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mon a jury de circumstantibus. The "barrister" replies to LEX refusing to accept such a statement, and we certainly cannot credit it, for the proceeding is not sanctioned by any statute relating to County Courts. Nor, we believe, has a Judge at the assizes or at Nisi Prius any power to order a tales de circumstantibus save upon the application of the parties, and then only if a sufficient number of properly summoned jurymen are not present. The order is given to the sheriff, who selects duly qualified persons, and the idea of a Judge making a random selection from the audience in court is too ridiculous to be soberly considered.

Failing, as we do, to believe that County Court Judges are in the habit of exercising powers which are not in any way vested in them, we do not think it necessary to warn them that the practice referred to as prevailing among them is wholly illegal. One other point only remains to be noticed. A correspondent has sent us a newspaper report of case a before Mr. HOMERSHAM COX, and which, after it had been before him for two hours, he stopped, and ordered to be tried by a jury. It did not appear that either party applied to have the case so tried, and for a Judge to force a jury upon suitors without application seems to us to be an improper and arbitrary proceeding. The Act of 1846 says "that in all actions where the amount claimed shall exceed 51. it shall be lawful for the plaintiff or defendant to require a jury to be summoned to try the said action; and in all actions where the amount claimed shall not exceed 51. it shall be lawful for the Judge, in his discretion, on the application of either of the parties, to order that such action be tried by a jury; and in every case such jury shall be summoned according to the provisions hereinafter contained." And another section of the Act (sect. 71) provides for the payment by the party requiring the jury of the sum of 5s. to the clerk of the court for the payment of the jury. In fact, every provision in the Act relating to juries shows that a jury is to be had only on the application of one of the parties, who is expected to pay for the privilege, and that where no application is made the Judge is bound to try the case himself. His only means of avoiding the task is by a recommendation to the parties to have a jury-a recommendation which might or might not be adopted according to the character of the Judge. But the suggestion that a Judge can order a case to be tried by a jury is wholly unfounded.


CASE law is every day becoming more unsatisfactory, and a craving is common among lawyers for first principles. But whilst we crave, we are still subservient to cases to an extent which is, if not surprising, at any rate lamentable. We very rarely hear of what is called a case of the first impression. The first duty of a lawyer when a case comes under his notice is to endeavour to find a decision upon an analogous state of facts; he cannot venture to act upon general principles without ascertaining what the courts may have thought about the matter. Such a condition of things supports, in the plainest possible language, the necessity for a code.

A good example of the kind of law which may be most satisfactorily codified, is furnished by the two cases of Callisher v. Bischoffsheim (L. Rep. 5 Q. B. 449) and Ockford v. Barelli (25 L. T. Rep. N. S. 504). Without going at length into these cases, the decision briefly stated is this, that where a plaintiff in an action or suit, such action or suit being brought bona fide and honestly, agrees to a compromise, and forbears to prosecute such action or suit, the agreement is binding, and he gives sufficient consideration for a promise to pay in pursuance of such agreement. There was no debt due to the plaintiff in Callisher v. Bischoffsheim. The Honduras Government, against whom he was proceeding originally, were under no legal liability to him. He was not aware of this, nor was Bischoffsheim, and the latter promised to compensate the plaintiff if he would forbear to take any further proceedings, and he forbore accordingly. No fraud was allegedno mala fides even suggested. It is an elementary principle that fraud vitiates every contract, and to compromise a fraudulent claim can of course be no considerrtion for a promise to pay. In Cook v. Wright (30 L. J. 324, Q. B.) the court said distinctly that "the real consideration depends on the reality of the claim made, and the bona fides of the compromise."

The case of Ockford v. Barelli seems to us stronger than the precedents. The plaintiff had contracted a bigamous marriage with the testator, whose legitimate sons, to avoid litigation, agreed to give her a widow's share of his estate. She forbore to sue in consequence of this agreement, which the defendants sought to avoid. The plaintiff had positively no claim at all, although she bona fide thought she had. After a very lengthy argument the Court reserved its judgment, and at length determined to follow Callisher v. Bischoffsheim, suggesting to the parties that if they wished to alter the law they must go into error.

We trust that the defendants in that case will not incur the expense of attempting to alter a principle which is perfectly sound. It should not be the disposition of the courts in any way to aid in voiding solemn contracts on the ground either of want of consideration or of illegality. We remember criticising a colonial decision allowing a tradesman to recover against a prostitute for goods supplied to a notorious house of ill-fame. The Judge no



doubt winked at the immorality with which the bargain was tainted in the eye of the law, in order to enforce a claim in itself perfectly just. In their notes to Collins v. Blantern, the learned Editors of Smith's Leading Cases in noticing Fisher v. Bridges (2 E. & B. 118; 3 Ibid 642), where an agreement to sell land was impeached on the ground that the plaintiff well knew the land was to be sold by lottery, say "This case belongs to a class which it has been the tendency of some modern decisions to enlarge, of solemn contracts not in themselves transgressing any positive rule of law, yet held to be void by reason of some structive illegality, or supposed tendency to contravene public policy." And they add "The expression upon which the judg ment of the Court of Exchequer Chamber turns, that the contract was void because it was to pay a sum of money tainted with illegality, is surely vague in itself and dangerous a precedent." Still more unsatisfactory would it be to say that a solemn promise is not binding because from subsequent knowledge of the promisor, and without fraud on the part of the promisee, that the state of facts was such that had they been known at the time no such promise would have been made. There is no illegality, no fraud, no intentional deceit, but a bonâ fide conviction of the existence of an honest claim. It is compromised, the defendant, as Cockburn, C.J., said, in Callisher v. Bischoffshein escapes the vexation of litigation; shall he also escape liability by assuming which alone he relieved himself or others or both from such vexation? In Ockford v. Barelli, the defendants not only wished to escape litigation, quâ litigation, but there were certain family matters which it was considered desirable not to make public. The plaintiff assents to a compromise, and the defendants attain their end. Having done so, they seek to back out of their contract. The Court of Exchequer held them to it, and it will be an extraordinary legal phenomenon if the court of error does not take the same course. The policy of the law is in favour of upholding contracts, unless parties have been induced to enter into them by fraud. They should not be hastily voided on the plea of illegality. The course taken by Callisher v. Bischoffsheim and Ockford v. Barelli is in accordance with correct principle and the weight of precedent, and on every ground is to be

adhered to.

