RUTTER, ISAAC, grocer, Cardiff. Dec. 29. 58. by three equal in- PARTRIDGE AND COOPER

HE
DEBENHAM, TEWSON, and TSOCIETY, held at the LAW INSTITUTION,

FARMER will SELL, at the MART, on TUESDAY,
JANUARY 25, at Two, in suitable lots FREEHOLD
GROUND RENTS, amounting to s. 188. per annum,
aimply secured upon 11 Houses six with shops in London
View, Wilmer-grove, Blackstone-road, and Blanchard-road,
the whole of substantial construction, and situate adjoining
the contemplated recreation ground at London-fiekis,
Hackney, and of the total rental value of about 36007. per

241

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242

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Z. Y. X.-You will receive the information you want on
addressing a letter to "C." care of Mr. Butcher, LAW
TIMES Office.

W READE, jun. We have given you a suggestion by
letter. All the works you mention are very useful.
We prefer Davidson.

to this in England, but it is quite natural that those who are disposed to invest in land should be anxious as to the "liens" which are to incumber it.

243 IT is rumoured that Sir COLMAN O'LOGHLEN is to be the new Solicitor-General for Ireland. We learn that, in anticipation, the whole Irish Bar, of all shades of politics, join in condemning the appointment. The appointment is thus interpreted by the Dublin Evening Standard:—“ In other words, the JUDGE ADVOCATE-GENERAL for ENGLAND is to be brought over from London, and placed at the head of a Profession which he has practically deserted for years, and in which at no time has he obtained a position of emiHe is to be set over Mr. Serjt. Dowse, Mr. Law, Mr. PALLA 8, and other acknowledged leaders of the Bar, whose politics accord with those of Her Majesty's present Government." The English Bar will heartily sympathise with the learned gentlemen whose legitimate advancement is thus taken away from them. The slight to Mr. Serjt. DowSE is the more marked, because he has just won a victory for the Government in Derry.

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Just published,

ART XXVI. of MARITIME LAW CASES
PART
decided by all the Courts in England and Ireland, with
a selection from the decisions of the United States Courts,
and a DIGEST of SHIPPING LAW CASES decided
from 1860 to 1864. Price 58. 6d. The back vols, and parts
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Just published,

A
DIGEST of all the CASES decided by all
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the Law administered by Magistrates, and to Parochial,
Municipal, Ecclesiastical, and Election Law. Price 21s.

LAW TIMES Office, 10, Wellington-street, Strand.

THE

Law and the Lawyers.

Railway company-Scheme of arrangement-Confirmation 656 THE only foundation for the rumoured retire

WALTERS T. WEBB

V.C. MALINS' COURT.

657

ment of Mr. Justice WILLES would appear to be that his Lordship's fifteen years' term expires during the present year. In our hearing the 660 report has been contradicted upon good

660

661

Petition for letters patent-Objections by a prior patentee 663 Ex parte CYRUS; Re BROADBRIDGE

Bankruptcy-Adjudication-Petitioning creditor's debt

664

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authority.

Mr. GIFFORD, the Sheriff of Orkney and Shet-
land, it is stated, will be appointed to fill the
vacancy in the Scotch Bench.

In a letter addressed to Mr. PoWNALL, the chairman of the Middlesex magistrates, Mr. CROLL, dealing with the subject of prison discipline, makes the following suggestions:-1. To extend and develope the principle of employing prisoners in their own trades. 2. That, subject to the usual surveillance and control of the surgeon, the prisoners under sentence should receive rations fixed on the lowest dietary scale; and that all beyond bread and water, or some 230 such meagre diet, they should provide by their own labour. 3. That a contribution be levied 22 upon the proceeds of the convict's industry in payment for the rations provided by the prison 232 authorities. And, 4. That an adequate motive to work be provided.

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Mr. READ, M.P., has answered our remark that the agitation for tenant right is having an effect upon the English land market, by saying that it 234 is unreasonable that it should have this effect. Mr READ says, speaking of tenant right, "It is not fixity of tenure; it is not payment for the goodwill of a farm; it is not rental based upon a 236 Government valuation; it is not even twentyone years' leases. It is simply compensation for the tenants' unexhausted improvements. In other 237 words, it is demand for the extension to the whole of England of the tenant right which now exists generally in Lincolnshire and partially in some other counties." One piece of information is omitted by Mr. READ. How is the compensation to be paid to a tenant assessed? Unfortu238 nately tenant right in England is expected to 239 follow much in the wake of the like right in Ireland, and our latest information from that 239 country is derived from a case in the Court of 230 Exchequer, in which it was mentioned that the tenant had no interest in the farm, but refused 240 to give it up, although he had been offered the sum of 2001. as compensation for the surrender. Of course we do not say that it could ever come

238

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Faversham County Court-The New Bankruptcy Act..

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nence.

