CONTENTS-REPORTS. To Readers and Correspondents. All communications must be authenticated by the name SUBSCRIPTION TO THE LAW TIMES. One year 464 Half-a-year On credit or for separate numbers :- (unstamped) WHITNEY v. SMITH Costs-Taxation-Three Counsel.. PLUMLEY. HORRELL Compromise of suit-Specific performance V. C. MALINS' COURT. STEELE, THE MIDLAND RAILWAY COMPANY 473 473 476 479 Supplemental bill-Amendment of supplemental bill 475 481 POSTER (app.) r. HULL (resp.) Joint action by solvent partner and assignees of bankrupt partner-Fraudulent preference.. 484 490 492 494 496 497 Double numbers (stamped) £ s. d. 01 1 016 The Nineteenth Volume of the LAW TIMES REPORTS is now THE Law and the Lawyers. in the county jail not less than thirty days nor more than one year." THE failure of the attempt of Parliament to perform the functions of a Court of Equity in the matter of the London, Chatham, and Dover Railway Company, was recently very forcibly pointed out by Vice-Chancellor STUART. Referring to the frequent applications to Parliament, he said, "The object of those applications was to induce the Legislature to alter the rights of the con0173 tending parties; rights, too, acquired under previous Acts of Parliament. Öther delays have arisen from endeavours to get rid of the orders made by this court in July 1866 for the benefit of the company and its creditors. The attempts to get rid of those orders delayed the decree for a general and complete administration of the affairs of the company till Feb. 1867. But since that time the continued struggle before Parliament to procure enactments which would give one class of creditors and shareholders rights over another class to which, under the provisions of the exstill further obstruction. For all purposes of isting law, they were not entitled, has produced substantial benefit to the great body of the creditors and shareholders these proceedings before Parliament have been fruitless. again, the Arrangement Act of 1867, which, in consequence of these protracted, expensive, and fruitless struggles did not receive the Royal assent till the 20th Aug. 1867 has entirely failed to accomplish its only important function. It is entitled An Act to authorise the London, Chatham, and Dover Railway Company to raise a sum of money for the satisfaction of certain claims, and for other purposes relating to the undertaking of the company.' Parliament was told that unless the Act was passed no money could be raised, and on the faith of that representation the present body of directors were that purpose the property of the company has appointed, with power to raise money, and for been withdrawn from the protection of this We understand that the ATTORNEY-GENERAL THE new Bankruptcy Bill will effect a very Testamentary suit-Not know and approve of contents... 497 14,000l., making a total of 70,4471. 16s. 6d. TRINITY Term, the last of the legal year, com- 61 61 62 62 64 64 65 65 67 68 69 70 70 70 A NEW duty has been found for recorders. They 68 are to be the umpires in trade disputes between masters and men. Mr. POPE, the Recorder of 69 Bolton, has been called upon to arbitrate between the carpenters and joiners of that 69 borough and their employers, and, what is still more to the credit of their common choice, he has arranged terms of settlement satisfactory to both parties, and by which they have voluntarily 71 agreed to abide. Recorders are, perhaps, the fittest men who could be found for such a work, and they will, we doubt not, be very ready to undertake it whenever wanted; but should it not be remembered in their salaries, which are very small. In such cases they could not re72 quire a fee; but if they thus make themselves generally useful to the community, whose 72 officers they are, should they not be more 73 liberally remunerated? 71 71 71 71 72 BOXING matches and prize fights have been 73 virtually put an end to by statute in the State 74 of Illinois. It has been enacted, "That any person who shall send, cause to be sent, published, or otherwise made known, and challenge to fight what is commonly known as a prize fight, or shall accept such challenge, or who shall engage in such prize fight, or go into training 76 preparatory to such fight, or act as trainer for any person contemplating a participation in such 76 fight, and any person acting as aider or abettor, 76 backer, umpire, trainer, second, surgeon, assistant or reporter at such fight, or in preparation for such fight, shall, upon conviction thereof, be confined in the penitentiary not less than one year nor more than ten years." And that, "Any person who shall be in any way connected with any sparring or boxing exhibition shall, upon conviction thereof, be fined not less than 100 dols., nor more than 1000 dols., and confined 79 CHARGES FOR ADVERTISEMENTS. Four lines or thirty words... Every additional ten words Advertisements specially ordered for the first page are charged one-fourth more than the above scale. Advertisements must reach the office not later than five o'clock on Thursday afternoon. VOL. XLVII.-No. 1364. court. Then The contests in Parliament have, in truth, placed the affairs of the company in the position in which they now are. Those contests have been continued and are still going on. The powers of this court are in themselve amply all the parties before it; but if those rights and sufficient to deal with the rights and interests of interests are to be interfered with by contests in Parliament, the arm of the court is powerless to render assistance." We trust that Parliament will take the hint given by the VICE-CHANCELLOR. THE LAW OF HYPOTHEC. THE Scotch tenant farmers are agitating for a change in the law of hypothec, and with such good effect that the Scotch county members are vieing with one another which shall enjoy the honour of effecting the desired reform. Hypothec in Scotland is very like the law of distress in England, but it is not identical. Here a landlord can distrain only for rent actually due, and only for rent that has been in arrear for a limited time. But hypothec in Scotland is the charge which the landlord has upon the chattels of his tenant for future rent and with which those chattels remain charged into whose hands soever they may pass. Whether this great power was the cause or the consequence we are not informed, but its practical effect is to enable the landlord to give a year's credit for his rent; that is to say, where a tenant holds on a long lease, it is customary for him to retain a year's rent in hand, which is equivalent to a loan by his landlord to that amount, and relieves him from the necessity of supplying so much capital. But for this prospective charge upon the tenant's goods and chattels, it is manifest that the landlord would not, because with safety he could not, give to the tenant this accommodation. If, therefore, the law is attended with such an advantage to the tenants, it will be asked, with wonder, Why are they so anxious to change it? The liability can never be an inconvenience to a solvent