THE ELEMENTS OF THE LAW OF AVERAGE. THERE is no easily available treatise on the law of average, a most important branch of maritime jurisprudence, and we propose to give, in two or the short papers, a plain statement of its principles and practice.


The term Average" in its original acceptation, as applied to maritime commerce, denoted only general average, which means "a contribution by all the parties concerned in a sea adventure to make good a specific loss or expense incurred by one or more of them for the general benefit: (Stevens on Average, 5th edit. 3.)

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Particular Average has special reference to policies of insurance on ship, cargo, or freight, and means a partial loss of any kind whatsoever arising from perils insured against, or a claim on the underwriters in respect of sea damage: (Stevens on Average, 3, 76, 77.)

Petty Average is what is referred to in the printed part of a bill of lading by the words "average as customary;" but the freight is now understood, in the absence of special stipulation, to cover all the liabilities which formerly attached to the cargo in respect of ordinary port charges, quarantine dues, &c., originally denominated "petty average: (Stevens on Average 3; Benecke Principles of Indemnity, 165, 242).

Such expenses, when incurred incidentally because of contrary winds, the want of provisions, &c., and not through sea perils, in the course of a voyage, and therefore chargeable to the owners of the ship, still receive the name of "petty average."

When a ship, in the course of a voyage, puts into a port of refuge in a disabled condition, and incurs expenses which constitute general or particular average, she is said to be under



A partial loss or particular average claim under a policy of marine insurance is termed an average loss," in distinction from "total loss." GENERAL AVERAGE.


General average (to explain it more fully) is a contribution by all those who are interested in a sea adventure to make good the loss falling upon one or more of them, in consequence of anything on board of, or belonging to, the ship, having been voluntarily, in time of peril, cast or cut away, destroyed, injured, or exposed to loss or damage for the general safety, or to reimburse any expenses, not ordinarily incident to the adventure, incurred, in case of mishap, for the common benefit of ship, freight, and cargo: (Stevens on Average 6 to 29; Benecke Pr. of Indem. 169, 170.) The master of the ship has a lien on the cargo for general average; he may withhold delivery of it, in the manner prescribed by law, until the consignee signs an average agreement binding him to pay his due proportion of general average and charges, or, if considered necessary, until he or the proprietor of the goods. gives sufficient security or makes a deposit in the hands of third

parties for his estimated proportion. The proprietor of cargo is' liable for general average, whether he signs such an agreement or not: (Scaife v. Tobin, 3 B. & Ad. 52.)

A voluntary loss, or an expense incurred for the safety of a ship which is in ballast, and not chartered, or for the safety of the ship or cargo after the cargo is finally separated from the ship when the adventure is unavoidably broken up by sea perils, likewise gets the name of, and in its apportionment among several interests, or in its application to policies of insurance, should be treated as, general average: (Stevens on Average, 229; Benecke Pr. of Indem. 173, 473.)


If a mast be cut away, or part of the cargo be thrown overboard, in order to righten the ship when thrown on her beam ends, or to float her when stranded, if an anchor and chain be slipped from to avoid any imminent danger, or if materials be cut up or expended at sea to rig jury masts when the ship has been dismasted, or to stop a leak, the loss thereby occasioned, the cost of replacing them or an allowance for damage, is borne as general average by those whose property is saved: (Benecke Pr. of Indem. 182.)

In the adjustment of such a claim, any of the ship's materials which are made good in general average are subjected to the same deductions, in respect of new for old materials, as would be made in the case of a particular average on ship, as noticed hereafter in discussing particular average.

The amount made good for any general average loss bears its proportion of the contribution.

Jettison, the throwing overboard of cargo or anything in the ship, for the common safety, is the most ancient source of general average: (Stevens on Average, 9.)

The term "jettisons" which occurs in an ordinary policy of marine insurance on ship, goods, or freight, comprehends general average losses of every description, whether by throwing overboard cargo, or by cutting away or throwing overboard anything belonging to or on board of a ship, or other voluntary loss of property incurred for the general safety.

The property saved is made to contribute proportionately towards the loss by jettison, the value of the jettisoned articles thus restored being also included among the sums liable to such contribution.

The loss of freight of goods jettisoned is likewise paid in general average, and is made to contribute its proportion; but if goods be shipped in lieu of those which were thrown overboard, the freight thereof, less the charges of shipping them, should go in reduction of the loss of freight on the jettisoned goods.

When any of the jettisoned goods are recovered, their value or proceeds of sale, less the salvage charges recovering them, must of course be deducted from the amount made good in general average.

If a ship puts back to her loading port after jettison of part of the cargo, and the goods jettisoned are there replaced by the merchant under the original contract of affreightment, and the ship afterwards completes her voyage, in adjusting the general average at the port of destination, the actual cost of purchasing and putting on board the goods shipped in lieu of those jettisoned is the amount to be made good in general average, but the contributory interests are the net values of ship, cargo, and freight, on arrival, including the net arrived value and freight of the jettisoned goods. The cost of replacing property lost by jettison in the condition in which it would have come into the owner's hands if not jettisoned, is the true measure of indemnity. That is the amount expended to avert a total loss of ship, cargo, and freight.

