« EelmineJätka »
which are usually under the control and management of the wife," and sustained a judgment against the husband.” In Xolt v. Brian (4 B. & Ald. 252), it was held that where a husband not separated from his wife makes an allowance to her for the supply of herself and family with necessaries, during his temporary absence, and a tradesman with notice of this, sup. plies her with goods, the husband is not liable for the debt.
So again, in the case of Jewsbury v. Newbold (26 L. J. 247; 29 L. T. Rep. 128) May 1857, Ex.), it was said, to establish credit being given to the wife, it must be shown that there was a distinct private transaction. When you say, 'credit was given to the wife,' you mean credit was given to her to the exclusion of him-not affirmatively to her, but negatively to to him.” The verdict against the husband was therefore upheld: (See Bentley v. Griffin, 5 Taun. 356.)
Even when the authority of the wife is unrevoked, the question still may be-what are necessaries? (2 Smith's L. Cas. 430 (1862) and Ryder v. Wombwell, 17 L. T. Rep. N. S. 609; 19 L. T. Rep. N. S. 491.)
In the case of Schoolbred v. Baker (16 L. T. Rep. N. S. 359) (Nisi Prius, before Willes, J.), the action was for the price of two silk dresses and a silk mantle, amounting in value to £28 19s. 10d. The plaintiffs were drapers, and the defendant was lessee of the “restaurant department" of a first-class hotel. The delivery of the goods, and that the prices were fair and reasonaole, were admitted on the part of the defendant. The defence was-(1) That 'the wife was not entitled to pledge the credit of her husband, as by arrangement with him she received £100 a year to supply her personal wants, and on condition that she was not to pledge his credit. (2) That the goods were not nccessaries, being unsuitable to the station in life of the defendant. On cross-examination the defendant said : “My wife lives with me; I have seen the mantle and dress on my wife, and I have been out walking with her whilst she wore them.” Willes, J., told the jury: "The husband had a right to be master in his own house, and to determine what his expenses are to be. A man may have £10,000 a year, and yet his wife may not be entitled to live in a manner proportionate to that income. He may, if he wish, spend only £100 a year, and if he tells his wife so, she must conform to his wishes on the subject. The wife, if not restrained by the husband, would be the person to give orders for the ordinary clothing of the family, and in the absence of express stipulations on the part of the husband, it would be presumed the wife had authority to order things suitable to the condition in which the husband may choose to live. That raises the question as to the suitability of the articles, supplied to the wife, to their station in life. The other question is a very important one, as it affects the peace and happiness of many families. Most serious and lamentable results would follow, if when the husband says to the wife “You must not pledge my credit,” the wife were allowed, nevertheless, to run up large bills, which the husband would be compelled to pay. The law has been laid down in this court that the husband has a right to control his wife in this respect and that if it is made out that he has told her so, he will not be responsible. In a case where the husband says that he has really put a check to extravagance which might lead to his ruin there is no remedy against him. But a jury, in order to come to this conclusion, must be satisfied that the husband's objection did not consist in mere grumbling at the wife's
expenditure, but that he really restrained her from pledging his credit. I think the real question for a jury in such cases is whether it is made out to their satisfaction that the husband did put a check on his wife beyond a sort of grumbling which is said to be the privilege of every man in the country. Whether that has been done in the present case depends on the evidence of the husband himself; his act in paying the former bill which his wife owed to the plaintiff seems inconsistent with his statement. I am obliged to be very distinct in laying down the law on this subject, on account of a case alluded to, and an observation made in a case in the Court of Queen's Bench. Verdict for the plaintiff.
In the case of Phillipson v. Hayter (23 L. T. Rep. N. S. 556), the plaintiff carried on business as a stationer in a town in which the defendant lived. The defendant was a man of about £400 a year, rented a house of £70 a year, and kept three servants. The wife had purchased goods on credit from the plaintiff, in respect of which he claimed £20 4s. 2d. Among the articles purchased were a gold pen, a pencil case, guitar, music, &c. They were bought without the husband's knowledge. Byles, j. left it to the jury to say “whether the articles were necessaries suitable to the degree of the defendant, and whether the plaintiff had ever countermanded his wife's authority to pledge his credit. The jury found for the full amount. The
Court of Common Pleas set aside the verdict. Willes, J. said: “The defendant's wife eloped, and he then, for the first time, found that she had professed to pledge his credit for things which he never saw or heard of, and which he never authorised her to order, but which he is nevertheless expected to pay for. If he is to pay, it must be because the law infers from the relation of man and wife an authority from the husband to the wife to pledge his credit for such things. The wife, no doubt, has authority to order what seems necessary for the style in which the husband chooses to live, so long as the article belongs to the domestic department, which is ordinarily under her control. That such and such an article does fall within that department must be shown affirmatively by the person who seeks to make the husband liable. It is not sufficient for the plaintiff to prove that an article which was ordered by the wife, which may or may not be suitable to the condition which the husband chooses his wife to assume, or which may or may not fall within the wife's department, but he must show so strong a probability that the articles were within the wife's department, and were suitable to the condition of the husband, that a reasonable mind may conclude that she was authorised by the husband to pledge his credit for them. It will not do in this or any other case, when the burthen of proof is on the plaintiff, to prove a state of facts which are equally consistent with the affirmative or negative, and which only show there may or may not have been authority.” But in the case of Burton v. Scott (23 1. T. Rep. N.S.566) it was admitted that the defendant and his wife in 186À went to the plaintiif's shop, sometimes together and sometimes separately, and ordered goods, and goods ordered by her were paid for. In 1866 there was a deed of separation, but no part of the supplies related to the period of separation. In 1867 the wife again lived with the husband, under a second deed, which gave her £400 a year for household expenses, which was paid to her. There was no covenant to apply it for that purpose, and it was not stipulated that it was to be the only fund for this purpose, though it was to be all which was to be paid to her, and she was told not to pledge her husband's credit. The goods for which payment was claimed were ordered by her from Oct. 1866 to Dec. 1869. The husband had given no notice to the plaintiff or to other creditors not to give credit on his account. The jury were told that if the husband had so acted as to lead tradesmen to believe the wife had authority, and the tradesmen had honestly so believed, the plaintiff was entitled to recover, otherwise not. The jury found for the plaintiff, and leave to move against the verdict was refused.
The opinion of that most able Judge, Sir William Erle, the late Chief Justice of the Common Pleas, and of the Judges of the Court of Common Pleas who concurred with him, in the case of Jolly v. Rees (15 C. B. 628), there can be little doubt, will be treated as the truest exposition of the law as it is of morals. This latter case does not disturb the general rule, that the wife may bind the husband in the purchase of necessaries; but it does limit the operation of the rule, in case the husband has refused to her permission, as his agent, to purchase on his credit, even though the refusal is unknown to the tradesman. I can only repeat what I said on & former occasion, namely, the only safe course in dealing with the wife is to inform the husband that his wife has proposed to pledge his credit for goods, and to ascertain from him that he assents to his wife purchasing goods in his name, and pledging his credit for the payment of the same. I have also constantly given this general rule of dealing to plaintiffs—" If one person purchases goods, and another person is represented as the person who is to pay, apply to such other person without delay, and ask if he assents to pay.' So, in order to be safe, this rule of virtue, of safety, of prudence, and of morals, may be extended to all cases, and it should be especially acted on, by directly asking the husband if he approves of his credit being pledged by his wife. There is nothing but what is fair, and just and proper in such a course. It should also be remembered that the wife has only the authority of an agent for her husband, and it is in the power of the husband expressly to revoke that authority at any time. He is the master of his own houyehold, and of his own purse, but he would not be master of his own purse, or of the liberty of his own person, if, when he permits one dealer of goods to supply necessaries to his wife, the law enabled four or five other persons at the same time, engaged in a similar branch of trade, to supply, as is frequently done, what they may call “necessaries” without his consent. Any person, however, who has recog. nised the “dealing" on credit of his wife with a particular tradesman, must give express notice to such tradesmen when the authority of his wife to charge his credit is to be revoked by him. Those persons who desire a new law "to protect poor people,” should understand that poor people have, at this time, the most perfect protection. By their own act they can revoke the authority of wives to pledge their credit. If the husband has never authorised any dealings with a particular tradesman, he can revoke his wife's authority without notice, though some public notice shows the bona fides of the revocation. When he has sanctioned any such dealings, then notice of the revocation of the wife's authority to continue to deal with such tradesman on credit, must be expressly given to the tradesman. The husband has perfect power to protect himself, and no tradesman is safe in dealing on credit with any married woman unless he informs the husband that his wife has asked to pledge his credit.
