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SCOTCH APPEALS, 1867.-The following is a list of the Appeals from the Court of Session heard and disposed of by the House of Lords during last session:
This table shews some curious results. There were seven appeals from the First Division, and the judgments were reversed in four. There were nine appeals from the Second Division, in which the judgments were all affirmed, except in Western Bank v. Baird, in which the merits were not considered, the appeal being dismissed for want of jurisdiction. In the Breadalbane case, the judgment of the whole Court was affirmed.
RETIREMENT OF Dr LushingTON FROM THE ADMIRALTY COURT.-The position occupied by this eminent judge has long been so exceptional, and his judgments justly receive so much weight, even in Scotland, that we feel bound to commemorate his services by a longer notice than we can in the ordinary case afford to an English lawyer. The Standard says:-"The late Judge of the Court of Admiralty was the son of Sir Stephen Lushington, chairman of the East India Company. Born in 1782, he was sent to Eton, and thence to Oxford, where he took his degree in 1803. He entered as student of the Inner Temple, and was called to the Bar in 1806. He entered Parliament the year after in the Liberal interest, taking a prominent part in the struggles of that exciting time, and steadily rising into note both as a Parliamentary debater and as a forensic orator. When Queen Caroline was on her trial, Mr Lushington was retained, with Brougham and other eminent counsel, to defend her injured and affronted majesty, suffering, with his learned brethren who were associated with him in the defence, the full penalty for having taken the uncourtly side in a trial which has scarcely precedent or parallel. When the Reform debates of 1830-32 came on, he espoused the popular side, and at last was rewarded for his many years of unshaken allegiance to his party by the accession of his friends to power after the Reform Bill had passed, and the strength of the Conservative party was scattered to the winds. He was elected to represent the Tower Hamlets in the first Reformed Parliament, and would probably have continued to represent that borough but for an Act of 1839 disqualifying the Judge of the Court of Admiralty from becoming a member of Parliament. The measure was not aimed directly at him, though unquestionably occasioned by his appointment in the previous year. Until that time, the Admiralty Judge, like the Master of the Rolls, was not disqualified by his judicial appointment. An attempt to pass a disabling statute as to the latter officer was defeated by a brilliant and well-timed speech by Macaulay, who converted the House in spite of itself, and turned the fortune of the day by a few specious sophisms. Possibly an equal measure of success might have attended an equally determined effort for the exemption of the Judge of the Court of Admiralty from the legislative ban. But no such attempt was made, and the result was that, at the dissolution in 1841, Dr Lushington was unable to offer himself for re-election to the House of which he had been for thirty-four years a member.
The high reputation enjoyed by Dr Lushington during his protracted tenure of office appears to supply a fresh argument in favour of that ostracism from the reVOL. IX. NO. CXXIX.—SEPT. 1867. 2 K
presentative assembly, by which a great guarantee for public interest is secured at the cost of a severe sacrifice of feeling on the part of a few successful lawyers. It is hardly in the nature of things that an active politician should escape an amount of adverse criticism not altogether consistent with the respect due to those who administer our laws: nor is it entirely impossible that his judicial utterances may sometimes be unconsciously biassed by the heated atmosphere of the political arena. The high reputation of Dr Lushington as a judge is probably due in a great measure to his enforced freedom from these disturbing influences. Certain it is that no one ever succeeded in a greater degree in inspiring suitors with a complete and unwavering confidence in the legal soundness and substantial accuracy of his decisions. At a time when many of those who preside in other courts were but just emerging from obscurity, and before half the Queen's counsel now in full practice had begun their legal studies, he was charged with the administration of a difficult and intricate branch of the law. Predecessors like Lord Stowell had moulded into shape the rules which regulate maritime warfare, and to a great extent also they had drawn the outlines of a system applicable to the mercantile marine of former days. But with the application of steam to ocean navigation, with the construction of clipper ships, and the enormous growth of our carrying trade, fresh questions were continually cropping up, and fresh disputes arose, to which the precedents of former days were inapplicable or inadequate. It will be recognised, as Dr Lushington's strong and indefeasible claim upon his country's gratitude, that he perfected and systematised the law, which a careful consideration of altered circumstances introduced or necessitated. In the very nature of things suits arising out of collisions or salvage services are hotly contested, probably because more than in any class of litigation both sides honestly believe themselves to be right. Yet it is noteworthy, as showing the confidence which Dr Lushington inspired, that his decisions were seldom appealed against, and still more rarely reversed. In two remarkable and recent instances the collisions between the Samphire and the Fanny Buck, and between the Amazon and the Osprey-appeals were presented and argued by the ablest counsel at the bar, but in both the decision of the court below was sustained. And in the yet more noteworthy contention about the Banda and Kirwee booty, where the point was new, the litigants numerous, and the stake immense, the late judge's admirably reasoned judgment carried conviction to the minds even of those whom it disappointed, and made the first, also the final, stage of a great cause célèbre.
