THE law as to shares in joint-stock companies is still in so unsettled a state, and is yet, from the large capital embarked in them, so important, that we lose no opportunity in bringing before our readers every case connected with them as early as possible. We now invite their attention to two cases, very recently decided, which bear on this subject. soundness of Lord Tenterden's opinion in Bryan v. Lewis, and this case of Wells v. Porter was confirmed by the subsequent decision of Ebsworth v. Cole. ported, it would render void all contracts to supply the army and navy, workhouses, and almost every public institution;" and Baron Parke delivered the following judgment: And in a very late case,e the rule laid down in Bryan v. Lewis has been disregarded. In this case the plaintiff contracted to sell to the defendant fifty shares of the Brighton Railway Company, to be transferred on the 1st of March, 1839, and the defendant pleaded in bar of the contract, that at the time of the agreement In the case of Lorymer v. Smyth,a Lord plaintiff was not possessed of the shares, nor Tenterden, C. J., said, "the bargaining to had a reasonable expectation of becoming deliver corn not then in possession of the possessed thereof, otherwise than by purvendor, and relying upon making a future chasing the shares after the time of purchase in time to fulfil his undertaking, making the agreement. In the course was a mode of dealing not to be encouraged;" of the argument Mr. Baron Maule, said, and in the case of Bryan v. Lewis, the" that if Lord Tenterden's doctrine was supsame learned Judge at nisi prius held, that where the agreement was that the goods should be delivered by a certain day, and the vendor, at the time of the contract, neither had the goods in his possession nor had any reasonable expectation of obtaining them by consignment, but intended to go into the market and buy them, this was a wagering and improper speculation, and the vendor could not maintain an action for nonperformance of the contract. But this case has been much shaken, and may now be considered entirely overruled. In the case of Wells v. Porter, a plea to an action for work and labour, that the work was done by the plaintiff as a broker, in making time-bargains in foreign funds, was held bad on demurrer; and Bosanquet, J., there expressed his doubts as to the a 1 B. & C. 1; 2 D. & R. 23. b 1 Ry. & Mor. 386. VOL. XIX. No. 575. : "I have also entertained considerable doubt and suspicion as to the correctness of Lord Tenterden's doctrine in Bryan v. Lewis, Ry. & M. 386: it excited a good deal of surprise in my mind at the time, and when examined, I think it is untenable. I cannot see what principle of law is at all affected by a man's being allowed to contract for the sale of goods, of which he has not possession at the time of the bargain, and has no reasonable expectation of receiving. Such a contract does not amount to a wager, inasmuch as both the contracting parties are not cognizant of the fact that the goods are not in the vendor's possession; and even if it were a wager, it is not illegal, because d 2 Mee. & W. 31. e Hibblewhite v. McMorine, 5 M. & W. 462. Y it has no necessary tendency to injure third | subscriber to the company, and it limits the parties. The dictum of Lord Tenterden, cer- answer to be given to that claim of debt;tainly, was not a hasty observation thrown out by him, because it appears from the case of Lorymer v. Smith, 1 B. & C. 1; 2 D. and R. 23, that he had entertained and expressed similar notions four years before. He did not indeed, in that case, say that such a contract was void, but only that it was of a kind not to be encouraged; and the strong opinion he afterwards expressed appears to have gradually formed in his mind during the interval, and was no doubt confirmed by the effects of the unfortunate mercantile speculations throughout the country about that time. There is no indication in any of the books of such a doctrine having ever been promulgated from the Bench until the case of Lorymer v. Smith, in the year 1822; and there is no case which has been since decided on that authority. Not only, then, was the doubt expressed by Bosanquet, J., in Wells v. Porter, (2 Scott, 141; 2 Bing. N. C. 722,) well founded, but the doctrine is clearly contrary to law. This plea, therefore, is bad in substance, and it is unnecessary to consider whether it is bad in form." if he has not paid the sum which is so called for, the company shall be entitled to recover what shall appear due on such calls, unless it shall appear that the principal monies previously paid on any such share, together with such call, exceed the sum of 501,' If we were to grant the pleas which are sought to be used as defences to the action, we should be repealing those directions of the 148th section of the statute, which enact that the money shall be recoverable upon certain proof being given to the plaintiff. This being a debt created