WE recently (p. 162) discussed a question of appeal under the County Court Admiralty Jurisdiction Act, which has now come before Sir ROBERT PHILLIMORE for decision. It was a case of cross-suits for damage by collision; and in both suits the amount claimed was 100l. Judgment was given in the court below in favour of vessel A., the damage to be assessed by nautical assessors. There was an appeal for vessel B., whose suit against A. was dismissed in the court below; but it was contended that there was no appeal in the suit against B, the actual damage sustained being under 501., although the damages had been laid at 1001. Two questions arose on the hearing before Sir R. PHILLIMORE: First, whether the two suits having been heard together in the court below should not be considered as one suit, in which case, as vessel B. claimed upwards of 50l. and had received nothing, the section (31) of the statute would not apply; secondly, whether the court had proper evidence before it that in the case in which vessel B. was defendant the amount decreed or ordered to be due did not exceed 504 "As to the first question," his Lordship said, “I am of opinion that the two suits cannot be considered as one, any more than if they had been respectively instituted in different County Courts. This position is further confirmed by the practice on appeals from the High Court of Admiralty, in which cross-suits which have been heard together are treated as separate with respect to the institution of the appeal. I must therefore dismiss this appeal when I have proper evidence before me that the amount decreed or ordered to be due does not exceed 50%. The second question is whether I have or not the requisite evidence on this point, and I am of opinion that I have not. The finding of the assessors as to the amount will, I presume, be made part of the decree nunc pro tunc, and on an affidavit being filed that that finding places the amount under 501., I shall direct that the appeal in the suit in which The Adalia (vessel A.) is plaintiff, be dismissed." Therefore we still have the remarkable anomaly which we before pointed out. One vessel whose suit has been dismissed may appeal and have the judgment in a crosssuit practically reversed, but may still have to bear the burthen imposed in that cross-suit in the court below, because the damage found to have been sustained by the plaintiff vessel in such cross-suit does not exceed 504

THE conflict in company cases decided by the Master of the Rolls and the Court of Appeal, to which we referred on the 25th ult (ante p. 143), turns out to be more a misunderstanding as to fact in the particular cases referred to, than a conflict of law. A full court has heard an appeal from Lord ROMILLY in the matter of the Heyford Iron Works Company, and confirmed his ruling on the facts which were found to be on all fours with those in Migotti's case. As a consideration for the transfer of his interest in the Heyford Iron Works, Mr. PELL was to have 1500 fully paid-up shares, 1350 to be allotted to himself, and the residue to his nominees. Mr. PELL was put on as a contributory for the 1350 by Lord ROMILLY, but was removed by Lord Justice GIFFARD. The nominees were then put

on by Lord ROMILLY, and the full court has kept them on. The reason of this is quite clear. The nominees bought of PELL, and not of the company, and they were held liable for the shares in respect of which they signed the memorandum. The legal question remains, however, upon which Lord ROMILLY and Lord Justice GIFFARD differ, namely, whether a person who sells his business to a company for a number of paid-up shares, and also signs the memorandum, is liable in respect of the shares appearing by the memorandum, or can claim exemption on the ground that they are the shares which for ned the consideration for the sale.

every opportunity of stating it in public-that the
Companies Act, the Bankruptcy Act, and this
Railway Arrangement Act, have been prepared by
men who are obviously extremely able men, but
who do not know anything about what they are
legislating upon. The Legislature have never
taken any interest in the matter. The Companies
Act, which was only brought three times before
Parliament before it was adopted, passed through
both Houses without a syllable being uttered for or
against it-it passed sub silentio, and the Act has
carried destruction and ruin with it in its operation.
Why? Because it attempts to grapple with a sub-
ject that cannot be dealt with successfully unless by
persons who know what the working consequences
of the adoption of such an Act are. The Com-

"that the measure has been most favourably received by the Judges, the Bar, and the general public."

From the article in the journal before mentioned we find the scope of the statute to be this. Each local judge in Ontario sitting under the provisions of the statute, and for every purpose connected with or relating to the trial of offenders, is created a court of record. No regular sittings are appointed, but the court sits from time to time as occasion may require. The Clerk of the Peace is appointed to act as clerk of the court, and the sheriff acts in the same way as in other criminal courts.

A QUESTION of some importance to seamen and panies Act, as a mere piece of draughtsmanship: nature of the charge, extends to "all offences

owners of vessels was discussed before Mr.
LUSHINGTON at the Thames Police Court on Wed-
nesday, namely, whether, in a proceeding by sum-
mons to recover wages under 50l., a magistrate has
power to refer the matter to the Court of Admi-
ralty. Sect. 189 of the Merchant Shipping Act
of 1854 says that "no suit or proceeding for the
recovery of wages under the sum of 50%. shall be
instituted by or on behalf of any seaman or
apprentice in any court of admiralty or vice-
admiralty, &c.
unless any justice acting
under the authority of this Act refer the case to
be adjudged by such court." Sect. 188 says that
in such cases the decision of the justices shall
be final, and in our opinion sect. 189 must be
taken as a proviso to the foregoing section, and
thus a justice or a magistrate is not, as Mr.
LUSHINGTON said, "bound to decide the ques-
tion," but may refer the matter to any court
named in the section. Unless justices may so
transfer a proceeding the provision in sect. 189
as to restriction of suits would be surplusage.