The property jettisoned is considered as if it had never been lost-as if it still remained on board of the ship when she arrives with the rest of the cargo at the port of destination: (Emerigon, ch. 12, s. 43, Translation by Meredith, 504; Fletcher v. Alexander, L. Rep. 3 C. P. 387.)

Yet it has been recently decided that underwriters are primarily liable for the insured value of jettisoned goods, as having been totally lost; with a right of recourse against the other contributors. The various inequitable results, the disturbance in the practice of average, and the diversity of opinion arising from this new rule of law, it is not convenient here to discuss.

The jettison of cargo stowed on deck is, as an ordinary rule, excepted from the amount to be contributed for in general average; but deck cargo saved contributes to general average: (Stevens on Average, 10.) There is a well-known usage of carrying wood goods on deck in voyages from the Baltic, the White Sea, and British North America, and therefore the jettison of wood goods from deck on such a voyage is contributed for by all who are parties to the stowage of cargo on deck. But, on the other hand, there is an established usage that underwriters do not pay general average for goods stowed on deck without express stipulation in the policies of insurance: (Miller v. Titherington, 6 H. & N. 278; 3 L. T. Rep. N. S. 893; 7 H. & N. 954; 9 L. T. Rep. N. S. 231.) For convenience, therefore, in statements of average, the claim for jettison of deck cargo receives the name of "General Contribution" to distinguish it from the general average for which all underwriters are liable.

(To be continued).



ALLOW me most respectfully, as an American lawyer, and thereby journal, the English Bar, and the general public, upon the new more or less remotely a party in interest, to congratulate your and noble movement for the reform of your jurisprudence.

I greet your journal, to which it opens a more wide and worthy field of service; the Bar, which it designs to elevate from an occult craft into a social function; and the public, to whom it promises the daily bread of civic justice disencumbered by a weight of tax that makes one's advocate his more real adversary.

But do I not, you would perhaps ask me, fall into the mistake of confounding law reform with legal education? No, I dare assure you, not in the least. I do but superadd to your proposal of the proper means, the greater complement of the end or result, which alone can give those means their public value. You want the lawyers educated, that the laws may be cultivated (not to call it civilised) for a civilised community. This end should therefore be declared aloud, I think, to give full grandeur to a project which appeals for sanction and support to the Government and to the public. For otherwise they would be apt to say, or to suspect, that the matter was some fresh coterie concern of the lawyers themselves, or at best a crotchet of professional discipline-not a conception of national interest.

This full disclosure is also due to the able lawyer who is the prime mover, and who descends, or rather ascends from the common goal of piling money to correcting the abuses which help him and others to that vulgar eminence. It might be said, I think, of most callings, and even of aggregate societies, that most is done for their advancement by those luckless members who have least gained by them. It is a form of the adage that necessity begets invention. On the one hand, the prosperous are content usually with the old ways, so that the rare exceptions of reformers amid prosperity display the double merit of purer motives and loftier ends; their action must be without pressure, and their aims unselfish, if not fully social. And if Sir Roundell Palmer can pursue to its natural results the project now announced by the name of legal education, he will leave the only name in your jurisprudence that could rank with Bacon.

For both these personal and public reasons, I should first im press upon your readers this close connection of law reform with legal education. All your failures in the former have been due to oversight of this conjunction; of the plain truth that, to reform the law, you must first reform the lawyers. The present movement is thus the only serious step towards law reform, of all the long succession of Royal Commissions since the days of Bacon. To reform the law is even a logical impossibility while those who make and minister it remain unreformed; and with you it is the lawyers who, either through Parliament or the Bench, really give the law its form, in manufacture as in ministration. How could you, then, expect conflicting effects from the same agency? or hope the ignorance that deformed, could have the science to reform? Accordingly, it would be libel on the memory of the lawyers and statesmen, who wrought upon or instituted the Commissions alluded to-along from Bacon, who alone perhaps had the usual honesty of genius, to the Digest-of-Law instance under present incubation to believe that they expected any results much more serious than a job to some political lawyers, or a sop to the grumbling public.


The reason of this tie and order of improvement between law and lawyers is, however, although plain in principle, not without difficulty in the concrete case, owing, no doubt, to the enormous magnitude and complication of the subject matter. It might be reduced to the singleness of the old puzzle of the naturalists respecting the priority of the bird or the egg. It is admitted that your Bar laid the chaotic egg of our jurisprudence; and this in turn reproduces the lawyers in the typic species. But legal education supervenes to break this vicious circle. And how? This, in fact, is still a problem in natural science as in jurisprudence. Doctor Darwin has lately solved it by throwing the quite overboard, and referring for the transformations of the bird to chance or nature. But between the egg and bird there has been gradually unwinding itself onward through the past eternity, a spiral of development of which we see but the expanding end, which is therefore taken for a closed circle, and which masks the grades of continuity back to the unity of origin. This interlying range of progress is, in man or mind, what we call education; as attested by the word itself, which denotes just this evolution. And the season of education, in lawyers especially, is youth. A school for adults, set up in Lincoln's Inn, would be of poor promise. The lawyers indeed of all regions must, for reform, "be caught young," in accordance with Johnson's recipe for "making something of Scotchmen."

But the wisdom of the course may be shown more familiarly, and perhaps gravely. There are two factors to the questionthe law and the lawyers. But how reform first the law, which is an inert and abstract body, less prone to method than to disorder, and which of itself takes this last direction? It can have form then but from the active element, the lawyers; and who

are also the self-developing and sole ingredient in our power. But these, in order to reform the law, must be themselves reformed, as being naturally of a piece with the defects of the jurisprudence.

