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Superior Courts: Common Pleas.-Crown Cases Reserved.

Regina v. Carlisle and another. April 29, 1854.
INDICTMENT.-FALSE REPRESENTATIONS.
S. had sold a horse to the prisoner B. for

501. was to be paid down, and that if either and that therefore the signing of Mr. Justice party broke the bargain a sum of 100l. should Wightman, who was on the circuit with the late be forfeited and paid as a debt, and to be so Judge, would be sufficient. recoverable. The defendant had paid 51. down, and given an IO U for the remaining 451., and on his refusing to complete, the plaintiff had sold the premises for 9001., and had brought this action to recover the deficiency and the 100l. penalty, the IO U not having been paid. The defendant set up as a defence that the plaintiff had committed a breach of the covenant in the lease to insure, by not renewing the policy until after the expiration of the 15 days allowed by the insurance office, whereupon the plaintiff was nonsuited, (see Doe dem. Pitt v. Shewin, 3 Campb. 134.)

Knowles and Barstow showed cause against the rule, which was supported by Raymond. The Court said, that payment of the insurance after the day did not cure the defect by reason of his not having kept up the policy, and that the plaintiff could not make a good title against the landlord, who might bring an action of ejectment and turn the plaintiff out. There had been no consideration for the IOU, which had been given instead of so much cash, and the rule would be discharged.

Schepeler v. Durant. April 29, 1854.

PLEA

OF ALIEN ENEMY TO ACTION BY RUSSIAN SUBJECT BEFORE DECLARATION OF WAR.

A rule nisi was refused for leave to the defendant in an action, brought by a Russian subject before the declaration of war, to plead in abatement alien enemy where he was under terms to plead issuably.

THIS was an application for a rule nisi on appeal from Maule, J., for leave to add a plea in abatement of alien enemy in this action which was brought by a Russian subject to recover damages for the non-acceptance of a quantity of timber from Riga, and to which the defendant was under terms to plead issuably, before the recent declaration of war against Russia.

T. J. Clark in support.

The Court said, that the defendant had agreed to plead issuably, and therefore not to plead the plea in question. The application

would therefore be refused.

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391., but had been induced by him and the other prisoner C. to take a less sum by falsely representing the horse to be unsound, and that B. had consequently sold it for 271. A conviction for such offence was affirmed.

Ir appeared from this indictment that a Mr. Simpson had sold a horse to the prisoner Brown for 391., but that he and the other prisoner Carlisle had induced Mr. Simpson to take a less sum by falsely representing the horse to be unsound, and that Brown had in consequence sold it for 27. The prisoners were convicted.

Whigham now contended the indictment did not disclose any offence.

The Court, however, held, that the conviction must be affirmed.

Regina v. Harris. April 29, 1854.

INDICTMENT FOR EMBEZZLEMENT.-MONEY
NOT RECEIVED AS SERVANT OF PROSE-
CUTOR.

A prisoner was appointed by the magistrates miller in the county gaol, and was paid weekly out of the county rates. It was his duty to take tickets from persons bringing grain to be ground, and to receive money for the same. It appeared he had ground grain without a ticket, and had not accounted for the money received. On an indictment against him as servant of the inhabitants, or of the clerk of the peace, for the embezzlement of their money: Held, that the conviction could not be supported. THIS was an indictment against the defendant as servant of the inhabitants of the county of Worcester, or of the clerk of the peace, for the embezzlement of their money. It appeared that the prisoner was appointed by the magis trates miller in the county gaol, and was paid weekly out of the county rates, and that it was his duty to take tickets from persons bringing grain to be ground and to receive money for the same, and that he had not accounted for moneys received for grinding grain taken in without a ticket.

Selfe in support of the conviction.

He

The Court said, that the prisoner had taken in grain without a ticket, showing his intention to make an improper use, and for his own benefit, of the machine intrusted to him. had, however, no right on behalf of his master to grind any corn except such as was brought to him with a ticket, and the money was not therefore received on his master's account, and the conviction for embezzlement must be quashed.

The Legal Observer,

AND

SOLICITORS' JOURNAL.

SATURDAY, MAY 13, 1854.

