and M V. C. JAMES'S COURT. LETT TWYNAM. PORTER ....... 351 Practice--Order to continue suit without representative of Injunction-Covenant not to use a house as a beerhouse... 352 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. 352 Victoria-Company-Personal liability of directors............ 356 COURT OF QUEEN'S BENCH. TEWSK TAYLOR. CHESTER Money handed to another for an immoral purpose- Action to recover it back.. SALTER v. WALKER 359 the Seduction-Relationship of master and servant-Plea of "not guilty" COURT OF COMMON PLEAS. Agreement in writing-A telegram-The 4th sect. of Statute of Frauds (29 Car. 2, 0.3) Will VIVIAN . THE MERSEY DOCKS AND HARBOUR BOARD Ship sunk in the port of Liverpool-Expenses of removing obstruction-Liability of owners of cargo... Bill of sale-17 & 18 Vict. c. 36-Occupation LUCKIN. HAMLYN COURT OF EXCHEQUER. COURT OF PROBATE. 360 361 362 366 IN THE GOODS OF S. GARBETT Testamentary suit-Nude executor-Costs....... 367 Supposed intestacy-Administration granted to wife......... 367 HAYED IN THE GOODS OF GAYNOR Will-Chain of representation-Will of testator and executor both proved in Ireland COURT OF BANKRUPTCY. HOUSE OF LORDS. LEADING ARTICLES, SUMMARIES, TO CORRESPONDENTS.......... T LEADING ARTICLES: Law and the Lawyers. THE business at Westminster is singularly light. 367 43 Topics of the Week Nisi Prius Sittings 41 The Other Side of the Land Law Question 42 Verbal Agreements Controlling Negotiable Instruments 42 43 Periis of the Sea Judges by Election 44 Judicature Commission.. 44 Solicitors in Bankruptcy Swearing the Petitioning Credi tors Damages between Vendor and Purchaser of Real Estate ELECTION LAW Notes of New Decisions. ESTATE AND INVESTMENT JOURNAL: Stock and Share Markets Public Companies Reports of Sales.. SOLICITORS' JOURNAL: Notes of New Decisions Court of Exchequer-Entry of causes at the assizes. Christchurch County Court-Our invaders Joint-Stock Companies Winding-up Acts... Creditors under Estates in Chancery. Creditors under 22 & 23 Vict. c. 35.... Unclaimed Stock and Dividends in the Bank of England THE BENCH AND THE BAR: Calls to the Bar Court of Queen's Bench. The Barristers of the Temple and their Votes MAGISTRATE AND PARISH LAWYER :— Court of Aldermen REAL PROPERTY LAWYER :- JOINT-STOCK COMPANIES LAW JOURNAL:- MERCANTILE LAW:~ Associated Chambers of Commerce Notes of New Decisions. MARITIME LAW Notes of New Decisions............ LAW STUDENTS' JOURNAL:- VOL. XLVIIL-No. 1890. A CORRESPONDENT writes to us, and makes what 47 47 47 WITH reference to a defect in the summary THE Chinese have long been subject to a terri- NISI PRIUS SITTINGS. Ir probably may have occurred to some of our are strictly limited in their duration, and cannot readers as strange, that the Nisi Prius sittings result is, of course, that not half the cases are continue beyond a certain number of days. The tried, and that the rest are made remanets; that is, stand over until the next sittings, perhaps until the next after that. Thus a case may be in the paper the greater part of a year after it is ready for trial, to the infinite injury and vexation of suitors. In all cases the delay of justice is an injury, it often leads to its total Witnesses die, or go abroad; and even failure. if examined on commission, such examinations are poor substitutes for oral evidence. Morethe memory of witnesses is subject to decay, over, and, in some cases, their minds are open to indirect influence. Anyhow, delay is an injury, if it is no more than delay, and no one will doubt that it ought to be avoided as much as possible. Now what reason on earth is there why all the cases at a sitting should not be tried before the sitting closes? or why every cause should not be set down for trial as soon as it is at issue? In other words, why should not Nisi Prius sittings be continuous? None whatever, except, indeed, a stupid blunder in a modern statute. 50 ON Saturday last the opening lecture on Hindu, 53 53 In ancient times when the whole court sat at Nisi Prius, of course such sittings could not be held in Term. When under the statutes of Nisi Prius one Judge might sit to try causes, this difficulty existed no longer; and the statute for the More Effectual Administration of Justice 53 English jurisprudence in India, and of the con- in any of the courts-an enactment so entirely overlooked that it has been quite forgotten; and, perhaps, few are aware that a Judge of one court may try causes in another. The effect would be that sittings might easily be continuous, and probably it was intended that they should be; but unfortunately the effect of this valuable enactment was entirely neutralised by the absurd provision (sect. 7) limiting the time for sittings, and enacting that not more than fourteen days after Hilary, Trinity, and Michaelmas Terms, nor more than six days after Easter, shall be appropriated to sittings in London and Middlesex." The effect of this absurd provision is, that the sittings at London or Middlesex can only last twelve days, and after Easter Term only three. The necessary consequence is, that the causes cannot be tried, and have to stand over. Yet there is no reason why the Nisi Prius sittings should not be continuous in the metropolis as at the assizes. It is true that at the assizes the time allowed is often inadequate. And that is another head of the