It is true a worthy member of the fraternity, and also of Parliament, objected to this project on its introduction in the last session, this very correlation of the lawyers to the law. "The English lawyers," said he, "and their educations are the fittest possible for English law;" and I fear there were few members who could expose this hoary sophism. It was to argue that, for instance, pickpockets must not be legally reformed because already the fittest class in the community for picking pockets. The test of fitness is left to oscillate between the agent and subject, where it will apply as well to matters vicious as to the virtuous, and omits the bearing of both conjointly upon the object which gives the character. The question is not whether the English lawyers be already fittest for the English law, or the law for the lawyers; but if both be fittest for the public good. In a community where picking pockets was to be the object of society, the light-fingered experts would be Lord Chancellors and Justices. And this incidental sample, besides illustrating the main thesis, may prepare also against a repetition of this vulgar wisdom in the ensuing Parliament.

It may be urged that, in other systems, the course however has been otherwise. The Roman law, I may be told, was codified by its own native lawyers without any reinforcement from education for the achievment. I would beg to deny the objection in both its clauses. The Roman law was never codified at all by Roman lawyers, nor by any lawyers without a special education or its equivalent. Nor would it ever have been reformed by the native lawyers without such preparation, as proved abundantly by their vain tentatives almost as numerous as the English. Already in the age of Livy the heap had swollen to the mass of cart loads, though that was half a dozen centuries in advance of Justinian. And when this great reform at length came, it was through the Greeks, as through them likewise had, a thousand years since, the great reform called the Twelve Tables.

In fact, this difference of race and culture had the force of special education. The Greeks had the advantage of a higher philosophic training, through which it was they kept their own jurisprudence from coarse amassment; while, however, it lacked the logical compactness of the Roman law. This might be said to excel in tissue, as the Greek law did in frame or form. It is exactly the relation between logic and dialectic. The Greeks were thus the men to supply the Roman law with form, being also alien to it in sympathy, and free to treat it through the pure intellect. Thus it was that De Lolme had written best on your constitution, and the Americans were lessoned likewise in things, by another Frenchman. But Trebonian and his fellow Greeks had, along with this advantage, a serious drawback in the more concrete subject of jurisprudence, of which the effects must be familiar to proficients in the Institutes. The frame is here so stringent as to rend the tissues of the Roman law. To combine sympathy with intellect, and habit with acquirement is, then, the mixture which would carry off all points, as the poet has it. But this is just what may be done, if at all, by legal education.

But look, it may be still urged, at your own American Bar. Have they not rid themselves of large masses of the maternal rubbish, and codified the laws and jurisprudence of several states; and this without the adjuvant of special education? The educa tion, I admit, remains as low, or lower than the English. But I must still deny those codes to be due solely to the lawyers. The fundamentals of the problem were altered in America. The colonists had left behind them that traditional chaos of interests, which either forms or forces the English lawyers to the long endurance. And even so, they could not codify the mainly personal jurisprudence, but for another accident, such as befel the Roman law. The modicum of method in constitution, code, or class book, attained by the Americans, is of Franco-Spanish origin; or taken from the Southern States, with their laws and writers of these extractions. Those improvements that reach you here are manufactures at second hand, but with the advantage of Northern sympathy in working into them the raw material. So that the American advances are a refined case of our previous results, going to show that real reform must depend on legal education.

Why Sir R. Palmer should have veiled this end it seems hard to comprehend, unless through fear by the resistance of the lower ranks of the Profession. These would fear, he may think, to have themselves reformed, but not the law. For my part, in his place, I should have little fear or care for it. The aim, as now laid open, involves the vastest of national interests, and the public are effectual masters of the lawyers and the law makers. The Americans say of their ancestors that they have two characters, which are apparently antagonistic. I mean trimming and thoroughness. If you leave them, it is said, to routine they will trim and truck and trick indefinitely; but make them see at last, or even at first the real difficulty, and you will find them breast it with the proportioned energy and amplitude.

I was forcibly reminded of these dicta the other day in passing from the precincts of your Temple towards the river. What a metamorphosis! I remembered that river side as an interminable tract of all that is obstructive, unsightly, and unseemly-dirty barge docks, noisome cesspools, rotting animals, and Scotch dukes. The London people could for centuries see no harm in all this. No one fell into the cesspools, unless by felo de se. The miasma was not caught in flagrante delicto of striking down people by the dozen in the streets. Nor did the ducal borderers levy black-mail on the river trade. In short, then, "the thing worked well❞— quite as do the lawyers and law.

But at length it was the other day found that it would not work at all. A neighbouring region of this immense factory called London got quite clogged, and it was seen that the sole relief for it must be the Thames Embankment; and forthwith the same people set to work upon this vast task, and not merely achieve the expedient, but convert the nuisance into an ornament, an endless tract of moulded granite, gravelled walks, and planted gardens, which beyond anything else in London would announce the capital of a great empire.

And so it may be found with the lawyers and law of the same people if Sir R. Palmer but pursue his project, and we all second the noble enterprise.


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THIS was an appeal from an order of the Master of the Rolls setting aside a deed on the ground that it had been executed under coercion. Francis Ellis, who was tenant from year to year of a farm in Lincolnshire, devised his real estate to his nephew, John Ellis, and authorised his trustees to give up the tenancy of the farm in favour of his nephew, provided the landlord would accept him as tenant, and in that event bequeathed to him all the stock on the farm; and the testator directed his trustees to set apart a certain sum out of his personal estate in favour of his nieces. On the testator's death it turned out that if a mortgage to which the real estate was subject were paid out of the personalty, and if the nephew took the farming stock, nothing would remain for the nieces, and accord. ingly one of the trustees, who was also agent to the landlord, informed the nephew that unless he

gave up a part of the property in favour of the nieces, the landlord would not accept him as tenant, and he would lose the farming stock. The

nephew thereupon, without having had any independent advice, executed a deed whereby he gave up a portion of the property in favour of the testator's nieces and the other legatees under the will, and he was afterwards accepted as tenant of the farm. On a bill by the nephew, the Master of the Rolls set aside the deed and ordered the where the facts of the case are fully stated.) The trustees to pay the costs (see 25 L. T. Rep. N. S. 7, trustees appealed from this decision. The Solicitor-General (Jessel, Q. C.), Fry, Q. C., and Bedwell for the appellants.

