LEADING ARTICLES: 343 141 141 142 142 143 143 TO CORRESPONDENTS 144 Joint-Stock Companies Winding-up Acts Creditors under 22 & 23 Viet. c. 31 THE BENCH AND THE BAR : Assize Intelligence...... MAGISTRATE AND PARISH LAWYER: Notes of New Decisions Borough Quarter Sessions REAL PROPERTY LAWYER: Notes of New Decisions Elementary Precedents in Conveyancing JOINT-STOCK COMPANIES' LAW JOURNAL:Notes of New Decisions LAW STUDENTS' JOURNAL: Examinations of the Incorporated Law Society ECCLESIASTICAL LAW :- Notes of New Decisions 144 145 146 147 147 To Readers and Correspondents All anonymous communications are invariably rejected. All communications must be authenticated by the nam and a dress of the writer, not necessarily for publica" tion, but as a guarantee of good faith. on the 24th, 28th, 29th, 30th, and 31st of this month, and on the 4th, 5th, and 6th of next month. The other chambers will be opened on the 7th of next month, and the courts on the 10th. THE acquittal of the defendants in the famous OVEREND and GURNEY case will surprise no lawyer who read the evidence with a clear conception in his mind of the requisites to constitute the crime of fraud. There must be a representation false in fact; it must be made with knowledge that it is false; and it must be so The case broke down on the second and third ingredients. True that the assets were not so valuable as they appeared to be, and that the private property of the vendors did not suffice to cover the doubtful debts. But there was REPORTS of all the CASES decided by falsely made with deliberate intent to defraud. THE rush into the Bankruptcy Court of persons desirous to avail themselves of the benefits of the old law before its extinction, or, perhaps, we should rather say to avoid the severe ordeal of the new law, is something wonderful. During the present mouth the number of bankrupts on their own petition has nearly trebled, telling a tale of past abuses that more than vindi. cates those who joined the LAW TIMES in a continuous protest against a law which it again 147 and again designated as a law for the encouragement of debtors and the punishment of creditors. Nor could any better testimonial to the contemplated value of Sir ROBERT COLLIER'S Act 148 have been given by those who are likely to have studied it most carefully than this marvellous stampede of debtors to escape from its operation. Having learned how it will limit the field for dishonest debtors, they have hastened en masse to avail themselves of the existing law, before it 150 expires and their chances of profitable failure 149 Ir is a peculiar feature of commercial trials, such as the OVEREND and GURNEY prosecution, 152 that Judge and counsel both confess themselves incapable of dealing with figures-save, as the 152 LORD CHIEF JUSTICE remarked, figures of speech. Why is this? The LORD CHIEF 152 JUSTICE is a Cambridge man, and may be presumed to know something of the science most affected in that university. Commercial accounts are not so complicated or so difficult 153 of comprehension as problems ordinarily set in 134 the Senate house. The discount business of a bank is, we believe, the most difficult branch, 134 but it is mastered with little labour by very 154 ordinary minds. The conclusion at which we 154 arrive is, therefore, that this araded ignorance on the part of the Bench and the Bar of what are commonly called accounts, is due more to laziness than to want of knowledge or capacity of the commercial order. Or possibly it is due to a desire to make the jury feel thoroughly satisfied with themselves and all the 158 world, as compliments from learned Judges and counsel are wont to do. Whatever may be at the root of the matter, we cannot help regarding it as very absurd. no proof whatever that the defendants knew that the doubtful bills were of so little value as they ultimately proved, or that their private fortunes would be insufficient to cover the deficit. In fact, but for the commercial panic, in all probability both items would have been largely would have been incurred by the shareholders. swollen, and it is questionable whether any loss As for the two deeds, of which so much has been said, it proved, upon inquiry, that they were not prepared with any purpose of deceiving shareholders, but only because it would have been dangerous to themselves and wrong to others to have published to the whole world a string of names as being of doubtful credit; in itself a sufficient explanation; but when it was proved that these deeds were advised and prepared by counsel, and that the defendants did merely that which their lawyers recommended, there was an end of criminal liability. A man who acts under the best legal advice could never be guilty of criminal fraud, although he would be civilly responsible for the consequences of acting on that advice. On the third point, also, the evidence wholly failed. The defendants may have sold to the company their business for more than its value; they may have represented assets to be good which were bad in fact. But this is not the offence for which they were indicted, nor indeed, is it a criminal offence at all. The offence for which the defendants were actually tried was that of fraudulent representation, as directors, after the company was formed. The public outery was really directed against quite another part of the transaction, not in the indictment because not indictable. In fact, the Press tried and condemned them for an offence which, if committed at all, which was not proved, was a moral, not a legal offence, and the jury tried and acquitted them of an offence which neither the Pros nor the public contemplated in the verdict they so rashly pronounced before the hearing. THE end of company wrecking is coming. ViceChancellor STUART, last week, expressed his horror of the accumulation of costs in windingup matters; and said, it appeared to him, that, instead of "winding-up" the process was "spinning." Vice-Chancellor JAMES has declared that he will discountenance in every way the manufacture of costs, and Vice-Chancellor MALINS, during the arguments on the Times Assurance Company case, on Monday, indignantly denounced the course which is pursued in windingup matters generally. He stated from the Bench that in a certain winding-up matter, a liquidator had brought in a bill for upwards of 400/, stating that he had been engaged forty-two hours. The VICE-CHANCELLOR said he felt persuaded he could have all the work performed in a twentieth part of the time, and ordered the liquidator to verify his account. The result was, that only a tithe of the time charged could be vouched, and he taxed the liquidator's charge of 400/. down to 100/. The VICE-CHANCELLOR added significantly, "I gave the gentleman an opportunity of appealing, which he never ventured to do." Ar a meeting of the managing committee of the Metropolitan and Provincial Law Association, held on Wednesday, the 8th Dec. 1869 (Mr. EDWARD LAWRANCE, the Chairman of the association, in the chair), it was, on the motion of Mr. STEPHEN WILLIAMS, seconded by Mr. E. BENHAM, resolved "that the 29th section of the Bankruptcy Act 1869, having rendered solicitors competent, as trustees in Bankruptcy, to contract to be paid a certain sum, by way of per THE OVEREND AND GURNEY PROSECUTIONS. To the Editor of the Times. Sir,-Your report of this trial in to-day's impression omits the name of Mr. Yelverton as one of the junior counsel engaged in the case, who has most assiduously attended to my instructions throughout, from the time he introduced me to Dr. Kenealy and Mr. Macrae Moir, who owe their retainers to Mr. Yelverton. I have to request the correction of the above omission, and am, Sir, your obedient servant, R. DAWSON, Attorney for the Prosecution. 