« EelmineJätka »
To Readers and Correspondents.
FRIDK. Wm. JACOMB.—The case you name will appear in the Reports in due course. A SUBSCRIBER.—The term junior can apply only where there are two. It could
not be used in the case you name. The sons would have to be known by their Christian names. The difficulty you name is one which has not been contem.
plated by the law, as far as we know. Å. Z.- A cross-examination of some directors in a Chancery suit was considered
unduly, severe-nothing more. We never heard the expressions you name applied
to the learned gentleman. Anonymous communications are invariably rejected. All communications must be authenticated by the name and address of the writer
not necessarily for publication, but as a guarantee of good faith.
understood it, the logical inference from the circumstances which he mentions being that £1000 a year is not enough to tempt the best men to apply. The result of the meeting, however was satisfactory. It was resolved to confine the selection to the legal profession, and the salary is not to be less than £800 or more than £1000. The position of Chief Clerk tu the LORD Mayor is one of great responsibility, and £1000 a year is certainly not too much to pay a competent officer.
CHARGES FOR ADVERTISEMENTS. Four lines or thirty words.......... 38. 6d. | Every additional ten words Os, 6d.
Advertisements specially ordered for the first page are charged one-fourth more than the above scale.
Advertisements must reach the Office not later than five o'clock on Thursday efternoon.
The sittings at Guildhall which terminate to-day commenced with heavy cause lists in all the courts, there being entered in the Queen's Bench more than 200 cases. And the business transacted has, as a rule, been legitimate city business, Lord Chief Justice COLERIDGE having been severely tested as a judge in dealing with complicated matters of mercantile law.
It is not for us to pay his Lordship a tribute, but it is satisfactory that he proves himself a decided acquisition in the Court of Common Pleas.
We regret that any arrears should remain at Guildhall, but when the new system comes into operation and delays disappear, we believe it will be found that no better tribunal for the disposal of commercial disputes is to be found in Europe than one of our Judges and a Guildhall special jury.
NOTICE. The Law TIMES goes to press on Thursday evening, that it muy be received in the remotest
parts of the country on Saturday morning. Communications and Advertisements must be transmitted accordingly. None can appear that do not reach the office by Thursday
afternoon's post. When payment is made in postage stamps, not more than 58. may be remitted at one time. All communications intended for the Editor of the Solicitors' Departmont should be so
Now ready, price 5s. 6d., VOL. II., Part 2, of
Esq., Barrister-at-Law, in the Admiralty Courts of England and Ireland, and in ar the Superior Courts, with a Selection from the Decisions of the United States Courts' with Notes by the Editor. The First Series of "Maritimne Law may now be had complete in Three Volumes, half bound, price £5 58. for the set, or any single volume for 42 28. Back numbers may be had to complete sets,
London : HORACE Cox, 10, Wellington-street, Strand, W.C.
sive relief-Cndertaking for damages 901 CLARK ". THE SCHOOL BOARD FOR LON
Elementary Education Act 1670 (33 & 34
Vict. c. 75), s. 19 & 20-Injury to pre-
903 RDGWAY 2. EDWARDS
nection with competing main lines ... 910
913 POPLAR BOARD OF WORKS *. LOVE
Paving and sewering-Incidental coste
and charges--Costs of collection, sur. vey plan, and notices
915 FIERCE + CORF
Auctioneer-Memorandum in writing of
a burgain - Internal reference to
several documents-Statute of Frauds 919
COURT OF COMMON PLEAS.
Collision-Fog-Ferry boat-Right to run-Liability
COURT OF PROBATE.
Testamentary suit-Costs not paid-
Ininistration bond-Sureties.......... 932
Intestacy -- Administration - Oath of
LEADING ARTICLES, &c.
