After several witnesses for the Crown had been examined, the trial was adjourned over night, and the jury were committed as usual to the care of the Macer. On the following evening the jury found the panel guilty, and the Advocate Depute moved for sentence. No objection was taken for the panel, and the diet was continued till next morning. On the third day panel's counsel moved that he should be dismissed simpliciter from the bar, and put in a minute in which he stated in arrest of judgment that one of the jurymen had been permitted, on the evening of the 11th, "to leave, or at least escape, from the custody of the Macer and the officer in charge, and was not again seen till near ten o'clock next morning," when the Court assembled, and that during his absence he had communication with various persons to the prisoner unknown. The Court" refused the motion in respect that no exception had been taken to the competency of returning the verdict, or to the motion for sentence, and that the case was continued (without exception on the part of the panel) for the sole purpose of consideration by the Court of the nature and extent of the punishment to follow the verdict of the jury."

Act.-Millar. -Alt.-Guthrie Smith.

H. M. ADVOCATE v. KENNEY OR LYNCH.-(Dundee, Sept. 13).

Proof-Procurator Fiscal-Deceased Witness.

The evidence of a procurator-fiscal to prove the statement on precognition of a witness since deceased, held inadmissible. The declaration of such a witness on precognition, and signed by the witness, also held inadmissible, on the authority of Macdonald v. Union Bank, March 1864, 2 Macph. 964.

H. M. ADVOCATE v. FLEMING.-(Dundee, Sept. 13).

Res Judicata-Indictment-Sheriff.

A panel was charged before a Sheriff with culpable homicide, in consequence of his having left his horse on the street without a person in charge of, whereby it ran off and knocked down and killed a person. The Sheriff directed certain words, which set forth that the horse had formerly run off in similar circumstances, to be struck out of the indictment, whercupon the procurator-fiscal moved to desert the diet pro loco et tempore. This indictment was then brought, setting forth the same facts, and the panel's knowledge that shortly before the time of the crime charged, the horse had run off in similar circumstances. The plea of res judicata in bar of trial (Longmuir v. Baxter, 3 Irv. 287), was repelled, there being no proposal to try the case again in the Sheriff Court, and the Court of Justiciary not being bound by the decision of an inferior Court. An objection to the statement of the panel's knowledge of the former accident was also repelled.

H. M. ADVOCATE v. RICHARDSON AND DAVIDSON.-S'pt. 13.
Theft-Description of Stolen Property-Amendment of Libel.

The stolen property was described in an indictment for theft, as thirtythree barrels as per inventory, " each containing sugar and sugar dust, or sugar sweepings, or a mixture of sugar and sugar dust or sugar sweepings. Leave refused to amend the libel by deleting the words in italics, as being an essential change in the description of the stolen property.

ENGLISH CASES.

WINDING-UP.-(Companies' Act 1862.)-A holder of fully paid up shares in a limited company is a contributory within the meaning of the Companies' Act 1862, and is entitled to petition for compulsory winding-up of the company.— (in re The National Savings Bank Assoc. (Lim.), 35 L. J., Ch. 808.) And In re The Anglesea Colliery Co. (Lim.), 35 L. J., Ch. 809; 2 L. R., Eq. 379, in which also held that liquidators may make a call (§ 133, Nos. 9 and 10) on shares not fully paid up, to reimburse holders of fully paid up shares, the debts of the company having been paid.

PATENT. (Specification.)-A specification, when construed grammatically, claimed to effect a certain end by two processes, one of which would not, in fact, do so. It was in evidence that no skilled practical workman would be misled, as he would know that the one process would be useless, and would take the other; Held that the specification was defective, and the patent bad and void in law. It is incompetent to correct the specification by the superior intelligence of the reader.'—(Simpson v. Holliday (H. of L.), 35 L. J., Ch. 811.)