2, Middle Temple-lane, Dec. 18. So that it would appear that this important case was regulated according to the dictation of a young gentleman who has not been called to the Bar very many months. His learned leaders must feel flattered to hear that they "owed their retainers," not to their merits, but to the personal esteem, affection, or admiration of their youthful coadjutor. Mr. YELVERTON himself has courted the sarcasm of the Times by addressing to the editor a letter insisting on his name appearing in the list of counsel. This letter the Times publishes under the heading "Etiquette of the Bar." These are matters which would ordinarily call for the criticism of the circuit mess, but that the first rash imprudence of youth should be excused. LIABILITIES OF EDITORS. THE indictment, conviction, and imprisonment of Dr. SHORTHOUSE for a libel in a newspaper of which he was the editor, has doubtless taken the editorial world by surprise. But the law was correctly laid down by the COMMON SERJEANT. The editor of a periodical is responsible for its contents. The law presumes that as it is his office to superintend and control the publication and all that appears in it, he is guilty of culpable negligence if he fails to supervise every line and expunge whatever may be libellous. proprietors, and the question is certainly a very grave one for journalists. Plainly, if the editor is thus responsible for all the contents of a journal, so is every sub-editor for libels found in his department. We are happy to say that few of our brethren would be likely to admit, even by an oversight, such infamous libels as those for which the editor of the Sporting Times is now undergoing imprisonment. But every libel, however trifling, puts an editor in peril of indictment. The editor of the Times, which is of all papers the most studious to avoid offence, will be as liable as any other to a proceeding which might be used equally for revenge or for extortion. As a matter of fact, no caution that human art can devise will totally exclude libels from a newspaper. They come in a hundred forms, in reports, in correspondence, in "cuttings" from other papers, even in advertisements, and if the law were to be enforced in its actual severity, no journal could live for a week, and every editor would spend his life in a gaol. Such a case as that now under notice is more serious for its indirect than for its direct consequences. It will doubtless encourage resort to the like process. Although it was, as it is, the law, that the editor of a journal is criminally liable for any libel that appears in it, of the public none, and of our brother journalists but few, were aware of the fact. In future, indictment will be threatened as the most potent weapon for assailing a newspaper. When a journalist performs his most useful function in exposing fraud and warning the public against villany, the game of the disappointed rascal is to assume a tone of virtuous indignation, and threaten an action for libel unless an ample apology is made, with payment of costs. Such a threat is usually disregarded. But otherwise it will be if the editor is threatened with a criminal prosecution. That is a contingency not to be endured even for the sake of public justice and the public good, and the apology will be made, and the rogue rehabilitated, to pursue his plunder with impunity. Moreover, there is a class of attorneys who live by looking out for speculative actions; whose eyes are ever on the watch for incidents that might be converted into false imprisonment, malicious prosecution, unlawful dismissal of a servant, seduction, or compensation for alleged injury by accident. They seek out the plaintiff, and, if he is a pauper, so much the better. They threaten an action unless compensation is made for the imagined wrong. They bring the action. The defendant finds that the plaintiff cannot pay costs, and that he must expend 807. or 1007. to fight, and so he wisely prefers to buy peace at the price of submission to injustice. To this class of speculative actions will now be added the indictment of editors for libel; and a fruitful harvest will be reaped from it by the same harpies, unless the Legislature will come to the rescue, and pass into a law the Bill for the Amendment of the Law of Libel, which has been before it for nearly five years. Such is undoubtedly the law; but in this, as in so many other matters, the law assumes what is not the fact, and not unfrequently requires that to be done which is practically impossible. For instance, the editor of the Times, equally with Dr. SHORTHOUSE, is required by the law, under pain of fine and imprisonment, if through absence or oversight a libel should find its way into its columns, to read every word in its twelve large pages-a duty And this new liability should rouse all editors that would be physically impossible. True, to unite, without distinction of party, in claimthat some slight modification of this large ing the protection of this proposed law, for it is liability was introduced by the addition "or certain that if they will but pull together corprocure it to be done by others." But this ex-dially in this object of common interest they ception would not, we think, be admissible in a can command tle attention of Parliament. criminal charge. Civilly a man is responsible Let us submit a suggestion. The remedy by for the acts of those he employs; but he is not so indictment for libel is so extreme that it ought criminally. My servant, driving my carriage, not to be given to individuals of their own motion. by gross negligence upsets another carriage, and Until we have a public prosecutor, when all crimikills the horse and the driver: I am responsible in nal proceedings will be directed by him, it would damages, and he is responsible for the crime of be but a reasonable protection to the press to enact manslaughter. So with the editor of a newspaper. that no indictment for libel shall be preferred He is responsible for a libel inserted with his unless with the consent of the Attorney-Genesanction; but, if he employs a sub-editor, who ral, or of a Judge in chambers, who would deter is negligent and gives it a place, surely the mine if it is in the nature of a public offence, editor is not guilty of negligence. It is another requiring punishment, or only of a civil injury, question, and open to controversy, whether the to be compensated by damages. sub-editor would be liable. In the present case, the point is somewhat confused by the fact that the defendant was both editor and proprietor, SOLICITORS' COSTS. and from the published report it does not very ONE or