Superior Courts: Common Pleas. bringing under discussion every thing referred to by its provisions. With regard to Fairclough's case, the question of deviation sought to be raised did not arise between the plaintiffs and the defendant. The provisions of the act in this respect were referable to disputes which took place between the company and the public, and not to such as should occur among the proprietors. The plea that fewer shares were issued than the act required, must there be struck out. The plea alleged that 36,000 shares were authorized to be issued, and that there were only 35,000 in the company; but the 136th clause absolutely provided that the capital should be divided into 36,000 shares of 501. each, which might be increased in number, the value being diminished, under the 138th section of the act, and the directors could not be made answerable, by reason of their inability to sell or otherwise dispose of any of them. Crompton, in support of the rule, contended that the defendant Wilson sought only to put in issue those facts which were necessary for his defence, and which would not be traversed by a plea of the general issue only. The power to make calls was conditional only, and the directors could not exercise that power for other purposes than those connected with the work which they were authorized to carry out. There could be no inconvenience in the pleas being pleaded to the plaintiff, for the proof would lie on the defendant. Cowling, for Fairclough-The Court would not reject the plea of deviation, unless they saw that the plea was clearly bad. The provision which related to deviations was intended as much for the benefit of the subscribers as of the landowners and the public. With regard to the plea, which alleged fewer shares to be in existence than were provided for, the object of the legislature in requiring so many shares to be made was to protect the subscribers, and when they became proprietors, it was under an impression that the work was to be carried out in a certain manner. If, however, so few shares were called into existence, they could hardly be called upon to pay, because the contract was not fulfilled by the directors. 175 of such share or shares in the said undertaking as such action is brought in respect of, or some one such share, and that such notice was given as is directed by this act of such call or calls having been made." Now these facts are only provided for in the negative, it is true: "It shall only be necessary;" but it is in fact directly ordered, and the plea of never indebted will clearly call upon the plaintiff, before this debt can be said to be recoverable, to obey those conditions which are imposed upon him. With regard to the plea that the calls were made for other purposes than those mentioned in the act, I think that it cannot, in justice to the parties concerned in this litigation, be allowed to be put on record. It would be exceedingly difficult to prove, if the onus were thrown on the plaintiff, for who could shew what was the intention of the parties when the money was called for? and is it at all material what they were? The only difference would be that the money might be applied to other purposes than those intended, that although it was called for with a certain intention, that intention might not be carried out. But the act has made a call, when properly made, an absolute debt, and it is limited to that. The 148th section, after providing what I have already said as to the evidence to be given by the plaintiff, then enacts, " and the said company shall therefore be entitled to recover what shall appear to be due, including interest." It is observable, therefore, that if we were to grant these pleas, which seek to put the defence on a different footing from that which is properly authorized, we should proceed in opposition to the statute, which provides that the money shall be recovered in a certain way. With regard to the question of whether the money is due for proper calls, that should not be discussed in a court of law. It belongs to a different quorum, and to another place, and if the parties oppose the proceedings of the directors, it is their duty to discuss the matter at a general meeting of the society, and if the general meeting is so far distant as to render such a course inconvenient, then within a certain time they may call a special general meeting, under the terms of sect. 172. Tindal, C. J.