Credit is more important to working men than very many persons believe. The old small debt courts afforded sufficient evidence of this fact. Imprisonment formerly for the non-payment of a debt satisfied the debt, and judgments were for the early payment of the whole amount which few could pay in one sum. Now, orders to pay are made according to the means and ability of the defendant to pay, and if he cannot pay he ought not, by law, to be committed to gaol. But this is the real difficulty, namely, what is to be done when there are old and recent judgments, and new debts are inevitable? Who is to have priority? The effect of the accumulation of debts, and the necessity of some limitation of time within which judgments which current wages cannot discharge may be extinguished, are disregarded, but these important facts also ought not to be forgotten, namely,
1. That the wages for a week or a fortnight of workmen are in many occupations kept in hand by the masters, in order to secure the perfor. formance of contracts, and that the shopkeepers supply food and clothing to the workmen during the days the payment of wages is thus suspended.
2. That in the case of a retail dealer, the wholesale merchant expects to be paid out of the profits on the sale of the goods he supplies. When that fund is wasted the source out of which payment was expected is gone. Bankruptcy is then inevitable. When, however, credit is given in respect of income, salary for services, or wages, so long as a portion of these sources of income is applicable to the payment of debts the fund which authorised the credit exists.
It may be advisable if when debts under £6 remain unacknowledged for one or two years, the remedy to sue were suspended ; and that judgment for debts under this amount should cease to be operative in two or three years.
The Income Tax Laws. By STEPHEN DOWALL, M.A., Assistant
Solicitor of Inland Revenue. London: Butterworths. This is simply a collection of the Income Tax Statutes made easy of reference by a copious index. There are foot-notes, but they are necessarily few, there having been scarcely any decisions on the Acts. The Acts are connected together by cross-references, and for practical purposes the compilation must prove very useful.
A Manual of Public Health. By W. H. MICHAEL, Barrister-at-Law,
W. H. CORFIELD, M.A., M.V., and J. A. WANKLYN, M.R.C.S.
Edited by ERNEST HART. London : Smith, Elder, and Co. IF in the multitude of counsellors there is wisdom, this ought to be a reliable work. It was called forth by the Public Health Act of 1872, and contains directions for carrying that enactment into operation. The subject is one not generally interesting to lawyers, therefore we notice the book shortly. A most curious and interesting feature is the Index to Statutes Pertaining to Public Health-of which there are no less than eighty-one, all passed in the present reign-and the Index to powers under the Sanitary Acts, covering sixteen octavo pages. These indices are followed by an Index to Penalties under the Sanitary Acts, occupying nearly fifteen pages. These indices indicate the nature of the labour imposed upon those who have to apply our sanitary laws, and prove the value of a good manual. We have looked through this manual, and it appears to be carefully done, and the style is clear. We think it may be safely adopted as a guide.
SOLICITORS' JOURNAL. accommodation in the London Bankruptcy Court plaintiffs' action thereon was not sustainable.
for solicitors is simply shameful--in truth, a Per Kelly, C.B.-The town clerk, although he is FREQUENT complaints reach us from country corner is appropriated to them. Wherever attor. the agent and representative of the corporation
for many purposes, is not their agent to make solicitors upon the subject of the jurisdiction neys have audience their convenience and comfort
any contract for the sale or letting of lands, or exercised by the Lord Mayor's Court of London,
the leasing of any incorporeal hereditaments, un. whereby process is served all over the country, and the clients of country solicitors, being defen- The
next preliminary examination will take place seal of the corporation for that purpose : (The
less he is duly and expressly authorised under the dants, are put to the great expense and inconve- on Wednesday, the 11th Feb. next, and the Mayor and Corporation of Kidderminster v. Hardnience of defending actions for small amounts, following day.
wick, 29 L. T. Rep. N. S. 611. Ex.) the proceedings in which are conducted often at
MASTER AND SERVANT-AGREEMENT the greatest possible distance from their place of NOTICES for the intermediate examination in business and residence. As to pleading to the Easter Term next must be left with the Secretary EITHER PARTY TO BE at' LIBERTY TO TERMI
TWELVE MONTHS CERTAIN, AFTER WHICH TIME jurisdiction, solicitors are quite right in advising of the Incorporated Law Society, Chancery-lane, NATE AGREEMENT BY THREE MONTHS NOTICE” their clients not, as a rule, to venture on such a on or before the 14th March next. Renewed course. Nothing can well be more unsatisfactory notices for examination in Easter Term next must made the 23rd Jan. 1871, under which it was
-CONSTRUCTION.-By an agreement in writing, than the present system of service out of the be given between the 2nd and 7th of Feb. next. agreed that the defendant should, so long as the jarisdiction.
Renewed notices for admission in the same term
must be left at the Master's Office, in the Queen's agreement was in force, serve the plaintiff in the The Times has published a letter from a non-pro- Bench, and also be entered in the books kept for capacity of commercial traveller, at a specified fessional correspondent upon the subject of cur. that purpose at Judge's Chambers between the salary per annum, payable fortnightly, it was
stipulated that the agreement between the parties tailing the length of deeds and documents of all 2nd and 7th Feb, next.
should be " for twelve months in, after which kinds, under the heading “ Legal Conveyance of Land." The writer ignores the important fact The Town Council of Edinburgh have unani. the said agreement by giving to the other a three
time either party should be at liberty to terminate that the length of deeds and documents is owing mously appointed Mr. William Skinner, an emi. months' notice," &c. But if the said plaintiff simply to the complex relations between different nent writer to the Signet, who was admitted in should be desirous of terminating this agreement members of society which have gradually grown 1848, to the office of town clerk, at a salary of without notice, after twelve months, or before any ap since the “ fourteenth century,” referred to by £500 a year.
notice has expired, he may do so on paying the the writer in question. The prolixity of which he
said defendant the sum of £50. The defendant complains is due, in a great measure, to efforts on
NOTES OF NEW DECISIONS. the part of lawyers to meet the requirements of
entered the plaintiff's service accordingly, and on the age in which they have lived. Solicitors, in
PRACTICE DISCOVERY - REDEMPTION SUIT the 7th Dec. 1871 received a letter from the plainwhose hands the conveyancing business of the
AGAINST MORTGAGEE IN POSSESSION-ANSWER tiff, informing him that his services would not be country is, would be only too delighted to reduce -ACCOUNT OF Rents.-A redemption suit against required after the 23rd Jan. 1872, when the em. the length of deeds, but this can only be done by the general rule that a defendant who
answers shortly afterwards commenced by the plaintiff to
a mortgagee in possession forms no exception to ployment consequently ceased. An action being altering the present system of remuneration.
must answer fully. A defendant to such bill, who recover a debt alleged to be due from the defen
by his answer admits himself to be redeemable, dant under the above agreement, the defendant We are not in possession of full particulars of cannot decline answering interrogatories as to the pleaded, by way of set-off, a sum of £50, which the system of education adopted by the Incor. state and particulars of the account, which it is he alleged was due to him as liquidated damages, porated Law Society of Ireland, but we may call one of the objects of the suit to take, but the in lieu of notice, as provided by the agreement; the attention of the Council of the Incorporated court will prevent the plaintiff from
pressing for and, on a special case stated for the
opinion of the Law Society in Chancery-lane to the fact that in any such minuteness of discovery as would be court thereon, it was held, by the majority of the Ireland it is not sufficient to attend lectures before either vexatious or unreasonable. Decision of Court of Exchequer (Bramwell and Pigott, BB., examination, but those who attend them must Malins, V.C., affirmed : (Elmer v. Creasy, 29 L. T. dissentiente Kelly, C.B.), that the agreement was receive from the Professor of Law, for the Profes- Rep. N. S. 632. Chan.)