901 The New Lord Chancellor and the County Courts ....
302 Recent Bankruptcy Decisions
303 Bourd of Trade Inquiries...
303 LAW LIBRARY
304 SOLICITORS' JOURNAL Topics of the Week
305 Notes or New Decisions Lord Mayor's Court
307 The Quulifications of Special Jurors....... Heirs-at-Law and Next of Kin.
308 Unclaimed Stock and Dividends in the Bank of England
308 Appointments under the Joint Stock
308 Reports of Sales
308 MAGISTRATES' LAWNotes of New Decisions
309 Chief Clerk to the Lord Mayor
300 COMPANY LAW
Notes of New Decisions
311 Bradford County Court
311 Cockermouth County Court
312 Newbury County Court.....
312 BAXKRUPTCY LAW Notes of New Decisions
313 Aberystwith District Court of Bankruptcy
313 Norwich County Court.......
313 LEGAL NEWS...........
314 CORRESPONDENCE OF THE PROFESSION... 315 NOTES AND QUERIES OX POINTS OF PRACTICE
316 LAW SOCIETIENManchester Incorporated Law Associetion
316 Mutual Life Assurance Society Bristol Articled Clerks' Society
317 Articled Clerks' Society
317 Law Students' Debating Society.
317 LEGAL OBITUARY ................
317 PROMOTIONS AND APPOINTMENTS........... 317 THE GAZETTES
317 BIRTHS, MARRIAGES, AND DEATHS ......... 318
The death in the streets of a benighted wayfarer, who had sought admittance into no less than five public-houses at Barton-le-Clay, and had been refused at all of them, on the ground of their being
quite full," has raised the question whether the well-known obligation of innkeepers to admit travellers has been extinguished by the Licensing Act of 1872. This is, of course, not the case, as a reference to sect. 25, which contains the express saving for bonâ fide travellers, will show; but it is equally certain that the innkeeper is not bound to admit them when his inn is full. It is probable enough, however, as we have already remarked in connection with the decision in Roberts v. Humphreys (L. Rep. 8 Q. B. 483; 29 L. T. Rep. N. S. 387), that the construction put by the Judges upon the Act in that case will make publicans more chary of admitting travellers than before. We have said the obligation to admit travellers is well known. It is, in fact, an obligation at common law, existing many centuries before licensing Acts were thought of. And it was so recently as 1835 that an innkeeper was indicted by an attorney for refusing to admit him late one Sunday night. The innkeeper was fined 208.; and Mr. Justice COLERIDGE said he had no doubt whatever about the law-the innkeeper was bound to admit his guests at whatever hour of the night they might arrive : (R. v. Ivens, 7 C. & P. 213, where the form of the indictment is printed at full length.) As to the bonâ fide traveller, he is a very modern invention. There were no closing hours at all in any licensing Act until 1822, when Sunday closing was first introduced by 3 Geo. 4, c. 77. And until the Public House Closing Act 1864 (27 & 28 Vict. c. 61) publichouses were allowed to be open all night long. The epithet
bonâ fide,” we may remark, first occurred in the short-lived Act of 1854 (17 & 18 Vict. c. 79), which, if our memory rightly serves us, caused no slight riots from the sharpness of its Sunday closing regulations, and was repealed the very next year by 18 & 19 Vict. c. 118, as having been “found to be attended with great inconvenience to the public.” In the substituted Act “bonâ fide" did not appear; but the Licensing Act of 1872 has replaced the term. We doubt whether it will prove of any service either to publicans or travellers. “A man is either a traveller or he is not, and the addition of bonâ fide makes no difference," said Mr. Justice WILLIAMS, in Atkinson v. Sellers (28 L. J. 13 M. C.), and we thoroughly agree with him.
The Law and the Lawyers.
The limit of the doctrine of the irresponsibility of a master for the injury sustained by one servant from the negligence or wrongful act of a fellow servant, has been discussed in a case in the United States Supreme Court, and a view taken which we incline to think is more consistent with justice than the strict rule in favour of the master which prevails in this country. In the case in question a man was employed to attend to some very complicated machinery; he had a boy under him, who was told to obey his directions. Most imprudently and improperly the man directed the boy to go up a ladder to adjust a belt which drove a portion of the machinery, and in doing so the boy was caught and lost his arm. For this injury an action was brought against the employer. On behalf of the plaintiff it was contended that the act so directed to be done was outside the boy's employment as a helper, and that the master was responsible for the wrongful act of the fellow servant. And the Court adopted this view, saying, “ For the consequences of this hasty action the company are liable, either upon the maxim of Respondeat superior, or upon the obligations arising out of the contract of service. The order of Collett was their order. They cannot escape responsibility on the plea that he should not have given it. Having entrusted to him the care and management of the machinery, and in so doing made it his rightful duty to adjust it when displaced, and having placed the boy under him with directions to obey him, they must pay the penalty for the tortious act he committed in the course of the employment. If they are not insurers of the lives and limbs of their employees,
The logical faculty does not appear to be very largely developed in some of the members of the City bench of magistrates. On Tuesday the question of the salary of the Chief Clerk to the LORD Mayor was considered at a meeting presided over by his Lordship. Mr. Alderman FIGGINS, taking exception to the pay. ment of £1000 a year to that official, said that judging from the candidates who had applied, the amount was too large. Had the worthy alderman urged the circumstance of inferior persons, such as subordinate clerks, making application for the appointment, as a reason why the salary offered should be £1500, we could have VOL. LVI.-No. 1613.
they do impliedly engage that they will not expose them to the hazard of losing their lives, or suffering great bodily harm, when it is neither reasonable nor necessary to do so." This is not in accordance with English law on the subject, and whilst we think that our own principle is somewhat contracted, we consider that the United States Court has gone too far. The act of the man Collett was not mere negligence, it was wrongful, and we do not see that the employers should be liable for the consequences any more than they would have been if Collett had thrust the boy into the machinery. It is understood that a master shall not expose his servant to extraordinary risk, but if the servants employed are of ordinary skill, he cannot be made responsible for orders given by them which those to whom they are given might justifiably disobey. But whether the American court has gone farther than sound principle justifies, it is very doubtful whether our English rule is sufficiently elastic.
remarkable that the “incessant exertions” have not produced a more favourable impression. We freely admit the efforts made very recently to educate students of the Inns of Court, but they resulted from strong pressure, and the objection to leaving legal education in the hands of irresponsible bodies is that they have no motive in encouraging reforms, but find it extremely easy to let things alone. We do not agree with Mr. Calvert in his desice to keep the two orders of law students apart. The practice of a barrister is doubtless essentially different from that of a solicitor, but that is no reason why they should not receive the principles of law from the same source. Finally, we admit that as governing bodies the Inns of Court hare some virtues; but to render them wholly satisfactory, Benchers ought not to be elected by the Bench. The Bench ought to be representative. If it had been representative we doubt whether legal education could have continued in the scandalous condition in which it was up to a very recent period.