by act of parliament, it is clear it was never intended that, in calling on a Court to decide whether a sum for the subscription is due or not, the parties should litigate matters which belong to another forum; if the subscribers are dissatisfied with the mode in which the money is applied, the proper place. and time to dispute that, is when a general meeting is called;-they are there to express their disapprobation of the conduct of the directors. Or if the general meeting is at a great distance, and the question cannot be delayed, and there is a sufficient number In the other casef to which we would ad- of persons to dispute the propriety of the vert, by the terms of a Railway Act the proceedings, they can call a special meeting directors were entitled to recover for calls by giving twenty-one days' notice thereof. in arrear, upon proving that the defendant It seems to me it was never intended, nor was a proprietor, and that notice of the calls ought it to be allowed, that so general was given according to the act, unless the a question as that should be litigated in defendant should prove that he had paid the question whether a call is due from the full amount of his subscription. De- an individual subscriber. The next plea fendant having pleaded to an action for on which it is contended the defendant calls, that he was not indebted, and was has a right to rely, puts the last question not a proprietor, the Court refused to allow in a more tangible and close compass; him to add pleas that due notice of the calls was not given; that no time or place was appointed for payment; that the calls were made for purposes other than those warranted by the act; that they were made after deviations in the line, and that fewer shares were allotted than the act required. It will be observed that this decision turned a good deal on the construction of the particular act, especially as to the three first pleas; but the following portion of the judgment of Tindal, C. J., appears to us of great importance, so far as the general question is concerned. for it states that there has been a deviation from the original line, and that the money is called for in respect of such deviation. The effect of allowing such an answer as this would be, that if there is any deviation to the extent of three yards, with the consent of the person whose lands immediately adjoins, and at the wish of the directors and of the company generally, every individ-ual subscriber, from the moment that deviation is made, may stay his hand and refuse his call, and the whole concern be broken up altogether. Such a proposition cannot for a moment be sustained. The last plea which is sought to be placed on this record, is, that at the time the calls were made, there were not 36,000 shares in the company. Let us just see on what that stands. The 136th section of the act enacts that not. f London & Brighton Railway Company v.scription deeds or contracts relating to the withstanding anything in the several subWilson, 6 Bing. N. C. 135. "The only possible ground on which the complaint can be urged by the defendant is, that the monies were applied in a way different from that directed by the statute. The act makes the call a debt due from the The Precedence of Prince Albert. our uncle 307 maintaining and conducting of our affairs. We have, therefore, as well by the consent of our said uncle, as by the advice of other the Lords and the rest of the Privy Council, willed, ordained, and appointed, that our said uncle shall sit alone, and be placed at all times said several lines, the capital of the company | and appointed to him in our High Court of hereby incorporated shall be 1,800,000l., Parliament, as is convenient and necessary, as divided into 36,000.' I cannot see how it well as in proximity of blood unto us, being is possible to say there are not 36,000 as well as for the better shares there may not be 36,000 called into action on which the subscriptions are sent in and the money forthcoming; but if there is the capital of 1,800,000l., the act says it is divided, and there are the 36,000 shares, if not in fact, yet in contemplation of; law. It seems to me, therefore, that it is not an available plea. All the pleas suggested seem to me rather calculated to raise difficulties than to put forward any just ground of defence." We have already endeavoured to state the law respecting the precedency of Prince Albert, (see ante, pp. 273, 274) A pamphlet has been subsequently published, entitled "The Precedence Question," which mainly confirms the view we have taken, and adds some additional facts in support of them. The writer, (who is said to be a gentleman of considerable rank in the Privy Council,) after quoting the authorities we have already cited-pretty much in our own words, Blackstone, Lord Coke, and Selden, comes to the conclusion that the 31 Hen. 8, c. 10, did not restrain the prerogative of the Crown as to precedency, except so far as the