« EelmineJätka »
money or the proceeds of that cargo does not form a portion of either estate, but is subject to the equity of going in discharge of the bill. The billholder, although he may prove against both estates does not get the benefit thereby of the
specific security set apart by A. and B. towards the discharge of the bill. There is no mode of giving him the fair benefit of the arrangement except by making the security available at once for the payment of the liability, and then the matter readily adjusts itself.”
The position on these authorities may therefore be taken to be this :-Biils drawn and accepted as against a specific consignment, and discounted, are not, in the hands of the holder, a liability to be satisfied out of the proceeds of the consignment, the holder being a stranger to any arrangement between the parties to the bills. In the next place, if the parties to the bills become insolFent the proceeds do not form a portion of either estate, but go to meet the acceptances. Lastly, bills being drawn and accepted against consignments, and the shipping documents being hypothecated with the bills, the holder is entitled to be paid the amount of the acceptances on tendering the shipping documents. And if the acceptors become bankrupt the consignments would form part of their estate, subject to the payment of the amount of the acceptances.
Another case which illustrates the complexities of commerce and the difficulties which may arise out of them in administering plain principles of law, is Ex parte Smart, Re Richardson (L. Rep.8 Ch. App. 220), in which the question was raised, whether the doctrine of Re Waring applies only as between the drawer or indorser of a bill and the acceptor. The person sending the remittances to meet the acceptances of the consignees, was no party to the bills drawn by the consignor. But the Court of Appeal in Chancery, affirming the Chief Judge, held that this made no difference. “I cannot follow the argument that has been urged upon us," said Lord Justice James, " that the doctrine only applies where all parties are parties to the same bills, and does not apply to a case where there are distinct contracts.” Where equity cannot be worked out without the application of the rule in Waring's case, that rule will be applied.'
Hypothecation of bills of lading and acceptances against consignments is usually effected with banks by means of formal documents, a specimen of which will be found in Ebsworth's case. The interest which a consignee of goods hypothecated by the consignor has in them that case shows to be doubtful—at least as regards the power to enter into a policy of insurance. The law in respect of the appropriation of specific goods against which acceptances are drawn, is tolerably clear, and we believe it is correctly stated above.
is a liquidated demand in money, payable by the defendant under a contract express or implied, such as actions on bills of exchange or bonds, or under a statute for a fixed sum of money, or on a guarantee where the claim against the principal is also liquidated, or on a trust. The writ of summons in such cases may be specially indorsed with the particulars of demand, after giving credit for a set-off or payment; and if the defendant does not appear to such an action, final judgment may be signed for any sum not exceeding the sum indorsed on the writ, with interest and costs; but the court may set aside or vary the judgment on such terms as may seem just. As now, in actions on bills of exchange, where a defendant appears on a writ of summons so specially endorsed, the plaintiff may, on verifying the cause of action by affidavit, and swearing that in his belief there is no defence, call on the defendant to show cause why the plaintiff should not be at liberty to sign final judgment, and the court or a Judge may, unless the defendant satisfy the court or Judge that he has a good defence, or disclose such facts as the court or Judge shall think sufficient to entitle him to defend the action, make an order empowering the plaintiff to sign judgment. Permission to defend the action is to be granted on such terms as the court may think fit: (rule 7.) The object of this rule is obviously to prevent the vexatious defending of actions, and whilst it will not prevent defendants from protecting their interests in those cases where their liability can really be disputed, it will have the effect of curtailing much useless and expensive litigation, such as is now kept up by the obstinacy of the parties, often despite the advice of their legal advisers. In cases of ordinary account, where the plaintiff in the first instance desires to have an account taken, the writ of summons is to be indorsed with a claim that such an account be taken, and, in default of appearance and after appearance, unless the defendant, by affidavit or otherwise, satisfy the court or a Judge that there is some preliminary question to be tried, an order for the account claimed, with all directions now usual in the Court of Chancery in similar cases, shall be forthwith made: (rule 8.)
Rules 9 to 17 deal with parties to actions, and in effect carry out the provisions of sect. 24 of the Act by enabling the court to order any persons whose interests are involved in any case before it to come in as plaintiffs or defendants. The object of these rules is to ensure the speedy settlements of litigated questions by doing away with the necessity of several actions where one will practically settle the question at issue. It is unnecessary to notice these rules further than by saying that the non-joinder or misjoinder of parties will not defeat an action, and that the court has full power to insert plaintiffs or defendants at any stage, and generally to regulate the parties between whom any question before us is to be finally settled. In fact, the precise description of parties is made immaterial, and in future persons bringing actions will not be put to the inconvenience now arising from having in the first instance selected a wrong defendant.
The present form of pleading is abolished, and for it is substi. tuted something halfway between the Chancery and Common Law pleading. The forms of pleadling are not given in these rules, but will probably find a place in the rules to be framed under the Act. They are so far defined, however, that some notion of them may be gathered from the existing rules. They are in future to be printed, and the plaintiff is required, unless it is dispensed with by the defendant, to file and deliver to the defendant a statement of his complaint, and of the relief or remedy to which he claims to be entitled; the defendant will thereupon file and deliver to the plaintiff a printed statement of his defence, set-off, or counterclaim, and the plaintiff thereupon will file and deliver to the defendant his reply. These statements are to be as brief as the nature of the case will admit, and if too prolix, the penalty will be condemnation in the costs occasioned thereby. This description of the new pleadings corresponds very much with those now in use in the High Court of Admiralty, and a reference to the forms of that court given in Williams and Bruce's Admiralty Practice will very much assist anyone desirous of acquiring some knowledge on the subject. Demurrers are to be raised in the form and manner to be prescribed by the future rule, and full power of amendment is given to the court for the purpose of settling the issues between the parties; moreover for this latter purpose a Judge has power, if he thinks an issue is not properly raised, to direct them to be prepared, and if the parties differ to settle them himself. Cross-actions are practically rendered unnecessary by a provision enabling a defendant to set up by way of counter-claim any right or claim, whether it be a set-off or a claim for damages, and such a counter-claim will have the effect of a cross-action, and the defendant if he establishes his right,, may proceed to final judgment thereon. But if the two elaims cannot be tried together, power is reserved to the court to refuse leave to the defendant to set up the counter-claim. A plaintiff may unite in one action, and in the same statement, several causes of action subject to the power of the court to divide them if they cannot be conveniently tried together; and a plaintiff is not to be confined to bringing an action against several defendants merely because all are not equally interested as to the relief prayed, or as to every cause of action included in the claims, but the court bas power to prevent injury to a defendant by his being included in
SUPREME COURT OF JUDICATURE ACT.