Without calling upon

who appeared for the plaintiff, and Sir Richard Baggallay, Q. C.. and Macnaghten, Coltman, who appeared for the testator's nieces,

Their LORDSHIPS held that the decision of the Master of the Rolls was perfectly right both as to the relief granted and as to the costs of the suit, and they dismissed the appeal with costs. Solicitors for the appellants, Scott and Co., for Henry Liversedge, Winterton. Solicitors for the plaintiff, R. Lambert and Son, for Shepherd, Crust, and Todd, Beverley.

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THIS was an appeal from a decision of the Master of the Rolls as to the order of priority of several persons entitled to charges on the proceeds of the sale of the commission of the defendant, who was formerly a lieutenant in the 92nd Highlanders. On the 29th March 1869, the plaintiff discounted a bill for 621. 10s. for the defendant, who on the same day agreed to charge the proceeds of the sale of his commission with that amount and further advances, together with interest and costs. This bill not being paid at maturity, the defendant being the amount of the former bill, with interest accepted another bill on the 2nd Aug. for 881. 14s. discounted another bill for 251. for the defendant, and costs. On the 18th Sept. 1869, the plaintiff and afterwards he bought up a bill for 801. which had been discounted on the 13th Aug. 1869 for the defendant by one Benjamin. On the 4th June 1869, the defendant wrote to Messrs. Hopkinson and Sons, the agents of his regiment, charging his commission with 621. 10s. which had been advanced to him by one Rubenstein. 23rd July 1869, the defendant wrote a similar letter to the agents charging his commission

On the

with 300. which had been advanced to him by the Oriental Bank Corporation. The defen. dant's retirement from his regiment was gazetted on the 7th Dec. 1869, and on the 9th of the same month the purchase-money of his commission, amounting to 500l., was paid to Hopkinson and Sons. On the evening of Saturday the 7th Dec., after office hours, the Oriental Bank Corporation left a notice in writing at Hopkinson and Son's office, requiring them not to part with the 500l. without paying their charge of 300l. At the opening of their office on Monday morning, similar notices were served by the plaintiff and Rubenstein and other persons. On a bill to decide the priorities, the Master of the Rolls held that Rubenstein was entitled to the first charge, that the plaintiff, in respect of his bill for 88l. 14s., came next; then another incumbrance, then the plaintiff in respect of his other advances, and that the Oriental Bank came last of all, on the ground that their notice to Hopkinson and Sons was of no value, as it was given before the fund came into their hands. The Oriental Bank and the plaintiff appealed.

Sir Richard Baggallay, Q.C. and Freeman for

the Oriental Bank.

Swanston, Q.C. and Kisch, for the plaintiff.
Horton Smith, for Rubenstein.
Chitty for other parties.

Their LORDSHIPS held that the Oriental Bank's notice, having been left at the office after business hours on Saturday evening, must be treated as having been given on Monday morning at the same time as the others, and that the priorities of all the incumbrancers must therefore be according to the dates of their securities. The plaintiff was first in date, and his charge being for further advances, covered the bill for 881. 14s., and that for 251., but not the 801. bill bought up by him. Rubenstein was entitled to the second charge, and the Oriental Bank came next. No costs of the appeal.

Solicitors: Fuller and Saltwell; Sidney.

Monday, Dec. 4.

Volunteers - Inoperative


contended that his revocation of his application
for shares was valid.

The VICE-CHANCELLOR said that the miscar-
riage of the letter was due solely to Townsend's
omitting to state his full address in the form of
application for shares furnished to him, and he
ought not now to take advantage of his own
omission. The notice of allotment must be con-
sidered as having been duly delivered to him on the
16th March, and the contract to take the shares
as being then complete. He must, therefore, be
placed on the list of contributories, and the order
made in chambers must be discharged.
Solicitors: G. S. and H. Brandon; De Jersey
and Micklem.

Wednesday, Dec. 6.


injunction -Colourable imitation
THIS was a motion for an interlocutory injunc-
of name-Delay.
tion to restrain the defendant from representing
that his shops were the shops of Madame Elise, or
in any way connected with her business, and from
using any name, inscription, or device to
mislead the public, or to obtain for the defen-
dant custom intended for the plaintiff. The
plaintiff, who is the husband of Madame Elise,
carries on the business of a milliner at 170, Regent.
street, under the style of Madame Elise. The
defendant carries on a similar business at 59,
Brompton-road, under the name of Best. It appears
that in 1870 the defendant set up a second
millinery establishment at 252, Regent-street,
with the name "E. Louise" painted over the door,
and shortly afterwards a third shop at 210,
Regent-street, with "Agnes Ellis" painted over
the door. The plaintiff charged that these names
were chosen as colourable imitations in sound of
the name of Madame Elise, and he produced the
evidence of several people who had been thus led
into error. The first of such instances was in Dec.
1870. Evidence was also produced of letters in-
tended for Madame Elise which had been delivered
by mistake at the defendant's shops, and had not
been forwarded. The defendant alleged that the
two shops in Regent-street were established for
the benefit of two of his daughters, whose Christian
names were Emma Louise and Agnes Ellis; and
he denied that there was any attempt at fraudu-
lent imitation. The bill was filed in Nov. 1871.
Kay, Q.C. and Marten in support of the motion.
E. K. Karslake, Q.C. and W. W. Karslake for
the defendant.