subject which requires the attention of the commmission on our judicature. But, at all events, at the assizes, the time allowed is professedly fixed with reference to the amount of business to be dond, whereas in London it is arbitrarily and absurdly limited. The mischief done is enormous. Baffled suitors, sickened with the law's delays, are forced to unfair compromise, in order to avoid still more disastrous loss. Bankruptcies occur and deprive the honest creditor of his just demands. All sorts of casualties arise which endanger if they do not defeat justice. And all, without the least necessity or pretence of an excuse; all out of mere wantonness and blundering; for such a limitation of the sittings no earthly reason can be assigned. At all events, if there ever were any, it has disappeared. The increase in the number of Judges allows for the continuous sitting of one Judge, if not of three, as Nisi Prius Judges, and the result of one Judge so sitting would be soon to clear the lists and keep them clear. All that is necessary is to repeal that absurd enactment to which we have alluded; and the repeal of which would perhaps be of more practical advantage to the suitor than any other enactment that could be imagined. It is curious how many evils arise from one mischievous regulation. In order to get cases tried sooner than they can be at the sittings, the venues are changed, and causes are carried down for trial at the assizes at Guildford, or Kingston, or Bristol, overcrowding the cause lists at the assizes, so as to render it impossible that the cases can be tried at all, still less properly tried. What can be done with 100 or 150 cases in a week or less? Of course there is a scramble; and most of them are not tried at all, and the rest very unsatisfactorily tried. Moreover, the causes are constantly, from the above reason, tried in the wrong counties. Mercantile causes are tried before country juries, who know little or nothing of mercantile affairs, and agricultural cases are tried before citizens of London, or Liverpool, or Bristol. Everything goes wrong; cases are tried in a hurry by juries who cannot understand them, and Judges who want to get away, and in the result, as already stated, most of the cases are not tried at all. Nothing can be more discreditable or disastrous than the present state of Nisi Prius business. From these causes we have known heavy marine insurance cases tried before a rural jury, to whom it had to be explained what where the different parts of a ship. Under such a system of course when causes are tried miscarriages constantly occur, and the new trial list is crowded, through the bad arrangement of the business of Nisi Prius. One evil produces another, and so a fault in procedure multiplies itself with fatal facility, and causes a constant accummulation of mischief and annoyance. All might be set right simply by repealing those words in the Act of William IV. it is contributing to the solution of the Land Law question in Ireland, articles distinguished by intimate knowledge of the subject, by singular impartiality and freedom from passion and prejudice, marked by a manifest desire to do equal justice to tenant and to landlord, and to suggest rational remedies for a disease which has been first carefully studied. If the question which is now perplexing statesmen were handled in this spirit by other journalists, there would be a better prospect than opens to us at present of a speedy solution of the problem. The facts produced by the Pall-Mall Gazette are so essential to any treatment of the question from the lawyer's point of view, that we must pause in the argument we are pursuing to submit them in a condensed form to our readers. There are two points, says our well-informed contemporary, on which "general and most mischievous misconception prevails in England." First, that all improvements are made by the tenants with his money and by his labour; second, that evictions are frequent and capricious. First, as to improvements; i. e., fencing, clearing, draining, erection of farm buildings, and the Formerly, the peasant was allowed to take and clear a patch of waste ground and build upon it like. a cabin and a cowshed, and then it was cruel and unjust to evict him from that which he had created, or to exact a heavy rent for his own improvements. But the Pall-Mall Gazette, a very liberal journal, and therefore unimpeachable on the score of prejudice, partiality, or partisanship, declares that such a proceeding is now almost unknown. "Of late years," it says, "the chief agricultural activity may very fairly be said to have been on the part of the owners of the soil, not of the occupiers-assuredly not on the part of the smaller occupiers. The practice now on all decently managed estates is for the landlord to make all the improvements (often employing tenant labour, at liberal wages, to do the work), and to charge the farmer 4 per cent. on the outlay-a charge which he is willing enough to pay.... The amount of annual expenditure of this sort now going on on Irish estates would surprise us if the aggregate could be stated." Reference is then made to a docnment before the writer, showing the accounts of three large estates. On these, he says, "in a few years three times the entire rental of the estates has been expended in improving old land and reclaiming new. The rental is about 46,000l., and the regular annual outlay on improvements has been 95001, or one-fifth." Turning then to the reports of the outlay under the Lands Improvement Acts, all of which works are done at the cost of the landowners, it appears that no less a sum than 2,060,000l. has been expended since 1847. 