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Mr. Justice FIELD gave their judgments in favour of the common informer. And the remark of Mr. Justice FIELD that " 'persons who wished to put down drunkenness might well turn their attention to devising means of rational recreation for the people is the most valuable obiter dictum that we have had from the Bench for some time. Apropos we may remind our readers that the Select Committee on Public Houses, commonly called Mr. VILLIERS'S Committee, made a somewhat similar suggestion So far back as 1854. With regard to the Act 21 Geo. 3, c. 49, the committee remarked strongly on the impolicy "of suffering the continuance of a law which is preventive only to those who will not stoop to evasion.' (Report, p. xxiii.) And the committee (which numbered amongst its members the present Duke of RICHMOND, and the present Lord HAMPTON, Sir GEORGE GREY, Mr. LOWE, and Mr. GREGSON) passed a resolution "that it was expedient that places of rational recreation and instruction now closed should be open to the public on Sunday, after 2 p.m.; and that so far as any such places are now closed by operation of law, such law should be so far amended as to enable the LORD CHAMBERLAIN, or other competent authority, to determine what places shall be permitted to be so opened, and for what length of time." (Report, p. xxvii). We are glad to observe that Mr. CROSS has caused an inquiry to be instituted as to the probable effect of the recent decision in the Brighton Aquarium Company.

THE RIGHT HON. HUGH MCCALMONT CAIRNS, LORD CAIR NS, and Lord High Chancellor of Great Britain, whose portrait we this week give to our readers, is the second and only surviving son of an Irish gentleman, connected, we believe, with the mercantile interests of the fair city of Belfast, the late Mr. William Cairns, of Cultra, co. Down. His mother was Rose Anna, daughter of the late Mr. Hugh Johnson, of Belfast, in the neighbourhood of which place he was himself born in February 1819. He was educated at one of the chief schools in his native place, and afterwards entered Trinity College, Dublin, where he obtained first-class honours in classics and a high place also in mathematics.

Most Irishmen, it is said, are or have been educated at Trinity College, Dublin; and most young men intended for the law who have passed through the curriculum of that University are called in due course at Dublin to the Bar of their native island. But Mr. Cairns had a wider ambition; he resolved to try his chance at the larger and more important Bar of England; and accordingly entered himself as a student at the Middle Temple, where he was "called" in the early part of the year 1844, and practised for several years as a Chancery barrister. He soon gained distinction, both for his legal learning and for his eloquence, and before he had ceased to be a young man he was employed in several leading cases.

In 1852 he entered Parliament, in the Conservative interest, as one of the members for Belfast. He was not a very frequent speaker at first, but whenever he did speak he was listened to with attention. In his early Parliamentary career he was in favour of maintaining a strict neutrality in foreign politics, and of inquiring into Maynooth College, and opposed to the admission of the Jews into Parliament. On questions which related to Ireland and Irish affairs, he showed himself an advocate of all well-considered and judicious reforms; he even spoke in favour of liberal measures of tenant right. In 1856 he was chosen a Bencher of his Inn, and obtained the honour of a silk gown in the same year.

In March 1858, on Lord Derby becoming Premier for a second time, Mr. Cairns was appointed Solicitor-General (Sir Fitzroy Kelly being the Attorney-General), and received the honour of knighthood. He soon justified the appointment, conducting the business of his department with vigour, and marking his tenure of office by the introduction into the House of Commons of a Bill for facilitating the transfer of land, and for simplifying the law of titles.

It was in February 1859, that he brought forward the Landed Estates Bill, making on the occasion a speech which Sir Richard Bethell himself characterised as "a very lucid explanation of existing evils coupled with a great and important measure of improvement.' He thus urged the necessity for legislating on the subject: “You buy an estate at auction, or enter into a contract for its purchase; you are anxious to get possession of the property you have bought; the vendor is very anxious to get his money. But do you get possession, and does he get the money? Upon the contrary, there begin-and which occupies a considerable portion of a man's life -the preparation of abstracts, a comparison of deeds, searches for incumbrances, objections made to title, answers to those objections; disputes arise upon the inquiries; endeavours are made to cure defects, and in this way, as many of us know, years pass over in a history of this kind. And I should say it is an uncommon thing in this country for a purchase of any magnitude to be completed by possession and payment of the price in a period ander twelve months. ... I buy an estate to-day; I spend a year, or two. or even three vears, in ascertaining whether the title