RULES OF PROCEDURE. The schedule to the Act comes into force by virtue of sect. 69, and will form the basis of procedure in the High Court of Justice and the Court of Appeal in the first instance. The Act is so worded that these rules must take effect on the Act coming into operation, and no alteration can be made in them until after that time.
All common law actions hitherto commenced by writ, all Chancery suits hitherto commenced by bill or information, all Admiralty or Probate suits commenced in rem, or in personam, or by citation, are henceforward to bear one name, and are to be instituted in the High Court of Justice by a proceeding called "an action.” All other proceedings in or applications to the High Court will, subject to any rules to be made on the subject, be made in the same form and under the same name as they would have been made in any court in which the like proceeding or application could now be taken or made: (rule 1.)
Every action is to be commenced by a writ of summons, indorsed with the nature of the elaim made, or of the relief or remedy required in the action, and specifying the name of the division to which the action is to be assigned : (rule 2.) This is an advantage to defendants, for they will know at once the demand which is made against them, whereas at present, in most instances, they are compelled to wait for the declaration to ascertain the exact nature of their alleged liability. Neither the forms of these writs, nor of the indorsements, are given, but are to be prescribed, in the ordinary causes of action, by rules of court, and the use of these forms will be enforced by costs being imposed upon plaintiffs using any more prolix or other forms, unless the court shall otherwise direct: (rule 3.) The provisions for the service of these writs are much the same as those now in force. No service is required where the defendant, by his solicitor, agrees to accept serpice, and enters an appearance. Where service is required it is to be effected, if practicable, as personal service is now made, but if it be made to appear to the court or a Judge that prompt personal service cannot be effected by the plaintiff, an order for substituted service, or for substitution of notice for service may be made. Provision is also made for service out of the jurisdiction, or for notice in lieu of service, in such manner and on such terms as the court or a Judge may think just : (rules 4, 5, 6.) The provisions of the Bills of Exchange Act, às to actions on bills of exchange, are extended to all actions for debt, where the claim
such an action. Power is given to the court to direct any question of law which may arise in a case to be decided before the issues of fact are tried, or before a reference to an arbitrator or referee. This is in effect the power to decide demurrers, and to decide matters of law which arise on the pleadings without the necessity of first inquiring into the facts : (rules 18 to 24.)
The right to administer interrogatories is preserved much as it now exists. As the new form of pleadings involves statements of facts, and bence frequently reference to documents, it is provided that any documents referred to in any pleading or affidavit, must after due notice be produced to the opposite party who may take a copy, otherwise the party in whose custody it is will not be allowed to use it in evidence, except only where he can satisfy the court that he has good reason for declining to produce it. The court has power to order the production of documents relating to matters in question in any proceeding, and may deal with those documents as it thinks right: (rules 25 to 27.)
The rules hitherto noticed relate to the preliminary steps to be taken before trial; those that follow deal with trial and its incidents.
SEARCHES, INQUIRIES, AND NOTICES.
(Continued from p. 19.) PREVIOUSLY to the year 1834, tenants in tail were able to bar the ontail by fines or common recoveries, by means of the former the estate of the tenant in tail was converted into a base fee, that is an estate which lasted so long as the tenant in tail or any of his issue was or were in existence, but by the latter the remainders were also barred, and the estate tail was converted into an estate in fee simple. By the Abolition of Fines and Recoveries Act 1833 (3 & 4 Will. 4, c. 74), the mode of barring the entail was completely changed, and provision is made by which the formal amendment of fines or recoveries by the alteration or addition of the names of the parties or description of the lands where a mistake or omission is apparent from the deed declaring the uses of the fine or making the tenant to the writ of entry or other writ for suffering a common recovery, is rendered unnecessary (sects. 7 and 8), and provision is also made for the custody of the records, and for allowing a search to be made for them, and extracts and copies to be obtained : (sect. 13.) By the Act a general power of disposition for an estate in fee simple, or for any less estate,'is limited to every tenant in tail (sect. 15), except he or she is by any Act of Parliament restrained from barring his or her estate tail, or he or she is a tenant n tail after possibility of issue extinct: (sect. 18.) Every disposition of lands under the Act by a tenant in tail thereof is to be effected by some one of the assurances (not being a will) by which such tenant in tail could have made the disposition if his estate were an estate at law in fee simple absolute, and no disposition by a tenant in tail is to be of any force either at law or in equity under the Act unless made or evidenced by deed, and no disposition by a tenant in tail resting only on contract express or implied, or otherwise, and whether supported by a valuable or meritorious consideration or not, is to be of any force at law or in equity under the Act, notwithstanding such disposition is made or evidenced by deed. The concurrence of the husband is necessary where the disposition is made by a married female tenant in tail, and the deed must be acknowledged by her as directed by the Act (sect. 40), but not necessarily before inrolment, or within the six months allowed for inrolment. The Court of Common Pleas, however, have power to dispense with the husband's concurrence where he is lunatic, idiot, or of unsound mind, or in prison, or living apart from his wife, or where he is incapable of executing a deed, and no acknowledgment of the deed by the wife will then be necessary (sect. 91): (Re The London Dock Act 1853, 24 L. J., N. S., 606, Ch., and 25 L. J., N. S., 45, Ch.) Courts of equity are excluded from giving effect to any disposition whether made for valuable consideration or not, unless the disposition would be effectual in the courts of law : (sect. 47.) In the case of Peacock v. Eastland (L. Rep 10 Eq. 17), the tenant in tail granted the estate unto and to the use of two persons upon trust to sell and stand possessed of the proceeds for his benefit, the deed was duly inrolled but was not executed by the trustees, who subsequently executed a deed of disclaimer, and the court held that the entail had not been barred. No assurance by which any disposition of lands shall be effected under the Act by a tenant in tail thereof (except a lease for any term not exceeding twenty-one years to commence from the date of such lease or from any time not exceeding twelve calendar months from the date of such lease, where a rent shall be thereby reserved, which, at the time of granting such lease, shall be a rack rent, or not less than five-sixth parts of a rack rent) is to have any, operation under the Act, unless it be inrolled in Chancery within six calendar months after the execution thereof : (sect. 41). Where the tenant in tail has not the first estate under the settlement then, except where the prior estate is for years only, he can only create a base fee or bar his issue, unless he obtain the consent of the protector of the settlement (sect. 34), which must be given either by the same assurance by which the disposition is effected, or by a deed distinct from the assurance, and to be executed either on or at
