325 323 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. RYLAND (app.). DELISLE (resp.) Lower Canada-Railways-Action against shareholder ...... COURT OF QUEEN'S BENCH. FAIR v. THE LONDON AND NORTH-WESTERN RAILWAY COMPANY Railway accident-Measure of damages-Pecuniary loss and bodily suffering COURT OF COMMON PLEAS. ABREY v. CRUX Bill of exchange-Indorser's liability-Verbal evidence of an agreement not to sue until a certain event.. MORRIS v. BETHELL Bill of exchange--Forged acceptance-Liability of person whose name was forged, he having paid one other similar bill Re JANE MENHENNITT Examination and acknowledgment of a deed by a married woman apart from her husband COURT OF EXCHEQUER. 326 327 330 332 Law and the Lawyers. BARON MARTIN has drawn attention to the evil of allowing undefended actions of ejectment to come into court, and he has suggested some legislation similar to that which compels a defendant in an action under the Summary Bills of Exchange Act to obtain leave to defend. The suggestion is a good one, and if adopted would be one step further in clearing the way for important causes. UNDER sect. 207 of the Bankruptcy Act of 1861, affidavits for the purposes of the Act may be sworn before "any commissioner for administering oaths in Chancery or any of the Superior Courts of Common Law at Westminster." The three Bankruptcy Commissioners have concurred in the opinion that a solicitor to a petition, being a commissioner to administer Debts contracted in England-Limited trading in Ireland 340 oaths, may swear the petitioning creditors to They have thus given the best proof their fitness to be entrusted with the Parliamentary franchise; indeed, there is no longer a pretence for withholding that privilege from single women who are housekeepers and have the required qualification, and it is for such only that the franchise is demanded. It ought next session to be conceded to them by a unanimous vote. ARE our readers aware of the burden that will very soon be put upon them, and are they making the necessary preparations to meet it? On the 1st Jan. all the taxes for the next year will not only become due, but be payable, and must be actually paid. For all their assessed taxes, except the Inhabited House Duty, they will be compelled, under severe penalties, to take out licences from the Excise, precisely as now for the keeping of dogs. Therefore the whole of the year's taxes must be paid in advance, instead of being collected half-yearly at the end of the year as hitherto. Nor is this the worst of it. The Income Tax is to be collected in like manner; the whole year is to be paid at once, in the same month of January, already severely burdened by the compulsory payment in advance of the assessed taxes, and when all the Christmas bills present themselves clamouring for settlement. We give our readers this notice that they may make early preparation to meet a demand whose existence the public does not appear to have yet realised, but which, when it is understood, will create a commotion such as has not been seen for many a day. WE are informed by several of the practitioners, and the statement is confirmed by many of our readers in the Profession, that the agitation in Ireland, and the formation of the two Land Tenure Leagues in England, for the carrying out of the same objects here, has already seriously affected the sales of estates, capitalists being reluctant to invest in property threatened with confiscation. The solicitors say that, in many instances, mortgagees have taken alarm, and limit their advances. Indeed, whether the principles of the League be adopted in Ireland or in England, mortgagees are equally in danger with the owners, for the value of land would certainly be reduced below the amount to which already mortgaged. Ir has been decided in the Irish Court of Bankruptcy that where an English trader contracts 21 debts in England to a large amount, and then goes to Ireland, where he trades to a very limited extent, and has only one debt that could 23 properly be called an Irish trade debt, and Eng-four-fifths of all the estates in England are lish creditors petition to annul the bankruptcy, on the ground of there being no trading in Ireland, the Irish Bankruptcy Court will annul such adjudication, with a view that the trader be remitted back to the jurisdiction where the debts were contracted. 28 28 It has been explained to us that postmasters are not permitted to purchase a single stamp, nor more than one unless they are joined together. This protects employers to some extent against 30 the temptations offered to clerks and servants to 30 steal the stamps and destroy the letters. But it does not protect against such a case as that nar30 rated a fortnight ago, where letters containing stamps were stolen for their contents, such stamps 31 being usually found in their connected state. The only safeguard would be that we suggest; to prohibit the purchase of less than five shillings' worth at one time, and requiring these to be 32 composed of junctions of two or more, and a register to be kept of the names and addresses of the vendors. Postmasters should be forbidden also to buy of boys. The demoralisation of 33 clerks and servants by reason of the facility now provided for disposing of stolen postage stamps is 33 most formidable. We have placed in every street a receiver of property which, of all others, is most easily abstraced; and this at the time when we are making the most stringent laws to put obstacles in the way of receivers of other property far more difficult to steal. 32 32 33 33 Newcastle County Court-Assaulting a County Court bailiff.. 33 Correspondence. BANKRUPTCY LAW: The New Law of Bankruptcy CORRESPONDENCE OF THE PROFESSION NOTES AND QUERIES ON POINTS OF PRACTICE THE LAW LIBRARY.. LAW SOCIETIES: Social Science Congress...... Metropolitan and Provincial Law Association Incorporated Law Society of Liverpool Law Students' Debating Society 36 Ar the recent municipal elections the women 37 appear to have very generally exercised the franchise that was so wisely given to them last session. Ridicule has been attempted to be cast 37 upon them by some of the newspapers, because a few among them are accused of taking bribes. But if here and there was found a woman willBIRTHS, MARRIAGES, AND DEATHS..............................40ing to accept half a crown for her vote, it oc THE COST OF LIQUIDATION. SHAREHOLDERS are evidently confused in their minds as to the cheapest way of getting out of expensive difficulties. Companies go into liquidation and many conflicting interests spring up, solicitors are consulted, and it follows that the regular tribunal must be called in aid to give an authoritative decision on the course to be pursued. So far all is well; but unfortunately solicitors must live, and their costs, when taxed, must be paid. The liquidation of many of the companies has been costly no doubt. In a few cases, perhaps, attorneys have taken advantage of the widespread litigation, but as a general rule liquidators have been assisted by firms of the highest standing and respectability. The impression, however, has become fixed in the minds of some shareholders, at least, that liquidators must necessarily be in league with the attorneys for the ruin of everybody but themselves. One such shareholder has ventured to give anony mous expression to his view in the Times money article, and the blunder he has made should be an example to all who are similarly tempted. "May I," he writes, "again be permitted to draw your attention to the intolerable and protracted litigation which is being kept up by liquidators and the attorneys in league with