for twelve months certain, determinable at the sion of attorneys and solicitors, a certificate that CORPORATION PAROL CONTRACT MUTU. expiration of that period, at the option of either they have attended at least three-fourths of each ALITY CORPORATE SEAL - TOWN CLERK party, without any notice at all; that the stipulacourse of lectures before such attendance is AUTHORITY OF.-In pursuance of a resolution of tion for a three months' notice applied only to the allowed to avail the student in any way. We do the town council of K., passed on the 17th July possible continuance of the service after the not think it wise to leave students to attend leo- 1872, and entered in the corporation books, and twelve months, which possibility was contemtures or not, as they please ; moderate compulsion sealed with the corporate seal, a market, and the plated by the agreement; and that, therefore, the is very beneficial. Perhaps lectures are not the tolls thereof,
belonging to the corporation,
was not entitled to the set-off claimed, best mode of imparting knowledge of the law; on the 18th July 1872, put up to lease by auction and judgment must be given for the plaintiff : but making attendance at them while they are in for the term of one year, with an option to the (Langton v. Carleton, 29 L. T. Rep. N. S. 651. vogue compulsory, ensures to most students a lessee to extend the term to three years. By the Èx.) better knowledge of the matter lectured on than conditions of auction a lease was to be granted on HUSBAND AND WIFE-DEED OF SEPARATION they would probably have otherwise. or before the 17th Aug. 1872, the rent to be paid
TO WIFE by equal monthly payments, the first payment to
DURING JOINT LIVES AND SO LONG AS THEY A CORRESPONDENT asks to be allowed to com.
be made to the clerk of the lessors "immediaze y SHALL LIVE SEPARATE AND APART”-SUBSEplain through our columns of the practice by always one month's rent in advance; and in case
on the fall of the hammer," and the lessee to be QUENT ADULTERY OF WIFE-DIVORCE AND Dis. which a successful defendant in a common law of failure by the lessee to perform any of the con.
SOLUTION OF MARRIAGE.-Where a husband, by
a deed of separation between himself and his wife, action in the Superior Courts is called upon ditions, the rent then already paid was to be ab. to pay the court and jury fees. He urges that the solutely forfeited, and the lease to be null and
covenants to pay an annuity to trustees for her
use and benefit, "during the joint lives of the plaintiff
, whether successful or not, should be void. The lessee' was also, “at the fall of the husband) and the said L. H. (the wife), and during called upon to bear this expense, on the ground hammer," to produce two su'reties, to be approved so long time as they shall live separate and apart, that it often happens that cases are taken to trial of by the lessors or their clerk, for
the payment the facts of the wife's subsequent adultery, and when the plaintiff has little chance of success, of rent and performance of covenants, and who her divorce, and the consequent dissolution
of the is poorly off, and the defendant, if successful, can get nothing from the plaintiff, and has in fact after
were also forthwith to sign the conditions and marriage by a decree of the Divorce Court, are no
lease. all to pay his own costs. Our correspondent con
The defendant, as the highest bidder, answer to an action by the trustees for the arrears tends that the practice should be assimilated to market and 'tolls for one
became the purchaser or renter of the said of the annuity, and a plea setting forth these facts, the practice which prevails in County Courts,
year, and there- forms, in the absence of an express proviso to that Where, except under certain circumstances, the upon the contract at the foot of the conditions effect in the deed, no bar to such action, the plaintiff is obliged to pay the hearing fee before clerk, although the latter
was signed by him, and also by the town covenant being absolute and unconditional to pay his case is allowed to go before the court, and so
was not autho- the annuity so long as the two individuals "should also in case a jury is empannelled to try his cause.
rised by the corporation under seal so to do. live separate and apart.” So held, on demurrer Although we do not altogether agree with the con
The defendant also paid one month's rent in ad. to a plea by the Court of Exchequer (Kelly, C.B., tentions of our correspondent, we think that the with the required sureties, 'a week's time was and another v. Holt, 29 L. T. Rep. N.S. 647. Ex.)
vance to the town clerk; but, not being prepared and Bramwell and Pigott, BB.): (Charlesworth suggestion is one which, if adopted, might work given to him by the town clerk to produce them,
LUNACY - JORISDICTION COURT OF CHANsome improvement on the present system.
which period was subsequently further extended CERY - IMPROPER CONDUCT OF SOLICITORS.
A report of the above lettings to the defendant, Unsoundness of mind gives the Court of Chan. A SOLICITOR writes to as inquiring whether and his payment of the month's rent, was made cery no jurisdiction, and a person who institutes a solicitors will have an audience in the Exchequer to the corporation, and was adopted by them by suit in chancery on behalf of a person of unsound division of the High Court in Bankruptcy busi- a resolution of the 7th Aug. 1872, entered in the mind does so at his own risk, and must bear the ness by virtue of the section of the Act which corporation books, and sealed with the corpora consequences of any unnecessary and improper transfers to that division the business of the tion seal. By some mistake the keys of the proceedings. Orders of the Court of Chancery London Bankruptcy Court. We refer our corre- market buildings were, without the authority of obtained by a solicitor who has officiously insti. spondent and our readers to the following Acts the corporation, and contrary to the instructions tuted such a suit give him no protection, and he and sections of Acts of Parliament upon the sub- of the town clerk, handed
market keeper will have to pay the costs of unnecessary inquiries ject : Sect. 70 of the Bankruptcy Act 1869, gives to the defendant, who retained them for some made under such
orders. But if, on the person of solicitors audience in the London Bankruptcy days, but who never otherwise obtained posses- unsound mind being found lunatic by inquisition, Court; sect. 3 of the Judicature Act constitutes sion of the market, and never received any tolls. the solicitor can satisfy the court in lunacy that the London Bankruptcy Court
part of the The defendant finally failed to produce his he has acted bor.a fide for the benefit of the lunatic, Supreme Court ; sect. 34 of the Judicature Act sureties, the corporation relet the premises to that court will reimburse him out of the lunatic's transfers Bankruptcy business to the Exchequer another person, and brought an action against estate. A suit instituted on behalf of a person of division of the court ; sect. 87 of this Act operates the defendant to recover damages for his breach unsound mind not so found by inquisition abates which solicitors
were entitled before the Supreme (Kelly, C.B. and Pigott and Pollock, BB.). quisition, and all proceedings taken in the suit Court of Judicature Act came into operation that as the contract was not under the cor: after the inquisition are irregular and void. DeWe are, however, at present, in great doubt as to poration seal, or signed by an agent of the cision of Wickens, V.C.
, reversed : (Beall v. the intended operation of this last provision, but corporation duly and expressly authorised by Smith, 29 L. T. Rep. N. S. 625. Chan.) will only say that we are most decidedly of opinion them under seal for that purpose, and as that solicitors ought in bankruptcy business, the resolution of the 7th Aug. was after the Correction. In the report in our last issue of a from the very nature of that business—to have breach, and so too late to operate as a ratifica- meeting of the Legal Practitioners' Society, Mr. an equal audience with the Bar in the Exchequer tion, and there was no such part performance Webster is made to say, “ Accountants to the division of the High Court, and we must add the as to entitle the defendant in equity to a specific Court of Chancery being the worst of these expression of a hope that proper accommodation performance on the part of the plaintiffs, the con- quacks." For “Chancery" substitute "Bankwill be afforded them in court. The present tract was void for want of mutuality, and the ruptoy."