two cases have occurred recently illusclearly appear in which character he was in-trating the difficulties which may embarrass the dicted; but the summing up seemed to imply recovery of their costs by solicitors, but we are that it was in his editorial capacity that he was glad to say that thedecisions have been in their then charged, or why the careful definition given favour. Principally we would notice the case of of the duties of an editor? May not a fair Re Jones, 21 L. T. Rep. N. S. 482. That was a point be raised upon this for the consideration case in which the taxing master had disallowed of the Criminal Appeal Court? certain items of a solicitor's account which had been incurred at a time when the solicitor by pure accident and through a mistake of his London agent was uncertificated. The order to tax was taken out by the client as of course, who This is, we believe, the first criminal prosecution of an editor as such. Many publishers have been indicted, and a few, but very few, get moneys in his hands may derive the same thereupon undertook to pay everything that should be found due. The Act referring to uncertificated solicitors is 6 & 7 Vict. c. 73, s. 26, which says that no solicitor or attorney shall maintain any action or suit at law or in equity for the recovery of any fee or reward in respect of any business done during the time that he has been uncertificate. The Master of the Rolls decided that the remedy of the solicitor for the items incurred whilst uncertificated was barred, but that the debt was not extinguished, and consequently that he might pay himself in respect of them out of money already advanced by the client, or set them off against a debt due from him to his client. For very obvious reasons we are not disposed to quarrel with the decision of his Lordship. Undoubtedly he was correct in saying that an order to tax obtained by a client is not an action or suit at law or in equity by a solicitor for the recovery of his fees; but we do not see that it is quite so clear that where the taxing master has decided the question, and disallowed the fees, he having the primary jurisdiction, they can nevertheless be regarded as a debt and setoff against a client's claim, or paid out of money in hand. The case relied upon by Lord Romilly was Fullalove v. Parker, 6 L. T. Rep. N. S. 353, but that was a case in which an application was made after taxation, under which an attorney had been allowed his costs, to deprive him of them on the ground that he was not a duly qualified attorney. It was held by the Court of Common Pleas that the application came too late, and that the objection ought to have been taken before the master. From this case it would appear that had the objection been taken before the master and allowed the debt would have been extinguished. We think a distinction is to be drawn between a solicitor's right to retain money advanced to him by his client in respect of costs though uncertificated, and his right to set-off his costs as a debt, and that this distinction goes to prove that the debt equally with the remedy ceases to exist when the taxing master disallows the costs. Money paid to an attorney under a mistaken idea of his qualification cannot be recovered back, and a plaintiff so paying would be entitled to recover from a defendant the amount paid under all circumstances. That is explicitly stated in the judgment in Parker's case upon which Lord Romilly relied. But supposing moneys were paid to an attorney generally, and not in respect of costs, we can scarcely go with the Master of the Rolls in saying that he would have a lien on them for costs disallowed by the taxing master. Could he set-off such costs in an action to recover the money in his hands? The Master of the Rolls says he could, for that the amount is due, although not recoverable. We should have apprehended that an objection having been taken before taxation and allowed, the debt was not only not recoverable, but no longer due, and particularly so if the objection were that at the time when the costs were incurred the attorney was not duly qualified. The distinction which we draw will appear more plainly by a reference to the case of Brown v. Tibbits, 31 L. J. 306, C. P.; 6 L. T. Rep. N. S. 385. There it was held that an attorney might set-off the amount of his bill of costs, in an action brought against him by his client, notwithstanding he had not delivered a signed bill one month before action. In the judgment reference is made to Harrison v. Turner, 10 Q. B. 482, where Lord Denman said— the action being by an attorney-"The defendant contended that so much of this account as related to the bill of costs was to be excluded from the consideration of the jury because no signed bil had been delivered to him. We think this objection is not well founded, for the neglect to deliver such a bill merely prevents an attorney from recovering the amount by action, but it advantage as a solicitor who is duly certificated. In Mr. Jones's case the equity of the dispute was all on his side, and it would have been a matter of regret had the decision been different; but it is doubtful whether Fullalove v. Parker, or Brown v. Tibbits justifies the propostion that costs claimed by an uncertificated or unqualified person should be allowed to remain in the bill on taxation as due though not recoverable. Browa v. Tibbits, indeed, strikes us as an authority to the contrary. We have only space to notice one other case at present noted only in W. N. Dec 18, 1869. A client of Messrs. Elmslie and Co, having deposited with them certain deeds to secure their bill of costs, afterwards became bankrupt. The as-ignee applied for an order to tax the bill, without prejudice to the lien of the solicitors, and undertaking to pay the dividends to which the solicitors should be entitled under the bankruptcy. The Master of the Rolls held that, as the solicitors I ad not proved in the bankruptcy, but simply rested on their lien, an order to tax their bill could not be made upon the application of the assignce unless he undertook to pay the whole amount of the bill, and not the dividends merely. ILLEGAL SALES BY AUCTION. Ir is desirable to notice, at the earliest moment, two cases affecting sales by auction which appear in our reports this week, one coming from the Court of Chancery, and the other from the Court for the Consideration of Crown Cases Reserved. All our readers may not be thoroughly familiar with the recent Act respecting the employment of puffers at auctions, and upon which the Master of the Rolls delivered a decision on the 13th inst. (Gilliatt v Gilliatt), and we therefore here refer to its terms. It recites, in its fourth s.ction (30 & 31 Vict. c. 48, s. 4) that whereas there is at present a conflict between the courts of law and equity in respect of the validity of sales by auction of land where a puffer has bid, although no right of bidding on behalf of the owner was reserved-the courts of law holding that all such sales were absolutely illegal, but the rule in the courts of equity being unsettled, those courts sometimes giving effect to such sales-it was enacted (s. 5)" that the particulars or conditions of sale by auction