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registrar before the 30th day of January instant. On making the application, you will be required to satisfy the registrar that the security approved by him is still subsisting.
You must produce your certificate.
RICHARD Wright, Registrar. It is very desirable to call the attention of bailiffs to the necessity for renewing their certificates.
heard also sat to hear the summons for perjury, and that on the hearing of the summons for damage, after Parrant said that he had no witnesses, the magistrates refused a remand, and the suggestion was that they were biassed by their previous decision. Why should they be? Is any magistrate, or judge even, who has once given a decision, to be considered as hopelessly biassed and unfit to hear any other case arising from the same circumstances? Would he suggest that no stipendiary should sit to hear a summons for perjury arising out of proceedings before him ? Or that a High Court judge would be biassed if he ordered the committal for perjury of a witness, which, of course, he has power to do?
After making these remarks to the jury about the Bench, the judge added that he hoped that this would not be allowed to prejudice the prisoner. He was apparently already hopelessly prejudiced. The Common Serjeant's view was so strong that, on a subsequent application that the county should pay the costs of the prosecution, he remarked that he would do anything he could to assist the prosecution, the case being one of great public importance. He further added : “If there is any power to award costs I should exercise it, because it was entirely owing to the refusal of the justices to grant an adjournment of the case that any difficulty arose in the matter. I don't wish to say again what I said before about the action of the justices.”
Until some explanation of this case is given-some assurance that it is an aberration of Old Bailey justice--a careful watch will have to be kept upon the doings of the Central Criminal Court.
SIR FORREST FULTON AND THE HAMPSTEAD
CONSTABLE. JUDGES as a rule hesitate to direct a verdict. In civil cases they let their bent be seen whilst disclaiming all desire to suggest what the jury's finding should be. In criminal cases they know that their only duty is to explain the law and sum up the evidence as much in the interest of the prisoner as of the prosecution. They sometimes fail in this, from (1) infirmity, , (2) prejudice. Infirmity may be a want of judicial capacity or a judicial mind, i.e., inability to see both sides of a case. Prejudice is not personal, but forensic. It generally springs from vanity. How are we to explain the conduct of the Common Serjeant of London at the trial of the Hampstead constable Murray?
This unfortunate man was summoned before the Hampstead magistrates on a charge of perjury. The prosecutor was the only witness besides medical evidence. After a hearing of five kours the summons
Then that engine of oppression, the Vexatious Indictments Act, was put into operation. A bill was presented to the grand jury at the Central Criminal Court. The Recorder, in his charge, encouraged the grand jury to throw out the bill, pointing out to them the entire absence of corroborative evidence which the law requires to support such a charge. However, they found a true bill. The trial came on before the Common Serjeant. We will deal with his conduct at the trial presently. Let us state results.
The constable was convicted and sentenced to nine months' hard labour. That was on the 25th Nov. 1896. On the 9th Jan. 1897 Murray was liberated by order of the Home Secretary. Why? Clearly not because the punishment was unduly serere. The only alternative conclusion is, that Sir Matthew Ridley believed that Murray was unjustly convicted.
Now let us see how the charge of perjury by Murray arose.
In September last a man named Parrant was charged before the Hampstead Bench with wilfully damaging the brick pillars and caps of houses in Frognal. Murray, in his evidence, said that he saw a man, who turned out to be the prisoner, come into Frognal from Netherhall-gardens. He kept close to the fence on the other side of the road, and when within nine yards of Parrant, saw him push off one of the caps. He then crossed the road and arrested him. It was admitted that the prisoner and the constable were the only persons present, that Parrant had been drinking, and that he had brickdust and mortar on his coat.
The Bench convicted and fined Parrant, who then took out a summons for wilful and corrupt perjury against the constable.
The evidence adduced by Parrant at the Old Bailey was that of several doctors, who swore that he had such an injury to his left arm that he would not be able to push off a cap, and the presence of the brickdust was explained by his saying that he had been inspecting an outbuilding somewhere. On behalf of the constable, it was clearly proved that a man of ordinary strength could push the caps off easily with one hand. Parrant, it must be remarked, was a powerfully built man. No other evidence was called, for it was admitted that there was no witness present at the time. Clearly, on the reported evidence, this was a case of oath against oath, and not, as Chief Justice Parker has expressed it, “a strong and clear evidence, and more
than the evidence given for the defendant." Throughout the whole of the case the Common Serjeant freely expressed himself as to his opinion of the Hampstead Bench, and in his summing up expressed his astonishment that any Bench could be found to have acted as they had done, and he said that he hoped that in the interests of public justice such proceedings would never be heard of again. Now, what had happened to cause this judicial stricture ? Simply that two of the magistrates who had sat when the case against Parrant was
CROSS-EXAMINATION. “NEVER drive out two tacks by trying to hammer a nail ” was an axiom of Lord Abinger's, and this advice he freely gave to junior members of the Bar. Cross-examination is an excellent test of truth; at the same time, the most limited experience will testify that what a man says is often of very small importance indeed compared with his manner of saying it. When cross-examination is pushed to excess, it is more often the fault of the judge, whose duty it is to re-assure and encourage the witness. Brow. beating and annoying a witness is totally different from discrediting him.
Prior to the passing of the Common Law Procedure Act 1854 (17 & 18 Vict. c. 125). though it was settled that a witness was compellable to answer questions having a tendency to disgrace him--as e.g. whether he was ever convicted of an offence--yet there existed great doubt whether he was compellable to answer questions relating to collateral matters, and only put in order to test his credit. The doubt has been removed by the passing of this Act, and it is now well settled that a witness in a civil as well as in criminal cases (vide sect. 25 of 17 & 18 Vict. c. 125 and sects. 1 to 6 of 28 Vict. c. 18) may be asked whether he has been convicted of any felony or misdemeanour, and if he either denies the fact or refuses to answer, the opposite party may prove the conviction. There still exists a doubt, however, as to whether he is bound to answer the question, “ Have you ever been guilty of a dishonorable act?” though the better opinion seems to be that the question may be put, and must, if the presiding judge require it, be answered, but not otherwise : (see Reg. v. Castro, 30 L. T. Rep. 320 and also Order XXXVI., 38 of Rules of the Supreme Court.)
