MECHANISM of MAN. By EDWARD W.COX, Serjeantat-Law. Price 88. 6d.

CHAP.

1. Introduction.

2. What am I?

8. The Man.

4. How we Grow.

5. How we Live.

6. What Life is.

CONTENTS:

7. The Beginning of Life.

8. The Germ.

9. How we Die.

10. How we are Moved.

11. The Senses.

12. Of the Sense of Sight. 18. Of the Sense of Hearing. 14. Of the Senses of Taste and Smell.

15. Of the Sense of Touch. 16. Of the evidence of the Senses.

17. About Life.

18. Of the Brain.

19. The Mechanism of the Mind.

20. Classification of the Mental Powers.

21. The Mecaanism of the Mind: The Propensities. 22. The Mechanism of the Mind: The Sentiments Common to Man with the Lower Animals. 23. The Mechanism of the Mind: The Sentiments Proper to Man.

24. The Mechanism of the Mind: The Intellectual Faculties.

CHAP.

25. The Mechanism of the Mind: The Faculties that perceive the relations of external objects.

26. The Mechanism of the Mind: The Reflective Faculties.

27. Of the Memory,

28. How the Machinery of the Mind works.

29. Of the Will.

30. The Soul-its Dwelling and its Destiny.

81. Soul-Spirit-Anima.

82. The Argument. 33. Consciousness.

84. Presumptive Proofs. 85. The Natural and the Supernatural.

$6. What the Soul is.

37. The Dwelling-place of the Soul.

38. The Shape of the Soul. 39. The Condition of the Soul after Death. 40. The Outlook of the

Soul. 41. The Pre-existence of the Soul.

42. The Dwelling-place of the Soul.

48. The Condition of the Soul.

44. The Mystery.

45. Conclusions.

OPINIONS OF THE PRESS.

A most useful and charming book.-Standard. Serjeant Cox sketches his psychological system with a bold, free, and not unsteady hand.-Daily Review.

Written in such plain language and in such a popular and entertaining style.-Oxford Herald.

A remarkable book.-Builder.

We commend it to the serious study of those who would find an intelligible answer to the monstrous question "What am I?"-Leicester Mercury.

These speculations are full of interest.-South Wales Daily News.

A work that may be very profitably read.-Figaro.

We await the second volume with some anxiety, anticipating much food for thought and speculation.-Eastern Daily Press.

Mr. Serjeant Cox's work is full of thought, and well worth reading.-Morning Post.

There is much to challenge the attention of reflective readers.-Bristol Mercury.

Contains much ingenious speculation which, at least, seems to solve some of the manifold mysteries of life.-Leieester Daily Post.

We think very highly of this attempt to set forth psyhology.-Literary Churchman.

The industry and research of the authorare only eq ualled by the ability in marshalling his facts.-Somerset Gazette. London: LONGMAN and Co., Paternoster-row.

I.-General Account of the Diamond Fields. Part II.-Routes to the Fields.

With

Part III.-Sketches of Life and Character on the Fields.
Part IV.-My Diary at the Dry Diggings.
Pert V.-The Gold Fields.

THE wonderful discoveries of the year 1871, far surpassing in richness everything that had gone before, and proving the South African Diggings to be no risky speculation, no exaggerated humbug, but a source of great profit-nay, often of immense wealth, to industrions and persevering diggershave naturally caused (not only in the Cape Colony, but in Europe, Australia, and America) an all-pervading interest in these Fields, and a constantly increasing demand for re liable information.

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a

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"A little vol, of 300 pages does not profess to be exhaustive Nor is Round the Table' a cookery book in the ordinary sense of the word; it is rather a book for the mistress of the household to read and ponder. Apart from the recipes. many of which are new and original-all of which are so carefully explained, that nothing but deliberate perversity can make the cook go wrong, and each one of which has been used in The G. C.'s' own kitchen-the value of the And there are also a work is in its wrinkles."

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MESSES, VENTOM, BULL, and

COOPER'S MONTHLY REGISTER, containing particulars of Estates and Farms, Furnished and Unfurnished Houses in Town and Country to be sold or let, Ground Rents, and other Investments, may be had free on application, or by post for one stamp. Particulars intended for insertion in next month's Register should be forwarded by the 26th inst.-Auction and Estate Agency Offices, 8, Bucklersbury, E.C.

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London: HORACE Cox, 346, Strand, W.O.