any time before the day on which the assurance is made (sect. 42), and the distinct deed must be inrolled in Chancery either at or before the time when the assurance is inrolled: (sect. 46.) The settlor has the power to appoint any number of persons not exceeding three, to be the protectors of the settlement, but the ap. pointment must be made by the deed of settlement itself, and the settlor can also by means of a power, also to be contained in the same deed, authorise any other person to appoint new protectors, or a new protector, in the place of those who die, or by deed relin. quish their office. Every deed appointing a new protector, or by which a protector relinquishes his office, is to be void unless it be inrolled in Chancery within six calendar months after its execution. The person who would otherwise be the protector may be appointed as one of the protectors, and, unless otherwise directed by the settlor, he may act as the sole protector, if those appointed have died or relinquished office, and their places have not been filled : (sect. 32.) If the settlor neglect to nominate protectors, then the owner of the first estate (not being an estate for years) under the settlement, is, notwithstanding any charge, or even his bankruptcy, to be the protector. An estate by the curtesy in respect of an estate tail, or of any prior estate created by the same settlement, and an estate by way of resulting use or trust to or for the settlor, are to be deemed estates under the same settlement: (sect. 22.) A tenant in tail has now been decided to be the protector of all estates tail subsequent to his own: (Re Blewitt, 25 L. J., N. S., 393, Ch., reversing the decision of Lord Brougham in Re Blewitt, 3 Myl. & K. 250, and Lord Cottenham in Re Wood, 7 L. J., N. S., 144, Ch.) Where a married woman is entitled under a settlement made either before or since the commencement of the Act (Keer v. Brown 28 L. J., N. S., 477, Ch.), to the prior estate for her separate use, she alone is protector ; but if she is not so entitled, her husband is joint protector with her (sect. 24), and in either case she can give her consent without acknowledging the deed (sect. 45), but if the husband be lunatic, idiot, or of unsound mind, and whether found so by inquisition or not, the consent of the persons intrusted with the care of lunatics is required, or if the husband be convicted of treason or felony, the consent of the Court of Chancery is required, but if from any other cause he be incapable of executing a deed, or if his residence be unknown, or he be in prison unconvicted of treason or felony, or if he be living apart from his wife by mutual consent or by sentence of divorce, the Court of Common Pleas may dispense with the husband's concurrence, and her consent is to be given as if she were feme sole : (serts. 35 and 91.) If the estate conferring the protectorship is vested in two or more persons, each of them is to be deemed sole protector to the extent of his shure : (sect. 23.) A confirmed or restored estate is to be deemed a prior estate under the same settlement (sect. 25), unless it be a leasehold estate subject to a rent: (sect. 26.) No woman in respect of her dower, nor bare trustee-except where under a settlement made on or before the 31st Dec. 1833, he would have been the proper person to make the tenant to the writ of entry or other writ, for suffering a common recovery, in which case he is to be the protector (sect. 31)—heir, executor, administrator, or assign, in respect of any estate taken by him as such, is to be protector : (sect. 27.) In case the holder of the first estate is disqualified, the person (if any), who, if such estate did not exist would be the protector, is to be such protector: (sect. 28.)
If no protector be appointed, and the owner of the prior estate be an infant, no consent can be obtained. If the protector be lunatic, idiot, or of unsound mind, and whether found such by inquisition or not, the Lord Chancellor or the Lord Keeper, or the Lords Commissioners for the custody of the Great Seal, or other the person or persons (now the Lords Justices of Appeal in Chancery) for the time being intrusted by the Queen's signmanual, with care and commitment of the
stody of the persons and estates of persons found lunatic, idiot, or of unsound mind, is or are to be the protector. If the protector be convicted of treason or felony, or be an infant not entitled to the prior estate, or if it be uncertain whether an appointed protector be living or dead, the Court of Chancery is to be the protector, as well as in those cases in which there is a prior estate sufficient to qualify its owner to be protector but where, by reason of the declaration of the owner or otherwise such owner is not the protector (sect. 33), in any of the above-mentioned cases the consent is given by order obtained upon the motion or petition in a summary way, of the tenant in tail, the proposed disposition being first approved of : (sect. 48 and 49; see Re Blewitt, 25 L. J., N.S., 393, Ch.). The protector is not to be considered a trustee, nor to be subject to any control as regards his consenting or refusing to consent, and an agreement by him to withhold his consent is void (sects. 36 and 37); but having once given his consent in the proper manner he cannot revoke it (sect. 44); although if he be tenant for life in possession he is not prevented from consenting to the exercise of powers of sale and exchange overriding the estate barred (Hill v. Pritchard, Kay 394), and the courts of equity are excluded from giving any effect to consents when they would be effectual in courts of law (sect. 47.)
Where an estate tail has been barred, and converted into a base fee, the latter can be enlarged into a fee-simple absolute by a disposition under the Act by the person who, if the estate tail had not been barred, would have been actual tenant in tail of the same lands (sect. 19), but the consent of the protector is necessary if the base fee is of a reversionary nature only : (sect. 35.) The base fee will not merge by being united with tbe ultimate reversion, or remainder in fee, but become enlarged : (sect. 39.)
A voidable estate, created by a tenant in tail in favour of a purchaser for valuable consideration is to be confirmed by any subsequent disposition by the tenant in tail, other than a lease not requiring inrolment, whatever the object of the disposition be, and to the extent of the power of disposition by the tenant in tail, but such voidable estate is not to be confirmed against a purchaser for valuable consideration who had not express notice of the voidable estate: (sect. 38.)
