently further extended. A report of the above lettings to the defendant, A SOLICITOR writes to us inquiring whether and his payment of the month's rent, was made solicitors will have an audience in the Exchequer to the corporation, and was adopted by them by division of the High Court in Bankruptcy busi- a resolution of the 7th Aug. 1872, entered in the ness by virtue of the section of the Act which corporation books, and sealed with the corporatransfers to that division the business of the tion seal. By some mistake the keys of the London Bankruptcy Court. We refer our corre market buildings were, without the authority of spondent and our readers to the following Acts the corporation, and contrary to the instructions and sections of Acts of Parliament upon the sub- of the town clerk, handed by the market keeper ject: Sect. 70 of the Bankruptcy Act 1869, gives to the defendant, who retained them for some solicitors audience in the London Bankruptcy days, but who never otherwise obtained possesCourt; sect. 3 of the Judicature Act constitutes sion of the market, and never received any tolls. the London Bankruptcy Court part of the The defendant finally failed to produce his Supreme Court; sect. 34 of the Judicature Act sureties, the corporation relet the premises to transfers Bankruptcy business to the Exchequer another person, and brought an action against division of the court; sect. 87 of this Act operates the defendant to recover damages for his breach as a saving clause to the right of audience to of contract. Held by the Court of Exchequer which solicitors were entitled before the Supreme (Kelly, C.B. and Pigott and Pollock, BB.). Court of Judicature Act came into operation. that as the contract was not under the corWe are, however, at present, in great doubt as to poration seal, or signed by an agent of the the intended operation of this last provision, but corporation duly and expressly authorised by will only say that we are most decidedly of opinion them under seal for that purpose, and as that solicitors ought in bankruptcy business- the resolution of the 7th Aug. was after the from the very nature of that business-to have breach, and so too late to operate as a ratificaan equal audience with the Bar in the Exchequer tion, and there was no such part performance division of the High Court, and we must add the as to entitle the defendant in equity to a specific expression of a hope that proper accommodation performance on the part of the plaintiffs, the conwill be afforded them in court. The present tract was void for want of mutuality, and the

A CORRESPONDENT asks to be allowed to complain through our columns of the practice by which a successful defendant in a common law action in the Superior Courts is called upon to pay the court and jury fees. He urges that the plaintiff, whether successful or not, should be called upon to bear this expense, on the ground that it often happens that cases are taken to trial when the plaintiff has little chance of success, is poorly off, and the defendant, if successful, can get nothing from the plaintiff, and has in fact after all to pay his own costs. Our correspondent contends that the practice should be assimilated to the practice which prevails in County Courts, where, except under certain circumstances, the plaintiff is obliged to pay the hearing fee before his case is allowed to go before the court, and so also in case a jury is empannelled to try his cause. Although we do not altogether agree with the contentions of our correspondent, we think that the suggestion is one which, if adopted, might work some improvement on the present system.

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plaintiffs' action thereon was not sustainable. Per Kelly, C.B.-The town clerk, although he is the agent and representative of the corporation for many purposes, is not their agent to make any contract for the sale or letting of lands, or the leasing of any incorporeal hereditaments, unseal of the corporation for that purpose: (The less he is duly and expressly authorised under the Mayor and Corporation of Kidderminster v. Hardwick, 29 L. T. Rep. N. S. 611. Ex.)

MASTER AND SERVANT-AGREEMENT

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FOR

TWELVE MONTHS CERTAIN, AFTER WHICH TIME

EITHER PARTY TO BE AT LIBERTY TO TERMINATE AGREEMENT BY THREE MONTHS' NOTICE" made the 23rd Jan. 1871, under which it was -CONSTRUCTION.-By an agreement in writing, agreed that the defendant should, so long as the agreement was in force, serve the plaintiff in the capacity of commercial traveller, at a specified salary per annum, payable fortnightly, it was stipulated that the agreement between the parties should be "for twelve months certain, after which the said agreement by giving to the other a three time either party should be at liberty to terminate months' notice," &c. But if the said plaintiff should be desirous of terminating this agreement without notice, after twelve months, or before any notice has expired, he may do so on paying the said defendant the sum of £50. The defendant entered the plaintiff's service accordingly, and on the 7th Dec. 1871 received a letter from the plaintiff, informing him that his services would not be required after the 23rd Jan. 1872, when the emshortly afterwards commenced by the plaintiff, to ployment consequently ceased. Án action being recover a debt alleged to be due from the defendant under the above agreement, the defendant pleaded, by way of set-off, a sum of £50, which he alleged was due to him as liquidated damages, in lieu of notice, as provided by the agreement; and, on a special case stated for the opinion of the court thereon, it was held, by the majority of the Court of Exchequer (Bramwell and Pigott, BB., dissentiente Kelly, C.B.), that the agreement was for twelve months certain, determinable at the expiration of that period, at the option of either party, without any notice at all; that the stipulation for a three months' notice applied only to the possible continuance of the service after the twelve months, which possibility was contemplated by the agreement; and that, therefore, the defendant was not entitled to the set-off claimed, and judgment must be given for the plaintiff : Langton v. Carleton, 29 L. T. Rep. N. S. 651. Ex.)

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HUSBAND AND WIFE-DEED OF SEPARATION COVENANT TO PAY ANNUALLY TO WIFE DURING JOINT LIVES AND SO LONG AS THEY SHALL LIVE SEPARATE AND APART"-SUBSEQUENT ADULTERY OF WIFE-DIVORCE AND DISSOLUTION OF MARRIAGE.-Where a husband, by a deed of separation between himself and his wife, covenants to pay an annuity to trustees for her use and benefit, "during the joint lives of (the husband) and the said L. H. (the wife), and during so long time as they shall live separate and apart,' the facts of the wife's subsequent adultery, and her divorce, and the consequent dissolution of the marriage by a decree of the Divorce Court, are no answer to an action by the trustees for the arrears of the annuity, and a plea setting forth these facts, forms, in the absence of an express proviso to that effect in the deed, no bar to such action, the covenant being absolute and unconditional to pay the annuity so long as the two individuals "should live separate and apart." So held, on demurrer to a plea by the Court of Exchequer (Kelly, C.B., and Bramwell and Pigott, BB.): (Charlesworth and another v. Holt, 29 L. T. Rep. N. S. 647. Ex.) LUNACY-JURISDICTION COURT OF CHANCERY- - IMPROPER CONDUCT OF SOLICITORS.

