courts. it was unanimously agreed to present a menorial to the Education Department of the Privy Council, requesting that a school board may forthwith be formed within the borough, in pursuance of the Elementary Education Act 1870. Twenty-seven magistrates of the county of Leitrim having signed and forwarded a document to the Lord Chancellor of Ireland, complaining of the recent inquiry by Mr. Coffey, Q. C., into the appointment of Leitrim magistrates as "unsatis factory," being "only of three hours' duration," and not" taken on oath," Lord O'Hagan writes from London in reply, stating that he has satisfied himself of the propriety of the selection, and adding: Such men (as Mr. M Keon and Mr. Maguire) are not to be excluded from the commission of the peace in Ireland if we would teach the people to respect the laws and confide in the equal and impartial administration of justice." CRIME IN THE METROPOLIS.-Lord Shaftes considered as affording ample consideration for and not common to all the people of the realm. MIDDLESEX SESSIONS. REG. v. POTTINGER. A SELF-SUPPORTING GAOL.-The annual report of Mr. Caldwell, governor of the self-supporting gaol of Dunedin, Otago, New Zealand, has just come to hand. It is dated the 26th April, and is for the year ended the 31st March 1870. The following is a summary of this interesting document:-The votes of the provincial council for the year in respect of the gaol department were salaries, 3912.; departmental contingencies, 2210.; tools, materials, horses, &c., 14001.; works and buildings, 501.; total, 7572!. 15s. Of this sum 67017. 10s. 8d. have been expended, leav The Felony Act 1870, s.3—Condemnation in costs. Prisoner was indicted for larceny and receiving. In the course of the trial it appeared that he was possessed of a considerable quantity of goods, and of three leasehold houses. He was found guilty. The learned JUDGE, in passing sentence of nine months' imprisonment, said, "This is a case in which I may fitly exercise the power vested in the court by the 3rd section of the Felony Act 1870, which enacts that it shall be lawful for any court, &c., upon the conviction of any person for treason or felony, in addition to such sentence as may otherwise by law be passed, to condemn such persor to the payment of the whole or any part of the costs or expenses incurred in a court, the prosecution and conviction for the offence of which he shall have been convicted, if to such court it shall seem fit so to do, and accordingly I condemn the prisoner to pay the costs of this prosecution. and showing a decrease of 6831. 12s. in the expenditure, as compared with that of the previous year. The total value of remunerative labour performed by the prisoners during the year was, with miscellaneous items, 7117. 158. 61, being 4161. 4s. 10d. in excess of expenditure on the gaol. This amount is somewhat less than the profit of the previous year, which is accounted for by the fact that during the twelve months the price of every man's labour had been reduced by 1s. per day. That this establishment is fully self-supporting seems to have caused considerable discussion and some surprise among those interested in and connected with prison discipline, not only in this colony and Australia, but in Great Britain and Ireland. Mr. Caldwell, premising that no charge whatever is made for work in the gaol for the purposes of cleanliness and order, or clerical assistance, or for cooks and servants, shows how the above-mentioned result has been obtained in the employment of prisoners in the removal of Bell Hill, containing 21,944 cubic yards of rock, to form a retaining wall in the harbour, and on board the harbour dredge, in a jetty extension, and the erection of a pality of a portion of its sovereign power, if ac- At a special meeting of the Leeds Town Council reclamation wall, repairing streets, &c., trades. cepted by the latter, may with propriety be men's work being accounted for weekly. Every article manufactured or repaired is charged according to the price which the gaol department would have had to pay in the market, or at the rate of 6s. daily for carpenters, blacksmiths, painters, and plumbers; and 5s. for stonemasons, tailors, and shoemakers. The number of prisoners received during the year was 770, including 74 Maories, 19 debtors and 11 reappearances. Of these 542 were males and 198 females. The highest number of prisoners was 187, on the 21st March 1870, and the lowest, 95, on the 18th Oct. 1869. The daily average during the year was 130-51. The average daily number of female prisoners was 995, of whom one-third were employed in washing the prison clothing, and the remainder in making shirts, flannels, and under clothing. Respecting the Maories Mr. Caldwell says, "In accordance with arrangements with the General Government, 74 Maori prisoners arrived on the 6th Nov. 1869, under sentence, 12 of seven and 62 of three years' penal servitude for high treason. Nearly onefourth were not fit for anything like laborious work. The remainder were a powerful body of men, but untrained to regular continuous labour. They were unaccustomed to clothing, but in an incredibly short period appreciated the comfort of the prison dress. They have been employed in the Botanical Gardens, at the High Schools, and in reclaiming streets, at 2s. 6d. per day, and in breaking road metal at 2s. per day, the total amount of their earnings during the five months being 6401. They are well-behaved, industrious, and strongly attached to their chief, Riharo Watone Ngawakataurua, who has a paramount influence over them, which is exercised in behalf of order, regularity, and discipline. There is no race more easily trained and controlled by judicious management. They are very devotional, and attend prayers with much apparent earnestness and sincerity. One of their favourite indulgences is writing to their families and friends in the north. Immediately after their arrival one of the oldest of the hapu died, and since then four more have fallen victims to diseases they brought with them -asthma, disease of the lungs, dropsy, paralysis, and general decline." LOCAL TAXATION-AMOUNT AND INCIDENCE OF RATES.