JOINT-STOCK COMPANY MANIA. than of Government, so it is manifest that the ordinary affairs and business of society "EXECUTOR AND TRUSTEE SOCIETY." are more efficiently and economically conABOUT thirty years ago there was an ducted by individuals than by large comunexampled rage for joint-stock companies panies. No one doubts that where the State of all kinds. The newspapers abounded does not undertake the duty of constructing with advertisements of the most extraordi- docks, canals, roads, and bridges, the work nary projects, from the most magnificent must devolve on wealthy corporations or and impracticable to the most absurd and joint-stock companies. Offices for the ininsignificant. Many men of high rank, surance of lives, houses, and shipping, also bankers, merchants, and others whose peculiarly belong to a numerous body of names were familiar to the public and par- proprietors. ticularly in the City, were solicited to be- When, however, a moderate capital only come directors, and scores of schemes found is required, and where the principal thing their way on the Stock Exchange as soon to ensure success is personal skill, integrity, as the shares were allotted and the first experience, and activity, then the business small deposit paid. After a brief trial is best conducted by individuals who are amongst speculating shareholders; but few responsible for, and whose interests are came into actual operation and still fewer connected with, the prosperous result of survived to any useful purpose. Several the speculation.

of those projects originated with ingenious These remarks apply to many of the men who obtained the assistance of active recent joint-stock companies, to some of solicitors, and were sometimes well paid, the banking companies, peculiarly constibut generally the projectors suffered with tuted insurance companies, such as the the failure of the scheme.

insurance of doubtful or defective titles, and similar projects; but we would peculiarly address ourselves to the two schemes for administering private trusts, now before Parliament, and which, if they pass in any shape, will doubtless be followed by a shoal

Considered, indeed, with reference to economy, how can it be reasonably expected that business can be managed by a public company with the same advantage as by one or a few individuals?

Several years afterwards the railway mania made its appearance. Competing projects of all kinds were brought forward, and rapid fortunes were made and lost in the course of a few years. It may be said, however, for railway enterprises, that they are peculiarly of others. within the scope and province of joint-stock companies. They require the union of many persons interested in the several lines proposed to be constructed. In order to carry such plans into effect, a large capital is required, not only for the first outlay but 1. There must be a capital invested, for for the satisfactory continuance of the un- which interest must be paid. 2. The chairdertaking, and in such cases a joint-stock man, deputy chairman, and directors must company is the legitimate and only practi- receive their fees for attendance. 3. The cable mode of accomplishing the object. secretary, or actuary, and clerks, must be But as many public enterprises are better paid their salaries, and servants must be in the hands of an independent company paid their wages. 4. The rent of offices, VOL. XLVIII. No. 1,366.

C

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sive"

Joint-Stock Company Mania—“ Executor and Trustee Society."

rates, taxes, and expenses must not be sons of property cannot find private friends omitted in the computation. 5. The con- to undertake the duty of trustee. The cern must be publicly announced, adver- writer contends that all trustees should be tisements must appear frequently in the paid. If so, there can surely be no diffinewspapers, and prospectuses circulated culty in finding able men of business,— throughout the country. Without exten- bankers and solicitors,-who will undertake puffing," the merits of the scheme the duty, a large proportion of whom now will not be known or appreciated. 6. Then do so gratuitously. We say, therefore, that come losses and responsibilities, for perfec- the preamble of the Bill is not proved. tion cannot be expected either from directors There is no need to confer unusual powers or officers. on these associations. The occasional deThese unavoidable expenses of a joint- reliction of duty of existing trustees forms stock establishment are to be paid out of no ground for altering the general law. We the profits;-to which must be added law are aware it has been said, that where a expenses, the commission of surveyors, per- trust is designed to continue for an unhaps of engineers, and various agents. The limited period of time, as in the case of solicitors' costs and other charges may, charitable and educational institutions, it is indeed, be debited against the trust pro- better to select a corporate body as trusperty; but all the other expenses must tees. This may be so, and the object can come out of the per centage paid by the now be effected without creating a new persons interested in the trust property. company to be paid for their services. NuBut there will be extra costs, which the merous collegiate and other societies and company must pay, and especially when institutions exist, acting as trustees, to they happen to have made a mistake. whom bequests may safely be intrusted, Then, lastly, comes the important dis- the more especially since the establishbursement of the dividend to be paid the ment of the Charitable Trust Commission. shareholders or proprietors of the company. It is remarkable, indeed, that in the article After deducting all the costs, charges, and to which we refer, it is admitted that the expenses, fees, salaries, wages, rent, taxes, vesting of property in the proposed new &c., what per centage can possibly be paid? corporation would be objectionable, if it The Law Review of this month contains were perpetual; but it is contended that the an ably written and somewhat plausible investment will only be temporary. This argument in favour of the Executor and candid acknowledgment gives up, in effect, Trustee Society. The writer assumes the the advantage of the perpetual succession want of such a company. He does not of a corporate body and neutralizes the obattempt to prove that there is any great jection to the occasional expense of appointevil which the company can remove. He ing new trustees, during the comparatively notices, indeed, the occasional expense of short period of the trust. appointing new trustees, and asserts that To the objection that a public board is some trustees are negligent or incompetent, not adapted to the consideration of the but the remedy for which is obviously in the power of the parties interested to supply by appointing others, and the expense of which (if not now small enough) may be reduced, without resorting to a joint-stock company to be paid for all their services. It is a mere unfounded conjecture that per

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family affairs and necessities involved in the trust, the reviewer urges as a merit, that the directors will be fitter trustees than the private friends of the parties, because they will not be influenced by any feeling of generosity to deviate from the strict rule of the trust We may admit that on some occasions this will be an advantage, and we are not inclined to advocate the relaxation of the strict duties of a trustee; but we can readily conceive that a body of men, strangers to the family, with whose interests they are intrusted, may unnecessarily disregard the feelings and oppose the wishes of the parties, although a concession would involve no serious risk.