Now ready, price 6s. 6d. (including Index to Volume), PART VIII. of

MARITIME LAW REPORTS (New Series). By J. P. ASPINALL

Esq., Barrister-at-Law, in the Admiralty Courts of England and Ireland, and in al

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with Notes by the Editor. The First Series of "Maritime Law" may now be had com

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22 28. Back numbers may be had in complete sets.

London: HORACE COX, 10, Wellington-street, Strand, W.C.

Ir is said to be the intention of our present Government to depart

from the ancient practice of regarding the Chief-Justiceships of the

common law courts as the necessary rewards of law officers. We

are inclined to think that this is acting in strict accordance with

the spirit of the age, which Mr. DISRAELI says is evidence of

supreme wisdom, for it cannot be disputed that the modern lawyer

developes very little of the peculiar talent necessary to properly

qualify a law officer. A law officer must be something more than

VOL LVI.-No. 1599.

a good lawyer-perhaps more of a Parliamentary debater and a

man of letters than of a lawyer. For this reason we incline to

think that Mr. HARCOURT will make just such a law officer as we

want at present. But it is perfectly clear that he would make an

inefficient Chief-Justice of any of our common law courts; and if,

by the further elevation of Mr. JAMES, Mr. HARCOURT became

Attorney-General, it is certainly desirable that the next vacancy

in the Chief-Justiceships should not be regarded as his as a matter

of right.

THE Great Western Railway Company has been particularly
unfortunate in the cases which it has contested lately, but it
evidently cares little whether it wins or loses in the County Court.
In an action brought by Mr. FORSYTH to recover damages for
unpunctuality, a sufficiently vigorous defence was made; but in
another case heard on the same day (a short report of which we
have published) "Mr. MASON, from the Company's Paddington
office," attended on their behalf. A question of law arose out of
the plaintiff's case, which was reserved, and "Mr. MASON was
proceeding to cross-examine the plaintiff, when he was very
properly stopped by the judge, Mr. STONOR, who observed that the
company ought to have been represented by a professional man.
The question of law raised was whether horse-clothing was per-
sonal luggage. "Mr. MASON " contended that it was not. The
horse-clothing in question was wrapped up and labelled as the
luggage of the person to whom it belonged, and the weight was
not objected to. There could be no great difficulty in dealing
with such a point as this, but it is to the interest of companies as
well as individuals to be efficiently represented in Courts of law.

erroneous.

THE Court of Exchequer had recently to consider the important
question of the jurisdiction vested in masters to remit actions to
the County Court. Baron BRAMWELL said that there appeared to
be an impression that masters had no power to deal with sum-
monses for such purposes, and declared this impression to be
In the particular case a dressmaker, whose means
were small, suffered damage by an accident when getting into the
defendant's omnibus. She brought her action, and a summons was
taken out under the County Court Act 1867, to refer the cause to a
County Court. The parties went before Sir F. POLLOCK, who de-
clined to make any order. On appeal to Mr. Justice DENMAN, he
made no order, but without prejudice to an application to the court,
which was accordingly made, and the court held that the master
had jurisdiction: the parties had gone before him, he had made no
order, and that should be final, he having declared in effect that it
We refer our
was an action fit to be tried in the Superior Court.
readers to the report of the case in our issue of the LAW TIMES
Reports of this week; it will be found instructive as to the juris-
diction and practice at judges' chambers.

Ar a meeting of the King's-cross Branch of the Amalgamated
Society of Railway Servants, held last week, it was stated that
Mr. Bass was framing a bill to secure compensation to railway
servants injured in the performance of their duties. Of course
everyone will sympathise with the wish of a hardworking, and in
many cases overworked, body of men, that their death or injury
by accident should not leave their families altogether without pro-
vision for the future. Whether, however, it is the duty of railway
companies to make provision in such cases is open to question. It
is difficult to see how any distinction can be made between the case
of the servants of railway companies and servants engaged in other
employments. The well-known rule on the general question is
that a servant cannot recover from his master compensation for
injuries caused by the neglect or misconduct of his fellow-servant.
The reason for this rule is that a servant enters on his employment
knowing the risks of the particular service, and agreeing to
accept his fellow servants as competent to perform their duties.
If he is dissatisfied with his position and the risks attached to it,
he can leave, but his continuance therein must be taken as proof
that he is satisfied. It may be added that if a liability of this
kind were attached to masters it would be almost impossible to
carry on a business of large extent, and in which many hands are
employed. This being the general rule, can a distinction be drawn
between servants generally and railway servants. We can see no
reason for such a distinction. It will no doubt be urged that the
risks attached to the working of railways are very great, that the
operations are extensive and complicated, and the number of
servants very large; that consequently the risks are very much
increased. There is another reason which will have its effect,
though it will probably not be put forward, namely, that
it is always fair to make a railway company pay as much
as possible because they can afford it. If this mode of rea-
soning were sound, it would apply to many other occcupa-
tions, as to miners and sailors, but we think it is not sound.
A railway servant, a miner, or a sailor, enters on his employ-
ment subject to the risks incident to it, and his remuneration
should be proportionate. Here is the point where any remedy
for the hardships endured by railway servants should be applied.
The railway companies may fairly be called upon to pay such