is a good one. I am at last satisfied, I pay the expense incurred, and I obtain a conveyance. But I have subsequently a desire to raise money upon mortgage of the estate. I find some one willing to lend, provided I have a good title. The lender of the money says: It is true you bought the estate and investigated the title; but I cannot be bound by your investigation.' The lender is perhaps a trustee lending trust money, and he says: 'My solicitor must examine the title, and my counsel must advise.' Then begins between the lender and the owner a repetition of the same process, and of the same delays and the same expense which occurred when the owner bought the estate. And for the whole of that the owner of the estate and the borrower of the money must pay."

Guided by the example of the Irish Incumbered Estates Court, Sir Hugh Cairns proposed to establish a court for the investigation of titles, a period of fifteen months being allowed for their examination and settlement. It was proposed that the court should be called "The Landed Estates Court," and should be presided over by Judges who have been conveyancers in practice for ten years, and also that a metropolitan registry for titles shown to be indefeasible should be established. As our readers are aware, this measure, with some slight modifications, has since been carried into effect; and though the actual passing of the measure was the work of Lord Westbury, still the credit of initiating it was due chiefly to Sir Hugh Cairns during his tenure of the Solicitor-Generalship.

He made an eloquent speech on the subject of Parliamentary Reform in one of the fullest houses in the same year; but Lord Derby, finding himself outvoted on this question, resigned office in the following June, and his colleagues and subordinates of course followed his example.

Sir Hugh Cairns held the Attorney-Generalship for a brief period on the return of his party to power in 1866, as in the same year he accepted the seat on the Bench left vacant by the retirement of Sir James Knight Bruce, one of the Lords Justices of Appeal. Some little wonder was expressed at the time at his acceptance of the post; but it was no secret that the work of the Solicitor-Generalship was a severe trial to his health, never too strong, and therefore his removal into what one of his countrymen called "a quieter sphere of activity," did not surprise his friends.

But it was not forgotten in the House of Commons that Sir Hugh Cairns not only was a consummate orator, and a first-rate lawyer, but that he was able to merge the lawyer in the statesman. Under Lord Derby's second administration, as Solicitor-General, he had shown himself the most able advocate of his party, and comparatively free from the shackles of mere party politics; in consequence, when he quitted St. Stephen's, it was acknowledged that he occupied a position upon the Treasury Bench which had rarely ever been gained by a mere law officer of the Crown; and it was argued that it was only a matter of time how soon his services would be required by the Conservatives in "another place."

Early in 1868 that occasion came. Lord Derby resigned the Premiership, and was succeeded by Mr. Disraeli, who, it was known, could not "stable his horses" along with the then Chancellor, Lord Chelmsford. It was almost a matter of necessity, in order to maintain the cohesion of the Government, that the latter should retire; and on his sending in his resignation, the vacant Woolsack was offered to Sir Hugh Cairns's acceptance.

In spite of his known weakness of health, he resolved to accept the post, the duties of which he discharged down to the following November, when, the general election having left Mr. Disraeli in a very marked minority, the Conservatives resigned, and Lord Cairns for so he had been created on taking his seat as Lord Chancellor-retired with his party.

He again became Lord Chancellor in March 1874. His position on returning to his accustomed seat as Lord Chancellor was thus described by a contemporary: "On certain subjects the authority of Lord Cairns has been very great indeed; he has been even charged by his opponents with aiming at something like omnipotence. His intervention last year compelled the Ministry to alter their Judicature Bill, and to abandon the intention which they had rashly originated in the Lower House, of transferring Irish and Scotch Appeals to the new Appellate Court which it was the object of the measure to constitute. But Lord Cairns's intervention, effective though it was, was not prompted by any desire to prejudice a measure of Law Reform. The extended provisions which Mr. Gladstone desired to introduce in the Commons were objected to, not because they were in themselves undesirable, but because their introduction in the Lower House would have affected the position of the House of Lords, and have consequently involved a breach of privilege. It rests with Lord Cairns now to show that his objections then were based on a purely technical ground. He can only do so by himself completing the great work of Law Reform of which Lord Selborne has given us a small instalment."

