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remedies which a judgment creditor can effect by means of a writ of elegit must be exercised by him before he can come in under the Act." Consequently, in the case before him, where there was a prior elegit, he held that the subsequent judgment creditor could not present a petition for sale of the land until he had got rid of such prior elegit. In Guest v. Cowbridge Railway Company (18 L. T. Rep. N. S. 871), Vice-Chancellor GIFFARD seems to have been of opinion that actual delivery under the writ was necessary. Referring to the first section of the statute he said, “That is plain enough, I think, and it must mean that no judgment creditor can have any right of any kind until he has put the writ into the hands of the sheriff. But it goes further, I think, because although possibly putting the writ into the hands of the sheriff may give him a right to file a bill to remove a legal impediment, I do not think he has any right in the shape of a lien on the land until he has got a return from the sheriff.” Notwithstanding the very considerable difficulty raised by Vice-Chancellor Wood to the strict and literal construction of the Act, the weight of authority is in favour of holding that a judgment creditor obtains no interest in the hands of his debtor until it has been given into his possession by the sheriff. There is a further question as to prioritywhere, for example, a subsequent judgment creditor is the first to put his writ into the hands of the sheriff. Vice-Chancellor GIFFARD in Guest's case was clearly of opinion that under the Act where things are properly done, the priorities must be determined according to the dates at which the writs are put into the hands of the sheriff.
A PRACTICAL question of some moment on the subject of costs was discussed in the case of the Lancashire and Yorkshire Railway Company v. Gidlow (29 L. T. Rep. N. S. 399), namely, whether if judgment in the courts below with costs be affirmed by the courts of appeal, interest runs on the costs as well as on the judgment. The judgment of the Exchequer in favour of the defendantwhich of course was judgment for his costs only-was affirmed by the Exchequer Chamber. An appeal under the Common Law Procedure Act was carried to the House of Lords, and there the judgment of the Exchequer Chamber was affirmed. And it was ordered that the appellants should pay to the respondents the costs incurred in respect of the appeal. It was contended that as a judgment debt carries interest by statute, here the judgment being for costs, the respondent was entitled to interest upon the costs of appeal from the Exchequer Chamber. By sect. 30 of 3 & 4 Will. 4, c. 42, if any person shall sue out any writ of error upon any judgment whatever given in any court in any
action personal, and the court of error shall give judgment for the defendant thereon, then interest shall be allowed by the court of error for such time as execution has been delayed by such writ of error for the delaying thereof. The case under nodice decides that the House of Lords may give costs, and the taxing-master may in his discretion tax them so as to allow interest on the judgment appealed to that House. But if this be not done, interest on costs cannot be obtained beyond the time of the delay caused by appeal. ing to the Exchequer Chamber. Such questions as this will lose much of their interest after next year.
debtor. This, however, is a consideration constantly disregarded by County Court Judges, the prevailing and overriding notion being under almost all circumstances to put all creditors, diligent and idle, upon one footing.
An interesting question arose out of a bill of sale in Rahn's case, although not novel-namely, whether a bill of sale purporting to assign partnership property, but executed by one partner only, was valid. Another question in the same case was whether the transfer of certain delivery orders amounted to a fraudulent preference in favour of the transferee, who was security only for a debt due by the debtor. The first point is, we think, sufficiently clear. On the authority of Harrison v. Jackson (7 L. T. Rep. 207), and Steilitz v. Eggington (Holt, 141), the learned Judge of the County Court held that he was bound to come to the conclusion that the bill of sale was void. The judgment of Lord Kenyon in Harrison v. Jackson quite supports Mr. Collier's view, and is un. doubted law. “The law of merchants," said Lord Kenyon, “is part of the law of the land; and in mercantile transactions, in drawing and accepting bills of exchange, it never was doubted but that one partner might bind the rest. But the power of binding each other by deed is now for the first time insisted on except in the Nisi Prius case cited ”-Mears v. Serocold, sittings in Easter Term 1785, at Guildhall, cor., Lord Mansfield, C.J.-" the facts of which are not sufficiently disclosed to enable me to judge of its propriety. Then, it was said that, if this partnership were constituted by writing under seal, that gave authority to each to bind the others by deed; but I deny that consequence, for a general partnere ship agreement, though under seal, does not authorise the partners to execute deeds for each other, unless a particular power be given for the purpose.” In the above-mentioned case of Mears v. Serocold, Lord Mansfield is said to have ruled that for a partnership debt one partner had authority to execute a bond for another. The editors of a leading American case on the law of partnership (Livingston v. Roosvelt) thus state the law as established by numerous decisions : " The rule that one partner cannot, by his implied authority, bind the firm by a sealed instrument, applies only where the firm is sought to be charged, and not where the object is to discharge a debt due to it. And it has been decided in case of sales and assignments, where the property may be transferred by delivery, that such a transfer so consummated by delivery, is not annulled by being attested, or having the trusts on which it is made described by a deed, and this applies to a general assignment for the benefit of creditors, to a mortgage of chattels, and to an assignment of a chose in action by one partner under seal.". In Rahn's case it was endeavoured to show that there had been delivery by symbol, but this failed. The above citation shows that had such attempt succeeded it would altogether have altered the complexion of the case. As to the transfers which did take place, and the objection raised that they amounted to a fraudulent preference, the learned Judge relied upon an obiter dictum of Lord Justice Page Wood, in Ex parte Foxley, re Nurse (18 L. T. Rep. N.S. 862), as supporting the proposition that a request by a surety to the principal debtor is sufficient to make a payment in pursuance of it good against the trustee in bankruptcy. Under the partiticular circumstances of that case, the assignment was held to be fraudulent, and the obiter dictum is not of a very satisfactory character. The assignee had indorsed a bill of exchange nine months previously, and a bill of sale had been executed in his favour. `In consideration of that, and further advances, the debtor made an absolute assignment. All that Lord Justice Page Wood said was that he was not prepared to say that the risk of indorsing the bill was not in itself an equivalent which would have supported a bill of sale; but the assignment was held fraudulent, and no decision upon this particular point was given. The case of Strachan v. Barton (11 Ex. 647), was also mentioned as showing that such a consideration would prevent a transfer being fraudulent. It was contended there that there must be a debt actually due, and that if there were not, a payment, though made under pressure, would be fraudulent. It was determined that the question whether the debtor had a right to insist on pay ment of a debt was immaterial, as if, for example, the debtor was applied to to take up a bill on Saturday which was due on Monday, and did so, that would not be a fraudulent preference. There, however, the person applying was a bill holder for value, in which case a debt exists, and the right of action only is suspended. We, however, are decidedly inclined to agree that if the precise point arose it would be held that suretyship is sufficient consideration to support a bill of sale, and to save a payment from being a fraudulent preference, the debtor being pressed to make the payment.