of any land shall state whether such land will be sold without reserve, or subject to a reserved price, or whether a right to bid is reserved; if it is stated that such land will be sold without reserve, or to that effect, then it shall not be lawful for the seller to employ any person to bid at such sale, or for the auctioneer to take knowingly any balding from any such person." And (s. 6), Where any sale by auction of land is declared either in the particulars or conditions of such sale, to be subject to a right for the seller to bid, it shall be lawful for the seller, or any one person on his behalf, to bid at such auction in such manner as he may think proper." In Gillian's case the sale took place under a decree of the court, subject to conditions of sale which ran thus, "The sale is subject to a reserve bidding, which has been fixed by the Judge to whose court this cause is attached." Lord Romilly said: "The Act clearly requires it to be stated in the conditions of sale, whether the land is to be sold without reserve, or subject to a reserved price, and also whether a puffer is to be employed, or, in the words of the Act, whether a right to bid is reserved. Here no right to bid was reserved, and nevertheless a puffer was employed. I am of opinion that the sale was therefore void, and must be set aside." In the criminal case, Reg. v. McGrath, the question was whether a conviction for larceny could be maintained under the following circumstances. A woman went into a mock auction room, where the prisoner pretended to act as an auctioneer. Some cloth was put up by auction, for which a person in the room bid 25s. A man standing between the woman and the door, said to the prisoner that she had bid 26s. for it, upon which the prisoner knocked it down to the woman. She said she had not bid for it, and would not pay for it, and turned to go out. The prisoner said she must pay for it before she would be allowed to go out, and she was prevented from going out. She then paid 26s. to the prisoner because she was afraid, and left with the cloth. We cite this decision, not as being in the same category with Gillitt's case, but in order that it may be seen that the law of larceny embraces money obtained by intimidation veiled under the specious device of a pretended sale by auction. There is a growing tendency to abuse this most useful mode of disposing of goods, and it is satisfactory to find the Legislature and the Judges doing all that possibly can be done to secure honesty and fair dealing. CONFLICTING COMPANY CASES. ONE of the evils to be anticipated from a Court of Appeal being composed of a single Judge has arisen in connection with the winding-up of the Heyford Ironworks Company. This company, it appears, was formed to continue the business carried on by a Mr. George Pell, and in part payment of the purchase-money of this business it was agreed that the company should issue to Mr. Pell, or his nominees, 1500 201 shares, such shares to be credited in the company's the goodwill and stock-in-trade of the business books as fully paid up. Mr. Pell transferred to the company, but he was not credited in the company's books with any payment in respect of the shares. It was contended on the part of the official liquidator before the Master of the Rolls that as the memorandum of association contained no statement that the shares were to be treated as fully paid-up, and as Mr. Pell had subscribed the memorandum for the shares simply and without any qualification, he ought to be placed on the list. This view was adopted by the Master of the Rolls, who held, however, that Mr. Pell would have to pay only the differ ence between the amount due on the shares and the value of the property transferred by him to the company. Justice Giffard, sitting alone, and his Lordship This decision was appealed from to Lord held that Mr. Pell was entitled to have his name removed from the list of contributories, on the ground that the agreement between him and the company had not been impeached, and it must be taken, therefore, that Mr. Pell had agreed to take the shares, and that he had paid for them in money's worth. The case of Migotti, Re South Blackpool Hotel Company, L. Rep. 4 Eq. 238; 16 L.T. Rep. N. S. 271, is of little value as authority on this point, being a decision of Lord Romilly himself. There the contention of counsel for the official liquidator was adopted by the court, namely, that by the 23rd section of the Act of 1862, the subscribers of the memorandum of association of a company formed under that Act are bound to take the number of shares for which they are subscribersciting Evans's case (sup.)-and that obligation is not removed by the allotment to them of the Mr. Migotti, on the 9th April 1869, signed the same number of nominally fully paid-up shares. memorandum of association for five shares. On the 20th Jan. five paid-up shares were allotted to him by the directors. The company in that case was got up by a Mr. Carter, in order that they might purchase from him certain land, and erect for partly in paid-up shares. an hotel upon it. This land was to be paid On the 19th in which he directed, amongst other things, five Jan. Mr. Carter wrote a letter to the company of these paid-up shares to be allotted to Mr. Migotti, and also ninety-five more of the same paid-up shares to the other persons who had signed the memorandum of association. The directors, on the 21st Jan. allotted the shares accordingly, and the question was whether this allotment satisfied the obligations imposed by sect. 23, or whether, notwithstanding such allothad not agreed to become holders of the number ment, the persons who signed the memorandum of shares set against their names in addition to, and as distinguished from, the shares so allotted obligation to take such shares. Lord Romilly to them, and whether they could repudiate their him in Jan. 1864, but he had not the power to held that Mr. Migotti "had unquestionably the power to take the allotment of shares made to substitute the five shares so allotted to him for the five shares which he agreed to take in April 1863--which, by signing the memorandum of association, he became bound to take, and in respect of which he must be deemed to have been a shareholder during the eight months which preceded the month of Jan. 1864. The Drummond was a In consequence of the Lord Justice's decision in Pell's case (reported before the Master of the In Drummond's case, Re China Steamship and Rolls, 21 L. T. Rep. N. S. 320; and on appeal, Labuan Coul Comduny, on appeal, L. Rep. 4 Ch. Ibid, 415), two other shareholders in the com-App. 772; 19 L. T. Rep. N. S. 667, a similar pany took out summonses to have their names conflict of opinion occurred between the same removed. The Master of the Rolls has decided Judges. The Master of the Rolls considered as he did in Pell's case, being of opinion that the the case on all fours with Migotti's. Lord Justice's decision is inconsistent with pre- company was formed for the purpose of buyvious cases. These cases involve the construc- ing the Labuan Coal Company, the consideration of the 8th and 23rd sections of the Com-tion to be paid partly in paid-up shares panies