wages as will enable their servants to provide against the effects of accident, either by saving or insurance, but neither railway companies nor any other employers of labour can be made to insure their servants against their fellow servants' carelessness or neglect. There are cases where accidents are caused by the overworking of signalmen or guards, or by the neglect of the directors to provide proper appliances for working the system. But in these cases the real remedy is not to alter the law, but to bring the fault home to the directors or employers, when the law, as it at present stands, would meet the case; for masters are now liable to their servants for the consequences of their own faults. If such a Bill as that alluded to is introduced into Parliament it will undoubtedly meet with strong opposition on the part of the railway companies, and their advocates will not want reasons to urge against its being passed into law.

THE County Court Judge of Surrey has decided a case on the Married Women's Property Act 1870, which gives it, we think, a more extended operation than can be safely sanctioned. It was alleged that the married woman, whose goods had been seized, had invested her separate earnings in such goods. She kept a lodging house, and her husband lived with her. It was argued by counsel for execution creditors that as the claimant's husband was living with her in the lodging house, she could not be said to have carried on the business of such lodging house separately from her husband. To this his HONOUR replied, “I think that if it had been the intention of the Legislature to limit the provision of the Act to cases where the wife lived apart from her husband, or gained her earnings or wages at some other place than where her husband resided, such intention would have been clearly and unequivocally expressed, and that it is not necessary for the separate carrying on of a business by a married woman that she should live apart from her husband, or gain her earnings or wages elsewhere than where he resides, but only that he should not carry on, or assist, or take part in carrying on such business." Any construction may be placed upon an Act so illframed as the Married Women's Property Act, and it would hardly be possible to say that it was wrong; but we think the Act should be so construed as to prevent frauds upon creditors, which the construction of the learned County Court Judge obviously facilitates.

MR. VERNON HARCOURT is not a Solicitor-General of the conventional type. Having been for a number of years a member of the Parliamentary Bar, he relinquished the active practice of his profession to pursue political honours. The line which he has taken in the House, however, has been of a quasi-legal character, his greatest hits having been made in connection with International law and the law of conspiracy. His success as a debater, although marred in a measure by some faults of temper, has been unquestionable, and that he possesses very considerable is univerpower sally admitted. From a political and administrative point of view a man with these qualifications must be a most desirable law officer; but we anticipate that his want of familiarity with the practice of the ordinary tribunals will be found to be a drawback of no small magnitude. And we cannot consider him fortunate in being led by an Attorney-General who, excellent as he would have been as a subordinate, is not of the calibre to which we have been accustomed in our first law officer. This is not so much Mr. JAMES's fault as the fault of accidental circumstances. Rarely has a rise been so rapid; he had not the opportunity of learning the elementary duties of his office-which he would soon have done under such a master as Sir JOHN COLERIDGE-before the post above him became vacant. The rather singular combination of talent which we find in our law officers will therefore be entitled to every consideration if in some respects it fails of practical efficiency. Generally, no doubt, Mr. HARCOURT will give strength to the Government, and if his zeal for law reform does not abate under the influence of office we may look forward to some useful measures of a practical character.