-The report from the Select Committee on Local Taxation, with its accompanying documents, affords a weighty instalment towards that extensive discussion of the subject which may be expected in the session of 1871. The field thus far explored is neither an open plain nor a blooming paradise. It is rather a region of labyrinths and jungles, of thorns and thistles, replete with perplexities and complications. Of all the tangled skeins that Parliament can possibly attempt to unravel, this one of local taxation is perhaps the least encouraging; yet it is by no means the least important, for the local taxation of the country has assumed tremendous proportions in modern times. Sir John Thwaites (so unexpectedly removed by the hand of death) gave evidence before this committee in the month of May, and handed in a document, which, although not strictly official in its character, was prepared by Mr. John Pollard, the clerk of the Metropolitan Board of Works, with considerable care, and may doubtless be taken as substantially correct, being based on government returns, and verified by conference with parochial officers. By this document we are informed as to the amount of local taxation in London for the year ending Lady-day. 1867. It thus appears that the total of the rates levied throughout London for all purposes, including those received by the corporation, and the poor, police, and county rates, as well as those received by the vestries and district boards, amounted in that year to no less a sum than 3,210,5957. If we include receipts in aid of the poor rate we get a still higher amount. We are also told that the costs of collection and other incidental expenses are not in all cases included. On the basis of the poor rate, the formidable sum just cited amounts to 4s. in the pound, or on the basis of the county rate to three farthings in the pound less. Adding 10 per cent for deficiencies, the average tax becomes 4s. 4d. in the pound, on the basis of the county rate, and 4s. 4 d. on the basis of the poor rate. In the absence of receipts in aid of the poor rate the tax in the pound would become still higher. Adding 10 per cent for deficiencies, it would then be 4s. 5d. on the county rate basis, and 48. 6d. on the poor rate basis. The taxation extends over an area of 78,440 acres, having a population, which in 1861 amounted to 2,808,944, and now exceeds 3,000,000. More than a guinea per head may be set down as the average sum which local taxation exacts in each year from every man, woman, and child living in London. Taking the whole of England, the average local tax is 11. Os. 3d. per head. In Ireland the average is only 9s. 2d. Prior to the establishment of free trade Ireland paid about half the cost of its police force. On the abolition of the corn laws the entire charge for the police was transferred to the Imperial Ex 66 | chequer. Sir Robert Peel stating (in_1845) that this was intended as compensation to Ireland for any loss accruing to that part of the kingdom on account of free trade. The amount thus transferred from the shoulders of the local to that of Altogether the Imperial charge for the Irish the Imperial taxpayer is 390,000l. per annum. police is 832,000l. In England and Wales the annual cost of the police is 1,920,000l., of which 1,463,000l. is borne locally. Sir Massey Lopes, when these facts were adduced before the select committee by Dr. Hancock, observed that "Ire. land got some compensation for free trade, while England got none." One of the most difficult questions which came before the committee was in regard to the proportion in which the burden of rates at present falls relatively on owners and occupiers. Many witnesses were examined, and very conflicting opinions were offered." The Chairman of the Metropolitan Board might be supposed a tolerably good authority on the subject of local taxation; but the opinion expressed by Sir John Thwaites on the point just named does not agree with the final conclusion of the committee. The latter say in their report :-"In many cases the burden of the rates, which are directly paid by the occupier, falls ultimately, either in part or wholly, upon the owner." On the contrary Sir John Thwaites, when asked "Do you dissent from the view that ultimately, as the phrase has generally been, the rates come from the pocket of the owner?" replies, "Yes, certainly, I dissent from that." The theory of Sir John is that the rates are paid "not in the shape of rent, or a reduction of rent, but in most cases out of the capital of the tenant, or that which ought to be the accruing capital." The question was put whether, if the burdens of a tenant were lightened by the reduction of rates, the landlord would not take the earliest opportunity of raising the rent? Sir John replied that he thought not, except in those cases where landlords are so wide awake to their own interest as to take advantage of every penny." Such landlords, Sir John seemed to think, were an exception to the general rule, though he acknowledged that this raising of the rent was actually taking place in some cases. A striking instance, in which the rates obviously influenced the rent was alluded to by Sir John Thwaites himself. Speaking of Lowndes-square, he says: "All the houses on one side of the square are in Chelsea, and on the other in St. George, Hanover-square; the one is highly rated, and the other is very moderately rated-As we know. The variation of the rental on the one side and the other is marked undoubted, and due to the fact in a great measure." Sir John thought that the law of demand and supply would interfere to prevent the landlord from regulating his rent by the amount of the rates. He was then asked The price at which a man can build a new house will, to a certain extent, depend, will it not, upon the rates which are to be paid:" Sir John still held to his view, and replied, "It is rather a question of demand." The argument was pressed still more closely, in this form-" Do you think the builders would not go into minute calculations of what returns they would get for their money?" The answer seems