99 "It is not true, then," says our Liberal contemporary, "that agricultural improvements in Ireland are now made by the tenant instead of by the landlord, or at the tenant's cost. The fact is, that the small holders, whom principally we are asked to protect, and whose stories of capricious and uncompensated eviction are chiefly used to harrow up the feelings of unknowing audiences, scarcely ever do or can improve' or lay out. The evidence on this point is overwhelming, and comes from the most unsuspicious sources.' Judge LONGFIELD, also a Liberal and a zealous friend of the Irish peasantry, says: "Most small holders injure their farms (as far as value to the landlord is concerned) rather than mend them by the fences and cabins which they put up and call improvements; and further, the cases are few indeed in which these occupiers do not render back their farms in a worse state than that in which they took them impoverished and deteriorated, not improved. As a general rule, therefore, it may be stated broadly, the small holder makes no outlay or improvement for the law to protect or compensate, and the moderately large farmer needs no THE OTHER SIDE OF THE LAND LAW protection to secure such as he has made; for QUESTION. THE doubt we ventured to express last week whether the alleged grievances of the tenants were such as agitators assert, and if their actual objects were not very different from their declared ones, has been remarkably confirmed by an article in the Pall-Mall Gazette, written, as it is understood, by a gentleman intimately and practically acquainted with Irish agriculture. It is due to our contemporary to acknowledge the very valuable series of articles which he can make his own bargain, and is usually pretty wide awake to his own interests and rights." Secondly, as to the alleged evictions. It is not, perhaps, known in England that the sheriff is obliged by statute to keep a register of all evictions, and none can be made without his intervention. From these official returns it appears that over all Ireland the annual number of evictions is only one in 437 holdings, and of these two-thirds are for non-payment of renta cause which not even the agitators attempt to put forward as insufficient. Lord DUFFERIN, also a Liberal, says: "The result is, that evictions have been effected, on an average, by landlords at the rate of one in every five years on each estate, or one a year over every 10,000 acres of occupied land." "The plain truth is," adds our contemporary, "and no fair man really conversant with Ireland can deny it"... "in most parts of Ireland (we say it with confidence and with knowledge), the notion of ever ejecting a decent tenant who pays his rent scarcely enters into his landlord's head; it is hardly recognised as among the possibilities of landlordism. Usually in nine cases out of ten, if not in ninety-nine out of a hundred, tenancy at will is practically tenancy for life, often even hereditary tenancy, and in instances innumerable tenants are suffered to remain permanently on their farms whom no English landlord would tolerate for a year, who fulfil none of the obligatory covenants of a tenant, who cheat their landlord, scourge their fields, screw their labourers and neighbours, and whom timid, easy, or good-natured proprietors, demoralise the villages in which they live, but in deference to the custom of the country, never dream of turning out. This will be a new view of the matter to English readers, but it is a true one nevertheless." How this "new view" affects the question of Land Law Reform must be considered next week. VERBAL AGREEMENTS CONTROLLING NEGOTIABLE INSTRUMENTS. HAD it been possible to lay down a simple rule that no verbal agreement shall be allowed to qualify or control a written instrument, we should have heard nothing of the numerous cases which have been decided on various states of fact. As it is, it may always be very much a matter of doubt whether a particular written agreement may not be affected, to a greater or less extent, by a contemporaneous verbal arrangement, and we propose to review the decisions on the point as they affect negotiable instruments, and herein we are assisted by the case of Abbey v. Crux, 21 L. T. Rep. N. S. 328. The examination of this question becomes the more important when we find that the learned Judge who presided at the trial of that cause would have admitted the oral evidence which the court held to be inadmissible. The facts of this case are of the ordinary kind in connection with accommodation paper. The oral agreement alleged was that the defendant should deposit with the plaintiff certain securities, that is to say, &c., &c., and four dock warrants for the delivery of certain goods, to be held by the plaintiff, as security for the due payment of the bill, and in case the bill should not be duly paid, that the plaintiff should sell and dispose of the securities, and apply the proceeds thereof in payment and liquidation of the bill; and that until