Two important cases arising out of the liquidation of the Bank of Hindustan, China, and Japan were before the Court of Appeal in Chancery on Wednesday. The appeals came from Vice-Chancellor WICKENS' Court; one decision appealed from being that of the late VICE-CHANCELLOR, and the other that of Lord Justice JAMES sitting for him. The effect of those decisions was to declare the right of CAMPBELL, HIPPISLEY, and ALISON to repayment with interest of all moneys paid by them upon exchanging their shares in the Imperial Bank of India, China, and Japan, in pursuance of an arrangement entered into between the two banks under which the business and assets of the Imperial were transferred to the Hindustan, while the capital of the Hindustan was to be increased from £2,000,000 to £4,000,000 by the issue of 20,000 new shares, which were to be offered to the Imperial shareholders upon certain terms. The question involved was whether the resolutions authorising the increase of capital were good under sect. 12 of the Act of 1862, and bound the dissentient shareholders of the Imperial. That sec

66

tion says that any company may so far modify the conditions contained in its memorandum of association, if authorised to do so by its regulations as originally framed, or as altered by special resolution as thereinafter mentioned, as to increase its capital by the issue of new shares of such amount as it may deem expedient or to consolidate and divide its capital into shares of larger amount than its existing shares. Sect. 50 gives power to the company in general meeting to pass a special resolution altering the regulations contained in the articles of association. The dry point was whether, having altered their regulations by special resolution, the bank could issue new shares. If," said Lord SELBORNE, "the effect of the resolution was neces sarily to alter the regulations of the company-that is, the articles of association as originally framed-by authorising an increase of the capital by the issue of new shares which those articles did not authorise, then I think it was sufficient to enable the company to modify, by an actual issue of new shares, pursuant to that authority, the conditions as to the amount of capital of the company contained in the memorandum of association." The LORD CHIEF BARON, when the question of the effect of the resolution and the actual issue of shares was before the Exchequer Chamber in Alison's case, came to the conclusion that the resolution was bad as attempting to combine, uno flatu, two operations, namely, the authorisation of the increase of capital by the issue of new shares, and the actual increase of such capital by the creation of such new shares-the one, in his opinion, being a condition precedent to the second. On this the LORD CHANCELLOR differed, being of opinion that it is not necessary that the second of these two operations should be performed by any resolution at all. "The authority to make the issue," his Lordship said, was indeed required to be given by a special resolution; but the power of issue, when once given, was capable of being exercised by the board of directors." This is a principle which is of importance beyond the particular cases which were under review.

66

THE law of extradition has been for a long time in an uncertain condition, and the practice ill-defined. The recent discussion before the Court of Common Pleas, in the case of Emile Ferrand, a French prisoner, showed that recent legislation has taken a leap which is of very questionable expediency. The question in Ferrand's case was, whether evidence could be taken in England in relation to a prosecution pending before foreign tribunals. The objections to allowing such a course raised by Mr. Justice KEATING, were, that the application to the court must necessarily be ea parte, and the proceedings conducted in the absence of the prisoner; and, further, the Act of 1856 directed that the Lord Chancellor and two Judges should frame rules for giving effect to the provisions of the Act, and regulating procedure under it, which had not been done. To the first objection the case of Re Elise Counhaye (28 L. T. Rep. N. S. 761), is an answer. There Mr. Justice BLACKBURN said: "I believe we are all agreed that the 14th section (of the Extradition Act 1870), makes depositions admissible in evidence, provided they are duly authenticated without regard to their having been taken in the manner required by our law. Whether depositions are taken upon the investigations of the particular charge made in this country, or whether taken in the presence of the accused, are matters which we need not consider as affecting the admissibility of the documents. I believe those are points which are seldom or never considered of importance in other European countries, and the section is, I think, satisfied if the authentication is established." His Lordship added, for the guidance of magistrates, "I wish, however, to guard myself from being supposed to lay down that a magistrate should accept as indisputable all that is deposed against a person in his absence, or upon a charge against another person. Such a deposition he should take, of course, with qualification, although he cannot refuse to admit it." In Ferrand's case the application was not, as in Counhaye's case, to discharge a prisoner out of custody, but to examine witnesses in England in order to furnish the French Government with materials for the prosecution of the prisoner in France, Sect. 14 of the Act of 1870 enacts that depositions or statements on oath taken in a foreign State, and copies of such original depositions or statements, and foreign certificates of or judicial documents stating the fact of conviction may, if duly authenticated, be received in evidence under this Act. By the Amendment Act of the present year this section was made to include affirmations and copies of affirmations. Then, sect. 5 of this last Act provides that a Secretary of State may, by order under his hand and seal, require a police magistrate or a justice of the peace to take evidence for the purposes of any criminal matter pending in any court or tribunal in any foreign State; and the police magistrate or justice of the peace, upon the receipt of such order, shall take the evidence of every witness appearing before him for the purpose, in like manner as if such witness appeared on a charge against some defendant for an indictable offence. "Such evidence may be taken in the presence or absence of the person charged, if any, and the fact of such presence or absence shall be stated in such deposition." Mr. Justice BRETT remarked that had it not been for this section he should have thought it was

a fundamental principle of English law that no examination should be taken in a prisoner's absence. So that we have an Act of Parliament in direct conflict with the fundamental principles of our law-and this simply to facilitate legal procedure in a foreign State. The Court of Common Pleas have not yet arrived at any decision, and it is certainly remarkable that they should hesitate to make an order so as to bring the statute of this year into full operation.