The witness may also be contradicted where the question is one tending to show that he is not impartial and answers denying the facts suggested ; and the same course may be taken with a witness in his examination in chief if the judge is of opinion that he is hostile to the party by whom he is called and permits the question.
Where the question put is one tending to disgrace the witness, the counsel putting it is in general bound by the answer, because it only goes to the credit of the witness, which is a collateral matter, and would not be relevant: (see Reg. v. Holmes, L. Rep. 1 C. C. 334 and Reg. v. Hodgson, R. & R. 211). What are relevant facts depend of course upon the nature of each particular case.
By gect. 24 of the Common Law Procedure Act 1854 (17 & 18 Vict. c. 125) a witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject-matter of the cause, without such writing being shown to him ; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him. Provided always, that it shall be competent for the judge, at any time during the trial, to require the production of the writing for his inspection, and he may make such use of it for the purposes of the trial as he shall think fit. Again, where a witness has made a particular statement in a former trial, and afterwards denies having done so in a subsequent one, proof may be given that he did in fact make snch statement, and this applies equally either in a civil or criminal trial (see sect. 23 of 17 & 18 Vict. c. 125 and sects. 1 and 4 of 28 Vict. c. 18), and to all persons having by law or by consent of the parties authority to hear, receive, and examine evidence. The statement, however, must be relevant to the issue. Questions suggesting the answer (or leading questions as they are commonly called) may be asked in cross-examination. The object of cross-examination is to test the witness's accuracy, veracity, or credibility, or to shake his credit by injuring his character, and he is compelled (if the judge rules that such
questions are reasonable) to answer. But no person is bound to answer any question if the answer would, in the opinion of the presiding judge, have a tendency to expose him or her (as the case may be) or his or her husband to any criminal charge or penalty, &c., either at the instance of the Crown or anyone else : (see 46 Geo. 3, c. 37, and Reg. v. Scott, 25 L. J. 128). As to whether he is bound to produce a document incriminating himself, see Webb v. East (5 Ex. Div. 23 and 109). Further, a witness's credit may be impeached by the adverse party, where they know that he or she is unworthy of belief, even upon oath. They cannot give their reasons in examination in chief, though they may do so in cross-examination.
A witness is not liable to cross-examination if called upon subpoena duces tecum to produce a document and is not sworn; neither in the case where he has been sworn by mistake, whether of counsel or officer, or when his examination in chief is stopped by the judge : (see sects. 1429-1451 Taylor on Evidence, 9th edition by Geo. Pitt-Lewis, 1895). Formerly, in Scotland, leading questions were not allowed, but the present-day practice of the Scottish courts on this point is similar to our own (see vol. 2, Dick's Evid. (Sc.) 988).
Lastly, as to whether questions respecting the motives, interest, or conduct of a witness can be put in cross-examination, the authorities are not consistent.
STAMPS ON AGREEMENTS. EVERYONE, that is, among lawyers and the majority of commercial men, knows that an agreement requires a sixpenny impressed or adhesive stamp. But they are liable to forget that one exception to this rule is an agreement the matter whereof is not of the value of £5, formerly £20 (54 & 55 Vict. c. 39, first schedule). If this exception be considered, it will be found to be of considerable importance in general, and not only in County Court, practice.
There are numerous decisions upon the general question what agreements are within the meaning of the Stamp Act, and the learning is very interesting, and of practical utility wherever an important instrument, apparently an agreement, is found unfortunately unstamped. But we cannot do more to-day than deal with the exception referred to.
It is obviously most material, in view of the terms of the exception, to ascertain what is the subject matter of an agreement, and what is its pecuniary value. This can be best shown by one or two examples. A memorandum by a carrier of the receipt of goods of the value of £260 for carriage at a price less than £5, does not it seems require a stamp, and unstamped may be given in evidence to show the terms upon which the goods were received: (see Latham v. Rutley, Ry. & M. 13 ; Chadwick v. Sills, Ibid. 15). For the price of the carriage, and not the value of the parcel, is the subject matter of the engagement. So, likewise, an agreement to give up a house and goodwill for £4, and further, not to open a shop of the same description under a forfeiture of £20, would not require a stamp, and unstamped may be given in evidence in an action for breach of the agreement not to open a shop. On the plaintiff proving his case, the jury would be bound to give the £20 as the damages, but the price paid for giving up the house, not the amount of the forfeiture, is the true subject matter of the agreement: (see Pemberton v. Vaughan, 10 Q. B. 87).
Those who are interested in the sale by auction of an estate in numerous lots, and especially in small and cheap plots for building—and what lawyer in populous districts is not in the present day ?-should not forget that, where several lots are sold by auction to one purchaser, a separate contract is deemed to have been entered into in respect of each lot. Hence, if the price of each lot be under £5, no stamp will be necessary, although the aggregate amount of the purchase money exceeds £5: (see Roots v. Dormer, 4 B. & Ad. 77). And, on the other hand, if the price of each lot exceed £5, the contract must bear as many stamps as there are lots : (Watling v. Horwood, 12 Jur. 48).
Those who have considered the exception of little practical moment, will be surprised to find that, under the statute, 55 Geo. 3, c. 184, scb. I., Baron Parke stated that " it must appear on the face of the instrument, or with reference to the subject matter be capable of being ascertained, that the agreement was of the value of £20 at the time it was entered into : (Taylor v. Steele, 16 M. & W. at p. 668). Hence, a contract of marriage might be proved by unstamped letters, though naturally the subject matter might be supposed not to be of less value than £20 when entered into, and, as a fact, in the result the jury gave heavy damages (Orford v. Cole, 2 Stark. 331). And it is impossible to say that an agreement to pay 5 per cent. on £170 is one of the value of £20 at the time it was signed, for the loan might last so short a time that the interest might never amount to £20 : (Taylor v. Steele, ubi sup.). Again, suppose A. agreed to supply B. for a year with coal at a rate not exceeding 20s. a ton, and at the end of the year the value of the total weight of coal supplied exceeded £20, on that agreement a stamp was not requisite, because it subsequently turned out that the value was more than £20: (Liddiard v. Gale, 4 Ex. 816). The Acts, however, under which these cases were decided charged the instruments only when the subjectmatter was of a certain value, whereas the Stamp Act of 1870 and of 1891, it is to be observed, charges all agreements, and makes those of a small value an exception. It has been submitted, therefore, that, in order to bring a particular unstamped agreement within the exception to put it in evidence, the person tendering it in evidence must show that the subjectmatter is measurable, and that at the date of the agreement the matter thereof was not of the value of £5. That would, it is apprehended, be som vhat of an unexpected and narrow interpretation of the existing statute, and we should with interest watch a case raising the question whether Taylor v. Steele and that class of case apply to the exception under consideration.