them? There is little doubt that their object is to spin out their emoluments to the remotest possible time, which is to no small extent the cause of the slowness with which confidence is reviving." This is a serious charge. Upon what is it founded? According to his own statement it It would seem doubtful then whether the Court of Appeal as at present existing, is properly constituted; whether the power given to Her Majesty to appoint two persons can be minimised to the appointment of one. Everything in the above Acts points to a plurality of Lords Justices, existing, though not necessarily sitting, together. How, moreover, can the Lord Chancellor fix the times for them to sit together, or singly, when there is no possibility of their sitting together? May the hitch on the present occasion not arise from a fault in the Act, which is worth remarking, in omitting to expressly empower Her Majesty to appoint a new Lord Justice on the death of either? Yet such a flaw does exist in it; it gives no such power. And it would appear to be no sufficient reply to this objection to say, that new appointments upon death, as on the occasion of the deaths of Sir LEWIS KNIGHT-BRUCE and Sir GEORGE TURNER have been made. Was a subject of boast by the solicitors to the | together, or singly, and also what matters shall Joint Stock Discount Company in proceedings be heard before the full court, or by the Lords against Barned's Bank that they had relieved Justices sitting together, or separately; and by the company of a vast liability, and would the Lord Chancellor sitting alone, or with one recover a considerable sum from the bank. He Lord Justice. then says: "I should like to hear from them what their estimate of the value of the latter item now is; and, as to the large liability, it has just come to my knowledge that the whole question might have been compromised at from 20,000l. to 30,000l., and the effects of a shameful repudiation, setting legal technicalities aside, avoided." And this epistle further observes that the officers of the company were estranged, and that "as a pauper in this case is the plaintiff, there will be several further opportunities to the attorneys of boasting of their successes and the large accretion to their bills of costs." Now it turns out that the attorneys referred to are Messrs. LAWRENCE, PLEWS, and BoYER, than whom none stand higher as professional men of honour and'integrity. These gentlemen reply to the letter of the shareholder, and, whilst they admit that the litigation might have been compromised for 50,000l. (and not 20,000/. or 30,0001.), but that no offer was ever made on behalf of Barned's Bank, and "by the decision of Vice-Chancellor JAMES the Joint Stock Discount Company has been relieved from the payment of that or any other sum." Further they do not believe, as confidently surmised by the shareholder, that there will be any appeal to the House of Lords; that so far from a pauper being the plaintiff, the Joint Stock Discount Company stands in that position; that they are not aware that losses have occurred by the officers having been estranged; and finally they say: "The accounts of the official liquidator have been periodically, and at very short intervals, audited by the court, and an account has been annually issued to the shareholders. Our costs, before they appear in the accounts of the official liquidator, have all been strictly taxed." We feel that this needs no comment. But, as we have remarked, we think the blunders made by the shareholder in question ought to be a warning to others not to rush into a reckless denunciation of professional gentlemen who simply charge for the performance of most onerous and thankless duties. THE VACANT LORD JUSTICESHIP. Ir is more than rumoured in Westminster-hall and at Lincoln's-inn, that the vacant Lord Justiceship is not to be filled up, at least for the present. We trust such rumours are without foundation. We can imagine nothing more prejudicial to the interests of the public. It would be unjust to the suitors, who have the right to expect two minds to be exercised upon their controversies instead of one; unjust to the single Lord Justice, who accepted office on the assurance, express or implied, that he would have the advantage of a colleague; unjust to the Judges whose decrees are appealed from, for they may submit, without objection, to reversals by two minds little better than their own, but never to rever. sals by one only; unjust to the public, who were assured by the Act which originally constituted the court-and which is on this point unaltered-that Her MAJESTY would appoint "two persons to be Judges of Appeal." It is moreover, a loss to the power and weight of the Judicial Committee of the Privy Council, of which each Lord Justice is a member, and a reflection on the Chancery Bench and Bar, for it is tantamount to a declaration that none of its members are competent to succeed to the vacant dignity, and is a withdrawal from them of one of their chiefest prizes. The true legal position of the case may be shortly stated as follows: By the original Act of 1851, Her MAJESTY was empowered to appoint two persons judges of the Court of Appeal: and "the Lord Chancellor together with such judges, for the time being appointed as aforesaid," were to form the Court of Appeal in Chancery. By an Amendment Act in 1867, the jurisdiction of the Court of Appeal may be exercised by both the Lords Justices sitting together, or by either sitting separately, or by the Lord Chancellor sitting with the Lords Justices or either of them, except that no decree made on a hearing or on "further consideration" (which exception was, by a short Act in 1868, extended to include decress or decretal orders made on motion) should be re-heard before a single Lord Justice. And the Lord Chancellor is to fix the times when the Lords Justices shall sit with him, or What would be thought of a marriage settlement which did not provide for the appointment of new trustees upon death? Things would come to a dead-lock, and the Court of Chancery would have to be called in. And yet the rules for expounding public and private instruments should be the same. NEW TRIALS IN THE COUNTY COURTS. MR. SHERWOOD SMITH writes to say that we misapprehended his point in connection with the alleged defect in the County Courts relating to new trials and appeals. He sends us a report of the case to which he alluded. The action was brought against a house agent for a false representation as to the solvency of a person who took the plaintiff's furnished house. The real question was whether the defendant had made the false representation; but a collateral question was whether the plaintiff had not levied a distress on the tenant. On the trial the plaintiff distinctly denied that he had ever levied a distress or signed a warrant. His Honour remarked on the conflicting nature of the testimony, and declined to believe the testimony of the defendant who had denied that he had used the expression respecting the tenant which it was alleged he had used. Evidence was subsequently obtained to show that the plaintiff had levied a distress, and affidavits were prepared to show that not one but two distresses had been levied by the plaintiff. It was contended by the defendant's solicitor that this was a matter affecting the credibility of the plaintiff; but counsel for the plaintiff objected that a new trial was never granted on a purely collateral issue, and that even supposing the defendant's advocate proved what he had opened it would have no bearing upon the main issue. The reporter adds a note to the case which states, we assume, the true ground