the plaintiff should have so sold and disposed of the securities, the defendant should not be liable for, or be sued upon, the bill. This was the contemporaneous agreement which the court held was inadmissible, and with regard to which Mr. Justice Willes said, "I should be better pleased if the court could see its way to arrive at another conclusion." The Chief Justice's objection to the admissi bility of this evidence was that the agreement went to contradict the written instrument. Mr. Justice Willes said, however, "the words of the agreement here are not contradictory to the contract upon the bill." Mr. Justice Keating said, with reference to the agreement, "This seems to me in no way to touch the consideration for payment, but it creates a postponement of liability." Mr. Justice Byles was clear that it attempted to vary the written contract on the bill. It is then, in the first place, a matter of importance to consider what is evidence contradictory of a written instrument. Would it be justifiable in us to attempt here to settle this question? the The learned editors of the last edition of Roscoe on Evidence shirked the obligation. "It is not intended here," they say at page 14, to attempt the arduous task of reducing to accurate principles the decisions upon admissibility of evidence where a written memo randum exists relating to the same transaction." For our present purpose, indeed, it is only neces sary to inquire whether a negotiable instrument is not to be accepted as absolute in its terms; and the true rule seems to be that where the evidence goes to the consideration for the by the plaintiffs, in order to assist the chief acceptance or indorsement it is admissible; but rities, but he might enforce the bill of exchange against the defendant, and what remedy would the defendant have? Unless we decide for the defendant, we must exclude all consideration of the terms of the contract." We think our readers will fully concur in this view of the learned Judge. He did not, however, feel his ground sufficiently strong in point of law to justify his dissent from the rest of the court. COSTS IN CHANCERY. Two cases have been reported by us lately of and, having regard to those items, that the The other case was reported last week, being In both these cases substantial justice was done to attorneys and clients. PERILS OF THE SEA. "natural causes Ir is impossible to define with perfect accuracy Of course each case depends upon its own taxed. fastening occurred in a land transportation, no With all deference to the American court, we cannot agree with the principle here laid down, that a loss which results from the fact of cattle or goods being on the sea, which could not have happened had the cause occurred on land, is a loss arising from perils of the sea. Further, as to the lighterage, we cannot help thinking that the court was wrong. The insurer would only contemplate such risks of lighterage as would arise, the appliances being reasonably perfect, and it was certainly for the plaintiff to ascertain that the lighters engaged by him or his agents were fit for the purpose for which they were intended. As to the first principle, the learned Judge (Mr. Justice Withey) is express in giving his reasons for holding the loss within the term "perils of the sea.' Because," he said, "the cattle were drowned, which is peculiar to the element on which they were being transported; because they were drowned by an accident which could not have been guarded against by ordinary exertions or prudence, considering the fact that it was the ordinary mode of lightering at that place, which fact must be presumed to have been known to the insurer; because, too, it could not reasonably have been foreseen that there was inherent weakness in the chain; and because, in the absence of explanation by the insurer, it is to be presumed the fright of the animals was caused by something connected with navigation It was a peril of navigation which could not well have been foreseen or guarded against by the carrier." The first point is important, "because the cattle were drowned." The contact with salt water is prima facie evidence of sea damage, and therefore of a peril of the sea, but in the case of goods loaded on board ship that is an intelligible principle, because the ingress of water into the ship is an obvious peril. But if cattle on deck escaped when there was no agitation of the sea, fell overboard and were drowned, it would be a question for the jury whether there had not been neglect on the part of the master. We conceive that the doctrine to be applied to this case is stated in Arnould, 3rd edit. p. 696, "where the loss, whether proximately or not proximately caused by the agency of the winds action of sea water on the subject of insurance, and waves, is merely the natural result of the or of the ordinary wear and tear of the voyage, or might have been prevented by a proper exertion of care and prudence, it is not recoverable as a peril of the sea, nor, indeed, under the policy at all." Mr. Justice Withey says that the accident could not have been guarded against by the exercise of any ordinary care and prudence. That, however, was a question for the jury, and they had found that the insurers were not liable under the policy. The case appears to us to be analogous to a destruction of the