The provisions of the Act are to relate to lands held by copy of court roll, but the mode of disposition is different, being by surrender where the estate of the tenant in tail is legal, and by surrender or deed where the estate is equitable only: (sect. 50.) The consent of a protector may be given by deed or to the person taking the surrender, and the memorandum of the surrender, if taken out of court, is to state the fact of the consent having been given and to be signed by the protector. The consent, whether deed or memorandum, is to be entered on the court rolls, and if the former, an endorsement has to be made by the steward or deputy steward that it was produced before the surrender, and has been entered on the court rolls. If the surrender be made in court it is to contain a statement that the consent was given : (sects. 51 & 52.) An equitable tenant in tail may bar tho entail by deed as if his estate were freehold, but the deed and the deed of consent (if any) are to be entered on the court rolls, and a memorandum of such entry has to be endorsed by the steward or deputy steward, and it is provided that every deed by which lands held by copy of court roll are disposed of by an equitable tenant in tail thereof, are to be void against any person claiming such lands, or any of them, for valuable consideration under any subsequent assurance duly entered on the court rolls of the manor, of which the lands are parcel, unless the deed of disposition by the equitable tenant in tail be entered on the court rolls before the subsequent assurance has been entered: (sect. 53.) No inrolment otherwise than by entry on the court rolls of the disposition is required: (sect. 54.) The Court of Common Pleas, pursuant to the direction contained in sect. 76, have by their General Rules of Hilary Term 1834, fixed the amount of the stewards' fees as follows: "For taking å surrender or a protector's consent, 13s. 4d. ; for entries on the court rolls, 6d.; for every folio of seventy-two words; and for every indorsement, 5s.”
(To be continued.)
intended. But the court (Cockburn, C.J., Blackburn, Mellor, and Quain, JJ.) was unanimous in discharging the rule for a mandamus, upon tho authorities oited, fortified by that of Boden v. Smith (18 L. J. 121, C. P.), in which case the foundation Act, 55 Geo. 3, c. 51 (the County Rates Act), limited the period of bringing a particular action to three months, while Pollock's Act (5 & 6 Vict. c. 97) limited the period to two years, and 8 & 9 Viot. o. 21 enacted that all the provisions of the County Rates Act "should be made and taken to apply" to the rates authorised by 8 & 9 Vict. c 21
as if the same provisions were severally re-enacted” in it, and the court held that the limitation in the County Rates Act was incorporated in 8 & 9 Vict. c. 21 and not repealed by 5 & 6 Viot. c. 97.
It is believed that this decision, whether right in law or not, was quite contrary to the expectations of the numerous persons, whether teetotallers, brewers, or publicans, interested in its result; and it may be noticed that the contrary view was taken in the licensing text-books, one and all. The case of Reg. v. Smith being only an application to sell liquor to be drunk off the premises, the anomaly of the result is not perhaps quite so apparent as it would have been had the application beon for a licence to sell for drinking on the premises ; but it is plain, on reading sect. 8 of the Act of 1869 that both classes of licence stand' on the same footing; and that applicants for all wine and beer licences (usually a lower class, and one which has been gradually more and more repressed by the Legislature ever since their special licences first came into existence) have a right of appeal which applicants for public house licences have not. But as was hinted at by Mr.Justice Quain in Reg. v. Smith, other and greator anomalies might be pointed out. By seots. 37 and 38 of the Licensing Act 1872, “grants of now licenses shall not be valid” unless confirmed by certain bodies of justices, varying in constitution according to the locality. It being now held that the refusal to grant may in the case of wine and beerhouse licences be appealed against, what is the position of the confirming body? Confirm they must, otherwise the grant is not valid. The result will be that where the justices below have refused, and the Quarter Sessions have allowed an appeal, there must be three hearings of the same application, a result which of itself is sufficiently absurd to show that it can never have been intended. On the other hand, suppose that the justices below have granted a licence, and that the confirming body have refused to confirm it. Does an appeal lie from the confirming body to Quarter Sessions, and if not, why not? Add to this that the Licensing Meetings are held in August and September, that the confirming body generally sits before Quarter Sessions, and is at once fewer in number and of greater licensing experience than the Court of Quarter Sessions, and the only question would seem to be whether R. v. Smith is likely to be overruled, or whether an amending Act will have to be passed.
We next come to the more generally interesting case of Roberts v. Hum. phreys. Before the Licensing Act 1872 a long series of decisions from Taylor v. Humphries (30 L.J. 242, M.C.; 4L.T. Rep. N.S. 514) to Copley v. Burton (L. Rep.5 C. P. 489 ; 22 L. T. Rep. N. S. 88) had clearly established that in the case of an information against a publican for selling liquor during
closing hours, it was for the informer to prove affirmatively not only that the buyer of the liquor was not a traveller, but that the publican knew he was not, and intended to sell to him notwithstanding. Mr. Justice Willes, in Copley y. Burton, said: “It is impossible to fail to perceive that the principles laid down by this court in several cases have not been comprehended by the magistrates. It must for the future be understood that the burden of proof lies apon the informer, and that a conviction ought not to take place, unless the magistrates are satisfied that the inkeeper, when supplying refreshment within the prohibited hours, is cognizant of the fact that the parties asking for it are not travellers.” And he hinted that in future the unusual course might be taken of giving costs against magistrates were such another conviction brought up and quashed. The authority then before the Act was overwhelming in favour of the publican. The decisions (all of which proceeded from the Court of Common Pleas), certainly seem to conflict somewhat with the 14th section of Jervis's Act, which enacts that if an information “shall negative any exemption, exception, proviso, or condition in the statute on which the same shall be framed, it shall not be necessary for the prosecutor : . . to prove such negative, but the defendant may prove the affirmative thereof in his defence, if he would have advantage of the same. But this difficulty was expressly presented to and got over by the court in the cases of Taylor T. Humphries (11 L. T. Rep. N. S. 370), and Davies v. Scrace (L. Rep. 4 C. P. 172; 19 L. T. Rep. N. S. 788), in which latter case Mr. Justice Keating; pointed out that a decision throwing the burden of proof upon the innkeeper would cast upon him "an intolerable burden, for he would then be precluded from supplying refreshments to any person whom he did not actually know. Indeed it is settled law that an inakeeper is liable, not only to action, but indictment, if he refuse to receive a traveller : (Hawkins ch. 78; R. v. Ivens, 7 C. & P. 213; Davies v. Scrace.) And to prevent an innkeeper from selling to persons whom he did not actually know would almost amount to preventing him from selling to travellers altogether, travellers being just the persons whom the innkeeper would not be likely to know.
