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a high priest when he becomes a Bencher. The silly mystery an accomplishment confined to the ancients, unless the which veils all he does ought to be thrown aside without French preachers may put in their claim and some of the delay.
Irish lawyers ” : (The Young Duke, p. 285). MR. BARTRAM, of the Ontario Bar, has struck a great blow in vindication of the independence of the Bar.
An agreement between author and publisher for the publicareported by the Discipline Committee of the Law Society tion of a book cannot be assigned by the publisher without guilty of conduct unbecoming a barrister because he wrote
the author's consent, and the fact that the agreement for and published a letter calling attention to the oppressive
publication was made with a limited company makes no conduct of Chief Justice ARMOUR. He appealed to the difference. So it was held by Mr. Justice STIRLING in
Convocation of Benchers, and set out in detail how he Griffiths v. Tower Publishing Company (75 L. T. Rep. 330), had been prejudiced in his practice by the overbearing action
which we reported last week, and the decision, which appears of the judge. His vindication appears to us to be complete,
to be unquestionably correct, is of very great importance to and Convocation has left him as the Ontario Free Press says
authors. It had already been held, in Bradbury v. Hole -a member of the Bar, and a man of high standing. We
(41 L. T. Rep. 250) and two other cases, that the contract would add, with the spirit and courage of an Englishman. for publication of a book forms an exception to the general
assignability of contracts, on the ground that the author
trusts to the personal reputation and skill of the publisher In the Divorce Court this week a conversation took place between counsel which is of some importance.
with whom he engages for his work to be placed on the Mr. KAYS
arket, and the principle of the decision applies to a put a question; Mr. WILLOCK (junior to Mr. DEANE, Q.C.) said, "The question is an irregular one." Mr. Kays replied,
company as well as an individual, although the manager "I am not going to be taught by you." Mr. DEANE said,
of the company, who may be the past member of a publish“Indeed, sir, you will be taught by us if you put irregular
ing firm which has merged its existence in the company,
may be liable to dismissal at any moment. “A limited questions." Mr. Kays: “I was not aware you were a tutor in this court." Mr. DEANE: “But I am if you put
company,” says Mr. Justice STIRLING, “ may have a reputa
tion in a particular manner of producing books and in a irregular questions." We cannot agree with Mr. DEANE.
mode to attract the attention of the public; and the author If a tutor, he neglected to instruct his junior (or tutor No. 2) that he should not open his mouth in the presence of his
selecting such a company as publishers may very naturally
do so in the reasonable expectation that the company-leader-certainly not to take objections-and, secondly, that his form of objection was wrong, as his submission should
although its members and officers may fluctuate—may never
theless consider themselves under an obligation to maintain have been to the judge. But no counsel is a tutor in any court under any circumstances.
If Mr. Kays was wrong
the reputation which they have acquired.” The unsold stock as he was-- -the judge alone could tell him so on the objection
was ordered to be sold for the benefit of all parties interested, of the opposing counsel. Courts would become bear-gardens
including the company's creditors. if counsel undertook tutorial duties towards their learned friends at the Bar, delivered their lectures in the face of the
The law of coroners appears much to require amendment, judge, and gave the ruling which he alone can give with any
and amendment of some kind seems to be forthcoming. The authority.
Public Control Committee of the London County Council
(see ante, p. 113) "submitted to the late Government a The suitors and practitioners in Mr. Justice Romer's court series of twenty-two suggestions” for amendment, and the have had serious cause to complain of the time taken up present Lord CHANCELLOR, in receiving a deputation from during the present sittings by the trial of patent actions. that committee, has promised that a proposal to create Of course this is a class of work which is legitimately taken medical investigators to make the preliminary investigation, into any court, although obviously it should have a tribunal and many others in a long series of suggestions, “ should of its own as much as railway or Admiralty cases. A receive his careful and sympathetic attention." As to the special Bar is always employed, and this--to take a profes- proposal to reduce the number of jurymen, however, his sional view only-is a serious matter to those whose only Lordship thought that great difficulty might be experienced forum for practice is the court selected. Some other in any such attempt. The existing law is, no doubt, far from arrangements ought to be made for dealing with this class of satisfactory. The Consolidating Coroners Act of 1887 business.
(50 & 51 Vict. c. 71), by sect. 3, provides for the summoning
“not less than twelve nor more than twenty-three lawful The testimonial which Mr. Justice GRANTHAM has given in men,” but is silent as to the qualification of jurymen and his letter to the Times to the high intellectual and ethical exemptions from serving. It was not until 1892 that it was standard of the Irish judiciary has, writes an Irish corre- settled by Reg. v. Dutton (66 L. T. Rep. 324), in which an spondent, been the subject of much comment in legal and order fining a solicitor's managing clerk £5 for refusing to judicial circles in Dublin, and has excited considerable serve was quashed, that the schedule of exemptions attached merriment at the learned judge's expense. Mr. Justice to the Jurors Act 1870 applies to coroners' juries. But the GRANTHAM's commendations were quite unexpected, and most curious provision of the Act of 1887 is that of sect. 13, wholly unsolicited either by the Irish Bench or by the Irish by which “every coroner of a county shall be a fit person, Bar, who are at a loss to know what they have done to excite having land in fee sufficient in the same county whereof he the learned judge's philanthropic anxiety to promote their may aoswer to all manner of people ”—words taken almost interests.