How far Lord Cairns is likely before the end of the session to make good these words, spoken in the spirit of prophecy, is as well known to our readers as to ourselves; and we have a strong feeling that it is not well to introduce into biographies any pre

mature criticism on matters which as yet are too near us to be viewed dispassionately. We will, therefore, only say that there is no reason for believing that Law Reform will be really retarded because a Reformer or Liberal like Lord Selborne has given place to a Conservative like Lord Cairns. "On this subject," as the writer just quoted observes, " both the ex-Chancellor and the present Chancellor have given ample proofs of their readiness to rise above considerations of mere party interest, and that they are prepared to join hands in the work of simplifying a costly and complicated system."

It only remains to add that Lord Cairns is married to Mary Harriet, eldest daughter of the late Mr. John McNeile, of Parkmount, co. Antrim, by whom he has a family of six children, two daughters and four sons. His Lordship is a Doctor of Laws of Oxford, and a D.C.L. of Cambridge University.

PROPOSED CHANGES IN THE LAW OF NUISANCES. LORD SALISBURY will be worthy of the highest commendation if he can carry out with success any measure that will remedy that part of the present Law of Nuisances which tends to prevent the pollution of our rivers, if at the same time he avoids inflicting any serious blow upon the manufactures of the country. In calling the attention of the House of Lords to the state of the law on the subject, his Lordship pointed out the magnitude of the evil which it is proposed to remedy. Upon this head there is no lack of information. More than one Royal Commision, whose task has been the investigation of this subject, has sat since 1865. The nature of the evidence collected may be gathered from what was said of the Clyde, the Calder, and the Mersey. The stench emitted from the Clyde and the Mersey was described as being often offensive, while such was the polluted state of the Calder that its water was black enough to serve for ink. So bad was the stream that flowed by Bradford, that the oily stuff on its surface might be set alight. Other streams were mentioned, such as that near Durham, and the stream at Manchester, but it is needless to particularise, for no one who is at all conversant with our centres of manufactures will find any difficulty in calling to mind instances of streams and rivers whose banks enclose a liquid which can be called water only by courtesy. In 1848 an Act of Parliament ordered all localities to prepare a system of drainage. Thus there are are two great nuisances to be disposed of, the drainage nuisance and the nuisances of many forms caused by manufactories. However brilliant and successful legislation may be it cannot altogether by any enactments abate these nuisances completely. The most it can achieve is a reduction of them to a minimum. The problem to be solved is in truth a difficult one.

The present law with respect to nuisances forbids any person throwing any kind of rubbish into a stream so as to block up the channel, or defiling the water with refuse or filth. Provisions are also made for the prevention of nuisances by riparian owners. But, on the other hand, a nuisance may become legalised by having been in existence for twenty years. Such is the present law. It will be remembered that in a Bill introduced by Lord SHAFTESBURY in 1872, a number of standards were suggested in reference to the nature of the stuff that might be thrown into streams. This provision, owing to its unsatisfactory nature, is not adopted in the Bill now before the House of Lords. Lord SALISBURY proposes to allow the Judge to decide what is and what is not a nuisance in each particular case, subject of course to the other sections of the Act. Now let us turn to the enumeration of offences. Solid matter must on no account be put in a stream. Sewage must either be freed from its polluting qualities or be kept out of the streams; a distinction has been drawn between the various liquids issuing from manufactories or mines. Where a manufacturer or mine-owner at the passing of the Act pours or permits liquids to fall into a stream, not having continued to do so for more than twelve years, he will be bound to abate the nuisance within two years, or be absolutely forbidden to pour or allow it to flow into streams. Where there was what might be called " 'a longer prescription "—the term is rather vague-the offender must use the best available means for making the liquids harmless. As to the working of the Act, it is proposed that the task of carrying the Act into force shall be intrusted to the rural sanitary authorities, a power being reserved to the Local Government Board to do the work in case the rural authorities failed in this duty. There is also another important proposal relating to the court which is to have jurisdiction upon questions under this Act. This jurisdiction is to be vested in no tribunal dependent upon the local authorities, but in the County Court Judges.

