692

Director-Manager-Payments to directors...... 693

V. C. STUART'S COURT.

H AND AMERICAN STEAM NAVIGATION COM-
ED; WARD'S CASE-

Contributory-Application for shares..............

V. C. JAMES'S COURT.

IFE ASSURANCE COMPANY; BELL'S CASE; STUBB'S CASE; BLEACKLEEP'S CASE; CRAIG'S 'S CASE

company-Winding-up- Claims of policylow computed..

695

697

Declaration of Title Act (25 & 26 Vict. c. 67), ss.

699

699

n Payment of a Call as Affecting the Right to

a Winding-up Order

Retainer

Share Markets.

npanies

Jew Decisions

JOURNAL:

Police Court

ueen's Bench (Ireland)-Pleading-Summons and

Common Pleas (Ireland)-Application to have in-
s enrolled by registrar under 29 & 30 Vict. c. 84
of Costs in Admiralty

d Stock and Dividends in the Bank of England

ck Companies Winding-up Acts

under Estates in Chancery

under 22 & 23 Vict. c. 35

CE AND PARISH LAWYER:

New Decisions

Quarter Sessions

CK COMPANIES' LAW JOURNAL:

New Decisions

700

QUANTUM MERUIT.-Apply to the Incorporated Law LIDDON, surgeon, of Taunton, by whom he has

CRIMINAL LAW REPORTS.
This day is published, price 58. 6d., Part VII, of Vol. XI. of
OX'S CRIMINAL LAW CASES.
Full reports of all the Cases decided by the Criminal
Appeal Courts in England and Ireland, at the Central
Criminal Court, by the Superior Courts, and at the Assizes.
Edited by EDWARD W. Cox, Serjeant-at-Law, Recorder of
Portsmouth.

The Parts and Volumes may still be had to complete sets.
It is the only complete series of Criminal cases published in
England. An Appendix contains a valuable collection of
Precedents of Indictments.

London: HORACE Cox, 10, Wellington-street, Strand.

Law and the Lawyers.

THE Recordership of Bedford, vacated by the death of Mr. KEANE, Q. C., has been conferred on Mr. J. T. ABDY, of the Norfolk Circuit, 199 Regius Professor of Civil Law in the University of Cambridge.

Ir is, of course, premature to speculate on the question who is to be the successor to the lamented Lord Justice GIFFARD, but we cannot help expressing a hope that the Government will on this occasion consider the claims of a gentleman who is by common consent the greatest lawyer in 203 England, and whose qualifications for the office, though a member of the Common Law Bar, no one can dispute. We refer to Mr. MELLISH, who we believe would accept the appointment, 205 although he has declined the more onerous post of a puisne judge.

203

204

205

205

205

20

206

208

208

208

209

209

209

210

210

COURTS:

New Decisions

County Court- Chapel-Bequest in favour

of

211

cs.....

a County Court-Seamen's advance notes.

ol County Court-Seaman's wages-Jurisdiction.

ol County Court-Proof of debt

212

212

ol County Court-Friendly society-Insane member 213

several children.

THE office of Solicitor to the Admiralty and Admiralty Coroner at Portsmouth is now vacant. It is a new appointment, in the gift of the Admiralty, and said to be worth 8001. a year, with relative rank. We believe that Mr. THOMAS COUSINS, solicitor, of Portsmouth and Portsea, will be appointed on Mr. CHILDERS's return to the Admiralty. Mr. COUSINS was admitted in 1854, and has for some time past enjoyed very considerable practice.

THE text of Mr. BARSTOW's letter to the ATTORNEY-GENERAL with reference to Sir H. EDWARDS and the Beverley inquiry, as printed for the House of Commons is this:-"I beg leave to withdraw my signature from so much EDWARDS. At the time I signed that report I of our Interim Report' as relates to Sir H.

did not consider that Sir HENRY EDWARDS had been examined as a witness on the trial of the fore entitled to a certificate of indemnity in petition before Baron MARTIN, and was thererespect of all matters relating to the Parliamentary election, which alone forms the subject of our inquiry."

MR. WM. WILLIAMS, who, as we observe else-
where, has made some quaint suggestions to the
Incorporated Law Society on the subject of the
reform of the County Courts, has urged reforms
in the Court of Chancery which cannot be too
frequently pressed on the Government. "While,"
he said, "I deprecate the establishment of Courts
of First Instance, or the extension of the County
Court jurisdiction, I am fully sensible of the
urgent necessity for reforms in the Superior
Courts, especially in the Court of Chancery,
where, for want of adequate judicial powers,
especially in chambers, the delay and expense
still give most serious and just cause for com-
plaint. These complaints, and the proper reme-
dies for them, namely, the appointment of more
Judges, and obliging the Judges to sit in chambers
for the proper dispatch of a large part of the
judicial or quasi judicial business, now disposed
of unsatisfactorily by their chief clerks, have
been so frequently urged by the council of this
society, that I do no more now than refer to
them, and add the expression of my earnest hope
so as to reform our existing system on the
that these remedies will be resolutely applied,
old and well-known foundations, but that no
attempt will be made to introduce an entirely new

system."