ADJOURNMENTS OF CRIMINAL TRIALS.

A VERY grave question is raised by the adjournment of the Tichborne trial for the purpose of obtaining further evidence-a grave question not only as regards that particular case, but as regards all criminal trials in general. If the adjournment was not warranted in law there can be no doubt it is an error in the law which will invalidate the trial. If it was warranted in law, then it will alter the whole of our criminal procedure, and have grave results on the administration of justice. Beyond all doubt Judges have always hitherto been under the impression, and been firmly persuaded, that there was no power of adjournment in criminal cases, any more than for the discharge of a jury except for actual physical necessity. In old times it was not unusual to discharge a jury in order to allow the prosecution to get fresh evidence, but Lord Hale and Mr. Justice Foster both reprobated the usage as an abuse, and Foster said, "Let us hope the question will never again be raised whether such a practice can be right." It is obvious that Judges resorted to the practice because they were well aware that they had no direct power of adjournment for purposes of evidence, and so they sought to attain their object by indirect means. An adjournment for purposes of evidence has never been heard of either in a civil or a criminal case. No doubt actual physical necessity would justify a discharge of a jury or an adjournment; and thus, in 1754, in the trial of Elizabeth Canning for perjury, which lasted fifteen days, the trial was adjourned de die in diem. But except on the ground of physical necessity no adjournment could take place in a criminal trial, either for felony or misdemeanor, and so said Lord Chief Baron Macdonald when alluding to Canning's case, as one of necessity. There," he said, "physical necessity forced an adjournment." But in 1781, in the trial of Lord George Gordon, Lord Mansfield sat from eight in the morning until five the next morning, which he would not have done had he not felt bound in law to sit as long as he found it physically possible.

66

66

In the trials for high treason in 1794, which lasted several days, Lord Ellenborough and Lord Chief Baron Macdonald expressly recognised the general rule in cases of felony or misdemeanor, and put the adjournment on the ground of physical necessity, concluding thus: "except in the case of physical necessity or impossibility the rule ought to be observed." And the adjournment was also strictly limited to the necessity, and Lord Ellenborough said the court must sit from day to day as closely and diligently as they could." The same principle was laid down by Lord Kenyon in 1796; and he expressly put the adjournment from day to day on the ground of actual physical necessity. He also carefully directed a special entry on the record of the necessity for the adjournment, obviously in order to guard against error in law which would otherwise lie; for there would be a hiatus in the proceedings otherwise unexplained and unjustified, according to the settled rule of law, and the result would be that the trial would be invalid. If it were not so then there would be an arbritary power of adjournment for any reason, and among others to enable the prosecutors to better their case, the very thing which Hale and Foster deprecated as an abuse. Therefore the reason for the adjournment must appear on the record, and be a reason valid in law. The same rule of law was laid down by the Court of King's Bench in the time of Lord Tenterden, that in a criminal case, whether misdemeanor or felony, there can be no adjournment, except for actual physical necessity. The only difference is that in cases of felony the jury cannot be allowed to separate during the necessary adjournments from day to day. The general rule was the same. There was no power of adjournment for purposes of justice, either in civil or criminal cases. Hence the most iniquitious lawsuits took place daily from the want of evidence which could often have been supplied, but no such thing as an adjournment for the purpose ever took place. Criminals were acquitted at every assize owing to the absence of evidence which could often be supplied, and no one ever dreamt of a general power of adjournment for purposes of justice. In 1853 the Common Law Commissioners reported that it was unfortunate that in civil cases there was no such power, and in the Act of 1854 an enactment was inserted which conferred it. But the law in criminal trials remained the same; and hence the greatest of our judges have held, over and over again, that there was no power of adjournment for purposes of evidence. Among those who have so held have been Gurney, Wightman, Cresswell, Willes, and Watson. The utmost that they have ever been known to do has been to wait for an hour or two; suspending the trial; not adjourning it; and keeping the prisoner meanwhile in the dock-in order to avoid even the appearance of an adjournment. In 1865 Mr. Denison's Act passed, for assimilating the practice of criminal