LIQUIDATORS.-In the evidence before the Commons' Select Committee on Limited Liability, a witness states that there are nearly 260 companies in liquidation, and their aggregate capital is about £99,000,000. He says that nearly one fourth of these companies are in the hands of one firm, consisting of three partners, each of whom would have on an average twenty companies to liquidate, and could not give more than about twenty minutes a day to each, on an average. Another firm, with four partners, have an average of nine and a half companies each, and could give about three-quarters of an hour a day to each, if they had no other business to attend to; but their other business is very large. The powers of liquidators are very great. Mr Newmarch is inclined to say that at present we live under a constitution of Queen, Lords, Commons, and liquidators. Lord Romilly said to the committee, "Unquestionably these liquidators are making very large fortunes; they admit it frankly." The immense amount of money passing through their hands leads the court to lean rather to the appointment of eminent firms than of less known men. The liquidators are almost uniformly accountants; but Mr Church, one of the chief clerks of the Rolls Court, stated to the committee that merchants, bankers, or managers of joint-stock companies would be as efficient-and indeed more so-but they are unwilling to undertake the charge. The security given is, says Lord Romilly, commonly that of a joint-stock company, and he has had apprehensions that if a great official liquidator failed, the amount of suretyship might be too great for the company to meet.-Law Times.
THE LIMITED LIABILITY ACTS.-The Select Committee upon the Limited Liability Acts have reported the following resolutions:-That all companies should hold a general meeting of shareholders within four months of the date of the registration of the company. That companies hereafter to be formed may, by the memorandum of association, and companies already formed may, by special resolution, agree to carry on business on the terms that certain shareholders thereof may be responsible to the extent of the whole of their means, whilst the rest of the members of the company are liable only to the extent of the shares held by them; such companies, nevertheless, to continue to be called "Limited." That companies may, if they
think fit, have a portion of their shares paid up in full, the remainder not being so paid up. That as regards all shares paid up in full, it shall be competent for companies, if they think fit, to issue certificates to bearer, so that the shares may be transferable by delivery. That the seller of shares may claim a registration of the shares into the name of the buyer, upon producing an acceptance of those shares signed by the buyer. That the law concerning the mode of contracting, so as to bind companies by their agents, should be amended by introducing clause 41 of 19 and 20 Vict. c. 47. That the court before which a petition for winding-up shall be brought shall have power to refer the simpler cases of liquidation to such County Court as it may direct under the order of the said court. That a petition to the court to wind-up a company, if presented by shareholders, should be signed by one or more shareholders who are either original allottees of shares, or whose names have been on the register as shareholders for a period of not less than six months. The companies should be allowed to reduce their capital, or to reduce the amount of their shares, or to reduce both their capital and their shares, on the following conditions:-Notice shall be given to the Registrar of Joint Stock Companies. Notice shall be given by advertisement or otherwise in such manner as the Board of Trade may direct; that the consent of all parties, being creditors of the company at the date of the reduction, be obtained; or that the claims of such creditors be discharged; or that in cases of the absence or legal incapacity of creditors, that the amount in cash, of their claims, be invested in Government securities, or placed in the Bank of England in the names of trustees, under conditions to be approved by the Board of Trade. That it is highly desirable that a Bill should be brought in by the Government in the present session, to carry out the alterations proposed.