Ir has probably occurred to many of our readers that much trouble and loss would be spared if cases stated by magistrates and the awards of arbitrators were submitted to the parties before they go beyond control. A matter recently before the Queen's Bench, but not worth a report, The Vestry of the Parish of Chelsea v. Evans, illustrates the advantage which would be likely to accrue.

There one of the parties at least evidently intended the magistrate to raise the question whether a certain street was a "new street," so as to come within the operation of the 18 & 19 Vict. c. 120, and 25 & 26 Vict. c. 102; but he did not do so, and the point had to be abandoned.

206 THE death of Mr. Serjt. KINGLAKE on Friday se'nnight at the age of sixty-seven, creates a vacancy in the Recordership of Bristol, and in the 208 representation of Rochester. Bristol is the most valuable recordership on the Western Circuit, and we believe the third in emolument in all 209 England. It has been held, more than once, by law officers of the Crown, among others by the ........209 present LORD CHIEF JUSTICE, and as there appears an to be no professional objection to such arrangement, Sir ROBERT COLLIER may not The deceased Serjeant improbably accept it. was born at Taunton in 1805, the eldest son of Dr. KINGLAKE, a practitioner of great eminence there. He was the first cousin of Mr. A. W. 210 KINGLAKE, the historian of the Crimean war, whose father, a brother of the doctor, was a solicitor practising in the same town. He was educated at Eton and at Trinity College, Cambridge. He was called to the Bar by the Hon. 213 Society of Lincoln's-inn in 1830, and joined the Western Circuit, where he speedily obtained a considerable practice. He was raised to the rank of a serjeant-at-law in 1844, and in 1849 214 received a patent of precedence. He was ap215 pointed Recorder of Exeter, and thence he was promoted to the Recordership of Bristol. In 1857 he was elected for Rochester as a Liberal, and has continued to represent that place to the also a deputy 216 time of his death. He was Somerset. lieutenant and magistrate for not THE monster Bill, consolidating and amending A career so singularly successful was the result of any remarkable ability, for he the entire law relating to the mercantile marine, was distinguished neither for eloquence nor for is deferred to next session. Mr. LEFEVRE would profound knowledge of the law; but he was gladly have carried it through at once, but rightly looked upon by the attorneys as a safe having notices from many members that they man. He got up his cases with extreme care intended to criticise it in committee, its withand untiring industry; and, although remark-drawal was unavoidable. We cannot contemably slow of apprehension, when he had fairly mastered the points of his case, no man clung to ertisements specially ordered for the first page are them more tenaciously, or fought his battles more sturdily. In Parliament he failed entirely, ed one-fourth more than the above scale. as so many successful advocates have failed ertisements must reach the office not later than clock on Thursday afternoon.

We believe that cases stated by Election Judges for the Common Pleas are submitted to counsel on both sides; and in the Bristol petition one of the counsel stated that in an arbitration in which he had been engaged it was agreed that the arbitrator, before finally We certainly think that making his award, should give a copy of it to either side to look at. this practice might be extended with advantage.

plate a possible session in which such a huge volume as is this Bill could ever be converted into law if it is to be seriously canvassed in committee. Consolidation Bills must, we fear be taken by the Legislature in reliance u

OL. XLIX.-No. 1424.

the ability and honesty of the persons employed to frame them, trusting to future amendment, if upon trial they should be found defective. Consolidation of the law, universally demanded by the public and by the Profession, will be rendered impracticable, unless the members of the House of Commons waive their privilege of debate upon the clauses in committee; for a whole session would not suffice for the consideration of every clause separately. And there is no middle path. Either the whole Bill must be criticised seriatim, or it must be accepted as a whole, without discussion of its parts.

