THE LEGAL HUMOURIST. OLD SAWS RE-SET. ORDER XIV. is heaven's first law. Necessity is the mother of contention. It is a wise judge that knows his own order. Of two defendants don't choose the least. No one ought to be cross-examined twice by the same jaws. For striking a jury no action lies. Do not preach when you practise. Australian Law Times. IN THE GOOD OLD DAYS. IN Miss Anna Nyas's "Stories of Early England," two amusing instances are related showing how the lex talionis, which was the law of the land in the good old days, was sometimes robbed of its victims. It would seem that the custom was that where a man committed a crime the punishment for which was the loss of a limb, if that man had only one leg, he might not be deprived of the remaining one; so that, if you were lucky enough to have only one hand, you might cut off your friend's and secure his rings with impunity. As might be expected, this humane provision was calculated to encourage legal quibbles of the most contemptible kind. One day, Miss Nyas tells us, a great hulking yokel was being tried for breaking a boy's leg in a kicking match. The fellow's defence was, that the leg must have been rotten when the lad started playing. Rubbish," said the judge, "stop thy prattling; so weak a defence have I never heard before. Thou hast not a leg to stand on; unto thee must be done as thou didst to the lad." At this up jumps the prisoner's counsel with, I prithee stay thy hand, my Lud. Thou sayest my client has no leg to stand on! Good. I grant it; and, as he has no leg, thou canst not carry out the punishment," and the baffled judge saw himself compelled to order the prisoner's discharge. On another occasion, a woman was accused of having cut her husband's head off. Acting on the advice of her lawyer, the fair young murderess pleaded guilty, but succeeded in evading the sentence of decapitation on the ground that when she did the deed, being blinded by jealousy, she scarcely knew what she was about, and that, having once lost her head, she could not lose it again! Happily, however, says Miss Nyas, cases like this seem to have been the exception, and, as a rule, if Egbert killed Edwy's father, Egbert's sire, by the picturesque working of the Eye-for-an-eye principle, was immediately put to death by an officer of the Eye Court of Justice. This was In a certain village in a western State, which rejoiced in the possession of only one lawyer, an action was commenced before Justice S., and "W.," the local attorney, retained by the plaintiff. The defendant employed counsel from the country seat, but the return day came and no lawyer appeared. Defendant, in distress, was relating his woes to a group of idlers, on the look-out for fun and mischief, when a stranger appeared, wearing a suit of black, with silk hat and gold-headed cane. one A., a "tree pedlar from a neighbouring town, a fellow of much versatility and acumen, and withal considerable of a wag. Some one of the group, seeing sport ahead, told the defendant that A. was Judge X., a great lawyer from St. Paul, and that if the judge could be prevailed upon to take his case, victory was sure. To carry out the joke, the defendant was introduced to the pseudo-judge, and explain ng the situation, besought his aid. A. condescendingly replied that, although he had long since ceased to practise in these inferior courts, he appreciated the hard situation of his would-be client, and would consent to undertake his defence. When ushered into the presence of the court, he was introduced to his honour as Judge X., of St. Paul. S., highly elated at the honour of having such eminent counsel appear in his court, at once called the case. A. arose, made a motion to dismiss, and argued with great pomposity and at considerable length, quoting pretended decisions of the Supreme Courts of the United States, and the State of Minnesota, referring to Blackstone and every other law writer of whom he had ever heard, and not omitting the most open and shameless flattery of the magistrate. When he concluded and sat down, W., the local counsel, arose to reply, whereat the justice smote the table a thundering blow, and cried, in a voice pregnant with righteous indignation, "Sit down, Sir! That is Judge X., of St. Paul. Don't you suppose he knows the law? What do you mean by attempting This case will be dismissed.". The Greer Bag. to contradict him? The COMMERCIAL FAILURES AND BILLS OF SALE. According to Stubbs' Weekly Gazette, the number of failures in England and Wales gazetted during the week ending the 10th Dec. was 143. The number in the corresponding week of last year was 159, showing a decrease of 16. number of bills of sale in England and Wales registered at the Queen's Bench for the week ending the 10th Dec. was 185. The number in the corresponding week of last year was 185, and the corresponding weeks for the three previous years 165, 186, and 225. TYPEWRITERS Bought, Sold, Exchanged, or Lent on Hire. Remingtons Ca'igraphs, Bar-locks, Yosts, Hammonds, Densmores, and the Fitch, &c. Use of machine taught free of charge to hirers or purchasers. Machines of all makes cleaned and repaired. Ribbons and sundries of every description. Documents accurately and expeditiously copied.-N. TAYLOR, Manager, National Typewriter Exchange, 74, Chancery-lane (Holborn end).--[ADVT.] LAW LIBRARY. A Digest of the Death Duties. By A. W. NORMAN, of the Legacy and Succession Duty Office. London: William Clowes and Sons Limited. THE form of this work is most singular. It is about equally divided into a digest and an index. Also it presents a summary of digest of cases. All this is preceded by an introduction in digest form of the history of the various duties. The digest itself deals first with probate duty, then with legacy duty, and lastly succession duty. To this succeed chapters on the account stamp duty, with " typical examples and a "digest of cases" under this head. Now all this shows a complete knowledge of a somewhat thorny subject; but we cannot understand why everything was not arranged in the form of a digest, so as to dispense with subdigests and an elaborate index. And, having carefully looked through the volume, we are unable to commend it in its present form, valuable and superabundant almost as the materials are. Let it be recast-incorporate into the digest all that is found in. the index and the typical and miscellaneous examples. Illustrations and examples should always follow statements of law, it being much easier to understand statements of law, or expositions of statutes, when lighted up by decided cases or "typical" illustrations. We have referred to the abundant material. Nothing, we should imagine, can have been omitted which has the slightest bearing upon any branch of the several subjects treated, and. Mr. Norman has brought to bear a wide experience of many years. If he will accept our suggestion, he will in a future edition avail himself of the assistance of a