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save under special circumstances, to be stated in the order.
This new economy of the Treasury will result, like all former attempts unduly to curtail the expenses of prosecutions, in the further paralysis of the criminal law. The reduction of the allowance to prosecutors and witnesses has already operated to deter the one from prosecuting crime, and the other from detecting it. The limitation of counsel's fee to a guinea will prevent practised men from appearing in prosecutions, because thereby they will deprive themselves of the chances of a better fee for the defence.
Something will depend, of course, upon what the Clerk of Assize may hold to be special circumstances. He may, we think, fairly deem any number of witnesses above three, or the fact that the prisoner was defended, to be such "specialties" as would justify a larger fee. If he should so determine', this cheeseparing order will be more in show than substance. But if it is to be strictly enforced, either the Bar will be treated in a manner that will amount almost to an insult, or prosecutors will be subjected to an additional punishment in the discharge of a public duty.
IMPRISONMENT FOR DEBT. A Great improvement has been introduced into this Bill. The most effective power possessed by the County Courts, that, indeed, by which only they are enabled to compel payment of debts, is the power to imprison for disobedience to an order to pay, unless the defendant satisfies the court that he does not pay because he cannot pay. This power, which it was impossible to take from the County Courts without paralysing them, was objected to as drawing an invidious distinction between small debtors and great debtors, when the latter are relieved from liability to imprisonment for debt, and there was great danger lest the popular tribunal should be practically destroyed for the sake of avoiding a seeming inequality. The difficulty has been removed by a process of " levelling up." The Bill that abolishes imprisonment for debt extends to the Superior Courts the same power to imprison for contempt in non-obedience to an order as is possessed by the County Courts. Where after judgment a debt is not paid at a time ordered by a court or a Judge, the defendant may be summoned to show cause why he should not be imprisoned for such contempt. If he satisfies the Judge that he had not ability to obey the order, he will be discharged, of course; but otherwise he may be imprisoned for a limited time.
A very foolish argument against imprisonment for debt has been founded on the small number of such imprisonments. But the effect of fear of it is forgotten. It is the knowledge that he might be sent to gaol if he do not pay that keeps many a man honest who would readily escape the obligation if he knew he could do so with impunity. The efficacy of punishment cannot be measured by the number of those who suffer it. The question is, how many does the dread of it deter from crime? The relaxation of severity in the law of debtor and creditor has been undoubtedly attended witli an enormous increase of fraudulent debtors, and the pending Bill will doubtless largely increase their number.
CLERKS OF ASSIZE. The report of a committee, consisting of Mr. Justice Brett, Mr. Sclater-booth, and Mr. M. Law, appointed by the Treasury to inquire into the duties and salaries of clerks of assize has been made. The committee come to the conclusion that it will be desirable to retain the office of clerk of assize, but that it would be expedient to prescribe that persons appointed to these offices should have had some degree of legal training, i.e., that he should be a barrister or certificated attorney of three years' standing, or should have served for a similar period in a subordinate office on circuit. The committee consider that a salary of 1000/. per annum is more than sufficient to secure the services of officers properly qualified to fill those posts, and they recommend that the salaries of the clerk of assizo on the Home. Western, Oxford, Midland, and Norfolk circuits, should, as vacancies occur, be reduced to a sum not exceeding 800/. per nnuum. As regards the Northern Circuit, they state that if the duties of the clerk of assize remain, as at present.
limited to the counties of Northumberland, Cumberland, and Westmoreland, a sum of 500/. per annum would afford a sufficient remuneration. They do not see any reason for an alteration in the salaries of 500/. per annum each, now received by the clerks of assize on the two Welsh circuits. The committee further propose that the additional salary of 100/. a year, which the clerk of assize can now assign to one of his officers whom he may select to act as his deputy, should be discontinued on the death or resignation of the officers at present receiving these extra allowances. They are of opinion that the power thus placed in the hands of a clerk of assize to remunerate one of his officers more highly than the others might be exercised with partiality, and that it has a tendency to diminish that responsibility which rightly belongs to his office, and to induce him to delegate to others duties properly devolving upon himself.
THE TRADES UNION BILL. There was a gratifying unanimity of opinion in the House of Commons upon the principle of this Bill, and very little difference about its details. Both sides of the House frankly admitted
1. The equal right of employers and workmen to combine for the regulation of wages.
2. That such combinations were not in themselves opposed to public policy, nor operated in restraint of trade, within the legal meaning of that term,
3. That associations for such a purpose were entitled to the same protection from the law for their persons and their property as is given to all other lawful associations.
4. That there should be some recognition by law of such associations, so as to enable them to act in a corporate capacity. But there was and is much diversity of opinion what should be the form of such incorporations. The Bill simply proposes the extension to them of the Friendly Societies Acts; but many friends of the Trades Unions, and notably the Economist, object to this, as being to some extent a misrepresentation of their character. The Acts in question are constructed purposely to promote certain objects of charity; but the main purpose of the Trades Unions is not charity, and there is no reason why they should have the benefit of Acts designed with a different object than a joint-stock company, or a cricket club, or any other association.
Tims all the main principles for which the Law Times has contended on behalf of the Trades Unions are conceded; and in framing the measure which Mr. Bruce again promised on behalf of the Government, they must form its foundation. It will then, we doubt not, be seen that the plan here proposed for the incorporation of Trades Societies, very much upon the model of the Companies Act 1362, is the most feasible and the best calculated to give permanent satisfaction.
A good deal was said about the absence of legal protection for their property, and so little is this point understood, that the Home SecreTary has brought in a short Bill to give such protection pending the production of the general cheme.
But there is no need for it. The trades unions possess precisely the same protection, neither lees nor more, as all other associations not enrolled under the Friendly Societies Acts. Certain summary jurisdiction is given to magistrates by those Acts for the protection of the funds of enrolled societies ; but this is not a substitute for the general protection provided by the criminal law. A trades union can punish a defaulting treasurer or secretary by indictment, and Mr. Russell Gursey's Act of last session removes the only obstacle that practically impeded such a prosecution. At this moment every trades union possesses the identical protection against embezzlement by its servants which is possessed by every other employer. To say, then, as Mr. Hughes and other speakers ventured to say, that their funds are unprotected, was to mislead the House and the country, for Mr. Hughes, who is a lawyer, cannot but know that the law gives to them precisely the same protection as it gives to him. It was surprising that of the many lawyers in the House not one rose to correct this mis-statement, and it is still more strange that it was not noticed by Mr. Bruce, who also must have been better informed.
The real grievance of the Unions, though it was not the ostensible one, is that they have not the help of the Friendly Societies Acts for the recovery of the subscriptions from their own members, nor powers wherewith to compel observance of their rules. It is to obtain this, anj not for protection against embezzlement, that the privilege of enrolment under the Friendlr Societies Acts is so eagerly sought, and it wouii have been more candid in Mr. Hughes so to have told the House and the public.