The case of Re T. S. Trumble raised the question of appeal from the decisions of registrars. It was attempted to go to the court on appeal from the registrar on a question of proof of debt. It was objected that the only appeal from the registrar to the court lay with reference to the registration of resolutions, and as the claimant had elected to take the decision of the registrar as to the proof, he could not apply to the court. The learned Judge held that this was so.
Having expressed a strong opinion concerning the appointment of Mr. Collier to the Liverpool County Court, we may take this opportunity of saying that he has made a very good Judge, and gives great satisfaction.
SOME BANKRUPTCY DECISIONS. We report some interesting decisions from the Liverpool Bankruptcy Court, which we may usefully summarise. In Re Keyworth it was held that a sum paid'into court by a defendant to abide the event of an action does not constitute the plaintiff a secured creditor in the event of the defendant becoming bankrupt before the action is determined. There have been two cases decided in the Superior Courts bearing upon this point, namely, Murray v. Arnold (7 L. T. Rep. N. S. 385) and Culverhouse v. Wickens (17 L. T. Rep. N. S. 478). The former turned upon the effect of the payment of a sum of money into court on the eve of a trial, in order to obtain a commission to examine witnesses in India, and the question was whether, under the 184th section of the Consolidation Act of 1849, the assignee was entitled to the amount, and the creditor bound to come in as a creditor holding security. It was held that the payment into court did not constitute the plaintiff a secured creditor, and was not in any sense a payment to secure a debt. The amount was therefore held to belong to the plaintiff absolutely. Chief Justice Cockburn there remarked that the case was distinguishable from that of a garnishee, there being in the latter case an ascertained debt. Culverhouse v. Wickens was such a case. There it was held that payment into court by a garnishee under a judge's order is a payment within the meaning of the Common Law Procedure Act 1854, s. 65, and discharges the garnishee; and the subsequent execution of a composition deed by the debtor will not prevent the creditor being entitled to the money so paid into court. In the Liverpool case proceedings in connection with the action were restrained, the result of which was, as the learned judge remarked, that the end and object of the payment into court ceased, and there was 110 longer any claim which the creditor could make out. This, we think, shows the enormous hardship which may be inflicted upon a plaintiff who, by his diligence, has obtained a perfectly fair advantage over the other creditors of a
From the dicta which we have cited, it would appear that decided opinions have been entertained by eminent judges that a wilful transfer to a pauper to escape liability does not relieve the transferor. There are, however, express decisions from Pass's case downwards, that such a transfer, unaccompanied by any other consideration or condition, is good, and relieves the transferor. It was consequently reserved for Lord Westbury to decide positively that such a transfer was void. And his decision in Walton Williams's case (LAW TIMEs European Reports, p. 125) is certainly as strong as it could be made. He said (p. 126): “I do not care a rush whether the directors inquired or not, or whether there was misrepresentation or not; but if I find the man who desires to dispose of his shares in favour of A. B., knows very well in his mind at the time that A. B. was an insolvent man, or a dishonest man, and most improper man, for some reason or other, to be introduced into the partnership, I shall hold that that personal knowledge on the part of the individual disposing of his shares forbade him to do what he desired to do, and that his persisting in doing it, relying upon the ignorance of the directors, and concealing what he knew was a fraud upon the directors." Had there been an appeal, we do not think that such a doctrine could have been sustained. Neither do we think that it will be accepted as law by the ordinary tribunals.
TRANSFER OF COMPANY SHARES TO PAUPERS. It is undoubtedly a question of much importance to sharehoders in limited companies to know under what circumstances they are safe in tranferring their shares. The decisions in the European arbitration by Lord Westbury, and by his successor Lord Romilly, have gone the length of establishing that if, when a company is going concern, a shareholder, relying upon the ignorance of the directors, introduces into the partnership an improper person, whom he knows to be such, the transferor remains liable to the company. This doctrine, it has been said, is scarcely in accord with the popular views on the subject. We think we may add that Lord Westbury was the first to sanction it as a legal principle. It is observable, however, that there has been some tendency in this direction. For example, in the case of Re the Mexican and South American Company, ex parte Hyams (29 L. J., N. S., 242, Ch.), Lord Campbell said, “ According to the decision of this court
, to which I respectfully bow, if it had been proved that shey (the transferors) had parted with all interest in their shares, although for the express purpose of getting rid of their liability, and although they knew they were of no value, and that the transferee was a man of straw, they would have been absolved from liability, and ought to be removed from the list of contributories. I confess I should have hesitated before I concurred in these decisions, because I think there might have been a considerable difference drawn between the analogy of an assignee of a lease assigning the lease to a man of straw and a shareholder who has become a partner with others, and who has incurred a joint liability at a time when the property had ceased to be of any value, and his sole object being to throw the liability entirely on his co-partners.” And it is noticeable that Lord Justice Mellish, in King's Case, Re Great Wheal Busy Mining Company (L. Rep. 6 Ch. App. 196; 24 L. T. Rep. N. S. 599), said, "I can quite conceive, that a court of equity may say that a transfer by a shareholder to a mere pauper, for the sole purpose of avoiding liability, is a fraudulent and improper transfer, and ought to be set aside."