almost to settle the question against Sir John, when he says-"A wise builder would hardly go into a parish and commence building a number of houses where the rates were 10s. in the 17.; but that is an extreme case; I am now speaking generally." The draft report prepared by Mr. Goschen, the chairman of the select committee, is itself a remarkable document. It deals with the various points at considerable length, and is much more extended and complete than the report finally agreed upon. The incidence of the local rates is discussed in a section which reads like a chapter on political economy-and rather a long chapter, too. The principle is here laid down that a house is a commodity produced by the builder and "consumed by the occupier." A broad distinction is insisted upon between house property and landed property, regard being specially had to the fact that in the case of the former there are mostly three parties on whom the burden of the rate might fall-namely, the owner of the land, the builder of the house, and the inhabitant of the building; whereas, in the case of landed property there are mostly two parties only concerned-namely, the owner of the land and the occupier of the land. In contrasting land with house property, the farmer stands rather in the position of the builder than in that of the occupier of house. The position of the house occupier corresponds less to that of the farmer than to that of the consumer of agricultural produce. The farmer and the builder alike in making their bargains with the owner of the land which they wish to take on lease, make their calculations with a view to profit. Hence it follows that, in proportion as the charges in the shape of rates or other outgoings are high, they offer to pay a lower rent to the owner. "Thus,' says Mr. Goschen, "as a general rule, both in the case of land and houses, where a fresh agreement is to be made with the 66 a owner of the soil, the whole of the existing rates come out of the pocket of the landlord in the shape of a diminished rent." But in the absence of a fresh agreement, as in the case of a long lease or an unaltered rent, any increase of taxaand the builder, except in those cases where the tion must fall mainly, if not wholly, on the farmer builder has let his house on a long lease to an occupier. It is in the absence of a readjustment of terms that the increase of taxation falls on other parties than the owners of the soil or of the houses. In the interval the farmer and the occu pier bear the extra burden. It is thus remarked that " town property being held under lease much more generally than landed property, the increased burdens which have resulted to occupiers from the bargains made by them to pay all rates, have covered a much greater range in towns than in country." The committee in their report to Parliament do not pledge themselves to the view that all rates should be dealt with in the same manner; but, having made this proviso, they declare it as their opinion-"That it is expedient to make owners as well as occupiers directly liable for a certain proportion of the rates." The mode of doing this is thus shadowed forth :-"That, subject to equitable arrangements as regards existing contracts, the rates should be collected, as at present, from the occupier (except in the case of small tenements, for which the landlord can now, by law, be rated), power being given to the occupier to deduct from his rent the proportion of the rates to which the owner may be made liable, and provision being made to render persons having superior or intermediate interests liable to proportionate deductions from the rents received by them, as in the case of the income-tax, with a like prohibition against agreements in contravention of the law." But if a certain proportion of the rates is thus to fall directly on the owner, the question of administration is affected in the system of representation in the management of local affairs comes up for review. This part of the subject-so closely identified with reforms in local government-would require another article. REAL PROPERTY LAWYER AND CONVEYANCER, NOTES OF NEW DECISIONS. SETTLEMENT-FRAUD ON POWER-LIABILITY OF APPOINTOR AND TRUSTEE.-The donee of a power must execute it so as to vest the thing absolutely for the benefit of the objects of the power; and if there is any indirect benefit to the donee intended to be effected by means of the appointment, it will not stand. The donee of a power executed a deed by which she released her life interest in the subject-matter of the power, and appointed the fund absolutely to one of her daughters, who was one of the objects of the power, and twenty-seven years of age, and about to be married. The deed of appointment was sent to the sole trustee, together with a letter from the appointee, in which she requested him to pay the fund to her mother's account at her bank. The trustee paid the money as requested. With the exception of 600l. paid to the husband of the appointee, the fund was all used by the donee for her own private purposes. Both the donee and the trustee had since died. On bill filed by one of the parties entitled in default of appointment: Held, that the appointment was a fraud on the power, and that, as between the parties entitled in default, the executors of the donee and make good the fund out of their respective trustee, were jointly and severally liable to testator's effects. The estate of the donor to be primarily liable as between the donee and trustee: (Mackechnie v. Majoribanks, 22 L. T. Rep. N. S. 841. V.C. J.) POWER-FRAUD ON POWER-AGREEMENT OF DONEE. Whatever might be the intention of the donor, a power can be exercised only in accordance with, and within the limits expressed by, the deed. And where a power did not authorise a suspension of the enjoyment of the income of a fund, an appointment by which a part of such income was to be accumulated was held void. In considering the validity of an appointment, the court cannot inquire into the motive of the donee, but it can and will inquire into his intention or purpose. And if an appointment, however capricious, were made under an absolute power, it would be upheld, while if an ulterior object existed, conducing to the appointment, it would be set aside. Re Marsden's Trusts, 4 Drew, 594, where an ap " 1.4. 