RAILWAY COMPANY.-(Railway Clauses Act, s. 87-Traffic Agreement-Ultra Vires.)-The Midland Ra. Co. filed a bill against the London and N. W. and ten other railway companies, to obtain the declaration of the Court as to the rights of parties to a fund in Railway Clearing-house, under a traffic arrangement made on 1st Jan. 1856. At that date there were two main lines of communication between London and Edinburgh, one via Rugby, Preston, and Carlisle, known as the West Coast route, and the other, via Grantham, York, and Berwick, with an alternative line, via Rugby, Normanton, and York, together known as the East Coast route. The former belonged to the N. W. Ra. Co. and companies in connexion with it, and the latter to the Great Northern, Midland, North-Eastern, and North British Railway Companies. To prevent ruinous competition, an agreement was made, under the Rà. Clauses Act, which, after defining the routes, and providing that it should include all traffic of whatever description, stipulated that all through traffic from or to any of the places mentioned in the schedule should be carried and sent by the several companies over the said two routes in the proportions given in the schedule, and that the gross revenue should be divided as there specified. The agreement was to remain in force for fourteen years. The 20th section provided that the companies should 'in all respects carry on and conduct such traffic faithfully the one towards the other, and according to the true spirit and intent of this agreement, and should not, by any of the devices therein specified, or by any other means or inducements whatsoever, cause or promote the said traffic to go or be sent, travel, or pass to its place of destination, so that the same, or the revenues derived therefrom, shall not appear and be treated as part of the traffic and revenues to which this agreement relates, or so as to prevent such traffic being carried, or the revenues therefrom divided and apportioned in accordance with the bona fide intent and meaning of the terms of these presents, or so as to cause the same to be divided and apportioned differently than would have been the case in case such traffic had been sent and booked or forwarded through directly from its place of despatch to its ultimate place of destination, in conformity with the terms and spirit of this agreement.' The 'alternative' line forming part of the East Coast route was, in fact, the same as the West Coast route as far as Rugby; thence it followed a distinct line by Normanton to Knottingley, where it joined, and thenceforward became one and the same with the East Coast route. The line between Rugby and Knottingley belonged exclusively to the plaintiffs, the Midland Railway Company. A few years after the agreement, the plaintiffs, partly by completing their own new line from Hitchin to Leicester, and partly by leasing and obtaining running powers over other lines of railway, acquired and opened a new through route from London to Edinburgh. This new route, in contradistinction to the East Coast and West

Coast routes above described, became known as the Waverley Route. The profits arising from the traffic on the new route were comprised in the fund now in the hands of the Clearing-house Committee, having been paid in under a separate account, pending the determination of this suit. The questions raised were, whether such profits came within the terms of the agreement, and whether the several companies, parties to the agreement, other than the plaintiffs, were entitled to share in such profits as belonging to the common fund. The entire fund amounted to upwards of L.700,000. Certain other companies, not originally parties to the agreement, had since been admitted into it, and were made defendants in the present suit. KINDERSLEY, V.C. (July 28), said there was nothing in the agreement which could be construed as an express prohibition against the formation or opening of a new route between London and Edinburgh by any of the parties thereto, and that the traffic embraced by the agreement was exclusively that which was in express terms specified therein, and that the language of the 20th section could only be regarded as having reference to such traffic. I have next to consider whether, according to the contention of the defendants, there has not been a breach of an implied covenant against making a new line or carrying goods by any such new line? Now, in order to justify the Court in implying a covenant or condition not in terms expressed in any given instrument, the case must be such as to satisfy the judicial mind that the parties necessarily intended it, and that conclusion must be drawn from something actually found within the instrument. There must be something there expressed upon which you can hang such a conclusion. But so far from inferring that there was any such idea or intention in the minds of those who executed this agreement, the conclusion I come to is, that they either never thought of any such contract at all, or else that they intentionally excluded it from the agreement. For supposing it had been in the contemplation of the parties to enter into such contract, is it conceivable that in this carefully drawn instrument they should have omitted to provide for it by a special clause, and have left it to be guessed at from the terms of the 20th section, or the general language of the agreement? They would, as a matter of course, have had a specific clause directly applicable to it; and in the absence of such a clause, and taking the other circumstances into consideration, I cannot conceive that it was their intention that such a prohibition should be implied. Being of this opinion, it is hardly necessary to advert to the question whether such a contract would be legal; but I think I ought to make a few observations upon that point, and it should be remembered that the rights and powers and obligations of corporate bodies are necessarily regulated by considerations which do not apply to individuals. Many acts are competent to an individual which are not so to a railway company, and vice versa; so that in respect of the legality of their acts, these companies must be looked at and dealt with on considerations very different from those which might be applicable to individuals. Now, suppose that these railway companies had all entered into an express agreement that no one of them should ever make or be a party to the making of any other line or route from London to Edinburgh than the routes which then existed. Would such an agreement be lawful? The question, I confess, is arguable; but my own opinion is, that it would be ultra vires, and that the companies would not be bound by such a contract. And, in speaking of ultra vires, we use the term in reference to the governing body of the company. If every individual member of a company entered into and agreed to be bound by such an agreement, then it might be a question whether that was ultra vires; but, in the sense in which we use that term, I think the agreement would be ultra vires of the governing body, so as to bind all the members of the company. After referring to Hare v. N. W. Ra. Co., 2 J. & H. 80, His Honour continued,-Now, admitting, as I do, the difficulty of determining this point with reference to the authorities, I yet cannot help thinking that it would be ultra vires. I think that the governing body of a company has no right, as against the whole body of members, to bind that company down to a particular, stipulated, and limited line of operation, and to exclude the possibility of its being a party to the making of a more enlarged or more beneficial