tenant, and to an insolvent tenant it can have no other inconvenience than that it prevents him from making away with his goods and cheating his landlord. The reason assigned for the demand is very curious. It is this, and this only-that by giving the landlord so great a security for his rent, it encourages him to be less careful in the selection of tenants, whence results an increase of competitors for farms that go into the market, and which competition raises LEVERSON'S CASE. WE have received the following communication from Mr. W. F. FINLASON. It must possess great interest for all our readers. He says:"I was very much interested in your reference to the case in the State Trials, in which it appears that the aldermen on one occasion, before the Central Criminal Court, all asserted their right to take part in the sentence to be pronounced; and it confirms the opinion I find already entertained that the judgment in Leverson's case was erroneous. It is at variance with an unbroken chain of authority and usage from the reign of EDWARD IV. to our own time. It has always been a principle of the Constitution that laymen should be associated with lawyers in the commissions. It was held in that reign that if a layman is so associated, the others cannot proceed without him. In that reign the judicial government of the city was vested in the mayor (who by old custom was the coroner) and the recorder (as his assessor) with the aldermen, and even before that time it was held that a judgment in a case tried at Newgate, not before the mayor, was erroneous. Lord COKE, who had been recorder, sets out in his reports several cases at the Old Bailey, and in the commissions of oyer and terminer the mayor comes first, then the Judges, then the recorder and aldermen. In Craik's English Causes Célèbres are reports of several cases at the Old Bailey, in which the Lord Mayor appears to have taken an active part in putting questions; although, of course, as a lay member of the court, he would not interfere in the matters of law. The Act, therefore (4 & 5 Will. 4, c 36), in making the aldermen Judges of the court, adhered to ancient usage. The language of the Act is clear, plain, and express that two or more of the Judges may try a prisoner. LEVERSON was tried by one; and we are told that two means one, because before the Act aldermen and other lay commissioners were never regarded as Judges, because not Judges of law. This, it has been shown, is quite erroneous; but even assuming it to be so, what then? Parliament in plain terms enacted that prisoners should be tried by two Judges. What could the previous practice matter? And if a lay Judge cannot be deemed a Judge, where was the second Judge in Leverson's case? If a second Judge was necessary, the Lord LORD CHIEF JUSTICE sees clearly enough that the same Judge must sit throughout; but he says that a second was not necessary, because, on account of previous practice, two must be taken to mean one. I should have thought otherwise; but it is plain that, as to the practice, it was held by the court in Lord TENTERDEN's time that the practice of a century is of no avail against the terms of a statute. The subject is of great and general interest on account of the bearing it has on quarter sessions jurisdiction; and as the authorities are too numerons to be comprised in a letter, I have to-day published an essay on the subject (a), to which I beg leave to refer." THE COUNTY BOARDS BILL. THE cry for elected County Boards to expend the county rates has been raised by two classes of persons, having very different motives. The first class of clamourers consist of those who believe in the dogma that taxation without representation is tyranny, and that the finances of the counties will be better and more economically administered by a board elected by the ratepayers than by magistrates appointed by the Crown. The second class of clamourers consists of those who care nothing for the rates, nor for the expenditure, nor for the ratepayers, but whose only desire is to "pull down" the magistracy, and who believe that this measure will help the pro cess. The second class is vastly more numerous than the first class, and more noisy. Facts and arguments are addressed to them in vain, for (a) Published by Reeves and Turner, Chancery-lane. their desire is quite apart from the question whether the finances of the counties are or are not well managed, or whether a change of managers is likely to improve the management. If the present administration were perfect, and that which is to succeed were as bad as it could be, still these persons would approve the change, because it gratifies their passion for equality by the process of levelling down. It will be observed that they do not pant for equality by the process of "levelling up." The Government Bill is designed to satisfy the first class, who are entitled to respectful attention; it does not attempt to win the applause of the second class. It is admitted on all sides that the finances of the counties are faithfully and economically administered. Indeed it would be wonderful if it were otherwise; for they to whom the management is now entrusted are the persons who have the greatest possible interest in the prudent application of the fund to which they are the largest contributors, and as a rule they comprise the most sensible men of their class, with habits of business, and leisure to devote to it. It is further admitted that vestry government is not satisfactory. The reason is plain. Parish meetings and parish officers do not represent the parish. A clique of busybodies-a small minority-in fact control the affairs of ninetynine parishes out of every hundred, the ratepayers generally abstaining from meetings, and shrinking from offices which are troublesome and profitless if honestly performed, and which are consequently resigned to jobbers, who look for some direct or indirect advantage, and to selfimportant people, whose small vanity is flattered by the petty distinction. As nobody anticipates any practical advantage from the change, which is allowed to be nothing more than a concession to a popular sentiment, it was obviously prudent to change but little, to preserve as much as possible of the existing element which works so well, and to admit as little as possible of the new element which in its own sphere of action has hitherto worked so ill. It would be manifestly unwise to swamp the existing administration; and the problem to be solved by the Government was, how to reconcile the preservation of the good and yet to admit the regenerative principle. The plan adopted appears to satisfy both of these requirements. In the first place, it repudiates the parish vestry. The members of the financial board are not to be elected at a parish meeting. The choice is committed to the unions, and each union will have one or more representatives according to its size. This will secure the county against being subjected to the control of parish agitators; for the boards of guardians, composed of collected