bottom of a ship by worms. Mr. Justice Withey said the ordinary course of lighterage was known to the insurer. But it was also known to the assured, and in the case of worms (Rohl v. Parr, 1 Esp. 444) it was held that damage by worms being a common peril in particular seas, the assured ought to secure the ship by copper sheathing. So in lighterage, it was the duty of the assured not merely to accept the lighters provided, but to ascertain that they were fitted to meet an ordinary emergency such as that arising from the restlessness of the cattle. In cases of loss of live stock where the underwriters have been held liable, we find that there has been a distinct action of the elements. For example, in Lawrence v. Aberdein, 5 B. & Ald. 107, where a cargo of live stock was so bruised and lacerated by the violent rolling and pitching of the ship in a storm that they died shortly afterwards on board, in consequence of the injuries thus received, this was held to be a loss by perils of the seas; and the court came to the same conclusion where several horses, in consequence of the labouring of the vessel in a violent storm, broke down the support slings and partitions and kicked each other so severely, that they died in the course of the storm of the injuries thus received: (Gabay v. Lloyd, 3 B. & C. 793.) Now in the case in the Michigan Court, the original cause of the loss was the restlessness business man is now liable to be suddenly seized and imprisoned. Anybody may swear just so much as is necessary, and the order is at once issued. Telling part of the story obtains arrest where the part left out would reverse the aspect of affairs. The unfortunate victim must find on the instant two bondsmen, each worth the reamongst the animals, which the judge assumed quired amount clear of debt, in real estate situated was caused by some matter connected with the in this State, or offer bail in money or other pernavigation. But this was an unfounded assump-sonal property, which it may be necessary to put tion-an assumption in support of which no evi- into the hands of the sheriff. Most men are not dence appears to have been given at the trial. prepared for such an emergency. The alternative In the cases quoted above the cause of injury is the gaol. In any case, before regaining freedom, was unmistakeably the storm. Here, to take an there is to be paid ten dollars, office fees, and proextreme case, the animals might have been bably some extras. A remedy by suit for false incited to insurrection, the master being pos- imprisonment amounts to nothing. It may be tried before the magistrate who ordered the arrest. Our judges cannot sympathise with a suitor whose plea is that their action was inju dicious. It is the experience of the Bar that not one in a score recovers damages. Nothing but a reform of the judiciary can remedy the evil. At present it is a serious occasion of annoyance; it may soon become a powerful political engine. sessed of a fraudulent intent. We do not see how it is possible to go so far as to say that an unexplained accident taking place upon the sca is necessarily caused by the peculiarities of the element. And on this ground we think the entire question was properly left to the jury, and that their verdict for the defendant should not have been disturbed. The breaking of the chain of the lighter raises the whole difficulty so elaborately discussed in Redheaad v. The Midland Railway Company, 20 L. T. Rep. N. S. 628, Ex. Ch. This, however, we need not enter into, although we should be inclined to say that the case we are considering is not within that authority. Nor, we conceive, is it analagous to the case in 5 Bing. N. C. 519, Devaux v. J'Anson, where the supports gave way by which a ship was being supported from a dry dock. In that case the ship was strained in removal, and the injury was not caused by the breaking of the supports. A closer case is that of Bishop v. Pentland, 7 B. & C. 219, where the ship was compelled in the course of her voyage to put into a tidal harbour, and was there moored alongside a quay, the usual place for ships of her burthen. It became necessary, in addition to the usual moorings, to fasten her by tackle to posts on the shore, to prevent her falling over upon the tide leaving her (here the action of the sea comes in); the rope with which she was so fastened not being of sufficient strength broke when the tide left the vessel, and she fell over upon her side and was thereby stove in and greatly injured. It was held, that that was a stranding within the meaning of the policy, which covered "all other misfortunes," &c., and that the underwriters were liable for a partial loss, although the stranding might have been occasioned remotely by the negligence of the crew in not providing a rope of sufficient strength to fasten the vessel to the shore. Devaux v. J'Anson was based upon Carruthers v. Sydebotham, 4 M. & S. 77; Fletcher v. Inglis, 2 B. & Ald. 315; and Phillips v. Barber, 5 B. & Ald. 161, which were held to be "sufficient authority to show that a loss occasioned by the endeavonr to get the vessel afloat from the dock in which she had been repaired, was a loss within the policy." We do not consider that these cases support the ruling of the United States Court, but it is an open question upon which there must necessarily be a