line of railway. It must be borne in mind that such a stipulation would be little short of a stipulation prohibiting the companies from ever applying to Parliament for the purpose of constructing a new or improved line of traffic. Upon the grounds already stated, however, I am of opinion that there is here no such stipulation, and therefore that the plaintiffs are solely entitled to the proceeds arising from the traffic on the Waverley line. There must be a declaration that so much of the fund in the hands of the Clearing-house Committee as has arisen from the traffic on the Waverley route is not within the terms of the agreement of the 1st of January 1856. The costs of all parties to come out of the fund.—(Midland Ry. Co. v. London and N. W. Ry. Co., 35 L. J., Ch. 831; 2 L. R., Eq. 524.)

PLEDGE. (Bailment-Debentures.)—The question was, whether, where debentures have been deposited as security for the payment of a bill of exchange, with a right on the part of the depositee to sell or otherwise dispose of the debentures in the event of non-payment of the bill,-in other words, as a pledge,—and the pawnee pledges the securities to a third party on an advance of money, the original pawnor, the bill of exchange remaining unpaid, can treat the contract between himself and the first pawnee as at an end, and, without either paying or tendering the amount of the bill of exchange, for the payment of which the security has been pledged, bring an action of detinue to recover the thing pledged from the holder, to whom it has heen transferred; Held unnecessary to determine whether a party with whom an article has been pledged as a security for the payment of money has a right to transfer his interest in the thing ple lged (subject to the right of redemption in the pawnor) to a third party. But observed, that such a right in the pawnee seems inconsistent with the undoubted right of the pledgor to have the thing pledged returned to him immediately on the tender of the amount for which the pledge was given. Held that the transfer of the pledge does not put an end to the contract, but amounts only to a breach of contract, upon which the owner may bring an action for nominal damages, if he has sustained no substantial damages, for substantial damages if the thing pledged is damaged in the han is of the third party, or the owner is preju liced by delay in not having the thing delivered to him on tendering the amount for which it was pledged. It was not a case of lien, which is merely the right to retain possession of the chattel, and is immediately lost on the possession being parted with, unless to an agent of the party having the lien for the purpose of its custody. In the contract of pledge the pawnor invests the pawnee with much more than the mere right of possession. He invests him with a right to deal with the thing pledged as his own if the debt be not paid and the thing redeemed at the appointed time. Held, in accordance with Johnson v. Stear, 15 C. B., 330, that a pawnor cannot recover back goods (and the same principle would obviously apply debentures) pledged as security for the payment of a debt or bill of exchange until he has paid or tendered the amount of the debt.-(Donald v. Suckling, 35 L. J., Q. B., 232; 1 L. R., Q. B. 585.

NUISANCE. (Master and Servant.)-The workmen of a colliery owner stacked the refuse of the colliery, so that it fell into a navigable river and caused an obstruction therein. The master being indicted for a nuisance, was held liable, notwithstanding that he did not personally superintend the works, and that he had given express orders to the workmen to deposit the refuse in a particular place, where it would have done no harm, and not to put it in the river.-(The Queen v. Stephens, 35 L. J., Q. B., 251; 1 L. R., Q. B. 702.)