ferring to these letters, said that it would be their duty to pay considerable attention to them, and they must ask for what purpose could they possibly have been written. They were very extraordinary letters, and coutained certain expressions which must be weighed with considerable care, and the grand jury must ask what could be the purpose of those letters and expressions. "Although," he said, "it was not wise to send those cases for public investigation unless there were substantial grounds for doing so, on the other hand they must be very careful that they did not let off a person because he was in a superior position in life, as was the case with FRANCE." MR. BRAYBROOK, barrister, and assistant-regis- The grand jury found a true bill. The case was trar of friendly societies, has published a called on on Thursday, Mr. LERESCHE and Mr. pamphlet with respect to legislation on life C. J. O'MALLEY being instructed for the proseassurance. He suggests that in addition to the cution, but the defendant did not appear. Counsel applied to have the recognizances rules laid down by the Bill which has now reached the House of Lords for the Registration estreated, and a Bench warrant issued for his of Accounts, and the Particulars of Amalgama-apprehension, which was done accordingly. tions and Transfers, it should be made incumbent on all existing partnerships for granting life assurances to register under the Companies Act. He further suggests that the powers of investment of assurance companies should be restricted; that the holders of small policies should be enabled, without having recourse to trusts, to nominate their widows or other relatives as the recipients of the sums assured; and that the statutory limitation of the amounts for which the National Debt Commissioners are empowered to grant policies should be altogether abrogated. Mr. BRAYBROOK's pamphlet is full

of useful information.

A STRINGENT examination before admission to the Bar will have at least one good effect, it will preserve the rewards of the Profession for those who pursue it, and we shall not see, as now, men who have been called to the bar without ever reading a law book, merely for the chance of offices which an abuse of patronage may

THE JUDGES AND THE NISI PRIUS

SITTINGS.

one

among the Judges. It ought not to be left to

of

Mo

tha to

of Bo

is not very long, and we thend of a
committee are of opinion, they
jury does not in these cases, gui
and they recommend that for
should be established for the
without a jury, which would
strong to secure the confle
and which should possess
rience, and be assisted by
medical advice. They recom
consideration of Her Majesty's
best mode of constituting
disputed claims for damages ara..
way accidents shall be made fu
which shall have power, if it then
tute an inquiry on the spot."

This is followed by a remrin. dation as to costs, namely, s claimant recovers the company costs, "except when the cu tendered a sum equal to or la recovered, in which case the costs al cretion of the court." Therefore a take away the protection WEL company now has against costs b court, leaving their liability par discretion. This, we conceive. Fr. which is, that notices of claim £ . never consent to. A sensible an to the company within a limited from the date of the accident.

mittee has certainly gone wrong Now we come to a point on V. that should the suggested tribuna continue, but that in the event the present system of unlimited continuing constituted as Las

should be limited to 1000% for fisic

THE alleged objection of one of the learned
Judges to sit for the LORD CHIEF JUSTICE at
Guildhall, only illustrates the mischief of the
system. This reluctance in the Judge of one
court to assist in the work of another, is one of
the ill results of having separate courts at all.
If all were members of one court, there could be
no such feeling. There ought to be only on
court, at all events for suits, whether legal
or equitable, between private parties-one court
comprising all the judges, to do all the work, and
presided over by the LORD CHANCELLOR, to see
that they do it. For another thing this disagree-gers; 5001. for second; and 300
ment illustrates is the necessity for some control.
ling power to regulate the distribution of the work
the disposition of individuals, how far they
shall or shall not assist, and it ought not to be
left to the willing horse to bear more than his
necessary, and in whom can it be more fitly
vested than in the CHANCELLOR, who recom-
doubtedly at the head of the judicature.
mends the Judges for appointment, and is un-
late unseemly dispute shows conclusively.
That some such authority is necessary, the
Judicial differences ought not to be left to be
adjusted by an appeal to the newspapers. Into
the merits of the dispute we do not presume to
enter; especially as.we have no regular means of
knowledge about it. No one knows for instance

liberty to effect insurance with to tinction in the two cases? E addition. But why should ther desirable to fix a limit, it should have power to give any damage ever be the tribunal. If one

confer upon them, taking the dignities and fair burden of work. Some central authority is tinue the same power in a ju

emoluments which rightfully belong to the lawyer in reality and not in name only It is objected that thus we shall exclude from the Profession many men who bring to it social

status; but the facilities now offered in

seems as if the committee conte

new tribunal would be appointed standing that it would not give m and a proportionate amount in tribunal would look too much like. The plan would never satisfy the think it would stand a chance of 5judiced in favour of companies. ever its discretionary powers. Board of Trade power to appa We observe that it was proposed

troduce at least as many who dishonour it. It is hard upon those who have industriously pursued their profession to see its honours and emoluments its revising barristerships, recorderships, commissionerships, and such like, bestowed upon men who have been called with no other object but to pick up what particular judge it was who declined to sit. Majesty's counsel president of the

these waifs and strays, and who have never held a brief. It is almost more hard to bear to find the work, small as it is, made smaller still by the prosecution and other briefs that can go by favour, being handed to men who have no claim but local influence, and who thus spoil the fortunes of the working barrister without any chance of substantial benefit to themselves. These appear to us to be the principal advantages that will result from the proposed compulsory examination, and they can scarcely be over

estimated.