COURT OF QUEEN'S BENCH. omission or absence of which neutralises or of a commission and the procuring of testimony Monday, Jan. 12.
destroys the action, and which the jurists desig- by the instrumentality of letters rogatory or
nate by the words decisoria litis :" (1 Folix, 453, letters requisatory, as they are sometimes called. (Before BLACKBURN, QUAIN, and ARCHIBALD, JJ.) 8. 233). The admiralty practice is stated in all | In the former case the rules of procedure are 08. Re An ARTICLED CLERK.
the text-books to be the same as above indicated tablished by the court issuing the commission, ALTHOUGH this was merely an application to in the civil law. If these letters rogatory aro and are entirely under its control. In the latter, allow Thomas Robert Oakley, an articled clerk, received by any inferior judge ho proceeds to call the methods of procedure must, from the nature to be discharged from his articles and to enter the witnesses before him by the process com- of the case, be altogether under the control of the into fresh articles, it raised a question of some monly employed within his jurisdiction, examines foreign tribunal which is appealed to for assist. importance of its kind. By 23 & 24 Vict. c. them on interrogatories, or takes their deposi. ance in the administration of justice. We cannot 127, 8. 10, articled clerks are prohibited from tions, as the case may be ; and the proceedings execute our own laws in a foreign country, nor holding any office while serving their articles. being filed in the registry of his court, authentic can we prescribe conditions for the performance The applicant in the presont cage, on the 19th copies thereof, duly certified, are transmitted to of a request which is based entirely upon the April in last year, obtained a commission as the court a quo, and are legal evidence in the comity of nations, and which, if granted, is altolieutenant in the Royal Monmouthshire Militia, cause " : (Conkling's U. S. Admiralty, 294, citing gether ex gratia. “We therefore request you and he went out with his regiment for twenty | Hall's Admiralty Practice, Conkling's Treatise, that, in furtherance of justice, you will, by the seven days, from the 19th May to the 14th June. 601; verbatim in Benedick's Admiralty, s. 533 : proper and usual process of your court, cause On the 9th Dec. he resigned his commission. Return in same manner prescribed by U. S. in such witnesses to appear before you, and there to Fearing that his twenty-seven days''service might Admiralty, 1 Abbott's U. s. C, Practice, 84). answer, &c., &c." This is the formula in which bring him within the provisions of the Act, he There has boen so little doubt upon the point that the letters are couched. We cannot dictate the now applied to be allowed to be discharged from but one case has arisen under letters rogatory in methods to be pursued by the court whose assist. his present articles, and to enter into fresh articles the United States, and in that, Judge Washington ance we invoke. The rules and practice of the for å time which would cover the twenty-seven clearly indicates the distinction which separates foreign court must be the law of procedure in days.
commissions from letters rogatory, though the such cases. Letters rogatory were unknown to Bosanquet appeared for the applicant. case did not require him to define its extent: the common law. They came to us from the civil
law, though the Admiralty Courts, and the civi. Attorney for the applicant: Raw, agent for (Nelson v. U. S., i Peters, Ç. C. R. 237). Oakley, of Monmouth.
Second exception. The instructions are not at. lians seem to agree that in all that concerns the The COURT granted the application.
tached, nor need other documents be attached by forms of procedure in such cases, the Judge ought the court. The reference to the original judg. to observe the laws of his own country. We may
ment did make it a part of the letters as com. therefore adopt, in the present case, the language PROCEDURE IN FOREIGN COURTS-COM. pletely as if it had been attached physically, and of Washington, J., in Nelson v. The United States
MISSIONS AND LETTERS ROGATORY. if the attorney for defendant had thought it not (1 Peters C. C. R. 237): “Where the business is In the Philadelphia District Court the following moved to strike it out: (1 Tr. & H. 521). The this court the ends of justice seem to require a
properly a part of the document he should have taken out of the hands of persons appointed by case has occurred :
doctrine of relation by reference needs no autho. departure, in some degree, from the ordinary Exceptions to execution of letters rogatory.
rity; it is too well established. The identity of rules of evidence. To what extent this departure The defendant, by his attorney, excepts to the the 'document is sufficient: (Dodge v. Israel, 4 would go bas never yet been decided in this court, form and execution of letters rogatory issued out w.c. C. R., p. 323.) The sentences could not be and it is not necessary at present to lay down the of this court in above case on behalf of plaintiffs, attached, for they had not become a part of the limitation." Doubtless, if it should appear that and filed September 15th, 1873, and now. makes record, and were only referred to as judicial pro- any of the substantial requisites of justice, as we the following specifications of such exception : 1. The execution of the said letters rogatory is the case if the witnesses
should show any connec- advantage given to either party, we would reject
ceedings in Germany, which might become part of administer it, had been omitted, or any unfair illegal and void in that it appears that the attorney | tion between this suit and the sentences of Meyer the depositions, no matter what solemnities of and counsellor of the plaintiffs was present at the Leberman and his sons. No exhibits or docu. form had attended the taking of them. But taking of the depositions of witnesses.
ments are mentioned, and if the question had under the circumstances attending the execution 2. The form and execution of said letters roga. been irrelevant, the defendant's attorney might of these letters rogatory by the Royal Circuit tory are illegal and void, inasmuch as the exhibits have moved to strike it out: (1 Tr. & H. 521). Court at Schweinfurt, we cannot regard the ator papers directed to be shown to the witnesses in Now that the connection has been proved, it is tendance of the plaintiffs' attorney as a circumthe interrogatories exhibited by plaintiffs did not
too late for any objection : (Hill v. Canfield, 13 stance of that character. He appears to have form part, nor were they attached to the letters
Smith, 77). rogatory by this court.
attended in pursuance of a notification of the 3. The form and execution of the said letters ter v. Hollister (6 Barr, 449), the Supreme Court, by him to verify them by his signature. It thus
Dec. 20, 1873. Opinion by THAYER, J.-In Hollis. judge who took the depositions, and was required rogatory are illegal and void because there are adopting the rule of the English Chancery Courts, very plainly
appears that his attendance was altoattached to the execution of the said letters roga which prohibits the attorneys of the parties from gether in conformity with the rules of procedure tory different
papers, purporting to contain copies being present at the taking of depositions under a in the foreign tribunal, and the character of the of orders, minutes, directions, and other matters commission, affirmed the ruling of the court below court which executed our request affords ample not forming part of or belonging to the execution which had rejected depositions taken by con. of the said letters rogatory.
assurance that his presence was not permitted missioners where it appeared that the attor in any degree to prejudice the defendants' rights. Argument of plaintiffs against the exceptions. ney of one of the parties had been present The other exceptions require no discussion.
First exception. The proceedings are in a foreign that no notice of the time and place of Exceptions dismissed. court, and as a court does not proceed of its own the taking of the depositions had been given motion, an attorney must appear to represent a to the other party. The principal exception in party exactly as if the case had not been sent to the present case is, that the plaintiffs' attorney SUPREME COURT OF JUDICATURE ACT, another court for its co-operation; the defendant was present when the letters rogatory were exo
SECTIONS 64, 65. had the right to appoint an attorney in the foreign cuted. These letters were issued by this court, The following circular has been issued by the court to represent him, and see that his interests and addressed to any judge or tribunal having undersigned :were guarded.
jurisdiction of civil causes at the city of Schwein. Dear Sir,-By these sections as they stand, e The attorney followed the practice of his furt, in the Kingdom of Bavaria. and Empire of plaintiff is at liberty to issue his writ where he country, the only practice known to the foreign Germany. They were executed with great cere- pleases; but a defendant in an action commenced court. We cannot dictate the method to be pur- mony and solemnity by the Royal Circuit Court at by writ issued at a district registry office, must sued by a court which we beg to act for us out of Schweinfurt, in Bavaria. By the minutes of the enter an appearance there, and all subsequent courtesy, but the presence of an agent who took proceedings, duly certified, which have been re- proceedings, down to and including entry for no part in putting questions would be no ground turned to us, it appears that on a certain trial, must be taken there, unless a judge's of objection even to a commission : (1 T. R. & H. day the royal attorney, Wolfsthal, acting on order can be obtained to transfer to London, 525; Otis v. Clark, 2 Miles, 272.)