Act 1862. The second of the regulations which were to be allotted to the shareholders of the 8th section is, "that each subscriber of of the Labuan Company. the memorandum shall write opposite to his shareholder and director of the Labuan Comname the number of shares he takes." The 23rd pany, and he also signed the memorandum defines "member" thus: "The subscribers of of association of the China Company as a subthe memorandum of association of any company scriber for twenty-five shares. No ordinary under this Act shall be deemed to have agreed shares in the China Company were allotted to to become members of the company whose him, but he received 479 paid-up shares as one memorandum of association they have sub- of the shareholders of the Labuan Company. scribed, and upon the registration of the comThe Master of the Rolls held that the agreement of this shareholder to take the twenty-five shares was not satisfied by the allotment of the 479. Lord Justice Giffard held that it was satisfied by such allotment, and that the subscriber was not bound to take any ordinary shares. The ground of Lord Romilly's decision was that this subscriber entered into an express pany shall be entered as members on the register" "and every other person who has agreed to become a member of a company under this Act, and whose name is mentioned on the register of members, shall be deemed to be a member of the company." The Master of the Rolls in the cases before him on Monday, held the true construction of these sections to be, that the person who subscribes the memorandum of association for a certain number of shares is bound to take separate and distinct shares from those which he is entitled to under articles of association in consideration of his transferring his business to the company, or for any other consideration. We will first see what authority there is for this proposition. In Evans's case, L. Rep. 2 Ch. App. 427, it was held, that a person who had subscribed the memorandum, but was never entered on the register, and never had any shares allotted to him, was liable as a contributory, Lord Cairns remarking, that it was plain that the original shareholders are by the Act of Parliament deemed to have taken the shares set opposite their names, which could not then be parted with except in a proper manner and by proper authority. As bearing upon Pell's case, this would go to show that it is for the person subscribing to prove that, being a contributory, he is not liable on his shares, and therefore, in accordance with the view taken by the Master of the Ralls, that he has given full value for them, either in money or money's worth. undertaking with the other shareholders to pay the price of the twenty-five shares in cash, and that he could not pay it in property of which another person was the vendor. Lord Justice Giffard found that he had facts before him which were not before the Master of the Rolls. His Lordship remarks in his judgment, "It is obvious that the Labuan Company could not take shares, and it is equally obvious that if shares were to be taken it was essential that there should be a direct action between the shareholders of the Labuan Company with this particular company. In this instance there was direct action, for the course that was pursued was this: Certain persons, as trustees for the Labuan Company, sent in the applications for the shares, but there was no allotment except directly from the China Steam Company to the shareholder individually. Those shares could not be parted with without the assent of the shareholders, and the shareholder had the right of saying whether he would take 207. paid-up shares, or whether he would take 10% paid-up shares. In that state of things I cannot see any distinction whatever between Drummond's posi tion and the position of a person who, having signed the memorandum of association, without saying anything more, had agreed to take 479 shares, and had paid up money in respect of those 479 shares." And then his Lordship added, raising an issue of fact, "If a man comes to an agreement with a company to take 25 shares, and positively takes 479, saying nothing more, and pays up the money in respect of them, it would be impossible in that state of things to say that he had not satisfied the contract to take the 25." And as a matter of fact, again, the Lord Justice found that "literally, when Mr. Drummond took these shares, he could not, consistently with the duties which he had undertaken to perform, have got any other shares." We do not see that by his reasoning and reference to facts as stated above, Lord Justice Giffard gets out of the difficulty which is raised by the Master of the Rolls. The Lord Justice states the proposition of law thus (L. Rep. 2, Ch. App. 780): "A man who signs the memorandum of association agrees to become a shareholder, and as long as there are shares that can be allotted to him he must fulfil that obligation." That, we apprehend, is fully recognised by the Master of the Rolls, who, however, would add that these shares must be paid for in that which is of value to the company, and not in that which may prove to be much less than the value of the shares. We do not say that the Master of the Rolls was right in Drummond's case. We think, on the facts, he was wrong. Drummond gave up his interest in the Labuan Company for certain shares in the China Company. It was not suggested that what he surrendered was not equal to the value of the shares, and taking those shares he could get no others. But in the Heyford Company cases, we think that Lord Romilly was right, and that a vendor of a business who subscribes the memorandum of the purchasing company is liable as a contributory to the amount of the difference between the value of that which he gives to the company and the money value which his shares represent before the puplic. As his Lordship remarks, frequently in these cases, the object of the Legislature is that the memorandum of association should be a guarantee that a company has funds for carrying out its objects, and if paid-up shares are allotted for a consideration of inferior value, and for an antecedent debt, the public must necessarily be deceived, a court of acknowledged competency, a courtmartial. Such a court is not bound by the common law rules of evidence, and is subject to a variety of influences unusual in ordinary civil courts. There is a mine of learning on this subject in Mr. Finlason's Commentaries upon Martial Law, written soon after the trial of Governor Eyre for the matters arising out of the Jamaica rebellion. At page 237 he says, "Courts-martial rave been called Courts of Natural Procedure, and are bound rather by the rules of natural good sense and justice than by formal artificial rules;" but he adds, "It should be carefully borne in mind that it is a dictate of natural good sense and justice, especially under circumstances of heat, haste, and excitement, which require a greater degree of care, that there should be an observance of those substantial rules which experience and good sense in this country have caused to be established in our regular courts as safeguards and securities." The same learned author tells us in