verbatim from 14 Edw. 3, stat. 1, c. 8, and clearly requiring
every county coroner to be a substantial freeholder, just as The depreciatory remarks of Mr. Paul, noticed in the Law sect. 2 of the Sheriff's Act 1887 requires a sheriff to be a Times, writes a correspondent, in reference to the lack of substantial freeholder by enacting that
a person shall not oratory at the Bar-remarks certainly not traversed by Lord be appointed sheriff except he have sufficient land within his ROSEBERY in his subsequent verbal annotations to Mr.
county to answer the Queen and her people." What is the Paul's lecture at Edinburgh--may render of interest the legal result of the requirement of the Coroners Act not being views of another Prime Minister, Lord BEACONSFIELD, who complied with: Could an inquest, in cases where the coroner believed that, at the Bar of Ireland at least, oratory was may happen to be only a leaseholder, be quashed as coran non still existent. “Perhaps,” he writes, " although we use the judice? Would the coroner himself be removed for want of term we never have had oratory in England. Oratory seems the landed qualification. It is said in Jervis on Coroners,
to fifty years.
We do not infer that gentlemen as a general rule are not as fit to carry on their work at sixty-six as they are at sixty-four; but, in the interest of both the public and those who succeed them, there should be a certain definite rule as to compulsory superannuation on a pension in the offices of the High Court as in other Government offices. The prospect of promotion is postponed almost indefinitely, while those in office continue far past the time when they are able to perform their duties efficiently. The present system for both Bench and Offices requires a thorough and drastic reorganisation, and a definite set of rules is needed to compel retirement at a certain fixed time in all
Nothing in our whole system of government lends itself more invitingly to comic treatment than our law and its administration. Mr. BIRRELL has lectured on Trustees; he proposes to lecture on Frauds; but in both instances he leaves no one under any misapprehension. In the professor's chair he looks sedate enough. The veil, however, is transparent, and behind it the eye of the expert will see the cynic in convulsions of laughter. Look at his introductory lecture as Quain Professor, He pourtrays the Legislature passing unconstruable statutes; the judges trying to construe them by the light of common and the intention of Parliament; judges given an unlimited discretion as long as they are sane and honest; judge-made rules and orders which no judge pretends to understand-result, a mountainous White Book, instead of the concise and compendious TIDD. Is it any wonder that a judge flies off to Ireland, as NAPOLEON went to war, to distract attention from domestic affairs in his own country? But where are we drifting ? How can we complain if the public take the cue and avoid the law ?
THE TREASURY AND SCOTTISH PROSECUTIONS. THERE was published in the Scotsman of the 2nd inst. an important article from which it appears that the method in which the Treasury regulations in cases of extradition have been applied to Scotland has had the somewhat startling result of virtually suspending the operation of the law of extradition so far as regards bringing back to Scotland Scottish criminals who have fled outside the United Kingdom. When a warrant has been issued for the arrest of an offender who has fled abroad, it must be forwarded, with the evidence on which it was granted, to the Home Secretary, who, if he thinks the matter one for the interference of the Government, communicates with the Foreign Office, which in turn communicates with the English Ambassador in the foreign country. This official communicates with the proper police authorities, and they, if the offence comes within the Extradition Treaty, either effect the arrest themselves and hand the prisoner over to an official from this country, or else they give the British authorities an opportunity of effecting the arrest. One of the Treasury regulations requires that, in the case of a criminal who has left the United Kingdo:n, the “prosecutor” shall, as a condition of steps being taken to bring him back, sign a bond undertaking liability for the whole expenses connected with the apprehension and bringing home of the accused. This is a very salutary rule, where a prosecution is at the instance of a private person, as is the traditionary English system. Where the prosecution is undertaken by the Treasury, as is usual in important cases, no guarantee is required from the injured party. The Scottish system of prosecution is, however the very reverse of the English one. There private prosecutions are extremely rare, it being the duty of the Lord Advocate, as public prosecutor, to bring offenders to justice. Now it appears that the Treasury has, in the case of a criminal flying from Scotland, interpreted the word "prosecutor to mean the “injured party.” They have in fact applied the rule which holds in case of private English prosecutions to Scottish prosecutions which are not private but public. In other words, to quote the writer in the Scotsman, "no accused party is to be brought back from beyond the seas unless the injured party finds security for the costs to be incurred. It does not matter that the prosecution is a public one, undertaken by the Lord Advocate in the public interest, and that a warrant has been issued on his application for the apprehension of the accused. That warrant is not to be put in execution unless a private individual who has already been a sufferer through the offence becomes security for the expenses of executing it.” We are further informed that the result is, that not only is the extradition of Scottish criminals not enforced, but even the bringing back of criminals from the Colonies to Scotland is almost unknown. Every year a number of criminals escape scot-free by reason of this rule, and, it is stated, not oftener than once in ten years or so is a criminal brought back. If Jabez Balfour, for instance, had committed his crimes in Glasgow instead of London, he would still be in Argentina, unless some private person whom he had victimised had been patriotic and wealthy enough to pay for bringing him back. This is a serious matter, and calls for attention from the Treasury officials. The giving of an indemnity is only an incidental item in the expense which a private prosecutor under the English system must incur. But when a Scotchman, who has been accustomed all his life to the system of State prosecution, is asked to give such an indemnity, he naturally refuses with indignation. Shall we have to wait for a notoriously flagrant case of a criminal escaping before
reform is brought about? How many prosecutions will fall through in the meantime?