difference of opinion. We think under such circumstances, it would have been, better to leave the matter in the hands of the jury, JUDGES BY ELECTION. Ir is an article of the democratic creed that Judges should be chosen by popular election. If any doubt exists in any progressive mind as to the propriety of this process for manufacturing Judges, it will be confirmed by contemplation of the doings at New York in the recent financial duel between Mr. JAMES FISK, jun., and Mr. VANDERBILT. Each of these doughty champions found Judges ready to prostitute their judicial powers for the benefit of the party on whose side they had enlisted themselves, and all the machinery of the law was unscrupulously employed for the purpose both of doing wrong journals loudly complain of so abominable a and protecting the wrongdoer. The American spectacle, but they confess with shame that there is no help for it, for the populace will not voluntarily resign a power that makes the Judges subservient to them, and that practically enables them to set the law at defiance. The New York Tribune now prefers the following further com plaint: James Fisk, jun., has again obtained an arrest. The person arrested had made affidavits in a suit relating to the recent gold speculations. Fisk, jum, and Jay Gould charge him with perjury. Any JUDICATURE COMMISSION. WE observe with pleasure that Mr. WHITMORE, QC., Judge of the Southwark County Court, has been put into this commission, which is reappointed for special purposes, and amongst them to consider the whole County Court system. We are sure that our readers will also be well pleased with so judicious a selection; but it must not be forgotten that Mr. WHITMORE is a metropolitan Judge, and has never been a country Judge; and as there is no doubt that the country business is far more important, varied, and arduous than the metropolitan business, we think it highly desirable that one or two country Judges should be added to the commission. The country Judges have Bankruptcy and Admiralty jurisdiction, which the metropolitan Judges have not, and they have considerably more equity and jury cases. They are far more heavily worked in every way; and they have, generally speaking, this great difficulty to contend with, that they can never adjourn any cases to the morrow or any early day. Some of them travel 10,000 miles in the year, whilst is the metropolitan Judge has no travelling. clear that a metropolitan Judge who has not held a country district cannot fully understand the difficulties which are to be contended with by the country Judges, and we therefore hope that one or more country Judges may be added at once to the commission. Many of the country Judges are men of great ability and experience, and it is almost invidious to name any in particular; but we cannot help suggesting that the appointment of Mr. RUPERT KETTLE, who is one of the LORD CHANCELLOR'S Committee of Judges, and who so recently signalised himself by his arbitration between masters and workmen in the district where he resides; Mr. Serjeant WHEELER, who has had unrivalled opportunities of observ show who may take the affidavit, but this does not authorise the solicitor to swear his own client, except in the case alluded to." Hopkin's case was a motion by the defendant to discharge a writ of ne exeat regno under which the defendant had been arrested, and only dis charged from custody on procuring the usual bail bons. One of the grounds of the motion was the irregularity of taking before the plaintiff's solicitor the affidavit upon which the writ had been granted ex parte. Vice-Chancellor Wood said the irregularity complained of was one of substance, and not merely of form, and it was of so serious a character that the court would not receive or act upon any affidavit taken in that manner. His Honour therefore discharged with costs the writ and consequent proceedings, and refused to put the defendant upon any undertaking not to take proceedings against the plaintiff in consequence of the issuing of the writ. In order to ascertain the principle of the rule we will examine the cases bearing on it. In Re Hogan, 3 Atk. 813, the petitioner had taken all the affidavits before himself, notwithstanding he had been solicitor throughout the cause. The Lord Chancellor said: "If I had known this at the time I would not have allowed the affidavits to have been read." And the report goes on, "At common law it is always objected to and discountenanced, and equally so in equity, from the inconvenience that would arise if such a practice was suffered. For this and other reasons the petition was dismissed with costs to come out of the pocket of the solicitor, who thus very improperly took the affidavits.” In Wood v. Harper, 3 Beav. 290, a motion was made to commit the defendants for the breach of an injunction, and it was proposed to read certain affidavits, which were objected to on the ground that they had been sworn before a Master extraordinary of the court, who acted as clerk to the plaintiff's attorney. The Master of the Rolls rejected the affidavits on this ground. cellor Wood in 1863, in the case of Foster v. The subject was fully noticed by Vice-ChanHarvey, 9 L. T. Rep. N. S. 404. There the plain tiff, who was a solicitor, but did not appear as his London agents as independent solicitors, such on the