On all sides doubts were expressed whether it would be practicable to repeal the Combination Act without some enactment bringing within the criminal law certain offences of which some of the trades unions have been guilty, and for which the criminal law now makes no provision. It needs but small acquaintance with the criminal law in the letter and in practice to determine this question. Try it thus. The end sought by all the offences made punishable by the Combination Act, is to deter "knobsticks," as they are called (that is to say, men willing to work on other terms than those prescribed by the Union), from pursuing their employment. To this end divers forms of "molestation" are devised, such as dogging the steps, hooting and hissing, gestures and words which, though not punishable by the present law, are not the less invasions of that per. sonal liberty of act and thought which U the right of the poorest labourer because they are inflicted by persons of his own class. This wrong it is that the general criminal law fails to meet, and it will be absolutely necessary to the security of the workman from oppression by his fellows that sufficient provision shooll be made for it simultaneously with the repeal of the Combination Act,
SPECIAL BAILS BILL. We have received the following letter:
TO THE EDITOR OY THE LAW TIMS. Sir,—As a specimen of the esteem in which the Profession is held, I beg to call yonr attention o what is reported to have been uttered by the hxi High Chancellor of Greut Britain on the occasion of moving the second reading of this Bill. Hji Lordship is reported to have said that by an oil Act of Parliament (alluding, no doubt, to tat 4 Will. & M. o. 4) no person was allowed to tab, special bail in the oountry who was an attorney or solicitor, but that now it was not worth any person's while to take the office who was not aa attorney or solicitor, and the object was to enaW» attorneys and solicitors to take special bail. In other words, now that the office and duties ot commissioners for taking special bail was ntterly worthless in a pecuniary sense, it is discover*} that they are eligible to fill the office. Is *n7 comment necessary? I abstain from making any. I leave you to deal with the subject as yon may deem right. S. J. H.
WHAT WE SHALL HAVE TO PAY. The British taxpayer is in for it. When the Budget was propounded, there was so much dexterous dealing with the variom dutie* henceforth to be levied, and especially with the periods for future payments, that very few in or out of Parliament had formed any definite notion when they would be called upon to put their hands into their pockets to meet the demands of the State. Tables were authorotatively published purporting to show when the taxes of the next twelvemonth were to be pa>d. But strings of figures are read by few. and understood by fewer, and at this moment probably not one taxpayer in a hundred has any definite conception in his mind of what the la* has imposed upon him. It it the law now. and the statute is before us, and a summary of its provisions will doubtless astonish many of oar readers.
The Act that is to wring so vast a sum froai the taxpayers in so short a time is c. U of 32 & 33 Vict., Part 1 of which relates to the Customs, and does not concern the present inquiry. We turn to Part 2 which relates to the income-tax. land-tax, and inhabited house duty.
The sums assessed to the income-tax for the last year are to be taken as the annual value for assessment during the present year, but subject to increase or diminution in the same manner a< the original assessment.
The 8th section then proceeds to repeal tn« provisions for collecting the house duty, land' tax, and income-tax quarterly, and enacts to*1 the duties for the year ending April 5, 1870,
ihall be payable on the 1st Jan. next. Observe the effect of this. In practice, the
Uses for the year ending April 5 next would be collected, oue half in November and the other hilf in Mar; that is to say, half the incometu for the current year would not be payable until the Gth April next, and would not be in fjet collected until May or June. But, according to the text of Mr. Lowe's new law, it must k> paid in full in January next, thus anticipating the period of payment by four or five months, and compelling that payment at the period of toe year when most persons have more demands upon them and less receipts to meet them than as any other season.
But this is not the only hardship inflicted by the new law. Another screw is to be applied to the unhappy taxpayer in this same black month of January. The assessed taxes, as well as the income tax and land tax, are to be paid in January in full. This is effected by a process eren more stringent. The assessed taxes are converted by sect. 1G into excise duties, for vbich licences are to be taken out on the 1st ,1a. for the ensuing year, so that we shall be called upon in September to pay the half year's asseised taxes for this year; in January the whole year's assessed taxes for next year, and in April the remaining half year's assessed taxes for the present year—practically two years' payiiinu will be demanded in one year, and the greater portion of them in the most inconvenient month of the whole year in which to provide the coney to meet them.
We shall make this complicated arrangement more intelligible by an instance.
B. is assessed, say, at 20/. for assessed taxes, itoOifor income-tax, at 10/. for land tax. As i: vould have been but for Mr. Lowe's scheme, te vould have paid this 80/. thus:—
18t>9. In September £40
1870. In May 40
But according to the new Act he will be compelled to pay as follows:—
1569. In September, half year's as
sessed taxes £10
1570. In January, one year's as
sessed taxes, 20/.; one year's
land tax, lOi 80
In May, half a year's assessed
The Budget offers many and considerable implements in taxation, but they will be dearly purchased at the price of so terrible a screw in the collection as is described above, and the voriinj of which is as yet but imperfectly understood by those who are to be subjected to it. In January there will be such an outcry from lie taxpayers as England has not heard for many a year. A general election would then assuredly fc'e the Government in a minority. It is fortune that they are not likely to be compelled to ippeal to the country at a time when it will be ■Earring under the infliction of two years taxes fc'itd in three months.
COUNTY COURT APPEALS. h if not often that we find a County Court Judge reviewing a decision of a court of appeal *hich has reversed his own judgment. As a Jvwnil rule of course there can be no practical tally in this, and the Judge who would make to • practice would simply waste the public time. Tiere should be good grounds for making any ^anient upon the judgment of a court of ^4 and the question is, what we are to confer good grounds. Mr. Falcoser, of the Welsh Circuit, has •Sorded us some material upon which we may ■nve at a reasonable conclusion. He gave JKgtnent in a case which was pretty much one *• jury, involving as it did a claim for deJwiage, and the question being whether certain *% in unloading was excusable or not. In the TM place his Honour pointed out that it is a "7 easy matter for a case stated for appeal J P to the court above in a defective condition. * takes occasion to say, "At first I thought ■"case was too hastily prepared. This arose **■> a rule of the courts, that the appeal case "all be drawn up by the parties and settled, in ■?* of dispute, by the Judge; and also to an j*"" provision which interferes with a prudent *»I. namely, that the case shall be signed in cfca court. So that if I do not sign the case in
one week of a month, I cannot sign it until four weeks afterwards."
This being so, wo think that wherever the case is one principally of fact, and where there can be any doubt as to the construction to be put upon the facts, it should be open to a County Court Judge further to inform the court of appeal. There are obvious objections to such a proposal, the main one being that it might be abused; but we think that a restatement of the case might be permitted in certain cases, and the first thing to be done is to abolish the provisions now existing as to stating and signing cases for appeal.