behalf of the plaintiffs, filed an information (See the sections printed below.) As this is a question of practice, it comes under and motion in the Royal Circuit Court, at The consequence will be, in cases where the de. the general head of objection raised by the third Schweinfurt, in Bavaria, praying them to fendant's solicitor resides away from the district exception.
execute the letters rogatory. Thereupon the registry town, that he must employ an agent in Third exception. The practice of the foreign court court ordered the depositions to be taken by the that town. This will apply not only to what are is the law of procedure. Letters rogatory, un. commissioned Judge Craemer, who appointed a now called common law actions, but to every known to common law, are derived through admi. day for that purpose, and notified the plaintiffs' description of suit. ralty from the civil law. They promise to reci. attorney, Mr. Wolfsthal, to attend at the time and While we are ready to believe that in certain procate the courtesy which they ask, and our place stated. Mr. Wolfsthal appeared accord. parts of the country these sections will work statutory provisions assimilate the course of pro- ingly, and produced before the judge commis. beneficially, we dislike the prospect of being comcedure in the execution of letters rogatory ad. sioned to take the depositions à decree of the pelled to employ casual agents in cases where our dreseed to us, to the ordinary practice of our Royal Bavarian Court of Appeals for Lower clients are defendants. We had much rather be courts : Act of 8th April 1833, sects. 18, 19, 20, Franconia and Aschaffenburg, dispensing with the at liberty to employ our well-known London agents and 21; Pamphlet Laws, 308 ; Purdon, 623. This oath of secrecy on the part of the witnesses (who (and we have freely told them so), and if the establishes our recognition of the principle that were Royal Counsellors of the Circuit Court), a business is to be done at a distance, we much the law of the country to which the letters are dispensation which appears from the papers to prefer London to any other place. We object to addressed governs the procedure to be adopted in have necessary before the witnesses could be per. being obliged in every case to incur the expense of executing them; this is the civil law. "Fælix mitted to answer the plaintiffs’ sixth interroga- applying to a judge Moreover, we believe that says: “In that which concerns the provisions tory. The commissioned judge then proceeded to our clients' interest agrees heroin with our own ordinatoriæ litis, that is to say, the mode of administer the interrogatories and to receive the convenience. calling the witnesses and parties before him, the answers of witnesses; at the conclusion of which We believe that very many country solicitors, forms of making up the report, &c., the judge he adds: “Whereas, the legal representatives of not hostile to the establishment of district regisought to observe the laws of his country "i the plaintiffs, the royal attorney, Wolfsthal, after tries, agree with us in this
matter. We think it Traité du Droit International Prive, 476, s. 276, reading these present minutes for himself, had would be well that before the rules of procedure ad finem et seq. The civilians make a distinction, not any further motion to offer, the above pro. are finally settled, they should have an opporwhich corresponds to our division of form and ceedings have been closed, and the same caused tunity of expressing their sentiments, so that an substance between the forms and regulation and to be signed by him for confirmation.” Where- effort may be made, if the result of the inquiry the merits, “between ea quae litis formam upon the attorney, Wolfsthal, signed the papers warrants it, to secure freedom of action. Time concernunt ac ordinationem and ea quae spectant in obedience to the requisition of the judge. I being of importance, we take this preliminary step decisoria causae et litis decisionem." There are, have thus noted, with some particularity, the on our own responsibility. says Merlin, two sorts of judicial formalities, some proceedings of the foreign tribunal, in order that We assume that local opinion is in favour of which pertain only to the trial (l'instruction) and the precise extent of the participation of the retaining in Lancashire regulations those are relative only to the procedure, for which plaintiffs' attorney in those proceedings might already in force there, and we have no desire to reason the jurists call them ordinatoria litis ; the appear. It is to be observed that there is a interfere with the convenience of others, but only others, which pertain to the merits of the case, the very broad distinction between the execution to provide fairly for our own.
The question we ask is, whether you had rather society just started as the very one which is HART (Wm.), 35, Clifton-terrace, Brighton, Esq. A.-Keep section 64 as it stands. wanted, if the good intentions already expressed BIBBEADINE Henry). 77, Loughborough Park, Brixton,
Hart, Hart, and Marten, solicitors, Dorking, Surrey. B.-Have its operation modified (elsewhere than are carried out.
Surrey. gentleman. Feb. 10: Tamplin. Tayler, and in Lancashire) to this extent-that where a defen.
Joseph, solicitors, 159, Fenchurch-street, London. dant in any action can swear that he believes he LEGAL PRACTITIONERS' SOCIETY.-I see by the HUNT (Wm. D. Stratford upon-Avon, Warwick, gentlo
man, clork to the peace for Warwick. Feb. 7; H. O. and has a good defence on the merits, he may enter report in your journal that this is a society T. Hunt, solicitors, Stratford-upon-Avon, his appearance in the principal registry (or in some for the purpose of protecting solicitors and JOHNSON (Mary). Yarm, York, spinster. Jan. 25; Fawcett
and Co., solicitors, Yarm. other way reinove the proceedings thither) as of attorneys in their Profession from the intrusion LETY (Rev. Mons B.), Synagogue-chambers. St. Alban'g. course, or of accountants and others. It is high time such place, Charles-streat, Haymarket, Middlesex.
Feb 1; C.--Give the defendant such right only where he a society was formed if the legal Profession, par.
Bisch, Son, and Hanbury, solicitors, 11, Wellington.
street, Strand, Middlesex. resides three miles from the district registry office ticularly the younger branch thereof, is to reap MABKS (Thos.), Collerton Barton, Broadhembury, Devon, in which the writ was issued.
the legitimate fruits to which it is entitled. If farmer. Feb. 2; Cox and Every, solicitors, Honiton, We request the favour of your reply, addressed energy is shown, to put a stop to the proceedings NHAL (Jan.), 80, Commercial-road, and Old Jamaica Wharf, to any one of the undersigned, whose name is dis- of unqualified persons I am sure every junior Upper Ground-street, Blackfriars, Lambeth, Surrey, coal tinguished thus.* solicitor and attorney will join the society, if only merchant. Feb 24; Smith and Co., solicitors, 704, Alder.
manbury, London. You can reply with the least trouble to yourself, asked. I, for one, feel that much credit is due to
Nixon (John), formerly of 3, Sidney-alley, Leicestor-square, by simply returning the circular with your name Mr. Ford for his trouble in undertaking the office Middlesex, and 9: Egerton-street, Greenwich, Kent, late and address written at foot, and a cross placed of honorary secretary.
A SOLICITOR. of 1, 1Cowley
villas. Beulah.crescent, Croydon, Surrey
, , against A., B., or C., according to your opinion.
Swithin's-lane, London. It will be convenient to mark the envelope,
OLIVER (Wm.), 9, Fitzroy-square, Middlesex, Esq. Feb. "J. Act."- We are, dear Sir, yours faithfully,
CLERKS AS ADVOCATES.-In reading provincial 19;, Wm. H. Oliver, solicitor, 64, Lincoln's-inn-felds, *FOWLER, Smith, and WARWICK, Leicester. and London reports of cases, I see continually Popese Tames T.). Highgate
, Aston juxta Birmingham, KIDSON, Son, and MCKENZIE, Sunderland. I the following: Mr. A. B., from the office of Mr.
maltster. April 1; T. and J. A. Simcox, solicitors, 20, *MULLINGS, ELLETT, and Co., Cirencester.
Waterloo-street, Birmingham. C. D., appeared in the case.” Would you kindly *H. A. OWSTON, Leicester. inform me in your next issue, assuming “ A. B."