The Times published on Wednesday a somewhat extraordinary article on law reform. Announcing without official information, that Sir Join KARSLA KE and Sir RICHARD BAGGALLAY would be respectively Attorney and Solicitor-Generals, it proceeded to discuss the probable future of the law. To whom, it is asked, can Lord Cairns look to support him in his contemplated attack on the Inns of Court, and his projected scheme for the localization of legal business? It is plainly hinted that Sir John KARSLAKE will have as much as his health will enable him to do in disposing of the ordinary routine business of his office, whilst Sir RICHARD BAGGALLAY is put on one side as actuated solely by the hope of a swift translation to the Bench. According to the Times, therefore, Lord Cairns is unsupported by any member of the Government as regards the task of extreme difficulty which lies before a law reformer. As a fact there can hardly be any doubt that both the law officers will give the LORD CHANCELLOR all the support they can, and the hope of advancement which Sir R. BAGGALLAY, entertains, we suppose, in common with law officers generally, will not, we are sure, cause him to disregard the claims of law reform. The most remarkable portion of the Times' article is that which suggests that it is very extraordinary that we look upon the names of our Lord Chancellors with equal respect whether they have or have not done anything in the way of reforming the law. Our contemporary seems to oyerlook the fact that it is only within the last few years that the amount of law reform projected or effected by a Lord Chancellor has formed an element of consideration in judging of his merits. Now we admit it is otherwise, but we sincerely trust that Lord Chancellors will not be driven on to reforms in order to save their reputations. That there are scandals connected with the law all lawyers must admit, and the scandal upon which the Times bases its remarks—the enormous costs incurred in the liquidation of Joint Stock Companies—is the most prominent, and calls loudly for the improvement of our judicial system in that respect. But the subject is one hedged round with difficulties. The simple truth is that nothing is so easy as to urge reforms in the law, and nothing is so difficult as to carry them into practical effect. We are confident that nothing will be done in this direction as it should be until a standing body is appointed by Parliament, whose sole business it shall be to initiate reforms and codify the law. A Lord Chancellor has too much to do to enable him to conceive and carry out in detail large reforms, and it would be the worst policy in the world to kill our eminent men by overwork.
THE "invitation to alight” has once more been discussed in the case of Weller v. London, Brighton, and South Coast Railway Company (29 L. T. Rep. N. S. 888), and the Court of Common Pleas has pretty successfully distinguished the four preceding decisions in the cases of Bridges, Praeger, Cockle, and Lewis, which contain the law of the subject. It was sufficiently established by the first of these cases that the mere calling out of the name of a station is no invitation to alight, this being done, as Mr. Justice BLACKBURN remarked in Lewis's case, “ by way of preparing passengers to get out.” But what remained to be settled was, what length of stoppage at a station would justify a passenger in taking it for the final standstill, and so alighting unbidden. “It is not for a judge to say what are the ordinary habits of railway companies or of passengers,” says Mr. Justice Brett in delivering judgment in Weller's case, and the plaintiff having been nonsuited, the court has very properly, we think, made the rule absolute for a new trial. The true principle in all these cases is, we imagine, that laid down by Mr. Justice Brett in Hogan v. South Eastern Railway Company (28 L. T. Rep. N. S. 271), that "negligence is always a question for the jury unless it would be a palpable want of reason in them to find for the plaintiffs." Now that the point has been so thoroughly ventilated—for three of the cases above referred to went to the Exchequer Chamber-a nonsuit on the "invitation to alight” may be expected to become comparatively rare.
MR. CALVERT, Q.C., has published a pamphlet entitled "Remarks upon the Jurisdiction of the Inns of Court,” and he summarises these remarks thus: “I venture to think that I have completely answered the charges brought by the LORD CHANCELLOR against the Inns of Court. I say that the resolutions of the LORD OHANCELLOR would, if adopted, prove a check to scientific education, and lead to evil consequences, the extent of which it is hard to foresee.” This is somewhat startling, considering that Lord SELBORNE's resolutions have been supported by so many members of both branches of the Profession. Mr. CALVERT appears to base his opinion upon the supposed impracticability of educating barristers and solicitors together. He points out that the education of most barristers commences after they leave the University ---at from twenty-one to twenty-three years of age-whilst that of solicitors begins frequently at sixteen, and he says that it would be absurd to send them both to a law school together. To this it may be replied that arrangements might very well be made for elementary studies; and inasmuch as the non-university articled clerk serves five years, while the graduate serves three only, there ought to be no difficulty in classifying the students. But Mr. Calvert's argument is that there are many possible evils attending the proposed reform, whilst the defects of the existing system might very well be remedied so as to meet the requirements of the Profession. But when we find so high an authority as Mr. CALVERT asserting that "in truth the Inns of Court have been incessantly exerting themselves in the improvement of the condition of the students,” we are led to consider whether facts are not likely to present themselves in different forms according to the standpoint from which they are regarded. It is certainly
THE NEW LORD CHANCELLOR AND THE COUNTY
COURTS. LORD CAIRNS is said to entertain views with respect to the County Courts, which, if carried into effect, will very soon bring about the entire localization of legal business. And in view of this possibility it is worth while to consider what ought to be done to secure proper provision being made to deal with the business in a manner satisfactory to the public.