PASTURAGE ON HIGHWAYS. A Cobresi'ondest writes as follows to the Wisbech Advertiser:
Sir,—I think the paragraph which yon copied from the Law Times into your Market Telegraph last Saturday calculated to mislead many of your readers, as they are very likely to infer from it that thoy may stock the sides of our ordinary roods without infringing on the laws, if thoy keep their cattle off the motalled ports, in whicli Itliink they will soon find themselves mistaken, as it is quite clear to my mind that the gross sides of the roads in this neighbourhood are as much highways, or parts of highways, as the metalled parts, and are so pleasant for the public to canter along when on horseback, or to drive cattle on. that I wonder the surveyors are allowed to place their heaps of materials upon them so much as they aro, for which thoy are just as liable to be fined as those who stock them, and they are further liable for any damage which they may occasion; for example, supposing they were to causo a conveyance to bo upset, and a man was injured for life, or killed, leaving a widow and children, either he or they would havo just as great a claim on the surveyors for compensation, as we so frequently hear of against the companies in railway accidents. Then, again, footpaths aro as much highways as any other parts of our roods, and I cannot conceive where the owner of the herbage on the sides of highways can have a right to depasture them, except where roads run across commons or other waste lands j for if a highway is defined by fences (no matter how wide it may be) no one has a right either to obstruct it or encroach upon it. The only way I can see for the owners of the herbage lawfully to avail themselves of it is by mowing.
The writer of the above was evidently unaware of the decision upon which the paragraph quoted from this journal was based. If he, and those similarly interested, will refer to the case of Holding v. Stocking, 20 L. T. Rep. N. S. 479, it will be found that persons entitled to the pasturage on the sides of the highway may turn out their cattle in charge of some person whose duty it is to see that they do not stray on to what is commonly called the metalled part of the highway. The cattle in that case were sent by their owner under the control of a keeper, in order that they might depasture on the sides of the highway, and the contention before the justices was that the cattle could not be said to have been found straying within the meaning of the 25th section of the Highway Act 18(>4. The justices found on the evidence, however, that nine of the bullocks were seen straying upon the metalled part (" central or gravelled " is the expression used), and that the appellant was not at the time, as to those nine bullocks, legally exercising the right which he bad of the pasturage which existed on the sides of the highway. The justices further found that the keeper of the bullocks was at the time in a field divided from the highway by a ditch, and forty yards off the nearest bullock. Accordingly they convicted the appellant, on the ground that his cattle were straying on the highway. The Chief Justice, at the close of the argument, said, "The justices might very easily have found the other way on the facts of the case, but we cannot say they were wrong." And in the course of the argument the same Judge said, "A stranger's cattle might be found straying on the sides of the highway, though that could not be said of the cattle of a person having a right of pasture there, as the appellant has, but the cattle of the appellant may be found straying on the highway itself, though not on the sides, and that is found to be the case here. If his cattle had been pasturing on the sides under competent charge, and through Borne accident they escaped for a short time from under the charge of their keeper and got on the highway, that would not be a case for conviction by the magistrates, but if the cattle are found straying on the highway for any length of time, the case would be different.
The question is one of fact for the magistrates to determine. It would be hard not to allow the proprietors of these roads to depasture thencattle on the sides, but they must place them under sufficient charge to prevent their straying."
This makes the matter sufficiently clear, and disposes of the doubts entertained by the writer of the letter whicli we have quoted above.
THE ENCLOSURE OF COMMON LAND. The Inclosure Commissioners, it appears, are not doing so well as it was hoped they would. We are not at all surprised at their failure, because they had imposed upon them a most difficult task. The commons throughout England are not so situated that their utility and public advantage can be appreciated at a glance. It is in every case a work of difficulty to discover the variety of interests which may be affected by inclosing any particular portion of common land. In the first place, the persons who enjoy rights of way and common rights of pasture and the like, may not be numerous, their places of residence may be scattered, and it must be a matter of very considerable labour to find them out and ascertain from each individual what his wants and desires really are. The Commons Select Committee on this question point this out in their recently issued report. They say that the commissioners sitting in London can have few opportunities of obtaining local information by other channels than the reports of the assistant commissioners, and they think that the reports presented to Parliament should contain more precise and minute statements of the information on which the provisional orders are framed, such as the population of the neighbourhood, the number of persons attending the meetings, the distance of the waste or common land from the towns and villages within reach, the particulars of any other ground available for recreation, and of other cottage gardens and field allotments, and any other details calculated to enable Parliament to judge of the grounds on which the provisional orders relating to public allotments are based. And the committee recommend bettor publicity of the notices of meetings given by the assistant commissioner.
These are very judicious and necessary recommendations. But we think that a more important matter is the mode in which the local inquiry is conducted. The assistant commissioner to whom this work is assigned is commended by the committee, but it appears that in the only case iu which a complaint has found its way to the committee, the assistant commissioner stated that he set apart the small extent of an acre, out of the 1904 acres of common which were to be inclosed for the following reasons—because a larger amount would not be used; because the population never resort to the common for exercise and recreation ; because there are other commons where the children and grown-up people can rove about, and because the ground is steep. This single acre of recreation ground he intended specially as a playground for the children of the school. On the other hand, the parish clerk and the schoolmaster testified that the common is a general resort of the inhabitants for exercise, for games, and for the meetings of their friendly societies; that there is no other common within five or six miles to which the public are allowed free access; that one acre is not sufficient either for the children or the adults; that seven acres equally suitable are adjoining, and that there is much dissatisfaction among the inhabitants at the small extent set apart for recreation, which finds vent in the remark that when the common is inclosed they will be as badly off as in a town, and will not have even the accommodation which they would get in a town in the way of recreation ground.
Now it would seem from this that the assistant commissioner arrives at his conclusions by the unaided light of his own view of the wants of the vicinity. If such a flagrant disregard of the state of things as it appears on reliable evidence occurs in the only instance in which alarm has been taken and a complaint made, what is the probability as regards other places? We should have expected that the assistant commissioner would have been inclined rather in the other direction, and to compensate liberally those who are being deprived of what may be called a natural privilege attaching to the locality. The committee conclude their report by expressing the opinion that the annual Inclosurc Bill requires the constant attention of Parliament. In this we heartily concur. We would further recommend that the condemnation of common lands to inclosure should in each instance be made the subject of a proper inquiry, the assistant commissioner being empowered to hold a court, and persons compelled by subpoena to give evidence before him.