words of that statute extend. in our said Court of Parliament, upon the bench or stole standing next our seat royal, in our Parliament Chamber. . And further that he do enjoy all such other privileges, pre-eminences, &c. &c. The statute concerning the placing of the Lords in the Parliament Chamber and other assemblies of council, made in the thirty-first year of our most dear father, of famous memory, King Henry Peerage.) VIII, notwithstanding. (Rymer, 15; Collins' "This instrument must, under the circumstances, be taken as the act of Somerset himself; and it is inconceivable that he should behalf, that for which the plenitude of Henry have had the audacity to attempt in his own VIII.'s power had been deemed insufficient, or to have perpetrated in the name of a minor king, a direct and useless violation of a recent statute, more especially when the same ob ject might have been as easily accomplished by the authority of Parliament, where the Protector's popularity would have ensured a of the case receives confirmation from the ready compliance with his wishes. This view total absence of any allusion to this grant in the charges which were soon afterwards urged against him-every thing that malice could devise was raked together for the purpose of swelling the articles of impeachment, but neirate, nor afterwards when he was deprived of ther when he was degraded from the Protectolife, was any accusation brought against him, tending to shew that these letters patent were considered illegal or unconstitutional.” And the writer goes on to consider the precise effect of the statute, and he points out incidentally the peculiar situation of Prince George of Cambridge. "It may seem surprising or paradoxical to assert, and many may with difficulty believe, that Prince George of Cambridge is entitled his royal birth, but such, nevertheless, is unto no precedence of his own, inseparable from "There exists what may be deemed very fair evidence, to show that in those days the royal prerogative as to precedence, was never supposed to be abridged by this act, but on the contrary that it still continued to flourish in undiminished force. Only two months afterwards Henry was divorced from Aune of Cleves, when, as is well known, he bribed her into compliance with his wishes, by a liberal grant of money and of honours. By his letters patent he declared her his adopted sister, and gave her precedence before all the ladies in England, next his queen and daughters, and therefore before his nieces and their children, who were directly in the succession to the Crown. (Burnet Refn. v. i, p. 565.) Ondoubtedly the fact. By law, he can only take the 3d November, 1547, Edward VI. granted phew, of the reigning Sovereign, none of royal rank as the son, brother, uncle, or neto his uncle, the Duke of Somerset, immedi- which he is, and he derives none whatever ately after his victory in Scotland, letters patent of precedence, in the following terms: “As our most dear uncle Edward, Duke of Somerset, by the advice of the Lords, we have to be governor of our person and protector of our realm during our minority, hath no such place appropriated The Duchess of Suffolk, and the Countess of Cumberland, daughters of Charles Brandon and Mary, Queen Dowager of France. named from having been nephew of William IV. and 308 The Precedence of Prince Albert. "The practice, however, does not wait upon "The result, then, appears to be, that in the right, and is regulated by the universal the olden time, the king had unlimited power sense and feeling of the respect and deference in matters of honour and precedence, and which is due to the Blood Royal of England. could confer whatever dignity or pre-eminence The Archbishop of Canterbury does not take he thought fit, upon any of his subjects. That a legal opinion or pore over the 31st of Henry this power has been expressly restrained, quoad VIII. to discover whether he has a right to the Parliament Chamber and the Council, but jostle for that precedence with the cousin, exists unfettered in all other respects. which he knows he is bound to concede to the uncle, of the Queen; but he yields it as a matter of course, and so uniform and unquestionable is the custom, that in all probability neither the prince nor the prelate are conscious that it is in the slightest degree at variance with the right. "In Parliament, (should Prince Albert be created a peer), he would only be entitled to a seat at the bottom of the degree to which he might belong, and he would be expressly probibited from sitting nearer to the throne. In the Privy Council, likewise, (if made a Privy Councillor) he would be entitled to no especial "The obscurity which involves the question place, but every where else, at ceremonials of of precedence, and the prevailing doubts as to every description, at royal marriages, christenthe extent of the royal prerogative, proceed, in ings or funerals, at banquets, processions, and a great