of Mr. SMITH's appeal to the Social Science Congress. It is this:-"The plea put forward by the plaintiff's counsel, was accepted by the Judge, that the point on which the plaintiff had sworn falsely was collateral and not material, and that no new trial had ever been granted on a collateral issue. In our opinion where a case is decided on a question of veracity, anything proved to have been stated by a witness knowing it to be false ought to damage the rest of his evidence, and a jury would doubtless regard it so." This is sound enough as matter of principle, and had the want of veracity on the part of the plaintiff been proved on the first trial it would have had as much weight with the Judge as with a jury. The sole question is whether the Judge was right in refusing a new trial, and whether an appeal ought to lie from such decision. We confess that we are against Mr. SMITH on both points. In the Superior Courts a new trial has been granted where it appeared clearly that the plaintiff's case was a mere fiction, supported by perjury, which the defendant could not at the time of the trial be prepared to answer: (Fabrilius v. Cock, 3 Burr. 1771.) But it was distinctly laid down in Honeyman v. Lewis, 23 L. J. 204, Ex., that if the plaintiff has sworn falsely on a matter not material to the merits of the cause, a new trial will not be granted. The question in dispute in the Bristol County Court was whether the defendant had made certain false representations, and had the plaintiff levied a distress or not he was still entitled to his remedy against the defendant in respect of the false representation. We think, therefore, that upon the authority of Honeyman v. Lewis, the Judge of the County Court was right, and that had there been an appeal to a Superior Court his decision would have been upheld. And we confess that we are of the opinion which we expressed last week, that it would be inexpedient to alter the practice which now prevails as to new trials and appeals in the County Court. The remedy of the defendant, if he desires to be avenged on his adversary, is an indictment for perjury. This, of course, will not bring him back the 687. which he has been compelled to pay, but it would be a wholesome example to unscrupulous plaintiffs. NEW PRISONS. THE magistrates of Middlesex are in a difficulty about prisons. Such is the increase of prisoners, consequent upon the increase of crime or of population, which of them is not known, that there are not cells enough either in the House of Detention or in the convict gaols. The Home Office has been continually urging upon the reluctant justices the necessity for building a new prison forthwith, the Inspectors having reported that the existing accommodation is wholly insufficient for the numbers within the walls. In vain the justices have pleaded the cost to the county; the Home Office has insisted, and accordingly. a site and a plan having been procured, it was resolved to begin the work. A considerable minority of the justices, however, protested against the expense thus to be incurred, and desired to set the Home Office and the Prison Inspectors at defiance: and one learned magistrate went so far as to propose that prisoners should be discharged on bail, rather than that the expense of a new prison should be imposed upon the ratepayers already overburdened. vestries have since taken up the question, and, siding with the minority of the Bench, have passed strong resolutions against the projected prison, and memorialised the Home Secretary to interfere; ignorant, no doubt, that it was the Home Office that put the screw upon the magistrates, and forced them to do that of which the ratepayers so loudly and justly complain. The But it will be said, "What can be done? Crime is increasing yearly, and our prisons overflowing. We cannot let the prisoners loose, and we cannot keep them where they are." The solution of the problem is to send them to other prisons which are not full. It is ascertained that, in many parts of the country, the surplus population of the metropolitan prisons could be received, and maintained, and made to work, at perhaps somewhat more cost per head, journeys included, than their cost now, but at much less expense than would attend the building of a new prison and the maintenance of its necessary establishment. But that disposes only of the convicted prisoners undergoing sentences. The House of Detention for criminals waiting trial is over full, and these cannot be sent to district prisons. For this there is but one cure, a more speedy gaol delivery. But, as it is, the Middlesex Sessions are held fortnightly; they sit seven days out of every fourteen, quite as much as any Judge could possibly perform. The obvious remedy would be three courts sitting at the same time, and thus disposing of the business in one-third of the present time, a course which would save the county ten times the salary of a third Judge in merely the expenses of attending witnesses. But this remedy the statute does not permit. It gives power to hold more frequent sessions, but it limits the judicial force to the Assistant Judge and a Deputy, so that relief in the only practicable form is beyond attainment without a new Act. The abolition, or rather limitation, of the grand jury would gain a few hours at every sessions, but that would not even keep pace with the steadily growing work, which will probably be very largely increased by the operation of the new Bankruptcy Act, the entire criminal jurisdiction of which is given to the quarter sessions. The magistrates are blamed at the parish meetings for this state of things. But it is no fault of theirs. The law imposes upon them duties which it does not give them sufficient powers to enable them to perform. MR. CAIRD'S SCHEME FOR IRELAND. MR. CAIRD'S scheme has this to recommend it to attention, that it comes from a thoroughly practical man. The principle of it is the -avoidance of compulsory legislation, and to hold out inducements to the adoption of the desired object by legislative difficulties purposely thrown in the way of any other course of pro-ceeding. The object sought by the Irish tenants is what they call “ fixity of tenure," that is to say, that they shall not be removable so long as they pay the rent. Mr. CAIRD advocates long leases as the best form of fixity, and his plan is constructed wholly with an eye to this result, that landlords shall find such leases to be the best policy. To this end he proposes to deal by special legislation with all cases where leases do not exist in such a manner that the landlord shall find any other holding to be extremely troublesome. In the first place, he would change the present presumption of law, that a holding is a tenancy from year to year, to the presumption that, in the absence of any written agreement to the contrary, a tenancy is for a term of five years. In such case, and indeed wherever land is held otherwise than on lease, Mr. CAIRD would give to the tenant full compensation for all unexhausted improvements, such claim to be a charge upon the land, in the nature of a mortgage, to be removed only by payment, or by the granting of a long lease, which should be equivalent to payment. No eviction except for rent is to be permitted without full compensation for improvements, and no process for the purpose of eviction is to issue until after a certain number of days' notice has been given by advertisement in the newspapers stating the reasons for such eviction-a opinion to bear upon a landlord exercising the provision avowedly designed to bring public commonest rights of property, but which in practice would subject him to be