Unsoundness of mind gives the Court of Chancery no jurisdiction, and a person who institutes a suit in chancery on behalf of a person of unsound mind does so at his own risk, and must bear the consequences of any unnecessary and improper proceedings. Orders of the Court of Chancery obtained by a solicitor who has officiously instituted such a suit give him no protection, and he will have to pay the costs of unnecessary inquiries made under such orders. But if, on the person of unsound mind being found lunatic by inquisition, the solicitor can satisfy the court in lunacy that he has acted bora fide for the benefit of the lunatic, that court will reimburse him out of the lunatic's estate. A suit instituted on behalf of a person of unsound mind not so found by inquisition abates immediately upon his being found lunatic by inquisition, and all proceedings taken in the suit after the inquisition are irregular and void. Decision of Wickens, V.C., reversed: (Beall v. Smith, 29 L. T. Rep. N. S. 625. Chan.)

Correction. In the report in our last issue of a meeting of the Legal Practitioners' Society, Mr. Webster is made to say, "Accountants to the Court of Chancery being the worst of these quacks." For "Chancery" substitute "Bankruptcy."

COURT OF QUEEN'S BENCH.
Monday, Jan. 12.

(Before BLACKBURN, QUAIN, and ARCHIBALD, JJ.)
Re AN ARTICLED CLERK.
ALTHOUGH this was merely an application to
allow Thomas Robert Oakley, an articled clerk,
to be discharged from his articles and to enter
into fresh articles, it raised a question of some
importance of its kind. By 23 & 24 Vict. c.
127, s. 10, articled clerks are prohibited from
holding any office while serving their articles.
The applicant in the present case, on the 19th
April in last year, obtained a commission as
lieutenant in the Royal Monmouthshire Militia,
and he went out with his regiment for twenty.
seven days, from the 19th May to the 14th June.
On the 9th Dec. he resigned his commission.
Fearing that his twenty-seven days' service might
bring him within the provisions of the Act, he
now applied to be allowed to be discharged from
his present articles, and to enter into fresh articles
for a time which would cover the twenty-seven
days.

:

omission or absence of which neutralises or
destroys the action, and which the jurists desig-
nate by the words decisoria litis:" (1 Fœlix, 453,
s. 233). The admiralty practice is stated in all
the text-books to be the same as above indicated
in the civil law. "If these letters rogatory are
received by any inferior judge he proceeds to call
the witnesses before him by the process com-
monly employed within his jurisdiction, examines
them on interrogatories, or takes their deposi-
tions, as the case may be; and the proceedings
being filed in the registry of his court, authentic
copies thereof, duly certified, are transmitted to
the court a quo, and are legal evidence in the
cause" (Conkling's U. S. Admiralty, 294, citing
Hall's Admiralty Practice, Conkling's Treatise,
601; verbatim in Benedick's Admiralty, s. 533:
Return in same manner prescribed by U. S. in
Admiralty, 1 Abbott's U. S. C, Practice, 84).
There has been so little doubt upon the point that
but one case has arisen under letters rogatory in
the United States, and in that, Judge Washington
clearly indicates the distinction which separates
commissions from letters rogatory, though the
case did not require him to define its extent:
Second exception. The instructions are not at-
tached, nor need other documents be attached by
the court. The reference to the original judg-
ment did make it a part of the letters as com.
pletely as if it had been attached physically, and
if the attorney for defendant had thought it not
properly a part of the document he should have
moved to strike it out: (1 Tr. & H. 521). The
doctrine of relation by reference needs no autho-
rity; it is too well established. The identity of
the document is sufficient: (Dodge v. Israel, 4
w. C. C. R., p. 323.) The sentences could not be
attached, for they had not become a part of the
record, and were only referred to as judicial pro-
the case if the witnesses should show any connec-
ceedings in Germany, which might become part of
tion between this suit and the sentences of Meyer
Leberman and his sons. No exhibits or docu-
ments are mentioned, and if the question had
been irrelevant, the defendant's attorney might
have moved to strike it out: (1 Tr. & H. 521).
Now that the connection has been proved, it is
too late for any objection: (Hill v. Canfield, 13
Smith, 77).

Bosanquet appeared for the applicant.
Attorney for the applicant: Raw, agent for (Nelson v. U. S., 1 Peters, C. C. R. 237).
Oakley, of Monmouth.

The COURT granted the application.

PROCEDURE IN FOREIGN COURTS-COM. MISSIONS AND LETTERS ROGATORY.

IN the Philadelphia District Court the following case has occurred ::

Exceptions to execution of letters rogatory. The defendant, by his attorney, excepts to the form and execution of letters rogatory issued out of this court in above case on behalf of plaintiffs, and filed September 15th, 1873, and now makes the following specifications of such exception:

1. The execution of the said letters rogatory is illegal and void in that it appears that the attorney and counsellor of the plaintiffs was present at the taking of the depositions of witnesses.

2. The form and execution of said letters rogatory are illegal and void, inasmuch as the exhibits or papers directed to be shown to the witnesses in the interrogatories exhibited by plaintiffs did not form part, nor were they attached to the letters rogatory by this court.

3. The form and execution of the said letters rogatory are illegal and void because there are attached to the execution of the said letters rogatory different papers, purporting to contain copies of orders, minutes, directions, and other matters not forming part of or belonging to the execution of the said letters rogatory.

Argument of plaintiffs against the exceptions. First exception. The proceedings are in a foreign court, and as a court does not proceed of its own motion, an attorney must appear to represent a party exactly as if the case had not been sent to another court for its co-operation; the defendant had the right to appoint an attorney in the foreign court to represent him, and see that his interests were guarded.