measure, from the intermixture of courtly receptions, at installations and investilaw and custom, by which the practice is re-tures, at all religious, civil, or military celegulated and enforced. The table of prece-brations, upon all occasions, formal or social, dence, the authority of which is recognised for public or private, the Queen may grant to her all social and ceremonial purposes, rests upon husband an indisputable precedence and prestatutory enactments, ancient usages, and the eminence over every other subject in the king's letters patent; usage creeping in to realin. It will probably be less difficult to disarrange the order, and break the links of obtain a concurrence of opinion as to the the chains forged by the law; for, while the extent of the Queen's constitutional right in 31st of Henry VIII. places earls after mar- granting precedence, than as to the manner in quises, custom interposes and postpones the which it would be morally fit, and just to former to the eldest sons of dukes, (and so of others, that this right should be exercised." marquis's eldest sons and viscounts,) though these are only cominoners in the eye of the law. Now, as no custom (unless expressly saved), can prevail against the force of a statute, this renders it still more clear, that nothing was intended by the 31st Henry VIH. but the placing the lords" in Parliament, and that the question of general precedence, (with all the prerogatives of the Crown there unto appertaining,) was left untouched by it. In point of fact, the royal prerogative always has been, and still continually.is exercised, in violation of the order of the established table; for when the king, by his royal warrant, gives to one of his subjects having neither rank nor dignity, the place and precedence of a duke's or an earl's son, the individual thus elevated supersedes all those (below that rank) whose place and precedence is determined either by law or custom. And he thus then the question “upon the broad principle of moral fitness.” "The principle on which precedence is established, is that of propinquity to the sovereign, and no propinquity can be so close as that of the husband to the wife, nor does it. seem unreasonable that all other subjects should be required to yield the outward forms of honour and respect to the man who is elevated to a station so far above them, whom she is herself bound to "love, honour, serve, and obey," and who is superior to her in their natural, while still subordinate in their civil and political relations. Many people who are not unwilling to concede a high degree of precedence to the Prince, are very sensitive about the dignity of the heir apparent, and while they are content that he should precede his other children, would on no account allow him to be superior to a Prince of Wales. The difficulty in these cases is to establish a principle, but that difficulty is rendered much greater if when the principle is once admitted it is not taken with all its legitimate and necessary consequences. If the Prince is entitled to claim precedency over any of the Blood eLord Coke clearly distinguishes between Royal of England, above all others, he may precedence in Parliament and Council and claim it upon every moral ground, over his general precedence :-" Thus far for avoiding own children, nor is there any civil or political contention about precedency in Parliament, consideration in reference to the heir apparent, Star Chamber, and all other assemblies, Coun-requiring that an exception should be made cil, &c. Now, they that desire to know the in his behalf. There seem to exist confused places and precedency of the nobility and sub-notions, of something very extraordinary and jects of the realm, as well men as women, and transcendant in the status of a Prince of Wales, of their children, (which we have added the but the difference between him and his younger rather, for that the contention about precedency between persons of that sex is even fiery, furious, and sometimes fatal), we will refer you b Lord Herbert, in his Life of Henry VIII, says, in allusion to this statute, "it was declared also how the lords in Parliament should be placed," p. 218. to a record of great authority in the reign of Henry VII., entitled," &c.-4th Inst. 363. New Bills in Parliament. - Attorney's Certificate: Re-admission. 