lawyer, who will suggest to him legal method. Then, we can well believe, a most excellent, convenient, and compendious digest would be the result. The Law of Marriage and Family Relations. A Manual of Practical Law. By NEVILL GEARY, Barrister-at-Law. London and Edinburgh: Adam and Charles Black. A Manual of Railway Law. By FRANCIS MONTAGU PRESTON, Barrister-at-Law. Same publishers. THESE two manuals are intended for lay use and also for the Legal Profession. They are works of a series intended to be popular; but we fail to see why they should be more popular than the general run of legal text-books except on the score of being compendious and portable. Of the two, Mr. Preston's Manual of Railway Law is perhaps the less professional and is written in more popular language with less reference to statutes and cases, but it is nevertheless a law book. The other on Marriage and Family Relations is as good a text-book on its subject as we possess. It deals very fully with marriage, the rights of property, &c., and Mr. Geary has bestowed upon it all the skill and care which he has displayed in other editorial work. We think his very convenient volume ought to become popular with the Profession, who want a reliable book which they can carry about with them into the County Courts. NEW EDITION. The seventh edition of Oke's Magisterial Formulist (Butterworths) comes out under the auspices of Mr. Harry Lushington Stephen. We are glad to observe that particular attention has been given to the drafting of Forms under the Summary Jurisdiction Act of 1879 and the Rules of 1886. Further, Mr. Stephen has adopted ordinary language so far as possible whilst giving technical expressions wherever they have acquired a statutory or other specific meaning. Mr. Stephen has evidently taken the greatest care in the revision and improvement of this work-almost indispensable to magistrates' clerks. ANNUAL. The Law Almanack for 1893. Edited by Frederick Herbert (London; T. Scott and Co., 1, Warwick-court, Holborn). This useful annual is one of the best wall almanacks to be found in solicitors' offices. It contains an unusual amount of information of the kind often wanted at a moment's notice, and, as far as we have tested it, it is accurate. There are many new features in this issue. Pavitt's Guide to the French Laws of 1889, on Nationality and Military Service, as affecting British Subjects. Stevens and Haynes, Bell-yard, Temple Bar. Probyn and Evans' Practice of the London Chamber of Arbitration. Waterlow Brothers and Layton Limited, 24 and 25, Birchin-lane, E.C. Shearman and Haycraft's London Chamber of Arbitration. Wilson and Co., 11. Royal Exchange. Effingham Shelford's Legal Property Statutes. Ninth Edition. Sweet and Maxwell Limited, 3, Chancery-lane. CRIMINAL LAW AND THE JURISDICTION OF MAGISTRATES. QUARTER SESSIONS. Abingdon, Friday, Jan. 6 Guildford, Friday, Jan. 6 Leicester, Wednesday, Jan. 4 COUNTY COURTS. SITTINGS OF THE COURTS. FOR THE WEEK ENDING Saturday, DEC. 24. Llanelly, Monday Portsmouth, Monday (Bky), at 12 Royston, Tuesday, at 10 St. Albans, Monday Saxmundham, Tuesday, at 10 Sevenoaks, Monday, at 10 Clerkenwell, Monday, Tuesday, and Wed- Sheerness, Tuesday, at 10 Sheffield, Wednesday and Thursday, at 10.30 Stockton-on-Tees, Tuesday, at 9.30 Swaffham, Tuesday, at 12.50 Swansea, Tuesday, Wednesday, Thursday, and Friday Tenterden, Monday, at 10.50 Falmouth, Monday, at 10 Frome, Tuesday, at 10 Greenwich, Friday, at 10.15 Halesworth, Wednesday, at 12.50 Tuesday, at 10 Harwich, Wednesday, at 10 Haslingden, Thursday, at 9.30 Holywell, Tuesday Honiton, Wednesday, at 11 Huddersfield, Thursday, at 10 Kettering, Monday, at 10 Lambeth, Tuesday and Thursday, at 10 Leeds, Monday, Wednesday, and Thursday, at 10 Leicester, Tuesday, at 10 Warminster, Monday, at 10.30 Wigan, Tuesday, at 9.30 Wirksworth, Monday, at 10.30 * Other sittings are specially fixed if necessary. NOTICE OF REMOVAL.- Hepburn and Cocks, manufacturers of legal and other boxes, beg to inform their customers and the public generally that through expiration of lease they have removed from 93, Chancery-lane, to 49A, Lincoln's-inn-fields. Over 100 years' reputation for quality and good value.-[ADVT.] HAYNES'S STUDENT'S GUIDE TO THE PRACTICE OF THE SUPREME COURT OF JUDICATURE; embracing the New Rules of Procedure, in the form of Question and Answer. Price 10s. 6d. HORACE Cox, Law Times" Office, Windsor House, Bream's-buildings, E.C.-[ADVT.] AT the Worcester Bankruptcy Court, on the 6th inst., before Mr. Registrar Allen, Richard Homes, solicitor, and clerk to the Board of Guardians, The official receiver: Ledbury, attended for his public examination. (Mr. Luke J. Sharp) conducted the examination, Tree appearing for the debtor. The debtor's statement of affairs showed gross liabilities amounting to £6952 9s. 1d., with assets of £8. From the debtor, Mr. Sharp elicited that he was co-trustee with his brothers under his father's will. and it was in that capacity that judgment had been obtained against him in the Chancery Court for a sum of £6381. His mother had a life interest" in the estate after his father's death, and he had the management of the estate. But all the money did not pass into his hands. Some went into the hands of one of his brothers, and when the latter was asked for the money he filed his petition in the Bankruptcy Court. The brother owed the estate a considerable sum of money, but debtor could not say to what uses he put what he received. When asked what became of the proceeds of a sale at his father's death, the debtor said his brother bought a great deal at the sale and did not pay for it. and his mother was deprived of the income of that part of the proceeds. The plaintiffs in the action in which judgment had been entered against him were three sisters and a brother, beneficiaries under the will. About 1886 he was called upon to file an account of the estate. He filed one, but when the account was presented to the chief clerk of the Chancery Court he disallowed items- payments amounting to something like £6000. Debtor at first said he could not give a general idea what the payments were, but he maintained that they were all made on account of the estate. He could not say whether he received vouchers for the payments. The Registrar asked the debtor if he The. could give any explanation of the disallowance of these amounts ? debtor said he could not, but the Official Receiver read the chief clerk's certificate, which stated that it was because the debtor had neglected to give explanations or produce vouchers.