In the Court of the Judicial Commissioner of the Federated Malay States, on the 31st of last Oct., an appeal against a conviction of two Pathans by the District Magistrate at Serendah, Selangor, was heard by the Commissioner at Kuala Lumpor. The conviction was for indecent assault, the sentence in each case being six months' rigorous imprisonment with fifteen strokes with a rattan. Mr. C. W. HEWGILL, of Kuala Lumpor, advocate and solicitor, appeared for the appellants. This was the first time that an advocate in private practice had appeared before the new Court, and, by way of inauguration, Mr. HEWGILL offered a welcome to the Commissioner on behalf of the Bar of the Malay States and the Legal Profession generally, stating that general satisfaction was felt at his appointment, and confidence that the principal wants of an advocate, viz., a patient hearing and a fair and consistent judgment upon the facts and arguments laid before the court, would be met in the person of the new judge, and by him steadfastly maintained. The learned counsel called attention to the exclusion of legal practitioners from the Magistrates' Courts of the Malay States, and expressed a hope that that restriction would shortly be removed. His Lordship, in thanking Mr. HEWGILL for his remarks, stated that he was in favour of all the courts of the States being opened to lawyers. The appeal was dismissed, with the exception that the sentence of flogging was remitted. It is only by the persistent exposure of existing scandals that any reform can ever be hoped for. The desirability of some rule for superannuation in the High Courts of Justice grows more and more evident every day. In no other branch of the Civil Service does such a position exist, and the stagnation of promotion consequent upon the absence of such a rule is causing serious discontent. The above remarks apply equally to the Bench and the Offices of the Supreme Court. No less than nine judges of the Supreme Court have exceeded fifteen years service on the Bench, while in the offices the stagnation is, if anything, worse. The Civilian tells us that at least three masters have passed the age seventy, one first-class clerk is over sixty-five, and some half a dozen second-class clerks are over sixty; and that it is quite a common thing for clerks in the Probate Division to remain at their posts after seventy, and in the other offices are to be found many clerks whose service varies from forty
“ THE WEARING OF THE” GOWN. When on the 31st July 1889 Mrs. Frances Rebecca Robinson, widow of the Rev. Disney Robinson, bequeathed a sum of money towards the endowment of an Evangelical Church at Bournemouth on condition that every incumbent should sign and observe a written declaration that he would only preach in “the black gown” inherited by the Calvinists from the preaching friars, she no doubt thought that she was providing a fresh and much needed bulwark against the encroachments of iilegal vest. ments on the unadorned beauty which characterised the ritual of the Church of England from the publication of the second Prayer-book of Edward VI. down to the middle of the present century. If she had been told that her bequest would be the ineans of giving a great impetus to the invasion which she dreaded and deplored, she would have either revoked it, or-more probably-smiled with impervious incredulity and expressed her testamentary intentions in a duly executed instrument with all convenient speed; yet this was precisely what Mrs. Robinson has succeeded
in doing. It came about in this way: The black gown was only to be prevalent love of money, and consequent love of adventure in parsimony and woru if there had been no alteration in the law rendering it illegal. The bargains, ceases. As it is, lawyers and the judges must be called upon from present incumbent of the church in question declined to comply with the time to time to interpret strange and often contradictory terms, phrases, conditions of the bequest on the ground that such an alteration had taken and conditions in written instruments, and the Profession may feel an easy place. He admitted that since the middle of the tenth century there had conscience in taking a fair remuneration for so doing.! been a practically continuous—though diminishing-use of the black gown in the Church in England, and that no direct anthority could be adduced against the practice except an obiter dictum by Sir Robert Philli. more in Elphinstone v. Purchas. But he maintained that the use of the
MORTGAGES OF UNCALLED CAPITAL. black gown in the Anglican pulpit was impliedly condemned both by the provision in the advertisements of Queen Elizabeth that “every minister A CONSIDERABLE change of judicial opinion is apparent from an examinasaying any public prayers or ministering the sacraments or other rites of tion of the many authorities dealing with the subject at the heading of the Church shall wear a comely surplice with sleeves," and by the judg.