his note at p. 236 that the spirit and effect of judicial observations, which he cites, is, that on trials even by regular courts martial, the substance of justice is to be looked to, rather than its forms. This may be so; but a question which we should like to see canvassed is this: If courts martial arrive at the substance of justice better without forms than with, should not the Common Law Courts do likewise? If, on the other hand, the forms or rules of evidence so tenaciously adhered to by our courts are valuable accessories in the administration of justice, should they not also be observed in the conduct of inquiries by courts which it seems are to have a jurisdiction peculiar to themselves of equal extent with the courts of common law ? Our own solution of any difficulty arising by reason of the irregular procedure of courts of inquiry or courts martial would be to advise that there should always be an ultimate appeal to the civil law. The course pursued by the defendant in Dawkins v. Paulet, in sheltering himself behind a demurrer, leads to the conviction that there has been a miscarriage of justice. We should recommend the Colonel to be well advised on the point whether he cannot, under the Articles of War, compel a thorough investigation at the hands of the authorities. Act. By the old Act it was necessary that the declaration should be wilfully made, and that it should be simply false. By sect. 99 of the present Act the consequences provided follow if a declaration of qualification is made which is false "in any material particular;" and "unless the declarant show to the satisfaction of the court that he did not know of such falsity, and could not with reasonable diligence have obtained such knowledge." The same consequences follow as before-the ship is forfeited, and the declarant guilty of a misdemeanor. The same officers as heretofore are empowered to seize a forfeited ship, but the military officer is to act subject to instructions from the Commander-in-Chief; the naval officer subject to instructions from the Admiralty; an officer of customs subject to instructions from the Commissioners of Customs or from the Board of Trade; an officer of customs in a British possession abroad subject to instructions from the governor of such possession; and a British consular officer subject to instructions or orders from one of Her Majesty's Principal Secretaries of State. The proceeds of the sale of such ship are to be paid into Her Majesty's Exchequer in such matter as the Treasury may direct, and the Treasury—not the court having jurisdiction in the manner as heretofore-may award to the officer bringing in the ship for adjudication such portion of the proceeds as they think fit. Sect. 105 of the old Act prohibited the wearing of colours usually worn by Her Majesty's ships. The new section (102) is more specific, and says "if any pendant usually carried by Her Majesty's ships, or any pendant in anywise resembling the same, or any colours," &c. Proof of authority from the Crown to carry such colours is to lie on the party accused, who, if guilty, is to be liable to a penalty not exceeding 501. for each offence-before it was 5007. By the old Act certain officers named were empowered to board and haul down such colours. By the new Act such officer "may give notice to the master of the ship to haul down the colours improperly hoisted, and if such notice be not forthwith complied with, he may board," &c. EVIDENCE. Sect. 106 relating to the admissibility as evidence of copies of registers and declarations is sect. 107 of the Act of 1854. Sect. 107 is the 15th section of the Act of 1855, with the addition We concur with Lord Romilly in hoping that MERCHANT SHIPPING AND NAVIGA- that certified copies of the transcripts there renot only in this case, but in all other cases whilst the present want of judicial power in the Court of Appeal continues, the Lord Chancellor TION BILL. No. II. NATIONAL CHARACTER. ferred to, i.e., of the register of a British ship kept by the chief registrar of shipping at the Custom House in London, and the transcript I will make a point of sitting with the single THIS is the next title which requires any obser- kept by the registrar of seamen, shall be fur Lord Justice. MILITARY TRIBUNALS. WE desire to revert briefly to the important case of Dawkins v. Paulet, in consequence of a letter which has been published by the plaintiff, which shows that whilst the decision of the majority of the court rested upon the ground that he had his remedy under the Articles of War, such remedy may turn out to be little more than a mockery. It is to be remembered that the Articles of War state that if an officer is aggrieved and his commander refuses to hear his complaint, he may appeal to the Commanderin-Chief, who may be required" to inquire into it. This is, of course, equivalent to saying that it shall be in the absolute discretion of the commander to grant or refuse an inquiry. And what does Colonel Dawkins say? "I have been repeatedly refused a court-martial. I have appealed, as instructed by the Articles of War, to the military authorities to investigate the truth of charges against me, and the AdjutantGeneral's answer has been- We don't consider it for the good of the service that these matters should be investigated." It appears that what is termed a Court of Inquiry was held with reference to Colonel Dawkins, and his account of it-and being uncontradicted, it must be taken to be accurate is this. He says: "A Court of Inquiry is not even recognised as a competent tribunal, and the suppressions of evidence, the refusals of evidence, the contest in vain for two days to get a straightforward question admitted, the selections of answers to be recorded, the manifest omission of words answered, would, I am sure, cause Mr. Justice Mellor to regret that he ever indirectly attributed a shadow of competency to such a mock tribunal." We can easily understand that this is so when we call to mind the nature of the proceedings in vation. By the 95th section it is now clearly enacted that "any principal officer of customs may detain a ship" until the master has declared to the officer the name of the nation to which she belongs, and the officer shall, on such declaration being made, inscribe that name on the clearance or transive. By the old Act, to assume the British national character for the purpose of making a ship appear to be a British ship, worked a forfeiture of the ship to Her Majesty, and the burden of proving the title to use the British flag was thrown upon the party using it. Now by sect. 96, if any person obtains a British registry for any ship, owned in whole or in part by persons not entitled by law to own British ships, the ship may be struck off the registry; and if (sect. 97) any person uses the British flag on board any ship owned in whole or in part by persons not entitled by law to own British ships, and fails to show that he has used the same for some legal purpose, he will be liable to a penalty not exceeding 501. for each offence. By the 2nd clause of sect. 103 of the Act of 1854, the wrongful assumption of a foreign character worked a forfeiture, and a master committing or being