ALIMONY PENDENTE LITE. The term “ alimony” signifies the "allowance made to a wife out of her husband's estate for her support either during a matrimonial suit, or at its termination, when she proves herself entitled to a separate maintedance and the fact of the marriage is established.” There are three kinds of alimony, namely, alimony pendente lite, i.e., the allowance made to a wife from the commencement of the suit until the final decree ; permanent alimony, i.e., alimony continued permanently after decree of judicial separation; and permanent maintenance, constituting that means of support continued permanently after the decree of divorce or nullity. Our remarks, however, will exclusively be confined to alimony pendente lite.
In the old ecclesiastical courts alimony pendente lite was payable immediately after the return of the citation, and all sums paid subsequent to that return were allowed as part payment. Alimony pendente lite was. disposed of at the first stage of the proceedings, the old courts considering that there was no occasion to worry the husband unnecessarily with claims and demands for his wife's debts. The proof of the marriage had to be first established, and, when the fact of the marriage was acknowledged, alimony of course followed, except where the wife had a provision of her own sufficient for her own condition in life and proportionate to the means of her husband : (see Miles v. Chelton, 1 Rob. 700 (1849). The old courts generally allotted as alimony pendente lite one-fifth of the husband's income (to be paid quarterly), always bearing in mind, and taking into consideration, the rank and condition of her husband : (Hawkes v. Hawkes, 1 Hagg. 526 (1828). This rule, however, varied where the wife had a separate income, and the amount allotted was reduced when it was shown that the husband was no longer able to aliment at the same rate (see Smith v. Smith, 2 Phill. 152, and Cox v. Cox, Add. 276); further, a wife's extravagance was taken into consideration, and the old consistory courts allowed the husband to deduct any sums paid by him on account of his debts : (vide Harris v. Harris, Hagg, 353). Again, arrears of alimony pendente lite, beyond one year, were not to be enforced (Wilson v. Wilson, 3 Hagg, 329 (notis); see, however, the case of Robinson v. Robinson (2 Lee, 593), where a husband was ordered after sentence to pay two years' arrears of alimony pendente lite from the date of the citation, the wife having received nothing during the progress of the suit.
Such was the practice in reference to alimony pendente lite under the old law. Since the Matrimonial Causes Act 1857 (20 & 21 Vict. c. 85), applications for alimony pendente lite are regulated by the rules of the Divorce Court, 81 to 94 inclusive, and 189 to 192 inclusive. In allotting alimony, the court is guided by its own practice, made by virtue of the powers conferred upon it by the Divorce Acts; but, as far as other suits are concerned, it is still bound by the practice of the ecclesiastical courts. A wife is entitled to alimony pendente lite, even though she has been convicted of felony, and is undergoing her sentence: (Kelly v. Kelly, 4 S. & T. 22). Still, in those cases where the wife is able to support herself by her own exertions, her earnings will be taken into consideration : (Goodheim v. Goodheim, 4 L. T. Rep. 449). Further, if a wife has supported herself during the separation and is still able to do so, alimony pendente lite will not be allotted, unless there be exceptional circumstances in the case : (Thompson v. Thompson, 18 L. T. Rep. 212). Where a wife had obtained an order for alimony pendente lite, in a suit instituted by her for judicial separation, the Court refused to grant an order restraining the husband from dealing with certain of his property : (Carter v. Carter, 73 L. T. Rep. 437). In an application for alimony pendente lite by the husband for dissolution of marriage, the wife is entitled to require that the husband shall state upon oath the net profits of his business; but, except in a very strong case, the court will not call for documents which would disclose partnership accounts : (Tonge v. Tonge, 67 L. T. Rep. 390.)
Lastly, we may add that, as a rule, where there has been a de facto marriage, the right to alimony pendente lite exists, until it is finally declared to be void ; and there is jurisdiction to order alimony pendente lite in a husband's suit for nullity of marriage, where the ground is that the wife was within the prohibited degrees of relationship : (Foden v. Foden, 71 L. T. Rep. 229). With regard to the wife, also, an application in reference to alimony pendente lite may be made by her after a decree nisi has been pronounced, if the decree has not been made absolute, even though the time at which it might have been made absolute has passed : (Ibid.).
ACKNOWLEDGMENTS OF STATUTE-BARRED
DEBTS. By 9 Geo. 4, c. 14, s. 1,“ in actions of debt or upon the case, grounded upon any simple contract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the said enactments (Statutes of Limitation), “or either of them, or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby.” But a bare acknowledgment of the existence of the debt is insufficient; there must also be a promise to pay. Such a promise is implied if nothing is said to prevent it (Fordham v. Wallis, 10 Hare, 217), but a guarded acknowledgment is sufficient to exclude such an implication (Tanner v. Smart, 6 B. & C. 603). The principle to be deduced from the case-law on the subject appears to be, that there must be an unqualified acknowledgment, or, if the promise to pay is coupled with a condition, proof of the fulfilment of the condition is required. And as the tendency is to confine rather than extend the operation of acknowledgments (see Darby & Bosanquet, 2nd edit., p. 68), it is advisable for the
creditor to demand the insertion in all intentional acknowledgments of a distinct promise to pay on request.