The other side of this question was strongly presented by ViceChancellor Page Wood, in the case of Re The Phoenix Life Assurance Company, Ex parte Hatton (31 L. J. 340, Ch.), the point there being as in preceding cases as to the bona fides of the transfer. Referring to the decision in Pass's case (28 L. J., N. S., 769, Ch.), the Vice-Chancellor said: “From my recollection of that case, the principle upon which it was decided was that it was the very life of these companies to make their shares easily transferable ; and that any doubt or difficulty raised by companies as to whether their shares were or were not transferable, as the transferees were supposed to be solvent or insolvent, would be destructive of the object they had in view, namely, the attracting of capital to societies of this description, with facilities at all times to shareholders for relieving themselves of liability.” The doctrine of Pass's case was also approved by Lord Justice Rolt in Re National and Provincial Marine Insurance Company, Ex parte Parker (L. Rep., 2 Ch. App: 685). In the course of the argument the Lord Justice said: “I see nothing unreasonable in the doctrine of Pass's case, that if a shareholder of a company is minded to get rid of his shares he may do
0." And counsel urged that the very time when a person having the right to transfer his shares is most likely to wish to exercise it, is when a liability is impending. Lord Justice Rolt commenced his judgment with the observation, “I am still inclined to think that the transfer of shares expressly to escape the liability of a shareholder, does not necessarily' vitiate the transfer, and I should not dispose of this case adversely to the appellant upon any such ground.”
Lord Westbury seems to have put on one side the essential importance to public companies that no doubt should exist as to the transferable nature of their shares, which has been so much considered by other Judges, and to have given rein to his indignation, undoubtedly just from a moral point of view, against persons
a partnership, and throwing their liability upon their co-partners who sought no escape. There is, however, an obvious distinction between a private partnership and a joint stock company.
Persons take shares in a company knowing that those with whom they associate themselves may at any time cease to be partners by transferring their shares. It is otherwise in a private partnership; there can only be dissolution by expiration of the period for which it was contracted, by death, by consent, or by order of the Court of Chancery. In his work on Part. nership Mr. Lindley necessarily places companies upon a distinct and separate footing, and he names the only grounds upon which, in his opinion, a transfer can be avoided. He says (2nd edit. p. 1352, quoted with approbation by Lord Justice James, in King's case, in Re Great Wheal Busy Mining Company (L. Rep. 6 Ch. 196 ; 24 L. T. Rep. N. S. 599), "Notwithstanding there is a complete transfer the transferor will be held a contributory if the evidence shows not only that the transfer was made to get rid of a liability, but that the transfer was not a real transaction and was not intended to divest the interest of the transferor, and to render the transferee the bona fide owner of the shares, but that the transferee held them subject to the orders of the transferor.” And the inference would seem to be that if the transfer were made simply to avoid liability it would be good.
SUPREME COURT OF JUDICATURE ACT 1873.
RULES OF PROCEDURE.
(Continued from page 32.) The last notice of this Act shortly reviewed those rules which related to proceedings before trial; most of the remaining rules relate to the place and mode of trial, and to appeals.
In a former issue attention was called to the rules as to the place of trial under those sections of the Act by which the sittings of the court for the trial of issues of fact are provided for. It is unnecessary to say more here than that all local venues are abolished, and primâ facie every action is to be tried in Middlesex, unless the plaintiff, in his statement of claim, name the place where he proposes to try. The venue, however, may be changed by order of a Judge. The lists for trial at the sittings in London and Middlesex are to be prepared, and the actions allotted for trial in accordance with future rules, but without reference to the division of the High Court to which such actions may be attached; that is to say, subject to the rules to be made, all causes in whatever division commenced, are to be tried as to issues of fact before any Judge appointed to sit for that purpose. In fact, the sittings in London and Middlesex will be held more as the assizes are now held; the assize Judge trying issues from any Court: (rules 28 and 29.)
The mode of trial is next provided for: (rules 30-35). The judges of the Common Law Courts have frequently pointed out the urgent need there has always existed for the appointment of official assessors to assist the judges in trying technical questions. This need is now supplied. Actions are to be tried before a judge or judges, or before a judge sitting with assessors, or before a judge and jury, or before an official or special referee, with or without assessors. This will be a great assistance to judges and to referees, and will probably have a good effect in shortening the length to which causes, depending rather upon questions of practical or technical experience, now extend. The plaintiff has the choice of the mode of trial, in the first instance, on giving notice of trial; but the defendant may, by giving due notice within such time as may be fixed by the future rules, require the issues of fact to be tried before a jury, or he may apply to the court for an order to have the action tried in any other of the said ways, and in the latter case the court has power to order the mode of trial. It frequently happens that in one action there are different questions of facts which would be best tried in different ways, and to meet such a case it is provided that the court may order different questions arising in the same action to be tried by different modes of trial; and as one issue of fact may depend upon the result of others, the court may order that one to be tried first before the others, and may appoint the place for such trial. Where an issue of fact is to be tried by a jury, the trial is to be held before a single judge, unless the trial is specially ordered to be held before two or more judges. This last provision leaves everything as it now stands in respect to jury trials, and would still preserve the right of trial at bar in exceptional cases. Trials before referees are to take place wherever the referee shall consider most convenient and may be adjourned from place to place as he thinks fit, subject only to the order of the court. A referee may have an inspection or view, either by himself or with his assessors (if any) as he may deem expedient for the better disposal of the controversy before him. The continuous aud vexatious adjournments of arbitrations are also provided against by a direction contained in the rules that, unless otherwise directed by the court or a judge, the referee shall proceed with the trial in open court, de die in diem, in a similar manner as in actions tried by a jury. As questions of law may arise in a reference which require the decision of the court, power is given to the referee before the trial is concluded, or by his report under the reference to him, to submit
as to benefit parties who have not appealed from, or complained of, the decisions, and the court also has full power over the costs of the appeal. A respondent need not give notice of motion to institute a cross-appeal ; but the respondent, if desirous of varying an order, must give notice of his intention, but the admission to do so will not vitiate his right to proceed; that will only be ground for an adjournment. The mode in wh evidence taken in the court below is to be brought before the Court of Appeal, will be regulated by rules of court or special order, and such evidence is to guide the Court of Appeal as to the proceedings below. No interlocutory order not appealed against will debar the court from making such order as it may think just. Appeals from interlocu. tory orders are to be brought within twenty-one days, and other appeals within one year, and this time can only be extended by special leave of the court. Security for costs of an appeal must be given. An appeal will not operate as a stay of proceedings or execution, except the court so order, and no intermediate proceed. ing will be thereby invalidated : (rules 48-58.)