CONTRACTS TO LOAD AND UNLOAD. A Case of Xelsm v. Richards, recently before the Queen's Bench, but not reported, raises a question upon the construction of a contract to deliver to consignees within a reasonable time. and it was there decided that unless there is an express clause providing for contingencies, the delivery must be made subject to contingencies. There the facts were these: A ship, the Rivulet, arrived at Swansea, on Friday morning, the 2nd Oct., at eight o'clock, laden with calamine or oxide of zinc. She was not discharged until Saturday, the 17th Oct. She might have been discharged in six days if her discharge had commenced on her arrival, but seven other vessels, laden with zinc ore fur the same consignee as the consignee of the Rivulet, had arrived in port before the Rivulet and four of the seven arrived the same day. The "unloading" in the terms of the charter-party Whs to be "through the charterer's agency at Swansea as expeditiously as the custom of th* port would allow, for which special arrangements were made." The ore was unloaded into barges, and the distance they had to traverse was about three miles, and through locks. The unloading was accomplished expeditiously and with as much despatch as this mode of discharge permitted, and so far, "unloaded" with all reasonable despatch. But this despatch related only to the unloading, that is the taking of the ore out of the vessel and the claim for demurrage, for which the action was brought, depended on the delay preceding the unloading. The consignees took the vessels in turn, and employed as many barges as they could get.
Looking at this case in connection with previous decisions, we see that a nice distinction may exist where states of facts are somewhat different. In the above case the court said that the charterer could not be taken to have contracted that the port should be free, and that if the shipowner had desired to protect himself against possible delay by the happening of any contingencies he should have had a clause inserted in the charter-party.
The previous decisions are not numerous. The earliest that we know of—Rodgers v. Forresters, 2 Camp. 483—decided that if the freighter of a ship employed to bring a cargo of wine into the port of London, covenant to unload in the usual and customary manner at her port of discharge, he is not liable for detention of the ship in the London Docks, if she is unloaded in her turn into the bonded warehouses. There, however, there was a particular custom, that ships should nnload in rotation. "The wines," said Lord Ellenborough. '• might have been landed sooner, by an immediate payment of the duties; but since the bonding system was introduced, this has ceased to be the usual and customary mode of unloading a cargo."
Another case in the same volume, at p. 4S8, is that of BurmeMer v. Hodgson, and comes near the principal case which we have already mentioned. The facts were very similar to those in Rodgers T. Forresters, Chief Justice Mansfield holding, indeed, that the two cases were not distinguishable. It was therefore held that the consignee was not liable to make compensation to the owner of the ship in the nature of demurrage for any delay occasioned by the crowded state of the London Docks, although the cargo might have been landed soouer if the duties had been immediately paid.
This case, however, is apparently in conflict with a third case on the point, occurring in the same volume—Randall v. Lynch, p. 352. It was laid down there that if by a charter-party leave is given to detain the ship a certain number of days for the purpose of discharging her cargo, this amounts to a covenant on the part of the freighter, that he will not detain her longer; and further that the vicissitude of the crowding of the London docks was one for which the freighter was liable to the shipowner in respect of the delay in unloading. Lord Ellenborough •aid, "The question is whether the detention of
the ship arising from the inability of the London Dock Company to discharge her is, in point of law. imputable to the freighter: and I am of opinion that the person who hires a vessel detains her if at the end of the stipulated time he does not restore her to her owner. He is responsible for all the various vicissitudes which may prevent him from doing so. . . . The defendant is as much responsible for the want of a berth, as if it had arisen from tempestuous weather, or any other cause."
The reader will, of course, perceive that in this last case there was a contract of hiring for a fixed period, so that the question of reasonable delay did nut arise. But from the decision we conceive that it could be forcibly argued that the freighter would be liable far the delay where there was no express contract, the condition being implied that all vicissitudes which give rise to claims for demurrage should impose a liability on the freighter.
In other cases the question what is a vicissitude which may reasonably cause delay, for which neither party can be made responsible to the other, has been somewhat arbitrarily decided. In Adams v. The Roual Mail Steam Packet Company, 28 L. J. 33, C. P. which was an action for not loading in the customary manner, the Judge was held rightly to have directed the jury not to take into consideration a delay occasioned by a strike among the colliers, and a dispute with a railway company, along whose line the coal had to be brought to the port for shipment, these not being matters contemplated by either party when the charter party was made. Chief Justice Cockburn said, "It happened that extraordinary circumstances arose which prevented the defendants getting their coals down to the vessel. That cannot now avail them. They ought to have protected themselves by a clause to that effect in the charter-party."
Mr. Justice Lush is said to hare held that this case and another, to which we shall refer, were not applicable to the case of Nelson r. Richards, but in our opinion, there is very little in the distinction drawn between contracting to supply a cargo and contracting to unload, that the one is absolute, the other contingent. Could it be said that a contract to supply a cargo is invariably absolute? The question, however, is now concluded by authority, and must be considered as no longer open for discussion, for Kearon v. Pearson, 31 L. J. 1, Ex.. established that a contract to load with usual despatch means "usual despatch of persons who hare a cargo in readiness for the purpose of loading," and that if the party contracting to supply the cargo is prevented from obtaining it within a reasonable time, the loss must be his. This being so, we will only say that there are some cargoes which could not be kept in readiness. In Kearon v. Pearson, the cargo was coal. But what if it had been perishable?
The distinction, however, must be held sound on authority, and the deduction must be, first, that there can be no excuse for not loading at the time agreed upon, and secondly, that whilst delay may be excusable in unloading, the question of what contingencies will excuse delay is a question for the jury. If a time of hiring be agreed upon, all detention after that time must be paid for as demurrage, the fact of there being no berth available offering no excuse: (Randall v. Lynch, sup.~) But where no time of hiring is agreed upon, the case of Xelson v. Richards recognises that contingencies must be considered, and that the crowded state of the docks is a contingency which will be taken into calculation.
COUNTY COURT ADVOCACY. It is a delicate matter for a journal whose interests are absolutely identical with the interests of a profession to point out blots in that profession, and the conduct of its members. As a rule we are very reluctant to do it. but regarding the County Courts as a developing institution, we consider the duty incumbent upon us to correct abuses where they exist, and by deprecating what we think improper to check a repetition of the offence.
County Court advocacy is at present very largely in the hands of solicitors who, in the great majority of instances, emulate the courtesy and forbearance of the Bar, and leave really nothing to be desired. The occasions, however, on which counsel come into collision with one another and with the learned Judge, are very rare. This cannot be said with regard to the other branch of the Profession, and until
it can be said there will always be some barrier to the solicitors attaining the object of the ambition of so many of them. But we cannot; say that this result is wholly owing to the solicitors. We have one instance before us whiii shows that a Judge may, in i great degrw, govern the behaviour of those who practise before him. That it is hard to leave untouched an obstreperous advocate, we allow, but the temptation to meet such an one with his o»a weapons can rarely be submitted to without lost of dignity.