—The power given to the Court by the statute of Anne is discretionary, The other plea that a deviation has taken and I think that the pleas sought to be pleaded place in the line of railway, leaves the matare such as do not involve the justice of theter in a more tangible shape: it alleges a decase. The first two pleas desired by Wilson viation, and says that the money is called for to be pleaded are quite unnecessary, because, to pay the expences incurred in consequence. in fact, the subject-matter, which they propose Now, what would be the effect of allowing to deny, must be proved by the plaintiffs in such an answer to be set up? If any deviation the evidence which they must give in support to the extent of three yards only were made, of the declaration. They are that due notice with the consent of the parties who owned the of the calls were not given, and that no time land adjoining the works; and a call were or place was appointed for their payment, nor afterwards made, every proprietor might stay persons to whom they should be paid. Now, his hand, refuse to pay his call, and the whole looking at the 148th section of the act, it is ex-proceedings would be broken up altogether. pressly provided, after its being directed in what way the plaintiff shall declare, that " on the trial of such action it shall only be necessary to prove that the defendant at the time of making such respective calls was a proprietor It is really so monstrous a proposition, and so unlike anything in the act, that it cannot for one moment be sustained. Then as to the plea, that at the time of the calls being made there were not 36,000 shares 176 Superior Courts: Exchequer of Pleas.-The Editor's Letter Box. in the company, on what does that stand? Sec. 136 enacts that notwithstanding anything in the several subscription deeds or contracts relating to the said several lines contained, the capital of the company hereby incorporated shall be 1,800,0007. divided into thirty six thousand shares of 50%. each." It is impossible therefore that the plea can be true. There may not be 36,000 shares called into action perhaps, or for which subscribers have been found; but the act specifically provides that the capital shall be of a certain amount, "divided into 36,000 shares." It seems to me then, that these pleas are rather calculated to raise difficulties than to set up any good ground of defence, and none of them can be allowed. was held, that the defendant might, under the general issue, give in evidence the fact of the plaintiff having mortgaged the premises prior to the commencement of the tenancy, and that the mortgagee had given him notice not to pay the reut to the mortgagor, but that under such plea he could only discharge himself as to the rent which accrued due after the notice, and that in respect of the by-gone rent, the matter must be specially pleaded That that decision was given on the ground that an occupation by consent of the mortgagee had taken place, and that there was a right of action against the defendant up to the time of giving the notice. The Court considered, that as to such rent the facts only amounted to a confession and avoidance, as the character and consequences of the Bosanquet, J.-I am of the same opinion, by-gone occupancy could not be altered by the and I think that the first two pleas sought to notice. In the present case there has been an be put on the record are quite unnecessary, occupation, in part, up to the time of the evicbecause the plaintiff will be bound to prove the tion. If the general issue alone was pleaded, facts which they would traverse. As to the the plaintiff might produce, at the trial, the other pleas, independantly of any other agree-written agreement under which the defendant ment, I think that under sec. 148, it is not held, and that would be evidence of the concompetent to the defendant, when the plaintiff tract declared upon. has proved what he is directed to prove, to set up the defence; and this observation applies with more force to the plea, that the calls were made for other purposes than those mentioned in the act. The consequence of allowing that plea would be this, that if the directors of the company, which was catablished for certain purposes, should do any one thing illegally which cost money, the defendant could set up as a defence, that that expence had been in-wise, currred and that the calls were made for the purpose of paying it. Maule, J.-I also think that these pleas are against the policy, as well as the express terms, of the statute, and ought not to be allowed. Rules discharged.-The Brighton Railway Company v. Wilson; Same v. Fairclough, M. T. 1839. C. P. Grchequer of Pleas. USE AND OCCUPATION.-EVICTION UPON ASSUMPSIT.-SPECIAL PLEA. To a count for use and occupation, the defendant pleaded specially an eviction during the quarter for which the rent was sought to be recovered: held bad, as amounting to non assumpsit. This was an action of assumpsit for the use and occupation of certain apartments. There was a special demurrer to the defendant's plea, assigning for cause that it was an argumentative traverse of the contract mentioned in the declaration. Hurlstone supported the demurrer, but was stopped by the Court. Dowling, in support of the plea. The plea confesses and avoids the action. It admits the contract as alleged in the declaration, but shows, that the right to recover the rent for a certain period is suspended by the eviction of the defendant. In Waddilove v. Barnett,a which was an action for use and occupation, it a 4 Dowl. P. C. 347. Parke, B.