This completes the rules in the schedule to the Act. It will be manifest to anyone, perusing our short notice of them, that many blanks remain to be filled up by the future rules. Hence it is impossible to discuss them fully. Our next notice will treat of the remaining parts of the Act dealing with officers, inferior courts, and certain miscellaneous matters.
any question arising therein for the decision of the court, or to state any facts specially, with power to the court to draw inferences therefrom. Wherever such a submission or statement is made the court will enter such order thereon as it may think fit, and the court will have power to require any explanation or reasons from the referee, or to remit the action or any part thereof for re-trial or re-consideration to the same, or any other referee.
Evidence of witnesses, in the absence of any argreement between the parties, and subject to any rules of court as to certain classes of cases, is to be taken viva voce and in open court, at the trial of any cause or at any assessment of damages. The court or a Judge will, however, have power to order that any particular fact or facts may be proved by affidavit, or that any affidavit may be read at a trial on such conditions as are reasonable, or that any witness whose evidence in court ought to be dispensed with, may be examined by interrogatories or otherwise, before a commissioner or examiner; provided that the court may order a witness to be produced for cross-examination. Upon interlocutory applications evidence may be given by affidavit, subject to the power of the court to order the production of the party making the affidavit for cross-examination. Affidavits must be confined to facts within a deponent's own knowledge, except on interlocutory motions, when statements as to the belief, with the grounds thereof, may be admitted, and this is enforced by the penalty of costs for unnecessary matter, Admissions may be made by notice, given either in the statement of the case or otherwise, so as to admit the truth of the whole or any part of the case stated or referred to in the statement of claim, defence, or reply. Either party may call uport the other party to admit any document subject to such exceptions, and, if the admission is refused, the cost of proving it will have to be borne by the party so refusing, whatever the result of the action: (rules 36-39).
The next succeeding rules deal with interlocutory orders and directions. Power is given to a Judge to make any order at any stage of the proceedings to which the party may upon the admissions of fact in the pleadings be entitled. This would probably entitle a plaintiff to final judgment if the admission should be such as to show the defendant's liability in law. Power is given to the Lord Chancellor to transfer any question from one Judge to another, and to the court to order any enquiries to be made, or accounts to be taken, at any stage of the proceedings. For the preservation of lands, goods, or other things, the subjectsmatter of actions, full power is given to the court to make orders for their entry, safe custody, examination, or for any other
purpose for the benefit of the parties, or the better obtaining of full evidence and information. Power is also given to order the examination of witnesses before an officer of the court or other person, and to order the deposition made to be filed in court, and to give leave, any party to give such deposition in evidence. Before the receipt of the defendant's statement of defence, or after the receipt and before taking any other proceeding in the action, a plaintiff will be at full liberty to discontinue his action, or part thereof, on payment of the defendant's taxed costs relating to so much as is withdrawn. Such a discontinuance will not be a defence to a subsequent action. After the above time, however, a plaintiff may not discontinue without leave of the court or a judge. Similarly, a defendant cannot withdraw his defence without leave. A nonsuit, unless the court otherwise directs, is to have the same effect as a judgment on the merits for the defendant, but in case of surprise or accident, a nonsuit may be set aside on such terms as to payment of costs as the court may think fit: (rules 40-46.)
A very important change is introduced by the rule providing for costs. All costs of and incident to the proceedings of the High Court are to be in the discretion of the court. At the same time the right of a trustee, mortgagee, or other person to costs out of a particular estate or fund to which he would be now entitled in courts of equity is continued : (rule 47.)
New trials are not to be granted on the ground of misdirection, or of the improper admission or rejection of evidence, unless it should appear to the court that substantial wrong has been thereby occasioned at the trial; and if the wrong should affect only part of the matter in controversy, the court may direct a new trial as to that part only. Bills of exceptions and proceedings in error are abolished, and all appeals are to be by way of rehearing brought on by way of motion without any formal proceeding. By notice of motion an appellant may appeal from the whole or any part of any judgment or order on condition that he so states in the notice. The notice is to be served only on persons affected by the appeal, subject to the power of the court of appeal to order the notice to be served on any other persons and to make an order as if the parties so served had originally been parties. The powers of the court of appeal will embrace all the powers of the court of first instance, including discretionary power to hear further evidence viva voce or otherwise. Such evidence may be given without special leave upon interlocutory applications or in any case where matters have arisen since the decisions appealed against, but upon appeals from a decree or judgment on the merits, special leave must be obtained to produce further evidence at the hearing of the appeal. The Court of Appeal has full power to vary or reverse any order, and to make such further orders as may be required, and this may be done so
THE LIABILITY OF RAILWAY COMPANIES FOR
UNPUNCTUALITY. It has been thought that the law laid down by Mr. Stonor, in the case of Forsyth v. Great-Western Railway Company, was novel. We find, however, in the Liverpool Mercury, of 9th Dec., 1869, the following, which shows that in the County Courts, at any rate, the question has arisen and been decided before :
A case of considerable importance to railway companies and travellers was decided at the Liverpool County Court on Wednesday. On the 11th Sept. a gentleman took three tourist return tickets, for himself, wife, and child, at the station of the Lancashire and Yorkshire Railway Company, in Liverpool, for Perth. The Lancashire and Yorkshire line ends at Preston, and at that place passengers for Scotland have to change to carriages of the London and North-Western Company. Owing to delays on the journey, the train was twenty minutes beyond the appointed time before it reached Preston. The Scotch train had set off, and there being no train until Monday, the plaintiff, his wife, and child, had to stay at an hotel during Sunday, until there was an available train ; and for the expense so incurred he now sued the Lancashire and Yorkshire Railway Company. The company, in defence, relied upon a notice in the time tables and bills that they do not guarantee the arrival and departure of their trains at the times named. The Judge (Mr. Serjeant Wheeler) held, however, that the delays on the journey from Liverpool to Preston were avoidable; that the company did not use the care and diligence which it was their duty to use, and that therefore the plaintiff was entitled to a verdict.