744 Pap 8 11, uporid then, but, the Izada Anne Kak Aybenned. 196. & mod Won, 517; **Bags This inat dengan wan Very wom after this mat, decision the duke Karcuted ken further im vorable appointment of the income and womnity in favour of Lady II. during the poot bren of herself and Lady M. The prantsupit was then instituted to wet the me #tgrandments aside, the bill charging that this was only a freshe attempt to effect the object of Alus forms* mpgrantments James, V.C, took this view, wud de rond the appointments void, wood on append it was held, that although Lady It was not aware of the new appointments until after they were mode, and no understanding bad been previously coms to between her and the dudes, the court will require el-arest, evidenca Bunk the appointes is sutirely freed from all actual and mal oldigation to apply the fund According to the earlier appointment, and in the Abance of such evidenes will act aside the later Instrument The derion of James, V.C, was therefore withemed Per Giffard, 1, J., where an Appedutimeant such as those of Dee, 154 have bom met mande, no new appointment by the same appedutor to the same appointed can stand, un wurm the protein aturwar's tenate vented, to this agreement: Heid (affirming the decision sease from Terre pelaa." #pervening spc and EVIDENCE OF NEGLIGENCE-FALL OF A BRICK FROM A BRIDGE ON A HIGHWAY.-Whilst the plaintiff was passing along a highway under a girder railway bridge belonging to the defendicular brick wall with pilasters, a brick fell dants, which rested on one side on a perpenfrom the top of one of the pilasters on which a girder rested, and caused personal injury to the In an action against the plaintiff. A train had passed over the bridge immediately before. how the effect and lollicone of the previous between plaintiff and defendants, by which, in railway company, the jury having returned a ****ngement ram be proved to have boon Bo verdict for the plaintiff, it was held (per Cockburn, C. J. and Lush, J., dissentiente Hannen, J.), that the falling of the brick was under the circumstances of itself prima facie evidence of negligence on the part of the defendants in keeping the bridge in a proper state of repair, was sufficient to sustain the verdict. Per and, in the absence of any evidence to rebut it, Hannen, J.-The mere proof of the brick having fallen, was not sufficient evidence of negligence on the part of the defendants to be left to the jury; (Kearney v. The London, Brighton, and South Coast Railway, 22 L. T. Rep. N. S. 886. Q.B.) WINDING-UP-PROOF.-A., a partially secured creditor, proved in the winding-up of a company for the amount of his debt, less the value of his security. Two years later it was decided in Kellock's case, 18 L. T. Rep. N. S. 671, that under such circumstances a creditor was entitled to prove for the whole amount of his debt without deducting the value of his security. Four years after proving for his debt A. took out a summons for leave to readjust his claim so as to prove for the whole amount of his debt without deducting the value of his security: Held, that he was entitled to do so, notwithstanding the lapse of time, and that his claim must be referred to chambers for readjustment, but without disturbing dividends already paid: (Re Barned's Banking Company, 22 L. T. Rep. 895. M.R.) AMERICAN LAW AFFECTING ENGLISH THE following recent additions to the insurance FOREIGN FIRE COMPANIES. ing different apportionments of the same loss; In some hundred pages Mr. Hore discusses various propositions carefully and ably. His arguments he sums up in "concluding remarks," which alone are sufficient for quotation in this place. We extract only so much as relates to the mode of dealing with the average clause, which stands at the head of this paper. Sect. 1. It shall not be lawful for any insurance company or association, created by, or organised under, the laws of any foreign government, other than the laws of this Union, or for any partnership, association, firm, or individual of such foreign government, or for any agent or agents of such foreign company, association, partnership associa tion, firm, or individual, to make contracts of assurance, or expose such company, association, partnership, firm, or individual to loss in this State, in any one risk or hazard to an amount exceeding ten per cent. of the value of the securities "I demonstrated in chapter I.," says Mr. Hore, deposited by such company, association, partner- "that if we adopt a scientific and logical intership, firm, or individual, with the several insur-pretation of the contribution clause, and one which ance or other departments of the States of this will on all occasions yield strictly equitable reUnion, and 10 per cent. of the net assets in the sults, the word rateable in that clause must be hands of trustees resident in, and citizens of, any treated as referring to the amount of the liability of the United States, subject at all times to the of the respective offices upon the ascertained loss, approval of the insurance commissioners of this and not to the possible liability upon the sums State, for the general benefit and security of all assured.' At the same time, however, I submitted policy-holders residing in the United States, considerations which suggest the expediency of the which shall be immediately available for the pay offices disregarding this logical interpretation of ment of losses in this State. Nor shall it be lawful the contribution clause, in cases where specific for any such foreign or other insurance company, concurrent policies only are interested, and of association, partnership, firm, or individual, their leaving the old rule in regard to such cases directly or indirectly to contract for, or effect, any undisturbed. This is a matter which concerns reinsurance of any risk on property in this State the offices only. In strict point of law, a mere taken by such company, association, partnership, agreement