PARTRIDGE AND COOPER CH

WHOLESALE & RETAIL STATIONERS,

92, FLEET-STREET, AND 1 & 2, CHANCERY-LANE, LONDON, E.C Carriage paid to the Country on Orders exceeding 208.

Re A DEBTOR'S SUMMONS

Affidavit Form No. 2 in schedule to General Orders Jan. 1, 1870--Need not be made by creditor himself..

802

NISI PRIUS.

HENNEQUIN e, O'DOWD

Evidence-Breach of agreement.

803

MCGREGOR. HIGH AND ANOTHER

Fixtures-Conversion of-Measure of damages..........

HOUSE OF LORDS.

RICHARD JOHN FOREMAN (app.) . THE FREE FISHERS AND
DREDGERS OF WHITSTABLE (resps.)-

803

COX'S CRIMINAL LAW CASES. Part V.

of Vol. XI., price 58. 6d. Full reports of all the Cases
decided by the Criminal Appeal Courts in England and
Ireland, at the Central Criminal Court, by the Superior
Courts, and at the Assizes. Edited by EDWARD W. Cox,
Serjeant-at-Law, Recorder of Portsmouth.

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

London: HORACE COX, 10, Wellington-street, Strand.
EVANS'S LAW DIGEST.

Now ready, price 88. 6d., Part III. of Vol. VII, of
HE LAW DIGEST.

THE
By D. T. EVANS,
ported and Statutes enacted during the half-year, so arranged

THE work of the Law Digest Commissioners appears to be making only slow progress. It will, no doubt, be remembered that about two years ago the task of preparing what were termed Specimen Digests" of the law relating to the three following subjects, viz.: Mortgages, Bills of Exchange, and Promissory Notes, and Easements, was delegated by the Commissioners to three barristers selected by them from a large number of competitors. Of these 'Specimen Digests" only one, that of the law of Easements, has yet been sent in to the Commissioners by its compiler. The other two Digests are not, we understand, advanced even so much as half way towards completion. It is undoubtedly true that the law of Easements is not so long or so heavy a subject to wade through, as either that of Mortgages or that of Bills of Exchange and Promissory Notes, but on the other hand it must be borne in mind that the name of the compiler of the Digest of the Law of Easements had not been previously associated as an author with the subject, whilst the gentlemen who were entrusted with the preparation of the digests of the law on the two other subjects were both at the time of their selection the authors of treatises upon them, so that they might fairly be presumed to be peculiarly "well up" in their work. How it is that they are now so much behind in the completion of their task we do not pretend to say, but the fact, if the rumour which we have mentioned above be true, is not to be explained by the mere length or weight of the subjects. Whatever the cause may be, it is clear that, unless

Esq., Barrister-at-Law. It contains all the Cases rethat the Practitioner can find in a moment what is the latest law on any subject. It is the only Half Yearly Digest of the Law; issued in the months of June and December. The back Parts and Volumes may still be had. Established the present rate of progress is greatly increased,

for 25 years.

LAW TIMES Office, 10, Wellington-street, Straud, W.C.

THE

Law and the Lawyers.

THE Beverley Commissioners find: That corrupt practices extensively prevailed in Beverley at the election of March 1857, at the election of Anchorage dues-Consideration to public for-Port 804 Aug. 1857, at the election of 1859, at the election of 1860, at the election of 1865, and at the election of 1868. The Bridgewater Commissioners report that they find that corrupt practices have extensively prevailed at every election into which they have inquired, viz., as far back as the general election of 1831.

ALMOST daily the Bar undergoes some fresh 309 humiliation. It is deplorable that it should be open to anyone to make the remark which fell from the PRIME MINISTER when introducing his 312 Irish Land Bill. He said that amongst the contributors to the literature of the subject were "members of the Bar, to whose name the title of learned' is not a mere formal appendage." The miserably defective condition of legal education has thus been recognised by the first man in the kingdom on one of the most important occasions of the century.

316

316

316
316

Stock and Share Markets..