This brief statement is sufficient to show that if the bill becomes law great changes may be expected. Serious as are the difficulties with which it tries to cope, much apprehension will be excited by the prospect of its becoming law. The existing evils are acknowledged, more or less, fully on all hands; but there arises the old question, which, indeed, should never be absent from the mind of the legislator: Will the probable benefits resulting from the change of law more than compensate for the evil that must of necessity flow from any change whatever? Upon this point opinion will, of course, be much divided. The real point for

but

solution seems to be whether the industries of the country can be carried on under proposed restraints. Assuming that they can, a great benefit will have been conferred upon the community. But this assumes the very point about which there will be most fighting. One thing, at least, is certain, much may be done in the direction of the changes proposed. The claims of material progress and the health of the people at large are in conflict. Pure air and pure water can scarcely be too highly valued; the difficulty of enjoying the one or the other is heightened by the growth of our towns, and the increase in our manufactures. In endeavouring to make our supply of both larger, the Government must expect to meet with opposition from all who are more interested in any of the industrial pursuits which are productive of any of the evils complained of, than in increasing the supply of pure air and water. If we turn our attention from the expediency of the measure a question which more properly belongs to the sphere of the legislator than to that of the lawyer-and consider the Bill on its own merits, we shall find some propositions worthy of remark. There is at least one provision to which wo think the most serious objections may be made. We refer to the proposal to transfer the jurisdiction to the County Court Judges. Of the ability and legal knowledge of these judges we do not wish to be understood as speaking in any other than terms of the highest respect, but we must confess that we think the jurisdiction of the County Court is sufficiently extensive already. The new duties that would be cast upon the Judge if the Bill became law, are far from light. Few rules are given by the Act for his guidance, and those are of a general character. reason assigned for this choice of jurisdiction was stated to be the delay that would result from allowing the Judges on assize to have jurisdiction under the Act. The law's delays are certainly not to be commended, but the application of this argument might be made the means of giving a still wider range of jurisdiction to the Judges of County Courts. It would be far better if no change were made in respect of the jurisdiction, and as it is not too late to remedy this defect, we hope to see it done. The remaining details of the measure will probably afford an oppor tunity for remark at a future time. In conclusion, we wish all success, to the attempt of which this Bill is evidence, and trust it will succeed in putting a stop, or at least a check, to evils which have become matters of more than local importance.

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THE 38TH SECTION OF THE COMPANIES' ACT 1867. AN important decision (Re Coal Economising Gas Company; E parte Gover, 32 L. T. Rep. N. S. 301) has lately been pronounced by the Vice-Chancellor, which turns upon the construction of the 38th section of 30 & 31 Vict. c. 131. The learned Judge states that this is the first case which has arisen upon that particular section. If it be so, the uncomplimentary language used by the Vice-Chancellor of a section which for eight years has caused no litigation can scarcely be justified. The facts of the case are shortly these:-By an agreement, dated 25th July 1873, Henry Skoines agreed to sell, for the sum of £65,000, to W. S. Mappin, certain letters patent for improvements in the manufacture of gas, dated 8th March 1873 and numbered 846, provisional pro tection in respect of which had been granted to Skoines. Part of the purchase money was to be paid in cash, but by far the larger part in shares of a company "to be formed and registered, with limited liability, by the said W. S. Mappin, for the purpose of working the said patent." The said W. S. Mappin was to use his best endeavours to form or cause to be formed and registered, pursuant to the provisions of the Companies Acts 1862 and 1867, a company with limited liability, with a capital not exceeding £150,000." Certain provisions follow to secure the purchase-money, and imposing a penalty in case of the non-formation of the company; and Mappin was to be at liberty to test Skoines' inventions on a large scale. The agreement was executed, and a stipulated deposit paid. On 23rd Oct. 1873, another memorandum of agreement was made between Mappin of the one part, and J. H. Wright, a trustee for and on behalf of the company to be forthwith registered under the name of the Coal Economising Gas Company (Limited), of the other part, by which Mappin agreed to sell to Wright, as such trustee, the said letters patent for £125,000 to be paid partly in cash, but mostly in shares of the proposed company. The company was duly registered in Nov. 1873, with a capital of £150,000, in 15,000 shares of £10 each; and on the same day the agreement of 23rd Oct. 1873, was also registered. In Jan. 1874, Mary Ann Gover applied for, and had allotted to her, ten shares, and paid the deposit of £1 per share. The only agreement mentioned in the prospectus was that of 23rd Oct. 1873. The company not proving a success, proceedings were taken for a voluntary liquidation under the supervision of the court. In Feb. 1875, M. A. Gover was informed for the first time of the agreement of July 1873, and applied under sect. 35 of the Companies Act 1862, to have her name taken off the list of shareholders, on the ground that the prospectus had been fraudulently issued within the meaning of sect. 38 of the Act of 1867. The Vice-Chancellor, in an elaborate judg ment, decided against the claim. Two questions were raised by