AN ABUSE.

is really one of the best possible Acts; but it is an Act which, if the Legislature did but know the extent of the ruin and destruction it occasioned to families, it would regret its adoption. It consists of 212 clauses, and every one of those clauses interferes with the law of contract. It is obvious that the persons who drew it could not have been in the least aware of the state of the law on that particular matter. The truth is, the Legislature entrusts the drawings of Acts of Parliament to men who do not know what the working of them will be. They would be ingenious and beautiful, no doubt, if we had no law of contract in this country-if we were a barbarous country, and if civilisation were only just commencing. But it is thrown upon a Judge to administer the law of this court, and that Judge finds an Act which governs other rights which were not in the view of the persons who framed that other rights would be affected. I speak in the Act, those persons never having dreamed the hearing of one legislator in this court (Mr. Osborne Morgan), and I beg him to consider what ruinous consequences this kind of legislation entails upon everybody. Persons who draw these Acts of Parliament are called-and very properly -legislators. So they are; because the LegisWE fear that if we could look behind the scenes lature leaves the thing entirely in their hands in the criminal courts of the metropolis there understood by them what the administration of without saying a word upon it. It is not distinctly would be a wonderful revelation of abuses at the laws of this country is, for if the ruin and present shrouded in secrecy. Occasionally acci- destruction occasioned by these things were dent draws the curtain aside, and then every-known, the Legislature, I am sure, would not allow body exclaims, "Who would have thought it?" them to pass. It is very well for me to hear the One of these glimpses of what is going on was case of Aspinall v. Mitchell, or any other case, and unexpectedly afforded in a case heard by Mr to decide upon it; but the purposes of justice will Serjeant Cox at the Middlesex sessions on Wed- not be answered by any order that I, or any nesday. One PAGE had, in August last, pleaded it will not have the slightest effect. other Judge, may make in these isolated cases; All this guilty to an indictment for keeping a disorderly Winding-up Act does is to sweep up a great house, and was, as the practice is, discharged on mass of property, which is all spent in litigation, recognisances to come up for judgment if called which does not benefit, I believe, even those persons upon, on condition that he gave up the house who are reimbursed their expenses by it. There complained of. Being so brought up for judg- cannot be anything more preposterous; and if any. ment now, on a complaint by the parish officers body will pay the slightest attention to it, they that the house had been only colourably assigned, will see that it is so at once. I can only say that and that he was still in fact conducting the in the performance of my duty I feel myself very filthy business there, one ROBINSON, the clerk much affected by it. I cannot administer an Act to the parish solicitors, by whom the prose- of Parliament of this kind, which creates ruin and cution had been and was conducted, was destruction, without noticing the very painful put into the box as a witness, when the defen- position in which I am placed, and I am glad to dant asserted that he had paid to him in different course, every judge on the bench who thinks he is have this opportunity of doing so. It is not, of sums 147. in relation to this prosecution. The bound to take any heed of the actual consequences Judge immediately examined the clerk as to of administering the law. The law is there, and the astounding fact so stated, and after some he is here to administer it. We have abstract hesitation, the clerk admitted that he had questions discussed, and have to decide exactly received from the defendant 81. altogether, in in accordance with the law; but what the result three separate sums, at different times, during of our discussion may be, it is not for judges to the progress of the prosecution. Being asked consider. All that may be very true, but I cannot for what services? he said, "for giving him with a good conscience take such a view of things. advice." Asked by the Judge, "What advice he, best to struggle with it; but such an Act of ParIf a case comes before me, of course I will do my the clerk to the solicitor for the prosecuting liament as this, drawn by persons who evidently parish, intrusted with the conduct of the pro- do not understand what the law of contractsecution, gave to the man he was prosecuting?" which is affected so much by it-is, creates great He said that it was "For advising him to plead embarrassment." guilty, and then that he would get him off without punishment!"

Of course, the very respectable solicitors whom he represented were entirely unconscious of the transaction, and will deal with it as it deserves. But we fear it is only one instance of a multitude, of weekly occurrence, in which the criminal law is abused into an engine of extortion, and perverted by iniquitous compromises that do not come under the control and

cognisance of the courts.

THE LAW OF JOINT-STOCK COMPANIES. VICE-CHANCELLOR STUART has delivered, in open court, the following very important opinion on the working of the Law of Joint-Stock Companies, and the manner in which it has been prepared for, and passed by Parliament. We reserve comment until next week.

CRIMINAL TRIALS WITHOUT JURIES.

THE Canadian Parliament last year passed a
very remarkable Act, making a radical change

in the constitution of criminal courts by dis-
pensing with juries. A writer in the Canada Law
Journal for November says, "It is one of those
gigantic strides in legislation, the full bearing
and extent of which is not at first fully per-
ceived, but when brought into use, and its value
seen, we all are apt to wonder why it was not
long before placed on the Statute Book."