SANDERSON v. LANCASHIRE AND YORKSHIRE RAILWAY COMPANY.
The learned Judge said :--This action was brought to recover expenses incurred by the plaintiff in consequence of the failure of the company to take him and his wife and child from Liverpool to Perth, on Saturday, the 11th Sept. last, as they had contracted to do. Mr. John Forshaw appeared for the plaintiff, Mr. Bellringer for the defendants. It was agreed that no question should be raised as to the plaintiff's right to sue in the form adopted with respect to the three passengers. The facts are these :-On the day in question the plaintiff took three tourist return tickets at the station in Liverpool, for Perth. According to the company's time tables the train was timed to leave Liverpool at a quarter past two, was due at Preston at 3.35, was to leave Preston at 3.43, and to arrive at Perth at twenty minutes past eleven. The line of the defendants ends at Preston, and at that place passengers for Scotland have to cross from the arrival to the departure side of the station, and to change to the carriages of the London and North-Western Company. The train was seven minutes late in leaving Liverpool, was delayed at Ormskirk five minutes, was again delayed three minutes before reaching the Preston station, and was further de layed five minutes between the entrance to the station and the alighting plat, form. On reaching the platform,
it was twenty minutes beyond its appointed time, and thirteen minutes beyond the time of departure thence of the Scotch train. That train had been sent off, and there was no other train
that day to Perth, or any train on the following day, because in Scotland there is no railway travelling on Sunday, and the earliest available train for Perth left Preston on Monday morning. Under these circumstances the
plaintiff and his wife and child repaired to an hotel at Preston, and there remained until the Monday. For the expenses thus incurred this
action is brought, no claim beyond actual ouilay being made by the plaintiff. Since the decision in 1856 of the case of Denton v. Great Northern Railway Company (reported in 5 E. & B. 861), in which the court held, that the representations in their time tables amount to a contract on the part of the company with those who should come to the station to forward them as stated, the companies have protected themselves by inserting a notice in the tables that they do not guarantee the arrival or departure of the trains at the times named. In this instance the company rely upon such a notice as an answer to the action. The notice, it seems, is published monthly in their time bills, and appears upon their large posting bills; and, further, as they say, upon all their tickets. Upon this last point, however, their witness was mistaken, for on reference to one of the tourist tickets, it turned out that there was no such notice upon it. The plaintiff, moreover, stated that he had never read or seen the notice in the time tables or posting bills, and that he had no knowledge, and therefore it was contended that he was not bound by it ; but the plaintiff is in this difficulty as to this part of the case, that the ticket alone does not amount to a contract on the part of ready to start at the time at which the passenger was led to expect it, the company, nor is any duty thereby imposed upon them to have a train Tsee the case of Hurst v. Great Western Railway Comyany, 19 C. B. 30. By the mere issuing of the ticket in question the contract, as there decided, would be a contract to carry the passenger from Liverpool to
Perth within a reasonable time. To make out the contract to convey by & particular train, or series of trains, leaving and arriving at specified times, the issue of the ticket must be connected with the representations in the company's time tables, and, therefore, the production of those tables is pecessary to the plaintiff's case. That being so, he is, I conceive, bound by their contents, and, consequently, by any notices or conditions by which the company can lawfully limit their responsibility. The notice on which the company rely, looking at its terms, and taking them in their widest sense, amounts to a claim of entire immunity for the consequences of delays, however caused, and whether occurring upon their own line or upon the lines of other companies connected with them for which they issue tickets. This claim, if pushed to its limits, could not, I think, be sustained, because, although a company may by a proper potice make special contracts, the conditions they attach in order to be binding upon the publio must be reasonable. Upon referring, however, to a later page of the company's time tables, it will be seen that they do not in fact claim the extensive immunity which the notice already referred to implies, for amongst their general regulations I find this further provision: Every attention will be paid to insure punctuality so far as practicable, but the directors give notice that they not undertake that the trains shall start or arrive at the time specified in the bills, nor will they be accountable for any loss, inconvenience, or injury which may arise from delay or deten. tion.” Taking these notices together, and giving effect to their plain terms and import, they really come to this, that the company will use all reasonable care and diligence to insure punctuality, and that if notwithstanding this care and caution delays occur, they will not be responsible for that delay. This I take to be the contract which the law itself would imply, without any special notice by the company, and the contract, and its co-relative obligation apply to the whole journey for which the ticket is issued, though the company's own line extends only part of the way. Now the question in issue is whether there has been a breach by the company of their contract duty to the plaintiff. The time tables must be regarded as the basis of the contract, or as was said by Lord Chief Justice Erle, in a case before him, “they must be taken to be in the mind of the carrier when he receives a passenger for conveyance." Acting upon these arrangements in the present case, it was the duty of the company to use every attention (adopting their own phrase), first, to start punctually, and, secondly, to avoid delays on the way to Preston, so as to reach that place in time to enable passengers for the North to cross from one side of the station to the other, and to take their seats in the North. Western on train. What happened? There was the series of delays already mentioned between Liverpool and Preston, four in number, resulting in the loss of twenty minutes in time, and of the onward train to Seotland. Delay No. 1 was not explained, but perhaps these facts may account for it: The guard of the train had only arrived at the station by an in-train at 2.19, four minutes after the out-train should have left; but whether that was the proper time for the in-train, or if it were late, why it was so, the coart was not informed. The guard, however, as soon as he had disposed of the parcels in his charge with the in-train, which, he says, he did in three minutes, made the best of his way to the out-train which was then in motion, with another man in his place. Upon the accustomed guard reaching the train, his intended deputy left it, and the train pro. ceeded. The company, therefore, in their substitution of another for the accustomed guard, did that at last which one would have expected them to have done at first, so as to prevent delay at the outset of the journey. Delay No. 2, at Ormskirk, was due to affixing a horse box to a passenger train. Delay No. 3 was not explained. Delay No. 4 was due to the occu. pation of the rails between the entrance to the Preston station and the platform by intervening trains, but there was no evidence to show how that obstruction happened, or that the course was not quite clear for the train in question to pass into the station if it had been in time. It seems to me that all these were avoidable delays, but in truth the two at Liverpool and Ormskirk (which were clearly so) were more than enough to account for the loss of the onward train, and to render necessary the stay at Preston of the plaintiff and his family from Saturday to Monday: Under all these circumstances, and for these reasons, I am of opinion that the company did not use the care and diligence which it was their duty to use to enable the plaintiff to reach his destination that night, and that, therefore, he is entitled to a verdict for the amount claimed.