privy to the offence was guilty of a misdemeanor. By sect. 98 of the new Act it is enacted that "no master or owner of a ship belonging wholly to persons entitled to be owners of British ships, and no person on board of any such ship shall be exempt from any liabilities, civil or criminal, incurred by him, under the provisions of any British law, by reason that such ship has acquired a foreign register, or uses a foreign flag" but this section is not to interfere with the jurisdiction of any foreign nation over such ship. The fourth clause of sect. 103 in the old Act, relating to false declarations of ownership, assumes a materially altered form in the new nished upon payment of such fee as may be fixed, in the case of the first-mentioned transcript by the Commissioners of Customs, and in the case of the last-mentioned transcript by the Board of Trade, and shall be received in evidence as if such transcripts were respectively the original register. PART II-MASTERS AND SEAMEN. Application. This part of the Act is concisely stated to apply to three classes of ships and per sons; in the United Kingdom, and to their owners, s; (1) to all sea-going ships which are registered masters, and crews; (2) to such ships registered in any British possession out of the jurisdiction of the government of such possession, and to at any foreign port of registry, &c. It is then, the owners, &c.; and (3) to such ships registered by sect. 110, enacted that, where any treaty or convention or other arrangement has been made between Her Majesty and any foreign State, authorising the application of the whole or any portion of this part of this Act to the ships of such State, it shall be lawful for Her Majesty, by Order in Council, to declare that such of the provisions contained in this part of this Act as are in such order specified, shall apply to the ships of such State, and to the owners, masters, officers, and crews thereof, and the said provisions shall, as soon as the order comes into force and so long as it continues in force, be read as if such ships and their owners, masters, officers, and crews, had been expressly included therein by this Act. Any such order shall come into force from the date specified therein, or, if there be no date specified, from the date of its publication in the London Gazette. LOCAL MARINE BOARDS. Sects. 110 to 116 of the old Act form the fifth schedule of the new Act, with certain numerous verbal alterations. The remaining sections are similar in effect to the old. CERTIFICATES OF MASTERS, MATES, AND By the old Act, provision was made for granting certificates of competency, &c., to (1) master in merchant and East India Company's service, (2) mate in British merchant service, entitled as mate of foreign-going ships, (3) master of hometrade passenger ship, and (4) mate of ditto. And by the Act of 1862, certificates were granted to engineers. These provisions are now consolidated, and it is now proposed by sect. 116, to grant certificates of competency, in accordance with the provisions of the Act, to each of the following grades: master, first mate, only mate, and second mate of foreign-going ship; master and mate of a coasting passenger ship; firstclass engineer, and second class engineer. at all in this sense, but are viewed and construed ing power of the owner, and that it had not any necessary tendency in that direction. Some of the so-called reformers now seem to feel how utterly inadequate is any measure which merely assimilates the descent of real, and the devolution of personal, estate, to the breaking up or preventing the formation of those aggregations of land held under a single owner, the existence of which is, according to their view, so inimical to the public welfare. As a result of this feeling we see suggestions made as to the propriety of greatly limiting the owner's power of disposition. We have previously expressed our hostility to any attempt to fetter in any material degree the owner's power. A great incentive to labour is removed if the fruits of labour are to be disposed of not by the labourer but by law. We think As by sect. 136 of the old Act so by sect. 117 great mischief would ensue if relatives were of the new, a foreign going ship or a coasting permitted to have claims indefeasible by the passenger ship of 100 tons or upward, shall have will of the owner. Neither do we believe a master and a first or only mate duly certifi- that the law can beneficially define the amount cated; if of less than 100 tons, a master duly of land or other property which may be certificated. Then it is provided that such a possessed by a single owner, nor the mode in ship carrying more than one mate, shall have which it shall be used or enjoyed. We should the first and second mate duly certificated. A greatly regret to see the lands of England conforeign-going steamship of 100 horse power or verted into forests or game preserves held by upwards, must have a first and second engineer great proprietors, and we should almost equally duly certificated; and a foreign-going steam-regret to see them converted into allotment garship of less than 100 horse power, her first dens held by small ones. or only engineer. The term "duly certificated As a due admixture of the several orders and in this section means an officer and engineer degrees of men is essential to the well-being of who has obtained and is in possession of a valid society, so, as it seems to us, is a due admixture certificate of competency, in accordance with of large and small properties. There is doubtthe provisions of the Act, of a grade appropriate less, though it may be impossible to discover or to his station in the ship, or of a higher grade. arrive at it, a golden mean in both cases, but By sect. 126, which in its three clauses emin the one case as in the other, the law can bodies the provisions of sect. 136 of the Act of do little more than muddle matters by at1854 and sect. 5, par. of the Act of 1862, tempting to interfere. An article on Primo- The essayist afterwards proceeds to tell us renders liable to a penalty of 501. any person geniture in a recent number of the Law Magazine that the "law which regulates the limits during who, being engaged to serve as master, mate, or and Review, illustrates at the same time the which the corpus of an estate can be tied up engineer, goes to sea without being entitled to views of a would-be reformer of the law upon should be assimilated to the period during which and possessed of a certificate; any person who the subject, and his own superficial, vague and the accumulation of rents and profits is peremploys or suffers any person to serve in such ill-digested knowledge in reference to the exist-mitted. But the chief step should be in the capacity without using reasonable means to as- ing law. Thus, after noticing the English love direction of restraint on the excessive power of certain that he is entitled to and possessses a cer- of settling estates to the utmost limit allowed by alienation now enjoyed by preventing as well the tificate; and lastly, any person fraudulently law as rooted in the nature of the English people estate itself, and the rents and profits issuing engaging or