158

Mercantile Law-First Report of the Commissioners.

that many useful enterprises calculated to pro- or servant), Lord Eldon appears to have conduce benefit to the public and profit to those sidered that such contracts might exist without who engage in them, are of such magnitude constituting a partnership, provided, of course, that no private partnership can be expected to that they are made in good faith and are not provide the funds necessary to carry them into partnerships in disguise; and in Pott v. Eyton, effect, or to have the means of superintending 3 Common Bench Reports, page 32, Lord Chief and managing them, of which docks, railways, Justice Tindal expressed an opinion, that it and extensive shipping companies may be made no difference whether the money was taken as examples. And there are others of a received by way of interest on money lent, or more limited character, from which benefit to wages, or salary as agent, or commission on the humbler classes of society may be expected sales. But it appears to your Majesty's Comto accrue, such as baths and washhouses, missioners that in practice they would be atlodging-houses, and reading-rooms, to the tended with so many difficulties and with so establishment of which by large capitalists many results, which the contracting parties there is little inducement. These two classes would probably consider very objectionable, of undertakings it may therefore be desirable that your Majesty's Commissioners do not to encourage, by limiting the liability of those expect they will ever be extensively made. who embark in them. But with regard to In the report of the Committee of the House both, your Majesty's Commissioners think of Commons on the Law of Partnership, dated they should be subjected to some previous in- 8th July, 1851, it was recommended "That quiry as to the means of carrying them into power be given to lend money for periods not effect, and the prospect of benefit to the pro-less than twelve months, at a rate of interest moters and the public. With regard to those varying with the rate of profits in the business undertakings the execution of which involves in which such money may be employed, the an interference with the rights of property, the claim for payment of such loans being postsanction of Parliament always has been and poned to that of all other creditors; that, in still ought to be required. With regard to such case, the lender should not be liable be others, the privilege of having a limited lia-yond the sum advanced; and that proper and bility may be granted by charter; and for the adequate regulations be laid down to prevent purpose of regulating the granting of charters, fraud." your Majesty's Commissioners recommend that a board be established to decide upon all applications for them; and this board should require, in all cases, compliance with certain fixed regulations.

As to the expediency of adopting that suggestion, your Majesty's Commissioners, who concur in the residue of this report, are not agreed in opinion.

With regard to the Usury Laws, your Majesty's Commissioners are of opinion that it would be expedient to repeal them altogether, as far as they affect personal securities, but offer no opinion with reference to real securities.

Much observation has been made upon the expense of obtaining charters or private Acts of Parliament. Where a charter is applied for calculated to affect injuriously the interests of others, it seems contrary to natural justice to refuse them an opportunity of stating and In concluding their brief report, your Maproving the validity of their objections, but jesty's Commissioners feel, that although the regulations should be made to keep the ex-details of our mercantile laws may require cor penses of such inquiry as low as possible. rection, yet while there is on every side such Your Majesty's Commissioners feel that it is abundant evidence of satisfactory progress and beyond their province to offer any suggestion national prosperity, it would be unwise to inrespecting the expense of obtaining private terfere with principles which, in their judg Acts of Parliament. If a charter is asked for ment, have proved beneficial to the general the establishment of baths and washhouses, industry of the country. or other things of that nature, opposition is hardly to be anticipated, and the Board would have little to do beyond seeing that their fixed rules have been complied with, and the expense ought to be very small.

The attention of your Majesty's Commissioners has been directed to another subject which appears to them within the spirit, if not within the letter, of their commission, viz., the expediency of a further relaxation of the Usury Laws, and of enabling capitalists to lend money

We humbly offer to your Majesty's gracious
consideration this our First Report.
(Signed)

T. B. CUSACK SMITH. (L.S.)
C. CRESSWELL.
(L.S.)
JOHN MARSHALL. (L.S.)
THOMAS BAZLEY. F (L.S.)
RO. SLATER./

(L.S.)

[Mr. Bramwell's able paper in favour of

to traders at a rate of interest, and agents and permitting limited liability partnerships shall

servants to receive remuneration for their be noticed soon.]

services by money payments, varying with the

profits of the business, without being exposed to the hazard of being rendered liable as partners to the creditors of the concern.