The attorney followed the practice of his country, the only practice known to the foreign court. We cannot dictate the method to be pursued by a court which we beg to act for us out of courtesy, but the presence of an agent who took no part in putting questions would be no ground of objection even to a commission: (1 T. R. & H. 525; Otis v. Clark, 2 Miles, 272.)

As this is a question of practice, it comes under the general head of objection raised by the third exception.

Dec. 20, 1873. Opinion by THAYER, J.-In Hollister v. Hollister (6 Barr, 449), the Supreme Court, adopting the rule of the English Chancery Courts, which prohibits the attorneys of the parties from being present at the taking of depositions under a commission, affirmed the ruling of the court below which had rejected depositions taken by com. missioners where it appeared that the attorney of one of the parties had been present that no notice of the time and place of the taking of the depositions had been given to the other party. The principal exception in the present case is, that the plaintiffs' attorney was present when the letters rogatory were executed. These letters were issued by this court, and addressed to any judge or tribunal having jurisdiction of civil causes at the city of Schweinfurt, in the Kingdom of Bavaria. and Empire of Germany. They were executed with great ceremony and solemnity by the Royal Circuit Court at Schweinfurt, in Bavaria. By the minutes of the proceedings, duly certified, which have been returned to us, it appears that on a certain day the royal attorney, Wolfsthal, acting on behalf of the plaintiffs, filed an information and motion in the Royal Circuit Court, at Schweinfurt, in Bavaria, praying them to execute the letters rogatory. Thereupon the Third exception. The practice of the foreign court court ordered the depositions to be taken by the is the law of procedure. Letters rogatory, un- commissioned Judge Craemer, who appointed a known to common law, are derived through admi- day for that purpose, and notified the plaintiffs' ralty from the civil law. They promise to reci- attorney, Mr. Wolfsthal, to attend at the time and procate the courtesy which they ask, and our place stated. Mr. Wolfsthal appeared accordstatutory provisions assimilate the course of pro-ingly, and produced before the judge commis. cedure in the execution of letters rogatory ad- sioned to take the depositions a decree of the dressed to us, to the ordinary practice of our Royal Bavarian Court of Appeals for Lower courts: Act of 8th April 1833, sects. 18, 19, 20, Franconia and Aschaffenburg, dispensing with the and 21; Pamphlet Laws, 308; Purdon, 623. This oath of secrecy on the part of the witnesses (who establishes our recognition of the principle that were Royal Counsellors of the Circuit Court), a the law of the country to which the letters are dispensation which appears from the papers to addressed governs the procedure to be adopted in have necessary before the witnesses could be perexecuting them; this is the civil law. Felix mitted to answer the plaintiffs' sixth interrogasays: "In that which concerns the provisions tory. The commissioned judge then proceeded to ordinatoriæ litis, that is to say, the mode of administer the interrogatories and to receive the calling the witnesses and parties before him, the answers of witnesses; at the conclusion of which forms of making up the report, &c., the judge he adds: "Whereas, the legal representatives of ought to observe the laws of his country:" 1 the plaintiffs, the royal attorney, Wolfsthal, after Traité du Droit International Prive, 476, s. 276, reading these present minutes for himself, had ad finem et seq. The civilians make a distinction, not any further motion to offer, the above prowhich corresponds to our division of form and ceedings have been closed, and the same caused substance between the forms and regulation and to be signed by him for confirmation." Wherethe merits, "between ea quae litis formam upon the attorney, Wolfsthal, signed the papers concernunt ac ordinationem and ea quae spectant in obedience to the requisition of the judge. I decisoria causae et litis decisionem." There are, have thus noted, with some particularity, the says Merlin, two sorts of judicial formalities, some proceedings of the foreign tribunal, in order that which pertain only to the trial (l'instruction) and the precise extent of the participation of the are relative only to the procedure, for which plaintiffs' attorney in those proceedings might reason the jurists call them ordinatoria litis; the appear. It is to be observed that there is a others, which pertain to the merits of the case, the very broad distinction between the execution

of a commission and the procuring of testimony by the instrumentality of letters rogatory or letters requisatory, as they are sometimes called. In the former case the rules of procedure are es tablished by the court issuing the commission, and are entirely under its control. In the latter, the methods of procedure must, from the nature of the case, be altogether under the control of the foreign tribunal which is appealed to for assistance in the administration of justice. We cannot execute our own laws in a foreign country, nor can we prescribe conditions for the performance of a request which is based entirely upon the comity of nations, and which, if granted, is altogether ex gratia. "We therefore request you that, in furtherance of justice, you will, by the proper and usual process of your court, cause such witnesses to appear before you, and there to answer, &c., &c." This is the formula in which the letters are couched. We cannot dictate the methods to be pursued by the court whose assistance we invoke. The rules and practice of the foreign court must be the law of procedure in such cases. Letters rogatory were unknown to the common law. They came to us from the civil law, though the Admiralty Courts, and the civi lians seem to agree that in all that concerns the forms of procedure in such cases, the Judge ought to observe the laws of his own country. We may therefore adopt, in the present case, the language of Washington, J., in Nelson v. The United States (1 Peters C. C. R. 237): "Where the business is taken out of the hands of persons appointed by this court the ends of justice seem to require a departure, in some degree, from the ordinary rules of evidence. To what extent this departure would go has never yet been decided in this court, and it is not necessary at present to lay down the limitation." Doubtless, if it should appear that any of the substantial requisites of justice, as we advantage given to either party, we would reject administer it, had been omitted, or any unfair the depositions, no matter what solemnities of form had attended the taking of them. under the circumstances attending the execution of these letters rogatory by the Royal Circuit Court at Schweinfurt, we cannot regard the attendance of the plaintiffs' attorney as a circumstance of that character. He appears to have attended in pursuance of a notification of the judge who took the depositions, and was required by him to verify them by his signature. It thus very plainly appears that his attendance was altogether in conformity with the rules of procedure in the foreign tribunal, and the character of the court which executed our request affords ample assurance that his presence was not permitted in any degree to prejudice the defendants' rights. The other exceptions require no discussion. Exceptions dismissed."

But

SUPREME COURT OF JUDICATURE ¡ACT, SECTIONS 64, 65.