-The promise laid in the declaration arises by implication of law, from the fact alleged; namely, "that the defendant held and enjoyed the premises by the sufferance and permission of the plaintiff. The general issue would deny that fact, and this plea is bad as having an argumentative traverse of the facts from which the implied promise arises. The defendant may have liberty to amend, other - Judgment for the plaintiff. Prentice v. Elliott, M. T. 1839. Exch. THE EDITOR'S LETTER BOX. The new Penny Postage is to come into operation on the 10th of January. Such of our Country Subscribers as desire to receive the Legal Observer by Post will please to send their names to the Publisher. We shall state the mode in which it will be supplied in our next Number. After the hearing of the appeal by the Judges, reported p. 136, unte, we are informed that a meeting of the Board of Examiners was held to consider the circumstances of the appellant's case; and after much consideration of the particular case, and its bearing on but with reference to the mode of proceeding other cases, not only at the saine examination, in future, the Examiners deemed it right to decline any further examination at present. The Letters on the Preliminary Examination of Articled Clerks; and on the Non-payment of Country Agents; will be inserted in an early Number. We cannot undertake to insert or answer the various Queries which are sent us, although we occasionally find room for the discussion of useful points. Erratum, p. 137, last line, insert "not" before the words " exceeding half an ounce weight." REFORM IN CHANCERY. of persons on these and other such subjects. And we think, upon the whole, that it would be best to follow the precedent already made, We have now for some years been humble [that of the common law commission] and to but zealous labourers in the cause of Chan-vest in the Lord Chancellor, the Master of the cery Reform, and besides our own remarks Rolls, the Vice Chancellor, the Lord Chief and suggestions, and those of our corres- Baron, the Equity Baron of the Exchequer, pondents, we have brought before our read-one of the Masters in Chancery, and one emiers the several plans for effecting it of Mr. nent barrister, or any five of thein (the Lord Lynch, Mr. Garratt, Mr. Miller, and Mr. Chancellor being always one) the power of altering all proceedings in the Courts of Equity, Spence, gentlemen of very different politics, and of directing new modes of pleading and two being Tories, and the other two being taking evidence if necessary, so as to shorten Reformers, but all concurring in this, per- and simplify, and render less expensive the haps the most called-for, of all reforms. We proceedings in those Courts. This is a power cannot commence the year 1840 to better which parliament cannot exercise in person. + We think, therefore, that the advantage, as we think, than in renewing public good would in the end be best attained the subject, and we do so for the purpose of by the arrangement we propose,-and it has at gladly hailing another labourer in the vine-least one merit, that it would cost but little; yard-the Quarterly Review, which has for of course all those eminent persons who are often before assisted the cause of judicious already in office would not have any increase of law reform. In the number for December, salary, but would consider this as only a part of just published, we find a sensible article on their judicial duties. These regulations should have the effect of laws enacted by parliament; the state of the Equity Courts; and as we but in order that there may be reserved to each conceive that our readers are now pretty branch of the legislature a complete veto, acwell 'acquainted with the present state of cording to the precedent to which we have rethe question, we think we cannot do better ferred, they should, although acted upon imthan give the remedy for the admitted mediately, be laid before parliament within a grievance proposed by the reviewer. He limited time, which should be as short as posbegins by stating "the existence of a gene-sible, and if either house, by resolution, disral conviction amongst well-informed and sented from all or any of them, the whole, or that part dissented from, should thenceforward able men that considerable reforms are re-be void. The veto of the crown, in like manquired in our Courts of Equity, and that the ner should be preserved by not allowing them time is fast approaching when some attempt to be acted upon at all till published in the to carry them into effect must be made by Gazette by order of the Privy Council." the legislature;" and then, after briefly re- So far for a mode of altering the defects ferring to the long list of causes set down for in Equity Pleading. Now for the disposing hearing, the difficulties and delay of obtain- of the existing arrear in causes and other ing it, and the great inconvenience of the business before the Courts, which the writer " in the established rule in equity pleading, that all says, and truly says, is increasing persons interested must be parties, the Court of the Master of the Rolls as well as writer proceeds to propose the following in those of the Chancellor and Vice Chanplan: "It is expedient to give a power, not merely of deliberation, but of legislation, to some body VOL. XIX. NO. 567. cellor." "Some additional assistance must therefore be provided, and two plans seem to have been