This is certainly an accurate description; it is a gigantic stride in legislation, and one which requires strong evidence of its beneficial operation to induce approval in this country. A correspondent, in a position which gives him an opportunity of learning the general feeling of the country, tells us that the statute was introHis Honour, addressing Mr. Dickenson, said:duced by the head of the Government of Ontario, "It is deeply to be regretted-and I wish to take the Hon. Mr. Attorney-General MACDONALD, and

The jurisdiction of the court, as respects the for which a prisoner may be tried at a general session of the peace," in other words, to nearly every crime, short of a capital felony, known to the law; and if convicted, "such sentence as the law allows and the judge thinks right" may be passed upon the convicted persons. The jurisdiction, however, is limited to persons committed to gaol on such charges and consenting to be tried by the Judge.

The procedure is this: Within twenty-four hours after a prisoner is committed to gaol for trial upon any such charge, the sheriff notifies the Judge of the fact, and when the local prosecutor is ready to proceed (having received and examined the depositions and papers which the law requires to be laid before him for the purpose) he informs the Judge, and an order is at once issued, and under it the prisoner is brought before the Judge in open court. A formal accusation in the nature of an indictment describing the offence (prepared in the mean time by the public prosecutor from the depositions, &c.) is then read to the prisoner by the Judge, as the charge against him. The prisoner is then informed by the Judge that he has the option the intervention of a jury, or remaining untried of being forthwith tried by the Judge without till the next court of general session of the peace, or oyer and terminer. If the prisoner, as he has a right to do, declines the jurisdiction and demands a jury, he is remanded to gaol. If he consents to be tried by the Judge, he is at once arraigned and called upon to plead to the accusation. If the prisoner pleads plea be "not guilty," his trial is at once pro"guilty," sentence is at once passed. If his ceeded with, if the Crown and prisoner are both ready, or, if not ready, the proceedings are adjourned to an early day. On that day the trial is entered upon, but may be further adjourned in the discretion of the Judge for the purpose of completing the evidence for the Crown; that is, before the prisoner has gone into his evidence; or to enable the prisoner to produce other and further evidence, of which he was not aware at the time he entered on his defence, as being ceedings, and as to evidence at the trial, is the material thereto. The rule as to the other prosame as in ordinary cases, and before passing sentence upon the prisoner, the same questions will be asked as in other criminal courts; and if the prisoner has anything to urge why judgment should be arrested, or why sentence should not be passed, it is to be heard and determined by the court. None but barristers-at-law will be heard as counsel.

procedure are, (1) speedy trial of prisoners, and The arguments advanced in favour of this thereby a saving of expense; (2) the prevention of the lengthened association of young with hardened criminals before trial; (3) provision against the injustice of keeping innocent persons incarcerated who are unable to find bail. The one argument in favour of a trial before a single Judge, instead of before twelve, is obvious. "What intelligent man," it is said, "conscious of innocence, would not prefer being tried before an educated man, trained to the investigation of facts and above the reach of irregular influences, rather than by a number of men taken from the general community, utterly unacquainted with the investigation of facts, and with but little scope for the exercise of their reasoning powers." This is the whole question, and it is a question which is coming more nearly to the surface in England, and our criminal courts are now the only courts in which a Judge cannot by any possibility be called upon to decide upon facts. In Chancery, Bankruptcy, Common Law, and Divorce, the Judges are now in various ways selected by the parties to weigh and adjudicate upon facts. It would be in the last degree unconstitutional to compel any

person to submit to judicial decision upon both law and fact, and more particularly so where the subject matter is a criminal charge. But we can easily believe that even in England the time is not far distant when it will be made optional for the prisoner to be tried with or without a jury. At any rate we fully concur in the views of our Canadian contemporary, and consider the experiment one which in a new country might be safely made with possibly useful results. And we in the old country may derive advantage from observing the operation of the statute, and if we see that it works well, may in time follow the example thus set us.

the rights of common to which they had proved themselves entitled, and decreed a perpetual injunction to restrain the lord from inclosing.