Some other resolutions were proposed by Mr Watkin, but rejected, viz., that on allotment of shares a printed copy of the memorandum and articles of association, and of any other schedules or documents which bind the company be sent with the letter of allotment; also that all companies be compelled to supply to any shareholder applying for it a list of the names and addresses of the shareholders whose shares are not fully paid up; and further that the companies should send to any member applying for it a shorthand writer's report of the proceedings of every general meeting; but these motions were negatived. The resolution allowing two classes of shareholders, with limited and unlimited liability, was adopted in lieu of a resolution proposed by Mr Watkin to the effect that it should be made clear that companies may adopt the principle of commandite partnership-that is to say, carry on business under the chief control of a manager responsible to the extent of the whole of his means, while the rest of the members of the company are responsible only to the extent of their shares. (Since this was in type an Act has passed this Parliament giving effect to the recommendations of the Committee.)
THE OVEREND AND GURNEY CASE.-The House of Lords, in a very elaborate judgment, has sustained the judgment of Malins, V.C., and so vindicated the righteous principle which they had been supposed to have shaken, that shareholders shall not be permitted to evade their liabilities to creditors because they have been themselves deceived by their own directors. Shareholders are now solemnly declared by the ultimate Court of Appeal to be contributories; their remedy, if any, being against those by whom they were deceived. It would, indeed, have been an iniquity for ever disgraceful to British law if it had been held to be competent for a body of shareholders speculating for profit to pocket the money of innocent depositors, and when called upon to restore it, to say in effect, “Our directors induced us to join them by statements not true and promises not performed, and therefore we refuse to repay to you the cash which they, as our agents, received from you to hold for you until you required its return."-Law Times.
*** Our review of Mr Taylor Innes's valuable work on the Law of Creeds in Scotland is unavoidably delayed. We are also compelled, by the pressure of Acts of Parliament on our space, to postpone our Summary of the Legislation of the past year, and in particular our remarks on the Debts Recovery Act. Subscribers will notice that for their convenience this important statute has been issued with the present number, considerably earlier than it would have been in the ordinary course, but without altering the paging of our collection of Scotch statutes.
Notes of Cases.
COURT OF SESSION.
(Reported by William Guthrie and Donald Crawford, Esquires, Advocates.)
SCOTT v. NAPIER.-June 25.
Property-Loch-Parts and Pertinents-Prescription-Crown Charter. Question between proprietors of lands adjoining St Mary's Loch and Loch of the Lowes. The other proprietors bordering on the lakes were called but did not appear. Lord Napier claimed exclusive property in the lakes under his titles to Bowerhope and Crosscleuch; and Scott brought this action of declarator that he and the other proprietors on the lakes, have a joint right or common property in them, and that Lord Napier has no exclusive right. Lord Napier's titles are deduced from a Crown Charter in 1607 in favour of Robert Scott, of the lands of " Bowerhope una cum duobus lacubus nuncupatis lie St Marie Lochis de Lowis," with a reddendo of £20 6s. 8d. for the lands and 20s. for the lakes, which, since 1823, has been paid to the Crown. These lands passed to Sir Robert Scott, whose investitures in 1621 also mentioned the lakes, and were apprised by Patrick Scott, who made an entail under which defr. holds the lands. In the infeftment upon the apprising, and subsequent titles since 1621, the lands are named, with pertinents, but not the lakes. Pursuer argued that the apprising did not carry the lakes, which were a separate subject; and, further, produced a grant by the Crown in 1599 to the Master of Yester of the lands of Rodono among others, cum lacubus, which it was maintained could refer to no other lakes than those in question, and made it impossible for the Crown to regrant them to another party in 1607. Exclusive possession was averred by defr.; and denied by pursuer. Proof as to possession was led.