shot; for that is, unhappily, the form in which "public opinion' expresses itself in Ireland. This last seems to be the only proposal by Mr. CAIRD that is open to very serious objection. It is agreed on all hands that a tenant should be compensated for improvements made with the landlord's consent. The presumption of a tenancy being for five years, in the absence of an agreement, is as reasonable as the existing presumption that it is from year to year; it is only a question of degree, and the condition tacked to it that the landlord should not be entitled to the benefit of the State grants in aid of improvements unless the property is leased for a long term, is fairly within the province of the law. But in all this, as it appears to us, Mr. CAIRD has left out of sight the great fact, that is the source of all the perplexity of the problemthat the Irish tenants do not desire leases. It is not true that the objection to leasing is on the part of the landlords. For the most part they would prefer leasing to good tenants. But the Irish farmers will not take a lease if they can help it. Why? Because they do not like to be bound by the covenants of a lease. They are averse to the terms of a tenancy being put into writing, because they know that, under an agreement of their own making, they could be compelled to its performance without having a grievance against the Saxon; whereas, with an unwritten tenancy, they can do what they will with the property, and practically defy the landlord to evict them. And is it not after all a question of nationality and religion? Is the real grievance that which is alleged, or is it not something more, that is not advanced, because it will not bear the light? Do not the Irish in very truth desire and design, not merely an improvement in the condition of tenancy, and in the relationship of landlord and tenant, but the abolition of tenancy itself? Are they not really secking to take the property from the Saxon and give it to the Celt; to transfer the land of Ireland from the Protestant to the Roman Catholic? If this be their real purpose, all the remedies which ingenious minds are proposing for improving the relationship of landlord and tenant are merely wasted labour; they will not content the people for whom they are designed. And is it certain that the facts are as asserted? That the evils are as real as writers and orators affirm? Great doubt has been expressed as to this by persons very competent to judge, who say that evictions are in truth very rare, that the tenants dislike above all things an improving landlord, and that their pretended improvements are only mud-built huts, which diminish the value of the property on which they are placed. THE PRINCIPLE OF COMPENSATION. An important question was discussed in the Court of Queen's Bench last week, relating to the principle upon which compensation is awarded for injuries received through the negligence of railway companies. It was urged by the counsel for a company against which a clergyman had obtained 50001, damages, that the principle of compensation in such cases was different from that prevailing in all other cases, and that it ought not to be so. To this Lord Chief Justice Cockburn gave the following reply: "The same principle of law as to liability for injuries caused by negligence is laid down in railway cases as in all others. It may be true that, partly because persons of large income are not so often run over in the streets, or are injured by other causes, and partly because injuries caused by railway accidents are said to be more severe and permanent than others, the amounts awarded in railway cases are larger than in others. But this is not by virtue of any difference in the principles of law applied. The juries in all cases are told to give a reasonable compensation for the natural consequences of the negligence." They convict a defendant in a ruinous penalty in sole reliance upon the tenderness of the mercies of relatives. Possibly juries ought to be allowed to calculate upon the fulfilment of moral obligations, but those calculations should be based on reason. A cantankerous uncle might feel inclined to help a rash nephew out of a dilemma by a cheque for a hundred or two. But when it becomes a question of a couple of thousands, it is easy to understand that terror usurps the place of affection and moral obligations are lost sight of when the enormous consequences of a rash act are contemplated. Thus the anticipations of the jury are upset, and the defendant is ruined unless the court upon consideration see fit to suggest a reduction of the damages. But this instance, we believe, proves merely a departure from settled principles-the principle that compensation should be given for loss actually sustained. Punishment for breach of contract is to be deprecated, but the punishment of third persons through a defendant is altogether indefensible. This is illustrated by the other case to which we have referred. There a verdict of 501 was given in an action for seduction of the plaintiff's daughter, and a curious attempt was made to upset the verdict on the ground that evidence of the defendant's position in life had been improperly admitted. The Lord Chief Justice said that he believed that it was generally considered that damages in an action of this nature ought to range from 201. to 50l. as being equivalent to an affiliation order, and that evidence of the defendant's position was admissible to bring the amount of damages up to the higher or down to the lesser amount. We doubt Now, it seems desirable that the question of damages for consequential injuries should be freely discussed in order to see whether the principle laid down applies to every case with equal fairness. By a singular coincidence two whether his Lordship was right in saying that other cases were mentioned to the Court of damages in this action are to be taken as equiQueen's Bench during the first four days of valent to an affiliation order. The damages are The one was a breach of promise case; the and there is nothing to prevent the daughter term involving this principle of compensation. compensation to the mother, in the capacity of a master, for the loss of the daughter's services, other an action for seduction. In the first, the defendant was a lieutenant in a marching regi- obtaining an affiliation order irrespective of the ment against whom the jury gave a verdict of proceedings on the part of the mother. In this 20004. These heavy damages were given, doubt-sation a long way, for it was shown that the case the court carried the principle of compenless because the father of the defendant was a man of means, and had forbidden the marriage with the plaintiff. He had an uncle also, who was opposed to the match, and who also it was probably assumed would assist the defendant to bear the burden imposed by the jury. It did not appear that the defendant would be directly entitled to any sum of money at the hands of his relatives; but it rather appeared that he was entirely' dependent upon their will for the income which he might receive, apart from his pay, in the future. It is quite clear what the reasoning of the jury was-namely, that the father and uncle having caused a breach of contract by objecting to a marriage were morally responsible for the consequences, and ought to be made to bear them, and upon the contingency of their coming up to this estimate of their moral duties a verdict was given against the defendant for an amount which must prove professional ruin to him should his relatives disappoint the calculations of the jury. We say nothing of the merits of the case, because it is impossible