parishes, will not choose the local busybody of any one parish. The number of representatives will, it is calculated, be but onefifth of that of the ex officio members; but in practice it will be found here, as at the boards of guardians and the highway boards, that the attendance of the ex officio members is very small, and that the business of the county board will be practically conducted by the representatives of the ratepayers. the Bill is a mockery, not worth having, and calling for an unqualified transfer of the county finances to the elect of the parish vestry, itself the nominee of the parish agitator. Nothing short of this will satisfy such objectors, and the prudent course will be to pay no heed to them. THE COMPOUND HOUSEHOLDER REDIVIVUS. HE was only scotched, not killed after all. He was declared to be dead and buried; but now we see him again in full vigour, and likely to outlive the youngest of us. With much reluctance, and after many shifts to do without him, Mr. GOSCHEN has submittted to common sense, and in his amended bill he not only restores the compound householder where he flourished before, but he introduces him to all parts of England and Wales, even where he thinks his merits have not been recognised. In short, this new plan of the Poor Law President frankly and fully revives the practice of compounding for rates, only providing judiciously that the terms of composition shall not exceed a reduction of twenty-five per cent. To secure the tenant against disfranchisement, by reason of the rates being paid by the landlord in such case, all compounding landlords are required, under penalty of forfeiture of the privilege of compounding, to give to the overseers quarterly the names of their tenants, and the overseers are required to place those names on the rate book, under a penalty of 40s. for neglect. Thus the franchise is secured to the tenant, and the parishes will continue to enjoy the great convenience of collecting the rates of small tenements from the solvent landlords instead of harassing the insolvent tenant. The LAW TIMES may fairly congratulate itself on this result. From the beginning of the controversy, as its readers will remember, when the proposition was made from the Radical benches for the abolition of the compound householder, and too hastily conceded to them by Mr. DISRAELI, it was strenuously contended in these pages that the scheme was a needless vexation to ratepayers and parishes, and that the existing law gave ample protection against the disfranchisement of the compound householder. From that time to this we have maintained a continued protest against the change, and contended for a simple repeal of the vexatious clauses in the Conservative Reforin Act. We proved that the repeal was easy and safe, and that there was no need for coyness in dealing with the great principle of "personal payment of rates," for the simple reason, that no such principle was to be found in the Reform Act, whatever might have been the intention of the author. This assertion was denied again and again in Parliament and by the newspapers; but now it is tacitly admitted by Mr. GoSCHEN, and that which we have so long and persistently contended for is at length quietly conceded by the Government, and will doubtless be as quietly accepted by the Opposition. THE BANKRUPTCY LAW AMENDMENT BILL. Fears have been expressed that there will be a marked line of distinction, and probably much THIS Bill has been published as amended, and antagonism between the ex-officio and elected some important alterations have been made in members of the board. But experience has its provisions, consequent upon suggestions proved the groundlessness of this anticipation. thrown out in the course of the debate on the They sit together at poor-law boards and high-second reading. It is no longer required that way boards, and no such consequences have arisen. On the contrary, it is noticed that there is more harmony at the boards well attended by the ex-officio members than at others, the presence of gentlemen of position and education exercising a wholesome influence of restraint over their colleagues. The mingling of classes at the proposed financial boards is, in fact, the one great advantage that will result from them, and we trust that the magistrates generally will resolve to take a more active part in county business when associated with the representatives of the board of guardians. Mr. KNATCHBULL-HUGUESSEN, when introducing the Bill, protested emphatically against a suggestion that the adoption of it should be optional. He objected altogether to optional legislation. It had, he said, half destroyed the value of the Highways Act. If the measure is good, such adoption should be compulsory. If there is a doubt about this, it ought not to be attempted. Demagogues are already raising the cry that the trustee shall be a creditor, and he is to be appointed by a majority of the creditors in value only. The reason of this provision, is, we believe, to prevent as far as possible that canvass for the trusteeship, which, now that the trustees will be for the most part professional liquidators, is sure to attend a profitable appointment. Creditors whose individual interest in the estate is trifling are usually the majority of the whole body;" their votes are given without regard to fitness, and the great creditors are swamped by the small ones. Value, not number, is the right test, even though it should give the preponderance to a few. But we would suggest to the ATTORNEY-GENERAL if it be not practicable to adopt the system of cumulative voting in bankruptcy, giving each creditor a vote, but with additional votes in proportion to the amount of his debt, say one vote for every 30%. This would be manifestly just, and it would secure still more effectually the object for which the change has been made. It is to be an act of bankruptcy for a debtor to abscond or go abroad with intent to defeat or defraud his creditors, or for a trader to suffer execution to be levied by seizure and sale for a sum of not less than 50%, or for any person to have execution levied upon him for 50%. and not satisfied. A new clause is devoted to proof of debts and making provision for estimating contingent liabilities. It was proposed by the original Bill that an order of discharge is not to be made by the court unless the bankrupt has paid 10s. in the pound, or a majority in number, representing three-fourths of the creditors, pass a resolution to the effect that the bankruptcy has arisen from unavoidable misfortune, and that they desire his discharge. But by the amended Bill the court may, under any circumstances, use its discretion as to granting such an application. presence of third parties; where communications lose their privilege on the ground of exaggeration and excess; repetition of slander invented by another; and reassertion of slander. We do not propose to discuss all or any number of these subjects, but only such as may serve to illustrate the case of Lawless v. The