it was so or not, the capture was clearly unlawful, for this reason :The capture of a vessel on the high seas, bearing the flag of another nation, can only be justified (where it is not in self-defence) on one of two grounds : piracy or belligerency. Now, as to the latter, it may at once be dismissed, for the Cubans themselves protest that there was no war. They deny that the rebels can be considered as belligerents, and insist that they are rebels and nothing more. And, be it borne in mind, that rebellion is an offence only against municipal law; an offence essentially territorial, and which could only be committed, as in this case, by foreigners on Spanish territory, or at all events in Spanish waters. And as the intention to commit an offence can scarcely be worse than the offence itself, all that the crew of the Virginius could possibly have been guilty of was complicity in an intended act of rebellion, that is, an intended offence against municipal law. But it is a first principle of international law that no nation can enforce its criminal law in the territory of another, or on the vessels of another on the high seas. Neither has one nation, intending peace, any power of capture over vessels bearing the flags of other nations, excluding cases of piracy.
It is another first principle of international law that the flag (apart from cases of piracy) covers the vessel-except as against the vessels of the State whose flag is carried. Even a state of war or recognised belli. gerency does not militate against this principle, as we saw in the case of the Trent, which occurred after the recognition of belligerency. It might be a question, perhaps, whether if there had been Confederate soldiers on board the Trent, and the vessel was conveying them to the United States instead of taking them away, an American war vessel might not have captured them; but then if it could have been done, it could only have been done in right of war, and then, by the same right principle, the persons taken would have been entitled to be treated as prisoners of war. This, however, would not be the case here, as there was no belli. gerency. The flag, therefore, covered the vessel, and the flag was American. The capture, therefore, was unlawful, unless the vessel was piratical, and piratical in an international songe. But piracy in tha, sense involves an intention to commit general depredations on the high se is, and here there was no idea of committing depredations on the high seas at all. On the contrary, the case of the Cubans is that the crew were going to Cuba, and were to engage in hostilities there, and hostilities only, against Cuba. It was, therefore, the reverse of a case of piracy, and the imputa. tion of piracy is a mere pretext. Pirates, in the sense of international law, are those who intend to capture and plunder vessels of any nation they may meet with on the seas. That is the only species of piracy which justifies capture on the seas by the vessels of any nation, for the very reason that pirates are, in that sense, the enemies of all nations. But in the present case the crew were only the enemies of the Cubans, and were bound for Cuban territory, and had no idea of any depredations on the high seas, still less of general depredations. Therefore they were not pirates, and the capture of the vessel on the high seas was unlawful. Nor is this all ; for it is avowed that the character of the vessel was known, and it was, therefore, well known that it was not?piratical.
But, on the other hand, even assuming that the capture was lawful, and taking the worst possible view of the vessel captured, and the destruction of its crew, this will not render the execution of the foreigners on board one whit less unlawful and criminal. For, as regards foreigners, even assuming that there was any colour for the charge of piracy, they were entitled to a legal trial before a regular court of justice. They were not tried for piracy, because it would have required a regular trial, and before any regular tribunal they must have been acquitted. This was well known, and it was also known that if any delay were allowed the Government would not permit the execution to proceed. Again, we say that there can be no question that the capture was unlawful, nor that the executions of the foreigners were acts of murder. They were authorised by no conrt of justice, nor by the local government, still less by the Government of Spain. There is no precedent for any such an atrocity, and no civilised Govern. ment would have sanctioned it.
Our seizure of the Caroline during the Canadian Rebellion, as it is the nearest case in point, illustrates by contrast the illegality of these acts of the Cubans. We cut out and burnt the Caroline, it is true; but not on the high seas. She was within the waters of the colony, and engaged in actual hostilities against it. Yet, as she lay on the American side of the river, her captors were careful not to touch anyone on board, and they only seized and destroyed the ship. The Americans raised an outcry, and were only satisfied when they found that the ship was actually molesting our subjects, being within a few hundred yards of our shore. Under those circumstances the ship was seized and burnt, though not until every person on her had been taken out. No one dreamt of pretending
were entitled to treat the crew as pirates ; and if we had done so, assuredly we should have been involved in war. When the President issued a proclamation against the American sympathisers although their head quarters were on British territory-he warned them that they would "render themselves liable to arrest and punishment by the laws of the United States," and not a word was said admitting any right in us to punish them as pirates. Nor did we ever set up such a right. It is true that when afterwards some of the American sympathisers actually in. vaded Canada, and many of them were taken in arms, they were tried by court martial, and one or two of them were executed. But they had actu. ally been taken in arms on British territory, and their lives were forfeited by the laws of war. And if the unfortunate crew of the Virginius had landed, or had even been captured when landing-in arms-on the Cuban shore, they would have incurred the same fate. Then there would have been no doubt as to their acts, and though their execution in cold blood would have been barbarous, it would have been justified. Those only would have been seized who were actually engaged in insurrection on Cuban territory. But the crew of a ship captured on the high seas and not actually engaged in piracy, were entitled to a trial in a regular court of jus. tice, in order that their guilt might be proved and their degree of guilt judicially ascertained. Taken on the high seas, where they were only in transitu, and had no idea of committing depredations, they had committed no offence beyond the misdemeanor cognisable by the municipal laws of their own countries. And their summary execution, under the pretence of a crime for which they were not tried-and without the sanction of the Spanish Government-was, whether the capture was lawful or not, neither more nor less than murder.
THE CAPTURE OF THE VIRGINIUS.