Let us review shortly, first, the cases showing when a promise will be implied, and then those in which a condition was attached to the promise. In Dabbs v. Humphries (10 Bing. 446), in 1834, the words were : “I cannot comply with your request” (for payment of £150). “The best way for you would be to send me the bill you hold, and draw another for the balance of your money-£30 9s. 9d.” This was held a sufficient acknowledgment that the sum mentioned was due, and a promise to pay was implied. “I wish I could comply with your request, for I am very wretched on account of your account not being paid. I hear there is a prospect of an abundant harvest, which surely must turn into a goodly sum and very considerably reduce your account; if it does not, the concern must be broken up to meet it at last." A promise to pay was implied here, and the acknowledgment was effectual (Bird v. Gammon, 3 Bing. N. C. 883), in 1837. In Hart v. Prendergast (14 M. & W. 741), in 1845, a letter was written to the creditor's clerk, saying: “I will not fail to meet Mr. H. on fair terms, and have now a hope that before perhaps a week from this date I shall have it in my power to pay him, at all events, a portion of the debt, when we shall settle about the liquidation of the balance." This was held not a sufficient acknowledgment, for the reference to a settlement in the last sentence prevented the implication of a promise to pay the whole. “I hope to be in Hampshire very soon, when I trust everything will be arranged with Mrs. Wells agreeable to her wishes," was held by Romilly, M.R., in 1852, to sufficiently imply a promise to pay to take the case out of the statute (Edmonds v. Goater, 21 L.J. 290, Cb.; 15 Beav. 415). In Rackham v. Marriott (25 L. J. 324, Es.:1 H. & N. 234 ; 26 L. J. 315, Ex. ; 2 H. & N. 196), in 1857, a letter from the debtor, saying that he did not wish to avail himself of the Statute of Limitations, but he had not the means of settling the debt, and that in course of time he might get an increased salary, when he could propose some arrangement, was held not sufficient. In Sidwell v. Mason (26 L. J. 407, Ex.), in 1857, the debtor wrote, “I have received your bill. It does not, I think, specify sufficiently to wbich cottages the work is done. I shall feel obliged if you will more particularly explain, and take your agreements to Mrs. H.” (his agent). “It is my wish to settle your account immediately, but, being at a distance, I wish everything explicit and correct. I have asked Mrs. H. to mark the agreements and send them to me, and I will return them by the first post, with instructions to pay, if correct.” This was held sufficient. In Holmes v. Mackrell (3 C.B. N. S. 789), in 1858, an account made out by the debtor was decided to be a sufficient acknowledgment of the amounts set down as debts for which he was liable. In this case it was also held that his name in his own handwriting at the top of the sheet was a sufficient signature to bind him. Godwin v. Culley (4 H. & N. 373) was an action brought in 1859 for a mortgage debt of £100, £40 due on a promissory note, and certain costs. The defendant had written asking the plaintiff to have his account ready by a certain day, and saying that he heard the amount due was about £280. “Of course, this includes the £100 and interest that I had some years since, and the £40 promissory note that I jointly signed with the late Mr. B.” This was held à sufficient acknowledgment of the whole claim. The next case is interesting as showing the difficulty of foreseeing the manner in which different judges will construe the same words, Baron Martin dissenting from the judgments of Barons Channell and Bramwell. It is Lee v. Wilmot (L. Rep. i Ex. 364), in 1866, where the debtor wrote: “I will try to pay you a little at a time if you will let me. I am anxious to get out of your debt. I will endeavour to send you a little next week.” This was held a sufficient promise to take the case out of the statute. An indorsement on a promissory note, in the promisor's handwriting, of his name and the year, was held a sufficient acknowledgment by Wickens, V.C., in Bourdin v. Greenwood (13 Eq. 281), in 1872. A promise to pay was also inferred in Quincey v. Sharpe, in 1876 (34 L. T. Rep. 495 ; 1 Ex. Div. 72). In this case the defendant wrote two letters as follows: “I shall be obliged to you to send in your account, made up to Christmas last. I shall have much work to be done this spring, but cannot give further orders until this be done." And : "I again beg of you to send in your account, as I particularly require it in the course of this week.” In Green v. Humphreys (51 L. T. Rep. 42; 26 Ch. Div. 474), in 1884, the debtor had been applying some rent in payment of his debt, and in answer to an offer from the creditor to give up the rent at Christmas, he wrote, “I am happy to say at that time both principal and interest will have been paid in full.” This was held no acknowledgment of the debt quâ debt, and therefore the statute applied. A letter from a solicitor saying that his client only required particulars of any unsettled bill of costs there might be against him was held by Mr. Justice North in 1889 to take the case out of the statute: (Curwen v. Milburn, 62 L. T. Rep. 278; 42 Ch. Div. 424). See also Smith v. Poole (12 Sim. 17). It seems then the the amount of the debt need not be specified, nor the account on which it is due, aor the name of the creditor, but all these can be supplied by parol extrinsic evidence.