The L. O. (Jerviswoode) found that defr. was vested in the said lands of Bowerhope, together with the said lochs, fishings, and pertinents, under the titles; and had enjoyed the exclusive possession of the lochs; that pursuer was infeft in the lands and barony of Rodono "cum domibus ædificiis hortis pratis lacubus piscationibus," &c., abutting upon the shore of the Loch of the Lowes, and to some extent on that of St Mary's Loch; that he and his authors had also, in fact, used the margin of the said lochs, so far as they adjoin his lands, for the purposes of pasture, watering cattle, and the like; but that, in point of law, such uses as the pursuer or his authors had had were of a character which he or they might enjoy as a consequence of their access to the same as proprietors of the lands adjoining the lakes, and not as an assertion or exercise of a right of property over the same. His Lordship therefore assoilzied defr.; holding that the mention of lakes in the
charter 1599, among many other "pertinents," could not amount to more than a sufficient title to warrant, as against the Crown or other granter, possession of lakes within the boundaries; but did not necessarily denude the Crown of the right to lakes which merely adjoin in part the lands conveyed. The Crown not being thus divested of the lakes, it followed that the charter of 1607 was within the right and power of the Crown to grant ; and that defr.'s title at least was complete, and exclusive of any alleged title held by pursuer, if he were under the progress founded on. Pursuer had maintained an argument from the omission in the apprising by Patrick Scott of express mention of the lochs. They were certainly not specially apprised, except in so far as they might pass under the general designation of pertinents. The original charter conveyed the lakes along with Bowerhope, and not as separate subject, the phrase una cum duobus lacubus " being words to convey something of a pertinential character rather than a distinct and separate subject. This went far to support the defr.'s case, and on the whole, the defender must prevail on the question of title. Had the state of possession not been in accordance with this view of the title, the L. O. would not say what effect that might have had on his conclusion. But such as they are, the exercise of them appeared to his Lordship to have been wholly with defr., and as in right of property.
Lord CURRIEHILL. The titles of parties were quite conformable with the common law presumption (Stair ii. 373, Bankt. ii. 312, Bell's Pr. 648, 1110) that the lochs belonged jointly to all the riparian proprietors. The use had of the loch had also been in conformity with that presumption. Each of the four, including Lord Napier, had enjoyed such use along with others, but none of them had excluded the others. There had been no instance of exclusion of the others by defr. till 1861, when these proceedings were commenced. The question was not whether such an exclusive right had been lost, but whether it had ever been acquired; and even if all the acts of possession founded on by defr. had been as he represented them, they would not overcome the legal presumption referred to. Defr. founded on a charter of 1607, and the progress of titles showed that the lands of Bowerhope were transmitted to him by the very same description which was in the charter; but in all the subsequent transmissions there was a conspicuous absence of the lakes, and the feu-duty stipulated for them. His Lordship then entered into a minute analysis of the titles, in order to show that the lakes were not conveyed to defr. with the lands. In the charter of 1607, the lakes had been conveyed as an entirely separate tenement, and they had been granted expressly in virtue of the Act of Dissolution 1587, C. 30; being part of the lordship of Ettrick Forest which had been annexed to the Crown by 1455, c. 41. There was no renewal of the investiture in the lochs since 1621, so that the right, even if originally valid and not extinguished by prescription, was still in hæreditate jacente of Sir Robert Scott. Defr. had failed to establish his exclusive right; but maintained that if the lochs were still in hæreditate jacente of Sir R. Scott, pursuer had no title to sue. It was true that, if the lochs were in that position, pursuer would not have a title to insist in the conclusion that the lochs belong to all the riparian proprietors jointly. But if it were so, on the other hand, defr. was not entitled to interfere; and pursuer would be entitled to interdict against his interference. There was, however, good ground for holding that the