However, the questions in the recent case of Roberts v Humphreys were two; (1) Does the Licensing Act 1872 shift the burden of proof from the informer to the publican ? and (2), If the burden of proof be shifted, is honest belief on the part of the publican any ground of defence, or must he be convicted even without the mens rea? Under the old Acts the offence of selling during closing hours was one against the tenor of the licence, which provided that the holder should not sell during those hours, except to travellers. Under the present Act (sect. 24) it is enacted that "all premises shall be closed” during the closing hours, and that " any person who sells . .. or opens or keeps open any premises for the sale” of liquor during those hours shall be liable to a penalty. In the same section are the words : “None of the provisions contained in this section shall preclude a person licensed from selling to bona fide travellers or to persons lodging in his house." And by sect. 51 the words of Jervis's Act are incorporated, with a considerable addition, which proved fatal to the appellant. The
words of sect. 51 are, “any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany the description of the offence in this Act, may be proved by the defendant, but need not be specified or negatived in the information, and if so specified or negatived, no proof in relation to the matters 80 specified or negatived shall be required on the part of the informant or com. plainant." All the old cases were cited for the appellant, but the court (Blackburn, Quain, and Archibald, JJ.) was unanimous in holding that the burden of proof is shifted by the new Act. “The alteration," said Blackburn, J., seems to have been suggested by the previous decisions." The statute, he observed, describes the offence, and states “ three defences or exceptions to the general rule, which defences are to be looked upon as pleas to a count in trespass.” It is bard to see, however, how the new Act
DECISIONS UNDER THE LICENSING ACTS. A LEGAL year has now elapsed since the passing of the Licensing Act 1872. The prediction that this Act would give an unusual amount of work to lawyers has been fully verified; and the present state of licensing law has been visited with the strongest possible condemnation from the bench. "Anything more remarkable, more confusing, more puzzling,” said Lord Chief Justice Cockburn, in one case, “I never met with in the whole course of my judicial experience, and the whole of these licensing statutes constitute a mass of chaotic legislation.” “It is impossible," added Justice Blackburn, “ to say that any point is clear in these Acts of Parliament." Out of the numerous cases that have been decided under the Act, we propose to select two for consideration, as being of greater legal, as well as greater general importance, than the rest: R. v. Smith (L Rep. 8 Q. B. 146 ; 28 L. T. Rep. N.S. 130, nom. R. v. The Justices of Southport), which called down from the Judges the remarks above quoted; and Roberts v. HumphTeys (42 L. J. 147, M. C.). In R. v. Smith it was held (for the decision amounts to this) that the applicant for a beerhouse licence may, if refused, appeal to Quarter Sessions, whereas the applicant for a publichouse licence may not. In Roberts v. Humphreys it was held that the burden of proof, admitted to be upon the informer before the Act, is by the Act shifted from the informer to the publican, upon a charge of supplying liquor during closing hours to an alleged bonâ fide traveller.
In Re Smith the court refused a mandamus commanding justices to hear an application for a new licence to sell beer not to be drunk on the premises. This is one of the licences which by the Wine and Beerhouse Act 1869 (32 & 33 Vict. c. 27), s. 8, justices have no discretion to refuse except on one of four specified grounds, and the licence in question was admitted to have been in fact illegally refused. But it was urged that the applicant had a remedy by appeal, and that, therefore, the court would not interfere by mandamus. Thus much being conceded, the whole question turned upon the point whether the appeal, undoubtedly given by the Wine and Beerhouse Act 1869, had been taken away by the Licensing Act 1872 or not. Now the appeal given by the Act of 1869 was taken by incorporation from the old Alehouse Act of 1828 (9 Geo. 4, c. 61), s. 2, the words of the Act of 1869 (s. 8) being that "all the provisions” of the Act of 1828 as to appeals from any act of any justice, shall, as far as may be, have effect with regard to grants of certificates under this Act.” The appeal clauses of the Act of 1828 were (except as to renewals and transfers) repealed by the Act of 1872, which `Act, however, while repealing certain other sections of the Act of 1869, not only left sect. 8 untouched, but contained the words “There shall be repealed so much of the Wine and Beerhouse Acts as makes such acts temporary in their duration, and the said Acts shall henceforth be perpetual." For the appli. cant Reg. v. Stock (8 A. & E. 405), and Reg. v. Merionethshire Justices (6Q. B. 343), were cited as authorities that the repeal of the foundation Sections of the Act of 1828 could not affect the structure reared upon them in the Act of 1869. On the other side it was contended that the whole series of licensing Acts must be considered as one statute, so that a repeal of the foundation involved a repeal of the superstructure ; and, further, that to give one class of applicants an appeal which was denied
to another was a practical anomaly that the Legislature could never have
alters the law, except in respect of the point of pleading, that whereas under the old law, exceptions had to be negatived in the information, bat were not required to be negatived in the proof, under the new law they need not be negatived in either. The question then would seem to have been whether the words of sect. 24 of the new Act made that an exception, which in the cases under the old Acts had been held not to be one, and considering the highly penal nature of the statate, the reason and authority of the old cases, the probability that sect. 24 of the new Act was arranged as it is for convenience in drafting, and that sect. 51 was intended merely to effect an alteration in pleading, and last, though not least, the general reluctance of the courts in construing statutes, to admit important alterations in the law by a sidewind, the correctness of the decision of the Court of Queen's Rench on the point would appear open to much question.