record, being there represented by swore an affidavit before one of his own clerks, who was a commissioner duly appointed to administer oaths in Chancery. It was held that the affidavit was admissible, the oath having been properly administered. Vice-Chancellor Wood said: "In Hogan's case Lord Hardwicke had noticed the inconvenience which would arise from allowing a solicitor on the record to take affidavits before himself, and had referred to and followed the practice at common law. The principle in the cases at common law was, that attorneys having so great an interest in the suit were not fit persons to administer the ing the working of the County Court system in oaths. Lord Hardwicke referred to other reaall its branches, including Admiralty; Mr. HER- sons; one of these would possibly be that soliBERT, Mr. FALCONER, Mr. WELFORD, Mr. ELLIS the person administering the oath should be free. citors prepared the affidavits. It was desirable that MACTAGGART, or Mr. STONOR, whose judgments The suitor had his right to the unbiassed evidence have been so frequently noticed in our columns, of the witnesses, who had also a right to protec would be of the greatest advantage to the com- tion; but a solicitor, however honest, was not mission. In fact we do not see how the com-likely to point out any favourable error in the mission can be regarded as perfectly constituted, affidavit to the witness, and so to the suitor. From this we see the origin of Lord Hardwicke's rule. In Read v. Cooper, 5 Taunt. 89, and or can be expected to discharge its duties thoroughly, without having one or more of the country Judges of County Courts added to its numbers. SOLICITORS IN BANKRUPTCY SWEAR ING THE PETITIONING CREDITORS. Williams v. Hockin 8 Taunt. 439, affidavits sworn by the defendants before attorneys in the country, who had been legal advisers of the defendants were held admissible, the attorneys not having been the attorneys on The Court of Common Pleas, the record. He knew of A CORRESPONDENT writes: "I notice your remarks on this point, and also the case itself. in both these cases confined the rule strictly Do you think it would be safe to rely on the to the attorney on the record. above decision, after considering Hopkin v. no case which had proceeded on the higher Hopkin, 22 L. J., N. S., 728, Ch., where certain ground of the administration of justice, vi proceedings in Chancery were set aside in con- that the commisioner was a quasi-judicial sequence of the affidavit having been made officer, and must be above suspicion. The rule only instance where a solicitor can swear his tend it. A solicitor's clerk, as regarded a third before the plaintiff's solicitor? I understand the had never been extended, and he should not exclient is in the case of an affidavit " to hold to party, was in the position of a solicitor; he had bail." In this latter case it is distinctly pro-allowed to take the oath of the third party; the conduct of the cause, and would not be vided that the affidavit may be so sworn. The description of persons who may take an affidavit The present case depended only on the ground as given in the new Bankruptcy Act, I would that the commissioner was the salaried agent of say, only shows the status of the person who the plaintiff. It would be introducing quite a new may take an affidavit, &c., as it might have been principle to make the rule extend so far as doubtful whether anyone who was not "a Com- that." missioner to Administer Oaths in Chancery in England." could swear, and the section of the new Bankruptcy Act, and the proposed rules This was affirmed by the Court of Appeal (3 N. R. 98), but only by a single Lord Justice. Turner, L. J., said, that the rule ought to be confined to the solicitors on the record, and their DAMAGES BETWEEN VENDOR AND THE recent case of Engell v. Fitch, on appeal to mortgagee was in possession. He might have gain, because the vendors had not taken the necessary steps to secure the possession. The difference between these two cases is very important as affecting damages recoverable for the breach of a conttact to sell real estate. In Flere v. Thornhill the plaintiff recovered no damages for the breach, but obtained the return of the deposit with interest and costs. Commenting on this case, Chief Baron Kelly observes (L. Rep. 4Q. B. 666) that it decided "simply that under a contract between vendor and purchaser of real estate, the vendor shall not be liable for any other damages, beyond the deposits and costs of investigating the title, when he is unable to perform his contract by reason of his inability to make out a good title. That has been truly called an exception or qualification to the rule of common law (I need not go so far as to call it an anomaly) founded entirely on the difficulty that a vendor often finds in making a title to real estate; not from any default on his part, bat from his ignorance of the strict legal state of his title. That was all that was decided in Fleureauv. Thornhill, and we are far from dissent ing from that proposition in the most extensive terms it can be laid down." On the other hand, in Engell v. Fitch, the plaintiff was held entitled to recover as damages for non-completion of the sale the difference between the contract price and the amount realised on a re-sale by the defendants. It was contended for