--Debtor said he did what he could to get the account passed, and he went to London twice to see the chief clerk, but when he (debtor) presented the clerk with any vouchers, the latter pushed them on one side. Debtor went on to say he could not give an explanation of the items disallowed. He thought he identified one payment of £1000 as the discharge of a note of hand for that amount given by his father. The note of hand was one of the vouchers he produced, and that was rejected why he did not know. Part of the payments were made by cheque. For the others there would be vouchers existing, but he could not tell where. He did not think he kept a separate banking account for his father's estate. The Official Receiver pressed the debtor to say if there was any reason why the account should be disallowed, and the debtor said the estates of his father and mother got inextricably confused because of the deferred payment of some of the income of the estate, and the Court of Chancery completely ignored his mother's estate, and said they would have nothing to do with any account embracing it. By reason of the nonpayments he had to make advances to his mother and sister to keep them going out of his own pocket. He could not say how much. At that time he had clients, but he did not think his income exceeded £300 a year. The Court discussed the best method of getting the Chancery account, and the Official Receiver gathered from the debtor that some of the vouchers necessary for the passing of the account were in a "kettle of fish" form among his numerous papers.-The Official Receiver thought the debtor ought to give his assistance to the clearing up of the account, and if there were not complete vouchers to account for the whole of the payments, admission of debt should be made for the balance. There must be in existence somewhere an account giving the details of the disallowances, which were only specified in the Chancery Court certificate in numbered items. No one could possibly supply a satisfactory account to the Chancery Court without the aid of the debtor, and it would be unreasonable to ask for the close of the public examination. The Official Receiver added that he was not bound by the order of the Chancery Court that the amount was due from the debtor, but he could make inquiries with the view to avert the order. The debter, as a professional man, ought to have the information in his books. Tree thought the duty of proving the specific items of the total charge against the debtor devolved upon the creditor.-In reply to some further questions the debtor said he had not been committed twice in connection with this order of the Chancery Court, but he admitted that orders for commitment had been issued but not served, and said they had reference to some costs that he was unnecessarily put to.-Mr. Sharp asked for an adjournment for a month to get an opportunity of clearing away the claim of £6000. Mr. Sharp asked the registrar for leave to give short notice to the debtor of an intention to attach his salary on behalf of the creditors, and also asked that the debtor should be adjudicated bankrupt, pointing out that the matter had been before the court since September, and there was still no proposition of a composition.-Tree urged the registrar not to make an order of adjudication until the claim for £6000 had been decided. If it were excluded it would entirely change the prospects of a composition. It would make an enormous difference to the estate. The debtor would then only owe some £800, and a composition would be more practicable. There was no urgent necessity for an adjudication on the part of the creditors. Mr. Sharp replied that the debtor had once anticipated his salary, and he might do so again. Tree submitted that no harm would come to the creditors if the adjudication were deferred. The Registrar mentioned the amount of the total liabilities, and said that apart from the large claim they reached £800. At the time of the petition the debtor had. £8 in his hands, which he had omitted to pay over and shortly before his failure, on his marriage, he deprived his creditors of his assets by assigning them to his wife. He would therefore make the order of adjudication. From the debtor, the Official Receiver elicited that his total salary : was £192 a year. He received £21 cach quarter. and the balance each April. He had paid into the bank since his failure £12, the rents of property assigned to his wife which would otherwise have gone to his creditors.-The Registrar said the debtor anticipated his salary in September when he was being pressed, shortly before the creditor's petition was filed against him.---Mr. Sharp indicated that it was his intention to apply to the court for an order of attachment upon the annual salary, and upon the Christmas quarter's salary for the amount that was in the hands of the debtor at the time of the petition, which he had not handed over. The Registrar granted the leave the official receiver applied for, saying the County Court judge would decide on the merits of the application. The public examination was adjourned till Jan. 17. ON the 12th inst., in Bankruptcy, before Mr. C. A. Pope, Assistant Official Receiver, an adjourned first meeting was held under the failure of E. T. Tadman, a solicitor, of Gray's-inn-square, who was recently struck off the rolls. Accounts have been filed showing liabilities amounting to £8690. with assets £7595. The debtor attributes his failure to the falling off in his business, to bad debts, and to money being tied up.-W. A. Colyer, Rake, Edward Kennedy, H. Tooler, and J. J. Smith appeared in the different interests.--Colyer stated that he had received a telegram from the debtor to the effect that he was suffering from a severe cold and was quite unable to travel. The Assistant Official Receiver said the debtor must know very well that there ought to be a medical certificate. Upon the question of the appointment of a trustee. Smith said that he represented a creditor for £5000 whose proof had been lodged late, and he desired to have a voice in the matter.-After a brief discussion, an adjournment was taken until the 22nd inst., so that the creditors might be fully represented. AT the Essex Assizes at Chelmsford, on the 7th inst., Hawkins. J. sentenced George Gregory, a solicitor, to five years' penal servitude for uttering a cheque, well knowing it to be forged, for £12 10s.. at Saffron Walden. Gregory had previously been convicted of a similar offence. IN our last issue we reported proceedings at Bow-street against Mr. St. Bernard Wilson. It was then stated that the evidence was gone into at great length on both sides. We are informed that Mr. Besley, counsel for Mr. Wilson, called two witnesses on his behalf, and was about to call a number of other witnesses, when Mr. Lushington stopped the case, saying he was quite satisfied that there were no grounds for the charge. GENERAL INTELLIGENCE. A CHAMBER OF ARBITRATION FOR LIVERPOOL. The proposal now under consideration by the Liverpool Chamber of Commerce, that a Chamber of Arbitration should be formed in Liverpool on the lines of the one recently started in London, is (says a correspondent of the Liverpool Mercury) one which on the face of it could give rise to no difference of opinion; but the result of inquiries amongst the commercial