THE Irish Times states that a measure effecting considerable changes in the Irish judicial staff is in contemplation. Returns are being obtained on which to base it. These returns are required to state the days on which the different Judges sat, the number of cases heard, and the time occupied in their disposal. It is proposed, according to rumour, to reduce the number of the

common law Judges from twelve to eight, at

which number they stood at the Union, and to

diminish the circuits to four. "The Admiralty Court will," it is added, "be probably merged into another, as will also the Landed Estates Court, and that of Bankruptcy will be placed on a new footing. The Vice-Chancellor's Court, though of recent creation, is likely to be dispensed with."

WE are sorry to perceive that a charge similar to that which has recently been a metropolitan scandal, has been preferred against a well-to-do merchant in the north. The name of the

accused is FRANCE, and he is a wine merchant of Prescot. The charge of committing an abominable offence appears to rest, a8 in the London case, on certain letters written by him. In charging the grand jury, the chairman of the Kirkdale sessions, re

Judge himself and the LORD CHIEF JUSTICE, and
There are only two persons who can know, the

we have had no communication with either of
them. Into the merits of the question therefore

we do not enter. The incident has indeed little
interest to our minds except as an illustration
of a bad system and a vicious state of things.

With a united judicature, a central controlling
power, and permament Nisi Prius sittings, we
should hear the last of arrears thrown over the
Long Vacation, and Judges refusing to give up
their exemption under an Act of Parliament.
No such Act of Parliament could under such
circumstances continue to operate, and would be
repealed. The little incident to which we have
referred is a strong argument in favour of pass-
ing the Judicature Bill as rapidly as possible.

THE SELECT COMMITTEE ON RAILWAY
COMPANIES.

THE Committee appointed by the House of
liability of railway companies for accidents
Commons to investigate the subject of the
make recommendations to which some objec-
tion may fairly be taken. In the first recom-
thus:-"We recommend that, on the one hand,
mendation there is assuredly an error. It runs
railway companies should be absolutely respon-
sible for all injuries arising in the conveyance of
passengers, except those due to their own negli-
gence; and that, on the other hand, the liability
of the railway companies be limited within a
maximum amount of compensation for each
class of fares.' Must we read "irresponsible"
for "responsible," or is the word "their" to
apply to the passengers?

This recommendation is followed by one
which proposes to change the tribunal before
which actions for negligence against railway
companies shall be tried. The recommendation

HINDE PALMER, Q. C. voted in its i tunately that amendment was lost

We write somewhat in the darke THE NORWICH ELECT the new member for Norwich, ground upon which it is said that ⠀ True, it was declared that be fied because he had purchased a counsel was not made public, and at a preceding election, but the what at a loss to conjecture up

based.

in

had been found guilty of bribery There can be no doubt that E his agents, he could not sit; but w carefully at our report of the e and we do not find that Mr. TILLE Norwich Election Petition, 19 L. T. 5) 17 & 18 Vict. c. 102 (The Corrup way brought within the terms ale Vict. c. 125 (The Parliamentary vention Act 1854), or of sect. 45 1868). We may be wanting the only other ground upon which could be objected to as disqualif election influenced the present purchase of the show of hands at possibly reliance was placed on the the Court of Common Pleas in th The Bristol Election Petition. Mr. held to fall within the terms of the of The Corrupt Practices Prevent (17 & 18 Vict. c. 102), by which that "every person who shall, di directly, by himself, or by any other mise, procurement, or agreement a his behalf, make any such gift, l to procure, or endeavour to procur or for any person, in order to induce

bal Be

the

at

Be

hi

i

6, 1870 1

to serve in Parliament, or the vote at an election, shall be deemed bery." Upon that Mr. Justice MITH said that it appeared to him it the test ballot was an endeavour le return to Parliament by means votes, which would place Mr. the head of the poll at the test he added, "it certainly does not oo remote from the return, because id immediate result of being placed of the test ballot was, if not to ction, at all events very greatly to Therefore, it was, as it seems to me, of the Act, an endeavour to procure The simple question in all such ther, in the terms of the Act, the was given to "endeavour to procure of the candidate at the particular Ir. Justice WILLES reduced the the Bristol case to its logical His Lordship said: "If Mr. ROBINot been returned at the head on the test ballot, he could not

THE LAW TIMES.