this article. ment of the Privy Council in Ridsdale v. Clifton. The Court of Appeal Some thirty years ago the power of mortgaging uncalled capital so frehave now overruled these contentions substantially on the ground that the quently exercised to-day by the boards of public companies was regarded prescriptions as to the surplice do not apply to the pulpit. And so the by the courts as a breach of trust on the part of the directors, and as tantablack gown is saved from being committed to the limbo of ecclesiastical mount to a divestiture of the discretion reposed in them on the general relics. But the supremacy of the surplice is also excluded from the behalf of the company. Even recently expressions of regret have fallen pulpit; a fresh blow is struck at the already disputed-and disputable- from the Bench at the prevalence of the practice; but the system is authority of Ridsdale v. Clifton and a new argument is created in favour strongly rooted now, and nothing but legislation can stop it. The chief of the stole. There has not been a more amusing instance of the irony leading case on the subject is the following. which penetrates even the fabric of judicial decisions since Lord Cairns
In British Provident Fire and Life Assurance Society; Stanley's case promulgated the “fresh light” theory on which the judgment of the Privy
(10 L. T. Rep. 675; 12 W.R. 894) the board of the society was empowered Council in Read v The Bishop of Lincoln was avowedly based.
to borrow on the security of the “funds and property of the society or any part thereof,” and to assign by way of mortgage the funds on the security of which the sums were borrowed. Relying on these powers, debentures were issued whereby unpaid calls were hypothecated as
security for repayment. Lord Justice Knight Bruce held the debentures “ET CETERA.”
to be a breach of trust, totaliy unwarranted, and good for nothing, PRECISION of thought and care in expression were ever at a premium. except as evidence of a contract of debt.” Lord Justice Turner came to And in days of superficial information and the most unclassical English, the conclusion that “funds and property” were not in the same category there is too little hope of an improvement. It is not to be wondered with unpaid calls. The latter were, in his opinion, “property, not of therefore if such expressions as “. et cetera ” find much acceptance. But the company immediately, but which may be called up by the directors of what did a lady mean when she bequeathed “all her household furniture the company at their discretion.” Debentures of this kind would, he and effects, plate, linen, china, glass, books, wearing apparel, &c.”? No contemplated, defeat and put an end to such a discretion. Again, in The reasonable person would raise any question that the symbol &c., is an Bank of South Australia v. Abrahams (32 L. T. Rep. 277; L. Rep. 6 P. C. abbreviation for the words et cetera, and that it can reasonably bear no other 562), the Privy Council supported the last-mentioned decision in the case interpretation. But, then, what was the testatrix's intention ? Probably of a company whose directors were authorised to borrow “on mortgage or she knew, or thought she knew; but, as she, being dead, cannot inform us, charge of the property of the company
or any other securities are we to construe these words to pass her general personal property, or which might be available.” Their Lordships regarded the law as settled only such chattels as are ejusdem generis ? Sir John Romilly, who had to by the first-mentioned case, the only exception being Re Colonial and answer the question, held the latter, both on authority, and the plain General Gas Company Limited ; Lishman's case (23 L. T. Rep. 759), where meaning of the words ; and his Honour, therefore, had to decide that the Vice-Chancellor Stuart ruled that debentures issued by the company were lady died intestate as to her general residuary estate : (Newman v. a charge on calls made or to be made. The directors there had power to Newman, 26 Beav. 220; see also Barnaby v. Tassell, 11 Eq. 363). That borrow on the security of "all the lands, property, and effects of the comwas in 1858; in 1876 we find his successor, Sir George Jessel, giving the pany of what nature or kind soever which the company should then hold symbol (&c.) a more liberal meaning, he thinking that, looking at the or be possessed of. After the expressions used in the Privy Council case, whole will which he was called upon to construe, the testator meant to this decision is presumably to be regarded as overruled. On the authority make an universal residuary legatee : (Chapman v. Chapman, 4 Ch. Div. of these cases and others therein mentioned, Mr. Buckley (on the Com800). So it may perhaps, at least as respects testamentary documents, panies Acts, 6th edit. p. 167) holds that, “in the absence of express power be correct to say that the law as to the meaning of the words et cetera is to mortgage future calls, a mortgage of the proceeds of a future call is inin a state of transition ; and to contend that modern judges will seek to valid, for such a charge would prevent the directors from freely exercising give a wider meaning to these words, if, from the will or document, it the discretion given them as to calling up capital.” appear such was the intention.
It is, however, quite clear that, where an express power is given to Take another and later decision of Sir John Romilly. There was a mortgage future calls, debentures charging them are good, and from the sale of a “goodwill, &c.”-just such a loose expression as a lawyer opinions expressed by Sir G. Jessel, M.R., in Re Phonix Bessemer Steel would not be surprised to find in an agreement that had been prepared Company (32 L. T. Rep. 854; 44 L. J. 683, Ch.) it does not matter if the by the parties or an ignorant agent or clerk. The learned Master of the power be only given in the articles and not in the memorandum, so long Rolls said that these words connected together, mean to unite such other as it is derivable from them clearly. This was most clearly enunciated things as are necessarily connected with, and belonging to, the goodwill; also in Re Pyle Works Limited (62 L. T. Rep. 887; 44 Ch. Div. 534). for instance, he added, the use of trade marks, and a covenant by the There the company in question was empowered to borrow money on any vendor not to carry on a similar business in Great Britain for a reasonable part of its property, including capital uncalled. It was held by Lords time, to be limited in the conveyance, having regard to the nature of Justices Cotton, Lindley, and Lopes that a mortgage of uncalled capital such undertakings: (Cooper v. Hood, 28 L. J. 215, Ch.).