PHILLIPS (George), Langbourn Tavern, Lombard-street.
London, and Napier Lodge, Peckham Rye, Surrey, L. W. WINTERBOTHAM, Stroud. to be admitted and certificated, by what authority hotelkeeper. Jan. 20; S. Potter, solicitor, 86, King
street, Cheapside, London. Sec. 64. Subject to the rules of court in force for he had audience. I have searched but without the time being, writs of summons for the commence.
QUIGLEY (Peter), Š, Sandford-street, Greengate, Salford,
Lancaster, estate agent. March 10, Weston, Grover, and ment of actions in the High Court of Justice shall
(The matter is entirely in the hands of the Lees, solicitors, 10, Norfolk-street, Manchester.
RANDLE (Mary A.). Filmer House, Ombersley, Worcester, be issued by the district registrars when there- judges of the courts. Managing clerks are not
widow. Feb. 19; Pidcock and Son, solicitors, 40, Fore. anto required; and unless any order to the entitled to appear as advocates for clients of
gate-street, Worcester. contrary shall be made by the High Court of firms, and may properly be objected to. But ROUND (Geo), 155. Hockley.
hill, Birmingham, jeweller
and factor. Jan. 31 ; J. Round, 6s, Owen-street, Tipton, Justice, or by any judge thereof, all such further and it is always an invidious and difficult task to SAMUELSON (Alexander), 27, Cornhill, and Kingston Lodge,
Addison-road, Kensington, London, civil engineer. Feb. or detention of a ship, her tackle, apparel, furni. insist upon it as against an opponent.-Ed. Sols'.
16; G. S. and H. Brandon, solicitors, 15, Essex-street, ture, cargo, or freight, as may and ought to be DEP.]
Strand, Middlesex. taken by the respective parties to such action in
STEELE (John), formerly of Weeks Green, Froxford, after the said High Court down to and including entry
APPOINTMENTS UNDER THE JOINT-STOCK wards nt Langstone, but late of Emsworth, Southampton,
Esq. Feb. 16; Rivington and Son, solicitors, 1, Fen. for trial, or (if the plaintiff is entitled to sign
church-buildings, London. final judgment or to obtain an order for an
ANGLO-BRAZILIAN GOLD MINING COMPANY (LIMITED).- TAYLEUR (Wm.), Buntingsdale, Drayton-in. Hayles, Salop, account by reason of the non-appearance of
Creditors to send in by Feb. 12 their names and addresses, and 85, Brook-street, Grosvenor-square, Middlesex, Esq. and
the particulars of their claims, and the names and Feb. 14, Tucker and Lake, solicitors, 4. Serle-street, Linthe defendant) down to and including final addresses of their solicitors (if any), to the liquidators of coln's-inn Fields, Middlesex. judgment or an order for an account, may
the said company, at their office, 52, Moorgate-street, TOWLAON (Jos.), 1, Fern-villag, Queen'g-road, Tunbridge
London. Feb, 24, at the chambers of V.C. M., at twelve Wells, retired ironmonger. be taken before the
Feb. 28 ; Wm. Brackett, district registrar, and o'clock, is the time appointed for hearing and adjudicating Tunbridge, and Jas. W. Hawkins, ironmonger, Highrecorded in the district registry, in such upon such claims.
street, Tunbridge Wells. EAST NORFOLK TRAMWAY COMPANY (LIMITED).-Petition WALKER (Thos.). Headingley Hall, Leeds, flax epinner, manner as may be prescribed by rules of court; for winding up to be heard Jan. 23, before V.C. M.
March 31 ; Ford and Co., solicitors, 70, Albion-street, and all such other proceedings in any such action HEREFORD AND SOUTH WALES WAGGON AND ENGINEERING
Leeds. as may be prescribed by rules of court shall be COMPANY (LIMITED). -Petition for winding-up to be heard WILLIAMS (John), West Broughton, Deveridge, Derby, Jan. 24, before V.C. B.
gentleman. Feb. 7; D. and c. Dunnett, solicitors, taken, and, if necessary, may be recorded in the SÃO VINCENTE MINING COMPANY (LIMITED): --Creditors to Uttoxeter. same district registry.
send in by Jan. 31 their names and addresses, and the Wilson (John), formerly proprietor of the George inn, Sec. 65. Any party to an action in which a writ of
particòlars of their claims, aud the names and addresses Rochdale-road, Manchester, Lancaster, and late of Southof their solicitors (if any), to Jas. Waddell, 12, Queen
port, gentleman. Feb.9; Ed. Heath and Song, solicitors, summons shall have been issued from any such Victoria-street, London, the liquidator of the said ccm- 41, Swan-street, Manchester. district registry shall be at liberty at any time to pany. Feb. 17; at the chambers of V.C. M., at twelve WOLFE (Wm.), 11,
Granby-street. Hampstead-road, Mid. apply, in such manner as shall be prescribed by
o'clock is the time appointed for hearing and adjudicating dlesex, forage master in the Royal Horse Guards Blue. upon such claims.
March 2; Wm. Gardiner, solicitor, 182, High-street, rules of court, to the said High Court, or to &
Uxbridge. judgment chambers of the division of the said CREDITORS UNDER ESTATES IN CHANCERY. High Court to which the action may be assigned,
LAST DAY OF PROOF. to remove the proceedings from such district ALLEN (Nicholas B.), Torvale, Penderyn, Brecon, mer.
MAGISTRATES' LAW. registry into the proper office of the said High
chant. Feb. 2; Isaac D. Rees, solicitor, Aberdare, GlaCourt; and the court or judge may, if it be GILLIART (Geo.),' Horncastlo, Lincoln.
morgan, Feb. 16; V.C. M., at twelve o'clock.
Jan. 31; Chas.
NOTES OF NEW DECISIONS. thought fit, grant such application, and in such Gilliat, solicitor, 57, Lincoln's Inn-fields, Middlesex, Feb.
FRAUDULENT CONVERSION OF MONEY BY AN case the proceedings and such original documents, HAWES (Henry), Foochow, China, captain of a steamer. AGENT-DIRECTION TO APPLY TO A GIVEN PURif any; as may be filed therein shall, upon receipt Feb. 2; Lawrence and Co., solicitors, 14, Old Jewry of such order, be transmitted by the district Chambers, London, Feb, 10. V.C. B., at 12 o'clock
POSE.-A stock and share dealer was in the habit registrar to the proper office of the said High WHY Wm. J. 19: Norfolk.crescent, and Bedford-row, of buying for S. gratuitously, and receiving
Middlesex, solicitor. Feb. 1: Wm. Collisson, solicitor, 27, cheques on account. On the 27th Nov. he wrote Court, and the said action shall thenceforth pro. Bedford-row, Middlesex. Feb. 12; V.C. H., at twelve informing S. that £300 Japanese bonds had been ceed in the said High Court in the same manner
offered to him in one lot, and that he had secured as if it had been originally commenced by a Writ of Summons issued out of the proper Office in
CREDITORS UNDER 22 & 23 VICT. c. 35. them for her, and that he had no doubt of her , to
ratifying what he had done, and inclosing her & London ; or the court or judge, if it be thought BARNETT Francis L.), 5, Roebuck-terrace, Great lover. sold noto for £336, signed in his own name. s. right, may thereupon direct that the proceedings may continue to be taken in such district registry.
street, Southwark, Surrey, pawnbroker. Jan, 2 w.w. wrote in reply, "that she had received the con.