to say what may be regarded as a contempt, and what comments may be made the subject of an application to the Court of Queen's Bench. We simply look to the principle of compensation which gives a lady 2000. damages against a lieutenant in a marching regiment. As remarked by Serjeant Parry, when applying for a rule for a new trial, the defendant, if unassisted, could pay this amount or any portion in one way only, namely, by selling his commission, which is equivalent to professional extinction. Is it right, then, in the abstract that an unfortunate young fellow who has entered into an engagement which, if completed, would condemn him and his wife to a life of respectable poverty should be condemned in a ruinous penalty, because the persons who prompted the breach are wealthy relatives? Had it appeared that, notwithstanding the marriage, the relatives would have made the defendant a handsome provision, and thus conferred upon him a position which would have been of great social benefit and private advantage to the plaintiff, and that in spite of this the defendant had wilfully avoided fulfilling his compact, heavy damages would then have fallen most justly on the defendant. The principle of compensation in such a case is clear. But upon the circumstances that actually did exist, the principle adopted by the jury seems to have been most illogical. girl was an assistant of her sister in a millinery business. This sister supported the mother in consideration that she would attend to the household work. The girl seduced practically never assisted her mother in the house, but it was understood that she was to do so if required. The mother sued, and it being proved that the defendant kept a horse and gig-this being the evidence to which exception was taken at the trial-the defendant was mulcted in 507. We have, lastly, to mention another case which was named to the court, with the view to obtain a new trial or reduction of damages, and wherein the principle of compensation was discussed. That was an action for libel, the alleged libel being an abuse of the privilege of comment upon proceedings in a court of justice. The plaintiff was convicted before a magistrate of a violent assault, and fined ōl., and the magistrate characterised the assault as cowardly. A writer in a public journal stated the fact of the conviction, and thereupon decribed the plaintiff as a brute and a coward who wore mock diamond knuckle dusters, lived at a lodging-house, was not to be found in any court or other guide, except in the capacity of a cookshop keeper. The fact was that the plaintiff was a member of an ancient family as appeared by Burke's Landed Gentry. No plea of justification was put on the record, and the counsel for the defence gave the plaintiff every opportunity of clearing himself, not only of the stigma cast by the magistrate's decision, but also as to everything alleged in the libel. Nevertheless the jury awarded the plaintiff 5001. damages. The court was moved for a new trial or to reduce the damages, and upon the latter point agreed to consult the Judge who tried the case. The true principle of compensation appears to us to have been laid down by the Lord Chief Justice in that case. He said that it was open to a jury to give compensation for the damage actually suffered by the complainant, but that a limit was to be fixed there-that the virtuous indignation of the jury must be checked where it not only awards compensation for injury, but inflicts punishment, qua punishment, on the offender. Upon the question of damages in cases of libel, however, we had occasion to comment recently, and shall not further pursue the matter. The principle to be observed is clear. If it is desired to punish a libeller the criminal courts are open to the complainant. Should he seek damages he is only entitled to those which he has sustained in reputation and mental suffering. and the villeins or tenants at will were held to by Mr. Hallam (Middle Ages, c. viii.) "Thus," says that eminent author, "proof of this remarkable transformation from tenants in villeinage to copyholders, can be found in the The proposition to take compensation for rail-reign of Henry III. :" (Ibid). Of this we have way accidents out of the jurisdiction of juries is just given an instance from Bracton; and by one to which we have already more than once the time of LITTLETON the change was complete, stated our objection. Mr. Vernon Harcourt seems to think it is a case for the interference of the have copyhold estates: (Littleton's Tenures, Legislature. Should his view be adopted Parc. ix.; Tenant by Copy of Land Roll.) It was liament must be very careful how it proceeds. then laid down in the reign of Edward IV. that There are too many cases illustrating the diffi- if the tenant rendered his services he could not culty of awarding compensation by Act of Parbe ejected. And it is distinctly stated by LITTLEliament-Brand v. The Hammersmith Railway TON that the tenure was inheritable, and that the Company, to wit-to encourage this species of land went to the heir according to the custom of Legislation. Juries may be unjust sometimes. the manor: (Ibid). So that, as he says, the but on the average they are fairer than Acts of Parliament. IN ENGLAND. THE attention of the country is being directed to the land question in Ireland with a view to some change in the law. The common law in England and Ireland is the same; and though special statutes and disturbing causes in Ireland may have produced some modifications, the elements of the question are the same in both countries. Hence the great difficulty of legislation on the subject for Ireland without affecting the security of rights of property in England. For the same reasons, however, it may be of interest, and also of use, to see what principle, if any, can be deduced from the law of England on the subject, and with that view to trace its history, and gather from it such guidance as it may afford. condition in this country. And so strong was the tendency of the law in favour of this result that, even after servile tenure arose, it was still rendered an inheritable tenure on the same condition. But then this only applied as to land left to be governed by custom, and not by contract or deed. And it was competent to the owner to create no more than a mere tenancy at LITTLETON has a section on Tenancy at Will, in his own will, determinable at pleasure. And so which the tenant can be put out at the will of the lessor. The law, however, discouraged this in several ways. First, as LITTLETON shows, it gave the tenant at will his emblements, i. e., his crops sown prior to notice to leave the land, in other words, his tenant-right. The principle involved in this law of emblements obviously goes further than the crops, and extends to manures, and still more to buildings or im provements; and if the law was not laid down in the same way in those cases, it could only be because tenants at will in this country were not expected to do such things. But it was supposed that the utmost he could do would be to sow the land. So much, however, the law did to discourage a dishonest landlord. Next it prevented a right to rent, or the remedy for rent by distress, unless there was a lease. And on the other hand, if there was a reservation of rent, it created an implied lease or certain tenancy for the period caused by such reservation, and hence the doctrine of tenancy from year to year, and half a year's notice, developed by the law out of tenancy at will. This shows the tendency of the law to create certainty of tenure, and to secure the just interest of the tenant. Lastly, the law did not