The reforms which we have hitherto witnessed have been as extraordinary as anything to be found in the history of the law. Originally nothing but tribunals for the recovery of small debts, the County Courts have had their proper jurisdiction extended, and other jurisdictions grafted upon them, until at present a County Court Judge if he is to do his work efficiently must be familiar with our entire jurisprudence. But this is not the only extraordinary result of the spasmodic and piecemeal reforms which have taken place. A large amount of judicial work has been thrown upon registrars: In bankruptcy it is quite common for registrars to sit for the Judge; in equity they have to take accounts which
often prove larger in amount than the common law claims to which the jurisdiction of the court itself is limited. We have repeatedly expressed our opinion that the registrars are, as a rule, able men, and in their particular sphere thoroughly capable. We do not now say that by experience they cannot become good judges ;
but what we do contend is that it was never contemplated by the Legislature that they should be judges, and we object to the process of reform which, whilst thrusting a mass of heterogeneous business upon the courts, makes no special provision for the disposal of it.
It will be gathered from the foregoing observations that we do not consider the County Courts as standing at present upon a satisfactory basis, and we freely admit that the attention of the law reformer may well be directed to them. What, however, are we to look for from Lord Cairns ? The past twenty or thirty years have been marked by fragmentary measures of reform. Until the Bankruptcy Act 1869, Parliament shrank from giving unlimited jurisdiction to the County Courts except by consent. The Act of 1867 worked a small revolution, for as appears by the Judicial Statistics, a large amount of business has been kept out of or drafted from the Superior Courts. But notwithstanding that Act, many causes remain in the Superior Courts which are just above the limit
of amount giving costs, but are fit only for tribunals such as the County Courts. This circumstance proves that the Act of 1867 was only partially efficacious from the point of view of the law reformer-and we are taking that view exclusively without regard to the interests of lawyers. And we do so,
not because we are careless how the interests of the Profession are affected, but because we see plainly enough that law reform will be made to progress quite irrespective of any such considerations. We repeat, therefore, that whilst the Act of 1867 worked a small revolution, it was not by any means a good, much less a perfect, measure.
The principle upon which a discretion is given to a Judge to award or withhold costs in cases brought in the Superior Court, which, by their nature, ought to be brought in the County Court, is unsound, and indeed vicious. But it shows that the Legislature distrusted the County Courts. Now this distrust ought to be removed, or a hard and fast line should be drawn between their jurisdiction and the jurisdiction of the Superior Courts. We conceive that the County Courts ought not to have had their powers extended until it was seen that they were qualified to deal with every kind of suit or action, and we anticipate that the step which should have been taken in 1867 will be taken by Lord CAIRNS NOW -the courts consolidated, the number of judges reduced, their salaries increased, their position raised by the prospect of advancement to the High Court, and men selected to fill the positions, not for reasons which are the growth of particular circumstances, but because their professional eminence points them out as fitted by capacity and learning for the discharge of important judicial duties.
We strongly oppose any increase of the jurisdiction of the County Courts as at present constituted, but it is impossible for an unbiassed observer to dispute the wisdom of the reform which Lord Cairns is said to entertain. With Superior Court Judges sitting four times a year at such centres as Liverpool and Manchester, and first-class men as County Court Judges presiding at centres of enlarged districts, and having unlimited jurisdiction, arrears would probably disappear. The great argument against localization is that it will scatter the English Bar, and thus remove one of the most useful restraints upon the Bench. The effect of this decentralization it is altogether impossible to imagine, but whatever may be the consequences to the Bench, we believe that the Bar as a body will benefit in a commercial point of view. There must always be a considerable Bar in London, and with existing fazilities of intercommunication, the esprit de corps would probably be maintained.
It seems, however, tolerably certain that Lord CAIRNS will follow in the steps of Lord SELBORNE, and we would prepare our readers for the consideration of a large scheme of reform affecting the County Courts. A supplement to the Judicature Act is spoken of, but whatever form the measure may take, it will deserve and require the close attention of the legal profession.
fact of the action on the bill of exchange having been restrained by the County Court in which the liquidation proceedings were instituted. Said the learned counsel, " the deposit was to abide the result of the action, or to await until the action was determined. That, however, is a matter that can never arise; that is an event that now can never happen, because the Judge of the County Court has by his injunction made it impossible for the plaintiffs to proceed with the action.” The Chief Judge, admitted the plausibility of thus putting the case ; but he referred to the remarks of Lord Hatherley in Ex parte Rocke, re Hall (25 L. T. Rep. N.S. 287), that the granting or not granting an injunction at the discretion of a County Court Judge cannot affect the rights of creditors inter se. The learned Judge again took occasion to deplore the failure to re-enact in the Act of 1869 the 184th section of the Act of 1849, a section the spirit of which he imported into the new Act by his decisions which were overruled by Ex parte Rocke. In the result he held that the plaintiffs in the action were entitled to have the question between them and the debtors determined. It was suggested that the amount paid into court should be transferred into the liquidation, and some proceedings taken to determine how much the plaintiffs were entitled to.
Another case on this subject of execution creditors-proving, we think, the absurdity of making a distinction between trader debtors and non-trader debtors, and executions for sums above and below £50—is that of Ec parte Lovering, re Peacock (29 L. T. Rep. N. S. 897). In this case again the Chief Judge points out that all the confusion has arisen from the failure to re-enact sect. 184 of the Act of 1849. In Ex parte Lovering creditors of a trader for sums above £50 had seized but not sold. Then a creditor for less than £50 seized. Had the 184th section of the Act of 1849 been still law, there having been no sale, the creditors would have been entitled only to rateable parts of their debts. Section 87 of the Act of 1869, deals only with the case of the goods of a trader being taken in execution for above £50 and sold. If the sheriff, within fourteen days, receives notice of a bankruptcy petition having been presented, he will hold the proceeds on trust for the trustee. This section does not affect an execution creditor of a trader for less than £50, and the Chief Judge held that in such a case the small creditor was entitled to the proceeds -on the authority of Slater v. Pinder (24 L. T. Rep. N. S. 475).