The following circular has been issued by the undersigned :

Dear Sir,-By these sections as they stand, a plaintiff is at liberty to issue his writ where he pleases; but a defendant in an action commenced by writ issued at a district registry office, must enter an appearance there, and all subsequent proceedings, down to and including entry for trial, must be taken there, unless a judge's order can be obtained to transfer to London.(See the sections printed below.)

The consequence will be, in cases where the defendant's solicitor resides away from the district registry town, that he must employ an agent in that town. This will apply not only to what are now called common law actions, but to every description of suit.

While we are ready to believe that in certain parts of the country these sections will work beneficially, we dislike the prospect of being com. pelled to employ casual agents in cases where our clients are defendants. We had much rather be at liberty to employ our well-known London agents (and we have freely told them so), and if the business is to be done at a distance, we much prefer London to any other place. We object to being obliged in every case to incur the expense of applying to a judge. Moreover, we believe that our clients' interest agrees herein with our own convenience.

We believe that very many country solicitors, not hostile to the establishment of district registries, agree with us in this matter. We think it would be well that before the rules of procedure are finally settled, they should have an opportunity of expressing their sentiments, so that an effort may be made, if the result of the inquiry warrants it, to secure freedom of action. Time being of importance, we take this preliminary step on our own responsibility.

We assume that local opinion is in favour of retaining in Lancashire regulations like those already in force there, and we have no desire to interfere with the convenience of others, but only to provide fairly for our own.

The question we ask is, whether you had rather A.-Keep section 64 as it stands. B.-Have its operation modified (elsewhere than in Lancashire) to this extent-that where a defendant in any action can swear that he believes he has a good defence on the merits, he may enter his appearance in the principal registry (or in some other way remove the proceedings thither) as of course, or

C.-Give the defendant such right only where he resides three miles from the district registry office in which the writ was issued.

We request the favour of your reply, addressed to any one of the undersigned, whose name is distinguished thus.*

You can reply with the least trouble to yourself, by simply returning the circular with your name and address written at foot, and a cross placed against A., B., or C., according to your opinion. It will be convenient to mark the envelope, "J. Act."-We are, dear Sir, yours faithfully, *FOWLER, SMITH, and WARWICK, Leicester. KIDSON, SON, and MCKENZIE, Sunderland. *MULLINGS, ELLETT, and Co., Cirencester. *H. A. OwsTON, Leicester.

L. W. WINTERBOTHAM, Stroud. Sec. 64. Subject to the rules of court in force for the time being, writs of summons for the commencement of actions in the High Court of Justice shall be issued by the district registrars when thereunto required; and unless any order to the contrary shall be made by the High Court of Justice, or by any judge thereof, all such further proceedings, including proceedings for the arrest or detention of a ship, her tackle, apparel, furniture, cargo, or freight, as may and ought to be taken by the respective parties to such action in the said High Court down to and including entry for trial, or (if the plaintiff is entitled to sign final judgment or to obtain an order for an account by reason of the non-appearance of the defendant) down to and including final judgment or an order for an account, may be taken before the district registrar, and recorded in the district registry, in such manner as may be prescribed by rules of court; and all such other proceedings in any such action as may be prescribed by rules of court shall be taken, and, if necessary, may be recorded in the same district registry.

Sec. 65. Any party to an action in which a writ of summons shall have been issued from any such district registry shall be at liberty at any time to apply, in such manner as shall be prescribed by rules of court, to the said High Court, or to a judgment chambers of the division of the said High Court to which the action may be assigned, to remove the proceedings from such district registry into the proper office of the said High Court; and the court or judge may, if it be thought fit, grant such application, and in such case the proceedings and such original documents, if any; as may be filed therein shall, upon receipt of such order, be transmitted by the district registrar to the proper office of the said High Court, and the said action shall thenceforth proceed in the said High Court in the same manner as if it had been originally commenced by a Writ of Summons issued out of the proper Office in London; or the court or judge, if it be thought right, may thereupon direct that the proceedings may continue to be taken in such district registry.

Correspondence.

THE TWO BRANCHES.-I am pleased to see such a society as the Legal Practitioners Society started, and I hope it may go seriously to work in ameliorating the position of both barristers and lawyers and in bringing about any legislative enactments which may be necessary in regard to them. I cannot say that I advocate a fusion of the two branches of the legal Profession. I do not see that it is necessary, or that the present system is to be complained of. But what I do wish is, that there may not be any unreasonable barriers kept up which prevent any member of one branch migrating into the other. Supposing, for instance, an admitted man finds he has a peculiar aptitude for advocacy, or for any other season, desires to be called to the Bar, I consider it unreasonable that he should be called upon to undergo another preliminary examination previously to being admitted a student of an Inn of Court, and still more that when, perhaps, he is a thoroughly efficient lawyer for all practical purposes connected with a junior barrister, he should be kept inactive for three years. At the most he should not be called upon to do more than undergo an additional examination in legal subjects. The regulations I complain of may have been all very well before the examinations for articled clerks at the Incorporated Law Society's Hall were initiated, but surely now there is a sufficient guarantee that admitted men have some legal knowledge, and do not require to be treated in the same manner as persons who have never studied law at all. I should like to hear the opinion of others upon this matter, and hope this may elicit some. I look upon the

society just started as the very one which is wanted, if the good intentions already expressed are carried out. H. S.

LEGAL PRACTITIONERS' SOCIETY.-I see by the report in your journal that this is a society for the purpose of protecting solicitors and attorneys in their Profession from the intrusion of accountants and others. It is high time such a society was formed if the legal Profession, particularly the younger branch thereof, is to reap the legitimate fruits to which it is entitled. If energy is shown, to put a stop to the proceedings of unqualified persons I am sure every junior solicitor and attorney will join the society, if only asked. I, for one, feel that much credit is due to Mr. Ford for his trouble in undertaking the office of honorary secretary. A SOLICITOR.

CLERKS AS ADVOCATES.-In reading provincial and London reports of cases, I see continually the following: "Mr. A. B., from the office of Mr. C. D., appeared in the case." Would you kindly inform me in your next issue, assuming "A. B." to be admitted and certificated, by what authority he had audience. I have searched but without INQUIRER. finding out.