on being asked in the usual way why sentence
should not be passed upon him, he narrated the
foregoing circumstances, and urged that they
formed (to use the words of the statute)" a lawful This principle has been mistaken by those
and reasonable excuse, or pretence," for his con- who have written on the subject in the public
duct. The convict also proposed to read to journals, and foremost among them by our intelli-
the learned judge the letters written to his gent contemporary the Pall-Mall Gazette. These
attorney, by the Home Secretary, and other are the remarks which it founds on the decision :
Government officials (the counsel for the prose--"The Master of the Rolls decided that, under
cution, at the same time, admitting the truth of the circumstances, it was incumbent upon the
his statements), but the learned Judge said it lord of the manor to prove that the inclosure
would be useless for him to do so, as he (the would leave sufficient for the commonable rights
Judge) was unable to enter into the matters of the tenants. This the lord neither did nor
mentioned, but that the circumstances ought to even attempted to do, and a perpetual injunction
be communicated to the Secretary of State, and is accordingly granted against him. This prin-
that he had no alternative but to pass the sen- ciple is obviously of great importance, and much
tence recorded by Baron PIGOTT, namely, five in favour of the preservation of commons. It is
years' penal servitude.
very difficult in any given case to determine pre-
cisely who are the commoners, what are their
rights, and how much will be sufficient to satisfy
those rights. The difficulty is of course increased
in the case of commons near the metropolis,
where rights of the nature described have been
allowed to fall out of use in consequence of the
increase of population. If it were necessary to
prove what was the precise extent of these rights
in each case, the task would often be impossible,
and the lord of the manor would get the whole
advantage resulting from their practical disuse.
If, on the other hand, he is bound to show that
he has left a sufficiency before proceeding to
inclose the surplus, the difficulty will rest with
him, and the commons may remain in their
native wildness. We may therefore take the
decision as a good thing in itself, and as a good
omen for the various suits now in progress."

CONVICTS AT HOME AND ABROAD. We have been furnished by Mr. CLUTTERBUCK, solicitor, of Worcester, with the history of a The convict is now in Parkhurst Prison, and convict which illustrates an anomaly in our it is nearly four years since he was arrested for system of criminal punishment. The question so being illegally at large. The original senraised by the facts to which we are about to tence of fifteen years passed on the convict exrefer is this: A convict being transported be-pired on the 20th Oct. 1869. It has been urged yond seas, and then granted a free pardon on condition that he keeps out of Great Britain, should he, when unable to remain in the colony to which he has been sent by reason of the colonial law, be kept in prison in England without having committed any new offence save that of being in this country?

The facts of the history of JOHN PARSONS, which we glean from his own undisputed statement, and letters which have been received from the Home-office are these:

In 1854 he was sentenced at the Birmingham sessions to fifteen years' transportation for housebreaking, and in 1857 he was sent to Western Australia, in which colony he received in 1861 a pardon, the condition of which was that he should not return to the United Kingdom during the residue of the said sentence.

Being desirous of complying with the condition of his pardon, he went to Adelaide to seek employment, but was there recognised as a pardoned convict, arrested, and taken before a bench of magistrates, who told him that unless he left the colony within seven days, he would be sent to gaol for three years. He produced his pardon, but was told it was no use to him there, and that "as England had sent him out, England must take him back," and that he should be supplied with the means of going there if he required them. He declined the offer, and applied to the captain of a vessel bound for

did so.

Melbourne to be allowed to work his passage to that place, but the captain said he dared not take him, as he, the captain, would be fined 100%, and the convict would be imprisoned if he To avoid the threatened imprisonment at Adelaide, the convict embarked within the seven days on board a vessel bound for Singapore, and on arriving there was told that, being a discharged convict, he should not remain. Being thus driven about, the convict hired himself to the master of a Dutch trading vessel which arrived in London in March 1863. The convict shortly afterwards returned to Birming ham, where he married, and remained nine months unmolested by the police, and then went to reside at Worcester with his wife, where he was arrested on suspicion of having been concerned in a burglary, but was discharged on investigation; and in Feb. 1866 he was again arrested on the charge of being illegally at large, and committed for trial. The convict's attorney being desirous to ascertain the truth or other wise of the convict's statement as to his pardon and subsequent treatment in Australia, wrote to the then Secretary of State for the Home Department for information, and received a letter in reply, in which it is stated that "As regards the colonies of South Australia and Victoria, there appears no reason to doubt the substantial truth of the convict's statements. The colonial Acts on the subject in force in 1861 were in South Australia, The Convicts Prevention Act, No. 18 of 1857, and in Victoria the Act No. 3 of 18th Vict. (since made perpetual). Under their provisions the master of a ship, taking to South Australia or Victoria a person holding only a conditional pardon, would be liable to a penalty of 100%, and the convict to penal servitude, hard labour on the roads, or imprisonment."

At the Lent Assizes, 1866, the convict was tried before Baron PIGOTT for so being illegally at large, and found guilty. Certain points were reserved by the learned baron for the consideration of the court above, but they were overruled, and the convict was brought up at the then ensuing assizes before Mr. Justice KEATING, and

upon the Home Secretary that the convict's con-
duct in returning to England was, under the
circumstances, of so venial a character, and the
elements of hardship about the case are so
patent, that he will consider the convict has
been punished enough for the offence of which
he was found guilty, and will see fit to advise
Her Majesty to remit the remaining part of the
sentence of 1866.

Now the startling circumstance of the case
is this: Owing to the colonial law being in
antagonism to the law of England, and thereby
rendering it a matter of the greatest difficulty
for a convict to comply with the terms of the
pardon granted to him, this unfortunate man has
been in gaol in England for three years and nine
months for being really in a position which the
colonial law made almost inevitable.

The remission of the remainder of the sentence of five years' penal servitude is asked for at the hands of Her MAJESTY. The memorial is signed by many influential persons in the neighbourhood where the convict passed nine months without offending against the law; and considering the state of the law in the two countries, we certainly think it ought to receive very serious consideration.