allow ejectment during a tenancy, nor impose any liability on the tenant to do anything in the absence of express stipulation in a lease. This was all the law did to promote leases. When a lease was granted, equity protected the lessee against an unjust forfeiture and the statute of George IL enacted that equity into law. land. tenant by the custom was as well inheritor, to have the land after the custom, as he that had a freehold by the common law: (Ibid). This, THE HISTORY OF THE LAND QUESTION it will be observed was by custom and as to the nature of the service to be rendered, it was the custom of the particular manor; though, as to the general rule of law, that the tenant rendering his services should retain and transmit the land, it was the general law of the land. That was the law as to servile tenure. But as to free agricultural tenure, or as it was called, tenure in socage, it was, as already stated, a species of tenure in fee, and the heir succeeded to his father's land: (Glanville, c. vii.) Tenure in socage, as LITTLETON says, was by any certain service or by rent (c. 5); and at common law tenure could be created in fee simple, and rent would be reserved on such tenure. The statute of Quia emptores (temp. Edward I), against subinfeudation, prevented this: (Littleton c. 12). "Before that statute," says LITTLETON, "if a man had made a feoffment in fee simple, securing Now, it is beyond a doubt that originally, in to him and his heirs a certain rent, for this he this country, all free agricultural tenure was in- might distrain of common right." But after heritable. In the first collection of laws for all that statute this could not be done (Littleton, England, those of Canute, we read of heriots or s. 12 of Rents); and though a rentcharge could reliefs, and can see that the feuds were heredi- be created on land in fee simple, rent could not tary: (Law of Canute, c. 71, 72, 73, 78, Anglo- be reserved. Hence long leases then came in; Saxon Law, vol. 1, p. 414, 421.) Land held by and accordingly, in the latter part of the Mirror custom or "fole-land," is distinguished from land of Justice, written at the end of the reign of It is impossible not to observe that the whole held by deed, "bok-land," and in case of forfeiture Edward L., we find long leases mentioned, and tendency of our law, so far as it could be conby crime or treachery the former went to the also find them of recent introduction, seeing sistent with the rights of property, has been in lord the latter to the Crown: (Ibid, c. 78, p. 421.) that it is complained the law had provided favour of giving the cultivator of the soil a fixed Otherwise, when the tenant died, the heirs sucno remedy for their recovery: "It is an abuse and settled interest, freehold if possible; or, if ceeded to the land: (Ibid, 79.) So remained the that an usage lieth not for a term of years otherwise, then copyhold or leasehold. The law up to the Conquest, when, as the Mirror as well as it doth for a freehold for life thoughtful and philosophical GUIZOT has destates, "the people had no charters, deeds, or or in fee. It is an abuse that leases of farms scribed this tendency to hereditary possession ins muniments of their lands; nevertheless, if they are not longer than forty years, since the con"Succession," he says, "is the end to were ejected or put out of possession wrong- tinuance of possession doth disinherit no man," which territorial possession always tended. From fully, they might be restored to their estates.e., that the possession of the lessee could not pre- the time that a man possesses and improves an as before, by bringing an assize of novel judice the title of the owner in fee: (Mirror estate, whatever the manner of his possession of desseisin," and which implies that the tenure c. v. ss. 72, 80) From that time long leases pre-of his improvement, he employs upon it means was freehold, and also that it was cus- vailed, and with them the power of distress for which he does not draw from the soil but from tomary freehold, or freehold by the common law rent, and, by express condition, the power of himself; by the labour which he spends upon it, or custom of the realm, and not by virtue of regaining the land on failure to render the rents or by the buildings with which he covers it, he adds express deed. Then it is stated that "the Con- services due. This, however, was only by virtue of a certain value to the estate, and, to speak in the querors enfeoffed some to hold villein customs, express stipulation, and at common law the land-language of political economy, he invests therein and to plough the lord's lands, to reap, cut, and lord, though he could distrain, could not eject a certain capital, which if he at any time leaves carry his corn or hay "—that is, the free tenure for nonpayment of rent. Long leases, however, he cannot entirely carry away; a capital which of many was turned into tenure in villeinage, or contained special covenants, both by lessor and becomes more or less incorporated with the soil, servile tenure: (Mirror 2, c. 2, s. 28.) So lessee, and the power of leasing was deemed so which cannot be entirely separated from it BRACTON states that many who held in free- important that it became the subject of special Hence arises, and by the instincts of reason and hold were ejected and made to hold their lands legislation in this country three centuries ago. justice, a certain natural tendency of all terri in villeinage. But that still even these held to The statute of Henry VIII., enabling tenants for torial property to become hereditary, a tendency them and their heirs so long as they rendered life to lease for a certain number of years especially powerful when society was still rude, the services due. "Fuerunt in conquestu liberi (twenty-one) or lives (three), at the usual and rea- and knew not how to estimate the value which the hominesi qui liberi tenuerunt tenementa sua sonable rent, was a distinct interference with the possessor, who is leaving it, has added to the per libera servitia, vel per liberas consuetudines, strict right of property, for it enabled the tenant soil, or to indemnify him by other means. It is et cum potentiores ejecti essent, postmodum for life to lease against the will, and without therefore the constant effort of the cultivator, of reversi receperunt eadem tenementa sua tethe consent or confirmation of the remainderman the possessor, to become perpetual proprietor:" nenda in villeinagio, faciendo inde opera or the owner of the inheritance. On the other (Guizot Lect. Civiliz., Lect. 2.) servilia sed certa: qui quidem dicuntur glebæ hand, by the statute of Elizabeth, the owners of adscriptitii, et nihilominus liberi, quia licet a certain species of property in land were refaciant opera servilia cum non faciant, ea ratione strained from leasing beyond a certain period or personarum, sed ratione tenementorum; et ideo a certain term. There, again, was an interassisa nova dessesina non habebunt, quia ference with the strict right of property. Leases tenementum est villenagium, sed parvum breve which could not have been granted could not have directo, secundum consuetudinem manerii et been restrained. But both these statutes-the ideo dicuntur glebæ adscriptitii, quia a gleba enabling and the restraining statutes-interfered amoveri non poterunt, quamdiu solvere possunt with the right of property for the benefit of the debitas pensiones": (Bracton lib. 1, c. 11, f. 7.) owner; and, under very strict limitations and Thus those who were freeholders' before the restraints, subject to those statutes, the power of Conquest were many of them made villeins, but leasing is not interfered