[The matter is entirely in the hands of the judges of the courts. Managing clerks are not entitled to appear as advocates for clients of But firms, and may properly be objected to. judges are disinclined to enforce the strict rule, and it is always an invidious and difficult task to insist upon it as against an opponent.-ED. SOLS'. DEP.]

APPOINTMENTS UNDER THE JOINT-STOCK WINDING-UP ACTS. ANGLO-BRAZILIAN GOLD MINING COMPANY (LIMITED).— Creditors to send in by Feb. 12 their names and addresses, and the particulars of their claims, and the names and addresses of their solicitors (if any), to the liquidators of the said company, at their office, 52, Moorgate-street, London. Feb, 24, at the chambers of V.C. M., at twelve o'clock, is the time appointed for hearing and adjudicating upon such claims.

LAST NORFOLK TRAMWAY COMPANY (LIMITED).-Petition for winding up to be heard Jan. 23, before V.C. M. HEREFORD AND SOUTH WALES WAGGON AND ENGINEERING COMPANY (LIMITED).-Petition for winding-up to be heard Jan. 24, before V.C. B.

SAO VINCENTE MINING COMPANY (LIMITED).-Creditors to send in by Jan. 31 their names and addresses, and the particulars of their claims, aud the names and addresses of their solicitors (if any), to Jas. Waddell, 12, Queen Victoria-street, London, the liquidator of the said ccmpany. Feb. 17; at the chambers of V.C. M., at twelve o'clock is the time appointed for hearing and adjudicating upon such claims.

CREDITORS UNDER ESTATES IN CHANCERY,

LAST DAY OF PROOF.

ALLEN (Nicholas B.). Torvale, Penderyn, Brecon, merchant. Feb. 2; Isaac D. Rees, solicitor, Aberdare, Glamorgan, Feb. 16; V.C. M., at twelve o'clock. GILLIART (Geo.), Horncastle, Lincoln. Jan. 31; Chas. Gilliat, solicitor, 57, Lincoln's Inn-fields, Middlesex, Feb. 16. V. C. H., at 12 o'clock.

HAWES (Henry), Foochow, China, captain of a steamer. Feb. 2; Lawrence and Co., solicitors, 14, Old Jewry Chambers, London, Feb. 10. V. C. B., at 12 o'clock.

WHYTE (Wm. J.), 19, Norfolk-crescent, and Bedford-row, Middlesex, solicitor. Feb. 1: Wm. Collisson, solicitor, 27, Bedford-row, Middlesex. Feb. 12; V.C. H., at twelve

o'clock.

CREDITORS UNDER 22 & 23 VICT. c. 35. Last Day of Claim, and to whom Particulars to be sent.

BARNETT (Francis L.), 5, Roebuck-terrace, Great Dover-
street, Southwark, Surrey, pawnbroker. Jan. 28; W. W.
Comins, solicitor, 84, Great Portland-street, Middlesex.
BERWICK (Dr. Geo. J.), M.D., St. Helen's House, St.
Helen's, near Ryde, Isle of Wight. Feb. 3; Clarke and
Co., solicitors, 14, Lincoln's-inn-fields, Middlesex.
CHILD (Frederick S.), late of the Madras Civil Service,
heretofore of Wood-hill, Shenley, Hertford, and after-
wards of Hillside, Westbury-upon-Trym, near Clifton,
Gloucester, and late of 8, Queen's-parade, Bath, Esq.
March 1; R. J, Child, solicitor, 11, Old Jewry-chambers,
Old Jewry, London.

London.

COSIER (Wm.), Wilmington Hall, Kent, Esq. Feb. 1: Desborough and Son, solicitors, SA, Finsbury-place South, CRAIG (Thos. G.), late of 3. Sheen-villas, Park-road, Richmond, Surrey, formerly of 12, Marlborough-road, Richmond, Surrey, gentleman. Feb. 2; Bircham and Co., solicitors, 7, Great Winchester-street, London. DAVIES (Samuel), Litfield, Lyonshall, Hereford, yeoman. Feb. 28 Bodenham and Temple, solicitors, Kington, Herefordshire. DAVIES (Jos.), Old Dundee Arms Wharf, Wapping, Middlesex, and of Portway House, Upton Cross, Essex, coal merchant. Jan. 24; Hillearys and Tunstall, solicitors, 5, Fenchurch-buildings, London.

DEARDEN (John), Sladen-street, Rochdale, Lancaster, innkeeper. Jan. 26; J. Holland, solicitor, 19, Baillie-street, Rochdale.

Berks.

FLOWER (WM.), Stanton's Farm, Kingsclere, Southampton, gentleman. Feb. 14; W. H. Cave, solicitor, Newbury. FOSTER (Edward), 27, Pelham-street, Mile-end New Town, Middlesex, cowkeeper. Jan. 31; S. H. Perrin, solicitor, 15, King-street, Cheapside, London. GALLOWAY (Right Hon. Randolph John S., Earl of). Jan.

31; M. and H. Turner, solicitors, 42, Jermyn-street, St. James's, London.

GRANT (Wm.), Nuttall Hall, near Ramsbottom, Lancaster,

Esq. Feq. 1; Woodcocks and Sons, solicitors, West View, Haslingden.

GREENHILL (Henry W.), late of Northolt, Middlesex,

farmer. Jan. 31; Young. Jackson, and Co., solicitors, GUNTER Mary A.), formerly of Handsworth, Stafford, and 12, Essex-street, Strand, Middlesex, late of Southsea, Hants, spinster. Jan. 24; Robinson and Watts, solicitors, Dudley. HANBY (Geo.), late of 246, Clapham-road (formerly 6, Dudley-villas, Clapham-road), Surrey, and of the Marineparade, Bognor, Sussex, Esq. Feb. 20; Tatham and Co., solicitors, 36, Lincoln's-inn Fields, London.

HARDWICKE (Right Hon. Charles P.. Earl of). Feb. 10: Walker and Martineau, solicitors, 18, King's-road, Gray's

Inn, Middlesex.