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Matrimonial suit-Wife's application to amend
her answer, by praying for dissolution instead
of judicial separation, refused.
THIS was a husband's petition for a dissolution of
his marriage on the ground of his wife's adultery.
The respondent in her answer charged her husband
with adultery; and also made a general allegation
of cruelty against him. In the prayer of her an-
swer she asked for a judicial separation. Subse-
quently she gave particulars of the cruelty, and
alleged specific acts of violence.

Petherham now moved to alter her answer by substituting a prayer for dissolution for the prayer for judicial separation.

G. Browne, for the husband, opposed.

The COURT declined to grant the motion on the ground that cruelty was a circumstance within the wife's knowledge from the first; and that as originally pleaded it did not amount to legal cruelty. At the same time it intimated that, if at the hearing the facts amounted to legal cruelty, it would entertain an application to vary the prayer of the petitioner.

Solicitor for the petitioner, R. W. Roberts.
Solicitor for the respondent, Price.



Tuesday, Dec. 5.


Marriage settlement By a settlement made in 1815, on the marriage of the plaintiff, then an infant, certain property, consisting of choses in action belonging to her, were settled upon trust for her husband for life, then to the plaintiff for life, with remainder to the children of the marriage, if any, and in default of children to the next of kin of the plaintiff, omitting the usual power of appointment by deed or will. The plaintiff, her husband having died and there being no children of the marriage, filed her bill praying that the trusts of the settlement in favour of her next of kin might be declared void and not binding upon her, and that she was entitled to the trust fund absolutely. Fischer for the plaintiff. Pontifex for the defendants, the trustees. Lord ROMILLY said the settlement could not be reformed, but that the trusts for collaterals being COURT FOR DIVORCE AND MATRIMONIAL board soon after the collision, and whose opinion

merely voluntary, and not coming under the consideration of marriage, were inoperative, and the plaintiff was entitled to deal with the property as she pleased.

Solicitor, William Bristow.

Dec. 4 and 6.

Company-Contributory-Allotment of shares-
Notice of, sent to wrong address-Revocation
of application for shares.
THIS was a motion to discharge an order which
had been made in chambers removing Joseph
Henry Townsend, of 36, Westland-row, Dublin,

from the list of contributories of the above com

pany, now in conrse of being wound-up. On the 6th March 1866, Townsend applied through his brokers, Woodcock and Co., of Dublin, for thirty shares in the company, giving his address as "36, Westland-row" only, and paid a deposit of 11. per share. On the 15th March, an allotment was made to him of fifteen shares, and on the 16th March the notice of the allotment was posted and addressed to Townsend at "36, Westland-row," omitting the word " Dublin." The letter was returned to the company through the dead-letter office, and was then reposted to Townsend's, brokers, at Dublin, and forwarded by them to him. On the 20th March, Townsend wrote to the company withdrawing his application for shares, and requesting the return of his deposit.

Glasse, Q C. and Higgins, for the official liqui. dator, contended that there was a binding contract on Townsend to take shares and that he ought to remain on the list of contributories.

Cotton, Q.C. and Locock Webb, for Townsend,

The VICE-CHANCELLOR said that on the evidence he should have felt it his duty to grant an injunction restraining the defendant from using the names in question, if the plaintiff had made an earlier application. But he considered that there had been unwarrantable delay on the part of the plaintiff, and he should, therefore, order the motion to stand over till the hearing of the cause. Solicitors: Dodd and Longstaffe; A. Gordon


Tuesday, Dec. 5.

(Before Lord PENZANCE, J.O.)


Alimony Permission refused to cross-examine
husband on an answer which was only alleged to
be incorrect-Rule 85.

THIS was a petition for alimony, and

G. Browne applied for an order that the husband should attend and be cross-examined on his answer, on the ground that it was inconsistent with the facts. This he proposed to show by read ing affidavits, and relied on the 85th Rule, which says that a wife, if not satisfied with the husband's answer, may object to the same as insufficient, and apply to the Judge Ordinary on motion to order him to give a further and fuller answer, and to order his attendance on the hearing of the petition, for the purpose of being examined thereon,

The COURT.-You must show the inconsistency of the husband's answer is meagre and insuffion the face of the affidavits, and not by affidavits. cient, then you can call upon him for a fuller and further answer it is only when the answer is manifestly evasive that you can ask to have him cross-examined on his answer.

Motion refused,

Attorney for petitioner, Pyke.
Attorney for respondent, Martin.

Notice to examine witnesses in support of petition
for alimony dispensed with.
THIS was a petition for alimony pending a suit
for a judicial separation on the ground of deser-


Inderwick proposed on behalf of the wife to call

Abandonment - Registrar's reportMotion for further evidence-Affidavit-Practice. THE Thuringia came into collision with the J. B. Watt, and the latter vessel was much injured, and was abandoned by her master and crew, and was afterwards lost. The Thuringia was found solely to blame, and the matter was referred to the registrar to report whether the abandonment was justifiable, and to assess the damages. registrar heard the evidence of witnesses, and admitted the affidavit of one Leney, the second captain of a French man-of-war, who went on


was that she might have been got ashore. This witness was not produced for cross-examination, but it did not appear that the plaintiffs did more than object to the reception of the evidence, on the ground that they could not cross-examine. They did not apply for an adjournment, nor take it when offered. Evidence was also given that she might have been temporarily repaired at Heligoland, which was about eighteen miles from the place of the collision. The registrar reported that he found that the abandonment was not justifiable; that the ship might have been saved, and that the plaintiffs were only entitled to recover the actual damage done by the collision. The plaintiffs objected to the registrar's report, and now moved the court to hear further evidence on the objection. They filed an affidavit made by their proctor, alleging surprise, and that he would be able to produce evidence which would show that the opinion of Leney and the other evidence, was founded on a mistaken notion of the fact, but did not state the nature of that evidence.


Butt, Q.C. and Clarkson, moved for the plain. Sir J. Karslake, Q.C. and Phillimore for the defendants.