THE BERKHAMPSTEAD COMMON

CASE.

That deci

This was a

THERE appears a general disposition on the part
of the press to attach too much importance to
the decision of the Master of the Rolls in the
case of Smith v. Earl Brownlow, commonly known
as the Berkhampstead Common case.
sion was simply a decision on a question of fact,
and cannot have the smallest effect upon other
cases affecting waste lands. His Lordship said
that the case of the plaintiff was fully proved,
that is to say, it was shown by evidence that
rights of herbage and pannage over Berkhamp-
stead Common are still legally vested in the
tenants of the manor. This being substantiated,
it of course fell upon the lord of the manor to
show that, although these rights do exist, yet
that the extent to which they could be exercised
by those justly entitled, having regard to the
nature of their holdings, was not so great as to
require the whole of the common.
question of fact, and here Lord Brownlow failed.
Now it may be said that Berkhampstead
stands in a position peculiar to itself. Lord
Romilly found that the manor of Berkhamp-
stead comprises both the borough of Berkhamp-
stead and the hallimote of Northchurch, and is
eleven miles in circumference. It is moreover
a considerable distance from any great centre
where bricks and mortar are extending their
encroachments. Consequently customs have
lived longer, the rights which peculiarly belong
to the most rural districts have been preserved
by constant exercise, and thus the evidence re-
quired to support a claim opposed to the lord's
right to approve was forthcoming. Had there
been a considerable decrease in the number of
tenants claiming to exercise their rights, and
generally near cities and large towns there is a
very large decrease-and had Lord Romilly de-
cided that the remaining commoners were still
entitled to exercise commonable rights over the
whole waste, the decision would have been most
important. His Lordship decided, however,
directly the other way. He found that if the
lord were allowed to make the proposed inclo-
sure of 400 acres, there would not be sufficient
waste left upon which the tenants could exercise

obvious from the remarks which we have already The error underlying these comments will be made, for we have stated that in the first place the Master of the Rolls found that the tenants had proved their rights. From the report which appeared in the Times we learn that Lord Romilly said "the evidence of user related to twentynine different properties, and in eighteen of these cases it was admitted that the property constituted either a freehold or a copyhold tenement of the manor, assuming that he was right in his conclusion that the tenants of either manor (if, indeed, there were two manors) enjoyed indiscriminately commonable rights over the whole waste." And the report goes on, "His Lordship thought, therefore, that the frame of the suit was correct, and that as regards the common right of herbage, pannage, and the cutting of furze and gorse, the commoners' right was established. It remained then for the lord to show that he was entitled to approve, and that a sufficiency of the waste was left for the commonable rights of the

tenants. This the lord had entirely failed in doing; indeed, he had not attempted it."

It will be observed that the Pall-Mall Gazette says, "It is very difficult in any given case to determine precisely who are the commoners, what are their rights, and how much will be sufficient to satisfy those rights." True; it is very difficult, but the difficulty is not removed by Lord Romilly's judgment, as supposed. That proof must come from the tenants, if they are to restrain the lord. If it lay upon the lord to point out who were commoners, what were their rights, and the extent of those rights, and then to prove that he left sufficient for them, the Hampstead case would never have gone to common law. It has gone, because the Master of the Rolls was not satisfied what were the rights of the commoners. The lord has nothing to do in the way of defence until the commoners have established their rights before a jury. The rights being proved to exist, and the tenements defined to which those rights attach, it is then for the lord to say, "Admitting those rights to exist, I leave enough for their reasonable exercise."

We have always said that attempts to sustain a claim as of right to ride and drive over every part of a common must fail. Such claims must, if tenable at all, be of very modern date, and could not by any possibility be taken as restraining the right of the lord to approve under the Statute of Merton. In the Berkhampstead case, Lord Romilly found that the rights of estovers, and to use the waste as a recreation ground were not established, and his decree refers merely to common of pasture and rights ejusdem generis.

We welcome the decree most cordially for what it is worth. We are glad to see that the rights are being kept alive which will preserve these outlying commons. But near the metro

polis such rights must lapse, unless the ancient cargo, or freight. The power of inspectors as
inclosures, however dealt with, are taken to be provided by the old Act and the Bill is very
ancient inclosures still, with all their ancient arbitrary, and we can quite believe that much
rights attaching. This we do not expect, and as fraud has been practised hitherto. This fact,
the evidence in the cases of Wimbledon and Hamp-indeed, the Chamber of Commerce has abundant
stead is excessively meagre in support of common evidence to prove.
rights, we think that the process of purchase
should be at once adopted in preference to a
doubtful litigation after which, the lord's rights
being established, his price would be raised in
proportion.

THE MERCHANT SHIPPING AND
NAVIGATION BILL. (a)
No. VI.

SALVAGE BY HER MAJESTY'S SHIPS.