On the further point in the case, whether an honest belief would excuse the publican, Blackburn and Archibald, JJ., slightly inclined to the belief that it would not, and Quain, J., to the belief that it would. The justices had found that the appellant was negligent, bat had not found whether he had an honest belief or not. The case was accordingly remitted to the justices in order that they might find as a fact whether or not the appellant acted innocently, in order to be re-argued in the event of this point being found by the justices in his favour. If the court should ultimately hold, as the majority has already inclined to hold, that this is one of the cases in which the ordinary rule “ Actus non facit reum, nisi mens sit rea” does not apply, the result will be that the publican will find himself between two fires. If he admit the apparent bona fide, he admits him at the risk of at least one pound penalty, for the Act (sect. 67) allows po mitigation below that amount, and at the further risk of a conviction which, twice repeated, may cost him his licence. If he refuse admittance, he runs the risk not only of loss of custom, but of action and indictment. It is a question of fact, too, for each bench of magistrates to decide whether a particular person be a traveller or not (Atkinson v. Sellers, 5 C. B., N. S., 442 ; 28 L. J. 12, M. C.); and, however discriminating your publican may be, how can he hope to hit the particular view of the magistrates of his own locality ? It is believed that both magistrates and police have as yet worked the closing hours clauses with great moderation. But if the case of Roberts v. Humphreys should ultimately be decided against the appellant, it cannot be said that they have been encouraged by the Judges to continue it. As far as the public are concerned, the probable result of such & decision would be to render the saving in favour of travellers practically almost useless.
following that which we have quoted, in which he proceeds to say that by getting rid of superstitions we must necessarily elevate the moral standard, and thus make men more“ a law unto themselves,” and better adapted to obey beneficient positive laws designed for their guidance: whereupon Mr. Finch foresees that the lawyer's occupation would be gone. The education of the people by“ habitual observance and experience of legal sanctions." is another phrase which captivates; but we think Mr. Finch goes too far when he says they are made moral or immoral by Act of Parliament. The more highly the people are educated the less they seem inclined to accept legal sanctions, and Acts of Parliament are criticised too sharply where their operation is inconvenient, to allow us to think that they make citizens moral or immoral.
We thoroughly agree with writers, ancient and modern, from Plato to Dr. Taylor, who affirm that crime is the result of a diseased condition of the mind. The moral nature is represented by the mind, and if it is possible by education to improve the moral nature, crime would undoubtedly diminish. Here, if we were to follow out the subject, we should require to examine carefully Mr. Finch's views on religion and science, which would be foreign to the objects of legal journalism. We have already noticed in our leading columns our author's ideas on the subject of the interrogation of nature as applied to the pursuit of trath, and a contributor has shown how easily the views of Mr. Finch may be met, and almost neutralised, by arguments which, equally with his own, are at present mere matter of individual opinion. We have only, in concluding this notice, to thank the author of the lecture for much entertaining and edifying material. His notes are rich with the produce of wide reading. Whatever we may do in the way of making our laws a means of education, there can be no doubt that the administration of the law must derive great advantage from numbering among its professors cultivated thinkers such as Mr. Finch. To attain intellectual eminence, whilst engaged in work much of which is of necessity unintellectual, and at times almost mechanical, is a more common accomplishment now than in earlier times, and we are glad that the law has its brilliant members in the department of literature devoted to science and philosophy.
LAW LIBRARY. "The Pursuit of Truth. A discourse delivered before the Sunday
Lecture Society. By A. ELLEY FINCH, Esq. ONLY a portion of this very interesting discourse is devoted to purely legal investigation, but Mr. Finch's aim is to show that the truth' in theology, science, and law must be pursued upon the same principles. The species of speculation which endeavours to connect law with morality, making the one react upon the other, Veading to the conclusion that “the moral and physical laws are allied by a closer analogy than is usually suspected,” is very tempting, and elegant theories are very easily evolved under the teaching of the ancient philosophers. Mr. Finch, however, is not merely a speculator or a theorist; he states boldly that the “real legal reformer” aims at harmonising the rules of positive law with the principles of moral rectitude, rather than at facilitating the course of legal procedure. This sounds extremely well, and the ideal law reformer doubtless cherishes this great project; but the reformers with whom we are practically acquainted have certainly placed first in their consideration the facilitating of legal procedure. The establishment of County Courts by Lord Brougham was a greater measure of a practical kind than any which we can think of dealing with the harmonisation of the rules of positive law with the principles of moral rectitude. Again, Lord Selborne's Judicature Act is almost entirely a measure of proceedure. But Mr. Finch's argument cannot be taken bit by bit and criticised: it hangs together, and must be considered as a whole. This is shown by the passage
The Supreme Court of Judicature Act of 1873.
By THOMAS PRESTON. London: WILLIAM AMER. Mr. Preston is no doubt quite right when he says that during the next twelvemonths everyone in any way connected with the legal profession will be studying the Indicature Act, and he has produced an edition of 'it which will prove convenient to the student. But its value must be very fleeting. In twenty; five distinct and separate instances rules of procedure to be framed by the Judges are referred to in the body of the statute, and whilst a knowledge of the statute itself is primarily needial, the work which will form the basis of the “practice” of the future will be that which skilfully incorporates the new rules with the Act. In the mean time, however, we recognise Mr. Preston's enterprise, and he gives us an excellent index. For half a crown, therefore, the practitioner may obtain a work containing an introductory epitome, and the Act itself, with every other page blank for notes, so that when the rules come out they may be added.
The Lawyer's Companion and Diary, 28th annual issue. By J. THOMPSON, Esq., of the Inner Temple, Barrister-at-Law. London: Stevens and Sons, Chancery-lane. This work has become, if possible, more than ever indispensable in a solicitor's office.
SOLICITORS' JOURNAL. mates for rates, also composition for rates notes for reference to folios of ledger ; keep such
agreed upon between the board and owners books of accounts and in such form as the Board AMONGST the emoluments yet enjoyed by solici- of property in the district, prepare all no- shall direct; prepare annually a summary of tors may be mentioned the office of Clerk to Local tices to be given by the board, keep, check, receipts and expenditure, to be submitted to Boards, which is usually filled by members of our and examine all accounts, books of accounts, auditor; prepare and transmit all reports and branch of the Profession, but a case has lately and report thereon, prepare all orders on Parliamentary returns; conduct proceedings become to our knowledge which occasions us some the Treasurer, and countersign the same, ascer- fore justices; find his own office and clerks. We anxiety upon the subject. “Wanted a Clerk to tain before each meeting the balance due to or make no comment, but only repeat—“Salary £60 the Local Board of,” &c., recently appeared in from the Board in account with the treasurer, and a year.” our advertising columns; salary £60 a year. keep accurate accounts of all penalties, proceeds “ The clerk must be a certificated solicitor," said of sales, &c., and all other sums applicable to UNDER the heading “Law Societies," in our the advertisement in question, and the following district fund account, or otherwise payable to the present issue, will be found a reprint of a cir, are a few of the duties of the office :-Attend all Board; examine and check the accounts of the cular headed "Legal Practitioners' Society," meetings, keep minutes, conduot correspondence, collector every month, to see that all moneys re- which has been largely circulated amongst the make copies, prepare, &c., all deeds, contracts, ceived are duly accounted for ; obtain from sur. Profession both in town and country. That some agreements, or other instruments, summon all veyor and inspector of nuisances a monthly of the work which it is contemplated should be meetings, communicate all orders, &c., to all statement, and examine same, preserve an done by this society ought to be undertaken by officers of the board, advise the board on all receipts and vouchers for production to auditors ; existing bodies we do not dispute, but that it is matters, prepare and keep all rate-books and esti- keep a minute book and journal, and insert marginai not undertaken by them is equally certain. We
wish those who would establish the “Legal Praco
NOTES OF NEW DECISIONS.