all the judges of the Courts of Equity. But we have no doubt that it will be found necessary to carry both plans into effect, and we are clearly of opinion, with Lord Langdale, that any expense incurred for that purpose, will be found to be the truest economy.” presented to the attention of the legislature; one being to establish a new judge in the Court of Chancery, and the other to increase the efficiency of the Equity Court in the Exchequer. We are inclined to think that both plans should be carried into effect, and that the addition even of these two judges would But the reviewer also glances at a pro rather fall short of than exceed the necessity of the case. The advantage of the former tempore and extraordinary mode of disposplan, in case one only be persevered in, is, no ing of the existing arrear, which has already doubt, the uniformity which would be pre- been suggested in these columns: we mean served, both in questions of practice and in the appointment of a temporary commission, the ultimate decision of the causes, by the to consist of persons having held the great general superintendence on appeal which the seal, annexing to such appointment a salary Lord Chancellor would exercise over the whole of 70001. a-year, which would be during the of his Court. On the other hand the economy of the latter plan is a powerful reason for joint lives of Lord Cottenham, Lyndhurst, adopting it. At present, we have, in the Ex- and Brougham only an additional expense of chequer, a Court complete, or nearly so, as to 20007. a-year each. This would be in acall its officers-and only requiring a judge cordance with a suggestion originally made constantly presiding there, and, if we mistake by Lord Eldon, who always said that an Exnot, (and we have no doubt that our informa- Lord Chancellor should do something for his tion is correct,) even the salary of an additional baron might be provided for out of the suitor's salary. If this suggestion be seriously enfund of the Court of Exchequer, without cost- tertained, we think it should be made to ing the country a single farthing. The pre-extend to the Great Seal of Ireland as well sent annual surplus of the interest on that fund as that of England, as it would thus render (after providing for certain salaries of the offi- available the services of Sir EdwardSugden cers of Court, amounting to 2,100l. per an- and others. num) exceeds 7,000l., and it is accumulating now to no very useful purpose. If, however, this fund were thus applied, the government might perhaps be called upon to undertake to guarantee the suitors against any possible risk. We do not apprehend that, if this were done, the danger to the revenue would be very imminent. In truth, no guarantee is requisite, for this fund is the produce of the investment in the stocks of a portion of the sums paid in for temporary purposes, and which the suitors do not wish to be invested at interest for their benefit. These sums had, till lately, been paid into the Bank of England, and the average balance, bearing no interest, was very great, productive in fact, of benefit only to the bank. A power, therefore, was given to invest a part of it in the funds, leaving a sufficient balance to answer all current demands. The increase of the business of the Court would probably increase this fund, in like manner as the surplus of deposits at the bank increases with the increase of the business of the firm. We, therefore, if we were to a One important difference between the choose between the two plans in the present Equity Court in the Exchequer and the Court state of the finances of the country, would of Chancery exists, which we should have prefer the latter; and in order to obtain that thought needed only to be mentioned in order uniformity of decision, which we agree cannot that it might be corrected. There are fees be too highly valued, we think it worthy of payable in name to the Queen's Rememconsideration, whether the immediate appeal brancer, but in reality, to the Treasury, which from the Court of Exchequer in Equity might are levied on the suitors, in addition to those not be well transferred from the House of payable, as in the Court of Chancery, to the Lords to the Lord Chancellor, limiting, per-officers of the Court. For these additional haps, the ultimate appeal to the House of Lords, to those cases where the decision of the court below is reversed by the Chancellor. In addition to this, the practice should be made uniform, in the same manner as was done in the three Courts of Common Law, by orders from the body before alluded to, consisting of We shall also extract the observations of the reviewer as to the Masters' Offices; and he very properly says that, unless the reform extends to them, it will be of very little use. It will be seen that we have had the good fortune to anticipate most of his suggestions in the remarks we recently made on the same subject. But they cannot be brought before the public too often until the grievance be remedied. "Now to the third stage, the Master's offices. Here also additional help is possibly needed; but before it is applied for, the public ought to be fully satisfied that all is done which can be by the present staff. In order to accomplish this purpose, we are clearly of opinion that it is necessary that the Masters should do their business in public, and should take their cases in orderly rotation, if possible. Every one who is behind the curtain, knows how great fees no business is done, yet, though, as we are informed, both Lord Abinger and Mr. Baron Alderson, have repeatedly brought this shameful anomaly before the proper authorities, they have as yet done so without obtaining redress for the suitors. b See antè, p. 98, 99. Reform in Chancery.