Now as to the cases in which there was a conditional promise, and proof of the condition having been performed was held necessary. The first is Tanner v. Smart (ubi sup.), which is a leading case, decided in 1827, and well worth studying for the judgment of Lord Chief Justice Tenterden. The words in this case were : "I cannot pay the debt at present, but I will pay it as soon as I can.” It was held that this was a promise to pay on condition of being able to do so, and as the plaintiff adduced no evidence of such ability the acknowledgment was insufficient. This decision was followed in 1834 in Edmunds v. Downes (2 Cr. & M. 459), where the words were : “I shall be most happy to pay you as soon as convenient.” Similar cases were Meyerhoff v. Froehlich (39 L. T. Rep. 621; 4C. P. Div. 63), in 1878, and Bethell v. Bethell, before Mr. Justice Stirling, as lately as 1887 (56 L. T. 92 ; 34 Ch. Div. 561). A recital in a deed, to the effect that a
debt was due, that the amount was not ascertained, and that the debtor was willing to pay when the amount bad been ascertained by the arbitration of two persons named, was held by Baron Alderson, in 1840, an absolute promise, which, coupled with parol evidence as to the amount, was a sufficient acknowledgment: (Cheslyn v. Dalby, 4 Y. & Col. 238). The acknowledgment in Gardner y, McMahon (3 Q. B. 561), in 1842, is too long to set out in this article. It must suffice to merely refer to it as a good instance of an unconditional promise. In Humphreys v. Jones (14 M. & W. 1), in 1845, a person who had signed a promissory note as surety, on the death of the principal debtor requested the holder to apply to his executrix, adding, "What she may be short I will assist to make up. This was a conditional promise, which became absolute on the executrix being applied to and failing to pay. In Collis v. Stack (26 L. J. 138, Ex.; 1 H. & N. 605), in 1857, the debtor wrote repeating his assurance that the debt would be paid, asking for time, and saying he would pay soon as it becomes practicable.” This was held, notwithstanding the last sentence, an absolute promise. In Chasemore v. Turner (33 L. T. Rep. 323 ; L. Rep. 10 Q. B. 500), in 1875, the words were : "The old account between us has not escaped our memory, and as soon as we can get our affairs arranged we will see you are paid ; perhaps, in the meantime, you will let your clerk send me an account of how it stands.” Though Justices Blackburn and Archibald, and, on appeal, Lord Chief Justice Coleridge, thought otherwise, a large majority of the judges held that there was no condition here, but the promise was absolute.. In Skeet v. Lindsay (36 L. T. Rep. 98; 2 Ex. Div. 314), decided in 1877, the defendant wrote: “I return to Shepperton about Easter. If you send me there the particulars of your account with vouchers, I shall have it examined and cheque sent to you for the amount due ; but you must be under some great mistake in supposing that the amount due to you is anything like the sum you now claim.” The request to be furnished with an account with vouchers at a particular time and place was held not to be a condition such as would, if unperformed, negative the implied promise. Finally, there remains the case of Cornforth v. Smithard, in 1859 (29 L. J. 229, Ex.; 5 H. & N. 13). “I am ashamed the account has stood so long. I must beg to trespass on your kindness a short time longer till a turn in trade takes place.” There was no evidence as to the date of this letter, and the Court assumed that it was written before the debt was barred by the statute, and held it a sufficient acknowledgment. The remarks of Lord Chief Baron Pollock in this case with regard to the question of date are well worth repetition : “ There is a great difference in the effect of a letter written shortly after the debt has accrued and before it is already barred by the statute, and one written after it has been so barred. In the latter case the debtor is in a position to couple any promise be makes with a condition ; but where a person, being in the situation of a debtor who has no right to time, writes a letter asking for time, the reasonable construction is that it is no condition, for the writer, having no right to impose terms of any kind, cannot be supposed to have had any intention to impose a condition."
COMMENTS ON CASES.
A CONTRACT, whether to take shares in a public company or for any other object which has been induced by the fraud or misrepresentation of one party to it upon the other, is voidable at the instance of the party upon whom the fraud or misrepresentation has been practised or made. If that party, with a knowledge of the facts, acts upon the contract, the court will not, subsequently at his instance, rescind it. And a mere allegation in pleadings of fraud upon a shareholder sued for calls, unaccompanied by a statement that on discovering the fraud the defendant had avoided the contract by which he became a shareholder, has been held insufficient : (Deposit Life Assurance v. Ayscough, 6 E. & B. 761). The defrauded party, moreover, must be prompt in making his appeal for relief, because the continuance of the shareholder in his position of shareholder may affect others. Further, as pointed out by one of the learned judges in Aaron's Reefs Limited v. Twiss (74 L. T. Rep. 794 ; (1896) A. C. 273), after a winding-up order “a third party, a change of circumstances, intervenes.” A comparison of that case as decided by the House of Lords and the learned judges in favour of the defendant in the Court of Appeal in Ireland, with Mr. Justice Kekewich's judgment in Re The Dunlop-Truffault Cycle, &c., Company Limited; Shearman's case (75 L. T. Rep. 385) will, it is submitted, illustrate the above principles. In the case from Ireland defendant had paid a call, but before ascertaining the inaccuracy of the statements contained in the prospectus of the plaintiffs. In Mrs. Shearman's case, the applicant, after ascertaining that the director-relying upon whose knowledge of cycles she had taken shares in the company-was a printer of similar name who had nothing to do with cycles at all, nevertheless, acting under lay advice, paid two sums in respect of the share for which she had applied. The learned judge, after pointing out that had she done nothing after her repudiation of the contract, she would not, at any rate for a reasonable time, have been taken to have acquiesced in it-in Aaron's Reefs, repudiation by defence was held to be in time--in the above circumstances refused to remove Mrs. Shearman's name from the register of shareholders of the company.
When income is given to a married woman without power of anticipation, the intention of the donor is clear ; but it is not so clear when capital is given with a similar restraint on its anticipation. In Re Bown (50 L. T. Rep. 796; 27 Ch. Div. 411) the Court of Appeal had to decide this point, and Lord Justice Cotton said: “In my opinion, the question depends upon the intention of the testator declared in his will. Has he declared an intention that the money should be paid to her, or that the income should be paid to her from time to time?" The Court held that the married woman was entitled to have the fand paid to her. Their Lordships disapproved of the contention that there was any difference in the principles to be applied to the case of an income-bearing fund and to that of cash. In Re Fearon (noted ante, p. 181) the same question has cropped up again, and Mr. Justice Kekewich bas decided that a married woman, to whom a share of residue has been bequeathed without power of anticipation, is entitled to the immediate payment of it.
No cause was entered for trial at the Huntingdon assizes on the SouthEastern Circuit.
Mr. Gully, Q.C., M.P., Speaker of the House of Commons, has returned to his official residence at Westminster Palace from Carlisle.
In the Queen's Bench Division, out of 660 actions to be tried, no fewer than 252 will be tried by judges alone.
“Mr. Justice Collins " is the twelfth article of a series on “ Our Judges and Famous Lawyers” now appearing in Lloyd's Weekly Newspaper.
By Order, dated the 9th Jan. 1897, the business formerly assigned to Mr. Justice Chitty has been transferred to Mr. Justice Romer.
Mr. Justice Romer will take motions for Mr. Justice North on Thursdays, the 21st and 28th Jan., and unopposed petitions on Saturdays, the 23rd and 30th Jan.
The Queen has been pleased, by Letters Patent under the Great Seal, to grant to the Right Hon. Sir Edward Ebenezer Kay, Kt., late one of the Lords Justices of Appeal, an annuity of £3500.
Sir Edward Clarke, Q.C., M.P., has been presented with an illuminated address from chief and warrant officers of the Navy, in recognition of his services in Parliament.