317
317

Unclaimed Stock and Dividends in the Bank of England

317

Creditors under Estates in Chancery

317

Creditors under 22 & 23 Vict. c. 35

317

THE proposed judicial machinery for the administration of the provisions of the Irish Land Bill is twofold:-(1.) A court of Arbitration, to be chosen by the parties, whose decision shall be final and without appeal. (2.) A Civil Bill Court, consisting of the civil side of the sessions court, in which the Assistant-Barrister alone is Judge. The Assistant - Barrister will be at liberty, if he think fit, to reserve a case for a 321 higher tribunal, or to give parties, if they are willing, an amicable hearing in his pri321 vate room. His judgment will be subject to appeal. The Appeal Court will consist of two 321 Judges of assize, who may, if they choose, reserve a case for the Court for Land Cases in 321 Dublin, to be composed partly of equity and 322 partly of common law Judges. If necessary there will be three assize Judges. In trying cases the court will be guided by certain prin325ciples of land tenure set forth in the Bill, but 325 will have, under the "equities clause," a discretionary power to take into consideration the 326 conduct and circumstances of the parties.

322

322

324

326

326

326

VOL. XLVIII.-No. 1403.

the digest of the whole law of England, which has been so long and so much talked of, is not likely to become a reality within the present century.

Ir would be unfair, even if were practicable, to
venture an opinion upon a measure so wide
in its scope, and so muititudinous in its details,
as that which Mr. GLADSTONE opened to the
House of Commons on Tuesday, in one of those
marvellous speeches which, for clearness of ex-
position, surpass any recorded efforts of oratory.
For four hours he spoke without pause, without
hesitation, never at a loss for an idea or even
for a word, his discourse so well arranged that
every part of it seemed to come naturally in its
proper place, and a complicated scheme was
thus opened with an apparent ease and sim-
plicity that led the hearer, and doubtless the
reader also, to believe that he had it fully in his
mind, and was master of the whole subject.
Of course, when the measure itself comes
be examined carefully in its hard technical lan-
guage, stripped of the ornaments with which
the great orator's art had invested it, many diffi-
culties will present themselves, and there will
be much that will demand debate, and probably
revision. But of the whole it may be said that,
judging of the description of it in that masterly
speech, it will commend itself to the moderate
men of all parties in England. When the Bill
itself is before us, we shall be enabled to offer
and ask opinions upon its various provisions, and
we hope the lawyers will lend the invaluable
aid of their experience to the perfecting of a
scheme which ought not and will not be made
in any manner a party question.

to

THE INTRODUCTION OF THE MEASURES RELATING TO MERCHANT SHIPPING. THERE will have been little that was new to our readers either in the speech of the Secretary of the Board of Trade, or in the criticisms of hon. members who followed him upon the introduction of his twin measures to consolidate and amend the law relating to merchant shipping. The features in the first of these Bills, the great Bill consolidating all previous enactments, presented by the Secretary in his speech, were few He commenced with a statistical statement, from which he inferred that our marine is preeminently prosperous. Taking this standpoint, we see that all that we have to deal with is his internal regulation-and foremost in this respect stands the question of jurisdiction for the investigation of loss and injury, and the punishTHE Irish Court of Crown Cases Reserved has ment of offenders. Mr. LEFEVRE proposes that

these two matters should be quite distinct, and upon that no difference of opinion existed in the House, nor, we apprehend, will views differ much outside. On one or two subordinate points, however, members disagreed. Mr. LEFEVRE proposes that officers should lose their certificates only upon conviction of misconduct, and not for an error of judgment. We were rather surprised to find Mr. CAVE putting forward a doubt on this subject. "He doubted," he said, "whether it was proper to go so far as not to take away or suspend the captain's certificate in any case except that of misconduct for a gross error of judgment was often more dangerous than misconduct." This is a remarkable argument, and if, altogether apart from intention, acts of omission or commission were to be punished according to their dangerous consequences, we should have to reframe our criminal law. It appears to us harsh in the extreme to punish a man for an error of judgment which is ordinarily committed under circumstances difficult to explain, and capable, possibly, of different interpretations. Mr. CAVE stood alone in this respect, and Mr. GRAVES was energetic in denouncing what he correctly spoke of as the infliction of a penalty to which no other class of the community is subject.

We are gratified to observe that Mr. GRAVES put forward a proposition advanced by us in a recent article entitled "Maritime Jurisdiction." We suggested that the Board of Trade should abandon its appellate jurisdiction, and that appeal should lie to the Court of Admiralty "Let that board," he said, in almost our words, "initiate the proceedings, and be the prosecutor to put in force the machinery of the law, and there leave it. And," he added, "If the Court of Admiralty itself reviewed the proceedings of the court below, it would be looked upon as a much more satisfactory court of appeal than the Board of Trade." Upon this we concoivo there can be no doubt but the personal energy of the heads of that department leads us to expect that they will be very slow to part with any of their present powers.