First,

the learned Judge as forming the essence of the case. whether Mappin was to be considered a promoter of the company; and, secondly, whether the remedy in case of such fraud by promoters or directors, as is mentioned in sect. 38 of the Act of 1867, is personal against the promoters and directors as individuals, or that which is provided by sect. 35 of the Act of 1862, viz., the removal of the complainant's name from the register. The first question he answered in the negative, and he decided in favour of the latter alternative in the second. We quite agree with the decision, but must take exception to much of the reasoning on which it is based. The learned Judge says that the 38th section of the later Act "for the first time introduces this proposition-that if there be any contract entered into by a promoter, or director, or any other persons, officers of the company, that shall be disclosed in the prospectus." That is to say, we suppose that the company collectively are to be responsible for contracts entered into by individual directors or promoters. But the Act says nothing of the kind. It says nothing about collective responsibility for individual acts; it does not speak of a promoter or director, but of contracts entered into "by the company, or the promoters, directors, or trustees thereof." This being so, it was not really necessary to decide whether Mappin was or was not a promoter of the company. It is obvious also that the remedy provided is personal, as the section provides that the suppression of such contracts "shall be fraudulent on the part of the promoters, &c., knowingly issuing the same."' It is no doubt to be regretted that the vague term "promoter" is not explained by one of those interpretative sections which go far to redeem some of our later statutes. But it is absurd to say that Mappin "could not be called a promoter of the company, for the company had no existence" at the time of the first agreement. He agreed to get up a company, and if he had succeeded, he would certainly have been called a promoter of it. We should have thought the term "promoter" a very inclusive one, purposely used to comprehend every one through whose agency a company is formed. Equally absurd is it to speak of Mr. Mappin's having acquired a commodity by his agreement with Mr. Skoines which "was his to sell or deal with in any way he thought fit." It was not his until the purchase money was paid in the way provided, i.e., until he had formed a company, which he failed to do, and thereby forfeited the sum agreed upon in case of his not being able to fulfil his part of the agreement. Then the Vice-Chancellor asks, was Mr. Mappin bound to publish the fact that he had bought for £65,000, and was selling for £125,000? Certainly not, but the question is irrelevant, as s. 38 of 30 & 31 Vict. c. 131, only provides that the dates and names of parties to any contract entered into by a company, or its promoters or directors, are to be specified. It is for intending shareholders to judge whether the property of the company is likely to yield a good return, but they cannot require the promoters to let them into the secret of any bargain which they may have made for themselves. Besides, the remark of the Vice-Chancellor, if it has any force, is an objection against the section itself, not against any possible interpretation of it. In this case the Vice-Chancellor would have done well to follow the advice given to the Colonial Governor, who was told always to stick to his opinions, but never to give reasons for them.

SUFFICIENCY OF PRE-EXISTING DEBT AS A CONSIDERATION FOR A NEGOTIABLE SECURITY PAYABLE ON DEMAND.