with, and is left as it the law as to free agricultural tenure, or tenure stands by the general law of property. in socage, as it was called, continued to be the same, and the heir succeeded to his father's land, rendering the heriot or relief. Thus the law was laid down by GLANVILLE, temp. Henry II. (Glanville,c. vii. b 11, cited in Reeves, vol. 1, c. 2). And even the villeins, as BRACTON tells us, held their lands to their heirs as long as they rendered these services. This was the origin of copyhold tenure, the progress of which is traced Reviewing the general result of the working of agricultural tenure in this country, it is impossible not to see that, originally, it was deemed not unreasonable that the actual cultivator of the soil, who was to invest his labour and his capital in it, should have an inheritable estate in it and transmit it to his heir, so long as he or they rendered the services or rents due to the lord, for that this was their original state and It will be observed that the law assumed that the tenant would not invest in the soil unless he had a fixed tenure; and in this country, as we know, he has never done so. How far it is otherwise in Ireland is a question of fact and not of law. But this belongs to the history of the law on the subject: that the law which deems improvements or erections annexed to the soil, and belonging to the owner, was founded upon the assumption that they would not be exe cuted by tenants who had no fixed tenure. This is shown by the law of emblements, under which the law protected the tenant's crops, and only his crops, in cases of uncertain tenure, and gave no protection for anything invested in, or attached to, the soil during a certain tenure. It was evidently assumed that a man without fixed tenure would do nothing more than till the land, and, as to so much as was necessary to he done, to that extent the law protected the tenant and gave tenant right. Such a law would not, it is obvious, apply in a country where few of any under-tenants at will were accustomed or compelled to invest in the soil. of tenure. It is to be observed that tenant right, the principle of which is embodied in the law of emblement, is the compensation for the infirmity The man who holds in freehold or copyhold, or long leasehold, requires no tenant right. The necessity for it arises only in short or uncertain tenancies. Indeed, chiefly in the latter, where the tenancy is continuous, but uncertain, as in the case of tenancy from year to year going on year after year. In such a case the tenant can hardly do much without some investment in the soil, and yet his interest in it is wholly uncertain. In this country such tenure is not common, for the reason already mentioned, that in this country such tenants would not invest capital in cultivation, and the mutual interest of both landlord and tenants has led to leases, and long leases, or, whenever the tenancy from year to year exists, that mutual confidence between landlord and tenant, which supplies the place of leases. Suppose a different state of things, that is, one in which tenancies were in general uncertain through the whole duration, and the necessity for the tenant right arises. It is not a state of things contemplated or provided for ordinarily by our law, because, as the history of the subject shows, the state of things has not existed in this country which would require to be so provided for. On the other hand the powers of distress and ejectment conferred or allowed to be enforced here, were originally incident to fixed and certain tenure, not to tenure precarious and uncertain. Whether these stringest remedies should be allowed when the system of tenancy is contrary to the spirit and policy of the law, and whether the Legislature might not make the possession of them conditional upon the adoption of a certainty of tenure, and whether, still further, if certainty of tenure be not adopted, the principle of tenant-right may not be extended, these are questions worth consideration, and it may be shown that none of these things involve violation of the rights of property. Whether even a step further might not be taken without any greater violation of the strict right of property than is involved in the enabling statutes may likewise be worth consideration. But the question will be how to protect the tenant without interfering with ownership, and how to give security to tenancy without violating the rights of property. As part of the history of the subject, bringing it down to our own times and showing that it is not an obsolete head of the law, we may mention that there is at this moment in this country (chiefly in the North) a species of freehold tenure called customary freehold, which is also called tenant-right, and which is so described by the courts of law (see judgment of Lord ELLENBOROUGH in Doe d. Reay, 4 East, 288; Doe d. Cook v. Danvers, 7 East, 299). Under this species of tenure the land descends to the heir, but the tenant cannot alienate without a fine, nor devise without licence of the owner or lord, and the land is, moreover, liable to forfeiture. Finally, the freehold is held to be in the lord. Thus the law, acting upon custom, has united freehold tenancy with the right of property; it has given the tenant a freehold interest, and yet has preserved the owner's interest as well. No doubt this arose from custom, but then it arose and was sanctioned by law, because it was reasonable. And Mr. Justice BLACKSTONE, in his Considerations upon Copyholds (Law Tracts), points out how such customs arose in this country merely because the lord could not grant a freehold interest to the villein without enfranchising him, and so by these base tenures sought to convey the reality of a freehold interest without the form or name. Moreover, to enable owners to grant inheritable tenancies, the statute of Quia emptores would have to be got rid of, as it was in some cases in Ireland, by special statute: (see Delacherois v. Delacherois, 11 Clark's H. of L. Rep.) Unable, therefore, to attain the object directly, the owners of land attained it indirectly, through the medium of copyholds or customary freeholds, which are of the nature of freehold, and yet are not freehold, and give the tenant a freehold interest, without a freehold estate, and protect the tenancy while preserving the property. The question will be, how far these historical precedents afford any light to solve the great problem before our statesmen now. CHARTER-PARTIES. QUESTIONS of the utmost nicety have arisen and continue to arise in the construction of charterparties. Every clause in these maritime contracts has received more or less attention at the hands of the Judges both at common law and in equity, and it is somewhat remarkable that the proviso "or so near thereunto as she may safely get," where a ship is chartered to go to a particular port has not, up to the present time, received a distinct judicial construction. We are not, of course, unaware of the cases of Schlizzi v. Derry, 4 E. & B. 873, and Parker v. Winlow, 7 E. & B. 942, but as we shall show those cases do not decide the point whether, if a ship is unable to get into the port of destination because she draws too much water, she is bound to accept an offer of the consignees to lighten the ship at a convenient landing place adjacent, and thus to proceed into port. This is a point, however, which has arisen in the Sheriff Court of Lanarkshire, and which we reported last week. Now as to the cases mentioned. In Schlizzi v. Derry it was by charter-party agreed that the defendant's ship, then in London, should sail to Galatz or Ibrail, or so near