awarded in admiralty matters, and there is | body to initiate and carry out the reform of our
every temptation to strain a point to get within County Court system.
that jurisdiction. All such inducements should
be removed; the jurisdiction should be consoli-
dated. This view is taken by an associated
committee to which the Incorporated Law So-
ciety has administered very searching interro-
gatories. But whilst consolidating the jurisdic-
tion, the committee are strongly against ex-
tending the limit, pecuniarily or otherwise, being
of opinion that "if the jurisdiction were still
further extended both as regards the nature and
amount of the business transacted therein, the
inevitable tendency would be to break up the
tribunals at Westminster-hall, and to deprive
the suitors of the inestimable advantage of a
large and learned Bar. "This would," they add,
"of course, at no distant period, react upon the
Bench." In the seventh reply of the committee
a doubt is somewhat drily thrown out as to the
capacity of the Judges to administer three juris
dictions at all. "Undoubtedly," they say," the
proceedings would be simplified by requiring
every process, whether equity, admiralty, or
common law, to be in the same form, merely
indicating in the body of the process the precise
subject-matter. This, of course, proceeds upon the
assumption that County Court Judges are all equally
able to administer equity, admiralty, and common
law."

It was suggested to the committee whether the County Courts should be attached to the Superior Courts, and the reply is that it would be desirable to make them subordinate members of one Supreme Court. The committee think

DEFAULT IN PAYMENT OF A CALL AS
AFFECTING THE RIGHT TO OBTAIN
A WINDING UP ORDER.
SIR W. M. JAMES, shortly before he was
appointed a Lord Justice, dismissed a winding-up
petition, presented by a shareholder, on the short
ground that he was in arrear with a call:
With great respect to
(Re the European Life Assurance Society, Weekly
Notes, 9th July, 1870.)
the learned Vice-Chancellor, we think it ex-
tremely questionable whether non-payment of a
While we fully adhere to the
call amounts for this purpose to an absolute dis-
qualification.
view that we have frequently expressed, that
for winding-up companies which are peculiarly
winding-up petitions, and especially petitions
dependent on credit for their success, when pre-
sented without reasonable and probable cause,
should meet with the sternest discouragement;
and while we think that such petitions, when
tainted with sinister motives, should, if possible,
be visited with condign punishment, we think
that the non-payment of a call is by no means
the propriety of making a winding-up order.
conclusive against the bona fides of a petition, or
The shareholder, though in default, is still a
contributory within the 25 & 26 Vict. c. 89, s. 82,
and the interest which he has at stake is not the
less real and substantial.

returned to serve in Parliament at 1; for by the agreement, which is machinery with which we have to f the other two Liberal candidates, other of whom alone could stand in his election, was to retire if he was head of the poll. Therefore Mr. ould not have been returned unless n at the head of the poll, and the aid for endeavouring to place him at the poll." anything of this kind in connection ction of Mr. TILLETT? In any event the bribery at the nomination at a on, if considered as having any effect Mr. Justice MONTAGUE SMITH in his a subsequent election, be deemed too In the Bristol case referred to the purnfluence. "I suggested during the he said, "that Mr. ROBINSON had or that an agent for him had purvotes of 200 electors, with a distinct that they were for the test ballot hat they were free to vote for anybody at the election; such a purchase might er given circumstances, put the purift in order to procure the votes at the system of appeals is unsatisfactory, there being the court regards a petition presented by a peti

66

the head of the test ballot. It would

self, but certainly, as it seems to me, be purchasing the influence of all those nd therefore it would be giving money persons for the purpose of inducing

ideavour to secure the return."

uredly Mr. TILLETT's gifts to a mob to how of hands at one election could not ed as a purchase of influence for a subelection. Everyone agrees with the f the Common Pleas in the Bristol case, uestion whether any lawyer has gone to base an objection to Mr. TILLETT on the grounds to which we have referred.

= E COUNTY COURT SYSTEM.

› way in which Parliament continues to usiness upon the County Courts, it sily be supposed by a stranger that the Court system is no longer on its trial, it is accepted universally as a great For all existing ills affecting litigation, t it works satisfactorily. We may say qualification that this is very far from ae, but whilst it is by no means difficult out defects, it is no simple matter to how they should be overcome. Very as describe the present condition of the -the procedure is clumsy; the business is cases too large in proportion to the power; many of the Judges are too old rwise unfitted for their positions; those who are able and efficient are underpaid, i rule overworked; and, lastly, the scales are framed so unfairly as to discourage ss practititioners from cultivating the

to any extent.

glaring absurdity of the present system the fact that the same court has three a common law side, an equity side, and iralty side. To begin with, all distinctween these jurisdictions should be aboIt should be impossible for a suit to be sed on the ground that it is brought in Ity, whereas it ought to have been a n law cause. At present, as we have out in another column, higher costs are