Now as to compulsory pilotage. That as a general principle it should be abolished appears to be admitted, and the only question is what should be the exceptions and what law should govern in cases within the exceptions. Mr. LEFEVRE's great concern is expressed on behalf of existing pilots, and with a singular liberality he proposes to superannuate them where they are too numerous for the work by giving them twothirds of their incomes calculated on an average of five years. Mr. GRAVES took exception to this. The Liverpool pilots, he said, served eleven years before they got their licence. During that time they passed five examinations. Their earnings when they became pilots averaged 1957 a-year, and they had 100,000l. embarked in their property. They had an annuity fund of about 10,000l. or 11,000., and they paid annuities amounting to about 2000l. a-year to some sixty annuitants. He held that these men had a

vested interest which should not be overlooked by the House of Commons. The plan of his hon. friend to increase the superrannuation and reduce the number of pilots was not one, he thought, which would recommend itself to Parliament. With all respect for so high an authority, this appears to us to be very shortsighted reasoning. If pilotage being no longer compulsory, there was, as there certainly would be, less work for pilots, would it not be far better for them to receive an assured two-thirds of their previous incomes rather than risk loss of profit on the funds embarked? The Secretary of the Board of Trade distinctly does consider vested interests in the proposal which he makes, and which ought to meet with the sanction of Par

liament.

The suggestion to leave pilotage compulsory in certain quarters ought not in our opinion to be encouraged. We would even go so far as to say that other Powers ought to be urged to follow our example and avoid difficulties such as arose conspicuously in the case of the Halley. But even should pilotage be allowed to remain compulsory in certain districts shipowners ought no longer to be exempted on that score from their common law liability. The evil at present existing was concisely stated by Mr. LEFEVRE. He remarks that "It was not too much to say that whole classes of shipowners were deprived of a remedy for losses occasioned by the fault of others when they came into col lision with vessels under compulsory charge of

pilots. If two vessels came into collision at the
mouth of the Thames, both under charge of
pilots, the one, however, bound for the west
under compulsory charge of a pilot, the other
bound for the north of Europe under voluntary
charge of a pilot; if the first were in fault,
the other had no remedy;-but if the latter were
in fault the owner must pay the damage."
This is a state of things which is a disgrace to
any properly governed country. Mr. GRAVES
made the suggestion which is most consistent
with common sense. "Let the pilot be treated,"
he said, "as he ought to be as a mere local
guide; let him be the adviser of the captain to
point out where are the shoals and the channels,
and what are the sets of the tide and the cur-
rents, and the depth of the water."

to all the expenses incurred to enable the ship to proceed. The Exchequer Chamber has decided otherwise.

The facts of the case of the Southern Belle were these: The ship was blown ashore by the heavy cyclone at Calcutta, and the cargo was discharged, landed, and warehoused on the 16th Oct. The vessel, however, would not float, and three days afterwards, on the 19th Oct., a contract was entered into with a firm for the purpose of getting the ship off, and eventually, after considerable exertions, she was floated, at an expense of 25007., and the question at issue was, whether the owner of the cargo was liable to contribute towards the expenses incurred in getting the ship off the bank and floating her. She was repaired, and took the cargo on. And On the subject of lights several members ex- the court held that there was no common danger pressed regret that amendments in the regula--that it did not matter to the cargo whether tions were not proposed by the Bill. Mr. GRAVES the ship was floated or went to the bottom, as it thought that it would have been better to elimi- could be sent on by another ship. Now, in Job nate it from the Bill Mr. STEVENSON con- v. Langton the facts were shortly these: The ship sidered that Government ought to undertake went ashore; the cargo was all landed and stored. the control of lights round the coast as an im- The ship was dug out. The cargo was carried perial duty, but that in any event the Bill "should on by another ship, and this fact was taken endeavour to remedy many of the anomalies notice of by Lord Campbell, although it was that at present existed in the lighting-house agreed by the parties that for the purposes of system now in force; for instance, vessels carry- the decision it should be assumed that it was ing small cargoes only should be placed on the carried on by the same ship. It was held that same footing as those carrying ballast, and not the cargo was not liable in general average. In be forced to pay the full lighthouse toll, as at Moran v. Jones, the Tribune sailed from Liverpool present." Mr. LEFEVRE, in reply, held out a half on the 7th July, but was forced by a storm to promise of reduction in certain of these dues, anchor near the entrance of that port. To but said that the question was not ripe for the relieve her the foremast was cut away, but she consideration of Parliament. drove ashore and became fixed upon the bank. On the 9th assistance was procured, and the furniture of the ship, together with the goods on board, were sent in lighters to Liverpool. On the 14th a stream anchor was carried out. She re-shipped the cargo, and proceeded on her was eventually floated, taken back to Liverpool, voyage. The cargo was held liable in general average on the ground that there was one continuous operation, commenced before the goods