trials to civil, but it contained no enactment on this head. And in 1866 the Court of Queen's Bench, in Winsor's case, fully adopted the doctrine of Foster and Hale that the court could not discharge a jury in order to enable the prosecution to get further evidence; and only upheld the power in cases of actual necessity. The same doctrine was upheld in the court of error, and though there are dicta in the judgments which are wider than the decision, the record showed a case of actual necessity, arising from various physical causes, and the judgment only was that it did show such a case of necessity. Several hours had elapsed; it was near midnight on Saturday, and the commission was to be opened at the next assize town, where the business was heavy, and the jury were not likely to agree. The result was a very strong case of actual necessity, and it was fully stated on the record. It was quite understood in that case, and is implied in the judgment, that if a good cause for the discharge was not shown it would have been error in law, for the case went to a court of error on that ground. The same rule of law applies to an adjournment, and the discharge of the jury was only resorted to in lieu of an adjournment, because an adjournment was known to be inadmissible. A very high degree of actual necessity was never sufficient to justify the discharge of a jury; but the judges have held for centuries that there must be an actual physical necessity to justify an adjournment. If it were otherwise the whole of our criminal system of justice would have to be altered, and the gravest inconveniences would arise. What Justice Mellor meant by saying that it has been done "hundreds of times" no one can surmise ? No one engaged in the practice of criminal justice has ever heard of it, and the greatest Judges in our own times have declared that it was inadmissible. The passage cited by Mr. Justice Lush from Archbold's Criminal Pleading is utterly incorrect, as anyone will see who examines the original cases. They were not cases of adjournment at all, but only a brief suspension of the trial on account of some unavoidable accident. No one can say that in the present case there is any accident or neccessity, nor any greater expediency for purposes of justice than always appears when an unforeseen defence is made. This constantly happens at sessions and assizes; and though there may be good ground for legislation, that does not justify a change of the law by the judiciary. The defeat of justice in a particular case has often happened, but it was never considered enough to warrant the judges in altering the rules of law. The Judges are sworn, not to administer justice but to administer justice according to law. That means according to settled rules and traditions. And no one has ever yet heard of a power in the Judges to do whatever they think good for the furtherance of justice. Such a notion must be erroneous, for it would dispense with legislation, and give the Judges power to alter the law.

PAROL EVIDENCE OF COLLATERAL AGREEMENTS. WHEREVER the hard and fast rule excluding parol evidence to control or vary a written document can be relaxed with advantage, there cannot be two opinions concerning the advisability of such relaxation. We have recently had two important illustrations of the view which courts having equitable jurisdiction will adopt in construing agreements which do not fully carry out the declared intentions of the parties. In Erskine v. Adeane (29 L. T. Rep. N. S. 234), Lord Justice Mellish said, "The common law of England is distinguished from the law of almost all other countries by the fact that it does not imply contracts and agreements to anything like the same extent, but generally obliges those who make contracts to insert in those contracts all the stipulations by which they intend to be bound." "No doubt then," his Lordship added, "there are cases in which obligations may be implied, but as a general rule, the man who wishes to have a particular stipulation for his benefit, must take care to have that stipulation inserted in the contract."

Such stipulations being omitted from an agreement, the point to be considered is whether the stipulation cannot be substantiated as a collateral agreement. The case of Erskine v. Adeane and that of The Llanelly Railway and Dock Company v. London and NorthWestern Railway (29 L. T. Rep. N. S. 357), furnish some useful information upon this subject. In the former case two questions were raised, the one relating to the keeping fences in repair, and the other to keeping down the game. It was held that a covenant by the lessor to keep up the fences could not be imported into the lease, and on the second point that there was sufficient evidence of a collateral promise by the lessor to keep down the game to entitle the lessee to compensation for damage done by game upon the land. This case is the more important because it must frequently happen that the execution of an agricultural lease is induced by a promise such as we have referred to; and indeed the same question arose in Morgan v. Griffith (23 L. T. Rep. N. S. 783). There the lessee urged the insertion in the lease of a clause providing that the rabbits on the land should be destroyed. fessor refused to insert such a covenant, but the promise of the lessor that they should be destroyed was proved by the lessee to the satisfaction of the County Court Judge and the Court of Exchequer, to which the appeal was carried. The point of law was whether the parol evidence was admissible, and it was argued