The petitioner's non-payment of the call does that it is not desirable that the judges of the not appear to us more than a circumstance to Supreme Court should have primary jurisdiction arouse suspicion and call for vigilance on the in matters properly within the jurisdiction of part of the courts. It must be remembered that the County Courts. Then, to take the remain- the presentation of a petition for winding-up is ceeding, and an order when made on such petiit would not be advisable to give precedence tion is one which is intended to operate for the ing views of the committee shortly, they think not to be regarded prima facie as a hostile proto barristers (on which there can now be no difference of opinion), but suggest that fees benefit of all persons interested, whether as allowed to counsel ought to be raised; that contributories or creditors. The maxim "that solicitors ought to be able to instruct one another he who seeks equity must do equity," has, (a most objectionable practice from every point therefore, as we think, no application to the case, of view); that the court fees paid by suitors since a petitioner in theory at least is not seeking ought to be considerably reduced; that the pro-adversely to other parties, but is asking for an cess of the court ought not to be exclusively served by officers of the courts; that the present order which the court will not make except for

great difficulty in getting a judge to state a case,
and no security that it may fully set forth all
the facts on which the parties on either side
rely; they suggest that the judge should send
up his notes (we should pity the court of
appeal); that a power to hear interlocutory
applications should be given to registrars; that
it would be expedient that County Court judges
should more generally act as deputy-chairmen of
and that there is no reason why
quarter sessions;
County Court Judges should not act as recorders
(having more than they can do already).

some

some peculiar and exclusive benefit for himself

the common benefit.

The disfavour with which

tioner in arrear with his calls, arises mainly from the fact that the articles of most, if not all, companies provide that the shareholder while in default shall be disfranchised, losing

in some cases, his right to be present, and in

others his right to vote at any meeting of the company, and that he has therefore disqualified himself from exercising his influence in the manner provided by the constitution of the internal affairs of a company and the question company, it being obviously desirable that the of its solvency or insolvency should be subWe cannot congratulate either the Incor- mitted to and decided by the shareholders themA shareholder invoking the extraorporated Law Society or the committee on the selves. result of the process which they have adopted dinary powers of the court without having for obtaining opinions upon the County Court previously consulted with his co-proprietors, is, system. There is nothing original in the replies we apprehend, bound to show to the satisfaction a course has not been adopted: (Re The of the committee, and we find no valuable sug- of the court, very sufficient reasons why such gestions in either the questions or the answers. We have indicated our objections to some of the Suburban Hotel Company L. Rep. 2 Ch. 737; Coal Company, L. Rep. 8 Eq. 146; 20 L. T. Rep. propositions in parentheses. Appended to these 17 L. T. Rep. N. S. 22; Re The Joint-Stock Mr. WILLIAM N. S. 966.) It is, however, easy to see that questions and answers, however, are remarkable observations by WILLIAMS. He is positively of opinion that if special circumstances may sometimes exist County Court Judges have to try causes in which would justify a shareholder in prewhich men of their own rank in society and with senting a petition without taking the preliminary whom they associate are concerned, their deci- steps which under ordinary circumstances ought tioner's case has been fully heard, it is impossisions will become tainted with partiality! We not to be dispensed with, and that until a petiemphatically condemn this observation as a His has adopted is justifiable or not. scandalous insult to the judgment and inde- ble to determine whether the course which he pendence of the County Court Bench. observation, he adds, "especially applies to the exercise of equitable jurisdiction, in which, notwithstanding the technical rules by which equity is regulated, there is a large field of discretion open to the Judge." This suggestion is really childishly absurd, and its absurdity is the more glaring when subsequently we find its author saying that he believes there could be no advantage in making the County Courts courts of first instance; and that such a change would only result in breaking up a system which, notwithstanding its defects, has made the administration of justice in England the admiration of the civilised world."

We have exhausted the appendix to the report of the Incorporated Law Society, and come to the conclusion that it is reserved for some other

In virtue of the powers given to a shareholder by the constitution of a company, he stands as regards the presentation of a petition in a position different from, and much less favourable than, that of a creditor. We hold, however, that if the difficulties of his own personal position and conduct can be got over, he is not required to make out a stronger case for winding-up than would be sufficient in the case of on the alleged ground of the company being creditor. Take for example a petition presented virtually, though not actually, insolvent, and the court, would justify an order under subwhich ground, if proved to the satisfaction of section 5 of the 79th section of 25 & 26 Vict c. 89, as was admirably explained by Vice Chancellor James in his judgment: (Re Th

Europe Lafe Assurance Sciety, L. Rep. 9 Eq. 127.) It s to me that the very same eviď race, the war depth of virtual ino.vency which would justify an order on the petition of a, creditor would justify an order on the petition of a sharelonder,

SOLICITORY RETAINER.

Canus frequently come before the courts on the subject of "retainer," but the difficulty not,

withstanding is not remedied, solicitors still act without any written authority, and thus often lose the benefit of their trouble after their work is complete. Clients see solicitors, and their cases are taken into court, but when the latter apply for their costs the retainer may be, and too often is, altogether repudiated.