In Exparte Hamper, 17 Ves., page 403 (a case relating to the remuneration of an agent |

Review: Atkinson's Shipping Laws of the British Empire.-Bills of Exchange Bill. 139

NOTICES OF NEW BOOKS.

The Shipping Laws of the British Empire, consisting of Park on Marine Insurance and Abbott on Shipping. Edited by GEORGE ATKINSON, Serjeant-at-Law. London: Longman & Co. 1854.

and within the means of ordinary men, the learned Serjeant admits he has done some violence to them both. For instance, ba has struck out from Park that part which relates to fire insurance; his object beit. to confine it to marine insurance. But in lieu thereof he has substituted new dissertations on Steam Navigation, the Pas

MR. SERJEANT ATKINSON, in this volume, has departed from the modern prac-sengers' Act, and the like.

to restore" Park on Marine Insurance, and "Abbott on Shipping," to their original simplicity and design, and he has ably effected his purpose in a single volume of about 300 pages.

BILLS OF EXCHANGE BILL.

TOWN AND COUNTRY ATTORNEYS.

tice of so enlarging former standard treatises with proclamations and orders in council re The declaration of war against Russir by full statements of recent Statutes and decisions, that the original work is almost lating to the matter are added. overwhelmed in the new edition. His ob-tempt to rescue from wreck these twe "If" (says the Author) "for this atject has been, as indicated in the title-page, standard works, my countrymen shoul I wish now to make it known that th think I deserve any salvage remuneration Merchant Seaman's Fund (one of the wises and most humane of modern institutions) The early editions of those works were receives voluntary contributions, and as small 8vo. volumes, and the learned Editor regards myself, that I am abundantly rehas retained them as they were originally earned it." munerated by the assurance that I have written, on the general principles of the law, instead of attempting to make the book serve at once the threefold purpose of a treatise on general principles,-Statutes at large, and law reports; but he has omitted no Act of Parliament, nor any reported WE suppose our learned contemporary, case. Where either the one or the other in- the Law Times, deems it politic to attempt, terfered with the original text, he has intro- whenever an opportunity offers, to disduced it, "not in extenso, a system (as unite the Profession and persuade the prothe learned Serjeant contends) no less de- vincial attorneys that their interests are rogatory to learning than injurious to the neglected by their London brethren. Now, utility of a book," but he has analysed, 1st, it must be recollected that the Metroabridged, and incorporated the new matter politan and Provincial Law Association exwith the text itself. Thus he has embodied pressly represents the country solicitors, in the work with the utmost conciseness and indeed the London members of that the Pilot Acts (6 Geo. 4, c. 125; 16 & 17 society are a comparatively small minority; Viet. c. 129); the Mercantile Marine Act, 2nd, That a large proportion of the great 1850 (13 & 14 Vict. c. 93); the Mercantile towns possess active and influential societies Marine Act Amendment Act (14 & 15 Vict. by whom the defect would be supplied if c. 96); the Steam Navigation Act, 1851 it existed; and, 3rdly. The whole provin(14 & 15 Vict. c. 79); the Passengers' Act, cial Profession is represented by their Lon1852 (15 & 16 Vict. c. 44); the Customs don agents, whose interests are intimately Consolidation Act, 1853 (16 & 17 Vict. connected with the welfare of their clients. 107); the Consolidation Register Act (8 & The revival of this often refuted charge of 9 Vict. c. 89); the Navigation Acts (12 & selfishness or neglect against the London 13 Vict. c. 29, and 16 & 17 Vict. c. 131), attorneys, will no doubt fail in its object. and the Wreck and Salvage Consolidation Act (9 & 10 Vict. c. 99).

C.