The

that the alleged promise imposed upon the landlord an onerous obligation, and was inconsistent with the full enjoyment of the right of shooting for pleasure contained in the lease. That, it was said, distinguished the case from Lindley v. Lacey (17 C. B., N. S., 578; 11 L. T. Rep. N. S. 273), where an undertaking to stay an action against the plaintiff was part of the consideration which induced the plaintiff to sell the defendant certain fixtures and furniture. The first agreement containing this term was verbal, and the subsequent written agreement did not contain it. The action was not stayed and the plaintiff brought his action to recover damages against the defendant, and the jury found that his undertaking was a distinct collateral agreement, and the court held that it was admissible in evidence.

In the case of The Llanelly Railway and Dock Company v. The London and North-Western Railway Company, collateral matter was referred to to show the nature of the consideration for an agreement in the result held to be indeterminable. The agreement between the two companies was, as Lord Justice Mellish stated, so onerous upon one, making their line liable to carry the trains of the other, and there being no reciprocal clauses, that it would have been held to be determinable upon due notice. But on the letters which passed before the execution of the agreement being looked at, it was found that a large sum of money was advanced by the defendant company to the plaintiff company to enable them to complete their railway--a sum which the plaintiff company could not have borrowed in the market at all when it was so advanced. "You may treat it," said Lord Justice James, as a collateral bargain which should not be revoked, just as we let in evidence the other day, in the case of a lease, of a collateral bargain by a landlord to keep down the game; and just as in the case of mutual wills, you cannot read the one will for the purpose of construing the other; but you can give evidence that there were two wills made, for the purpose of showing that there was a mutual agreement between the testators that the will should not be revoked." To this his Lordship added: "You can give evidence of anything to rebut an implication of a resulting trust, or to rebut an implication of an advancement for a child, or a person to whom the donor or the purchaser is in loco parentis."

In short, the leaning of the Courts plainly is to give effect to all evidence adding terms to agreements if those terms can be made to appear an essential part of the consideration; and the cases we have cited are very good illustrations of the class of contract which may be affected by collateral agreements. Parties, however, must be prepared with the most satisfactory proof of collateral agreements. Lord Justice Mellish said he should not be contented with evidence only of one of the immediate parties as to what took place when no one else was present.

SEARCHES, INQUIRIES, AND NOTICES. DISENTAILING ASSURANCES.

(Continued from p. 33.)

POWER was given to a commissioner in bankruptcy to dispose by way of sale of the lands of which the bankrupt was actual tenant in tail for as large an estate as the bankrupt could, had he not been bankrupt, then have done; such disposition to be by deed (sect. 56), and "unless the lands were of copyhold tenure" to be enrolled in Chancery within six calendar months of its execution, and if the lands were of copyhold tenure, then to be entered on the court rolls (sect. 59). Where there was no protector, the commissioners could enlarge a base fee of a bankrupt tenant in tail (sect. 57), and the consent of the protector is to have the same effect when given to a disposition by a commissioner, as when given to the disposition of an ordinary tenant in tail (sect. 58). A disposition by a commissioner which creates a base fee has this advantage over a disposition made by an ordinary tenant in tail, that if during the continuance of the base fee, or, in other words, the existence of the bankrupt's issue, there ceases to be a protector of the settlement, the base fee immediately thereupon becomes enlarged (sect. 60), and a similar result will happen when the base fee had been created previously to the bankruptcy (sect. 61). A voidable estate created in favour of a purchaser for valuable consideration by a tenant in tail becoming bankrupt, or by a tenant in tail entitled to a base fee becoming bankrupt, is to be confirmed by the disposition of the commissioner to the extent to which the commissioner could dispose of the land with the benefit of the chance of the enlargement of the base fee by reason of there ceasing to be a protector during its continuance, but no confirmation will take place by a disposition to a purchaser from the comImissioner for valuable consideration without express notice of the voidable estate (sect. 62). Notwithstanding the death, during his bankruptcy, of the tenant in tail, or tenant in tail entitled to a base fee, the subsequent disposition of the commissioner was to have the same operation as if the bankrupt were living in the following cases: first, where at the bankrupt's death there was no protector of the settlement; secondly, where the bankrupt left issue inheritable, whether there was or was not a protector (sect. 65). The disposition by the commissioner of copyholds other than of an equitable estate, was to have the same effect as if the copyholds had been surrendered to the use of the person to whom the

disposition was made, who might claim to be admitted upon payment of the proper fines and fees (sect. 66).