[COMMUNICATED.] It is hardly creditable to this country that there should be any doubt as to the true character of the capture and execution of the crew of the Virpinius. And it is still less creditable to find it actually asserted and maintained that persons going out to aid insurgents struggling for political independence are liable to be captured on the high seas and summarily executed as pirates ! Such a notion could only be entertained from utter ignorance of the first principles of international law, and by such as have taken their ideas of it from the loose language of debates instead of from its recognised authorities. The facts are these : A vessel bearing the American flag, but destined, no doubt, to aid the insurgents in Cuba, is captured on the high seas in time of peace, by a Spanish cruiser, but so far as has yet appeared, without any authority from the Spanish Government, the vessel is carried into a Cuban port, and there many of those on board, mostly English and American subjects, are sum. marily executed without trial- for å trial by court martial in such a case is, of course, no trial at all; as a court martial can only take cognisance of offences against the laws of war committed within the territory. Now it does not admit of the smallest doubt that the capture was unlawful; and that whether it was lawful or not the executions of foreigners were simply acts of murder.
Those who have attempted to defend the conduct of the Cubans have treated the subject as if it were merely a question as to the legality of the capture, and they have almost entirely blinked the question as to the executions. But in reality the question as to the capture is comparatively of small importance so far as the foreigners on board are concerned; and whether it was lawful or unlawful makes not the slightest difference as regards the character of the executions. For it is forgotten that if the capture was lawful, the crew were entitled to be tried for the offenco supposed to have justified the capture. But for that supposed offence they were not tried at all. That of itself shows that the pretence of piracy was false ; and the only question as to the capture is, whether it was not itself unlawful, and was not anthorised by the Spanish
Government. But whether
Law LIBRARY.-In our notice of “The Pursuit of Truth,” by Mr. Finch, we omitted to give the name of the publishers-Messrs. Longmans, of Paternoster-row.
SOLICITORS' JOURNAL who by education are not qualified to enter the notice before that time only was required, as in
Profession. Their office in this respect is one of the case of an intermediate examination.
considerable responsibility. We hear so much and with reason of the neces.
Refused. sity for organising the Profession, that we willingly
COURT OF COMMON PLEAS. give publicity to the suggestion of a solicitor that A SOLICITOR writes to us urging the necessity for solicitors should dine in hall in London occasion. all members of his branch of the profession care
Tuesday, Nov. 25. ally. The building of the Incorporated Law by Mr. Marshall, of Leeds, on the organization fully studying the valaable paper recently read
Ex parte GREVILLE. Society in Chancery-lane offers ample accommo- tion of the Profession. We think solicitors will do THE Attorney-General (H. James, Q.C.) moved
Articled clerk-Employment as vestry clerk. dation. Much advantage is likely to arise from well to do so, and we hope to hear that it is for a rule calling on the examiners of the Law such an institution, and the circuit mess and the to be published in the shape of a pamphlet, for Society to grant the applicant a certificate of dining in hall of the other branch of the Profes. it is a document deserving deep consideration. having passed the preliminary examination for
The thanks of the Profession are pre-eminently ) admission as an attorney. sion affords ample proof of the utility of so assem
due to Mr. Marshall for his labour in connection bling. All solicitors, conveyancers, proctors, and with his exhaustive paper, & portion of which cause in the first instance.
Garth Q.C., and Murray, appeared to show articled clerks should be admitted. We incline to we now reproduce, and which we hope to com
The applicant was articled to a solicitor in the opinion that, if properly worked, it would be plete on a future occasion. short report ap- February 1871, being at that time dependent on largely attended and very beneficial. peared in our issue of the 25th Oct. last.
his father, who was clerk to the vestry of Wandsworth. His father died in 1872, leaving his mother
younger brother dependent on his exertions. APROPOS of the suggestions, upon the subject of He was offered by the board the office vacant by HERE and there, no doubt, there are solicitors to the power of the Judges of the Superior Courts to his father's death, and accepted it. When exwhom the annual certificate duty is of such small strike attorneys off the Rolls, contained in Mr. amined at the Law Society he satisfied the exmoment that they care not whether it be £9 or £6 Marshall's valuable paper read at the recent aminers of his proficiency, but they refused to or £90 or £60; but to the many it is quite other meeting of the Metropolitan and Provincial Law grant him his certificate, being of opinion that he
Association at Birmingham, the question is asked held an office and exercised an employment other wise, and certainly the complaint of a recently. of us why barristers should not be disbarred by than that of articled clerk, contrary to the proadmitted solicitor, that it is rather hard on him the same authority. We confess we cannot dis, visions of 23 & 24 Vict. c. 127, s. 10. It was to pay £4 10s. for a certificate when admitted in tinguish between the two cases unless it is to find stated on behalf of the Law Society that they Tr'nity Term last, and a similar amount before such a power in the Judges as regards the Bar Lone consistently with the statute. that there is practically more reason for vesting
were willing to grant a certificate if it could be the 16th Dec. next, is well founded. It is a
than as regards solicitors. One advantage arising matter which demands that attention at the hands from the Judicature Act in this respect is—we whom he was articled stated that he gave all the
Affidavits of the applicant and the attorney to of the Incorporated Law Society which it would presume-that one application, instead of, as at time required to the service of his articles, and astonish us to find that it receives.
present, four, will be sufficient to remove the name discharged his duties as vestry clerk either by of an attorney and solicitor from the rolis. This
deputy or in the evenings. will effect a great saying to the Incorporated Law
The Lord Chief Justice COLERIDGE said :-I ELSEWHERE appears a letter from “A County Society.
think, Mr. Garth, we need not trouble you. I am Attorney of ten years standing” the subject
of opinion that we cannot grant this application, of the delay—serious delay-in issuing commis. A SOLICITOR at Faversham sends us the old ad with regret in this case, because it is stated by sions for oaths in common law. In the country penter, Craven-street," and as to which he makes Mr. Garth in any way, that this young gentleman
vertisement to which appears the name of “ Car. the Attorney-General, and not controverted by this delay is far more serious than if it occurs in some very reasonable deductions, which, however, is a very meritorious person, and there is no desire in connection with town applications. It often it is really no use our producing, for we have to prevent his admission as an attorney, if within happens that in consequence of this delay clients times out of mind given ample exposure to this the rules of the court, and the provisions of the
Act of Parliament, he can be admitted. Now I advertisement and every other of the kind, to no -who cannot be sworn before their own solicitor, purpose whatever. We presume that the council confess, for my own part, it seems to me imposif a commissioner-are obliged to travel many of the Incorporated Law Society consider that sible to get over the direct enacting words of the miles in order to get the necessary oath adminis- they are powerless in these matters ; if so, the 10th section of the 23 & 24 Vict. c. 127. I am tored. No doubt the common law judges have sooner they so inform the Profession the better, clearly of opinion, that enacts a condition precethis matter under their serious consideration; that they can and ought to deal with the subject attorney, he must comply with the words of the
for there is a general impression among solicitors dent, that before a person can be admitted an but if not, we venture to commend it to their of depredations by unqualified persons, at whose statute, and not hold any office, or engage in any immediate attention. Applications of a similar hands the poorer public suffer so much.