In our Number for the 17th of June, we corrected some extraordinary mistakes which The Author has availed himself of all the appeared to have been made as to the law relearning of the reports of the Admiralty lating to public notaries,—it being supposed Courts, and the Privy Council, and has not that the protests under the proposed Act neglected foreign codes and ordinances, must be made by London notaries; whereas, particularly those which are frequently re- beyond ten miles from London, the Master ferred to and quoted by Lord Tenterden, of the Faculties at Doctors' Commons may and has referred to the Code de Commerce empower any attorney to act as a notary. and Code Civil in the notes. In order to But there seems to be another oversight bring these two standard works once more in considering the effect of the Bill, for it within the reach of ordinary undertakings, offers an additional remedy, but does not

160 Bills of Exchange Bill. -Taxation of Costs.-Points in Common Law Practice.

rotation, as the case may be.

supersede the existing right of action in any | Master to whom the cause or matter stands reof the Courts. Neither in towns where ferred," they will in future make the reference there are notaries, nor where there are none," to the proper Tuxing Master," thus leaving will the holder of a dishonoured bill be com-it to the solicitor to carry his order into the pelled to resort to a notary. Any one may office of the Master to whom it has been already present it, and if it be not paid, the parties referred, or to get it referred to the Master in may be sued without regard to the proposed Act. The holder may avail himself of its provisions if he should think them beneficial; but, if not, his present remedy will remain unaltered. If there be no defence to the action, he can obtain judgment in eight days and execution in 16, and at no more expense than under the new summary provisions. We repeat, that the costs of noting, protesting, registering, obtaining a Judge's order, serving the order, with the fees paid and the professional charges thereon, cannot be less than on a writ of has not been referred to any Taxing Master."

summons.

Then, instead of the whole business being brought to London, and the County Courts excluded, it is clear that, on bills and notes not exceeding 20., the holder may issue his plaint and obtain his judgment in the County Court, just as he does at present.

In consequence of this arrangement it will be necessary for the solicitor when he brings an order to the sitting Master for a reference to certify, in the form undermentioned, that the cause or matter has not been already referred. A. B. v. C. D.

or

In the matter of

I hereby certify that this cause [or matter]

Dated

183

E. F. Plaintiff's solicitor.

POINTS IN COMMON LAW
PRACTICE.

PLICATION TOO LATE.

If this measure had been proposed before REFERENCE BACK OF AWARD.—WHEN APthe extensive improvements effected under the Common Law Procedure Act, the suitors might have been materially benefited; but now we should not be surprised if, in the majority of bill transactions, the Act were to remain a dead letter, because the existing remedy is equally efficacious, speedy, and cheap.

We have not heard that the London attorneys are desirous of becoming notaries, and they are of course aware, that in order to take that office the statutes relating to the London notaries must be repealed and compensation granted.

: TAXATION OF COSTS.

AN action was referred by Judge's order on July 17, 1847, with power of reference back to the arbitrator, and the award was made in July, 1848, and the order of reference made a rule of Court in February, 1849. A rule was obtained in Michaelmas Term, 1849, on the defendant to pay the costs which had been taxed, but in January, 1850, the rule was discharged on the ground that the award was bad.

A motion, made on April 22, 1853, to remit to the arbitrator the matters referred, was held too late the affidavits giving no explanation of the cause of the delay. Doe dem, Mayo v. Cannell, 1 Lowndes & M. 161.

DIRECTION IN AWARD AS TO PAYMENT OF

COSTS OF REFERENCE AND AWARD.

By an agreement between Mary Young, James Bulman, and John Dennison, they agreed to refer certain matters in dispute to arbitration, and that "the costs of the said reference, and of the award to be made in pursuance thereof, including a reasonable com

By the 10th Order of 25th October, 1842, it was directed "That all references for the taxation of costs shall be made to the Taxing Master in rotation, or if there has been any former taxation of costs in the same cause or matter, then to the Taxing Master before whom such former taxation has taken place, either on a reference from the Court or upon the re-pensation to the said arbitrators for their

quest of a Master in Ordinary."

By a recent arrangement, the registrars have adopted an amended form of order, whereby, instead of directing the reference to the Taxing Master in rotation," or "to the Taxing

trouble, shall be in the discretion of the said arbitrators or any two of them; who shall by their award order and direct by whom, and to whom, and in what proportions and manner the same shall be paid." The award disposed

4

Points in Equity Practice.-Annual Meeting of the Incorporated Law Society.

PORATED LAW SOCIETY.