THE case of Currie and Others v. Misa, in which judgment was given in the Court of Exchequer Chamber last term, has attracted much attention in commercial circles, as it decides a point of mercantile law on which there have been few decisions. The question decided in the case was, that a preexisting debt is a sufficient consideration for a negotiable security payable on demand in the hands of a bona fide holder, and it arose in the following manner: The defendant had purchased of one Lizardi bills on Cadiz to the amount of £2000, which were delivered him on the 11th Feb. 1873, and which, according to the usual course of business, were to be paid on the next post day, the 14th Feb. Lizardi was at this time largely indebted to the plaintiffs, Messrs. Glyns, Mills, Currie, and Co., who were his bankers, both on his drawing account and a loan account, and he had, for several days previously, been pressed for payment or further security. On the 13th Feb. he paid in various cheques on account of the balance, and at the same time he handed to the plaintiffs a document, which was described as a bill, but which was in effect an order on Misa to pay to the plaintiffs the amount due for the bills. On the morning of the 14th notice of this order, described as a bill lying due at Messrs. Glyns and Co., was left at Misa's office, and shortly afterwards the cheque in question was paid in by the defendant to Messrs. Glyns and Co., and the bill was given up to him in exchange for it. The amount of the cheque was, together with other cheques paid in by Lizardi, entered to the credit of Lizardi's account, on which a large amount still remained owing to the plaintiffs. Soon after the cheque was thus paid in and entered, the defendant Misa heard that Lizardi had stopped payment, and he at once instructed his bankers. Messrs. Barnett, Hoare, and Co., Fourth Sheet

not to honour the cheque. In consequence of this, the cheque was returned from the Clearing House in the after part of the day, and on the following morning, the 15th, it was entered in the plaintiffs' books to the debit of Lizardi's account. Glyns and Co. then sued Misa on the cheque, and he set up as a defence that there never was any consideration for the cheque, and that the plaintiffs had always held it without having given any consideration for it. The Court of Exchequer gave judgment in favour of the plaintiffs, and the Exchequer Chamber confirmed the decision, but Chief Justice Coleridge dissented from the opinion of the other members of the court.

The court below, in giving their judgment, proceeded, partly at least, upon the special circumstance that the cheque was given to take up the so-called bill, and considered that this formed a sufficient consideration to entitle the plaintiff to recover. But in the court of error the argument turned on the broader question, as to whether an existing debt forms of itself a sufficient consideration for a negotiable security payable, so as to constitute the creditor to whom it was paid a holder for value. It is well known that as a general rule, no one can pass a better title than he has himself. But negotiable instruments are an exception to this rule, as experience has proved that it is indispensable for the interests of commerce that they should be so. It seems that with regard to bills of exchange and payments in money, the rule has been well settled, and though there have been no decisions with regard to cheques, it seems hard to place them on a different footing. Cheques are generally governed by the same rules and principles that regulate bills of exchange; but cheques are intended for immediate payment on being presented, and in fact amount to payment unless dishonoured. There would appear to be very little difference between a cheque and payment in money from a dictum of Chief Justice Cockburn in Watson v. Russell (31 L. J. 304, Q. B.), and that the maker of a cheque cannot afterwards repudiate it and claim back the proceeds, any more than he could claim back gold or bank notes, if the payment had been made in that way instead of by cheque.

It was contended on behalf of the defendant that there was a difference between a negotiable security payable at a future date and a cheque payable on demand, because the former instrument implies an agreement by the creditor to suspend his remedies for a period, and that constituted a new consideration, which is wholly wanting in the case of a cheque, and therefore the holder gains no independent title of his own, in the latter case, and has no better right to the security than the debtor had himself. But it does not follow that the legal element of consideration is absent entirely where the security is payable immediately. The holder of a cheque may either cash it at once or may hold it over for a reasonable time. If he cashes it at once he is safe, and the maker cannot afterwards repudiate; but if he holds over the cheque for a short time, the presumption appears still to be in favour of the holder. In truth the title of a creditor to a bill given on account of a pre-existing debt, and payable on a future day, does not rest on the implied agreement to suspend his remedies; but upon the fact that a negotiable security given for such a purpose is a conditional payment of the debt, the condition being that the debt revives if the security is not realised. The security is offered to the creditor, and is taken by him as money's worth, and on every principle of justice it should be as truly his property as the money which it represented would have been had the payment been made in money.