Anglo-Egyptian Cotton and Oil Company, L. Rep. 4 Q. B. 262. That case raises a question which must one day, we consider, take a new phase, resulting possibly in a change of the law. It simply comes to this, whether that which is untrue and libellous, uttered at a meeting of shareholders or directors of a company, or any body of persons, is to be held privileged on the simple ground that it was for the interest of such body that the utterance should take place. On this point we would say, If the bankrupt do not obtain his discharge can it be for the interest of anyone that an untrue the balance of any unpaid claims is to be deemed statement should be made? Mr. Justice Mellor, to be still existing in the nature of a judgment in his judgment said that independently of any debt, and to be recoverable as against his pro- authority he was prepared to hold, "that a comperty after five years from the date of the bank-pany having a great number of shareholders, ruptcy. all interested in knowing how their officers conduct themselves, are justified in making a communication in a printed report, relating to the conduct of their officers, to all the shareholders, whether present or absent, if the communication be made without malice and bonâ fide." To our mind this seems to be a dictum likely to bring about very serious consequences, considering the present proneness of shareholders and the public to suspect not only the servants of companies, but also the directors. A new clause enables the trustee to accept a composition, or some general scheme of arrangement, with the consent of a majority in number representing three-fourths in value of the creditors, but it must have the sanction of the conrt, which, when given, is to be conclusive on all the creditors, so far as relates to debts proveable under the bankruptcy; but no power is given to any majority to award to the bank rupt a general discharge from the debts proveable under a bankruptcy.. For the deed of arrangement is substituted a deed of liquidation, under which the affairs of the debtor will be wound-up by a trustee precisely as if he had been formally adjudicated a bankrupt, and the discharge will not be complete until it has been granted by three-fourths of the creditors, and the trustee has reported to the court. The certificate of such discharge by the registrar will then operate as a discharge in bankruptcy. Let us look at the origin of privilege. At Chapter XI. of Mr. Folkard's edition of Starkie we find this passage: "The extensive principle which governs this class of cases, where the existence of express malice is a test of civil responsibility, comprehends all those where the author of the alleged mischief acted in the discharge of any public or private duty, whether legal or moral, which the ordinary exigencies of society, or his own private interest, or even that of another, called upon him to perform, but where the occasion does not furnish an absolute defence independently of the question of intention; as on the one hand, it would be contrary to common convenience to fetter mankind in their of vexatious litigation, so, on the other hand, ordinary communications by the apprehension would it be highly mischievous to allow men to inflict the most cruel injuries to reputation and character with impunity under the cloak and pretence of discharging some duty to themselves by the most malicious intention." The author or to society, when they were, in fact, actuated follows this up with the remark that the law most wisely makes the issue depend on the PRIVILEGED COMMUNICATIONS AND absence of express malice. It is the wisdom of EXPRESS MALICE. this which we challenge. All dealings between a person who has committed an act of bankruptcy and a person who has knowledge of the fact are void. The debt of the petitioning creditor or creditors must amount to 50%, and the bankruptcy will be liable to be annulled if it should be found that the estate does not produce 50%. over and above the cost of realising it. There are many minor amendments improving the language and construction of the Bill. But these are the most important of the modifications. It will be yet further improved in com mittee. In writing upon this subject, which is one of growing importance, we will take the opportunity of noticing a work recently published, and now upon our table awaiting review, namely, the third edition of Starkie's Law of Libel and Slander, by Mr. Henry C. Folkard. This edition is one of much greater value than either of the two which preceded it, because the various branches of the law have been extended so as to meet the peculiarities of the present day, and the exigencies which necessarily attend freedom of speech. The rulings of the present Lord Chief Justice in the cases of Hunter v. Sharpe, and Wason v. Walter are equivalent to, and much more perspicuous and easy of application, than a legislative enactment. Mr. Folkard makes full use of the directions to the jury in these remarkable cases -directions which in the latter case were approved on appeal to the full court. And this single feature distinguishes the new edition from its predecessors, and indeed gives it quite a new character. The arrangement of Starkie is very good, and enables the practitioner at once to fix upon the part to which to direct his attention. For example, we are discussing the question of privilege, and we find a complete summary of the law under the title "occasion; malice in fact." Under that title we have considerations of privilege as attaching to voluntary communications; bona fide communications made to the proper authorities; communications founded on hearsay; indirect communcations; bonâ fide applications to wrong parties, or those having no direct authority to give relief; commnnications privileged on the ground of interest in the party making or receiving them; publications in vindication of character; communcations made in The most prominent class of cases raising the question of privilege is that relating to characters given to servants. Now let this class of cases be compared with that represented by Lawless v. The Anglo-Egyptian Cotton Company. A communication by a master of a servant to a person proposing to engage that servant is a limited communication, limited in its effect, and being so limited, is, if untrue, to be justified on the ground of privilege. The want of care in ascertaining the truth of the communication is counterbalanced by the exigency of the occasion. The consequence of the want of care is limited, and it is no great strain to say that the communication shall be privileged. Now take the case of a large company or a charity. The care to be used in launching a defamatory statement should be proportioned to the probable magnitude of the consequences. In such cases privilege is claimed for an untrue statement, which must inevitably reach the attention of some hundreds or perhaps thousands of persons. This point was noticed by Lord Chief Justice Denman, in Martin v. Strong, 5 Ad. & E. 535, where privilege was