community tends to show that there is by no means unanimity in favour of the proposal. There are various reasons for doubting the advantage of such a chamber, the chief one being the want of the judicial element in arbitration. Suitors at our courts have the advantage of the legallytrained mind, with its ability to grasp the points at issue and its freedom from anything like that bias so often alleged against arbitrators in the numerous cases of appeals from their decisions reported. Our High Courts of Justice are generally admitted to be very efficient, and, as regards the Admiralty Division, fairly cheap and prompt. It is in the Chancery Division that the great delays occur; but this court deals with but few commercial cases. The effect of deciding any cases involving vital principles of law would be to render our courts very antiquated in their precedents, with a result that in cases coming under their notice they would give judgments unjust in view of more modern practice, and calculated to send a shiver down the back of the commercial community; also, there would probably be confusion ensuing owing to such decisions tending to upset some commercial custom in course of establishment. If the court is to permit the employment of counsel and solicitors the cost will not be much less than by going to the high courts. Certain companies in this city could tell astonishing tales as to the cost of some of their arbitration cases. The past experience of arbitration in this city has not been favourable. Some few years ago, when this method of settling disputes was much more in vogue, it was found that arbitrators (except a few much sought after ones) had an unfortunate and injudicious tendency to decide on the basis of "splitting the difference," a proceeding which, however advantageous to the settlement of commercial haggling, does not recommend itself to the minds of suitors anxious for their rights. While it is generally admitted that arbitration is often desirable in cases arising out of matters of fact, and in accordance with some previously established principle between members of some particular trade, it might be contended that all necessary facilities exist for the settlement of such disputes, as, for example, by the arbitration committee of the corn, cotton. and other trades. On the other hand, it should be remembered that the establishment of an arbitration court, which would be without these drawbacks, would obviously be of advantage in respect of the possibilities of increased cheapness, simplicity, promptitude, and the probability of having disputes decided on the points at issue, and not on some side wind involving a mere legal technicality not germane to the dispute. Arbitration is always advantageous in theory, but liable to defects in its practical application; and it would be well, before taking any action, to wait and see the result of the working of the London court. In any case the agitation cannot fail to do good if it forces the lawyers to mend their ways, especially in Chancery cases. In this connection it is interesting to note the pious resolutions on the subject of our local Law Society, and it is to be hoped that the conduct of our courts on more business-like principles will take away all cause of offence from the commercial community. SOME AUSTRALIAN LAW CASES. (Before HOOD, J.) JACKSON T. JACKSON. Marriage Act 1890, sect. 74-Domicile-Jurisdiction-Desertion. A husband and wife were marsied in Victoria, and afterwards went to New South Wales, where they became domiciled. Then the husband deserted the rife, he remaining in New South Wales, and she afterwards coming to Victoria, where she resided ever since. Held, that the court had no jurisdiction to entertain the petition. The Marriage Act 1890 only gives the court jurisdiction to entertain petitions from persons who are at the time of the suit domiciled in the colony. The word "domiciled" in sect. 74 of that Act is used in its technical sense and not as merely equivalent to resident. The mere fact of a marriage being celebrated in Victoria gives the court no jurisdiction to dissolve a valid marriage. A wife domiciled in a foreign country and then deserted by her husband cannot come to Victoria and acquire a domicile so as to divorce her foreign husband. PETITION for divorce. The facts appear sufficiently in the judgment. HOOD, J. Petition by wife against husband for divorce upon the grounds of (1) desertion and (2) habitual drunkenness and leaving the wife without means. The parties were married in 1872, at Guildford, in Victoria, and lived together at various places in this colony till 1883. In that year the respondent was in monetary difficulties, and the petitioner went to her parents at Hay, in New South Wales, where her husband joined her in 1884. They lived together there till Oct. 1886, when he left her in order to seek for work, and she has never seen him since. For two years he corresponded with, her, sending her small sums of money, and his last letter was in 1888, when he stated that he was going to the Grey Grange, in New South Wales. She next heard of him recently at Broken Hill, New South Wales, where he had expressed his intention of going when he left his wife in 1886. In Feb. 1890 the petitioner returned to Melbourne to earn her own living and has resided here since, making it her home and working to support herself. Upon the evidence I was not satisfied as to the second ground of the petition, but it was proved that since 1886 the husband had wilfully deserted his wife without just cause or excuse and left her continuously so deserted during three years and upwards. This would entitle the petitioner to the relief she sought, but for a difficulty, arising out of the fact that the respondent has since 1884 abandoned his domicile in Victoria and acquired another in New South Wales, and the questions arise whether, under these circumstances, this court has any jurisdiction. Sect. 74 of the Marriage Act 1890, under which this petition is brought, provides that any married person who at the time of the institution of the suit shall have been domiciled in Victoria for two years and upwards may present a petition, and that a domiciled person shall, for the purpose of this section, include a deserted wife who was domiciled in Victoria at the time of desertion, and such wife shall be deemed to have retained her Victorian domicile, notwithstanding that her husband may have, since the desertion, acquired any foreign domicile. It was first contended in support of this petition, that the period of two years, referred to as the length of domicile required, might be any two years immediately prior to the presentation of the petition, and that, as these parties had after marriage been living here for two years, therefore the case came within this section. There is some force in the argument having regard to the phraseology of sub-sections (c) and (d): (see Hodgkinson v. Hodgkinson (14 A. L. T. 14), but I do not think it correct. In my opinion the Act only gives the court jurisdiction to entertain petitions from persons who are at the time of the suit domiciled in this colony. The use of the words at time of the institution of the suit" points to this conclusion, as they would be superfluous in any other view, and this seems the natural interpretation of the section, remembering that as a general principle jurisdiction in matters of divorce depends upon the domicile of the parties to the marriage at the time of the commencement of the proceedings for divorce (per Lopes, J. in Goulder v. Goulder (1891) P. D., at p. 243). It was then contended that the word "domiciled " was not used in any technical sense, but was merely equivalent to "resident," and that as the petitioner had resided there since Feb. 1890, she was within the section. This, I think, is clearly wrong. When, in an Act like this, treating of a special subject a word having a special meaning is used, it should be taken to have been used in that meaning, unless a very plain expression of a contrary intention appears. So far from any contrary intention appearing, however, the application of the word in the end of the section shows that it is used in its technical sense and in none other. It was next urged that, as this marriage was celebrated in Victoria, this court could dissolve it apart from any question of domicile. But this argument gives the go-by to the section altogether, which cannot be done, as it is upon that section that the jurisdiction of the court to entertain the petition depends. And, apart from this view, the mere fact of this being the place of contract would not give jurisdiction to dissolve a valid marriage, though the matter of the validity of a marriage can be inquired into where that marriage took place (Simonin v. Wallace, 2 Swa. & Tr. 67). Lastly, it was argued that this petitioner has acquired a domicile here since 1891 apart from that of her husband, and has thus the right to bring this suit. The general principal that the wife's domicile is necessarily that of her husband is clear and well settled by authority. That principle is recognised by this same sect. 74, when it provides that a wife domiciled in Victoria at the time of desertion shall be deemed to retain her Victorian domicile although the husband may acquire a foreign domicile. This provision of the Act would imply that in other cases the wife's domicile would follow the foreign domicile of her husband, and that she could not get relief under this section. Mr. Neighbour, however, for the petitioner, contended that this principle, as to the wife's domicile following the husband's, was not of universal application, and he cited several authorities, which he urged supported his view. The first was a decision of this court in Ho-a-mie v. Ho-a-mie (6 V. L. R. (I. P. & M.) 113), where it was held that there was jurisdiction upon facts somewhat like the present. But that petition was presented under the Marriage Act of 1884, and Higinbotham, J. based his judgment upon the exclusive words of that statute. Stawell, C.J., however, apparently assumed this point and used language that may support the contention for the peti tioner here, and he relied upon the decisions in Santo Teodoro v. Santo Teodoro (5 P. D. 79) and Deck v. Deck (2 Swa. & Tr. 90). In Deck's case the parties were married in England, but the husband was domiciled in America, and had there committed bigamy, and the court granted the wife a divorce. The ground of the decision, however, was that both parties were English and therefore bound by the English divorce law, and the judgment was founded upon the obligation existing in every natural-born English subject of allegiance to the English Crown and obedience to the English law. Moreover, great stress was laid in that case, as in Ho-a-mie v. Ho-a-mie, upon the very wide words of 20 & 21 Vict. c. 85, which enabled "any wife" to present a petition, And the decision itself has been questioned by Brett, L.J. in Niboyet's case (4 P. Div. 18). The facts. too, differ from the present in shat the wife there had always resided in England, and neither this case nor Ho-a-mie's case I think support the proposition that a wife domiciled in another land and deserted by her husband then can come here and acquire a domicile so as to come under sect. 74 of our Marriage Act. Santo Teodoro's case is also not in point in my opinion, for it seems to me a decision upon the particular facts. A divorce was granted there on the petition of the wife, the husband being a foreigner, but she had only married on the condition that she should always have her home in England, and should reside there six months in the year, and this condition had been observed. In the judgment Sir R. J. Phillimore says, "The contract is made in England, there is long cohabitation in England; the husband has been served," but this must be taken in conjunction with the facts of the case, and I think it only amounts to a finding as a fact that the matrimonial domicile was in England, especially considering that the same learned judge decided two years later Niboyet v. Niboyet (3 P. D. 52). There the wife was a British subject at the time of marriage, the husband being a Frenchman, and Sir R. J. Phillimore held that there was no jurisdiction. This was a considered judgment in which the previous decisions are referred to, and there is no suggestion anywhere that the same point had been decided by the same judge within two years, and in addition he quotes a passage from Firebrace v. Firebrace (4 P. D., at p. 67), where Sir James Hannen states that "The domicile of the wife is that of the husband, and her remedy for matrimonial wrongs must usually be sought in the place of that domicile." This shows, I think, the view held on this question by the judge who decided Santo Teodoro's case, and although his decision in Niboyet v. Niboyet was reversed on appeal (4 P. D. 1), Brett, L.J. dissenting, the appellate court mainly went upon the words of 20 & 21 Vict. c. 85, like Deck v. Deck and Ho-a-mie v. Ho-a-mie; and Lord Selborne and Lord Blackburn have not given this appellate decision unqualified approval. (See Harvey v. Farnie, 8 App. Cas. 43.) Another case cited for the petition was Benioni v. Wallace (2 Swa. & Tr. 67). But that was a suit for nullity of marriage, and it is pointed out in the judg. ment that if the marriage were valid the wife's domicile would not be English, her husband being a foreigner. The principal case, however, relied upon was Le Suer v. De Suer (1 P. D. 139), where the point is apparently expressly decided. In the judgment Sir R. J. Phillimore said, at p. 142: "Upon the whole I am disposed to assume in favour of the petitioner, the correctness of this opinion, that desertion on the part of the husband may entitle the wife, without a decree of judicial separation, to choose a new domicile for herself, and and in