should be dismissed. A considerable delay in in. titioners' Society," as a useful institution, every ADMINISTRATION WITH WILL ANNEXED stituting proceedings in such cases is not a bar success, and we shall do all we can to further the SUBSTITUTED TRUSTEES.- Where a court of where the evidence in support of the petition is objects in view, and as to which we shall have equity had made an order under the Trustee Act conclusive ; but such delay is very material where
1850 substituting new trustees for those named the chief evidence consists of conflicting stater more to say after the meeting on Thursday next.
in the will, the Court of Probate granted ad ments by the parties. The burthen of proot is on ministration with the will annexed to the substi- the party seeking the remedy, and in those cases
tated trustees without requiring the execution of a especially should be strictly insisted on: (MansWe have received from country solicitors during deed of conveyance to them by the old trustees : field v. Cuno, 29 L. T. Rep. N. S. 316. H. of L.) the past week, several copies of the scale of (In the goods of C. Woodfall, 29 L. T. Rep. N. S.
GIFT OF MONEY-ACCEPTANCE AS A LOAN charges issued by so-called law agents and ac 248. Prob.)
PROMISSORY NOTE-CONSIDERATION.- The plaincountants, and which we reproduced in extenso
LUNACY-PROTECTION OF LUNATIC'S ESTATE tiff requiring some money to pay his election exin our last issue. We have also received nume
-APPLICATION FOR LEAVE TO ATTEND Propenses, applied through a friend to W., his wife's
who uncle, for a loan of £1000. W. declined to lend rons newspaper cuttings containing advertise is interested under a will made by the lunatic £1000, but said that he would advance .£500 as a ments such as that circulated by Campbell and before the commencement of the lunacy, will not gift, and deduct it from a legacy which he inCo., headed “Who is your Lawyer ?” which we be allowed to attend the proceedings in the tended to leave to the plaintiff's wife and children. have often before exposed in these columns. We lanacy: (Re Scarlett, 29 L. T. Rep. N. S. 232. He accordingly drew a cheque for £500 in favour Chan.)
of the plaintiff, who, in acknowledging the receipt commend these matters to the consideration of
PRACTICE - REHEARING - COMPANIES Act of the cheque, wrote that he would gladly repay the Legal Practitioners' Society.
1862 (s. 124.)-The 124th section of the Companies it at an early opportunity. W. subsequently Act 1862, which restricts the time within which
changed his will and reduced by £500 the legacy notice of rehearings or appeals must be given, which he had given to the plaintiff's wife and The following law lectures and classes are ap- refers to rehearings by way of appeal, and not to children. Three months afterwards the plaintiff pointed for the ensuing week in the hall of the rehearings by the Court of Appeal of orders made had a conversation with
W., who, on the plaintiff Incorporated Law Society: Monday, 17th, class, by itself: (Re The Blakely Ordnance Company expressing regret that w. should suffer loss by Common Law, 4.30 to 6 o'clock ; Tuesday, 18th, (Limited) Brett's case, 29° L. T. Rep. N. S. 255. having given him the money in his lifetime, said Chan.)
that the plaintiff could allow him one per cent., class, Common Law, 4.30 to 6 o'clock; Wednes
ADMINISTRATION-GENERAL GRANT TO RE- being the rate of interest which his banker wonlá day, 19th, class, Common Law, 4.30 to 6 o'clock; CEIVER APPOINTED BY THE COURT OF CHAN
have allowed him. Thereupon the plaintiff Friday, 21st, lecture, Conveyancing, 6 to 7 o'clock. CERY.-A. died intestate, and it was alleged that voluntarily, and without being asked to do so, To prevent interruption at the lectures, sub. bis widow, without taking out letters
of admis. signed and gave W. a promissory note for £500 scribers cannot be admitted to the hall after the tration, had got in part of his estate. The credi- and interest at one per cent., it being, according lecture has commenced, tors filed a bill in Chancery for the administration
to the plaintiff's statement, clearly understood of his estate, and a receiver was appointed. The between them that the promissory note should
receiver applied to this court for a grant of not be enforced as to the principal, but shonld WHILE in England solicitors seem quite undis. administration, and oited the widow and next of merely serve as a security for the interest during
W.'s lifetime. On W.'s death his executors bronght tarbed at the appointment of barristers to the general grant to the receiver : (In the Goods of an action on the promissory note, and the plaina office of solicitor to many public departments of Mayer, 29 L. T. Rep. N. S. 247. Prob.) the State, in Ireland it is quite otherwise, and it WINDING-UP-CONTRIBUTORY-PAST MEM
(reversing the decision of Malins, V.C.), that, is not long since that Mr. Charles E. Lewis, M P., BER-PAYMENT OF OLD DEBTS-RELEASE: B. for the promissory note, if there was clear ovi.
although there would have been no consideration when urging solicitors to action in this and who was on the B list of a company in liquida-dence that the £500 had been in the first instance kindred matters, directed attention to the spon- tion, caused to be bought up and released to the taneous and determined resistance opposed
by company all the debts which were due by the riven and received as a pure gift, yet that as the
company when he ceased to be a shareholder, receive it as a gift, it amounted to a loan, and solicitors in Dublin to anything like encroach- and which remained due at the commencement ments on their privileges by the Bar. It is of the winding-up: Held,
that although the money and that the action ought not to be restrained.