The COURT refused to allow the application on the ground that the plaintiffs had had ample opportu nity to produce the requisite evidence before the registrar. The only case in which the court will admit further evidence is where parties can satisfy the court that they have used due diligence to procure the evidence they seek to produce in time for the reference, and it has been impossible to do so. The affidavit filed upon such a motion must set out clearly the witnesses who are to be brought forward, and the nature of their evidence.

Proctors for the plaintiffs, Dyke and Stokes.
Proctors for the defendants, Pritchard and Sons.


STOCK AND SHARE MARKETS. The following are the fluctuations of the week. ENGLISH FUNDS. Fri. Sat. Mon, Tues Wed. Thu Bank of England Stock 239 240 239 3 Cent. Red. Ann.... 91a 91a 91 91 93 92 92 924

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former wife died in the lifetime of her husband, der to her husband, and subject thereto, and to and at his death the plaintiff bond fide claimed a the payment of some other annuities, to accumushare of his property as his widow. To avoid late the rents for twenty-one years after his death, litigation the defendants, who had taken out and out of the annuities from time to time to pay letters of administration, entered into the follow-off the incumbrances on his estates, and his debts ing agreement with the plaintiff, in her maiden and legacies. And he declared that the accuname: "In consideration of your abstaining from mulations should be primarily and exclusively making, and forbearing to make, any claim against charged with the incumbrances, debts, and our late father's estate, we hereby respectively legacies, so as not to postpone their payment by undertake to pay you over one-third part of the any other means, but so as that the capital of his net value and proceeds of the estate up to the estate, real, and personal, which might have been time of his decease." Held (following the deci- employed in such payment, might be restored out sion in Callisher v. Bischoffsheim (L. Rep. 5 Q. B. of the accumulations. The accumulation was to 449), that the agreement was founded upon a cease on the death of the survivor of A. and her 918 914 914 91 valid consideration, and was therefore binding husband, and the attainment of twenty-one by upon the defendants: (Ockford v. Barelli and her eldest son, who would, under the provisions another, 25 L. T. Rep. N. S. 504. Ex.) of the will, thereupon become entitled in posWILL-PROSECUTION-EXECUTORS EXCLUDED session to the estates. He empowered his FROM PROBATE-ADMINISTRATION WITH WILL trustees during the twenty-one years to lay out ANNEXED-20 & 21 VICT. c. 77, s. 71.-A testator any part of the accumulation in purchasing estates left two testimentary papers, the second of which to be held on the same trusts as the estates 921 921a 92 a 92ja 92ja 92ja varied the disposition of his property, but neither devised by the will. He directed that as soon as appointed new executors nor revoked the appoint- all the incumbrances had been paid off A.'s annuity ment of the first will. The court included both should be increased to 8000l. The residue of his 1101a 110 110ja papers in the probate, as together forming the last personal estate was to be held on trust to diswill of the deceased, but as one of the executors charge his incumbrances on his real estates, and was insane, and the other was a seafaring man any surplus was to be accumulated as the rents of engaged on a voyage to the East Indies, it passed the real estate, and the accumulations to be held on them both over and made a grant of administra- similar trusts. At the time of the testator's tion, with the will annexed, to a third person, death his personalty exceeded 77,000l., while his under the 73rd section of the Probate Act: (In the debts, legacies, and incumbrances amounted to goods of S. C. D. Lewis, 25 L. T. Rep. N. S. 510. only 70,0001. The income of the whole proProb.) perty, after paying all the life annuities, except A.'s, exceeded 13,000l. The trustees, however, did not at once pay off all the incumbrances, but retained some of the personal estate, which was invested at a high rate of interest, and paid A.'s annuity at the rate of 80007. from the death of the testator. The trustees had in hand nearly enough personalty to pay off all the incumbrances: Held (reversing a decision of the Master of the Rolls), that the trustees were justified in paying A.'s annuity at the rate of 8000l. a-year, and were entitled to be allowed such payments in their accounts: (Astley v. The Earl of Essex, 25 L. T. Rep N. S. 470. Chan.)


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NOTES OF NEW DECISIONS. PRACTICE-TRAVERSING NOTE-SERVICE APPEARANCE ENTERED BY PLAINTIFF FOR DEFENDANT-ORDER.-Where appearance has been entered by the plaintiff for the defendant, leave will be granted for service of a traversing note upon the defendant: (Hill v. Hill, 25, L. T. Rep. N. S. 490. V. C. W.)

LOST WILL-ENTRY AGAINST INTEREST ADMITTED IN PROOF OF EXECUTION.-Where a will executed before the Wills Act was lost, and there was no surviving witness of its execution, the court, following Higham v. Ridgway, admitted as proof an entry from the ledger of the solicitor who made the will, and granted probate of a copy: (In the Goods of Thomas, 25 L. T. Rep. N. S. 509. Prob. Ct.)

CERTIFICATE FOR COSTS-ACTION TO TRY A RIGHT-30 & 31 VICT. c. 142, s. 5.- Where a plaintiff in an action of tort recovers a sum under 101., and the judge who tried the cause refuses to certify under 30 & 31 Vict. c. 142, s. 5, the court will interfere with the discretion of the judge if the action involves a question of right, but they will not so interfere if the action be for damages only, Hatch v. Lewis, 5 L. T. Rep. N. S. 254, distinguished: (Hinde v. Sheppard and others, 25 L. T. Rep. N. S. 500. Ex.)



ASSETS-RESIDUARY LEGATEES-EXECUTORS. The executors are the proper persons to sue to recover assets belonging to a testator's estate. Accordingly, where residuary legatees filed a bill to recover a certain fund alleged to belong to their testator's estate, a demurrer was allowed with costs, and leave to amend was refused: Walker v. Walker, 25 L. T. Rep. N. S. 481. M. R.)