claimed for a statement made by the chairman of the governing body of a charity. His Lordship said to counsel, "You set up a very large claim of privilege. There may be a thousand subscribers to a London charity." This remark shows that our view that privilege should be proportioned to the probable magnitude of the consequences is not altogether our own, nor entirely new. Therefore we repeat with the greater confidence that the rule which applies to the case of master and servant ought not to be applied to the case of companies and noncorporate bodies numbering thousands of persons. It does not seem to have been considered that uttering a libel is a species of negligence. Under any and all circumstances, care should be exercised that injury is not done to another. To take an analogous case, that of a railway company running trains at low fares. It is for the benefit of the public that such trains should be run, yet we should think it preposterous if we attempted to establish the proposition that this fact exempts the company from the exercise of ordinary negligence. But in the utterance of defamation we tolerate any amount of careless ness so long as the occasion is what the law considers privileged, and there is no evidence of malicious intention. It is evidence of malice if the defendant can be proved to have known that what he said was untrue. Should this be enough? Ought not a person to be punished if he has not taken every pains to ascertain the truth of what he affirms? To utter a slander in simple carelessness of belief whether a thing be true or not-which is what ignorance that a thing is untrue amounts to-is an offence, as it appears to us, which ought not to be sheltered under a plea of a privileged occasion. Mr. Justice Hannen makes a remark in Lawless's case which struck us as somewhat singular. His Lordship said that if, after the report of the directors had served its purpose, by making known to the shareholders facts which it was their interest to know, the statement had been entered in the books of the company to stand for ever a record against the plaintiff that he had had an accusation made against him, that might have been independent malice on the part of the company. But, with all deference, we would ask what effect the entry on the company's books could have, compared with the publication of a defamatory report? The effect in the one case is wholly disproportioned to the effect in the other; yet Mr. Justice Hannen says that the one would be punishable as being malicious, whilst the other would not be so. We confess that this distinction conflicts with our view of what is a fair remedy for a wrong; and, as we said at the opening of this article, we shall hope one day to see an amendment in the law. În conclusion, we may do that which is now scarcely necessary-recommend Mr. Folkard's work to the attention of the Profession and the public. It is, as now edited, very valuable. THE TRANSFER OF COMPANIES. ness of companies to other companies by which By a recent decision Vice-Chancellor Malins has decided one point-that such a transfer cannot be impeached in the winding-up of the transferee company. This decision was given in the matter of the International Life Assurance Society. This company had power by their deed of settlement, to transfer their business to any other "well-established and responsible company carrying on a similar business." By virtue of this power the directors transferred the business of the society to the Hercules Life and Fire Insurance Company. This latter company was established in 1863, and had been reconstituted in 1865. In the first place the Vice-Chancellor had to decide whether this company so recently established, and so shortly after its establishment reconstituted, could be considered a well established and responsible company, and he held that it could not be said to come under that definition. The next point requiring consideration was whether, the validity of the transfer to the Hercules Company being impeached, the ViceChancellor could make an order to wind it up. In this respect Vice-Chancellor Malins held that he was concluded by authority. The only cases mentioned in the judgment are Ex parte Dee, 3 De G. & Sm. 112, where Vice-Chancellor Knight-Bruce, under the early Acts, made a winding-up order under very similar circumstances, and that learned judge also decided that the fact that the business of the company was that of life assurance, involving many outstanding policies, did not render it inexpedient to wind it up. But in that case it does not appear that the validity of the transfer was impeached at the same time that the application to wind-up was made. The view taken by the Lord Justice Turner (confirming the Master of some facts connected with the amalgamation of the International Company and the Hercules Company which are edifying in connection with the business of promotion. The former company was twenty-five years old, and had a capital of a million. This business was transferred to the Hercules Company without any investigation having been made as to the stability of that company beyond any inquiry of its manager, a Mr. Shrubb, who stated that it was flourishing. This being all the investigation made, a contract is agreed to on behalf of the International Company, which contract was brought about by a gentleman well known in connection with companies, who for three months' services-he having incurred no ex penses - was to receive 8000l. Mr. Shrubb, indeed, deposed to sixty interviews, which, at the above rate of payment would be paid for at something over 130. a piece. The ViceChancellor said fairly enough that 10l. a-piece for such interviews would have been ample remuneration. Another incident there is equally instructive. Mr. Richardson, the secretary, becoming a director, and well knowing the runious condition of the affairs, although it did not transpire what salary he received, or what was his age, there being an arrangement to take over the officers, was paid 15,000l., 5000l. in money. "These," said the Vice-Chancellor, are transactions fraught with great suspicion, and do not commend themselves to my judgment, so contrary are they to prudence and common sense." 