The barristers on the South-Eastern Circuit gave a complimentary dinner, at Chelmsford, on the 6th inst., to Mr. C. K. Francis, on his appointment as one of the Metropolitan Police Magistrates.
Judge Bristow, Q.C., is unwell, and has been advised not to sit again until after Easter. Deputy-Judge Sills will take his place at the Southwark County Court.
The old “Worcester Court of Pleas” has been revived and sat on the 7th inst. for the first time for forty-two years. Mr. Amphlett, Q.C., was the judge.
The widow of the late Mr. William Overend, Q.C., of Sheffield, who recently died at Retford, has left £30,000 to medical and other institutions in Sheffield, in addition to legacies to other charitable objects.
Messrs. Dickinson, Miller, and Dickinson, solicitors, of Newcastle-uponTyne, have taken into partnership Mr. A. M. Turnbull. There will be no alteration in the name of the firm.
Lord Justice Chitty, the new Lord Justice of Appeal, took his seat last Tuesday morning in the Court of Appeal No. 1, with Lord Esher (the Master of the Rolls), and Lord Justice Lopes. The court was crowded by members of the Bar and the Legal Profession.
Of the thirty-six final appeals from the judgments of the five Chancery judges, sixteen are from the decisions of Mr. Justice Kekewich, six from Mr. Justice North, six from Mr. Justice Romer, five from Mr. Justice Stirling, and three from Mr. Justice Chitty.
For the first time for twenty years there was not a single prisoner or summons before the magistrates at Eastbourne on the 8th inst., and the occasion was marked by the presentation of a pair of white gloves to the mayor.
Trial by jury does not appear to be very popular in the Probate and Divorce Court. Of the 146 cases now awaiting trial, only thirty-one will be tried by juries--sixteen by special juries and fifteen by common juries.
Mr. W. H. Wooldridge, solicitor, of Sandown, I. of W., has taken into partnership Mr. Henry Pleydell Wilton, of Gloucester and London, and the business will in future be carried on in the name of the firm of Wooldridge and Wilton,
Mr. Thomas Mann Keene, the son of Mr. Alfred Thomas Keene, has become a partner in the firm of Kelly, Keene, and Co., solicitors, of Mold, and the members of the firm will consist of Messrs. Thomas Thelwell Kelly, Alfred Thomas Keene, and Thomas Mann Keene.
Sir Peter Edlin, Q.C., was re-elected chairman of the Inns of Court Board of Preliminary Examiners of Law Students at a meeting of the board held on the 13th inst. in the Parliament-chambers of the Middle Temple. This is the twenty-first year in succession in which Sir Peter has held the post.
Mr. W. H. Wooldridge, solicitor, of Sandown, Isle of Wight, late agent of the Conservative party in Ryde, was the recipient on Tuesday, the 5th inst., of a Monteith bowl and a cheque for £47, together with a handsomely-framed address. The presentation was made by Sir Richard Webster, Q.C., M.P., the Attorney-General, the occasion being the retirement of Mr. Wooldridge from active work on behalf of the party on his appointment as clerk to the county council and clerk of the peace for the Isle of Wight. A smoking concert followed, at which Sir Richard Webster sang “ Hearts of Oak.”
The members of the Law Courts staff were entertained at a supper given by the law officers (Sir R Webster, Q.C., and Sir R. Finlay, Q.C.), which took place at Anderton's Hotel, Fleet-street, on Monday night, at wbich Sir R. Webster was present for a time during the evening. The chair was taken by the superintendent of the Law Courts, Mr. Leonard Sartoris, who was supported by the assistant superintendents, Messrs. A. Smith and G. J. Paul, and a thoroughly enjoyable evening was spent.
The Chronicle Paris correspondent says : Another grave scandal, showing the abuses of the secret criminal "instruction,” has occurred at Bayeaux. Daring the trial of a peasant named Huet for theft, the prisoner affirmed that he had been forced to sign his self-accusation by M. Dac, the examining magistrate, who struck him in the face when he refused. An inquiry has led to the discovery that M. Duc, in the presence of his
greffiier,” M. Tréfaux, had used his fists to male and female prisoners or witnesses. M. Manoury, a local chemist and president of the Tribunal of Commerce, deposed that cases of severe maltreatment had come under his notice. M. Duc still remains a magistrate, but has been removed from the Criminal Investigation Department.
The opinion of the Colorado District Court, by Lefevre, J., holds that shadowgraphs made by the Cathode or X ray process will be admitted as secondary evidence upon the same ground as maps, drawings, &c. The eloquent judge says: “We, however, have been presented with a photograph taken by means of a new scientific discovery, the same being acknowledged in the arts and in science. It knocks for admission at the temple of learning and wbat shall we do or say? Close fast the doors or open wide the portals ? " We say in the interest of science and humanity, open wide the portals. Harness the lightning of the Lord to aid the courts, surgeons, and the rest of mankind to bring to light and view many things that have heretofore been beyond the reach of human sight.
Mr. Curtis Bennett, the Marylebone police magistrate, remarked last week, that there was a very useful section of a certain Act of Parliament which had—unhappily for the country-fallen into disuse. If, in every case where a man was found drunk on licensed premises or was seen to leave the premises drunk, the publican was proceeded against, that, in his opinion, would do more for the cause of temperance than any other legislation that could be brought about. The section referred to had not, however, been taken advantage of. The onus of proving that a man did not get drunk in a particular public-house rested, very properly, upon the publican. If prosecutions were brought day by day, as in his experience as a magistrate of twelve years' standing they could be, against publicans, he was absolutely certain that the management of public-houses would be as different as it was possible to conceive, and the number of drunken cases which he and his colleagues and other magistrates in other large places had to deal with would be decreased to an enormous extent.