coming to that conclusion I am aware that I am going a step further than judicial decisions have as yet gone." But the cases of desertion which that learned judge was then deciding were evidently those suggested by Lord Cranworth in Dolphin v. Robbins (7 H. of L. Cas. 390), of husband abjuring the realm, deserting his wife, and establishing himself permanently in a foreign country, or committing felony and being transported (see 1 P. D. at p. 141), and such cases would be covered by the last clause of our 74th section. In the present case the husband deserted his wife in New South Wales, where they were then domiciled, and there seems to me to be no authority which decides that a wife in such circumstances is entitled to go to another land and there acquire a domicile So as to divorce her foreign husband. The decision of Brett, L.J. in Niboyet v. Niboyet is directly opposed to such a view, for he says that "the court must be a court of the country in which the husband is at the time domiciled, because it is incontestable that the domicile of the wife, so long as she is a wife, is the domicile which the husband selects for himself, and at the commencement of the suit she is ex hypothesi still a wife: (4 P. D. at p. 14.) Although this was the dissenting judgment the difference of opinion arose not on this question but upon the interpretation of the English Act, and the reasoning upon which this judgment is founded, and the authorities referred to in it, appear to me to show that this court has no jurisdiction in the present case. It is possible if this objection could be cured and the wife could acquire domicile here that the difficulty which caused the rejection of the petition in De Suer v. De Suer. viz., want of jurisdiction over the foreign husband-might be met by the express words of our Act. That point I need not consider, as I must dismiss the petition on the other ground. The question in this case is an important one, and I should have referred it to the full court only that the petitioner, to save expenses, desired my decision, leaving her to appeal if she thinks proper. IN THE SUPREME COURT. Sept. 7, 8, and Oct. 14. (Before A'BECKETT, J.) MORLEY . GORE AND OTHERS. Companies Act 1890, ss. 200, 242, 244, 303, 309-Mining companyWinding-up-Forfeiture of shares- Sale of forfeited shares-Calls-Extraordinary meeting-Company not in debt. In Aug. 1890 shares in a no-liability mining company were forfeited for nonpayment of calls and purchased by the company, and under the authority of a resolution the directors allotted some of the shares among the remaining members, and the others remained unallotted. Two calls were subsequently mode on the shares, the 31st and 32nd, and after the date on which the 32nd call was due, a number of shares were sold by auction, some of them being the unallotted shares, and the others had been forfeited for nonpayment of the 31st call. The shares were sold with a condition that these shareholders be free from the 32nd and other calls which were not paid by the purchasers. Held, that the condition was legal, and that the purchasers acquired rights equal to those of other shareholders who had satisfied all their obligations to the company on the day of sale. The company on the day of an extraordinary meeting owed a debt to a bank to which it had given on the same day and prior to the meeting cheques which were taken as a conditional payment and which became absolute on the following day. Held that the company was on the day of the extraordinary meeting “not then in debt" within the meaning of sect. 343 of the Companies Act 1890. Semble, it is not sufficient to upset a voluntary winding-up for noncompliance with sect. 303, to show that some one small liability having the legal character of a debt subsisted at the date of the resolution. ACTION to avoid the rights of purchasers of shares in a mining company and to set aside a voluntary winding-up. The facts sufficiently appear in the judgment. Higgins and Mitchell for the defendants. Cur. adv. vult. A'BECKETT, J.-This is an action by John Lister Morley, a shareholder in the Midas Extended Gold Mining Company, No-Liability, suing on behalf of himself and all persons who became shareholders before the 15th Nov. 1890. The defendants are Henry Gore and John Wilson, the liquidators in a voluntary winding-up and the company. A representative order has been obtained authorising the voluntary liquidators, who are also shareholders, to defend on behalf of themselves and all persons purporting to be shareholders other than the shareholders on whose behalf the plaintiff sues. The plaintiff seeks a declaration avoiding all rights acquired by purchasers of shares on this 15th Nov., and a declaration that the resolution for voluntarily winding-up was ultra vires and void on the ground that it was carried by the votes of those purchasers, and also on the ground that the company was in debt when the resolution was passed. In Aug. 1890 the company held 7967 shares which had been forfeited for nonpayment of calls and purchased by the company. A resolution was then passed authorising the directors to allot those shares to the remaining shareholders and to deal in the best interest of the company with those which remained urallotted. A number remained unallotted. A call (the thirty-first) was made falling due on the 10th Sept. 1890, another call (the thirty-second) was made falling due on the 12th Nov. On the 15th Nov. 1890 13,900 shares in the company, some of which had been forfeited for nonpayment of the thirty-first call and the remainder consisting of the unallotted shares before mentioned, were sold by public auction. The auctioneer stated at the sale that these shares were sold free from the thirty-second and other calls, and the thirty-second call was not paid by any of the purchasers. The plaintiff's contention is, that under sub-sect. 5 of sect. 309 of the Companies Act 1890 all the shares so purchased became forfeited for nonpayment of the thirty-second call and that the company could not legally sell any shares free from the obligation of paying calls which had been made upon them, and which had not in fact been paid. This contention is based upon sect. 200 of the Act declaring that every person in whose name a share shall be registered shall be liable to contribute the amount from time to time remaining unpaid on such share. It is urged that this section requires an actual contribution in money or money's worth to the funds of the company to the extent of every call made upon a share before the holder can. in respect of that share, exercise the rights of a I shareholder or stand upon an equality with other shareholders, and that this applies not only to shares acquired and held in the ordinary way, but to shares sold on a forfeiture by the holder, and to shares which after forfeiture have been bought in by the company, and afterwards sold to the public. I think that sect. 200 cannot have this effect with regard to the two last descriptions of shares. Sects. 