the latter that a re-sale was not in contemplation of the parties to the contract, and that there was no evidence whereby to estimate the damage sustained. The court were with the defendants as to the fact that the market value was not shown, but they held that the fact that there was a re-sale at the enhanced price was evidence that the market value had advanced to that extent, there being no evidence to the contrary, and no cross-examination on the subject. On the point of principle, the Exchequer Chamber adopt the language of the Lord Chief Justice in the court below, which must now be recognised as the best modern law on breaches of contract of this nature. He says: "There is an obvious difference between the case of a man who. being in possession, and the undoubted owner of real property, is unable to make out a marketable titie, and that of one who, not being owner, but having only a contract for the purchase of real cases of breach of contract is divided into two alternative heads. Under the one those damages result of such breach. In the American the reason apparently that the two heads its violation. In most instances this is: 80." The court, therefore, has done that which, DIGEST OF SHIPPING LAW CASES. Edited by F. O. CRUMP, Esq., Barrister-at-Law. Admiralty Court, 2, 3, 7, 9, 10. Bold Buccleugh, The, 9. Collision-Limitation of shipowners' liability, 1. Rules of sea-Loss of life, 7. Collision in river Thames - Porting helm Cope v. Doherty, 1. Eliza Jane, The, 2. Jurisdiction, 2, 3, 7, 9. Life, 4, 7. Lloyd's Association, 10. Merchant Shipping Act, 1, 2, 4. Rnies of the sea, 5, 11. Sale of ship to repay advances, 8. Zephyrus, The, 4. Limitation of shipownens' liability-A British 2. Collision-Damage to a barge in the Thames Jurisdiction.-The Admiralty Court has jurisdiction in a cause of damage by a foreign ship to a barge in the river Thames under the 527th and following sections of the Merchant Shipping Act. Case of the Eliza Jane, 3 Hagg. 335, adverted to with reference to 3 & 4 Vict. c. 65; An objection to the mode of proceeding is not admissible after an absolute appearance to an action, the defendant's ship having been released on bail: (The Bilbao, A. C., Nov. 3, 1860; 1 Mar. Law Cas. 5.) 3. Jurisdiction of Admiralty Court-Bill drawn for necessaries-Bottomry bond to release ship from arrest and fit her out.-Under 3 & 4 Vict. c. 65, s. 6, the Admiralty Court has jurisdiction to enforce payment for necessaries supplied to a foreign ship, whether on personal credit or not. A firm in London having been drawn upon for necessaries supplied to a foreign ship at the Cape of Good Hope, held that the claim could be enforced against the ship, but that a claim by another London firm for paying a bottomry bond to release the ship from arrest on her arrival at Plymouth, and fit her out for a new voyage, on condition that they should negotiate the charter, and receive the freight to be payable in advance could not be enforced The court is indisposed to stretch a saries supplied on an emergency: (The Onni, A.C. power intended only to secure payment for necesNov. 3 and 23, 1860; 1 Mar. Law Cas.6; 3 L. T. N. S. 447.) 4. Suits for life salvage-Merchant Ship- of the court without the aid of the statute). But 5. Collision between foreign and British ships. 66 6. Definition of necessaries supplied to foreign ship, within 3 & 4 Vict. c. 65, s. 6.-The word necessaries" in this statute does not include all things required for the voyage as contradistinguished from necessaries for the ship itself. The Neptune, 3 Knapp P. C. 94, referred to: (The Comtesse de Fregeville, A. C. June 13, 1861; 1 Mar. Law Cas. 106.) 7. Collision-Loss of life.-Citation in rem issued against a foreign vessel on behalf of the representatives of men who had lost their lives through. collision within three miles of the shore of Great Britain. Extension of jurisdiction by 7th section. of Admiralty Court Act 1861, and Lord Campbell's Act thereby made applicable: (The Borodino, A. C. Nov. 12, 1861; 1 Mar. Law Cas. 155.) 8. Necessaries. According to the Sophie, 1 W. Rob. 369, advances made to supply necessaries to a foreign vessel in a foreign port are the same as necessaries. Admiralty Court Act 1861, s. 5. Where the plaintiff had advanced a sum to an American ship in the port of New Orleans, which was expended on the necessary disbursements of the ship, the court decreed an appraisement and sale of the vessel in order that out of the proceeds the sum might be repaid: (The Masonic, A. C. Nov. 26, 1861, 1 Mar Law Cas. 169.) 9. Maritime lien and arrest of ship.-The 5th section of the Admiralty Court Act 1861 does not take away the jurisdiction of the Admiralty Court in cases of necessaries supplied to foreign ships, given by 3 & 4 Vict. c. 65. Arrest of foreign ship for necessaries supplied at Liverpool; ship sold after the necessaries were supplied. The case stands on the same footing as a claim for wages or salvage. Observations with reference to the Alexander, 1 W. Rob. 294; and the Bold Buccleugh, 7 Moo. P. C. C. 267 (The Ella A. Clark, otherwise the Golden Age, A. C., Feb. 17 and 24, 1863; 1 Mar. Law Cas. 325.) 10. Necessaries-Bottomry-Advances to pay billsto release ship from arrest at foreign port.-Question 1. Collision between foreign and British ships between bottomry bondholders and claimants for |