AGREEMENT FOR COMPROMISING A DISPUTED CLAIM-VALIDITY OF, THOUGH THE CLAIM NOT A VALID ONE.-The compromise of a disputed claim, made bona fide, is a good consideration for a promise, even although it ultimately appears that the claim was wholly unfounded. The plaintiff married her uncle, who was the father of the two defendants by a former wife, who was living at the time of such marriage, the fact of her being then alive being unknown to the plaintiff; such

NULLITY INCAPACITY OF WOMAN - No STRUCTURAL DEFECT PRACTICAL IMPOSSIBILITY OF CONSUMMATION.-Where the facts disclosed a practical impossibility of consumma. tion, even though there may be no structural impediment, the court will interfere. The parties had lived together two years and ten months without consummation, and the husband was admitted to be able and anxious to consummate. The wife had no structural defect, but she suffered from excessive sensibility arising from hysteria, which made intercourse repugnant to her, and she would not submit to the remedies prescribed. On the ground that consummation was practically impossible, and there being no doubt as to the bona fides of the suit, the court granted a decree of nullity: (G. v. G., 25 L. T. Rep. N. S. 510. Div.)

OPTION TO PURCHASE-NON-PERFORMANCE OF CONDITION.-By a deed executed in 1857, in pursuance of a preliminary agreement and an Act of Parliament confirming the same, certain waterworks and property were transferred by an old company to a new company, upon certain terms, under which the latter was to pay to the former a rent equal to interest upon the share capital of the former at 5 per cent., with a clause for reducing the rate of interest to 4 per cent. in certain events. The deed contained a proviso that, if the transferees desirous of becoming absolute owners of the works "should, on or before any 25th day of Dec., after having given to the old company six calendar months' previous notice of their desire to avail themselves of the option thereby given, pay unto the old company the amount of their share capital, the party making such payment should thereupon become entitled to the works freed from the rent thereby reserved. Notice to purchase was given in due course, but the money was not paid at the time specified in the notice. Held, that the right to purchase had not been lost by the nonpayment of the money: (Ward and Wolverhampton Waterworks Company, 25 L. T. Rep. N. S. 487. V.C. B.)

Saturday, Nov. 25.

(Before LUSH, and HANNEN, JJ.)
Applicatiou by attorney to renew certificate—
Criminal act of attorney.

Huddleston-My lords, in the matter of Edward Lawrence Levy, I have to apply for a rule to entitle the applicant to renew his certificate. My lords, Mr. Levy says he was duly admitted an attorney in the year 1848, and took out a cer tificate for that year, and from that time to the month of Dec. 1866 he continued duly to take out his certificate, that was, for a period of 18 years. In April 1866, he says, in consequence of his hav ing by recent speculations and non-receipt of certain moneys from Australia, become involved in pecuniary difficulties, he left England and went to reside in Paris, and in consequence of labouring under a disease from which he had suffered for several years previously, and which was augmented by anxiety, he was advised to go to Swit zerland, which he accordingly did, and for upwards of two years after so leaving England, he was unable to attend to any business whatever, and was unoccupied. That about a fortnight after his so leaving England, a warrant was applied for and obtained against him for forging an acceptance to a bill of exchange. Subsequently remittances arrived from Australia, which enabled him to pay off and discharge a large part of his liabilities by a bill of sale on his house of furniture and household effects. Then he says, in Feb. 1869 he returned to England, and went to reside at Liverpool, and was there for six months, from May to Nov. 1869, engaged and employed as principal clerk to a Mr. Turner, an auctioneer, but not being fully acquainted therewith he left. On his leaving such engagement he was for about three months employed as a temporary clerk to a Mr. Goodere, an attorney, and that subsequently to such employment he was on the 1st of July up to London to answer such charge, and was 1870 arrested on the said warrant, and brought duly committed for trial on such charge, and subsequently tried thereon at the Old Bailey sessions of July 1870, and that no influence either directly fully established the truth of his defence, and or indirectly was used on his behalf, but that he and received a dividend thereon: Held, that there was acquitted and discharged, and a certificate was no evidence of the creditor's intention to of such acquittal is annexed to the affadavit. abandon his security: (Parker v. Marquis of Angle- That after his acquittal in the month of Dec. sea, 25 L. T. Rep. N. S. 482. Rolls.) 1870, and up to the time of his death in the month TRUSTEE-CESTUI QUE TRUST-DISCRETION of July, he was clerk to Mr. Cooper, an attorney, OF TRUSTEE POWERS OF MANAGEMENT OF and since his death he has been, and is clerk to ESTATE.-A testator by his will directed that his Mr. Smith, also an attorney. He says he has a debts and legacies should be paid out of his per- wife and ten children, all of whom are entirely sonal estate, and if that was insufficient, out of dependent upon him for support, which he can his real estate. He devised his real estates to only do by the aid of his profession. He says he trustees, on trust out of the rents to pay 60001. a has done nothing rendering himself unfit or unyear to his daughter A. for her life, with remain-worthy to be restored to practice. He then says

SURETY-POLICY OF INSURANCE-DEED OF ASSIGNMENT-FORECLOSURE.- Where A. and B. jointly interested in a policy of assurance agreed to keep it up for their mutual benefit, paying the premium in certain proportions, and B. ceasing to pay his portion of the premium, the whole was paid by A.: Held, that A. was entitled to a foreclosure decree against B. A deed of assignment contained a clause providing that it should not affect any surety nor any security which any of the creditors might have, but if such security should be enforcible against the debtor or his estate, then the creditor (unless he should conreceive dividends upon so much only of his secured sent to abandon his security) should be entitled to debts as might remain after such security should have been realised, or after credit should have been given for the full value thereof; and a credivalueless, proved for the full amount of his debt tor, holding a policy of assurance at that time

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