309 jects of this realm have been and daily are undone by such suits, contrary to the intention of the said statute of Queen Elizabeth, but the and increase; and that it is expedient to consame evil, notwithstanding, doth still prevail solidate and extend those provisions: and proposes to enact that the two said recited acts of the forty-third of Elizabeth and of the twentysecond and twenty-third of Charles the Second, so far as the same relate to costs in personal actions, be hereby repealed. brother is not very great, and the only positive | ings at law, which recites that many good subprivilege with which the law certainly and exclusively invests the heir apparent, is that of making it high treason to attempt his life "d The writer concludes with a very just compliment to the Duke of Wellington, which we have great pleasure in extracting. "It is much to be regretted that such heat and irritation have been manifested in the discussion of this question, and certainly between the proceedings in both Houses of Parliament, Prince Albert may well have thought his reception neither cordial nor flattering; but the truth is, that any mortification which either the Prince or the Queen may have félt, (and in her it is only natural, whether just or not) is at least, as attributable to the really objectionable nature of the propositions which were made as to the opposition which they encountered. 2. That if the plaintiff in any action of trespass, either to the person or to real or personal property, or for libel, slander, or inalicious prosecution, brought or to be brought in any of Her Majesty's Courts at Westminster, shall recover by the verdict of a jury less damages than forty shillings, such plaintiff shall not be entitled to recover or ob"Nothing herein is more to be deplored, tain from the defendant, in respect of such than that any mistaken zeal should misrepre- verdict, any costs whatever, whether it shall be sent the conduct, or any hasty impression given upon any issue or issues tried, or judg misconstrue the motives of the Duke of Wel-ment shall have passed by default, unless the lington. His whole life has been a continual judge or presiding officer before whom such manifestation of loyalty and of superiority to petty purposes, and unworthy inducements; but his notions of loyalty are of a nature which mere courtiers are unable to comprehend, because he always considers the honour and the interests of the Crown, in preference to the personal inclination of the Sovereign. "Of all men who ever lived he has sought the least, the popularity he has so largely acquired the tide of which, sometimes diverted by transient causes, has always returned with accumulated force. With him it is no echo of folly, and shadow of renown,' but a deep, affecting, almost sublime national feeling, which exults in him as the living representative of national glory. If there be an exception in any place to this universal sentiment, let us hope that the impression will not endure, that the cloud of momentary error will be dispersed, and that justice, ample and not tardy, will be rendered to "The noblest man That ever lived in the tide of time."" NEW BILLS IN PARLIAMENT. COSTS IN FRIVOLOUS ACTIONS. This is a bill to repeal so much of an Act of the forty-third of Elizabeth, intituled An Act to avoid trifling and frivolous suits at law in Her Majesty's Courts at Westminster," and of an act of the twenty-second and twenty-third of Charles the Second, intituled "An Act for laying Impositions on Proceedings at Law," as relates to costs in personal actions; and to make further provisions in lieu thereof. It recites that the 43 Eliz. c. 6, to avoid triffing and frivolous suits, and the 22 & 23 Car. c. 9, for laying impositions on proceed d It is also treason to kill certain judicial officers when in actual execution of their offices.-Hale, P, C. 13. verdict shall be obtained shall immediately afterwards certify on the back of the record (if the action be in trespass) that the action was really brought to try a right besides the mere right to recover damages for the trespass or grievance for which the action shall have been brought. ATTORNEYS' CERTIFICATES.NECESSITY OF RE-ADMISSION. To the Editor of the Legal Observer. Sir, THE doubtful state of the law upon a subject materially affecting the interests of the profession, induces me to address you, in order that public attention may, through the medium of your valuable journal, be called to the point. The question to which I refer is, whether the admission of an attorney becomes void by his neglecting to take out his certificate for one year from the date of such admission, or whether the certificate may be taken out at any time beyond such period, without a previous re-admission being required. The rule acted upon hitherto in the Common Law Offices, and sanctioned by several decisions, amongst others those of Ex parte Jones, 2 Dowl. 451; and Ex parte Marshall, 6 Dowl. 526, was, that if no certificate had been taken out since admission, it might be taken out at any time, although more than a year had elapsed, and no re-admission would be required, but that if a certificate had been taken out within the year, and the party afterwards discontinued it for a twelvemonth, his admission became void, and he could not resume his practice without being re-admitted. The construction seems to depend upon the words of the statute 37 Geo. 3, c. 90, s. 31, which, in dictating the terms of re-admission, directs that it may "upon payment of the arrears of duty accrued since the expiration of |