HART (Wm.), 35, Clifton-terrace, Brighton, Esq. Jan. 29; HIBBERDINE (Henry), 77, Loughborough Park, Brixton Hart, Hart, and Marten, solicitors, Dorking, Surrey. Surrey, gentleman. Feb. 10: Tamplin. Tayler, and Joseph, solicitors, 159, Fenchurch-street, London.

HUNT (Wm. D.), Stratford upon-Avon, Warwick, gentle

man, clerk to the peace for Warwick. Feb. 7; H. O. and T. Hunt, solicitors, Stratford-upon-Avon.

JOHNSON (Mary), Yarm, York, spinster. Jan. 25; Fawcett

and Co., solicitors, Yarm.

LEVY (Rev. Moss B.), Synagogue-chambers. St. Alban'splace, Charles-streat, Haymarket, Middlesex. Feb 1: Kisch, Son, and Hanbury, solicitors, 11, Wellingtonstreet, Strand, Middlesex.

MARKS (Thos.), Collerton Barton, Broadhembury, Devon, farmer. Feb. 2; Cox and Every, solicitors, Honiton, Devon. NEAL (Jas.), 30, Commercial-road, and Old Jamaica Wharf, Upper Ground-street, Blackfriars, Lambeth, Surrey, coal merchant. Feb 24; Smith and Co., solicitors, 70A, Alder. manbury, London.

NIXON (John), formerly of 3, Sidney-alley, Leicester-square, Middlesex, and 9, Egerton-street, Greenwich, Kent, late of 1, Cowley-villas, Beulah-crescent, Croydon, Surrey, laceman. Jan. 28; Wilkins and Co., solicitors, 10, St. Swithin's-lane, London.

OLIVER (Wm.), 9, Fitzroy-square, Middlesex, Esq. Feb. 12; Wm. H. Oliver, solicitor, 64, Lincoln's-inn-fields, Middlesex. PARKES (James H.), Highgate, Aston juxta Birmingham, maltater. April 1; T. and J. A. Simcox, solicitors, 20, Waterloo-street, Birmingham.

PHILLIPS (George), Langbourn Tavern, Lombard-street. London, and Napier Lodge, Peckham Rye, Surrey, hotelkeeper. Jan. 20; S. Potter, solicitor, 36, King street, Cheapside, London.

QUIGLEY (Peter), 8, Sandford-street, Greengate, Salford, Lancaster, estate agent. March 10; Weston. Grover, and Lees, solicitors, 10, Norfolk-street, Manchester. RANDLE (Mary A.), Filmer House, Ombersley, Worcester, widow. Feb. 19; Pidcock and Son, solicitors, 40, Foregate-street, Worcester.

ROUND (Geo.), 155, Hockley hill, Birmingham, jeweller and factor. Jan. 31; J. Round, 63, Owen-street, Tipton, Stafford. SAMUELSON (Alexander), 27, Cornhill, and Kingston Lodge, Addison-road, Kensington, London, civil engineer. Feb. 16; G. S. and H. Brandon, solicitors, 15, Essex-street. Strand, Middlesex.

STEELE (John), formerly of Weeks Green, Froxford, afterwards of Langstone, but late of Emsworth, Southampton, Esq. Feb. 16; Rivington and Son, solicitors, 1, Fen church-buildings, London.

TAYLEUR (Wm.), Buntingsdale, Drayton-in-Hayles, Salop, and 38, Brook-street, Grosvenor-square, Middlesex, Esq. Feb. 14, Tucker and Lake, solicitors, 4, Serle-street, Lincoln's-inn Fields, Middlesex.

TOWLSON (Jos.), 1, Fern-villas, Queen's-road, Tunbridge Wells, retired ironmonger. Feb. 28; Wm. Brackett. Tunbridge, and Jas. W. Hawkins, ironmonger, Highstreet, Tunbridge Wells.

WALKER (Thos.). Headingley Hall, Leeds, flax spinner, March 31; Ford and Co., solicitors, 70, Albion-street. Leeds.

WILLIAMS (John), West Broughton, Deveridge, Derby, gentleman. Feb. 7; D. and C. Dunnett, solicitors. Uttoxeter.

WILSON (John), formerly proprietor of the George inn, Rochdale-road, Manchester, Lancaster, and late of Southport, gentleman. Feb. 9; Ed. Heath and Sons, solicitors, 41, Swan-street, Manchester.

WOLFE (Wm.), 11, Granby-street. Hampstead-road, Middlesex, forage master in the Royal Horse Guards Blue. March 2; Wm. Gardiner, solicitor, 182, High-street. Uxbridge.

MAGISTRATES' LAW.

NOTES OF NEW DECISIONS. FRAUDULENT CONVERSION OF MONEY BY AN AGENT-DIRECTION TO APPLY TO A GIVEN PUR. POSE.-A stock and share dealer was in the habit of buying for S. gratuitously, and receiving cheques on account. On the 27th Nov. he wrote informing S. that £300 Japanese bonds had been offered to him in one lot, and that he had secured them for her, and that he had no doubt of her sold note for £336, signed in his own name. S. ratifying what he had done, and inclosing her a wrote in reply, "that she had received the con. tract note for Japan shares, and inclosing a cheque for £336 in payment, and that she was perfectly satisfied that he had purchased the shares for her." In fact, the bonds had not been offered to the dealer in one lot, but he applied to a stock jobber and agreed to buy three at £112 each, but never completed the purchase. Held, that S.'s letter was a sufficient written direction within the meaning of 24 & 25 Vict. c. 96, s. 75, to apply the cheque to a particular purpose, viz., in payment for the bonds: (Reg v. Christian, 29 L. T. Rep. N. S. 154. C. Cas. R.)

MONTGOMERYSHIRE QUARTER SESSIONS. Thursday, Jan. 8.