LOCAL CHARGES ON SHIPPING. Subject and without prejudice to the exercise of any lawful power or right existing when the Bill becomes an Act, no person is to be allowed to levy dues unless they are applied to some shipping purpose, the benefit whereof is enjoyed by the ships or goods on which such dues are levied. And where any treaty, convention, or agreement entered into before the passing of the Ir is objected that salvage ought not to be Government of any foreign state contains any Act by or on behalf of Her Majesty with the allowed to Her Majesty's ships which are main-stipulation respecting dues, no person may levy tained at the expense of the nation. The pre- dues otherwise than in accordance with such sent Government is not likely to take this view, stipulation. and the sections will probably stand which provide that claims by such ships may be made and prosecuted by the Admiralty, at their discretion, on behalf of any such commander or crew, before any court having admiralty jurisdiction, and that a claim may be allowed for the cost of any stores belonging to Her Majesty supplied to any ship in distress, but no claim shall be allowed for the risk, loss, or damage of any ship belonging to Her Majesty, or of the appurtenances on board such ship. By the old Act, sect. 184, a claim was not allowed to be made "for the use of any stores or other articles belonging to Her Majesty supplied in order to effect such ser vices, or for any other expenses or loss sustained by Her Majesty by reason of such services."

The jurisdiction of courts of admiralty in salvage is, of course, extended to "every court having admiralty jurisdiction."

THE SURVEY OF SHIPS.

[JAN. 22, 1870.

the government of that island.
case of the Isle of Man, by and in the staff of

Where any jurisdiction is to be exercised or thing done by or proceedings taken in a superior court of admiralty or a Judge of the superior court of admiralty, such jurisdiction may be exercised and thing done and proceedings taken by and in the following courts:

Admiralty of England and Ireland respectively, In England and Ireland the High Court of Court of Session, or either division thereof, or the or the Judges of those courts: In Scotland the Lord Ordinary officiating under bills during vacation, or, so far as respects the Judge the president of the Court of Session.

Where any jurisdiction is to be exercised or thing done by or proceedings taken in a local by and in the following courts; namely, in Engcourt of admiralty, such jurisdiction may be land a court hgving jurisdiction under the County exercised and thing done and proceedings taken Court Admiralty Jurisdiction Act 1868; in Ire

land a

Court of Admiralty (Ireland) Act 1867; in Scotcourt having jurisdiction under the DETENTION OF SHIPS BY Officer of CustomS. land the sheriff or sheriff substitute for the county.

Where in any harbour dues are levied which benefit whereof is enjoyed by the ship or goods are not applied to some shipping purpose, the on which such dues are levied, the harbour authority of such harbour may apply to the Board of Trade to make, and the Board of Trade the Act to detain any ship, any officer of cusWhere any officer of customs has power under may make, a provisional order for transferring toms may refuse to grant a clearance or transire such dues to the harbour authority. Such to such ship until the cause of such detention is transfer may be made for such consideration, removed, and may call to his aid any officer of and in such manner, and upon such terms and the army, navy, or marines employed in the preconditions, and with such powers as to the har-vention of smuggling, or any excise officer, bour authority may seem expedient: (s. 655).

LEGAL PROCEdure.

or where any person not being a British subject
commits any crime or offence on board any
British ship or boat on the high seas. Formerly
the consular officer before whom an offender was
brought was empowered to send him to the
United Kingdom or to a British possession. It
is proposed that he should be able, as another
alternative, to send him to any foreign port or
place in which Her Majesty has jurisdiction in
which there is a British court capable of taking
cognizance of the offence.

The provisions of the old Acts bringing offences within the jurisdiction of British tribunals are neatly summarised at the commencement of Part XVII. The offences are to be taken to have been committed within British jurisdiction where they are committed in any place ashore out of Her It is provided that receivers of wreck may be Majesty's dominions by any master, seaman, or appointed by the Board of Trade, and have the apprentice, who, at the time the offence is comsame powers as are conferred upon inspectors mitted is, or within three months previously has under the 14th part of the Act, which are the been, employed in any British ship; where any same as those mentioned in sect. 14 of the Act British subject commits any crime or offence on of 1854. An important point in connection board any British ship or boat, or on board any with this matter is brought forward by the New-foreign ship or boat to which he does not belong, castle Chamber. They say that certificates of survey are obtained with the greatest ease by interested parties, and that instances of fraud are frequent, in which foreign and British ships are condemned on such surveys without the least reason. They propose, therefore, that a provi. sion should be made that in case any ship puts into any harbour or place in distress, or requiring help, or in an unfit or unseaworthy state, a survey may, on the request of any person interested in the ship, cargo, or freight, be made in England, Scotland, or Ireland, by the registrar of the Admiralty Court having jurisdiction in the district, or his deputy specially appointed, by officers of customs, or other persons authorised under the Act; or in the British possessions by any tribunal, governor, justice of the peace, or person having or exercising any civil or criminal jurisdiction under the Crown or any legislative authority, properly authorised by the Act. And it is proposed that the last mentioned tribunal or persons "shall have the power to order a survey upon any shipin any case in which they may think it necessary or advisable to order a survey, and a certificate under the hand of the surveyor or surveyors so appointed, and countersigned by the tribunal or persons so appointing, shall be a sufficient authority and discharge for all underwriters and other persons interested to pay or receive, and be received in evidence and deemed conclusive as to the rights of parties, and no survey made otherwise than as before required shall be deemed valid. And any party interested shall have all rights of recourse or appeal, and power to institute and prosecute all proceedings in the court or courts having jurisdiction in the places aforesaid, and the provisions herein contained shall be auxiliary to, and form part of the procedure of such courts."