NULLITY OF MARRIAGE.-(Impotency.)-After a cohabitation of fourteen years, a woman presented a petition in the Divorce Court for a decree of nullity of marriage, on the ground of the man's impotence. The report of the inspectors and the medical evidence shewed that she was virgo intacta et apta viro, and that there was no apparent defect or malformation in the man. The Court was satisfied that the marriage had never been completely consummated, but was not satisfied that the non-consummation arose from the incapacity of the man, and, therefore, dismissed the petition:-Held, by the House of Lords, reversing the decree of the

Court below, that the woman was entitled to a decree that the marriage was null and void, on the ground that the cohabitation had been for a much more lengthened period than was required to raise the presumption against a husband, and that the onus was thrown upon the respondent, either of disproving the facts, or of shewing, by clear and satisfactory evidence, that the result was attributable to other causes than his own impotency.-Lewis v. Hayward (H. of L.), 35 L. J., Prob. & Div. 105.)

INTERNATIONAL LAW.-(Testator domiciled abroad.)-A domiciled Scotchwoman executed in Scotland, in the English form, a codicil, purporting to be made in the exercise of powers conferred by English settlements and an English will: Held, with hesitation, that the codicil, purporting to be under a power, was entitled to probate, though invalid by the law of the domicil of the testatrix.—(In the goods of Hallyburton, 35 L. J., P. & D. 122.)

FOREIGN JUDGMENT.-A suit was brought in the Court of Probate as to the succession to the personal estate of the deceased, who died domiciled abroad: Held, that a judgment of the Court of the domicil is binding and conclusive as to any question raised in the Court of the domicil between the same parties, and in relation to the same succession. The Court of Probate has no jurisdiction to determine whether such a judgment is according to the law of the country where it was pronounced.-(Doglioni v. Crispin (H. of L.), 35 L. J., P. & D. 129.)

SHIPPING. The owners of a vessel are bound to pay the costs of defending the master against a false criminal charge made abroad by some of the crew, in consequence of having been previously corrected by him in the course of his duty.— (The James Seddon, 35 L. J., Adm. 117.)

PRIZE (Capture-Co-operation)-All prize belongs to the Crown, which, for at least 150 years, has been in the habit of granting it to the "takers." The "takers" are either actual or constructive. Actual capture" is the rule always followed in the adjudication of prize, except in cases in which the application of constructive capture is well-recognized and established. The prize Court will not enlarge the doctrine of constructive capture. "Joint captors" are those who, not being themselves the actual captors, have assisted, or are taken to have assisted, the actual captors by conveying either encouragement to them, or intimidation to the enemy. Meritorious service is not in itself sufficient to constitute a person a joint captor. Claims of joint capture rest either upon association or co-operation. "Joint captors, by reason of association," claim in virtue of some bond of union existing between themselves and the actual captors. Claims by reason of co-operation are founded on aid rendered on the particular occasion to the actual captors. When association exists, a capture by one enures to the benefit of all. The others need not be co-operating further than that each, at the time of the capture, should be discharging the part assigned to him of the service for which all are associated -union under the immediate command of the same officer, and that union alone, constitutes the title to joint sharing. If the bond of union has ceased to exist at the time of capture, community of enterprise is insufficient for a title to share by reason of association. The limits of co-operation are those within which encouragement to the friend and intimidation to the enemy in fact operate.-The Banda and Kirwee Booty, 35 L. J. Ch., 17.

CHARTER-PARTY (Guarantee.)-Defendants chartered plaintiffs' vessel, to go to A., and there load a full cargo of oil for London, at a freight which would have amounted in all to £1200. Not being able to load such cargo, a new contract was made, cancelling the charter-party, and plantiffs were to put the vessel on the most profitable charter or trade procurable, and defendants guaranteed " £900 gross freight home." Plaintiffs could only procure a cargo the gross freight of which to London was less than £900, and the vessel accordingly left A. with such cargo:-Held, that the breach under the guarantee accrued when the vessel so left A. with a cargo not sufficient to earn £900 freight, and defendants were, therefore, liable for the amount of the deficiency, notwithstanding the ship and cargo were totally lost on the voyage.-Carr v. the Wallachian Petroleum Co. (Lim.), 35 L. J. C P., 314.