was valid even though the mortgagee was himself a shareholder, provided Every reader will recollect Parker v. Taswell (2 De G. & J. 559), the that the charge is a general charge on the unpaid calls. There the Court case in which Lord Chelmsford decided that a writing purporting to be stated explicitly that there is nothing in the various Companies Acts a lease for more than three years, though void at law as a lease because which in any way derogates from the power of mortgaging uncalled-up not by deed, may be good in equity as an agreement for a lease. Yet the money. reader may have forgotten that in that case the Lord Chancellor also had Between these two extremes of express authority in the company's to decide the important question whether the words et cetera give rise to memorandum or articles and the entire absence of such a power, there is an insuperable uncertainty in the meaning of the document in which abundant room for doubts to arise as to what expressions in the company's they occur. His Lordship held that the presence of the abbreviation &c., constitution are sufficient to empower it to charge its assets in this way, in some of the subordinate terms of an agreement for letting need not and upon this point it may be useful to briefly draw attention to a few produce such uncertainty as to render an agreement incapable of specific authorities. The case of Bank of South Australia v. Abrahams (sup.) performance where the property, the rent, and the other material facts of shows that a power to charge “property” or “property and funds" is the lease are sufficiently described and ascertained: (see also Dear v. not enough to include uncalled capital : (vide Bower v. Foreign Gas Com. Verity, 21 L. T. Rep. 185 ; 38 L. J. 386, Ch.) Nevertheless, if the subject- pany, W. N. 1877, p. 222). In Colonial Trusts Corporation; Ex parte matter of the agreement depend upon the meaning of an “ &c.," if the Bradshaw (15 Ch. Div. 465), the uncalled capital was held free from a court is not satisfied what the term used was intended to include, then charge on “real and personal estate.” The articles, it appears from the the court can make no decree for specific performance : (Price v. Griffith, report, enabled the directors to borrow such sums as seemed advisable, 1 De G. M. & G. 80).
and on such terms as they thought fit. The difficulty felt by the courts as It may, we think, be correctly put thus : in the former case the meaning to the term “property” in connection with uncalled capital is that adverted of the abbreviation can be sufficiently understood by reference to the pre- to by Lord Justice Turner, in Stanley's case (sup.). Uncalled money is ceding words in the instrument and to the surrounding circumstances ; in only a sort of shadow of property-a potentiality--it does not ripen into the latter the abbreviation cannot be understood, and moreover it affects property until actually called up; and in this connection it is to be noted a most vital part of the contract, and these are the principles which must that the proceeds of a call not yet made, but determined on, can be validly guide an adviser when he is asked to say in which class a particular case charged: (Sankey Brook Coal Company, 22 L. T. Rep. 62; L. Rep. 10 Eq. falls.
381). In this case the expressions, “works, hereditaments, plant, property, When will the public arrive at the point of being able to appreciate the and effects," were held insufficient to authorise a charge on uncalled very great difficulty of the adaptation of language to the endless variety property. of circumstances, and the complicated situations in an advanced civilisa- On the other hand in Newton v. Debenture Holders of Anglo-Australian tion, or the folly of acting for themselves without competent advice in legal Investment Company (72 L. T. Rep. 305; (1895) A. C. 241), some very affairs ? Certainly not, it would appear, by oft-repeated cases; or they general words were held snfficient. The object of the company was “to would have learned to understand it long, long ago. Possibly not until the receive money on loan, or deposit or otherwise, and upon any security
desire might not be so pronounced were it known that the Bar possesses but one Button; in cases of disaster there are however four Cottons. It is not every man who would care to dance under such circumstances; there are only two Dare, one Cann, and another Cannot. The Bar requires the assistance of but two Banks—they publish no balance-sheets.
After the foregoing there still remains a Remnant, and we might call attention to subjects both Long and Strong, but space does not allow of it, and we accordingly conclude abruptly.
[We would ask our contributor to endeavour to ascertain how many of the names in the Law List are assumed. This sort of thing is quite as bad as the fictitious coats of arms which are being X-posed in the Saturday Review.-ED. L. T.]
of the company, or upon the security of any property of the company, or without giving security.” These expressions were considered by Lord Macnaghten to shadow forth an intention that the total resources of the company, wherever derived, or in whatever state they might happen to be, should be available for the development of the company's business. A very recent case came before Mr. Justice Chitty, last June: Jackson v. Rainford Coal Company (1896) 2 Ch. 340), where the power was to borrow on mortgage of the hereditaments, machinery, works, and other property and effects for the time being of the company so far Mr. Justice Chitty held, on the authority of the preceding cases, no power over uncalled capital was implied. Subsequently it was provided that the company could borrow" in such other manner as the company may determine." These words were regarded by the learned judge as sufficient for the purpose, looking both to the decision before the Privy Council alluded to before, and also to the fact that he saw no “other manner in which the company could borrow on its property except by a charge on its uncalled capital. The last addition to these cases was made by the same judge on the 19th ult., when he decided Re Streatham and General Estates Company (noted ante, p. 85). The words causing doubt as to the company's power to charge its uncalled capital were as follows : “ The andertaking and all the property whatsoever and wheresoever both present and future.” After a consideration of the circumstances he held that these terms were not sufficient to include the uncalled capital.