-Practical Points. 179 Here we shall leave the subject for the present. But we shall shortly bring before our readers the actual state of the business now in arrear-a painful but a necessary duty. PRACTICAL POINTS OF GENERAL INTEREST. JOINT-STOCK COMPANY. We have from time to time given most of the recent cases as to joint-stock companies. We add the following: facilities for delay the want of publicity affords. | the division of labour we have suggested, and The Master sitting in public becomes a judge- the sending of accounts to accountants apif he is not punctual to his time, if he is uncer-pointed by the Court, who should act under the tain in his decisions, or if he allows frivolous superintendence of the Masters, would probably reasons for postponement, he loses reputation be found sufficient." -and besides, the pivacy of a Court allows of the holding of office by inferior persons. These appointments are now no longer in the gift of the Lord Chancelior, but have been (without very good reason we think) transferred to the prime minister: and we have an old-fashioned constitutional jealousy, in which we believe the public to participate, lest they should be given to brawling politicians, rather than to accomplished lawyers. We would therefore wish them to sit in public at given times and in given places, and to hear the matters referred to them, not as they do now, by many and short instalments, at long intervals, but in orderly rotation, and if possible, to an end in one or two hearings. There is another A contract was entered into by certain arrangement also, which we should wish to see adopted. The references to these officers are persons being directors of the "United on various subjects. Sometimes they are called Mine Company." There were originally upon to determine whether a complete title to seven directors; two of them were dead landed property can be made by a vendor to a before the alleged contract; a third had purchaser; sometimes to wind up a long and become previously bankrupt, since which intricate mercantile account under a partner- time he had ceased to take part as director ship; sometimes to trace out a fraud. These in managing the concerns of the company. and various other matters obviously require The remaining four directors brought an talent and information of wholly different kinds. Why is the division of labour not re-action; and the question was whether the sorted to? The causes, we believe, are re-bankrupt director should not have been ferred to each Master in a sort of rotation; and the consequence is, that when, for instance, a conveyancing question goes to a non-conveyancing Master, the unhappy parties have often to lay a case before some eminent conveyancer, in order that the Master may come to a proper decision. This ought not to be the case. Why are not all such cases referred to a Master specially appointed for his knowledge of them, who by that very knowledge, and the devotion of his understanding to one subject, would not only decide with greater dispatch, but with incomparably greater satisfaction to all parties?—and in like manner as to other subjects. As to accounts, which occupy a great portion of the time, and cause much of the expense, why are these not taken from the Masters in Chancery, and referred to accountants specially appointed to take them, under the superintendence of the Masters?-mercantile men or attornies, or the like, might then be appointed with great advantage for those purposes. Again; why is one Master constantly employed in signing affidavits and other inere routine details, when the business is in fact done before his desk by an officer, who might just as -well act in person, and who, if he did so, would set one more master at liberty, who might then be employed to do important work for the real benefit of the suitors? These, and we doubt not, many other arrangements, might be made, and if made, might increase the power in the Mas. ter's offices. If, then, their number still remained insufficient to keep up with the increased speed of the Court, more Masters must be appointed. But we own we think that This com made a party to the suit. In the judg- HASTY BRIEFS. The The following case on another point may be useful, by way of hint to some of our friends: In a country cause, where issue was joined in Hilary Term, notice of trial given on the 12th of February, and the cause settled on the 16th, the Master disallowed, on taxation of the plaintiff's costs, one half of the charges for the briefs, conceiving that they |