66 Everybody, of course, will echo this sentiment, and only regret the conclusion was, that such transactions were held binding on both companies. We have only to remark, in conclusion, on the difficulty which may attend the winding-up of insurance companies. Vice-Chancellor Knight Bruce, did not, it would appear, see so much difficulty in the matter as did Vice-Chancellor Malins. The former learned Judge did not regard the outstanding policies as a fact rendering a winding-up inexpedient. The latter, on the other hand, said: “Of all cases under the Winding-up Acts, an insurance office is the most difficult to terminate, in consequence of the duration of the policies. Here there are 2000 which may not expire for half a century." We think the view of Vice-Chancellor Malins the right one, and that difficulty should be felt in winding-up such a business. In the case of the Hercules Company, which we have been discussing, and which is reported 20 L. T. Rep. N. S. 433, the petition to wind-up was ordered to stand over until the validity of the transfer had been tested. COURTS OF APPEAL. THE London Chatham and Dover Railway Company's Arrangement Act 1867, by its 31st section confers a privilege of resort to the Court of Appeal in the first instance, which cannot but be regarded as valuable and deserving of extension to a much wider circle of litigants. The privilege, indeed, is extended by the Court of Chancery as a matter of practice in administration suits, with the object of saving expense. Now the question is why there should be any restraint placed upon the right of going to the This view we perceive is taken by the Judi- It is not to be supposed that suitors would very frequently avail themselves of the privilege of going in the first instance before this court, the process of which would necessarily be more expensive; but as an appeal is to be in the nature of a rehearing it would be very important could the whole of an important case be laid in a perfect form before a strong court such as the proposed Court of Appeal would be. This would have a double effect; there would be but one trial instead of two, and the case would be thoroughly got-up once instead of got-up imperfectly, perhaps, in the first instance, with the Court of Appeal in view. THE COUNTY COURTS AND THEIR WE last week incidentally referred to the very the next place we have to regard that which is of more importance, namely, the character of the cases tried, because it is according to the intrinsic gravity of the causes and not according to their number that the Judge who tries them should be remunerated. Upon this point the writer of the pamphlet says: "Anyone who now attended, for the first time, a County Court, held either in London or in any important town on a country circuit, would be surprised at the number, the variety, and the importance of the questions at issue. Rights of way, rights of water, rights of light; actions of ejectment, involving the nicest points both of fact and of law; difficult and important questions turning upon the law of railways; long and complicated suits for the execution of trusts, for the specific performance of contracts, for the dissolution and winding-up of partnerships;-all these questions, and others as important (not to mention admiralty and bankruptcy matters), are now constantly tried by courts which originally were intended to dispose of little more, and which are commonly supposed still to dispose of little more, than disputed tradesmen's accounts." Without more being said, we think it must be palpable that the Judges of County Courts are rapidly approaching to the level, in point of judicial importance, of the puisne Judges of our common law courts, and of the Vice-Chancellors in our courts of equity, and that they should be paid proportionately. We will, therefore, proceed to consider a point raised by our author as to limiting the amount, beyond which the jurisdiction of the County Courts shall not extend. He says: "It may well be expedient to confine the jurisdiction of the County Courts to cases of a certain class; but it is difficult to see the principle upon which any class of cases over which the courts are to have jurisdiction should have a compulsory limit as to amount. It must be obvious to any lawyer that the amount in dispute in a cause is no test whatever of either the importance of it to the parties, or the legal difficulties which it may present. An action of trespass where a shilling's worth of grass has been destroyed, a claim of 20. for goods bargained and sold, a suit for the administration of a trust fund of 1007., may be, and often is, as troublesome and as difficult, and may decide a principle as important, as a case of the same kind where the amount in dispute is a If the Judges of County very heavy one. Courts are competent to try the one, they are competent to try the other. The Legislature has, in the Bankruptcy Act now before Parliament, recognised this inconsistency, and given without limit as to amount: though in The to the County Courts jurisdiction in bankruptcy County Courts Amendment Act 1857,' the incontry certain causes to any amount if they are sistency still exists of allowing the judges totransmitted from the Superior Courts; but preThe claim which we, in common with the cluding them from trying (except by consent) the same class of causes beyond a certain amount writer of the pamphlet, put forward on the part in the first instance. If, however, it be thought of the Judges, is amply justified by the extra-inexpedient to abolish the limit as to amount ordinary increase of business in the County altogether, it is but reasonable that the parties Courts. Between 1864 and 1867, there was an in an equitable or any other proceeding should increase in the number of plaints tried, and cases sent for trial of no less than 203,700, in the have the power which they already have in common law causes and in admiralty matters, of number of causes determined 140,388, in the amount sued for of 434,4527., and on the amount tying it before the County Courts up to any recovered of 170,8747. ; and in the amount of fees amount by consent." received of 66,9947. "And," says our author, "of all these measures there is none of which the effect has been more marked, both as regards the decrease of pressure in the Superior Courts, and the increase of business in the County Courts, than the Act of 1867, which, as has been stated, further increased the original common law jurisdiction of those courts, and also empowered the Superior Courts, under certain circumstances, to transfer to the County Courts causes of any amount, and of almost every description. Of this power the Superior Courts have availed themselves freely; and the main object of the measure, the relieving those courts of a large amount of their business, which was becoming too heavy for the judicial staff, has been attained. The number of writs actually issued in the three Superior Courts of Common Law, in 1868, the year following the passing of the Act, was 83,174, as against 127,702 in 1867, showing a diminution of rather more than onethird. And of the writs actually issued, a considerable portion were sent, under the powers of the Act, to the County Courts for trial." So much for the increase of the business. In We most decidedly agree in the view that jurisdiction in all cases should be given by consent, and this must be the next step in the improvement of County Court jurisdiction. On the question whether it would be expedient to abolish the limit as to amount unconditionally, we have our doubts, and should be disposed to give an opinion in favour of retaining this limitation. Another point raised in the pamphlet relates to the injurious effect of the Act of 1866, providing for the gradual extinction of the office of high bailiff and the devolution of the duties