The conclusions to be drawn are, that it is obviously wiser in framing a company's constitution to provide explicitly for charges on uncalled capital. Practitioners called upon to advise as to the existence of the power in now existing companies may do well to remember that“ property and words of that character are wholly unequal to the task unless the meaning of the term is extended by words such as
or other apt expressions, clearly purporting to enlarge the power and widen its definition. That general words are capable of binding the uncalled money is clear from the Newton case (sup.) and the Jackson case following it; but it is clearly unwise to omit the power, when desired, in clear and anmistakable language.
ON BARRISTERS' NAMES. The current “Law List” reveals, on examination, some curious details as to the names borne by members of the Bar. Its claim to be a noble profession is supported by the fact that there are within its ranks eight Kings, one Doke, one Earl, one Baron, two Lords, twelve Knights, and one Squire, while five gentlemen simply describe themselves as Noble. There are also a Deacon, an Abbot, and a Dean with two Churches, four Crosses, four Copes, and eleven Bells, and yet, in spite of this ecclesiastical coterie, only one man is a Christian, and but one man could be described as Good even by his best friends. The “ Law List” assures us that there is but one Leader, and one Counsel at the Bar, but this is clearly a mistake. The Profession has but two Heads and one Brain, while business is carried on by three Courts, and there are four Daniels and five Solomons to give judgment if required. The Profession also require but seven Chambers and two Clerks, whose remuneration is probably small, owing to there being but one Bonus to divide. We hear much on every side of the difficulties of the Bar, and the uphill nature of the road to success. In this connection the Law List informs us that we have three Chances, and although it is true that we have no less than twenty-three Hills to overcome, yet the five Lanes must have some turning eventually, and it is comforting to know that there is but one Corner. This cheering state of things justifies practitioners being surnamed Bright, Hope, Hoper, Joy, Luck, Money, Quick, and the like. On the other hand, we must be willing to recognise that there is undoubtedly one man Idle, and another Slack, Thilst others are admitted by their friends to be Haggard and Down. Two gentlemen only are reputed to be Wise ; but one is Verity personified, and so great is the unanimity of the Profession that it requires but one Tongue. Two members are deemed to be Crichtons, and are no doubt " admirable” in their way. Although the Bar has nineteen Halls, it has only induced two Guests to eat dinners. This seems strange, for some twenty-two barristers are Young, and one is still Younger, one gentleman however being a Younghusband, may very properly be excluded from the list of those expected to dine out.
Comment has been made with regard to the growing practice of wearing whiskers and beard, and various theories propounded to account for it. The reason is now quite clear, the Bar has but three Barbers to attend to their duties. There are, however, plenty of Archers, Fowlers, and Fishers; whilst the large contingent of Cooks, Butlers, Carvers, and Stewards would be quite as willing to accept a Refresher as to provide one. There are also twelve Bakers, but few Bakewell. Among other trades we find Butchers, Chandlers, Colliers, Drapers, Dyers, Masons, Porters, Sadlers, Shepherds, Weavers, and so forth. Among the animal creation there are Birds, Bullocks, Colts, Cranes, Hares, Partridges, Smelts, Sparrows, and Woodcocks, and many others. We find also Whites and Blacks, Greens and Browns, Sly and Sharp, Whitehead and Redhead, North, East, and West. Six Roses, but only one Tudor are to be found.
In spite of the pacific heroism of the “ Devil's Own," it must be sorrowfolly acknowledged that, while one barrister signs himself by the menacing title of Blood, three are prepared to describe themselves as Cowards, and two others will admit they are Cravens. There are, however, five Armstrongs in the Profession, a fact of some importance to the corps. Three men have evaded the age limit imposed by the Council of Legal Education, each one has succeeded in being called while still a Child. The Bar Musical Society could obtain by dint of persuasion a Fife and five Harpers. The Bar rejoices in four Balls and three Days to attend them : as one member of the Profession is quite a Grace and another a Darling, it is not remarkable that ladies are anxious to be present. This
CIVIL JUDICIAL STATISTICS, 1894.