employing any certificated master, and their attachment to the soil, the desire to thereout, from being settled or demised so as to &c., or suffering any such to be engaged or become holders of land, and to found a family accumulate for any period longer than the suremployed, or to serve in any such capacity for which shall inherit it, he describes those motives vivor (sic) of three lives in being at the same the purpose of enabling any ship to clear as so powerful that, "as is well known, every time." That is to say, in regard to accumulation, or any master, &c., fraudu Act of Parliament which has been passed to the writer advocates an enormous extension of lently engaging himself or suffering himself encourage the alienation of land, and to place it the limits imposed by the Thellusson Act. He to be engaged or employed in any such intra commercium, earlier than would otherwise seems to be under an impression, which we need capacity for such purpose. And where any be the case, has been eluded, and sometimes not say is totally unfounded, that under the precertificated master, mate, or engineer engages wholly set aside, by the ingenuity of lawyers sent law accumulation is permitted during three himself in any such capacity as aforesaid on who, instructed by testators... frame con- lives and the surviving life. In the article in the board any ship, and quits such ship before or veyances which have the effect of settling pro- LAW TIMES to which we have before alluded, upon the commencement of her voyage, the perty to the utmost limits which an artificial and we expressed an opinion that the number of the burden of proving that such master, mate, or strained construction of the existing law will lives permitted to be arbitrarily and capriciously engineer was not fraudulently engaged, or em- allow, and quite opposed to, nay, almost in taken as the measure of the rule against perployed, or suffered to serve for the purpose of fraud, of the intention of the Legislature." petuity might advantageously be limited. enabling the ship to clear or to go to sea shall Here, as lawyers, we confess our ignorance, and lie upon the person engaging or employing him, shall feel much obliged to the writer of the and the burden of proving that such master, article if he will give us a little information mate, or engineer did not suffer himself to be about this "well known" state of circumstances, fraudulently engaged or employed for the same and if he will tell us what are the Acts to which purpose shall lie upon the master, mate, or en- he refers; or, if they are too numerous to mengineer himself. tion, if he will specify some or one of them. We have indeed heard of a certain statute De Donis to prevent the alienation of land, which was evaded by the ingenuity of the lawyers who decided Taltarum's case, but this we suppose is not one of the Acts to which the writer alludes. or go to sea, It is provided by sect. 127 that it shall be lawful for the Board of Trade to grant to any person entitled to and holding a valid pilotage certificate under this Act a licence to act as master, first or only mate (as the case may be), of a coasting passenger ship within the limits within which he is qualified to act as pilot under his pilotage certificate. Such licence shall be in such form, and shall be granted for such time and upon such conditions, as the Board of Trade think fit. It shall, so long as it is in force. entitle the licencee to act within the said limits as master, first or only mate (as the case may be) of a coasting passenger ship, in the same manner as if the licencee were a duly certificated officer under the Act; and the provisions of the Act relating to certificates of competency and the holders thereof are to apply to such licences and licencees. Sect. 128 relating to Colonial certificates, is the 8th section of the Act of 1869 (32 Vict. c. 12). (To be continued.) PROPOSED RESTRICTIONS ON THE POWER OF ALIENATION. In an article in our forty-sixth volume, p. 201, on certain alterations in the law of descent, settlement, and perpetuities, we endeavoured to show that the measure proposed by MR. LOCKE KING last session was not intended to fetter the dispos Having thus come to the conclusion that Mr. LOCKE KING'S measure would be very restricted in its operation, the writer thinks that a remedy is to be found in fettering the power of disposition by will or settlement, and after incidentally disparaging the common, as compared with the civil law, proceeds to an exposition of the difference between a will of personalty and realty in terms which, to our minds, conclusively prove that the essayist could have but the merest smattering of knowledge, coupled with the crudest and most incorrect notions on the subject which he was endeavouring to elucidate. For the amusement, if not for the enlightenment, of our readers, we extract the following: "A will of personalty is regarded as the expression of the last wishes of a testator as to what he desires should be done with his personal estate, and accordingly in this class of instruments certain fixed limits, arising partly from the nature of the property itself and partly from the source from which the law that regulates it is taken, have from the earliest times in our legal history been imposed, which the testator is not allowed to transgress. But wills of real estate are not, in contemplation of law, regarded as testaments We cannot, however, by any means agree that the number of lives shall be limited to three in cases where the lives are those of persons who take estates or interests under the will or settlement, but most especially should we object to the disallowance of the twenty-one years from the dropping of the surviving life. This period of twenty-one years enables a settlor to suspend the indefeasible vesting of property during the minority of the persons presumptively entitled. It is both unnecessary and undesirable that property should be absolutely vested in minors. Let it be supposed that the law is altered, as suggested by the essayist, and a new rule against perpetuity introduced under which property must vest indefeasibly, if at all, at or before the death of the survivor of these living persons, and that the essayist wishes to settle, say 10,000l. Consols on the marriage of his daughter. By the new rule, the children of the marriage, whether of age or not, who are to take, and the shares which they are to take, must be finally ascertained at the latest at the death of the surviving parent, unless, indeed, the settlor should introduce a third life, merely for the purpose of suspending the absolute vesting until the death of the last survivor of the three, and even then it would be a matter of the merest accident whether the life so introduced did not drop first. Thus any gifts over of the shares of children dying before twenty-one, could not, in favour of surviving children or other persons, be made contingent on the children attaining twenty-one, or be vested subject to divestment on their dying under that age. We cannot imagine what possible good could accrue to society by the introduction of a rule, the effect of which would be to vest property in children before |