242 and 244 would be unworkable if the persons to whom shares were offered for sale by the company could only buy subject to an obligation to pay up all calls which had been previously made and not paid on the shares offered for sale. The argument for the plaintiff was necessarily pushed to the extent of saying that in the ordinary case of sale on forfeiture for nonpayment of a call, no one could purchase who was not prepared to pay as much as the call for which the share had been forfeited. A sale on these terms would not be likely to be effected. The shareholder who in this case had paid thirty calls, does not think it worth his while to pay the thirty-first, and lets his share go for it, yet the company would have to ask one of the outside public to pay more than its shareholder would pay. Of course inere impecuniosity often necessitates the abandonment of shares believed to be valuable, but this is not ordinarily the case. I cannot suppose that the Legislature intended to put a limit upon the sale of forfeited shares, which would in most instances make sale impracticable. Turning to the other description of shares which have been bought in by the company, and which may have been held by or in trust for the company for years during which a succession of calls has been made, as to these shares also it is contended that a purchaser can only buy subject to the obligation of paying up all calls not actually paid, as otherwise the conditions of sect. 200 will not be fulfilled with respect to them. I think that the requirements of sect. 200 may be held to be satisfied by treating the company as having for the purposes of sale paid up the calls due on them looking to the price to be paid by the purchaser as an equivalent for the calls thus discharged. It may reasonably be said that while the company hold shares upon which calls are made the company shall as regards purchasers be deemed to have paid them. As was pointed out by Webb, J. in Moore v. Wheal Bjerkerno Tin Mining Company, No-Liability (17 V.L.R., at p. 685): "The circumstance that the shares were held by the company is a reason why they should not take the money for the payment of the call, as it were out of one pocket and put it in another." I base my judgment, however, on the ground that the Act evidently intends that a company shall have power to sell its shares and does not directly impose any conditions as to the price at which it shall sell them, and that this power would be so restricted as to be practically useless if sect. 200 of the Act were to govern the terms upon which sales were to be made by the company. have not to deal with a case in which a purchaser buys knowing that the calls are unpaid and the conditions of sale are silent as to the obligation to pay the calls, but with one in which the company has sold expressly upon the condition that the purchaser shall be free from the obligation to pay the calis. It is said that the company could not legally sell on this condition, aud that the purchasers who bought on this condition have not acquired the rights of shareholders. I hold that the condition was legal, and that the purchasers became shareholders with rights equal to those of other shareholders who had satisfied all their obligations to the company on the day of sale. The result of the sale in the present case has been to make over the largest interest in the company to persons who have paid a merely nominal purchase money; but, as the sales are not impeached as fraudulent, I must take them to have been made in good faith for the benefit of the company, though they were, in fact, injurious to the then members of the company. The second branch of the case turns upon sect. 303: "When at an extraordinary meeting of the company which shall not then be in debt, twothirds of the shareholders shall have passed a resolution requiring it to be voluntarily wound-up, it may be wound-up without resort to the court." It is said that this company was in debt on the 27th Feb. 1891, when the resolution for voluntary winding-up was carried, and therefore that the resolution was invalid. The plaintiff relies upon the existence of two debts. The first, a bank overdraft. By the pass-book put in, it appears that the overdraft on the 27th Feb. was £181 12s. 4d., which was discharged on the 28th by a credit of £263 6s. 8d., entered as Head Office." From other evidence it appears that the company's account, which was kept at the Ballarat branch of the Union Bank, was fed by payments made to its credit at the head office of the bank in Melbourne, which was transferred to the company's credit at the Ballarat branch. That on the morning of the 27th, before the meeting was held, a sum of £238 6s. 8d. was paid to the credit of the company in Melbourne, but that nearly all of it consisted of cheques which, according to the printed notice on the pay-in slip, were not to be available until collected. It does not appear that any of these cheques were dishonoured, but by taking the cheques the bank had certainly not released the debt due by the company on its overdraft. The company did in fact owe a debt to the bank when the resolution was passed but it had given to the bank that which had been taken as a conditional payment which became absolute the next day, and by virtue of this act done before the meeting the debt which existed at the time of the meeting was on the following day discharged. In that state of affairs I hold that at the time of the meeting the company was not in respect of this liability to the bank a company "in debt" within the meaning of sect. 303. The other alleged debt is £3 due for a week's wages to Mr. Hocking, the mining manager, who appears by resolution of the 17th Sept. 1890 to have been appointed mining manager at £3 a week. There is no direct evidence of any employment of Hocking in this capacity at the date of the resolution, or that any debt was due to him at that date. I am asked to infer its existence from figures appearing in the company's cash book and bank pass-book. In the former there is an entry under date the 18th Feb. "Wages, Hocking, £6." In the bank pass-book there are entries "Jacob Hocking, £6," on the 9th Feb.; J. Hocking, 46, on the 23rd Feb. "J. Hocking, £6." on the 3rd March. According to the pass-book since the 26th Nov. 1890 Hocking had received payment in cheques of £6. There is no record of any payment of £3 to him after that date. From these figures I am invited to draw the inference that on the 27th Feb. more than a week had passed since Hocking had been paid, and that therefore £3 at least was then due to him for a week's wages. It is for the plaintiff to prove his case. No reason for not calling Hocking has been shown. It may have been that the terms of his engagement were altered, and that he was employed as he certainly was paid by the fortnight. I have not evidence which