(Continued from page 101.) The Bankruptcy Act of 1883 (46 & 47 Vict. c. 52) made the following changes among others : Establishment of an official receiver who, on the making of a receiving order, takes charge of the estate of the debtor; substitution, in effect, of a bankruptcy notice for debtor's sommons ; increase of the grounds for petitioning by adding execution for any amount followed by seizure; revival of the right of the debtor to petition for his own adjudication; no composition or scheme of arrangement, except as the result of a petition, and with the sanction of the court. Α. wider meaning was given to the debt on which a petition might be based. Under the Act of 1869 the debt upon which a creditor may found a petition must be a debt due and payable; under the Act of 1883 it is sufficient to be a liquidated sum payable either immediately or at some future time. In 1887 was passed the Deeds of Arrangement Act. It made registration necessary in order to give outside the Bankruptcy Act validity to assignments, deeds, or agreements for composition for the benefit of creditors. Certain amendments in the Act of 1883 were made by 53 & 54 Vict. c. 71. Under sect. 1 seizure and holding by the sheriff of the goods of the debtor for twenty-one days, even if there has been no sale, constitute an act of bankruptcy. Any person entitled to enforce a final judgment, e.g., an assignee of a judgment debt, is to be deemed a creditor who has obtained a final judgment within the meaning of the principal Act. There is an alteration of the law as to executions, so as to give the official reoeiver payments made by or on behalf of the debtor in order to avoid sale by the sheriff. In the sections relating to compositions are important changes; the initiative with respect to compositions and schemes of arrangement is given to the debtor, and no second meeting for the purpose of confirming a resolution of acceptaroe is needed. There are also changes making the obtaining of a discharge somewhat more difficult.
Petitions are the commencement of bankruptcy proceedings. Unfortunately there is no record of those under the Act of 1861. Besides, under that Act there might be adjudications by the registrar of debtors in prison. As a measure of the total volume of bankruptcy business under the Acts of 1861 and 1869 may be taken the aggregate of adjudications in bankruptcy, liquidations by arrangements, and compositions. To these must be added, under the Act of 1883, orders for administration of deceased debtors' estates and administrations of judgment debtors' estates, and since the passing of the Deeds of Arrangements Act, deeds registered thereunder.
The variations under the three chief Acts may be thus summarised :-
(a.) Under the Act of 1861 a fall of adjudications of bankruptcies, accompanied by a rise in compositions and arrangements until 1864. From that date a rise in both compositions and bankruptcies, the climax being reached in 1867 and 1868. This rise in bankruptcies was eontemporaneous with a rise in writs, &c. The commercial disasters in the end of 1865, the crisis in 1866, and the depression in 1867-68 are indicated by the large figures for those years. The high figures for 1868 were, in part at least, ascribable to the desire of many traders to take advantage of the Act of 1861 and to escape the more stringent Bankruptcy Amendment Act 1868.
(6.) Under the Act of 1869, owing probably to a change in the law and particularly to debtors being no longer able to file bankruptcy petitions, a decline in the number of adjudications in bankruptcy, which fell from 10,396 in that year to 915 in 1873. The facilities for compositions and liquidations were made use of, and they rose in numbers as the number of adjudications fell. The maximum of bankruptcies, &c., during the operation of this Act was reached in 1879, the year in which the number of writs in actions also reached their maximum since 1869. Writing on the tenth year of the Bankruptcy Act 1869 (Report for 1879, pages 2 and 3), the Comptroller in Bankruptcy said :
“ Under the present Act there has been, contrary to all experience, many more arrangements than compositions, and still more suggestive, their annual number increased more than twice as rapidly during the period of greatest commercial prosperity. ... The deplcrable increase of insolvency under the present Act reveals a rapid and continuous increase in the number of persons who, without any regard to the state of trade, continue to get rid of their debts by paying little or nothing to their creditors, some compounding for a few pence in the pound, others liquidating just enough to satisfy professional charges, without even a few pence in the pound for their creditors."
The prosperous years 1880, 1881, and 1882 brought about a great decrease of failures of all sorts.
(c.) Under the Act of 1883 there was at first a great decline in the number of bankruptcies, compositions, &c. But in 1891 “the gradual decline in the amount of insolvency which has, with some intermissions,
of trust deeds (deeds of assignment, composition, and inspectorship), the gross value of the estates and effects and the gross amount of unsecured debts were given in the returns. Under the Act of 1869 there was a great increase of liabilities (culminating in 1878), with no equivalent increase of assets. Under the Act of 1883 there was for a time a fall in the liabilities, the lowest point being reached in 1886, since which date there has been a slight rise.
been taking place since the present Bankruptcy Act came into operation in 1883, received a check, and,
both in regard to the number of cises and the amount of liabilities, there has been a considerable increase." Of late the figures have been nearly stationary, the maximum being attained in 1893. In bankruptcies there has been & considerable increase, particularly as compared with the numbers under the Act of 1869, with a corresponding decrease in compositions and schemes of arrangement. This is in part owing to the fact that compositions and schemes of arrangement are not binding unless approved by the court, that reasonable security must, as a rule, be given for a composition or dividend of not less than 7s. 6d. in the pound, and that the adoption of a composition or scheme does not exempt the debtor from public examination. It is often alleged that cases which, under the Acts of 1861 or 1869, would have appeared as compositions or liquidations by arrangement are now the subject of deeds of arrangement. But even adding the total number of deeds of arrangement registered under the Act of 1887 there is a decrease.
Diagrams Nos. 7 and 8 show that, while under the Act of 1869 the great bulk of the assets and liabilities were in liquidations by arrangement, under the Act of 1883 the great bulk is in bankruptcies and deeds of arrangement.