By the Bankruptcy Act 1849, sect. 208, the several clauses of the Fines and Recoveries Act to which we have above referred, and that to which we shall later on refer, and several others not material for our present purpose, were to extend and apply to proceedings in bankruptcy under a petition for adjudication as fully and effectually as if those clauses had been there re-enacted and expressly extended to such proceedings.

The Act of 1849 was repealed by an Act passed in 1869, but in lieu of the repealed enactments, the Bankruptcy Act 1869 empowered the trustee in bankruptcy to deal with any property to which the bankrupt is beneficially entitled as tenant in tail, in the same manner as the bankrupt might have dealt with the same, and the several sections above referred to of the Fines and Recoveries Act are to extend and apply to proceedings in bankruptcy under the Act of 1869, as if those sections were there reenacted and made applicable in terms to such proceedings.

Lands to be sold, whether freehold or leasehold, or of any other tenure, where the sale moneys are subject to be invested in lands to be settled upon a tenant in tail, and money subject to be so invested, are to be treated as the lands to be purchased and be considered subject to the same estates, as the lands to be purchased, would, if purchased, have been actually subject to. Where copy holds are directed to be sold, the disposition must be entered on the court rolls. The disposition, however, of leaseholds for years or of money, is to confer upon the assignee personal estate only and be by assignment by deed, which is to have no operation under the Act, unless inrolled in Chancery within six months after its execution (3 & 4 Will. 4, c. 74, sect. 71). In Re Brooking (6 Jur. N. S. 461), lands having been taken by a railway company who had paid the purchase-money into court, the tenant in tail included such lands with others in his disentailing assurance, but upon his application to the court for payment to him of the money, the company objected that no proper disposition had been made, a subsequent disentailing disposition of the money was made and inrolled, upon which the money was directed to be paid to the tenant in tail, and the company were directed to pay the costs of the second deed. In Re South-Eastern Railway Company (30 Beav. 215), the late Master of the Rolls considered that as the land had been actually conveyed to the company in fee simple, no disentailing assurance was necessary, and the decision in this case has been subsequently followed in the case of Notley v. Palmer (L. Rep. 1 Eq. 241).

Every deed required to be inrolled in Chancery, by which lands or money subject to be invested in the purchase of lands are disposed of under the Act is, when inrolled as required by the Act, to operate and take effect in the same manner as it would have done if the inrolment had not been required, except that every such deed is to be void against any person claiming such lands or money, or any part thereof, for valuable consideration under any subsequent deed duly inrolled, if such subsequent deed is first inrolled (sect. 74).

The Inrolment Office is in Chancery-lane, but in of pursuance the 1 & 2 Vict. c. 94, a public record office has been built near Rolls-gardens, where all the records, with the exception of those of recent date, are kept. By the same Act sealed copies of recorded documents can be obtained and are evidence. Where any dealing takes place with a tenant in tail, or with lands which have formerly been the subject of an entail, search should be made to see that the disentailing deed was duly inrolled within the prescribed period of six months from its execution, and further to see that no prior disposition, voidable or otherwise, had been made by the tenant in tail. If the lands be of copyhold tenure, the search will not be at the Record and Inrolment Offices, but of the Court Rolls.

ILLEGAL CONSIDERATION: THE POSITION OF A PARTICEPS CRIMINIS.

AYERST V. JENKINS (29 L. T. Rep. N. S. 126). In the above case an attempt was made by the representative of a particeps criminis to set aside a voluntary settlement made in favour of the settlor's deceased wife's sister, with whom he had cohabited. This is a state of things under which the suggestion of illegality is raised with the worst possible grace, and that it was set aside, and the settlement upheld, is creditable to our jurisprudence.

The plea of illegality or immorality, for whatever purpose advanced, is one which ought to be looked at very closely, and we shall presently indicate the peculiar position which is assumed when a particeps criminis endeavours to avail himself of it. Illegality of course embraces immorality, and the same principles of law apply whether the agreements or transactions are mala prohibita or mala in se. Transactions are mala prohibita where they are forbidden by statute, expressly or by impli cation; they are mala in se when immoral or plainly obnoxious to the common law. It is not difficult to deal with trans actions which are mala prohibita, but it is not easy at all times, and under all circumstances, to say what agreements or acts are in themselves so bad as to justify the courts of equity in refusing to enforce contracts founded upon them, or to relieve parties from