The decisions, although by their conflict tending to confuse the law, in the result place it upon an intelligible footing. Seizure without notice of an act of bankruptcy vests the right to the goods in the execution creditor, and the only question then is whether he is within sect. 87. If he is, it matters nothing whether the execution is restrained by injunction or a petition merely is presented; the goods are, in the hands of the sheriff, in custodiâ legis, and it is the same thing whether they or their proceeds have to be dealt with. And by seizure under an execution a creditor does not become a secured creditor, for if he is within sect. 87 the goods belong to the trustee, and if he is not within that section, the creditor is not only a secured creditor, but absolutely entitled to the property seized. It appears to have been thought in Ex parte Raynor, re Johnson (26 L. T. Rep. N. S. 306) that there is some magic in a sale. A creditor who was within sect. 87, but who had only seized, wished to compel a sale. The sheriff had been restrained, and the goods were held to belong to the trustee, who was decided to be entitled to them, and not to be bound to sell.
The cases to which we have referred make it plain, we think, what is the meaning of the term "secured creditor.” We quite agree with the Chief Judge, that it was a mistake to omit from the Act of 1869 a provision similar in terms to sect. 184 of the Act of 1849. The interpretation of terms in sect. 16, sub-sect. 5, is too narrow, whereas the Act of 1849 was full and explicit. As the law stands, a creditor is not "secured” by seizing under an execution ; he is absolutely entitled, or the goods belong to the trustee. Being absolutely entitled as not affected by sect. 87, he may, of course, treat the seizure as security and place himself in the position of a secured creditor.
RECENT BANKRUPTCY DECISIONS. Cases arising under the Bankruptcy Act 1869 multiply rapidly, and it is almost necessary at short intervals to take a retrospect. The question which perhaps has received the most attention is that which has reference to the position, under various circumstances, of secured and execution creditors. It is not yet very satisfactorily established what a secured creditor is, and, there. fore, we will first look at recent decisions upon this point.
The 12th section of the Acü speaks simply of a creditor hold. ing security,” and by sect. 16, subsect. 5, a “secured creditor" is detined to mean “any creditor holding any mortgage, charge, or lien on the bankrupt's estate, or any part thereof, as security for a debt due to him.” In illustration of the variety of circumstances under which this question may arise, it is only necessary to refer to two very recent cases, Ex parte Tate and Co., re Key. worth (29 L. T. Rep. N. S. 849), and Emmanuel v. Bridger (Weekly Notes, Feb. 21, p. 42). In the former case a plaintiff in an action on a bill of exchange, claimed to be a secured creditor in respect of a sum of money brought into court by Judge's order to abide the event of the action. In the second a creditor had obtained a garnishee order, which was made absolute before the bankruptcy, and the question was whether in respect of the moneys attached he was a secured creditor within the meaning of the Bankruptcy Act. In the former it was held that he was not a secured creditor, and in the latter that he was. There does not appear to be any tenable ground of objection to either of these decisions. In the case of attachment the security is indis. putable when the garnishee order is made absolute, and it would seem to be arguable that the mere service of the order would give the creditor a security liable to be defeated by the discharge of the order. It is equally clear, on the other hand, that money brought into court to abide an event, is not the property of the creditor until judgment in his favour, and neither is it the property of the debtor paying it into court so as to pass to his trustee on his subsequent bankruptcy. A very elaborate argument appears to have been presented to the Chief Judge by counsel for the trustee in Ex parte Tate, who seemed indeed to look upon payment into court under a Judge's order of a sum to abide an event as analogous to attachment under a garnishee order. The learned Chief Judge considered, however, that there was no analogy, and that the argument as to attachment had no application at all to the case before the Court. The most forcible part of the argument for the trustee was that which dealt with the
BOARD OF TRADE INQUIRIES. IN our last issue we noticed a letter from Mr McIver which pointed out the utter failure of the present Board of Trade inquiries, and suggested certain alterations that are well worthy of attention. In calling attention to the present system of inquiry by the Board of Trade into marine casualties we heartily indorse Mr. McIver's opinion as to the insufficiency of the present tribunal, and the desirability of having its status raised. With a view of making the whole subject intelligible to our readers, a short notice of the enactments under which these inquiries are held may be useful.
The Merchant Shipping Act 1854 very properly provided for inquiries being held in cases of wreck, collision, loss of life, and certain other instances named. It is there enacted (sect. 432) that (1) whenever any ship is lost, abandoned, or materially damaged or or near the coasts of the United Kingdom; (2) whenever any ship causes loss or material damage to any other ship on or near such coasts; (3) whenever by reason of any casualty happening to or on board of any ship on or near such coast loss of life it not unfrequently happens that the Admiralty Court and the Board of Trade decide differently in a collision cause. If these inquiries were held in the Admiralty Court one examination of the witnesses and one decision would be sufficient in every case of collision. This would at least give satisfaction to owners and officers. Secondly, that magistrates cannot have such experience in nautical questions as the Admiralty Court or even the County Courts is clear, when it is remembered that the only questions of this nature investigated before magistrates are matters arising in these very inquiries. As to the present tribunals not giving satisfaction we need say no more than remind our readers of Mr. McIver's letter, and the numerous instances where the results of these inquiries has been in direct conflict with a subsequeut finding of the Admiralty Court. Moreover, the mode in which they are conducted is unsatisfactory. The officers and crew are called as witnesses by the Board of Trade to condemn themselves out of their own mouths, and the attack upon them by the person conducting the inquiry is made so that they have little chance of setting matters right, namely, in examination. This is against our usual notions of fairness, and would not occur if these things were investigated as between party and party before a higher tribunal gigantic Bill on the subject of merchant shipping, and it is to be hoped that when it again sees the light of day some alteration in these inquiries may be among its provisions.