(Before Earl Powis (Chairman), Mr. C. W. WYNN, M.P., and other magistrates.) REG. v. ESGAIRGEILIOG. Inclosure - Commissioners award - Evidence.Certificates as to making of road. THIS was an indictment for non-repair of a road laid out some seventy years ago in the township of Esgairgeiliog, under a special Inclosure Act passed in 1797, the defendants being the inhabi tants of the township. There was a similar prosecution twelve months ago, which failed for want of a duly attested copy of the commissioner's award, the township, however, being condemned in the costs, as the indictment was prepared under a justice's order, and the defendants did not show that the road was not a public highway. The present was an indictment at common law.

Marshall appeared for the prosecution, and Swetenham (specially retained), with J. M. Lloyd,

for the defence.

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"

The case having been opened, the Act of Parliament was put in, followed by a copy of the commissioner's award, produced from the custody of the lord of the manor (Earl Powis), which was made primary evidence by the Act. The Act specified that on the roads being completed, they should be certified to be "well and effectually made by a surveyor appointed by the commissioner, and that on the certificate being filed with the court of quarter sessions, they should become repairable as other public roads on the manor (Kerry) were repairable by law. A certificate had been duly filed at the Easter sessions, 1810, by William Pugh, the surveyor so appointed, and was now produced by the deputy clerk of the peace; but upon his being sworn, Swetenham objected to its reception until the appointment of the surveyor and his taking of the oath of office had been proved, relying upon the case of R. v. Haslingfield. At any rate, on the authority of that case, it would be necessary to show by independent evidence that subsequent usage had been consistent with the award, before proof of the appointment and oath could be dispensed with.

Marshall said he had abundant evidence to prove the usage, but he relied first upon the wellknown rule that documents thirty years old, produced from the proper custody, proved themselves; and then upon the other rule of evidence that where persons had acted in an official capacity it was necesary to prove their appointment, even where it had been under seal or was put in issue by the pleadings. He quoted the case of Williams v. Eyton in support of his argument. The Court decided to admit the certificate without further evidence.

Mr. Evan Powell, the prosecutor, and Mr. Mickleburgh, a surveyor, were then called to speak to the condition of the road, and were examined at some length. On a question being put to the last witness as to his opinion upon its original formation, the court said they held the surveyor's certificate to be conclusive upon that point.

Swetenham said if that was so, the only course for him would be to abandon the defence and ask for a special case, as he had a number of witnesses to show that the road never was properly made at all. Before the court came to that decision, however, he should like to be allowed to give his reasons for holding that the certificate could not be conclusive.

The COURT said they were perfectly prepared to hear him.

The learned counsel then, in a speech of some length, argued that the expression in the Act that the roads should be well and effectually made,

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66

and certified so to be," showed that the certificate was not intended to shut out other evidence; that by the cases of Reg. v. Cumberworth, Reg. v. Edge Lane, and Bateman v. Glamorganshire Canal Company, it was decided that a road must be shown to be completely formed throughout before it becomes a charge upon the public, which he was prepared to prove was not the case here; that Reg. v. East Hagbourne indicated the same thing; and that the point was made perfectly clear in Cubitt v. Lady Maxse, decided last June, in which that doctrine was emphatically laid down. Marshall, in reply, referring to the phrase "taken to by the public" used in the judgment in the last-named case, remarked that the doctrine of a voluntary adoption of a road by the parish being necessary before it became chargeable upon the public, had been abandoned many years, because, ever since the passing of the General Inclosure Act of 1801 (41 Geo. 3), there had been the security of an order of justices founded upon the report of a surveyor-a provision substantially continued and strengthened by the 23rd section of the Highway Act of Will 4. That security was provided by the Kerry Inclosure Act in this very certificate of the surveyor now contested, for it was not until that had been filed that the road became chargeable upon the public. In Rex v. Cumberworth, the judgment was founded upon this very want of a particular point of time determined by the Act at which the chargeability should commence; and not only so, but all the cases cited upon that point were those of turnpike roads or canals, the judgments being based upon the fact that concessions of land had been obtained from private landowners as one of the inducements for the passing of the respective Acts-a feature wholly wanting in this case. The great distinction of Lady Maxse's case was that the Inclosure Act there was passed in 1802, after the General Inclosure Act, and therefore subject to its provisions; while the Kerry Act was passed four years before it. Ree v. East Hagbourne, he submitted, had no application. As to the use of the copulative "and" in the phrase quoted from the Act, the necessity for using it would become apparent from the absurdity that would follow if the disjunctive "or" were substituted for it. The certificate was the proper legal evidence of the completion of the road; and if such testimony as that suggested by the learned counsel were admitted it would be adducing unofficial evidence to contradict that specially appointed by law.

The COURT intimated that it still held the certificate conclusive, and a verdict of guilty was then returned, subject to a special case upon that point. The penalty was fixed at £90.

BOROUGH QUARTER

When holden.

Saturday, Jan. 24 Wednesday, Jan. 28.. Wednesday, Jan. 28.

MARITIME LAW.

NOTES OF NEW DECISIONS.

Recorder.

SESSIONS.

Charles S. C. Bowen, Esq. Thomas H. Naylor, Esq.. Joseph Catterall, Esq.

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in a case of nonfeasance, just as much as in a case of misfeasance. Per Denman, J., Reg. v. Russell (6 B. &. C. 566) is overruled by Reg. v. Ward (4 Ad. & F. 384.): (Jolliffe v. the Wallasey Local Board, 29 L. T. Rep. N.S. 582. C.P.).

DAMAGE TO CARGO-BURDEN OF PROOF-BILL OF LADING-EFFECT OF TERM "QUANTITY AND QUALITY UNKNOWN."-In a suit against shipowners for damage to cargo the onus is upon the plaintiffs to show in the first instance that the goods were shipped in good order and condition before they can call upon the shipowners to show excuse for the injury done to the goods. A bill of lading stating that goods were shipped in good order and condition, but also containing an indorsement by the master, "quantity and quality unknown," does not admit, as against the shipowners, that the goods were shipped in good order and condition. Evidence of the condition of goods on delivery tending to show that the damage sustained could not be accounted for by any damage existing at the time of shipment, and that such damage, had it existed, must have been noticed by the master or officer in charge of the ship at the time of shipment, will not, where goods are shipped under a bill of lading endorsed "quantity and quality unknown" satisfy the onus cast upon plaintiff's seeking to recover against shipowners for damage to the goods. Positive evidence of the condition of the goods when shipped must be given: (The Prosperino Palasso, 29 L. T. Rep. N. S. 622. Adm.)