It is said, with some feeling of exultation, that the House of Commons decided in favour of the South Sea Bill, notwithstanding the opposition raised by the Profession,

Joint-Stock Company Mania—“ Executor and Trustee Society."

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and it is anticipated that the opposition will on the validity of testamentary papers, on the equally fail in the House of Lords. We construction of wills, on the proof of the claims are aware that the opposition of lawyers is of persons who seek to be treated as persons not much regarded, and we are not prepared relative rights of creditors and legatees. All interested in their administration, nor on the to explain how it was that the resistance these, and many other subjects of the same ⚫ was so unsuccessful, except that by grafting kind, must remain as at present subject to upon a private Bill these important altera- contentious litigation in our various Courts." tions in the general law, the promoters of the measure dexterously prevented that discussion which a public Bill would have undergone. The mode of proceeding at the time of private business, that is from four to five o'clock, is well described in Dickens's "Household Words."

It was certainly not imputed to the projectors of these wholesale Trust Societies, that they sought a monopoly of the whole law business on both sides of every question, representing alike plaintiffs and defendants, and pocketing the costs of all parties. The objections raised are directed against the

"A good many members are collected, talk-measure,-1st. Because it alters the general ing and laughing in unreproved disorder: no attention whatever is paid to what is going on; not a syllable can be, or is meant to be, heard, except the following formula repeated over and over again. The Speaker standing up, calls Mr. Brotherton Mr. Brotherton answers, Bill, sir.' The Speaker: Please to bring it up.' Whereupon Mr. Brotherton trots up to the table and hands a paper to the clerk, who It is unnecessary, however to repudiate reads the title of the Bill. Universal Loco- the right which the solicitors in general motion Company.' The Speaker then takes the paper and says, 'Universal Locomotion possess, to protect their own just interests; Company: that this Bill be now read a first and if they are convinced, as we believe they time; as many as are of this opinion say Aye, as many as are of the contrary opinion say No: the Ayes have it.' Whereupon the Bill is handed back to the clerk, who reads again, Universal Locomotion Company,' [or 'South Sea Fishery Trust Bill,'] which is supposed to be the reading of the Bill. The Speaker again calls upon Mr. Brotherton!' and the whole process is repeated. All this goes on in the most rapid monotonous sing-song, varied only by the loud key in which, upon each occasion the title of the Bill and the name of the mover are pronounced; rendered tolerable by the musical tones of the Speaker's voice.'

law by the side-wind of a private Bill, evading the proper discussion of its scope. 2nd. Because it limits the liability of the Trust Company. 3rd. Because it indemnifies trustees for a breach of trust, and exacts a profit not allowed by the terms of the will or settlement.

sincerely are, that these Bills, whilst they are injurious rather than beneficial to their clients, will be prejudicial to themselves, why should they not, like all other classes of the community, resist such novel expedients, designed for the advantage of a few to the injury of many? The Law Review

admits that

"If the company proposed to engross all the law business which must necessarily be performed, and to monopolise it for the benefit of certain solicitors appointed by itself, there would be some ground of complaint. But this exactly what the company expressly declares it does not intend to do. Where the testator, or settlor, or the parties interested, shall desire any particular solicitors to perform the law business, they will be employed in preference to any one else."

In addition to these difficulties of discuss-is ing a private Bill, it happened that on reading the South Sea Trust Bill, the House was on the tip-toe of expectation for a message from the Crown, declaring war with Russia.

It is supposed that the objections stated by the opposers of these Trust Bills, which were partly expressed by Mr. Malins, Mr. Spencer Follett, and Mr. Mullings, originated in the anticipated injury which would be inflicted on the Profession, by the transfer of legal business connected with trusts from the counsel and solicitors now engaged in it, to the counsel and solicitors of these companies. The learned writer in the Law Review consoles "the solicitors of England" by stating that

"The Bill does not propose to vest in the company the power authoritatively to decide

We can find no such provision in the Bill, but presume there is some attractive prospectus, in which these liberal provisions are contained. It is also intimated, that if their own solicitors should be already encumbered with demands on their time, I such solicitors among the shareholders tions in the Profession for skill, ability, and will be selected as have the fairest reputaintegrity." This is ingeniously devised,

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and we leave our readers to estimate the

boon at so much as it is worth. In order to participate in the overflow of business from the office of the company's solicitors, they must become shareholders!