The appointment of Mr. Charles Hamilton Teeling, Q.C. to an assistant legal commissionership in the Irish Land Commission adds one more to the remarkable instances of close family connection between the holders of judicial offices in Ireland and political offenders. Mr. Teeling's greatgrandfather and grandfather—the latter was Charles Hamilton Teeling, the anthor of the standard work on the Irish Rebellion of 1798-endured years of imprisonment during that stormy period as political suspects, while Mr. Teeling's grand-uncle, Bartholomew Teeling, who was aide-decamp to Gen. Humbert in his descent on Ireland, was actually hanged in Dublin in 1798 for high treason. To give some further instances, Mr. Justice Perrin, who was one of the judges of the Irish Court of Queen's Bench from 1835 till 1860, was the son of a French teacher settled in Dublin, who was believed to have been associated with an invitation to the French to invade that country. The eldest son of the Right Hon. David Richard Pigot, who was Lord Chief Baron of the Irish Court of Exchequer from 1846 to 1874, was one of the leaders of the Young Ireland Insurrectionary Party in 1848, of which the late Mr. Justice O'Hagan, the first judicial land commissioner, was a prominent member and the principal ballad writer ; while the father of the late Mr. Frenk Thorpe Porter, a noted Dublin police magistrate, was in 1798 a United Irishman, who narrowly escaped the penalties of high treason.
The cost of meeting the living expenses of a judge on circuit forms a very considerable item in the budget of a county council each year, says the County Council Times. This fact has been brought prominently into notice in Norfolk by Mr. Oldman, who at the last meeting of the county council, at which the report of the standing joint committee was presented, asked a few pertinent questions with regard to the cost of the judges' lodgings. These lodgings, it seems, cost £250 a year, and are occupied for less than a month in each year; so that the expenditure is actually something like £250 for a month. The figure is high; but, after all, Mr. Oldman must remember that, taking all things into consideration, the charge is not an exorbitant one. Above all things the dignity of the law must be maintained ; and it would scarcely be consistent-leaving all personal feelings of courtesy and of hospitality out of the question-to receive one of Her Majesty's judges with the pomp and ceremony which invariably attend the opening of an assizes, and to pack him off to some cheap lodging when he had adjourned his court for the day. Judges nowadays are usually quite content to take things as they find them. But they have the dignity of their office to consider, and it is not many years since Mr. Justice Hawkins, who is not a difficult man to please, absolutely declined to accept the lodging offered him on the ground that it was not suitable for the purpose for which it was provided. Would Mr. Old. man like the Norfolk County Council to subject itself to such a humiliation as this, and all to reduce a paltry expenditure of £250 a year ?
Referring to qualification and election of vestrymen, the Metropolitan Local Government Officers' Association, of which most of the vestry clerks of London are members, has received a letter from the Local Government Board, in reply to representations made to the board by the association apon certain points of difficulties which have arisen with regard to the qualifications and election of vestrymen under the provisions of the Local Government Act 1894. The Local Government Board has taken the inion of the law officers of the Crown upon the points raised, and they state, with regard to the question as to the office of vestryman being vacated by reason of absence for six months from the meetings of the vestry, that in their judgment the office does not become vacant until the declaration by the vestry under sub-sect. 7 of sect. 46 has been made, and the vestry must consider whether illness or an excuse approved by them prevents the office from being vacated. They further advise that the commencement of the six months should be reckoned from the date of the first meeting of the vestry which the member bas failed to attend, and that the approval of a reason for absence may be effectually given after the expiration of six months of absence. On the question of filling a casual vacancy occurring within six months before the ordinary day of retirement (which under the Act is not to be filled up until the next ordinary election), the law officers advise that the “ordinary day of retirement” must be taken to be the day upon which the person causing the vacancy would himself bave retired, and, unless he would have retired at the ordinary election to be held within six months, a special election must be held to fill such vacancy. The law officers also advise that a member of a vestry who ceases to be a parochial elector during the period for which he was elected loses his qualification unless he has resided in the parish during the whole of the twelve months preceding his election.
NOTES OF RECENT DECISIONS NOT
COURT OF APPEAL. It'endly Society ---Dispute between Member and Society Expulsion of
Member--Jurisdiction of High Court --Friendly Societies Act 1875 (38 & 39 Vict. c. 60), 8. 22—Friendly Societies Act 1895 (58 f. 59 Vict. c. 26), 8. 10.—The Friendly Societies Act 1875 provides, by sect. 22, that “Every dispute between a member, or person claiming through a member or under the rules of a registered society, and the society, or an officer thereof, shall be decided in manner directed by the rules of the society, and the decision so made shall be binding and conclusive on all parties without appeal, and shall not be removable into any court of law or restrainable by injunction.”. By sect. 10 of the Friendly Societies Act 1895, sect. 22 of the earlier Act is amended by adding, after the words “ registered society" where they first occur, the words " or any person aggrieved who has for not more than six months ceased to be a member of a registered society, or any person claiming through such person aggrieved.” The plaintiff was a member of a registered society. It was alleged that he had publicly stated that the society had not paid him a sum which ought to have been paid to him, and he was asked to attend a meeting of the committee when that allegation would be considered. He denied that he had made the statement, and did not attend the meeting. He was fined £1 for “an offence against the society" under one of the rules. He refused to pay after notice given to him under the rules, and the society refused to receive his subscriptions as a member of the society. The plaintiff thereupon brought this action against the society claiming an injunction restraining the society from refusing to receive his subscriptions as a member. When the action was commenced less than six months had elapsed since the society refused to receive the plaintiff's subscriptions. Upon an application for an interim injunction, Lawrance, J., at chambers, refused to grant an injunction upon the ground that the dispute was one within sect. 22 of the Act of 1875 as amended by sect. 10 of the Act of 1895. The plaintiff appealed. Held (allowing the appeal), that the dispute was not a dispute within sect. 22 of the Friendly Societies Act 1875 as amended by sect. 10 of the Friendly Societies Act 1895, and that an injunction ought to be granted.