of that office upon the registrar. We agree in the inexpediency of this, and in the advisability of adopting a suggestion made to us by a correspondent, that in lieu of the high bailiffs, marshals or associates should be appointed who should be legally qualified to assist the Judge in the discharge of his judicial functions. Finally we would revert to the question of payment to the Judges in the words of the author of this very skilfully compiled pamphlet. He says, "But the changes in the constitution of the County Courts have been so gradual, that the inconsistency and injustice of requiring the Judges to sit as Judges of common law, equity, admiralty, and bankruptcy, with no professional rank, and at a salary of the same amount as that of a taxing master in the common law courts, have been hitherto overlooked. The County Courts have achieved a success far beyond the expectations of their founders; they have outlived the not unnatural jealousy of the Profession; they are rising year by year in the respect and confidence of the public; and year by year fresh duties and increased responsibilities are cast upon them. It behoves the Legislature which imposes these duties and responsibilities to grant, in a spirit of wise and just liberality, a fitting position to those who have to perform and sus tain them." INFANTS IN CHANCERY. A CASE of Wright v. Tanner, before Vice-Chancellor Stuart (20 L. T. Rep. N. S. 429), throws some light upon the position which infants now occupy before the Court of Chancery, and reveals an important alteration in a matter of practice in saits where infants are defendants. last edition of Mr. Seton's work on Decrees the old and new cases are all referred to as authorities, without any distinction whatever as to the changes introduced by the Trustee Act and Sir Edward Sugden's Act, by which the law as to parol demurring has been entirely abrogated. In the recent edition of Mr. Daniell's work, however, to which the ViceChancellor alluded in complimentary terms, it will be found that a decree against an infant containing no day to show cause, so far from being a decree with apparent error on the face of it, binds the infant, and, being binding, can only be set aside for the same reasons of fraud, error, or mistake which would vitiate a decree against an adult person. So, adds the ViceChancellor, would a decree bind an infant where a day was given to show cause after the infant has come of age, if cause was not shown within six months. Practically, it never happened that cause was shown. There is hardly an instance of cause being shown under the old practice, against a decree giving an infant a day to show cause after he came of age And as to the existing practice we may take it from his Honour, will always be allowed a day to show cause on -and there is no better authority-that an infant the face of the decree, and that an order for foreclosure is never made absolute in any mortgage without giving an opportunity of showing cause. Lord Cranworth has positively decided that the right of an infant to show canse on a decree for foreclosure, must appear on the face of the decree. COURT OF EXCHEQUER. In the case of Maxsted v. Paine (second action), which was argued in this court on the 21st April, and in which the court took time to consider its judgment, which was delivered on the 8th instant, the very important, and to the commercial world and decided, of the liability of a jobber on the very interesting, question was raised, discussed, Stock Exchange to indemnify his vendor from all future liability in respect of shares purchased by the jobber from the vendor in a case where the jobber has passed to the vendor the name of a person as the "ultimate purchaser," who turns out to be a "man of straw," by reason of which the vendor remains liable to future calls. The question came before the court as a "special case" by order of Mr. Justice Willes, in which the facts, shortly stated, were as follows:-The plaintiff, on defendant, a jobber on the Stock Exchange. 100 the 24th May 1865, sold through his brokers to the 151. had been paid at 17 discount for the account 501. Overend, Gurney, and Co. shares, on which day on the 30th May. Overend, Gurney, and Co. stopped payment on the previous 10th May, and the transfer books of the company were closed on the 12th May, and on the 22nd June, an order was made in Chancery for winding-up the company. On the same day (the 29th May) the The application in that case was that a person who was an infant at the time of a partnership agreement, to which he was a party and which he did nothing actively to affirm after coming of age, might be discharged as to proceedings in Chancery for the dissolution of the partnership. The infant came of age on the 2nd Aug. 1868, and on the 4th of that month the Chief Clerk in Chancery made a certificate in the cause, finding that capital to be brought into the concern by the infant was one of the assets of the partner- SAYINGS AND DOINGS OF THE defendant passed to the plaintiff's brokers ship which were irrecoverable. The plaintiff in the cause forcibly dissolved the partnership, one of his reasons for doing so being that he had been imposed on by a representation that the infant was a person of full age, and he applied to vary the certificate so as to make the infants' capital recoverable. The short ruling of the Vice-Chancellor as to the infant, after taking time to consider the matter, was that the decree dissolving the partnership having been made during the infancy, the Chief Clerk had properly certified that his share of the capital was irrecoverable. His Honour had previously held that notwithstanding the disaffirmance and disclaiming of the infant, the plaintiff could not be prevented from going on to a decree against him, and overruled the motion to stay proceedings. "Whatever rights may accrue to the infant from his infancy," he said, "whatever right he may have to say that he is not bound to contribute his share of the capital-which seems to be the view taken by the Chief Clerk-whatever right he may have for declining to take the salary, I cannot refuse the plaintiff his right of going on to get the best decree he can against this infant, considering that it has already been decreed that the partnership should be dissolved, and accounts taken, and that upon that being done, and the certificate made, the court would further consider the matter." The consideration of the Vice-Chancellor is given most carefully to the status of infant defendants in Chancery. A great change, he observes, has taken place in the law and practice of this court with respect to suits of this kind. At one time every decree of the court made against an infant, although a guardian ad litem was appointed, gave upon the face of it leave to the infant to show cause against the decree when he came of age; and the time allowed for that purpose was generally six months. But the interest of infants was more strongly guarded by the old law; for in a suit for the administration of assets, where