tract note for Japan shares, and inclosing a cheque
satisfied that he had purchased the shares for THE TWO BRANCHES.—I am pleased to see wards of Hillside, Westbury-upon-Trym, near Clifton, the dealer in one lot, but he applied to a stock such a society as the Legal Practitioners Society Gloucester, and late of 8, Queen's parade, Bath, Esq. jobber and agreed to buy three at £112 each, but started, and I hope it may go ously to work in
March 1; R. J, Child, solicitor, 11, old Jewry.chambers,
never completed the purchase. Held, that Si's ameliorating the position of both barristers and Coster (Wm.), Wilmington Hall, Kent, Esq. Feb. 1, Des letter was a sufficient written direction within the lawyers and in bringing about any legislative
borough and Son, solicitors, 3a, Finsbury-place South, meaning of 24 & 25 Vict. c. 96, s. 75, to apply the enactments which may be necessary in regard to CRAIG (Thos. G.), late of 3, Sheen-villas, Park-road, Rich. cheque to a particular purpose, viz., in payment them. I cannot say that I advocate a fusion of the mond, Surrey, formerly of 12, Marlborough.road. Richtwo branches of the legal Profession. I do not see
mond, Surrey, gentleman. Feb. 2; Bircham and Co., N. S. 154. C. Cas. Ř.)
for the bonds : (Reg v. Christian, 29 L. T. Rep. that it is necessary, or that the present system is DAVIES (Samuel), Litfield, Lyonshall, Hereford, yeoman. to be complained of. But what I do wish is, Feb. 28; Bodenham and Temple, solicitors, Kington, that there may not be any unreasonable barriers D. Herefordshiroja Dundee Arms)Wharl, Wapping, Middle MONTGOMERYSHIRE QUARTER SESSIONS. kept up which prevent any member of one branch sex, and of Portway House, Upton Orobs, Essex, coal migrating into the other. Supposing, for instance, merchant. Jan. 24; Hillearys and Tunstall, solicitors, 5,
Thursday, Jan. 8. an admitted man finds he has a peculiar aptitude DEARDEN (John), Sladen-street, Rochdale, Lancaster, inn. Fenchurch-buildings, London.
(Before Earl Powis (Chairman), Mr. C. W. for advocacy, or for any other season, desires to be keeper. Jan. 26; J. Holland, solicitor, 19, Baillio-street, WINN, M.P., and other magistrates.) called to the Bar, I consider it unreasonable that
Rochdale, he should be called upon to undergo another preFLOWER (Wm.), Stanton's Farm, Kingsclere, Southampton,
REG. v. ESGAIRGEILIOG. gentleman. Feb. 14; W. H.Cave, solicitor, Newbury, Inclosure - Commissioners award – Evidence. liminary examination previously to being admitted Berks. & student of an Inn of Court, and still more that FOSTER (Edward), 27, Pelham-street, Mile-end New Town,
Certificates as to making of road. Middlesex, cow keeper. Jan. 31; $. H. Perrin, solicitor, This was an indictment for non-repair of a road When, perhaps, he is a thoroughly efficient lawyer for all practical purposes connected with a junior GALLOWAY (Right Hon. Randolph John Ş.,
Earl of). Jan. laid out some seventy years ago in the township barrister, he should be kopt inactive for three
31; M. and H. Turner, solicitors, 42, Jermyn-street, St. of Esgairgeiliog, under a special Inclosure Act years. At the most he should not be called upon GRANT (Wm.), Nuttall Hall, near Ramsbottom, Lancaster, passed in 1797, the defendants being the inhabi. to do more than undergo an additional examina- Esq, Feq. 1; Woodcocks and Sons, solicitors, West View, tants of the township. There was a similar protion in legal subjects. The regulations I com. Hallingden.
secution twelve months ago, which failed for want GREENHILL (Henry W.), late of Northolt, Middlesex, plain of may have been all very well before the farmer. Jan. 31 Young. Jackson, and Co., solicitors; of a duly attested copy of the commissioner's examinations for articled clerks at the Incorpo- GUNTER Mary A.), formerly of Handsworth: Stafford, and
award, the township, however, being condemned rated Law Society's Hall were initiated, but surely
in the costs, as the indictment was prepared
late of Southsea, Hants, spinster. Jan. 24; Robinson and now there is a sufficient guarantee that admitted Watte, solicitors, Dudley:
under a justice's order, and the defendants did men have some legal knowledge, and do not re
HANBY (Geo.), late of 246, Clapham-road (formerly 6, not show that the road was not a public highway. quire to be trea
Dudley-villas, Clapham-road), Surrey, and of the Marine- The present was an indictment at common law. the same manner as persons parade, Bognor, Sussex, Esq. Feb. 20; Tatham and Co., who have never studied law at all. I should like solicitors, 86, Lincoln's-inn Fields,
Marshall appeared for the prosecution, and to hear the opinion of others upon this matter, 1 PAROWICKLRight an.olbardes. Ps: Earl of acFeb..10: Swetenham (specially retained), with J. M. Lloyd, and hope this may elicit some. I look upon the Inn, Middlesex,
for the defence.
The case having been opened, the Act of Par. and certified so to be," showed that the certificate the security and payment of all freight, dead liament was put in, followed by a copy of the was not intended to shutout other evidence; that freight, demurrage, and other charges, the master commissioner's award, produced from the custody by the cases of Reg. v. Cumberworth, Reg. v. Edge or owners should have an absolute lien and chargé of the lord of the manor (Earl Powis), which was Lane, and Bateñan v. Glamorganshire Canal on the cargo. The loading of the ship was com. made primary evidence by the Act. The Act Company, it was decided that a road must be pleted, and the ship was cleared, but she never specified that on the roads being completed, they shown to be completely formed throughout before started on her voyage, nor were the bills of should be certified to be " well and effectually it becomes a charge upon the public, which he lading signed. The charterer filed a liquidation
” by a surveyor appointed by the commis- was prepared to prove was not the case here ; that petition, and the truste under the liquidation sioner, and that on the certificate being filed with Reg. v. East Hagbourne indicated the same thing; disclaimed all interest under the charter-party. the court of quarter sessions, they should become and that the point was made perfectly clear in Held (affirming the decision of the Chief Judge repairable as other public roads on the manor Cutitt v. Lady. Maxse, decided last June, in in Bankruptcy), that the shipowner was not en. (Kerry) were repairable by law. A certificate had which that doctrine was emphatically laid down. titled to a lien in respect of the £250 agreed to be been duly filed at the Easter sessions, 1810, by Marshall, in reply, referring to the phrase paid in advance, inasmuch as the ship had never William Pugh, the surveyor so appointed, and was “taken to by the public” used in the judgment in earned freight; the compensation to which the now produced by the deputy clerk of the peace ; | the last-named case, remarked that the doctrine shipowner was entitled for the loss sustained by but upon his being sworn, Swetenham objected to of a voluntary adoption of a road by the parish reason of the charterer's default was not freight, its reception until the appointment of the surveyor being necessary before it became chargeable upon and the £250 did not come within the lien given and his taking of the oath of office had been the public, had been abandoned many years, by the charter-party : (Ex parte Nyholm, 29 L. T. proved, relying upon the case of R. v. Hasling, because, ever since the passing of the General Rep. N. S. 634. L. C. and L.JJ.) field. At any rate, on the authority of that case, Inclosure Act of 1801 (41 Geo. 3), there had been REGISTRY OF SHIP-CERTIFICATE OF MERITit would be necessary to show by independent the security of an order of justices founded upon LACHES.- The defendants were an association for evidence that subsequent usage had been con- the report of a surveyor-a provision substantially the registry of iron ships, and classed the ships in sistent with the award, before proof of the appoint- continued and strengthened by the 23rd section of a register of merit according to the reports of ment and oath could be dispensed with. the Highway Act of Will 4. That security was their own surveyors.