OBSTRUCTION TO A TIDAL RIVER OMISSION TO INDICATE OBSTRUCTION BY A SUFFICIENT BUOY.-By a local Act the defendants were authorised to construct in conformity with certain deposited plans," and upon the lands delineated upon the said plans," a pier or landing stage, together with such other works and conveniences in connection therewith," as they should from time to time think fit. Before the landing stage was commenced plans of the proposed works were to be deposited at the Admiralty for approval. The local Act was to be executed "subject to the powers and provisions" of the Public Health Act 1818, sect. 139 of which requires notice of action "for anything done or intended to be done" under the provisions. The defendants deposited plans (differing in extension from the plans under the Act) which received the approval of the conservators of the river, representing the Admiralty, and constructed the landing stage in conformity therewith. The landing stage was a floating one, and was moored by anchors lying in the bed of the river. The position of the anchors was indicated by a buoy, which, being carried down by the tide, became concealed from view. One of the anchors becoming displaced, stove in and swamped a vessel of the plaintiffs which was lawfully navigating the river. Held (1), that the anchor, although placed where it was for the benefit of the public, was an ob- CHARTER-PARTY-LIEN FOR FREIGHT-PART struction which the defendants could not have PAYABLE ON SIGNING OF BILLS OF LADINGcreated without statutory authority, and was a BANKRUPTCY OF CHARTERERS-DISCLAIMER OF nuisance to the river; (2) that the defendants CONTRACT.-By a charter-party, after providing were guilty of negligence in their management of the buoy, but (3) that inasmuch as the plans had received the approval of the Admiralty, such approval was tantamount to the sanction of the Act, so as to entitle the defendants to statutory notice of action. Notice of action must be given

that the freight was to be at certain specified rates, it was agreed that £250 should be advanced in cash on signing bills of lading and clearing at the custom house of the port of shipment, and the remainder on a true and faithful delivery of the cargo at the port of discharge; and that for

the security and payment of all freight, dead freight, demurrage, and other charges, the master or owners should have an absolute lien and charge on the cargo. The loading of the ship was completed, and the ship was cleared, but she never started on her voyage, nor were the bills of lading signed. The charterer filed a liquidation petition, and the trustee under the liquidation disclaimed all interest under the charter-party. Held (affirming the decision of the Chief Judge in Bankruptcy), that the shipowner was not entitled to a lien in respect of the £250 agreed to be paid in advance, inasmuch as the ship had never earned freight; the compensation to which the shipowner was entitled for the loss sustained by reason of the charterer's default was not freight, and the £250 did not come within the lien given by the charter-party: (Ex parte Nyholm, 29 L. T. Rep. N. S. 634. L. C. and L.JJ.)

REGISTRY OF SHIP-CERTIFICATE OF MERITLACHES.-The defendants were an association for the registry of iron ships, and classed the ships in a register of merit according to the reports of their own surveyors. A list from the register might be obtained by anyone. The plaintiffs were members of the association and the owners of a ship which in 1870 was ranked in the highest class in the register. The plaintiffs in 1870 made an alteration in the ship, and submitted her to the defendants' inspection, who, not approving of the alteration, entered in the registrar," class suspended 1871," and refused to restore the previous first-class entry unless some further alteration was made. The advisability of the alteration was a matter of opinion, as since the alteration the vessel was classed in the highest rank at 'Lloyd's" (London). The plaintiffs continued to use the vessel, but it was proved that her value had been depreciated in consequence of the entry in the defendants' register. On a bill being filed by the plaintiffs in Nov. 1873 to restrain the defendants from disposing of any copies of their list containing the words "Class suspended 1871," Held, on motion, that the plaintiffs were not enti tled to relief, first, because the entry was the bona fide opinion without malice of the society to whose judgment the plaintiff had submitted the vessel; secondly, because of their laches in applying to the court for relief: (Glover v. Roydon, 29 L. T. Rep. N. S. 639. V.C. M.)

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SPECIMENS OF A CODE OF MARINE
INSURANCE LAW.

By F. O. CRUMP, Barrister-at-Law.
(Continued from page 165.)
REPRESENTATION.
Definitions.

The communication of a fact, or the making of a statement by one party to the other tending to influence his estimate of the character and degree of risk to be insured against.

NOTE.-A representation is construed according to the fair and obvious import of words, and is equivalent to an express statement of all the inferences naturally and necessarily arising from it.

Phillips, sect. 550.

If ambiguous from design, the underwriter, if deceived, is discharged. If there be no design, and the underwriter might fairly have entertained a doubt as to the meaning, he is not discharged if he misunderstand it.

Brine v. Featherstone, 4 Taunt. 867; Freeland v. Glover, 7 East, 462. If the representation is expressed in technical language, it may be interpreted by reference to the usage.

Chaurand v. Angerstein, Peake's N. P. 43.

A misrepresentation is a false representation of a material fact, by one of the parties to the other, tending directly to induce the other to enter into the contract, or to agree to terms exceptionally favourable to the former.

A misrepresentation may be made on a matter upon which no representation at all is necessary. Phillips, sect. 529-30.

A material mis-statement by the assured through misconstruction of his information is a misrepresentation.

Macdonell v. Fraser, Dougl. 247.
Phillips, sect. 546.

Materiality.

reasonably be supposed to have an influence on Material facts are those which when stated may the judgment of the underwriter calculated to diminish the estimate of the risk which he otherwise would have formed:

Sibbald v. Hill, 2 Dow's P. C. 263.

If the fact be material, but do not affect the judgment of the underwriter, the false representation does not avoid the policy:

Flinn v. Headlam, 9 B. & Cr. 690.

A statement which ceases to be material before the risk commences need not be verified:

Phillips, s. 666.

The premium being lower than would have been the case had no representation been made, the presumption is that the subject matter of the representation is material to the risk:

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