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A BILL has just been brought in by Mr. Aglionby to "Alter the Time and Mode of taking the Pleas of Persons charged with Larceny, and for the Improvement of Criminal Procedure in cases of Larceny." It recites that the time and mode of taking the pleas of persons charged with larceny should be altered, whereby much expense to the public, and the time of grand jurors, prosecutors, and witnesses, would be saved, and in many cases unnecessarily long imprisonment be spared to persons so charged. The following are the proposed enactments:

shall be taken and proceedings had as hereto fore before one stipendiary police magistrate or one or more justices of the peace; s. 3.

Pleas of Guilty" to be returned to assize or quarter sessions; s. 4.

Clerks of assize and clerks of the peace to file pleas, &c.; s. 5.

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As to trifling cases. In all cases of pleas of stances of aggravation; that is to say, where it Guilty" to charges unattended with circumshall not be proved that the person so pleading " Guilty" had been previously convicted of felony, or he shall not admit himself to have been so convicted, or in cases of larceny of money or chattels where the amount or value of the money or chattels stolen shall not be proved to be of the value of 51. or upwards, or where the larceny shall not be proved to have been from the person, or attended with the breaking of any lock or fastening, or from a

When any person shall be arrested on any charge of larceny or suspicion thereof, such charge shall be made in open Court, either be-dwelling-house or curtilage, or by a servant, it fore one stipendiary police magistrate, or in open sessions, or in special sessions, and such stipendiary police magistrate or justice or justices shall cause the charge to be taken in writing, and entered in a book to be kept for that purpose by the clerk to such stipendiary police magistrate or justices in petty sessions, in the form set out in the Bill; s. 1.

shall be lawful for such stipendiary police magistrate, or such justices in petty sessions as aforesaid, before whom any such plea of guilty shall be taken, and they are hereby authorised and required, in open Court, to pass sentence upon the person so pleading "Guilty" as aforesaid: Provided always, that such sentence shall in no case exceed the term of two calenTaking plea. After any person so charged dar months' imprisonment, and may be with as aforesaid shall have heard the charge read or without hard labour as to the said stito him, and also the depositions of the wit-pendiary police magistrate or justices shall nesses to the facts and circumstances of the seem meet; s. 6. case, and the stipendiary police magistrate or justice or justices shall think the evidence given before him or them to be such as to raise a Costs. With regard to the payment of the strong presumption of guilt, such stipendiary costs and expenses of prosecutions for larceny, police magistrate, in open Court, or two justices in those cases where the party charged shall at the least in open petty sessions, shall call plead "Guilty," and such stipendiary police upon the person charged to plead to such charge, and shall at the same time caution him as to the nature and effect of his plea, which caution shall be in these words, or words to the

like effect:

Returns to be made to Secretary of State;

s. 7.

magistrate or justices shall return the pleas to the assize or quarter session, or shall pass sentence as herein before is directed, such stipendiary police magistrate or justices are hereby authorised and empowered, at the request "You have heard the charge against you, shall appear on summons to prosecute or give of the prosecutor, or of any other person who and the depositions of the witnesses; you are evidence against any person so charged with now called upon to plead to such charge; you larceny, to order payment unto the prosecutor are not bound to say anything beyond your and witnesses of such sums of money as to the plea, unless you desire to do so, but what you Court shall seem reasonable and sufficient to do say will be taken down in writing, and may reimburse such prosecutor and witnesses for be produced on your trial: If you plead the expenses they shall have severally incurred Guilty, you must not do so under any expec-in apprehending the person charged, in attendtation of favour for so doing, but your plea ing before the examining magistrate or justices, will be taken, and a conviction filed against and in otherwise carrying on such prosecution, you, which will have the same effect as if you were convicted by a jury."

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And thereupon the said stipendiary police magistrate or justices shall and they are hereby authorised to receive and take the plea of the person so charged as aforesaid, which they shall enter or cause to be entered at the foot of the charge so to be entered in the book of charges hereby required to be kept as aforesaid; s. 2.

In all cases where the person charged as aforesaid shall plead "Not Guilty," or shall refuse to plead, the depositions of the witnesses

and also to compensate them for their trouble and loss of time therein, and also a sum not exceeding 10s. to be paid to the clerk of assize or clerk of the peace on filing each plea of "Guilty" as shall be returned to him for that purpose, and for recording a conviction thereon, in lieu of all former fees which would have been received by the clerk of assize or clerk of the peace in such cases; and all such costs and expenses shall be paid by the treasurer of the county, riding, division, liberty, city, borough, or place, upon the order in writing of such stipendiary police magistrate or justices as afore

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