In some instances a special retainer is actualy necessary, as in proceedings in Chancery to obtain money out of court In Plunkett v. Buchanan, 3 B. & C. 736, where an attorney appeared to reverse an outlawry for his client, it was held that he must, in the absence of the party, produce an athdavit of his authority to make the application; and in an action against an ordinary corporation the plaintiff must show

a retainer under scal, Arnold v. Mayor of Poole,

4 M. & G. 860,

Where, however, there is reasonable ground for presuming acquiescence on the part of the person whose name is used, it will of course be equivalent to an express authority; eg, where a female by whom a solicitor was employed to carry on proceedings in Chancery married after the institution of the suit, the husband, who was thereupon made a party, and afterwards received in right of his wife a share of the property in dispute, was held to have acquiesced in the retainer of the solicitor (Atkinson v. Baynton, cited in Merrifield's Law of Costs, 179), and in the common law courts

the same rule has been followed. There are on the other hand cases where a written retainer is not practicable, as in the case of attorneys acting under a general authority for their principals. There the courts, even without the proof of any formal appointment, construe the authority as extending to the defence though not to the commencement of actions: (Wright v. Castle, 3 Morriv. 12). An attorney, of course, like any other agent, may in general be appointed by parol, but he should never dispense with the ceremony of a distinct authority from the client to institute proceedings on his behalf as plaintiff, The omission of this precaution is always at the peril of the solicitor, who has been held liable for costs on dismissal of bill even where instructions have been given him by a near relative of the plaintiff, for distinct proof of the retainer is generally required if it is disputed by the client: (Hail v. Bennett, 2 Sim. & Stu. 783

with that of others in a Chane ry suit, and hal
not taken any steps to repudiate his liability,
did not amount to an implied retainer. So there
is no imched retainer by the intended husband
to pay for his future wife's marriage settlement,
and
yet the custom of the Profession charges
i the costs of and incidental to its preparation
to him, and not to the lady whilst she is
feme sole, and the courts recognise this rule : (See
Helps v. Clayton, 13 W. R 161). But the cases
bear a different light, when, in the absence of any
retainer, the settlement, conveyance, or mortgage
is never completed: as where a plaintiff has sent
title-deeds to an intended lender, at the same
time by parol promising to pay all expenses, and
the lender has given them to his solicitor, but
the negotiation for the loan goes off: (See Pratt v.
Vizard, 5 B. & Ad. 805.)

The case of Rigby v. Daykin, 2 G. & J. 83, is
also worth noticing. B. was desirous of raising
a sum of money upon mortgage, and he employed
an attorney for the purpose, who applied to
A., an attorney, telling him at the same time
the name of his principal, and A. agreed to
advance the money on behalf of a client, but,
ultimately the negotiation failed from a defect of
the title. It was held that A. could not maintain
proved to be the practice for the proposed
an action against B. for his fees, although it was
lender, the course being for the attorney of
borrower to pay the expenses of the proposed
the latter to send his bill to the attorney of
the former, who, if the bill were reasonable, re-
commended his client to pay it.

In Wiggins v. Peppin, 2 Beav. 403, it was held that the retainer need not be in writing, but if the solicitor neglects taking the precaution, and his retainer being afterwards questioned there is nothing but assertion against assertion, he must bear the costs of the risk he thus undertakes; and again, in Donaldson v. Haldem, 7 C. & F. 762, an attorney, who was the ordinary attorney for a borrower, also acted in the matter of a particular loan for the lender, but did not make any charge against the lender for his services. The security he took was not sufficient, and it was held that he was properly charged as an attorney, acting on the retainer of the lender, and was in that character liable to an action of damages for the loss suffered through the insufficiency of the security. Having cited some cases which clearly show how essential it is that a definite arrangement in writing should be made by the client previous to any process being issued by the solicitor, we will point out the general defences which are raised by clients who are pressed by their solicitors for payment, and there is no special retainer. They are, either that the defendant was wholly unaware of any proceedings undertaken by the plaintiff, and that they were without his authority; or, that although he gave his authority for an action, the form in which it was brought was different from the one pointed out and agreed upon by the defendant: (see Tabram v. Horn, ante.) Of course it is most, difficult for an attorney without a retainer to answer either of these defences, and in the absence of his ability to do so, he must abide by the case of Wiggins v. Peppin, 2 Beav. 403, ante, and submit to a nonsuit.

wetted. The mere
enable the stip
not taken out
plaintiffs, obse
on in their th
freight. This
who required par
The negotiations w
carried on as they
difference in amant
actually realised in G
would have realiseft
dried, and reshipped at Liv
considerable sum, and nece
court on the special cae ve
plaintiffs were entitled w
respect of this loss.