there is in the pigeon holes of the Board of Trade office a
ensues ; (4) whenever any such loss, abandonment, damage, or casualty happens elsewhere, and any competent witnesses thereof arrive or are found at any place in the United Kingdom, the inspecting officer of the coastguard, or the principal officer of customs, at or near the place where the loss, abandonment, or casualty occurred, may hold an inquiry if the same occurred on or near the coast of the United Kingdom; but if it occurred elsewhere the inquiry is to be held by one or other of those officers at or near the place where the witnesses arrive, or are found, or can be conveniently examined. The Board of Trade has also power to appoint any person specially to conduct this inquiry, which is only preliminary, and for the purpose of_collecting evidence. In effect, this inquiry is conducted by the Receiver of Wreck of the District, who is usually, if not always, principal officer of customs, or by a Board of Trade inspector, if there be one there resident. Full power is given to enforce the production of evidence. This preliminary inquiry having been held, or without it, if the officer thinks fit, the above-named officer should be consider a more formal investigation necessary, must apply to iny two justices, or to a stipendiary magistrate to hear the case; she Board of Trade has also power to order such an inquiry to take place, and this is the more usual way in which it is insti. tuted. The magistrates or justices are assisted in the inquiries on questions of nautical skill by assessors appointed by the Board of Trade. These assessors are usually experienced masters of merchant vessels. In most of our large seaports there is a local marine board established under the Act for the purpose of controlling and regulating the affairs of the mercantile marine, such as the shipping of seamen and the granting of certificates to officers, &c. One of the members of this board ex officio is the stipendiary magistrate of the place, and wherever such an officer exists it is provided that the Board of Trade inquiries shall take place before him. The magistrate conducting the inquiry has, for the purpose of compelling the attendance of witnesses and the regulation of the proceedings, the same power as he would have in a matter over which he has summary jurisdiction. The local officer of the Board of Trade is bound to render all assistance in the conduct of the case, and generally to superintend. In practice, however, the Board of Trade instructs a barrister to conduct the inquiries in almost all the inquiries. The investigation held is as to the cause of any such loss, abandonment, damage, or casualty as is included in the heads above given. Such an investigation naturally involves inquiry into the conduct of the officers of the ship the loss or damage to which has originated it. With a view of making this effectual, and of giving full power to punish for any misconduct, the magistrate may call upon any master or mate possessing a Board of Trade certificate of competency or service, whose conduct is called in question, or is likely to be called in question, to deliver up to him the certificate. He holds it till the close of the inquiry, and then, according to the result, returns it to the master or mate, or sends it to the Board of Trade to be cancelled or suspended, as it sees fit. In practice the court itself suspends or cancels, and the Board of Trade confirms the report.
From this account it will be seen that the Board of Trade tribunals are possessed of very considerable powers affecting not only the officers of merchant ships, but also the owners. It lies with them to say whether a ship was seaworthy or unseaworthy, well found, or ill found, well or ill navigated, lost or not lost, by the negligence of the owners or crew. This power will necessarily to some extent affect the rights of the owners is to the recovery of tbeir loss, whether from a wrongdoer or from
The Lary of Insurance as applied to Life, Fire, Accident, and
Guarantee, and other Non-Maritime Risks. By Jous WILDER
May. Boston: Little, Brown, and Co. A BRANCH of our jurisprudence daily increasing in importance is that which relates to insurance against risk of loss by the elements and by accident and death-matters over which human prescience and care have no control. Maritime risks are naturally far more numerous than terrene risks: there is an infinite variety of contingencies which it is almost impossible to define, and modern decisions in that department of our law have added largely to existing principles, or furrished exceptions to rules hitherto considered as settled and comprehensive. Fire insurance stands upon much the same footing as marine insurance; the prevailing principle is to indemnify the assured. Mr. Phillips, the celebrated American authority, treats marine and fire insurance together. We certainly think that it is desirable that those two subjects should be dealt with in combination, and that life and “other risks" should be made the subject of a separate treatment.