From a western court a local reporter sends at the following information: "It is a well knovi fact," he says "that Judge Sachders and Ml Attorney Joluffb seldom meet without havinc I mutual * go-in.' This may be all very well as i rent-peg for a lawyer who has a losing cause. < as a safety-valve for the wrought-up feelings« a Judge, whose ears are bored day after day rid long and tedious cases, and some excuse maj even be found in the fact that these passiq flings between the Bench and the Bar affd amusement to the public, who generally iwalloi them with a great deal of gusto, but surely U unfortunate client who is in waiting it a subja for commiseration. If his case is to be left I the consideration of a jury, ten to one but tbt are listening to the legal retort courteous, stead of reviewing the arguments. Again,: Judge would be more than human, andJudg are but human, if he failed to give a comi tire lawyer a slap in the face when opportunity presented itself, even if it ri at the expense of a client; and an titers would possess a more peaceable dispositi than is usually exhibited if he did not at at destroy any favourable consideration that i hare existed for his client, by returning answer that must hare the effect of raising i judicial ire. To his Honour it must be partU larly trying, after sitting hour after hour, ml crowded room with the thermometer at V\f hare inflicted upon him a long-winded statei of the case of an hour's duration, that might in been laid before him with equal force and c" ness in ten minutes; but at the same tin must be particularly mortifying to Mr. Jollo to be, in the middle of what appears to him I be an elegant peroration, suddenly pulled f with a remark from his Honour that raises] laugh at his expense in court among those are only too pleased to see the bumiliatic better men than themselves; or to be told in i midst of what he considers an acute exnniinitB of a witness, that in the judicial opinion, fl question he has just put is an absurdity. I Mr. Jolliffb would consider that time is una not only for slaves, but for men of business, at] accordingly, cut it short, all this would aid
According to this local observer the faulfl on the side of the attorney, but it is * what difficult to come to that conclusion looking through the report of a case occi at the court. We shall quote, however, not the purpose of founding on the quotations judgment of our own, but for the edifi> and amusement of our readers. The amusomi will, no doubt, be as much caused by the a of thing which law reporting is in the previa] as by the eccentricities of the persons engajp in the scene.
Mr. Jolliffe called the attention of the jur to the Six Carpenters' case. We here quote:
His Honour.—Tell the jury what year that cai was decided in.
Mr. Jolliffe.—That can't affect the decision.
His Honour.—Well, itoll them. Tell them thi it was some centuries ago (derisive laughter court).
Mr. Jolliffe.—That does not, for one siag moment, alter tie case. (To the jury): Itisrigl and proper for me to toll yon, and I hope and tra that I shall be allowed to make any observance without the slightest unnecessary interruption < annoyance—that in quoting this case I am quotii one of the leading cases of the land as beam upon this point.
Juryman (of an inquiring turn of mind): VI should like to know what year t'was decided in.
His Honour.—Oh, never mind, that makes i difference; it is a very old case, but it is esfci lished law.
Our readers will judge whether there wi any necessity for this piece of banter. Bi better follows. His Honoib, asks where t! Six Carpenters' case is to be found, and we thii there is some cause for being ashamed of t following discussion, the peculiarities of tl report notwithstanding:—
Hie Honour.—Where is the case to be found?
)Ir. Jolliffe.—In Law Terms.
His Honour—No, it is not. (Mr. Joliffe begins to search a large volume of law.) Here, let me hire the book; perhaps you haven't looked into it before, and I'll tell you.
Mr. Jolliffe (cot quite certain, but near the mark). -In Coke's Reports.
His Honour.—No, it isn't; it's Cooke's. (Audience, whose sympathies lie with the defending go into ecstasies at Mr. Jolliffe's discomfiture.)
Mr. Jolliffe (who doesn't relish matters).—Well, wherever it's reported, it can make no difference; it is the highest authority in the caso.
His Honour.—Well, you havo not told us yet vhtt von want it for; go on!
l"pon this again we will say nothing, but prosed to » point in the proceedings where the Judge and a boy in the audience have it all to themselves. The reporter tells us:
A small model, made from a cigar box, was put hi to show the alterations done to the premises.
Hia Honour (viewing it humorously).—That is He house that——
Sharp boy in the audience (promptly).—Jack
His Honour (facetiously).—No; the six carpnters. (Boars of laughter from appreciative ■tonera.)
The most marvellous part of the whole business, however, seems to have been the effect of the verdict of the jury for the defendant, the ample question involved relating to a breach of H agreement to repair. We are told that "on the announcement of the verdict there was loud and long-continued cheering, which the officers tf the court found it impossible to check for ■me time, and immediately afterwards a peal of Ike church bells rang out, notwithstanding the tat hour of the night."
And finally, to point the moral of this singular history, the reporter says, "This trumpery case Tis begun at twelve o'clock and finished at twenty minutes to ten. Mr. Jolliffe exhausted an hour and five minutes in opening it and fifty Bumce* in reply, thus occupying nearly two ken, or 20 per cent, of the time spent on the whole cue."
Ihiej are several points of interest and importer* in the second report of the Courts-Martial Onmmfciaon. The commissioners express their •oration, founded on the evidence of soldiers of at ranks, that, though there may be defects reaching correction, these courts have the confiwe of the army, and are satisfactorily spoken of ■a by those who have suffered from their jurisfcfcon. The evidence laid before the commis■nwrs has convinced them that military law as hid down in the Acts of Parliament and the Articles of War is in a complicated state, and that
Sooly in the courts themselves, but even in the est military departments, there is often much salty in arriving at a just conclusion, owing to piditerent sources to which reference has to be jWe. His Royal Highness the Field-Marshal foomanding-in-Chief has expressed an opinion (kit the frequent reassembling of courts-martial kr the purpose of revising their proceedings is ■SnbntaMe mainly to the difficulty which the •srr.-; often experience in ascertaining the meanE? of the Mutiny Act and Articles of War, and «« Royal Highness strongly recommends that *°th should be revised, with a view to their being "aired more clear and simple. Other authority cited agree in this opinion. The task of con•ciliting military law should be undertaken, the "amieaioners think, on the responsibility of Her •tajesty's Government.
j lie commissioners advert to the opinion Bo **a opressed that courts-martial are inadequate,
• at present constituted, to deal with difficult frstons of law which frequently arise in the ■«* of military trials. Two remedies have been ps-jo^d—the one that the president of every J**1' court-martial should be a barristor; the Wkt. that more attention should be paid to the •E'Stion of officers in military law, and that the ?» of deputy judge advocate should invariably <1 tied by a barrister or by an officer on whoso •Jure in legal practice, and especially on points jf i-jal evidence, the court could at all times con■■ntly rely. The commissioners adopt the latter 2"- They think that, inasmuch aH courts-mar
* «* tribunals for the trial of issues, the deter**at;on of which must, to a great extent, depend lT* the custom and usages of war and of military *?v*e, the president and all the members of the *•* should have a practical knowledge and exTM** in those usages, and that it is therefore *—«tiaj to maintain strictly the military char' to of the court. At the same time no means
«1 be neglected of securing to those who come
under its jurisdiction, as far as may be practicable, the protection afforded to a prisoner on his trial before one of the ordinary courts of law. It is recommended, therefore, that courts-martial should in the main be constituted as at present, and that the duties of deputy judge advocate should continue to be discharged as heretofore, but that in all appointments to that office, a competent knowledge of the laws of evidence, and of the procedure in the ordinary criminal courts, should be considered an indispensable qualification. It is also recommended that every subaltern officer, before sitting as a member of a court-martial, and previous to each step of promotion, should pass an examination before a board, of which a deputyjudge advocate, or some one deputed by the Judge Advocate General, should be a member, and conduct that part of the examination which relates to the duties of a member of a court-martial.