It may be very necessary to provide some machinery for obtaining honest surveys of ships in distress, or in an unfit state, but we question whether that suggested would work well. For example, we expect that the registrars of County Courts having jurisdiction would be very incompetent persons for performing the duties chinery. It is no doubt a good suggestion that required. But this is only as regards the mathe survey should be made in Great Britain at the request of some person interested in ship,

(a) By F. O. CRUMP, Esq., Barrister-at-Law.

If at any time it is made to appear to any
court having jurisdiction, under the Act, to try
a person accused of an offence committed at
sea, that it would be expedient to the ends of
justice to try such person at some other place
than that in which such court had jurisdiction,
the court may order such person to be removed
to such other place. And as to depositions
admissible in evidence, there is a clause as to
foreign ports, that if the deposition is made in
any foreign port or place in which Her Majesty
has jurisdiction, it shall not be admissible in
such port or place. Nothing in the Act is to
prevent any person from being indicted, or being
liable under any other Act or otherwise to any
other or higher penalty or punishment than is
provided for any offence by this Act, so that no
person is punished twice for the same offence.

The Board of Trade is to be liable to costs,
charges, and expenses incidental to any pro-
ceedings under the Act, to the same extent and
in the same manner as a private person.
cation of the Act:
Then follow these provisions as to the appli-

Where by this Act anything is required or
authorised to be done, or any jurisdiction is
authorised to be exercised by quarter sessions, or
by the chairman of quarter sessions, such act
may be done and jurisdiction exercised in Scotland
by the sheriff or sheriff substitute, and in the Isle
of Man by the governor.

exercised, or matter done by, or proceedings taken
Where by this Act any jurisdiction is to be
in, any Superior Court, such jurisdiction may be
exercised, and act done by, and proceedings taken
in, the following courts, namely, in England or
Courts of record at Westminster or Dublin, as the
Ireland, by and in any of Her Majesty's Superior
case may be, or the Court of Common Pleas for
the county palatine of Lancaster, or the Court of
Pleas for the county of Durham; in the case of
Scotland, by and in the Court of Session; in the

police officer, constable, or other person having authority from the Commissioners of Customs or Inland Revenue to make seizures, and may put on board the ship any one or more of such officers or other persons to take charge of the same; and if any officer or other person put on board or in charge of any ship detained as aforesaid is removed therefrom, or if such ship proceeds to sea with any such officer or other persuch offence to a penalty not exceeding 100%, son on board, the ship shall be liable for every and the further penalty of 51. for every day during which such officer or other person with reasonable diligence to return, to the port son is prevented from returning, or is unable or place from which he has been taken, besides the reasonable expenses incurred by such officer or other person in returning to such port or place. The penalty and expenses may be recovered by the Commissioners of Customs as a penalty, or as if they were dues payable to them by such ship: (sect. 727.)

DISCLAIMER BY TRUSTEES IN BANK

RUPTCY.

THE doctrine of election by assignees, for a long period familiar to lawyers, will not trouble the present generation'; but we are about to refer to a case dealing with it, which we reported last week, in order that we may more thoroughly appreciate the new law of disclaimer. The case we refer to is that of Williams v. Taylor, 21 L. T. Rep. N. S. 612. There the Court of Exchequer actually differed upon the question whether the acts of the defendants did or did not amount to such an unequivocal election to take the lease as precluded them from disclaiming it. The sections of the Act of 1861, upon which the case rested, were sects. 117 and 131. The former said that upon the appointment of the creditors assignee all the estate, both real and personal, of the bankrupt should be divested out of the official assignee and vested in the creditors" assignee; and the latter says, "In every case of a lease or an agreement for a lease it shall be lawful for the assignees to elect to take the same, and the benefit thereof, and to keep possession of the premises up to some quarter or half-yearly day on which rent is made payable by the same lease or agreement, such day not being more than six months from the adjudication of bankruptcy, and upon such day to decline such lease or agreement for a lease." To show the difficulty of deciding what was an election we have only to look at Baron Cleasby's judgment. He said, "The merely being in pospictures, or the like, would of itself leave it an disposing of the property, as goods, chattels, session by the messenger, for the purpose of open question whether or not there had been an election, and to determine whether or not that have been there in the character of tenants. The act amounted to an election, we must, I think, see whether there is anything showing them to moment it is established that they have a claim of title as tenants or, in any way, to the lease by election, the moment they have done any act