It will be seen by the name of the publishers that Mr. May is an American lawyer, and the predominating element in the work is, of course, American. With the exception of Kent, Story, and Phillips, American authors are not generally accepted as authorities in this country, and they will only become so by setting the principles of jurisprudence, prevailing on each side of the Atlantic, in prominent contrast where they differ. This is done with great ability by Mr. Phillips, whose method we strongly recommend to persons setting about the compilation of treatises. Diffuseness is the great enemy of codification. Every treatise which elaborates a definition renders future condensation more difficult. The mischief in this direction which is likely to result from a work like Mr. May's will appear when we look at the commencement of his chapter on Concealment. His first paragraph (sect. 200), is thus
carriers. With respect to the officers these powers are not less
im Representations should not only
be true, but they should be ful. The
. word of a man's reputation for life. If his certificate is cancelled or suspended what are his chances of employment ? These are innportant considerations and naturally lead to the question whether the tribunal formed under the Act is well adapted to its purpose. Without in the least wishing to disparage our stipendiary magistrates, before whom these inquiries are usually held, we venture to think that a higher class tribunal is required. For this several reasons may be given; three will suffice for our purpose. The first is that such high interests ought not to be intrusted to an inferior tribunal; the second, that magistrates from their very position can have little experience in dealing with nautical matters; the third, that the existing tribunal is not satisfactory to the persons whose interests it affects. With regard to the first it would seem obvious that, if it be deemed right that in a contested case between two ships the investigating tribunal should occupy the high position of the High Court of Admiralty, a question affecting interests as great, if not on some occasions even greater, should be tried before a tribunal of equal importance, and we would suggest that these Board of Trade inquiries should be held before the High Court of Admiralty. If this is objected to on the ground of the expense of bringing the parties up to London, then let them take place in a County Court having admiralty jurisdiction, with an appeal to the Admiralty Court, or
or reserving the right to the owners to bave the proceedings transferred to the Admiralty Court. This would be a benefit in many ways. At present
to a lack fulness, if designed, in a respect material to the risk is tantamount to a false repre. sentation, and is attended by like consequences. This lack of fulness is termed a concealment, which is the designed and intentional withholding of some fact material to the risk which the insured in honesty and good faith ought to communicate to the insurer. It is not mere intentional silence or inadvertence. It is a positive intentional omission to state what the applicant knows, or must be presumed to know, ought to be stated. It is a supression of the truth whereby the insurer is induced to enter into a contract which he would not have entered into had the truth been known to him. It is a deception whereby the insurer is led to infer that to be true, as to a material matter, which is not true. Hence, strictly speaking, under the general law of insurance, there can be no concealment of a fact whick is not known to the applicant. What can be the general condition of a writer's vocabulary who talks about “the lack of fulness”! This is Mr. Phillips : Concealment in insurance is where in reference to a negotiation therefor, one party suppresses or neglects to communicate to the other a material fact, which, if communicated, would tend directly to prevent the other from entering into the contract or to induce him to demand terms more favourable to himself, and which is known or presumed to be so to the party not disclosing it, and is not known or presumed to be so to the other.
The loose kind of generalisation which Mr. May's work dis. closes is well illustrated by the passage
which we have cited, but we do not for a moment desire to say that considering what the treatise is the defect detracts to any appreciable extent from the intrinsic value of the book. We say distinctly that if a different plan had been adopted the result would be of greater advantage
to the practical lawyer. But looking at the scope of the book- practice serviceable, we think this will be found so. A complete seeing that it is written comprehensively, upon decided cases, the index renders reference a matter of no difficulty. more modern of which it discusses elaborately–we recognise that common order of ability which enables a lawyer to under
The Elementary Education Acts, 1870 and 1873, 8c., 8c. By Hugs stand what he is writing about. We incline to the opinion that
Owen, jun., Barrister-at-Law. Eighth Edition. London: Mr. May is a good insurance lawyer. We have already stated, Knight and Co. however, that he is an American, and the cases upon which he In this volume we have the Education Acts named above, and the founds his treatise are mainly American; and American policies Agricultural Children Act, and an appendix containing incorpofrequently differ from English policies, Boston being famous rated Acts, the General Orders of the Edncation Department for special stipulations;" and there is a special statute affecting
as to elections, the new code, order of accounts, &c. The introinsurance law in the States. On these grounds we anticipate duction is, perhaps, the most valuable portion of the work, as it that English lawyers generally will not be disposed to adopt the
presents a digest of the provisions of the famous Act of 1873 work as a text book. In America, on the other hand, we can under convenient headings, such as Constitution of School understand that it will receive consideration, and be very generally Districts," “Proceedings preliminary to formation of school used.
boards." This introduction is very well written, and in a small The plan of the work is scientific. It takes the contract of in.
compass states the existing law with reference to education. As surance in its inception,and treats in succession of insurable interest,
such, it will be valuable not only to school board clerks (to whom, warranties, representation and concealment, special provisions indeed, Mr. Owen must be an essential companion), but to all (very fully discussed), assignment, duration of risk, and
members of the Legistature who wish to be in a position to take remedies, evidence, and pleading. An excellent indes com: art in the debates which will doubtless occur with reference to pletes the volume, which is handsomely printed.
the working of the Act of last year.
The book is of convenient size, well printed, and inexpensive, Equity in the County Court. Second Edition. By H. F. GIBBONS and thoroughly deserves the large measure of popular favour and NATUANIEL NATHAN, Barristers-at-Law. London: Horace
which it has received. Cox. Books. of practice in the County Court are very useful to practi
The Laro and Practice of Election Petitions. By Henry HARDtioners, but, as far as our experience goes, it is a mistake to expeot
CASTLE, Barrister-at-Law. London : Stevens and Haynes. that Judges will accept evidence of what the law and practice The several authors who have run the risk of inaccuracy in order is inferior to the best evidence; if they cannot get Daniell
, to get rapidly into print would appear to have reckoned in a great and Seton, they may possibly refer to works expressly prepared measure without their host. We are fuily informed as to the law, for County Courts. "Judges ought of course to know the general but where are the petitions to be tried ? An election petition is principles of the law which they administer, but with the mul. a very expensive luxury, and in the recent contests there was very tiplied jurisdiction which now exists it is not surprising that they little time for the exercise of those arts which ordinarily give work should constantly go wrong; and going wrong as they do we to lawyers after a general election. Ireland would seem likely to consider that they ought not to despise the small works, which monopolise this business, or if petitions are presented in England,
, are built upon the larger works and reported cases, devoted to the chances now are that they will be very few. County Court practice.