Whenever it is practicable, cases of embezzlement of more than common importance should be submitted to an ordinary criminal court, as having more experience in dealing with such charges, and greater facilities for thoroughly investigating them.
It is recommended that the present rule of examining witnesses in general courts-martial, which requires that questions shall be submitted in writing to the president of the court, previous to being put to the witness, shall be relaxed. It is clearly the duty (the commissioners say) of the president and Judge-Advocate to protect the prisoner from any improper question, and they recommend that wherever the services of a sworn shorthand writer can be conveniently obtained, and a full and accurate record of the proceedings thereby secured, the examination be conducted vivi voce as in our ordinary courts. By the present Articles of War a prisoner under trial before a general court-martial is not entitled as of right to a list of the witnesses to be brought against him. The commissioners think that this right should be oonceded to him, and a list of the witnesses, together with the charges, should be furnished to him as a matter of right a reasonable time previous to the trial, and that he should also have reasonable notice of any additional witnesses whom in the course of the proceedings it may be found desirable to adduce.
When a prisoner is found not guilty, the finding should be announced in open court, and the prisoner immediately discharged. In the case of a verdict of "guilty," the verdict should also be announced in open court, and the sentenoe declared. The prisoner should be detained in custody, but the sentence should not be further carried out until the legality and propriety of the verdict and sentence have been examined by the proper authority.
The following is a summary of the chief alterations which the commissioners recommend:
1. That the Mutiny Act and Articles of War should be carefully redrawn.
2. That a text-book on military law be prepared for the convenience and instruction of officers, and for the use of courts-martial.
3. That a stricter examination of officers in military law be enforced, such examination to be conducted before a board of officers by a deputy-judge advocate, or some one deputed by the judge advocate-general.
4. That the convening officer of a district courtmartial be enabled either at his own discretion, or on the api)lication of the prosecutor or prisoner, to require the attendauce of a deputy-judge advocate.
5. That for this object the present number of deputyjudge advocates be increased.
G. That with the view to reducing the number of regimental courts-martial enlarged powers be given to commanding officers
7. That whenever the services of a shorthand writer can be obtained the examination of witnesses before a general court-martial be conducted viva voce.
8. That cases of embezzlement be submitted to the ordinary criminal tribunals, where there are facilities for so doing.
9. That in general courts-martial the lists of witnesses, together with the charges, be furnished to a prisoner as a matter of right provious to trial, and that he should also have reasonable notice of any additional witnesses whom in the course of the proceedings it may be thought desirable to adduce.
10. That the practice of reassembling a court for the purpose of revising their proceedings be discontinued, power being given to theconfirming authority in certain cases to commute the sentence.
11. That a regimental court should only be had recourse to when a district court cannot conveniently be assembled, and that it be composed of officers of not less than three years' standing.
12. That the proceedings of all regimental courts be forwarded to the general officer commanding the district.
With regard to military punishment, the commissioners recommend:
1. That one or more central military prisons be established, in which an improved Bystem of military discipline can be carried on, in which separate confinement shall form an indispensable part, and that until that time arrangements should be made with the authorities of civil prisons for the reception of the requisite number of military prisouers, care being taken to separate them as far as possible from the other prisoners.
2. That the term habitual drunkenness as applied to the fourth offence be abolished.
3. That a scale of fines be substituted for the present system of imprisonment for this offence.
4. That such fines constitute a fund for the benefit of the army generally.
5. That the punishment of non-commissioned officers need not necessarily be accompanied by reduction to the ranks.
6. That greater facility be afforded for the discharge of men of bad character.
7. That the practice of "marking" be abolished when altered circumstances referred to in the report will admit of it.—Pall Mall Gazette.
SAYINGS AND DOINGS OF THE
[contributed By The Reporters Of The
HOUSE OF LORDS.
Judgment in three cases, two of much general interest, was given on Tuesday last.
In the Great Western Railway Company T. Button, in error from the Exchoquer Chamber, the question raised, as to the legality of charging to carriers an exceptional rate for the conveyance of "packed parcels," was one that has been for nearly thirty years past constantly before the courts. The respondent sued the appellants to recover over-charges made by them. The declaration contained counts for money had and received, and on account state.!. The circumstances were these :—Sutton was a carrier, and his chief business was to collect parcels at a central office in London. These he packed together according to the places of their consignment, and forwarded them by railway to his country agents for delivery to the various consignees. Such packages, on being declared "packed," were charged by the railway company at the highest rate named in their tariff, and 50 per cent, in addition. At the trial, before Baron Martin, evidence was given for the plaintiff to the effect that various wholesale houses (not carriers) for the accommodation of tradesmen and customers, were in the constant habit of sending "packed parcels" bv defendants' railway, and that these were not charged as "packed," but at a less rate. There was no proof that defendants were ever informed that the parcels were packed, but no questions were asked. The jury found a verdict for the plaintiff. On a bill of exceptions, to the admission of evidence and the summing up by the learned judge, it was held by the Exchequer Chamber (Chief Justice Erie dissenting) that the evidence above mentioned was properly admitted; that the judge was right in directing that there was evidence that defendants had knowingly carried parcels for other persons, "containing goods of a like description and under like circumstances," at a less rate than for the plaintiff; and that in the absence of any evidence that the difference of charge was on account of a difference of the contents of the parcels or of the circumstances under which they were carried, the jury were justified in concluding that the extra charge was within the meaning of and against 7 & 8 Viot. c. iii., s. 50, providing that "no reduction or advance in any charge shall be made partially ... in favor, r of or against any particular company or person." A full report of the case will be found jn 13 L. T. Rep. N. S. 221. Lord Chelmsford delivered judgment, in which Lords Colonsay and Cairns concurred, to the following effect:—There were threo questions—(1) Whether there was evidence to go to the jury that the appellants knowingly charged the respondent at a higher rate than the wholesale houses for packed parcels? (2) Whother the evidence stated above was properly admitted? (3) Whether an action for money had and received would lie to recover the overcharge? Now, there was the direct evidence of several persons that hundreds of packed parcels were carried day after day by the appel' hints for wholesale houses, and this without objection or extra charge. No specific instance in which the appellants were informed that these parcels were'' packed'' had been proved; but that was not necessary. The appellants could have given notice that packages, unless otherwise declared, would be assumed to be " packed parcels," and charged accordingly. Information of the fact might therefore havo been obtained. It was essential that the equality clauses of the Act (7 & 8 Vict, c, iii., s. 50; 10 & 11 Vict. c. cexxvi., s. 53) should bo strictly observed, to prevent the favouring of particular parties and a monopoly by the railway companies. Charges had not been made "equally . ... to all persons'' for the conveyance of goods "of a like description and quantity .... and under the like circustances." The packed parcels, whether of Sutton or the wholesale houses, did not differ in themselves; the only difference was that the persons sending. And it could not be said that Sutton's packed parcels were notcarried " under the like circumstances,1' because he was an intercepting carrier. There was, therefore, a violation of the Acts. The evidenco was admissible. It was but general proof, but it was the only means available to prove that for which it was offered. The form
-of action was right. The case fell within the principle that, under this connt, money may be recovered that has been paid unlawfully under -compulsion. The judgment on this point in BaxendaU v. Great Western Railway Company (9 L. T. Rep. N. S. 814) was conclusive £hat the action will lie. In the present case, the respondent did not complain merely that other customers "have the same benefit for less money" (as it was put by Chief Justice Erie, in Baxendalev. Great Western Railway Company, 8 L. T. Eep. N. S. 838), but that other persons having been charged less, he was entitled to pay only the same charge as they. The judgment of the Exchequer Chamber would therefore be affirmed.