real estate descended upon an infant heir, or where an infant was interested in the real estate to be sold, by what was called parol demurring, the court was powerless to make a decree for sale until the infant came of age, and the decree was that if, upon the account of the assets, a deficiency should appear, leave might be obtained from the court for a sale against the infant. The law of parol demurring was absolutely abrogated by statute. The law, in leed, which made it error apparent on the face of the decree against an infant, unless a day was given to show cause, has been partially abrogated by the Trustee Act, and partially by the practice of the court. His Honour then referred, with surprise, to the confusion there is in the books of practice on this subject. He points out that in the COURTS. [CONTRIBUTED BY THE REPORTERS OF THE SEVERAL COURTS.] COURT OF QUEEN'S BENCH. On the 12th instant a new and most important point of mercantile law came before the court for decision in the case of Horrower v. Hutchinson. The action was one on a policy of insurance on a ship for a voyage from Buenos Ayres," and any other port or ports to Europe. The vessel went, and at the time the policy was effected was intended by the plaintiff to go, to Laguna de los Padres, a little port on the coast of South America, near Cape Corrientes, and, as found by the special case, a port unknown to underwriters. The vessel was lost on its way from that port to Buenos Ayres. It appeared that the plaintiff, before effecting the policy of insurance with the defendant, had applied to the brokers at Liverpool to insure the vessel, cargo, and freight from Buenos Ayres to Laguna de los Padres, and they had asked four guineas per cent. on cargo, which the plaintiff declined to give. The plaintiff then effected (for half that per centage) with the defendant the policy on which the present action was brought, but did not inform the underwriter that it was intended that the vessel should go to Laguna de los Padres. Two questions were argued at great length by Mr. Milward and Mr. Baylis on the part of the plaintiff, and by Mr. Cohen on behalf of the defendant, viz., whether the concealment by the plaintiff from the underwriter of the intention to send the vessel to the port, unknown to underwriters, of Laguna de los Padres, was not a concealment of a material fact to know, and, therefore, one which made the which the underwriter could not be presumed policy void; and (2) whether Laguna de los Padres could be said to be a port within the meaning of the policy, it being a mere village with no custom-house, and a place from which vessels could not clear for their port of destination in Europe. For the plaintiff it was contended that the general words "port or ports" included all ports within the province named; that it was the underwriters' business to know the character of all the ports in the district; and that there policy. For the defendant it was argued that the was no concealment which should vitiate the underwriter could not be presumed to know that the vessel was to go to Laguna de los Padres, and that if he had known it he would have exacted a higher premium as the port was new and unknown to underwriters; that the plaintiff knew this, as when he had disclosed the name of that port to the other brokers, they had asked a percentage on the cargo of four guineas, and consequently there had been a concealment of a material fact which avoided the policy; also, that Laguna was not a port absence of a custom house the vessels could not within the meaning of the policy, as from the clear thence to Europe. The court (consisting of Justices Lush, Hannen, and Hayes-the latter after considerable doubt) were of opinion that the plaintiff was not bound to disclose to the defendant the names of four persons as the ultimate purchasers of the shares in question (and amongst them the name of one "Francis Robert Goss as the purchaser of ten of the said shares), which names were accepted by the plaintiff's brokers, and the usual transfers were then made out and executed and delivered to the brokers of the several purchasers. Two calls of 101. each having been subsequently made by the liquidators on the said shares, and the same not having been paid by the said purchasers, the plaintiff was compelled to pay them, and now sought to recover back the money so paid by him from the defen dant. In the case of the man "Goss" (which was the only one of the four cases above mentioned that was argued), it appeared that Sir Samuel Spry had been originally the purchaser of these ten shares through his brokers, Foster and Co., who were subsequently directed by Sir Samuel's soli citor not to pass Sir Samuel's name as the pur chaser; and accordingly on the 26th May, Foster and Co. by the direction of the said solicitors, passed Goss's name to the defendant as pur chaser of the said ten shares. The name of Goss was given by the solicitors in pursuance of an arrangement made with him that for the sum of 4. 10s. he should take a transfer into Goss was a his name of the said ten shares. sponsible. person in poor circumstances, and wholly irreBut Foster and Co. were utterly ignorant of these matters when they passed his name to the defendant, and the defendant received it in the usual manner and in entire ignorance also of the arrangement above mentioned. The matter being brought under the notice of the Stock Exchange Committee, they declined to interfere, on the ground that Goss' name was passed by the brokers, Foster and Co., in good faith. Mr. Pollock, Q. C. (with Mr. Herschell) contended, on the had not discharged his duty so as to relieve himpart of the plaintiffs, that the defendant, as jobber, self from liability to the plaintiff, his vendor, inasmuch as the name of Goss was not that of a bond fide and genuine purchaser, and that there was sufficient fraudulent practice around the whole transaction to render the custom and usage of the Stock Exchange, on which the defendant relied as a protection, of no avail to relieve him from responsibility to the plaintiff. Mr. Macnamara (with him were Mr. Mellish, Q. C., and Mr. Beresford), for the defendant, argued that by the rules of the Stock Exchange the defendant was only bound to pass the name of a person who had agreed to become the purchaser, and that having done so and the name having been accepted without objection at the time, he had done all that he was under any liability to do in respect of the shares in question, and was not liable or responsible for the calls subsequently made. The court took time to consider their judgment, and being divided in opinion they now proceeded to deliver their several written judgments. Baron Cleasby was of opinion that the defendant in giving the name of an ultimate purchaser in had not satisfied the usage of the Stock Exchange compliance with it. The ticket representing Goss as a bona fide purchaser for value was a falsehood and was not the genuine bona file document required by the usage of the Exchange. For these |