It will be noted that there has been under the Bankruptcy Acts of 1869 and 1883 a steady decrease in the average liabilities per case. 1894
£1132 Act of 1883 1889-93
1974 Act of 1869 1875-79
2542 There has been an increase in the percentage of total estimated assets to total estimated liabilities. This percentage, which has varied little under the Act of 1883, is considerably greater than under the Act of 1869:1894
40.82 Act of 1883 1889-93
28.38 Act of 1869 1875-79
29.66 One is struck with the small amount of the liabilities as compared with the wealth or income of the country. Taking the same estimate of income as at page 19 (£1,200,000,000) the total amount of the liabilities in 1894 was only about one-ninetieth part of the estimated annual income of England and Wales.
Ăs to the character of the estates wound-up. Any comparison as to dividends declared under the various Acts is defective, from the fact that the information as dividends actually distributed relates only to dividends in bankruptcies and compositions. The following is a statement of the estates wound-up under adjudications of bankruptcy in which there were dividends, and also of the percentage of dividends over 10s. The figures underneath indicate a distinct improvement; showing results almost equal under different Acts at certain periods--for example, 1870-74 and 1894—they suggest that not the state of the law but the condition of trade is the chief element in determining the amount of dividends.
The small number of the cases as compared with the population or the numbers of the “ commercial class as given in the census, may be pointed out:--In 1862, one to every 1654 inhabitants ; in 1894, one to overy 2511 inhabitants, and one to every 118 of the commercial class as given in the census for 1891.
How far have the above changes been brought about by changes in the bankruptcy law, how far by the state of trade ? Both causes have been at work, and it is not easy to discriminate between them. In diagram No. 1 appears a general resemblance between the curves of bankruptcies and writs.
No inseparable connection between depression in trade and increase in failures appears to exist. Failures consist of two kinds—those which come at the close of a period of prolonged depression, and those which are ascribablo to rash trading and speculation in prosperous times ; and there may be an increase of failures while exports and imports are increasing. With reference to the Act of 1861, the Comptroller, in his report for 1880 (p. 3), observes :
“ During the seven years 1862-68, with a rise of about 130 millions in the value of exports and imports, there was an annual average of 13,600 cases, while during the seven years 1873-79, with a fall of about 130 millions in the value of exports and imports, there was an annual average of only 9500 cases, and, regardless of increase or decrease of exports or imports, the annual number of cases increased about 5000 during each of these periods."
In the same report (p.5), writing of the Act of 1869, the Comptroller says:
" In each year (from 1870 to 1880) the annual number of bankruptcies proper has fallen or risen consistently with the rise or fall of exports and imports, and the same with compositions exceeding 7s. 6d. in the pound.”
In the report of the Inspector-General for 1888 (p. 13) is the following passage :
** The theory has been advanced that the improvement in trade is the cause of the diminution of insolvency, rather than the result of the restrictions imposed upon it, and this theory might be plausibly maintained if the insolvency were of a character which was likely to be diminished by such improvement. But no improvement in business diminishes speculative or reckless trading ; on the contrary, its tendency is to increase it. This is clearly shown by previous experience. Thus, for example, taking a period which followed closely upon the passing of the Bankruptcy Act 1869 (viz., the period of five years prior to 1875, which the Royal Commission on the Depression of Trade adopted as the year from which the depression began), it will be found that these five years, which undoubtedly constituted a period of great apparent prosperity, but which were also characterised by much reckless speculation, constituted also a period of rapidly-increasing insolvency, the net estimated loss to creditors
being as follows, viz. :For 1871 £10,954,099 | For 1874
£16,020,601 1872 11,065,621 1875
14,816,554 “ This table, which furnishes a striking contrast to the experience of the first five years under the Act of 1883
indicates clearly that a large increase in the volume of trade, and even a period of 'leaps and bounds of prosperity' may be concurrent with a rapid increase of insolvency.”
Changes in the law have obviously affected the form of insolvency. Thus the effect of the Bankruptcy Amendment Act 1868, making more difficult the adoption of compositions, is seen in their rapid fall in 1869 ; and the small number from 1870 to 1883 of adjudications of bankruptcy was due to the advantages held out to debtors liquidating by arrangements or compositions.
As to assets and liabilities For several reasons the figures are not entirely trustworthy. They are the estimates of the debtor, who is disposed to over-rate the former and to under-rate the latter. Or the other hand, it is to be observed that the liabilities include fully secured debts, and that the same debts may be proved in different estates. A further defect as to the returns under the Act of 1861 is the absence of official information as to the assets and liabilities in bankruptcies. In the case
Under the Act of 1883 there has been a decrease in the average amount realised from estates in bankruptcy. During the period covered by the comparative table the average amounts realised per estate were :-1894
£275 Act of 1883 1889-93
609 Act of 1869 1875-79
101 An improvement in the character of the compositions will be noted. While the compositions under 7s. 6d. in the £ have practically ceased to exist, those above that amount have nearly doubled : (Report of InspectorGeneral, 1892, p. 13). The percentage of compositions at 10s. and above have been as follows: 1894
40.82 Act of 1883 1889-93
2.87 Act of 1869 1875-79