[Paliser v. Dale. Ct. of App. : Lord Esher, M.P. and Lopes, L.J. Jan. 11. Counsel : for the appellant, Scott Fox ; for the respondent, H. F. Manisty. Solicitors : for the appellant, Williamson, Hill, and ('0., for Fouler and Horsfall, Northallerton ; for the respondent, Field,
Roscoe, and Co., for J. W. Teale, York.] Local Government- Drainage-Local Authority-Breach of Statutory
Duty--Damage-Right of Action-Public Health Act 1875 (38 g. 39 Vict. c. 55), 88. 15 and 299.---The plaintiff was the owner of some houses situate within the borough of Workington. The houses were built on low-lying ground, and in 1881 a sewer was made close to them for the purposes of the drainage of the district. In 1889 several new houses were built on the sloping ground above the plaintiff's houses, and were drained by sewers which were connected with that close to his houses. This sewer then became inadequate to carry off all the water which was poured into it, and in consequence water was forced up
the drains of the plaintiff's houses and serious damage was thereby caused. Under the Public Health Act 1875 these sewers were vested in the defendants, and by sect. 15 it is provided that every local authority shall keep in repair all sewers belonging to them, and shall cause to be made such sewers as may be necessary for effectually draining their district for the purposes of the Act. By sect. 299 it is provided that, when complaint is made to the Local Government Board that a local authority bas made default in providing their district with sufficient sewers, the Local Government Board, if satisfied, after due inquiry, that the authority has been guilty of the alleged default, shall make an
order limiting a time for the performance of their duty in the matter of such complaint, &c. The plaintiff brought this action to recover damages for the injury alleged to have been caused to his houses by reason of the neglect of the defendants to carry out their duties under the Act. At the trial of the action, before Cave, J. with a jury, it was admitted, on behalf of the plaintiff, that his claim was in respect of an alleged nonfeasance by the defendants. The learned judge ruled that the plaintiff's only remedy was by an application to the Local Government Board, and he directed the jury to find a verdict for the defendants. The plaintiff moved for judgment or a new trial. It was contended that in some cases a local authority may be liable for nonfeasance, and that cases of non-repair of highways, in which a local authority bas been held not liable for mere nonfeasance, have been so decided for special
It was also contended that a case where a single person had suffered some special damage was not one in which a complaint could be made under sect. 299 for the insufficient sewerage of a district; and that an action for damages was the only way in which the plaintiff could get any remedy for the injury he had suffered. Blackmore v. The Vestry of Mile End Old Town (46 L. T. Rep. 869 ; 9 Q. B. Div. 451); Glossop v. The Heston Local Board (40 L. T. Rep. 736 ; 12 Ch. Div. 102); Cowley v. Newmarket Local Board (67 L. T. Rep. 486 ; (1892) A. C. 345); Sanitary Commissioners of Gibraltar v. Orfila (63 L. T. Rep. 58; 15 App. Cas. 400) were cited. Held, that, assuming the defendants were in default with regard to the duty created and imposed upon them by sect. 15, the only remedy for such a breach of duty was that given by the Act, viz., an application to the Local Government Board. Application dismissed.
[Robinson v. The Mayor, &c., of Workington. Ct. of App. : Lord Esher, M.R., Lopes and Chitty, L.JJ. Jan. 12.- Counsel: for the plaintiff, Shee, Q.C. and Henry; for the defendants, Bigham, Q.C., Mattinson, Q.C., and Mayor. Solicitors : Wood and Wootton, for T. Milburn, Workington; Tatham and Procter, for John Warwick, Town
Clerk of Workington.] Railway Company-Deed of Arrangement-Railway Companies Act 1867,
8. 4-Construction-Statutory Obligation--Contract.-An arrangement under seal was entered into between the M. and M. Railway Company and two other railway companies in the year 1861, and embodied certain terms which were, in fact, ultra vires of the several companies. By a private Act of Parliament passed in the year 1862, this arrangement was carried into effect, and the terms of the arrangement became binding on the com panies, and certain works which were authorised by the private act were carried out by the applicants, the C. Railway Company, who were parties to the arrangement. The M. and M. Railway Company never acted under the private Act, but had nevertheless been held liable to make certain payments under the provisions of the private Act, and judgments were recovered by the applicants in the year 1875 for arrears of such payments, but the judgments remained unsatisfied. In the year 1880, on the application of the present applicants, a receiver and manager of the M. and M. Railway Company was appointed, and the undertaking still remained in his hands. The applicants then applied by summons for leave to issue execution under similar judgments recovered at various dates between the years 1883 and 1895 on the rolling stock and chattels of the company in the bands of the receiver and manager. The question turned on the construction of sect. 4 of the Railway Companies Act 1867. It was contended that, by virtue of the private Act, the judgments recovered by the applicants were in respect of actions brought" on a contract" before the Railway Companies Act 1867, within the meaning of the section, and, consequently, that the rolling stock and other chattels of the M. and M. Railway Company could be taken in execution. It was decided by Stirling, J. (ante, p. 85) that the arrangement of 1861 did not give rise to any rights between the three companies; that the private Act of 1862 did not ratify such arrangement so as to make the same binding, out conferred rights and imposed obligations which were entirely statutory, and that the actions to enforce the liabilities were not actions on a contract, but were actions on a statute, and that the summons must therefore be dismissed. The applicants gave notice of appeal, but, on the appeal now coming on to be heard, it was withdrawn without being opened. Accordingly, on the application of the respondents' counsel, the appeal was dismissed with costs.
[Re The Manchester and Milford Railway Company. Ct. of App. No. 2: Lindley, Smith, and Rigby, L.JJ. Jan. 11.--Counsel: for the appellants, Graham Hastings, Q.C. and George Cave; for the respondents, Buckley, Q.C. and F. C. Norton Solicitors : for the appellants, Le Brasseur and Oakley, agents for H. Christian Corfield, Oswestry ; for the respondents, Young, Jones, and Co.]
HIGH COURT JUSTICE.-CHANCERY DIVISION. Executor Misappropriation – Bankruptcy — Injunction Receiver.
Motion by plaintiff, William Bowen, for an injunction to restrain the defendant, Daniel Phillips, from receiving or collecting any part of the outstanding personal estate and effects of Daniel Roberts, and from receiving or collecting any part of the debts due and owing from and to the said estate, and also from receiving or collecting any part of the rents of the freehold estate of the testator, and from letting or managing the said estate, or interfering or intermeddling therewith, or with any part of the testator's estate or effe. ts. Testator by his will, made the 23rd Oct. 1885, gave all his real and personal property to his wife for life, and then over. He appointed the plaintiff and defendant execators of his will. Testator died on the 2nd Aug. 1891, and subsequently to his death the defendant misappropriated some of the funds, and was adjudicated bankrupt. The question was, whether the court had juris. diction to restrain the defendant from continuing to act as executor