With this view, the authors of the principal text books on this branch of law seem to agree. Byles, in his work upon Bills of Exchange (last edition, page 124), has laid it down, that “a pre-existing debt due to the holder of a negotiable instrument is a good consideration, and it should seem is equivalent to a fresh advance." And Mr. Story in his treatise (sect. 192) has stated the same principle, without suggesting any difference between a note payable after date and one payable on demand. The case of De la Chaumette v. The Bank of England, which was relied on for the defendant, had this difference from the present case, that the note had not been remitted as payment, but for collection by a party as agent, and the court held that under these circumstances the plaintiff had no better title than the person who remitted the note to him. In the old case of Solomons v. The Bank of England, which is reported in the notes to Lowndes v. Tudnor (13 East, 136), the plaintiffs were London merchants in advance to foreign correspondents, and a note having been fraudulently obtained, had been stopped at the Bank by the person defrauded. The plaintiffs were innocent of the fraud, and had received the note to be applied in diminution of an existing debt; there was evidence to connect the foreign correspondents with fraud, and the Court of King's Bench held that the plaintiffs had given no consideration, and were mere agents to receive the amount of the note from the Bank, and, therefore, as Mr. Justice Buller expressed it, they must stand or fall by the title of the foreign correspondents. But these cases both differ from the case of a party who gives a cheque to a banker to discharge a debt due from him to a third party, who was likewise indebted to the banker, and who evidently intended that the payment made by his debtor to the banker, should be applied by the banker in reduction of his debt.

It is of course improbable that the defendant will, with the

opinions of so many of the Judges against him, and Chief Justice Coleridge only in his favour, take the case to the House of Lords; and it is of course to be regretted that there was not an unanimity of opinion in the Exchequer Chamber, as the case will be considered a leading one on the subject concerning which it treats. It would, however, appear that the present decision is in accordance with the views of most mercantile men.

EVIDENCE IN CASES OF DIVORCE.

THE case of Berry v. Berry, of which we published a short report last week, is important with respect to evidence in suits for dissolution of marriage. The only evidence of adultery adduced was given by the petitioner (the wife), who swore that after marriage she had found herself suffering from a venereal disease, that she herself had not committed adultery, and had not become accidentally infected; and by the doctor who attended her for, and cured her of, such disease. Wilful communication and other acts of ernelty were also deposed to, and a decree nisi was granted.

Before the Evidence Further Amendment Act 1869 (32 & 33 Vict. c. 68), sect. 3, a decree could not have been obtained on the evidence brought forward in the above case. Proof that the husband some considerable time after marriage was afflicted with venereal disease, has indeed been held primâ facie evidence of adultery by a judge of very great authority (Lord Stowell in Popkin v. Popkin, 1 Hag. Ecc. Rep. 765-7), which decision has been since followed more than once in America (Johnson v. Johnson, 14 Wend. 636; Ferguson v. Ferguson, 3 Sand S. C. R. 307; North v. North, 5 Mass. 320), though there is a great dearth of English cases on the subject. The evidence of the existence of the disease, however, must have been of the clearest nature (Stone . Stone, 3 Notes of Cases, 290), especially where the husband denied the adultery on oath (Mount v. Mount, 2 McCarter, Amer., 162). But the fact of the wife's being infected, though she was not even suspected of adultery, was not, in the absence of proof that the husband was himself diseased, held to be sufficient to support the inference that he had committed adultery. This appears from the judgment in Collett v. Collett (8 Month. L. Mag. 158; Notes of Cases, 14th July 1840), which reverses a decree of the Consistory Court and the Court of Arches (1 Curt. 678). It was there held that "The adultery of the husband must not be inferred from the mere fact that the wife is tainted with venereal disease, although she herself is not suspected even of adultery. The existence of the disease in the wife is consistent with the adultery of the husband, with her own adultery, and with accidental communication of the disease, and in the absence of proof that the husband was himself diseased at the time specified in the articles, the existence of the disease will not be ascribed to the husband's misconduct, even though he had on a former occasion infected his wife."