between the companies, in any case, to firm, or individual, with any insurance company, act upon a certain understood interpretation of association, partnership, firm, or individual not the contribution clause, would not be binding upon authorised to transact the business of insurance the policy holder; but no opposition on the asin this State, in accordance with the laws thereof. sured's part to any interpretation which the offices Sect. 2. All foreign insurance companies, assomay adopt, can possibly be anticipated, provided ciations, partnerships, firms, or individuals, that indemnity is secured to him thereby. A whether incorporated or not, transacting the claimant, naturally, will not trouble himself as to business of fire, marine, or life insurance, or any the respective contributions of the offices inother kind of insurance in this State, shall make terested, if those contributions, in the aggregate, full annual statements of their condition and equal his loss. affairs to the insurance department in the same Chapter 2 commenced with my reasons why the old interpretation of the word manner, and in the same form, without erasure or 'rateable' in the contribution clause should be addition (except necessary explanation), and sub- disregarded in all cases, except those in which ject to the same liabilities as similar companies or specific concurrent policies alone are concerned. associations organised under the laws of this In view, however, of the difficulty of otherwise operation of an unscientific principle shall be condrawing a clear boundary line, within which the fined, I have thought it best to suggest that the amounts of the policies shall only be treated as the measure of interest, when specific concurrent policies alone are concerned; and that in all other cases the liabilities (def. 3) of the policies shall be taken as measures of interest in a loss. In all cases where the policies are non-concurrent, and where losses have occurred in two or more ranges, the recognition of a second principle is necessary, viz., that a policy's liability applies proportionally to the various items of the loss covered, -a principle which has been very fully discussed in Arts. 25 & 26. add here to the numerous arguments which have I am not going to already been advanced to prove the soundness of this principle. I wish merely to glance at the practical difficulty there will be in establishing it, arising from the fact that it might entail a loss upon the assured, in cases where the old rules would have protected him from loss. On this point I would remark that the old rules are of an admittedly arbitrary and empirical nature, and that their operation should be altogether disregarded in considering the merits of any new system; also, that the old rules (as in Examples 22, 24, 26, and 27, for instance), if strictly adhered As we briefly noticed in our review column last to, would cause a loss to the assured, in cases week, Mr. Hore has written a short treatise on where my rules would protect him from loss. The this and analogous clauses in policies, and he question to be decided is, whether the proportional mentions that Great differences of opinion application of a policy's liability to the various exist as to the proper manner of giving effect to it items of the loss covered is, or is not, equitable. in cases that frequently occur, where policies, of I am sure that no one will deny that it is so, widely different ranges and [or] conditions, become if they give due consideration to the arguments I jointly interested in one loss. Rules (made by the have advanced regarding it. I have demonstrated offices from time to time) exist for the regulation beyond the possibility of doubt that this princiof apportionments, but they are all, more or less, ple is inherent in all average policies-a class of of an empirical nature. In many cases they give insurances that are thoroughly equitable-and, as anomalous and inequitable results; frequently there is no condition in a specific policy which its they are interpreted by different offices as justify-recognition would be a violation of, I do not see State. Sect. 3. In case of neglect or refusal to make such annual statements, as provided in the preceding section, all persons acting in this State as agents, or otherwise, in transacting the business of insurance for said companies, associations, partnerships, firms, or individuals, shall be subject to the same penalties provided by law in case of the failure of any insurance company or association organised under the laws of the State, to make an annual statement as now required by law. Sect. 4. Any violation of the provisions of this Act shall subject the party guilty of such violation to a penalty of 500 dols. for each violation, to be sued for and recovered in the manner provided for the prosecution and recovery of penalties prescribed by the insurance laws of this State. THE APPORTIONMENT OF LOSSES ON There is generally included in fire policies a clause to the following effect:-" In case of the existence of any other insurance or insurances on the property covered hereby, this company shall be liable only to pay a rateable proportion of any loss or damage which may be sustained along with the office or offices interested." why it should not be admitted as sound when applied to all policies. Indeed, it may be argued that a policy's liability (def. 3) applies proportionally to the items of the loss covered, according to the implied, if not according to the expressed conditions of the contract. Recognising this principle would not deprive a specific policy of an average policy, and which places its holder that remarkable feature that distinguishes it from in such a superior position to that he would be in if he held an average policy instead. But it may be objected that, manifestly equitable as is the principle for which I plead, the old practice being inconsistent with it might possibly render its adoption illegal. This is a moot point, which nothing less than a law-suit would settle. But the simplest way of removing the difficulty, in case it is desired to remove it, would