161

of the several matters in difference, and then ANNUAL MEETING OF THE INCORdirected that "the said Mary Young, James Bulman, and John Dennison, respectively pay for the attendance of his and her own witnesses; and that the other costs of the said reference and of this our award, and also the compensation of the arbitrators, be paid by the said Mary Young, James Bulman, and John Dennison, in equal proportions." On a rule to set aside the award on the ground that there was no direction as to the time, place, manner, or person to whom the costs were to be paid, Jervis, C. J., said, "The arbitrators have sufficiently explained that the costs are to be paid by the three parties in equal proportions, which means that each shall pay one-third to them the arbitrators, or either of them;" and the rule was refused. In re Young & Bulman, 13 Com. B. 623.

POINTS IN EQUITY PRACTICE.

COVENANT FOR PRODUCTION OF DEEDS BY

E. Rowland Pickering,
John Jas. Jos. Sudlow,
William Williams,
John Young.

THE Annual General Meeting of the members was held in the Hall of the Society in stant. Mr. Kinderley, President, in the Chair. Chancery Lane, on Tuesday last, the 27th inThe following gentlemen were re-elected as members of the Council :— Benjamin Austen, Keith Barnes, John Coverdale, James Leman, Wm. Henry Palmer, Mr. William Stephens of Bedford Row, was elected a member of the Council in lieu of Mr. Frere, in lieu of Mr. Rd. Harrison; and Mr. Augustus Warren, deceased; Mr. Bartle J. L. Alfred Bell, in lieu of Mr. Samuel Ámory, resigned.

Mr. John James Joseph Sudlow was elected President, and Mr. Keith Barnes, Vice-President of the Society for the ensuing year.

Mr. Edwin Ward Scadding, Mr. John Marmaduke Teesdale, and Mr. Richard Minshull Jones, were elected auditors of the accounts of the Society.

The annual report of the Council was then MORTGAGEES ON DECREE FOR RECON- read, and ordered to be printed. We shall

VEYANCE.

MORTGAGEES in possession of an estate were ordered (upon part of the debt being satisfied) to re-convey to the plaintiffs one undivided moiety of the property, which formed part of a larger estate held under the same title-deeds, to which such mortgagees were entitled in fee. The Vice-Chancellor Stuart (after a reference to the conveyancing counsel) held that the plaintiffs were entitled to a cove nant from the defendants for the production of the deeds which they retained as owners in fee of the other lands. Yates v. Plumbe, 2 Smale & G. 174.

EVIDENCE. ONUS OF PROVING CONSIDERA-
TION OF POST-NUPTIAL SETTLEMENT AS

AGAINST PURCHASER.

1

take an early opportunity of submitting it in
extenso to our readers.

approved.
The report of the auditors was also read and

The following motion for altering the 65th bye-law, was carried :

clusion of members for misconduct be repealed, "That the 65th bye-law relating to the exand that the following bye-law be substituted in lieu thereof:

666

If any member shall, in the opinion of the him unfit to remain a member of the Society; Council, be guilty of any act which renders or if a requisition in writing, signed by three or more members of the Society, not being members of the Council, shall be presented to the Council, stating ground of complaint against a member of the Society, a copy of the resolution of the Council on the subject or a copy of the to such member; and at least 10 days' notice requisition, as the case may be, shall be sent shall at the same time be given to him of a meeting of the Council fixed for the considerHeld, that the statement in a post-nuptial ation of the subject, at which meeting such settlement, that it had been made "in consi- member shall be heard, if he think proper, thereon. And, in case the Council shall therederation of 58. and divers other good and va- upon be of opinion that such member ought to luable considerations," without naming them, be excluded from the Society, they shall report did not of itself amount to evidence that the their opinion thereon to a general or special settlement was not voluntary so as to throw on general meeting of the Society; and they shall the defendant, who claimed against it as a pur-fact of a resolution of the Council having been in the notice convening such meeting state the chaser for valuable consideration, the onus of avoiding the deed. The case of Gully v. Bishop of Exeter, 2 Moo. & P, 266, was cited in the judgment. Kelson v. Kelson, 10 Hare, 385.

1

U

come to on the subject, or a requisition presented, as the case may be; and such member shall be liable by the order and resolution of such meeting of the Society to be excluded from the Society, and immediately thereupon he shall cease to be a member thereof. But no

169

Metropolitan and Provincial Law Association-Annual Report.

order shall be made at any such meeting of the Society for the exclusion of any member of the Society unless 50 members at least shall be present at the time appointed for the chair to be taken at such meeting, or within half an hour afterwards.""