The main question, of
the master's right and day.
for the shipowners was to
consideration. As to the fr
of the master, and his duty as
ever his principal would beam.
similar circumstances, thin a
doubt, for, as Chief Justice Coxx
judgment, In every coc
freight there is an implel
part of the shipowner,

any disaster happening to the
the freighter, the master sha
a port where correspondenx an
and use his best efforts for th
preservation of the cargo A
question how far thos ef man
when opposed to the interest of

It appears to have been ta Stowell that a master was bound to sell a cargo rather than allow. IT said, "The master must exerts whether it would be better to trans if he has the means, or to sell it. I t lutely bound to transship. the means of transshipping, he is ... tion to sell, unless it can be sail m an obligation to let it perish:"7 3 Rob. Adm. 259.) But he was apparently, damage to the ship u her unable to proceed, and wh which would result would affec cargo. It would seem an à fe both ship and cargo are damage and the damage to the cargo is the delay necessary for the rep o Here again, however, we find e particular cases governing the arrived at. "It cannot be c Cockburn C. J., "that if a vessa ship a heavy sea and goods of wetted and liable to be damaged still remained in a fit condition toy voyage, the master would be bo the nearest port in order to transs cargo." No one, we imagine, wou In practice a formal authority is rarely given put forward such a contention. Ein any case, but may be proved by circumwould be the other case whic stances, and the conduct of the parties (Lord v. supposes, of a ship being called Kelett, 2 M. & K. 2, per Lord Brougham); but a indefinite time at a port until the written retainer is always more satisfactory, and, condition to be carried on. Thes as observed by an eminent judge, the attorney principle is that a master is not b ought to do this as well for his own sake as for his voyage for the sake of the carg his client's; it is much better for the solicitor, say, he is not bound to go out of hi because he has not then the necessity of proving prejudice his own interest to any his retainer; and it would be better for the This was the view taken by the clients, as it might prevent their being dragged courts in two cases to which we ha into law suits without directions from themable to refer owing to the condition selves." As to what amounts to an implied libraries. Those cases were the S retainer we may refer our readers to a few v. King, 12 Misso. 272, and Sie T authorities. In Cameron v. Baker, 1 C. & P. 268, 1 Newb. Adm. 504. The Court of Q it was held that a defendant was bound by a said, "We entirely agree in the compromise made by an attorney who had been these decisions, although we by m retained by a third party to defend an action to be understood as saying that if a against him (the defendant` but whose authority, port and by a delay of some cotage he had never either recognised or repudiated, significant periol, which woubl pr although he was aware of what was going on. DAMAGED CARGO – THE DUTIES OF the master might carry on the g And in the case of Datum v. Horn, 1 Man & destination it would not be his dagg Rr. 228. A. delivered papers to B, an attorney, NOTARA HENDERSON, 22 L. T. Rep. N.S. 377.) them." We cannot help thinking telling him that she was entitied to an estate, and that she would pay him if she recovered it.” NOVEL points do not always make useful pre ument the court has bestowed cedents but they may, when decided, prove latter instance it is absurd to sup** in supporting that which is obvio B. took the papers saying "that he weald do acceptable guides in the particular business to what he could for her," and without farther which they apply. The case at the head of this shipowner or master would refuse i Commulética Covamsenced an action of ejects, artide is one of Considerable general importance, comparatively insignificant perill ment which de scheerwards abandoned, under the the shert peint being whether a shipaisster is. It would be his duty, and probably a conviction that A had no tite. It was held entitled to carry on care to its destination wait for it. The important point ** that R. acted wriboat dae authority both in when it is damagod, and when the owners offer mister be bound to deliver up a c Commencing and disconti aing the occtment, to soopt it at an intermodate port, paying pe intermediate part because it is lim and was not ertit'od to rent the costs täas mud fright. The facts were that certain Scans owers be itable for not delivering 1* tacurred Asiaa a in dav, Love, 1 Hare 37.. were slipped at Alexandria to be carried to The cargo in Niera v. HoskTAM TIK it was dec dod text tõe mere fact that a party. Glasgow, At Liverpool the ship met with by an excepted per.. Had the p knew that a solottor had used his name pointy ' damage by allika and the beans became diopted the owners of cargo Wils

The law, therefore, seems to be this, that in the absence of a special retainer, the solicitor, to entitle himself to recover his costs, must prove to the jury that the defendant has done some act which amounts to an adoption of his services; and where he has done work and cannot recover from the person who would ordinarily have to pay, he must get a settlement from his own client, who must then in his turn resort for payment to the third party.

SHIPMASTERS.

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