was a good consideration for the promissory note, satisfactory to know that the Crown solicitor in which was raisable from the A list contributories Held, also, that parol evidence was inadmissible Ireland is actually a solicitor.
was insufficient to pay all the debts of the com-
the promissory note should
to show that there was an agreement between the ment of debts, and of the costs of the winding- not be enforced : (Hill v. Wilson, 29 L. T. Rep. A CORRESPONDENT inquires "whether an under up. The assets of a limited company in liquidasheriff can properly be also agent for one of the tion (including the proceds of calls made in the N. S. 238. Ch.) candidates at a Parliamentary election for the creditors of the company, at whatever time their winding-up), are divisible pro rata among all the
ROLLS COURT. city for which he is under-sheriff, receiving the debts may have been contracted, and accordingly
Tuesday, Nov. 4. usual retainer from such candidate." Although the liability of past members in respect of debts
FOTHERGILL v. ROWLAND. we do not know of any statutory provision which contracted before they ceased to be members is
Demurrer-Suit for injunction—Breach of says in so many words that an under-sheriff is reduced by the amount paid upon the old debts
contract. disqualified from filling at the same time, and in out of such assets : (Morris's case, 29 L. T. Rep. This was a bill filed for the purpose of obtaining
N. S. 256. L.C. & L.JJ.) the same place, the post of political agent, yet the
an injunction to restrain the defendants from
NEGLIGENCE-MASTERAND SERVANT-ACTING two offices are hardly compatible, and it would be WITHIN THE SCOPE OF HIS EMPLOYMENT.-The the coals obtained from a particular seam in a
selling to any persons other than the plaintiffs à matter for strong observation in case of an defendant was employed to remove some iron rails colliery belonging to the defendant, Rowland. It election petition where such under-sheriff (usually from the place where they were stacked to. a appeared from the statements in the bill that in a solicitor) andertook the reception and scrutiny of the consignor to bring the rails to a particular into an agreement in writing with the plaintiffs
vessel in the Liverpool Docks. It was the duty December 1871, the defendant Rowland entered of votes.
spot, from which the defendant was to ship them by which, in consideration of certain acts to be We are sorry to notice that in a case before Mr. delivered, his foreman got upon a waggon which and deliver to them the whole of the get during
The defendant's men having removed all the rails performed by the plaintiffs, he contracted to sell Partridge, at Southwark, an objection raised by a was waiting to deliver more rails, and in unload. three years of the No. 3 seam in his colliery at defendant to the case being conducted for the ing it, threw one upon the plaintiff. In an action the price of 68. per ton. The plaintiffs performed complainant by a person not a solicitor was over against
the defendant to recover damages for the their part of the contract, but in August last the ruled, the magistrate stating that the rule of the injury, received through the negligence of the defendant Rowland contracted to sell the colliery court was to admit articled clerks. On the other plaintiff. Held (per Grove and Denman, dissen. previous ceased to supply the plaintiffs with coal. defendant's servant, the judge_nonsuited the
to the other defendants, ke having for some time hand, we are glad to notice that at the Brighton tiente Brett, J.), that the defendant's foreman was County Court, in a case of Wright v. Chantrell, a acting within the scope of his employment, and defendants from supplying other persons with the
The bill prayed for an injunction restraining the Mr. Hawkins, who appeared for the defendant, that there was therefore, evidence to go to the coals. The defendants demurred to the bill. having, in answer to a question by the judge, jury. Per Brett, J.- That the act of the foreman
Roxburgh, Q.C., and Gazdar for the defendant stated that his occupation was that of an account which his duty in relation to the moving of the was an act done at a period antecedent to that in
Rowland. ant and auctioneer, was told that he could only be rails commenced, and that, therefore, there was
Sir R. Baggallay, Q.C., Fischer, Q.C., Freeling
and Crossley for the other defendants, heard as a witness, and had no right to take the no evidence on which a jury could find for the
Fry Q.C., and A. G. Marten in support of the place of a professional man. plaintiff : (Burns v. Poulson, 29 L., T. Rep. N. S.
bill. 329. C. P.)
Sir G. JESSEL was of opinion that the court GARNISHEE INTERPLEADER JUDGMENT could not give any relief to the plaintiffs. The A CORRESPONDENT sends us the following : The CREDITOR.-1 & 2 Will. 4, c. 58, s. 7, provides that contract was a contract for the sale and delivery conveyancing charges advised by the Incorporated all rules, orders, &c., made in pursuance of that of coal, a severed chattel having no relation to Law Society, may probably be adequate remune.
Act may be entered of record; and every such real estate, the remedy for breach of which conration to the great offices who would not look at rule or order so entered
18 to have the force and tract was by action at law, there being nothing to
effect of a judgment. This enactment does not distinguish the case from that of any ordinary a conveyance or a mortgage for less than £100, , make a person who has obtained an order for the contract for the sale and delivery of goods. He except as an accommodation to a good client. costs of an interpleader issue, and has entered it knew of no case in which, there being a contract But in districts where such small transactions are of record, a judgment creditor
within the meaning to deliver particular goods at a particular price, numerous, and fall to the lot of small practi- cedure Act 1854 (17 & 18 Vict. c. 125), ss. 60,
61: performance could not have been decreed. He,
an injunction had been granted where specific tioners, it will not answer. Either a higher fee will(Best v. Pembroke 29 L. T. Kep. N. S. 327. Q. B.) be insisted on, or if the solicitor be one of the
therefore, must allow the demurrers.
SUIT FOR NULLITY OF MARRIAGE-IMPO. Solicitors : Sharp and Ullithorne. cheap and needy class, he will accept the terms TENCE-DELAY-BURDEN OF PROOF.-In a suit and scamp the work. It is certain that the re. by wife for declaration of nullity of marriage on
Thursday, Nov. 6. muneration will be inadequate, and the scheme the ground of impotence of the husband, the medi.
MARLER v. Tommas. would be much more likely to work if the scale the parties conflicting. The marriage was in Power of appointment of stock-Transfer
executed of the laity, as well as the Profession, to make tion was filed in 1871. Held (affirming the judg. By a postnuptial settlement dated the 8th Sept.
ment of the Divorce Court) that the petition '1865, certain shares standing in the name of a