be to introduce in the printed conditions of the policy a clause providing that-in case of any loss by fire to property insured hereby, the liability under this policy arising out of such loss, shall apply proportionally to the various items of the loss. To treat a policy's liability in the manner I suggest would never prejudice a claimant whose insurances have been wisely arranged; and the most effectual way in which the offices could command attention to the advice, always given to insurers, as to policies covering the same property being concurrently worded, would be to make the claimants interested, pecuniarily, in the observance of such advice. The adoption of my system would, of course, leave undisturbed the right now enjoyed by the offices to protect, partially or altogether, the claimant from the legal consequences of ignorance, oversight, or carelessness a right which some people think is too often exercised with unwise liberality. But in the case of a loss under non-concurrent policies, where the correct apportionment would show the assured to be a sufferer to a greater extent than he would have been, had his policies been wisely arranged, the proper principle to work upon is, to adopt the legal apportionment, and to leave payments in excess to the discretion of the respective offices: in other words, to keep the payment made in discharge of a legal obligation distinct from that made merely in discharge of a moral or sentimental obligation. Neglecting to act on this principle, and establishing rules, which in some cases give to claimants, as a right, that which they are not legally entitled to, and which frequently make one office pay more, and another less, than they legally owe, must be attended with pernicious consequences. If, however, the proverbial generosity of the insurance companies should prevent their adopting a principle of apportionment which might possibly make a claimant bear part of a loss, to cover which he held an unexhausted specific policy, the principle of the proportional application of such a policy's liability to the items of loss covered might be admitted, as between the officers themselves, with the understanding that it was to be departed from in cases where the insured prejudiced by it, but only to the extent necessary to give him the maximum amount of benefit possible under his policies. Such a departure from sound principle would, however, be practicable only in the case of specific policies. We must treat the liability of an average policy as applying proportionally to the items of loss covered, unless we are prepared to admit the absurd proposition that a fire in the Londor Docks might possibly create insurance against a simultaneous loss in the East India Docks, to an extent that would not otherwise have existed." was Mr. Hore's arguments are worthy of perusal. He is a strong and clever advocate for the extended use of the average principle in the practice of the English companies, and he hopes "to see the time when all the policies issued in clause." this country will contain a simple pro rata MERCANTILE LAW. NOTES OF NEW DECISIONS. BILL OF EXCHANGE-FOREIGN BANKERSREPRESENTATION BY DRAWERS - EQUITABLE ASSIGNMENT.-A bill of exchange, drawn by the Bank of New Orleans upon the Bank of Liverpool, was purchased by the plaintiffs upon the faith of a representation that there would be a balance in the hands of the latter bank applicable to the payment of the bill at maturity. Between the purchase of the bill and its being presented for acceptance the Bank of New Orleans suspended payment. The Bank of Liverpool refused to accept or pay the bill, although they had in their hands sufficient funds belonging to the New Orleans bank to meet the payment. Held that the plaintiffs were entitled to be paid what was due to them upon the bill, with interest at five per cent.: (Thomson v. Simpson, 22 L. T. Rep. N.S. 898. V.C. s) LAW STUDENTS' JOURNAL. ANSWERS TO THE FINAL EXAMINATION QUESTIONS. (a) EASTER TERM 1870-SECOND DAY. VI. BANKRUPTCY AND PRACTICE OF THE COURTS. 56. Trader-Who is exempt from definition of. The schedule of the Bankruptcy Act 1869, provides that a farmer, grazier, common labourer, or workman for hire, shall not, nor shall a member of any partnership, association, or company, which cannot be adjudged pankrupt under the Act, be deemed as such a trader for any purposes of this Act. 57. Time of act of bankruptcy.-The act of bankruptcy must have occurred within six months before the presentation of the petition: (sect. 6, 1869 Act.) in the pound has been paid, or that a special resolution of his creditors has been passed, to the effect that his bankruptcy, or failure to pay 10s. in the pound has arisen from circumstances for which he cannot justly be held responsible, and that they desire it should be granted, and it will not be delivered out until the time allowed for appeal has expired, or in case of appeal until after the decision of the court of appeal thereon: (sect. 48, rules 140 to 142.) When the debtor makes up the dividend to 10s. in the pound subsequent to the bankruptcy, he must file a statement verified by affidavit of the sums so paid or tendered, and when and where paid; and attach the receipts thereto : (rule 172.) 66. Status of undischarged bankrupt. -1. No portion of a debt provable under the bankruptcy can be enforced against his property for three 58. Creditor holding security-A petitioning that time if he makes up the dividend to his crediyears from the close of the bankruptcy, and during creditor. He cannot, unless he states in his petitors 10s. in the pound, he may apply for his order tion that he is willing to give up his security, or of discharge. 2. At the expiration of three years, gives an estimate of its value, in which case he if he has not obtained an order of discharge, any may petition in respect of the balance, if sufficient; balance remaining unpaid in respect of any debt but he must give up the security, if required by proved in such bankruptcy (but without interest in the trustee, within two months of adjudication at the meantime), shall be deemed to be a subsisting such estimated value: (sect. 6, 1869 Act, rule 177.) debt in the nature of a judgment debt, which, sub59. Proof of debt.