employment whatsoever, other than the employkind to the Lord Chancellor are dealt with, with
ment of a clerk to an attorney or solicitor, with little or no delay.
certain savings which do not affect the present THE following Law Lectures and Classes are ap. case ; and that he must by affidavit show and
pointed for the ensuing week in the Hall of the prove that he has fulfilled that condition which is We understand that the judges have recently Incorporated Law Society :- Monday, 1st Dec., enacted in the earlier part of the section, that is, appointed a committee from among themselves to class, Common Law, 4.30 to 6 o'clock. Tuesday, as to not holding any office, or engaging in any frame the rules of procedure to be used in working 2nd., class, Common Law, 4.30 to 6 o'clock. Wed employment. Now I think in this case this gen. the Supreme Court of Judicature Act. We venture Friday, 5th, lecture, Conveyancing, 6 to 7 o'clock. in an employment, and nesday, 3rd., class, Common Law, 4.30 to 6 o'clock. tleman has both held an office, and been engaged
would be trifting with to express a hope that a ready use will be made of
the words of the statute, and would certainly be the practical knowledge and experience which
an example of the truth of the saying that hard solicitors and their clerks can certainly bring to A SOLICITOR at Landport, in Hampshire, sends us cases make bad decisions, if we were to come to bear on the deliberations of the committee. The peared in a local paper. It speaks for itself, and
the following advertisement, which has just ap- any other conclusion in this case than that, how. knowledge of members of the Bar for such pur needs no comment. We omit names, &c. :
ever much we may regret it, this gentleman has
not fulfilled the conditions enacted by the 10th poses when compared with that enjoyed by the
- Accountant and General SOUTHEA.
Business section. The case of Re Peppercorn, decided in this other branch is as a theoretical compared with a
Agent; for sixteen years Managing Clerk to a Soli. Court was a case of a very peculiar sort. It practical knowledge, and we feel confident that it
- Mortgages Negotiated, Wills, Agreements, was a case in which, if it were an “office," it came
Leases, &c., prepared. House property bought and will not fall short of a misfortune if the committee sold by private treaty. Debts collected.
to the man as part of a family arrangement. The
whole matter was a matter of family property, of judges leave the work in question to so-called
and the stewardship of the manor devolved upon draftsmen.
The necessity for adopting our DECISIONS AFFECTING SERVICE UNDER him. In the language used by the Chief Justice suggestion seems so apparent that we cannot
in delivering the judgment of the Court-devolved think it will be overlooked. Seeing that the
upon him as a matter of arrangement between
Saturday, Nov. 22. council of the Incorporated Law Society is only at
himself an his brothers and sisters, and was held
Re BRIMACOMBE. present partially representative, it would be wiser An application was
by him for the purpose of looking after, with
made to the Full Court more advantage, their common property. It was at least that a draft of the proposed rules should by Philbrick on behalf of R. C. Brimacombe a very peculiar case. It was a case in which, apbe submitted to, say a dozen solicitors to be for a rule directing that service under articles of parently, the judgment of the Court must
have named by the judges, each having especial quali. clerkship and an assignment should count from been, that under the circumstances, these words fications for the general work. The easy and inex
their respective dates, notwithstanding the non- were complied with, and no office
enrolment of the articles within six months after because, although the word "office" is used by pensive working of the rules is not one iota less date and the non-production to the Registrar of the Chief
Justice in delivering the judgment, it important to the Profession than to the public, Attorneys and Solicitors of the assignment for appears by the report of the case that the judges who must be first considered.
entry within three months after enrolment. of this court had satisfied the judges of the
Granted. Queen's Bench, and had pronounced their judg
ment with the assent of the judges of the Queen's
Bench, who had decided the case upon the words
Re A. B., AN ARTICLED CLERK. THE practice of giving articles to clerks is on the increase with solicitors to an extent which Chambers for leave to enter notice in the jadges' fied not merely that the spirit of the statute was
An application was made to a master at Judges' of the statute, and must thereiore have been satiswe cannot approve.
It is a wise provision which permits a clerk under certain circum- books of intention to apply to be admitted in the along, but must have been satisfied by the reason.
unbroken, which, as I gather, they thought all stances to obtain admission to the Profession, then Michaelmas Term 1873, the same having and it would be equally wise if greater facilities been omitted to be entered through ignorance of ing of the judges of this Court, that the letter of
the statute also, upon which alone that had prowere offered by which solicitors could
ceeded, had not been broken in that particular called to the Bar, There is, however, a
Without saying more about it, it may be practice obtaining by which some solicitors give articles to those in their employ, the quid pro
Tuesday, Nov. 25.
enough to say that that was a very peculiar case,
and it stood on its own ground. We are asked quo being a reduced salary, and sufficient con.
Re C. D., AN ARTICLED CLERK. sideration is not given under these circumstances An application was made to a master at Judges' broader decision. Certainly lam of opinion, and
to extend that case by a very much wider and to the fitness
of the clerk to become a member of Chambers for leave to give nunc pro tunc exami. I believe the court are unanimously of opinion, it the Profession. If the solicitor overlooks this, nation and
admission notices for Hilary Term is not prepared in this case, with whatever there is yet the Incorporated Law Society, who 1874, on the ground that the applicant had con- regret, to extend the construction of the statute have the power practically of excluding those 'cluded, though erroneously, that but a month's ' in the manner asked for by the Attorney-General.