We have not found the effect of the Act we have mentioned on the decision just quoted alluded to in any of the books on the subject. But we think it should be observed that sect. 3 of that Act, by providing that "the parties to any proceeding instituted in consequence of adultery shall be competent to give evidence in such proceeding," enables women in the situation of the petitioners in Collett v. Collett and Berry v. Berry, to get into

the box, and rebut on oath the presumption that they might have become infected through improper conduct on their own part, or by accident, the existence of which was in Collett v. Collett keld to be fatal to the wife's case.

In Berry v. Berry there was no defence. But a similar case may easily be imagined in which the respondent should appear and deny that he had committed adultery. If he said he contracted the disease accidentally, that being at the very least an unusual state of things, and likewise a circumstance peculiarly within his own knowledge, would (according to the common rules of evidence), have to be proved by him. His own ipse dixit would not, it is thought, suffice. If he contented himself with a simple denial, the case would then be one of oath against oath, and under such circumstances the following remarks of a learned American writer would, it is submitted, be well worthy of consideration:Concerning the evidence which arises from one or the other, or both of the parties having venereal disease, if we reject the idea, certainly somewhat prevalent, that accident may bring the disease, when the usual cause does not exist, and if in a particular case the disease is found to have originated long after the marriage, then the conclusion is plain, that one or the other of the parties, or both of them, must have offended. Now, this being conceded, how shall we determine at whose door to lay the guilt? Often this cannot be ascertained; but in a case of this kind, consulting reason rather than specific authority, evidence should be received of the entire course of life, and the associations and temptations of the parties severally, the result of which would be that sometimes the Judge might become quite satisfied, and sometimes not, and the divorce would be granted only when he was satisfied:" (Bishop on the Law of Marriage and Divorce, II., § 633.)

As it is by no means impossible that recent petitioners, acting on the authority of Collett v. Collett, may have sued for judicial separation (on the ground of cruelty) only, when upon the facts they were able to make out a prima facie case for dissolution of marriage, we think that the effect of 32 & 33 Vict. c. 68, s. 3, on that decision, cannot be too generally known.

LEGISLATION AND JURISPRUDENCE.

HOUSE OF LORDS.

Friday, April 30.

AMENDMENTS TO THE JUDICATURE BILL.

LORD SELBORNE, on the report of the amendments to the Judicature Bill, reviewed the provisions with regard to appeals of the Act of 1873, which the present Bill suspended, and said that the more he considered the matter the more he was convinced that the Court of Appeal constituted by the Act of 1873 would have been a strong court, and was preferable to the one proposed to be formed by the present Bill. It was a point of great importance, he observed, to give strength to the court which dealt with the first appeals, which formed the great mass of appeals, and it was by the courts below that the law was built up. At the same time, the Act of 1873 provided for the rehearing of causes with the leave of the court; and there could be no doubt that in all proper cases such leave would have been granted. The Act of 1873 would have tended to discourage frivolous appeals; but he had great misgivings as to the sufficient power of the Court of Appeal proposed to be established by the present Bill to do the work which it would have to perform. He would not say much as to what was eventually to be the final court of appeal, as the Lord Chancellor had described the proposal made on that point as only provisional, but he saw no reason why the Act of 1873 should not have had a fair trial, Whatever

ment of the Inns of Court, which, though called by some "voluntary societies," were, he maintained, public institutions, because all who desired to exercise one of the most important and honourable professions in the country were compelled to become members of them, and the public interest in those societies had been recognised by numerous Acts of Parliament. Their property had been held by them from very ancient time, and their revenue had never been expended except in a manner strictly in accordance with the notion that it was possessed for public purposes. Last year he proposed that they should be united into one general body; but the Lord Chancellor then suggested that the same course should be pursued towards them as was adopted in the case of the Universities, and the present Bill was drawn up in accordance with that suggestion.The LORD CHANCELLOR was glad to learn the amended form in which the Bill was prepared, and he trusted that the Inns of Court would not con sider that legislation of that kind was proposed in any spirit hostile to them.The Bill was read a first time.

A SCHOOL OF LAW. Lord SELBORNE next laid on the table a Bill for the establishment of a school of law, where all classes might receive instruction. He observed that he had been charged with wishing to con found together the two branches of the legal profession, but his opinion was strongly in favour of maintaining the present distinction between solicitors and barristers. At the same time he thought that such an institution as a school of law would lose half its value if made exclusive