thereto as she might safely get, and there load cargo, &c., perils of the seas, &c. being excepted. The ship reached the mouth of the Danube Nov. 5. Galatz lies ninety-five miles up the Danube, and Ibrail twenty miles higher. At the mouth of the Danube is a bar, upon which at the time of the arrival of the ship there was not water sufficient to allow her to pass. On Dec. 11 she sailed from the mouth to Odessa (100 miles distant), and there took in a cargo from other parties. It would not have been safe for her to remain off the mouth after Dec 11, and Odessa was the nearest safe port. On Jan. 7 there was water enough on the bar of the mouth of the Danube to enable the ship to go up to Galatz, and sail with a cargo up the river: Chief Justice Lord Campbell said that "the meaning of the charterparty must be that the vessel is to get within the ambit of the port, though she may not reach the actual harbour." And it was held that the vessel did not, within the meaning of the charter party, complete the voyage, and that the impossibility of waiting off the harbour mouth did not determine the obligation to complete the voyage. And in Parker v. Winlow, the ship was to proceed "to Plymouth, not higher than T. or N., or as near thereunto as she can safely get, and deliver her cargo, with certain lay days and demurrage days. The port of Plymouth is a tidal estvary. On the ship's arrival in Plymouth, the consignees ordered her to discharge at B., an ordinary landing-place in the port of Plymouth, lower than T. or N. At this time the tides were neap. The vessel went as near to B. as she could in that stage of the tide, and lay on the sand for some days, till the tides being higher she got to B. In an action for damage it was held that the consignee had the option of naming any ordinary landing place in the port of Plymouth within the limits assigned, and that the lay-days did not commence till the vessel reached the place so named, the delay in getting to it being occasioned only in the ordinary course of navigation in a tidal harbour. ing to the pursuer's evidence, the ship, even in this lightened condition, took the ground in the harbour of Glasgow, and was strained to such a degree, that on her return voyage she was with difficulty kept afloat. The suit arose out of a claim for demurrage, consequent on the delay caused by the failure of the consignees to accept delivery of the whole of the cargo at Greenock; and the sole question was, whether the pursuer was bound to accept the offer of the defenders to lighten the ship. The Sheriff-substitute, and subsequently the Sheriff, on appeal, decided that he was not bound to lighten his ship, but that the voyage was ended when the ship had got as near as she safely could to Glasgow, having on board her full cargo. We see no reason whatever for doubting the soundness of this decision. Any analogy which we may attempt to draw between this case and apparently similar cases, will reveal a prominent distinction. For example, if an embargo is laid upon certain ships, it is not necessarily permanent, it may be removed, and the question might be how long a ship was bound to wait for the removal. War, as remarked by Parsons when dealing with the subject of dissolution of of charter-parties (p. 274, vol. 1, Treatise on Maritime Law), annuls the obligation to carry a cargo, while an embargo or a prohibition may only suspend it. "If the measure," he remarks (p. 275), "is one which may be regarded as intended for a brief period only, and if the voyage may be delayed without material damage, and then resumed and completed with no other effect than that of temporary interruption, then we should say that the contract was not dissolved; that the ship, on the one hand, was bound to wait with her cargo on board for an opportunity of carrying it to her port of destination; and, on the other, that the ship had the right of insisting upon retaining the cargo for the purpose of thus earning the freight." And in a note to this passage reference is made to Schlizzi v. Derry in these words: "As an embargo merely suspends the contract, so a lowness of water, which prevents a vessel reaching the port, has the same operation." Exactly; an embargo and a lowness of water are temporary impediments in the generality of cases, but where the lowness of water is a permanent defect in the harbour as concerns the ship chartered, the analogy between this impediment and that of an embargo is gone. In a subsequent passage (p. 276) Parsons says, "If the continuance of this restraint and prohibition be not only uncertain, but, as far as can be judged, likely to continue for a long period, so that it would be unreasonable to detain the ship or the cargo in her to wait this distant opportunity. We should say the contract was now not suspended, but annulled." But in the case of a charter party containing the clause which is the subject-matter of our consideration the contract is not suspended or annulled, but performed when the ship has gone as near to the port as she can safely get, in accordance with the terms of the contract. The words of the charter-party are, "proceed with a full and complete cargo," and we know of no principle upon which a shipowner could be asked to suffer the loss of delay in order to lighten his ship to get into the port of destination, and should an appeal be made against the Sheriff's decision in the Scotch case giving the pursuer his demurrage, we are at a loss to understand upon what ground it could be reversed. THE GENERAL RULES UNDER THE BANKRUPTCY ACT 1869. A DRAFT of the proposed new rules under the Bankruptcy Act 1869 has been issued. The following is a synopsis. It will be seen that neither of these cases meet the difficulty which arises when there is no possibility that at any time of the year, and under ordinary circumstances, the ship will be able to enter the harbour without sustaining damage. So that the Sheriffs of Lanarkshire were quite right in regarding the matter as unsettled by any precedent. In the case before them, as will be seen by our report, the ship was ordered to proceed to Glasgow, "or," in the terms of the charter-party, "as near thereunto as she can safely get and lie afloat at all times of tide." According to the evidence of the The first rule gives the definition of terms. harbour-master, the deepest water at low tide in The second gives to the chief Judge in bankthe harbour at the time when the ship in ques- ruptcy, and every Judge of a local court of tion was required to discharge, would have been bankruptcy, power to delegate to a registrar of 16ft. even at spring tide, and by the evidence of his court, but to no other officer, such of the the pursuer, it appeared that when his ship powers vested in him by the Act as it may be arrived at Greenock it was drawing 173ft. of expedient for the Judge to delegate, except the water. The pursuer offered to discharge at the power to make an order of adjudication where Tail of Greenock Bank, but the consignees, the the debtor appears and denies that he is indefenders, refused to accept delivery, and the debted to the petitioner, or that he is indebted pursuer for some time refused to allow them to to such amount as would support a petition in lighten the ship by unloading a part of the bankruptcy, or to make an order to commit a cargo. This was at length done, however, by person for contempt, or to make any order the the discharge of 1000 bolls of beans, and the making of which is opposed, unless the parties pursuer proceeded to Glasgow, reserving all in any case consent in writing to the registrar matters in dispute for after settlement. Accord-exercising the power. |