In the case of the Hammersmith antl City Railway Company v. Brand and wife, an action was brought by the respondents to recover a sum, which a sheriff's jury, on an inquisition held under -the provisions of the Lands Clauses Act, had assessed as compensation for the depreciation in "value of a house belonging to the female respondent through vibration caused by passing trains in the ordinary traffic of the line. The fact was admitted by the appellants, but thoy denied that the claim to compensation could bo supported. The railway crossed a road on a viaduct, near the respondents' house, and the company paid compensation to them for obstruction of light, air, and way, and for damage to their garden by lime-dust during the construction of the railway. The vibration caused no structural injury. No land of the respondents had been taken by the company. The railway was constructed by the appellants, but used exclusively by the Great Western. Tho caurt of Queen's Bench, justices Mellor and Lush, held that compensation could not bo recovered, claims to compensation under the Lands and Bailways Clauses Acts being limited to damage resulting from the execution of the works, and not extending to damage resulting from the carrying on, without negligence, the ordinary business of the company. And the court further expressed an opinion that no action would lie, the act complained of being one authorised bv the law: (13 L. T. Rep. N. S. 501; L. Eep. 1 *Q. B. 130.) In the Exchequer Chamber (16 L. T. Eep. N. S. 101; L. Eep. 2 Q. B. 230) the judgment of the Court of Queen's Bench was reversed by Baron •Bramwell and Justices Keating and M. Smith, Baron Channell dissenting. The grounds of that judgment, as stated by Baron Bramwell, were these: A nuisance had here been created to the occupiers of these premises, which would be actionable at common law. There must be a remedy either by action or under the compensation -clauses of the Lands and Railways Clauses Act. The cose of Vaughan v. Taff Railway Company, 2 L. T. Eep. N. S. 394; 5 H. & N. 679, decided that no action would lie in such a case as the present. The remedy must, therefore, bo under the Acts referred to. (The case was apparently tried in the courts below as if the damage had been caused by "vibration, noise, and smoke," but on the case tiefore the House of Lords it appeared that the jury had assessed the snm claimed as compensation for damage by "vibration" only.) Lords Chelmsford and Colonsay now gave judgment to ■the following effect: There had been a difference of -opinion among the learned judges who had advised the House. The present case was within tho principle of the Caledonian Railway Company v. Ogilvy, 2 Macq. H. of L. Cas. 229, and R. v. Pease, 4 B. & Ad. 30, and since the damage complained of was inevitable in the ordinary working of the line, it must be taken to have been sanctioned and contemplated by the Legislature in authorising the -construction and use of the line. Baron Bram-well, in his opinion to the House, thought that the -case of Vaughan v. Taff Railway Company (ttbi sup.) was wrongly decided, but in thejuugment of their Lordships there was no remedy by action. The remedy, if any, must then be under sect. 6 or 16 of the Railway Clauses Consolidation Act (8 Vict. c. 20). Now sect. 6 must be construed to limit compensation to cases where damage was caused by "tho construction of the railway and the works connected therewith." And sect. 16 is limited to damage sustained by the exercise of the powers therein conferred. The present case -was within neither of these sections. No compensation was given by the Acts, whero damage arose from the proper use of the railway. Their Lordships must therefore hold reluctantly, that the respondents were without remedy, and tho judgment of the Exchequer Chamber would be reversed. Lord Cairns dissontcd on these grounds: An action would not lie. The headings to the groups of sections in the Railways Clauses Consolidation Act were fallacious as to their scope. Suet. 16 was not to be limited to compensation for damage by tho exercise of the powers immediately <i>efore enumerated only. The Legislature must be taken to have considered tho railway as a working -concern, and to have intended compensation in all cases where damage arose through the working. There might be a difficulty, as suggested by the judges, in assessing the damage done in the present case, but the jury had found a certain sum
due, and this the respondents were entitled to recover. Judgment in the Exchequer Chamber was reversed.
The hearing of the case of Foreman v. the Company of Free Fishers and Dredgers of Whitstable was noted in "Sayings and Doings" for July 3. It was a claim by the respondents to anchorage tolls. In Gann v. Vie Free Fishers, <§r., of Whitstable, it had been held in the House of Lords (12 L. T. Eep. N. S. 150) that the company were not entitled to the tolls claimed, because they had failed to prove some corresponding advantago to the public, which would support, as consideration, this limitation of the public right of free navigation on the seas. In the present case, accordingly, the claim was supported by evidence that the company keep, and have long kept, buoys, beacons, and lights, to mark tho bounds between the oyster-beds and the anchorage ground, and further that before and since the time of legal memory Whitstable hod been a port. The judgments of the Common Pleas and Exchequer Chamber were that the above constituted a sufficient consideration to support the claim to toll (16 L. T. Eep. N. S. 747; 18 Ibid 735). There was then an appeal to the House of Lords, on a special case. The Lord Chancellor and Lord Chelmsford (Lord Colonsay concurring) now gave judgment, in accordance with the unanimous opinion of the judges, affirming the judgment of the Exchequer Chamber, and dismissing the appeal with costs. Their Lordships considered that the existence of a port was proved, and that this, in connection with the company's ownership of the soil and the immemorial payments, supported the claim to toll.
In the iridtloui Peerage case, a Committee for Privileges met on Monday last. Mr. Serjt. Ballantine (with whom was Mr. Charles Clark) appeared on behalf of Mrs. Howard, the mother of the infant claimant. He said that Mrs. Howard having presented a petition in forma, pauperis for the purpose, had hod counsel assigned to her on the previous Wednesday. He now asked for an adjournment, in order to give time for the preparation of a cose. The House, after consideration, ordered that a printed copy of Mrs. Howard's case should bo delivered to tho agent for the other claimant on Monday the 19th inst., and the hoaring was then adjourned to Thursday the 22nd inst.