The thanks of the meeting were voted to the President in particular, and the Council in general, for their continued attention to the interests of the Profession and the affairs of the Society.

METROPOLITAN AND PROVINCIAL
LAW ASSOCIATION.

ANNUAL REPORT OF THE COMMITTEE OF
MANAGEMENT.

April 29th, 1854.

it has been a very great convenience both to the public and to the Profession. The Chancellor has freely appointed as Commissioners those who have complied with the regulations, which are as follows

"Any solicitor desiring to be appointed a London Commissioner to administer Oaths in Chancery is required to lodge with the Lord Chancellor's Secretary a petition fairly written on foolscap paper, praying to be so appointed.

"Every such petition must state the following particulars; i. e.—

"1. That the applicant has practised as a solicitor for ten years, and that his place of business is within ten miles of Lincoln's Inn Hall.

"2. The parish and (where practicable) the street and number of the house in which he has carried on his business for the last three years.

"3. The names of his partners (if any), or (if such be the case) that he has no partner.

66

"The accustomed certificate signed by two barristers will, in addition, be required.

"Twenty-one days' notice of every such application shall be given to the Registrar of So licitors, to be submitted to the Council of the Incorporated Law Society of the United Kingdom."

[Continued from page 144, ante.] Removals of the Courts from Westminster.The advantages that would accrue from a removal of all the Courts from Westminster and Guildhall to the immediate vicinity of the Inns of Court, is one of those subjects which has Every such petition must be accompanied long been agreed upon by all parties; the only by a certificate signed by two solicitors (whose question being, how and when the alteration names, additions, and addresses must be should take place. The subject has recently given), who shall state that they are thembeen upon more than one occasion publicly selves solicitors of ten years' practice, and that noticed, and the Committee, having reason to the applicant is known to them, and is a solibelieve that there was some chance of expedit- citor of respectability. ing the movement, have presented a petition upon the subject to both Houses of Parliament. At the request of a large number of the Profession, the Lord Chancellor has already directed that the sittings of the Equity Courts shall continue during the next two Terms to be held at Lincoln's Inn, notwithstanding the sitting of Parliament, which has hitherto been always considered a sufficient reason for holding them at Westminster. An objection to the movement has been raised on the ground that it is an advantage to both branches of our jurisprudence, that the Equity and Common Law Courts should be held in the same locality, so as to give an opportunity to the respective practitioners to communicate with each other. Certainly, so far as attorneys and solicitors are concerned, the more closely all the Courts are brought together, the more convenient it will be for the transaction of business. And in this way, not only is the business actually transacted in Court facilitated, but also that much larger portion which is disposed of by solicitors in their own offices. The Committee, therefore, trust that this argument will be allowed its due weight, not for the purpose of restoring the Equity Courts to Westminster Hall, but for that of bringing the Common Law Courts also to some common centre in the neighbourhood of Lincoln's Inn.bo Lingon

usaha bise sue 983 06 „b P

Chancery affidavits. In the last circular the Committee explained the nature of the Oaths in Chancery Acts of last Session. The Act has now been brought into full operation, and

It appears, also, that the liberal interpretation of the Act, not confining the power to administer the oath to the place of business of the Commissioner, has been finally adopted.

Equity.-Previous to the end of last Session the Committee presented a petition praying for the adoption of a further measure of Equity Reform, in the total abolition of the office of the Accountant-General, the whole of whose business could be transferred to the Bank of England, where it would be transacted with greater convenience to the suitors, and very much more economically. The whole of this subject, the Committee were informed, was under the consideration of her Majesty's Government, who, however, it appears did not think it right to take any active steps upon it, in consequence of Lord St. Leonards having himself brought in the Chancery Suitors' Further Relief Bill. This Bill, which afterwards became the Act 16 & 17 Vict. c. 98, made one or two decided, though small, improvements, buts entirely failed to adopt the principle, which your Committee are of opinion is the only sound one, of doing away with the Office of the AccountantGeneral altogether.