However, as we have said, we have the law clearly laid before This treatise, the second edition of which is brought out by us, and Mr. Hardcastle is not the least successful exponent. He Messrs. Gibbons and Nathan, is wisely framed, mainly with a view gives us an original treatise with foot notes, and he has evidently to the practice in the County Courts. Forms and orders are set taken very considerable pains to make his work a reliable guide. out so as to guide the practitioner in each step in the cause, legal Beginning with the effect of the Election Petitions Act 1868, he principles are shortly stated, but conciseness does not prevent the takes his readers step by step through the new procedure. His authors from giring accurately the existing condition of the law mode of treating the subject of “particulars ” will be found on the several subjects within the jurisdiction of the inferior tremely useful, and he gives all the law and practice in a very courts.
small compass. In an appendix is supplied the Act and the Rules. A useful chapter on Probate jurisdiction is given in this We can thoroughly recommend Mr. Hardcastle's book as a couvolume and so far as intelligence and industry can make a book of cise manual on the law and practice of election petitions.
SOLICITORS' JOURNAL. business would more profitably occupy) for an what power for mischief such authority, vested
unnecessary length of timo, and to look up the in an arbitrary and prejudiced though well-mean
facts and figures afresh each time he has to attending judge may confer. The effect of this inWe are glad to notice that the proper authorities before the officers
upon it ; and, as he has to bear temperate mode of administering, justice, my are alive to the necessity for certain much-needed all the outlay for fees to counsel, court fees, as memory recalls with painful recollection in the case reforms in connection with Her Majesty's Court well as his office expenses, the delays referred to of a Mr. Lawless, an attorney and an honourable of Probate. A new table of fees to be taken in involve a very serious loss in the interest of member of that Profession. He was involved in this court after the 2nd March next has been money, which the few additional attendances the groundless and general prescription of the published in the London Gazette, as announced engendered by the delay do not at all compensate day. Complaint was made to the court against by us in our last issue. A new table of fees to be for. One consequence is, that the work is not so him for some imputed misconduct, grounded on taken by solicitors and others in non-contentious well done, and that there is an increase of cost to an affidavit which the event proved was a mass of business, as well in the principle as the district the suitor without corresponding benefit to the falsehood and misrepresentation; but it being on registries, has been promulgated. There are also practiticner, so that all parties suffer.” We oath, and the charges serious, it was thought some additions and alterations as to fees in con- hope that these observations will not pass sufficient to entitle the party applying to a rule tentious business. The above are issued pur; unnoticed, for they are of great moment to the to show cause why Mr. Lawless should not answer suant
to the provisions of 20 & 21 Viot. c. 77, and public and the Profession. The actual loss at the matters of the affidavit. He could have no 21 & 22 Vict. c. 95. Those members of the Pro- times inflicted on solicitors in Chancery suits is opportunity of answering them till he was served fession much engaged in the business of this beyond question owing to delay, which is often
with the rule, and had obtained copies of the court will have to provide themselves with copies
ruinous to clients. If the Judicature Act acoom. afidavits on which it was granted. Natural jus. of the above tables of fees, which can be procured plishes the necessary reform in this direction it of Messrs. Harrison and Sons, of St. Martin's- will be welcome for that alone.
tice would point out, and the practice of the
court was conformable to it, that he should be lane.
heard in answer to them before he was convicted.
Fir that purpose a day was given by the rule THE President of the Incorporated Law Society,
on which the party is to show cause, during in his valuable paper, referred to by us in our last MR. Janson, in his paper, also observes as follows | which time everything is considered as issue, and which he read last week before the upon the subject of the members of our branch pended This indulgence was refused to Mr. Statistical Society, observes as follows in relation of the Profession : “ They are admitted to prac. Lawless, though the rule was obtained on an to the delay in conducting almost every kind of tise in the various courts by the judges, and are ex parte statement before any opportunity legal proceeding: “There is a common impression liable to be struck off the rolls for misconduct by was afforded him to answer the charges, or to be that the practitioner benefits by the law's delay, the same authority. Whether it is on the whole heard in his defence. Lord Kenyon, in addition but nothing can be more erroneous. The delays expedient to leave this very large power in the to the common form of the court's assent to the arising from the periods of time which, according hands of dignitaries who are appointed from application, which is in these words, addressed to to the present system of procedure, must elapse among barristers, with whom the attorneys and the counsel : " Take a rule to show cause ;” added between certain stages of the proceedings in all solicitors are in constant intercourse, may be “And let Mr. Lawless be suspended from practising the courts, and the delays which arise, especially open to question. It cannot be alleged that in until the rule is disposed of." He happened to be in the Court of Chancery, from the difficulty recent times the power has been used with unduo present in court when this unexampled judgment of getting business proceeded with continu. severity; some perhaps might think it has been was pronounced, and heard the sentence which led ously before the subordinate judges or chief at times too leniently exercised; but the follow. to his ruin; he rose in a state of most bitter clerks, is extremely prejudicial to the attorney ing narrative introduced into an admirable bio. agitation. “My Lord, I entreat you to recall that or solicitor. He has to keep the subject matter graphy of Lord Kenyon, which appeared some judgment; the charge is wholly unfounded ; more or less simmering in his mind (which new | thirty years ago in the Law Magazine, will show I suspension will lead to my ruin ; I have eighty