The arguments in the case of the Duke of BuccUuch v. Wakefield and another, with a cross appeal, were completed on Tuesday last. These were appeals from a decision of the Court of Chancery, reported in 15 L. T. Eep. N. S. 462, and 5h L. Rep. 4 Eq. 613. The Duke of Buccleuch was represented by Sir R. Palmer and Mr. Freeling; and Mr. Wakefield by Mr. Mellish and Mr. Everitt. Mr. Wakefield is the owner in fee simple of a parcel of land situated in the manor of Plain Furnoss, in the county of Lancaster, and the appellant,' as the lord of that manor, claims the right to work the mines and minerals under the land. Mr. Wakefield claims to be the owner, not only of the surface of the land, but also of the minerals under it. The land in question was part of certain lands inclosed under a private Act, and formed part of those which were sold to pay the expenses of tho inclosure. Mr. Wakefield does not dispute the right of the duke to work the minerals under the lands allotted to the customary tenants of the manor, but contends that he has no right to work the minerals under tho lands sold for tho purpose of defraying tho expenses of the inclosure. Owing to the peculiar nature of the minerals and of the surface of the soil, it is alleged that it is impossible to work the minerals without entirely destroying the surface of the land belonging to Mr. Wakefield. Mr. Wakefield complains of the decree of the court below on the ground that it declared the duke entitled to the minerals beneath his land, and the duke complains of it on the ground that it declared that he was not entitled to work the minerals so as to cause a subsidence of the surface of tho land belonging to Mr. Wakofield. At tho conclusion of tho arguments, their Lordships took time to consider. Further consideration postponed sine die accordingly.
JUDICIAL COMMITTEE OF THE PRIVY
The following are the only cases of interest that
have occurred since thoso reported in last week's
"Sayings and Doings" :—
Rylaud v. Dclisle was heard on Tuesday, July 6. This was an appeal from a judgment of the Court of Queen's Bench for Lower Canada, reversing on appeal a judgment of the Superior Court of the District of Montreal. Tho respondent was a shareholder in the Montreal and Bytown Railway Company, and was also the president of the company. In the company's books he was credited with the sum of 10001., which had been voted to him for his services as president. One Doutre recovered judgment in an action against the company, and took out execution against the property of the company. Doutre transferred his interest in the judgment and execution to the respondent, who thereupon brought an action to recover the sum so due,
amounting to 6381., against the appellant, as a shareholder. The action was founded on sect. 8t of the Consolidated Statutes of Canada, c. 56, which enacts that each shareholder shall be lial' to the creditors of the company to an amoi equal to the amount unpaid on the stock held him, until the whole amount of his stock shall paid up. Now at the time of the action 9001 moined unpaid on stock held by him, but he put ini plea of compensation, alleging that the snm owj on the stock was extinguished by the 1000!. credii to him in the books of the company. The judgmi of the Court of Montreal, in favour of Kyland, i reversed in the Queen's Bench of Lower Ci the latter court considering that the plea of c pensation was good under art. 1188 of Civil Code of Lower Canada, which follows: "Compensation takes place by the operation of law between debts which are liquidated and demandable, and have eacl object a sum of money or a certain quantity indiscriminate things of the same kind or qn&Ht,, so soon as the debts exist simultaneously they m mutually extinguished in so far as their respecun amounts correspond." Mr. A. H. Thesiger la Mr. H. W. Austin, for the appellant, contends that the statute did more than transfer to th creditors of the company the rights of the comjaq against its shareholders, for it gave a personal a original right to the creditor, which might be eier cised even though no right to sue belonged to tin company. And no compensation could ban accrued, for the compon; had not called up til amount unpaid on the respondent's shares, at so there was no "debt" from the respondents the company within the meaning of the code. Si Mellish, Q. C. and Mr. W. W. Kerr, contra, forth1 respondent. Their Lordships now reversed tU judgment of the court below, with costs.
On Wednesday, July 7, a question of franhi lent preference was raised in the case of th Cluirtcred Bank of India, Australia, and Ckis« v. Evans and another, then heard. This wwd appeal from a judgment in the Supreme Court f( China and Japan, reversing that of the Court o Hankow. The respondent, the creditors' aerij nees of M'Kellar and Co., the appellants, were banking firm, of which M'Kellar and Co.weq customers. The appellants were in the habit o discounting bills for M'Kellar and Co. On25t June 1867, the appellants, there being then seven bills running, applied to M'Kellar and Co. fori additional margin of 15 per cent, upon them. 0 27th Juno M-Kellor and Co. paid 10.000 tads I such margin, and on the following day etoppi payment. The respondents brought an action I recover a sum of 12,000 toels, alleged to hai belonged to M'Kellar and Co., and to have been i the appellant's hands at the date of the adjoc cation of bankruptcy of the above firm. In th< answer, the appellants alleged that the snm 10,000 toels was in pursuance of a special ajrment with M'Kellar and Co., carried to a sped account, called the " Margin Bills Account." T court of Hankow gave judgment for the dcf« donts (the bonk), on the ground that the trai action was a perfectly justifiable mercantile or that the bank did not know that M'Kellar and ( were about to fail on the 27th June, and that the was no fraudulent transfer by M'Kellar and ( to the bank. The Supreme Court reversed tl judgment, considering that, on the evidence, t payment was a fraudulent preference, ma voluntarily and in immediate contemplation bankruptcy. Their Lordships, without calling Sir Roundell Palmer to reply, reversed the juc ment of the court below.
Anderson and others v. Tlie Pacific Pit*' Marine Insurance Company, on appeal from 1 Supreme Court of Viotoria, was also heard Wednesday, July 7. The appellants were 1 chairman and directors of the Australian Alliai Assurance company, and the original action i brought against them by the respondents recover the amount of a re-insurance on a s. destroyed by fire. The appellants pleaded ti there was a misrepresentation as to a fact matei to the risk of the re-insurance. The applieat for re-assurance was made on a printed foi furnished by the appellants, specifying heads particulars, the details of which were filled in the respondents in writing, In this form tb was an entry " Valued at 6000!.; insured only 40001." There was also a list of other offices which the ship was insured, with amounts. _ 1 there was no mention of an insurance for 150 which, it appeared, had been effected by a nx gage of the ship, without the knowledge of respondents. This was the misreprosentat relied on in tho plea. A verdict having b found for the appellants on this plea, the resp dents subsequently obtained a rule nisi to en the verdict, on the ground that the represcntat that the ship was insured only for 40001. did i include insurances made by other persons tl the respondents, and the rule was made absol by the Supreme Court of Victoria. This judgm was now affirmed by their Lordships, with calling on Mr. Mellish, Q. C. for the responden