-Proof may be made by the ject to the rights of any persons who have become creditor, or by his agent or clerk, if he state in his creditors of the debtor since the close of his bankaffidavit that he is authorised to make it; that it ruptcy, may be enforced against any property of is within his own knowledge that the debt was the debtor, with the sanction of the court which incurred for the consideration stated, and that to adjudicated such debtor a bankrupt, or of the the best of his knowledge it is still unpaid and court having jurisdiction in bankruptcy in the unsatisfied (rule 68) or by his proxy (par 8, sect. 80). place where the property is situated, but to the A company or corporation may prove by an agent extent only, and at the time and in manner directed authorised under its seal, according to the form by such court, and after giving such notice and 34 in the schedule (sect. 80 and rule 69), and in the doing such acts as may be prescribed in that becase of a bankrupt creditor the trustee may prove. half: (sect. 54, 1869 Act.) 60. Discovery of bankrupt's estate. On application of the trustee any time after adjudication the court may summon before it the bankrupt or his wife, or any person suspected of having in his possession any of the estate or effects of the bankrupt, and require him to produce any documents in his custody, or property relating to the bankrupt; and if any person so summoned, after having been tendered a reasonable sum, refuses to come, the court may by warrant cause him to be apprehended. The court may examine him on oath, orally or by interrogatories: (sects. 96, 97, 1869 Act.) 61. Creditor-Misdemeanor.-If any creditor in any bankruptcy, or liquidation by arrangement, or composition with creditors, in pursuance of the Bankruptcy Act 1869, wilfully, and with intent to defraud, makes any false claim, or any proof, declaration, or statement of account which is untrue in any material particular, he is guilty of a misdemeanor, punishable with imprisonment not exceeding one year, with or without hard labour: (32 & 33 Vict. c. 62, s. 14.) 62. Right of landlord for rent.-A distress for rent levied after the commencement of the bank ruptcy is available for only one year's rent accrued prior to the date of the order of adjudication, but the landlord may prove for any overplus of rent due (sect. 34.) If the adjudication is made between two days of payment of rent, the person entitled may prove for a proportionate part to the date of adjudication: (sect. 35, 1869 Act.) 63. Privilege of Parliament.-If persons having privilege of Parliament commit an act of bankruptcy they may be dealt with under the Act as if they had no such privilege (sect. 120); and if members of the House of Commons, they will be incapable of sitting and voting for one year from the adjudication, unless the order is annulled, or creditors paid or satisfied (sect. 121); in default of this being done, the court certifies the same to the Speaker, and the seat becomes vacant: (sect. 122, 1869 Act.) 64. Declaration of a dividend.-The trustee from time to time, when the committee of inspection determines, declares a dividend amongst the creditors who have proved, and in the event of not doing so for s'x months, he must summon a meeting of the creditors and explain to them his reasons for not declaring the same: (sect. 41.) Reasonable notice of the intention to declare a dividend must be given by the trustee to such of the creditors mentioned in the bankrupt's statement, as shall not have proved, and the notice must also be gazetted (rule 131), and notice of the dividend when declared must be gazetted and sent to each creditor who has proved, stating amount and when and where payable: (rule 132.) 65. Order of discharge.-May be applied for when a bankruptcy is closed, or at any time during its continuance, with the assent of the creditors testified by a special resolution (but not until after passing his last examination) at a meeting summoned by the trustee for the purpose, at the bankrupt's expense, the bankrupt files his application with the registrar, who thereupon fixes time and place for the hearing; notice of this is gazetted and is also given to the trustee by the bankrupt twenty-one days before the day fixed, the order will not be granted unless it is proved that a dividend of 10s. (a) The questions will be found, ante p. 15. 67. Settlement of property by trader.-Although made within two years of bankruptcy is not void if made before, and in consideration of marriage, or made in favour of a purchaser or incumbrance, in good faith and for a valuable consideration, or made on or for the wife or children of the settlor of property which has accrued to the settlor after marriage, in right of his wife: (sect. 91, 1869 Act.) 68. Proceedings by composition.-The debtor presents a petition to the proper court with affidavits annexed, according to the forms in the schedule to the rules (Nos. 106 and 107), and a general meeting of his creditors is summoned by the registrar on a day within one calendar month from the presentation of the petition, to be held at the place mentioned in the affidavit filed with the petition. A sufficient number of forms of notice, duly signed, addressed and stamped for post, must be delivered to the registrar together with a request and list of creditors, and each request must tear a stamp calculated at 3. for each notice required to be sent. The registrar seals with the seal of the court the notices, and posts them fourteen days before the meeting, and the debtor delivers to the registrar a notice of the meeting to be inserted in the Gazette seven days at least before the same is held. The debtor must obtain an extraordinary resolution which is one passed at such meeting by a majority in number and threefourths in value of the creditors present, and confirmed by a majority in number and value of the creditors present at a subsequent general meeting (sect. 126, 1869 Act.) 69. Statement by debtor on composition.