A list from the register Marshall said he had abundant evidence to provided by the Kerry Inclosure Act in this very might be obtained by anyone. The plaintiffs were prove the usage, but he relied first upon the well- certificate of the surveyor now contested, for it members of the association and the owners of a known rule that documents thirty years old, pro- was not until that had been filed that the road ship which in 1870 was ranked in the highest class duced from the proper custody, proved them became chargeable upon the public. In Rex v. in the register. The plaintiffs in 1870 made an selves; and then upon the other rule of evidence Cumberworth, the judgment was founded upon this alteration in the ship, and submitted her to the that where persons had acted in an official capa- very want of a particular point of time deter. defendants' inspection, who, not approving of the city it was necesary to prove their appointment, mined by the Act at which the chargeability should alteration, entered in the registrar, “ class suseven where it had been under seal or was put in commence; and not only so, but all the cases pended 1871,” and refused to restore the previous issue by the pleadings. He quoted the case of cited upon that point were those of turnpike roads first-class entry unless some further alteration Williams v. Eyton in support of his argument. or canals, the judgments being based upon the was made. The advisability of the alteration
The Court decided to admit the certificate with. fact that concessions of land had been obtained was a matter of opinion, as since the alteration out further evidence.
from private landowners as one of the induce the vessel was classed in the highest rank at Mr. Evan Powell, the prosecutor, and Mr. ments for the passing of the respective Acts-a Lloyd's” (London). The plaintiffs continued Mickleburgh, a surveyor, were then called to feature wholly wanting in this case. The great to use the vessel, but it was proved that her value speak to the condition of the road, and were distinction of Lady Maxse's case was that the had been depreciated in consequence of the entry examined at some length. On a question being Inclosure Act there was passed in 1802, after the in the defendants' register. On a bill being filed put to the last witness as to his opinion upon its General Inclosure Act, and therefore subject to by the plaintiffs in Nov. 1873 to restrain the deoriginal formation, the court said they held the its provisions; while the Kerry Act was passed fendants from disposing of any copies of their list surveyor's certificate to be conclusive upon that four years before it. Rex v. East Hagbourne, he containing the words * Class suspended 1871,” point.
submitted, had no application. As to the use of Held, on motion, that the plaintiffs were not entiSwetenham said if that was so, the only course the copulative "and" in the phrase quoted from tled to relief, first, because the entry was the for him would be to abandon the defence and ask the Act, the necessity for using it would become bona fide opinion without malice of the society to for a special case, as he had a number of witnesses apparent from the absurdity that would follow if whose judgment the plaintiff had submitted the to show that the road never was properly made at the disjunctive “or” were substituted for it. The vessel, secondly, because of their laches in all. Before the court came to that decision, how- certificate was the proper legal evidence of the applying to the court for relief: (Glover v. Roydon, ever, he should like to be allowed to give his completion of the road; and if such testimony as 29 L. T. Rep. N. S. 639. V.C. M.) reasons for holding that the certificate could not that suggested by the learned counsel were adbe conclusive.
mitted it would be adducing unofficial evidence to The Court said they were perfectly prepared to contradict that specially appointed by law.
SPECIMENS OF A CODE OF MARINE hear him. The Court intimated that it still held the
INSURANCE LAW. The learned counsel then, in a speech of some certificate conclusive, and a verdict of guilty was By F. O. CRUMP, Barrister-at-Law. length, argued that the expression in the Act that then returned, subject to a special case upon that the roads should be well and effectually made, point. The penalty was fixed at £90.
(Continued from page 165.)
The communication of a fact, or the making of Borough, When holden, Recorder,
Clerk of the Peace. appeal to be given.
a statement by one party to the other tending to
influence his estimate of the character and degree Saturday, Jan. 24
Charles S. C. Bowen, Esq. | 10 days ........... Walter Borlase. of risk to be insured against.
NOTE.-A representation is construed according to
the fair and obvious import of words, and is equivalent to an express statement of all the
inferences naturally and necessarily arising from MARITIME LAW.
Phillips, sect. 550.
If ambiguous from design, the underwriter, if OBSTRUCTION TO A TIDAL RIVER-OMISSION (1 Ad. & E. 384.): (Jolliffe v. the Wallasey Local and the underwriter might fairly have entertained TO INDICATE OBSTRUCTION BY A SUFFICIENT Board, 29 L. T. Rep. N.S. 582. C.P.). BUOY.-By & local Act the defendants were DAMAGE TO CARGO-BURDEN OF PROOF-BILL | he misunderstand it.
a doubt as to the meaning, he is not discharged if authorised to construct in conformity with certain Or LADING-EFFECT OF TERM “QUANTITY AND
Brine v. Featherstone, 4 Taunt. 867; Freeland v. deposited plans, “and upon the lands delineated QUALITY UNKNOWN."--In a suit against ship- Glover, 7 East, 462. upon the said plans," a pier or landing stage, owners for damage to cargo the onus is upon the If the representation is expressed in technical "together with such other works and conve- plaintiffs to show in the first instance that the language, it may be interpreted by reference to niences in connection therewith," as they should goods were shipped in good order and condition the usage. from time to time think fit. Before the landing before they can call upon the shipowners to show Chaurand v. Angerstein, Peake's N. P. 43. stage was commenced plans of the proposed excuse for the injury done to the goods. A bill A misrepresentation is a false representation of works were to be deposited at the Admiralty for of lading stating that goods were shipped in good a material
fact, by one of the parties to the other, approval. The local Act was to be executed order and condition, but also containing an in- tending directly to induce the other to enter into
subject to the powers and provisions” of the dorsement by the master, “ quantity and quality the contract, or to agree to terms exceptionally Public Health Act 1848, sect. 139 of which re- unknown,” does not admit, as against the ship- favourable to the former. quires notice of action" for anything done or owners, that the goods were shipped in good order A misrepresentation may be made on a matter intended to be done” under the provisions. The and condition. Evidence of the condition of goods upon which no representation at all is necessary. defendants deposited plans (differing in extension on delivery tending to show that the damage sus- Phillips, sect. 529-30. from the plans under the Act) which received the tained could not be accounted for by any damage A material mis-statement by the assured approval of the conservators of the river, repre-existing at the time of shipment, and that such through misconstruction of his information is a senting the Admiralty, and constructed the land damage, had it existed, must have been noticed misrepresentation. ing stage in conformity therewith. The landing by the master or officer in charge of the ship at
Macdonell v. Fraser, Dougl. 217. stage was & floating one, and was moored by the time of shipment, will not, where goods are
Phillips, sect. 546. anchors lying in the bed of the river. The position shipped under a bill of lading endorsed " quantity
Materiality. of the anchors was indicated by a buoy, which, and quality unknown” satisfy the onus cast upon reasonably be supposed to have an influence on
Material facts are those which when stated may being carried down by the tide, became concealed plaintiffs seeking to recover against shipowners the judgment of the underwriter calculated to placed, stove in and swamped a vessel of the the condition of the goods when shipped must be diminish the estimate of the risk which he otherplaintiffs which was lawfully navigating the river. given : (The Prosperino Palasso, 29 L. T. Rep.
wise would have formed :
Sibbald v. Hill, 2 Dow's P. C. 263. Held (1), that the anchor, although placed where N. S. 622. Adm.) it was for the benefit of the public, was an ob- CHARTER-PARTY-LIEN FOR FREIGHT-PART judgment of the underwriter, the false representa
If the fact be material, but do not affect the struction which the defendants could not have PAYABLE ON SIGNING OF BILLS OF LADING- tion does not avoid the policy: created without statutory authority, and was a BANKRUPTCY OF CHARTERERS-DISCLAIMER OF Flinn v. Headlam, 9 B. & Cr. 690. nuisance to the river ; (2) that the defendants CONTRACT.-By a charter-party, after providing A statement which ceases to be material before were guilty of negligence in their management of that the freight was to be at certain specified the risk commences need not be verified: the buoy, but (3) that inasmuch as the plans had rates, it was agreed that £250 should be advanced Phillips, s. 666. received the approval of the Admiralty, such in cash on signing bills of lading and clearing at The premium being lower than would have been approval was tantamount to the sanction of the the custom house of the port of shipment, and the case had no representation been made, the Act, so as to entitle the defendants to statutory the remainder on a true and faithful delivery of presumption is that the subject matter of the 20tice of action. Notice of action must be given the cargo at the port of discharge; and that for representation is material to the risk:
What notice of