proves to my satisfaction that a debt was due to Hocking at the date of the resolution. If, however, I were forced to come to this conclusion I should also be forced to conclude that the usual time for payment of the debt had not arrived, and that it was paid in due course shortly after the resolution. On this state of facts I think the voluntary winding-up ought not to be avoided. It should not. be enough to upset a voluntary winding-up for non-compliance with sect. 303 to show that some one small liability having the legal character of a debt subsisted at the date of the resolution, no matter what might be the circumstances under which it then remained undischarged. The words of the Act not then in debt " do not appear to me to necessitate this result. On both grounds of action I am in favour of the defendants, and give judgment for them with costs. (To be continued.) HEIRS-AT-LAW AND NEXT OF KIN. CORSON (James Hamilton) is requested to communicate respecting a legacy to which he is entitled with Messrs. Fell and Armstrong, solicitors, 46, Queen Victoria-st. ELLIGETT (Sarah Ann), formerly of 25, Finsbury-circus, late of 22, Hickling-st, Rotherhithe, Kent, widow. Her next of kin to send in. by Jan. 13, the particulars of their claims to Messrs. Beaumont, Son, and Rigden. 33, Chancery-la, solicitors, agents for Paine and Brettell, solicitors, Chertsey, Surrey. UMNEY (Ann Mary), 15, Villiers-st, Leamington Spa, Warwickshire, widow. Her next of kin to send in, by Jan. 3, the particulars of their claims to Mr. C. B. Roche, solicitor, Daventry. WILLIAMS (Charles), late of Cardiff, the husband of Elizabeth Mary Williams (formerly Worner, whose maiden name was Genge), who left England in 1863, shortly after his marriage, as steward on board an American vessel. If living, or if he died after May 21, 1884, his legal personal representatives to come in, by Jan. 16, at the chambers of Mr. Justice Stirling, and prove their claims (if any) to the fund in court In the matter of the trusts of the settlement executed on the marriage of Edward Genge and Grace Ann Pope." Jan. 27, at the said chambers, at twelve o'clock, is the time fixed for hearing and adjudicating upom such claims (if any). APPOINTMENTS UNDER THE JOINT-STOCK WINDING-UP ACTS. BUILDING SECURITIES COMPANY LIMITED.-Petition for winding-up to be heard Dec. 17, before the Court sitting at the Royal Courts of Justice, Strand. Spreat and Bullivant, 27, Nicholas-la, Lombard-st, solicitors for the petitioner. COUNTY HAIL STORM INSURANCE COMPANY.--Creditors to send in, by Jan. 11, their names and addresses and the particulars of their claims, to Mr. J. W. Chesshyre, 60. Fore-st, Hertford, Herts, a liquidator of the company. EDGBASTON BREWERY COMPANY LIMITED.-Petition for winding-up to be heard Dec 17. before the Court sitting at the Royal Courts of Justice, Strand. Wellborne and Son, 17, Duke-st, Southwark, solicitors for the petitioners. FERN MANUFACTURING COMPANY LIMITED-Petition for winding-up to be heard Jan, 9, before the Lancashire County Court sitting at the County Court-house, Blackburn, at eleven o'clock. Whitaker and Hibbert, Deardengate, Haslingden, solicitors for the petitioner. Notices of intention to appear on the hearing of the petition must be signed by the person or firm. or his or their solicitor (if any), and inust reach the above-named not later than six o'clock on Jan. 7 HOLTON HILL ESTATE COMPANY LIMITED.-Creditors to send in, by Dec. 31, their names and addresses and the particulars of their claims, and the names and addresses of their solicitors (if any), to Mr. C. Clarke, Cambrian-chmbrs, 12, Westgate-st, Cardiff, Glamorganshire, the liquidator of the company. JORDAN AND CO. LIMITED.-Creditors to send in, by Jan. 31. their names and addresses and the particulars of their claims, and the names and addresses of their solicitors (if any), to Mr. A. Wells, 67, Elder-st, Brighton, Sussex, the liquidator of the company. LONDON AND HOME COUNTIES FREEHOLD LAND CORPORATION LIMITED.--Petition for winding-up to be heard Dec. 17, before Mr Justice Williams. Francis and Johnson, 26, Austin Friars, solicitors for the petitioners. NATIONAL FINANCIAL CORPORATION LIMITED.-Petition for winding-up presented by E. Maas, 22, Billiter-st, to be heard Dec. 17, before the Court sitting at the Royal Courts of Justice, Strand. E. Betteley, 14, Finsbury-circus, solicitor for the petitioner.-Petition for winding-up presented by the United Kingdom and Foreign Investment and Finance Company Limited, of Crown-et. Old Broad-st, to be heard Dee. 17, before Mr. Justice Williams. Francis and Johnson, 26, Austin Friars, solicitors for the petitioners. NORTHERN EDUCATIONAL TRADING COMPANY LIMITED.-Petition for winding-up to be heard Dec. 30, before the Court sitting at the Courts of Justice, York, at ten o'clock. B. Dent, St. Helen's-sq, York, solicitor for the petitioner. Notices of intention to appear on the hearing of the petition must be signed by the person or firm, or his or their solicitor (if any), and must reach the above-named not later than six o'clock on Dec. 29. PATENT COMPOSITE BLOCK ROAD AND PAVING COMPANY LIMITED.-Creditors to send in, by Jan. 19, their names and addresses and the particulars of their claims, and the names and addresses of their solicitors (if any), to Mr. C. W. Slade, Centralchmbrs, Stow Hill, Newport, Mon., the liquidator of the company. F. S. Dauncey, Albion-chmbrs, Newport, Mon., solicitor for the liquidator. QUEEN ANNE AND GARDEN MANSIONS LIMITED.-Petition for winding-up to be heard Dec. 17, before the Court sitting at the Royal Courts of Justice, Strand. H. C. Barker, 8, Union-ct, Old Broad-st, solicitor for the petitioner. UMTIMULINI SYNDICATE LIMITED.-Creditors to send in, by March 1, their names and addresses and the particulars of their claims, and the names and addresses of their solicitors (if any), to Mr. D. Macdonald, 60, Watling-st, one of the liquidators. WEST COAST TRADING COMPANY LIMITED. Petition for winding-up to be heard Dec. 17, before the Court sitting at the Royal Courts of Justice, Strand. Taunton and Dade, 6, Copthall-avenue, London-wall, solicitors for the petitioners. WALKER AND HACKING LIMITED.-Creditors and other persons having any claims or demands against the above-named company, or its liquidator, George Yates, of 15. Wilson-st, Bury, Lancashire, which have not yet been paid by the said G. Yates, to send in, by Jan. 10, the particulars thereof to the liquidator at the office of his solicitors, Messrs. P. and J. Watson, 9, Broad-st, Bury, Lancashire. WILLIAM LEVETT AND CO. LIMITED, registered in 1882. the Old Company."Creditors (if any) still remaining outstanding, to send in, by Jan. 31. their names and addresses and the particulars of their claims, to Messrs. J. Holland and G. Haynes, the liquidators, at the offices of J. LI. Byrne and Co., chartered accountants, $1, Gracechurch-st. Loxley, Elam, and Gardner, 80, Cheapside, solicitors for the Liquidaters. |