-He must produce one showing the whole of his assets and debts, and the names and addresses of all his creditors: (rule 274.) 70. Composition debts under 101. - Creditors whose debts do not exceed 107. in value are reckoned in value but not in number, for the purposes of a composition under the 126th section of the New Act. VII. CRIMINAL LAW AND PROCEEDINGS 71. Conspiracy.-A conspiracy is a combination or agreement between two or more persons to carry into effect a purpose hurtful to some individual, or to particular classes of the community, or to the public at large; though this is subject to an exception in the case when the purpose is a felonious one and actually accomplished; the offence of conspiracy (which is a misdemeanor only) being then merged in the felony (4th Steph. Com. 6th edit. 324.) 72. Husband and wife- Conspiracy.-The husband and wife cannot be convicted for conspiring together alone, because in law they are one person, and there must be two for conspiracy: (Arch. Cr. Pl. and Ev. 15th edit. 813.) 73. One person indicted for conspiracy-Averment required. In the case where the one person has conspired with persons to the jurors unknown, the indictment must charge him with conspiracy with others who have not appeared, or who are since dead: (Arch. Cr. Pl. and Fv., 15th edit., 815.) 74. Conspiracy-Object not effected. An indictment may be supported, because the offence consists in the guilty combination. If, however, the act has been done, it is usual to charge it in the indict ment: (R. v. Gill, 2 B. & Ald. 204; and Arch. Cr. Pl. and Ev., 25th edit., 811.) 75. Libel-Imputations.-A libel is a malicious defamation, expressed in print, writing, or by signs, tending to injure the reputation of another, and exposing him to public hatred, contempt, or ridicule. It is not necessary, in order to constitute a libel, that anything criminally or morally wrong should be imputed to the party libelled: (sect. 3 Steph. Com. 6th edit. 503.) 76. Libeller, how prosecuted.-A libeller can be prosecuted both civilly and criminally, the former to repair the party in damages for the injury done him, and the latter for the public offence, for every libel has a tendency to the breach of the peace by provoking the party libelled against to break it: (3 Steph. Com. 6th edit. 503, 504) 77. Truth of a libel-Defence.-Formerly it was a maxim that "the greater the truth the greater the libel," but now it is enacted, by 6 & 7 Vict. libel, the defendant, in addition to the plea of not c. 96, s. 6, that in an indicment for a defamatory guilty, may plead the truth of the libel, together with an allegation that it was for the public good that the matters charged should be published. shewing why it was for the public benefit; and if after such plea the defendant shall be convicted, it shall be competent to the court, in pronouncing sentence, to consider whether the guilt of the defendant is aggravated or mitigated by the plea, and the evidence thereon: (3 Steph. Com. 6th edit. 504.) 78. Attorney threatening criminal proceedings. Auy person, and therefore any attorney, who without reasonable cause and with menaces, by letter or writing, demands any money or property, may be indicted for felony. A threat of criminal Robinson, 2 Leach, 749.) The punishment is penal proceeding is a menace within the Act: (R. v. servitude for life, or any term not less than five years, or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement: (24 & 25 Vict. c. 96, s. 44.) 79. "Champerty."-" Champerty" is a species of maintenance, being a bargain with a plaintiff or defendant, campum partire to divide the land or other matter sued for between them if they prevail at law, whereupon the champertor is to carry on the party's suit: (4 Steph. Com. 6th edit. 323.) 80. Solicitor omitting to abstract title deeds.-If it is done fraudulently he is guilty of a misdemeanor, and liable, at the discretion of the court, to fine or imprisonment for any time not exceeding two years, with or without hard labour, or both, as the court shall award : (22 & 23 Vict. c. 35, s. 24.) 81. Ignorance of law.-A mistake in point of law which every person of discretion, not only may, but is bound and presumed to know, is, in criminal cases, no sort of defence. Ignorantia juris, quod quisque tenetur scire, neminem excusat: (4 Steph. Com. 6th edit. 120.) 82. Incapacity to commit crimes.-Persons of unsound mind, infants under fourteen in certain cases, and under seven in all cases, and married women in certain cases, are esteemed incapable of committing, or at least excused from, the guilt of crime; also crimes which are the mere creations of human laws may be excused by duress per minas, but such duress cannot excuse murder: (4 Steph. Com. 6th edit. 101, et seq.) As to acts done in a state of somnambulism, see 12 Jur. 802, and note. 83. Married women-When protected.- If a woman commit theft, burglary, or other civil offences against the laws of society by the coercion of her husband, or even in his company, which the law construes a coercion, she is not guilty of any crime, being considered as acting by compulsion and not of her own will. But this is not the case when she is guilty of treason, murder, or manslaughter: (4 Steph. Com. 6th edit. 122.) 84 and 85. Principal and accessory.-A principal in the first degree is the perpetrator of the crime; in the second degree, is one who is present aiding and abetting the act to be done, either actually or constructively; but an accessory before the fact is one who, though absent himself, yet procured, counselled, or commanded another to commit it, and an accessory after the fact is one who, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon (4 Steph. Com. 6th edit. 128, et seq.) MARITIME LAW. : NOTES OF NEW DECISIONS. ADMIRALTY COURT-APPEAL FROM COUNTY COURT.-The Admiralty Court will allow an appeal to the Privy Council, under sect. 29 of doubtful or novel in its application; secondly, 31 & 32 Vict. c. 71-First, when the law is when the facts leave a substantial doubt in the mind of the court; thirdly, when the pecuniary interest at stake is large: (Re Samuel Laing, 22 L. T. Rep. N.S. 891. Adm. Ct.) |