On the whole we consider that the mercantile community ought to be very well satisfied with ducing these important measures. But we most that the main Bill should be treated like the Act strongly object to Mr. LEFEVRE's proposition of 1854-carried in a single night. Hasty legislation only entails upon Parliament fresh labours, and crowds the statute book with repealing and amending Acts.

the manifest care of the Government in intro

GENERAL AVERAGE CONTRIBUTION
ON GOODS TEMPORARILY LANDED.

THE recent judgment of the Exchequer Chamber,
confirming the decision of the Court of Ex-
chequer in the case of the Southern Belle (Wal-
thew v. Mavrojani), is the only respectable English
decision on the question whether cargo taken
housed in safety and then reshipped, is liable to
out of a ship aground, and landed and ware-
contribute in general average for the expenses
incurred in floating the ship and fitting her to
again take on board the cargo and carry it to its
destination. There were two prior decisions on
this subject-Job v. Langton, 6 E. & B. 779, and
Moran v. Jones, 7 E. & B. 523-both of which,
however, must be regarded as in some respects
unsatisfactory for reasons which we shall state
presently.

The general principle seems to us to be accu-
rately laid down by Mr. Parsons in his work on
general average (vol. 2, p. 265). He says, "It
is a universal rule in reference to the question,
What expenses come under general average? that
where these expenses are incurred for the exclu-
sive benefit of any part of the common pro
perty that alone is liable for them." "And if
expenses are incurred for a common benefit, and
thereafter goods which are liable to contribution
are landed and delivered to the shipper or consignee,
those goods are not liable for further expense
subsequently caused." Now upon this two points
arise: first, what is the meaning of exclusive
benefit? and secondly, is there any difference
between the two cases, the one where goods are
landed and warehoused by the master of the ship
until he is in a condition to carry them on, and
the other where, in the words of Mr. Parsons,
they "are landed and delivered to the shipper or
consignee ?" Or, to put it as one general ques-
tion, Are not goods landed and reshipped liable
to contribute to the expenses incurred after the
landing of the goods for the purpose of enabling
the ship to complete her voyage? We have no
difficulty in coming to the conclusion that goods
which are landed and not reshipped, cannot be
made liable for expenses incurred after they
are landed. That is the case put by Mr. Par-
sons, and he seems to have had in mind the dis-
tinction, because he inserted the words which
we italicise above. Before the decision in the
case of the Southern Belle, we should have said
that where the cargo is reshipped it contributes

were landed and continued afterwards. In Job
v. Langton, Lord Campbell, C. J. said the labour
by which the ship was got off was a new opera-
tion. In the American case of Nelson v. Belmont,
"The case of
21 N. Y. R. 36, the court say,
but I cannot resist the conclusion that the idea
Moran v. Jones was, I think, rightly decided;
of a continuous operation commenced before and
continued after the removal of the goods was
resorted to in order to reconcile the decision
with that in the previous case of Job v. Langton."
Job v. Langton upon a knowledge of a fact which
When we remember that Lord Campbell decided
the parties wished to exclude from his considera-
tion, we think we may say that had he followed
the agreement of the parties, he would have
come to a different conclusion, and held the
cargo liable in general average on the same
ground as in Moran v. Jones.

There have been more decisions on this subject in the United States than in England, and although one case goes a very long way in making cargo taken out of a ship liable for subsequent expenses, the preponderance of authority is in favour of the doctrine that when any part of the adventure is no longer at risk, but completely separated, it ceases to contribute. This in these words-"if the owner of any portion of is laid down emphatically in Nelson v. Belmont, the cargo, even after a peril has occurred, and after a series of measures to avert it have been commenced, can succeed in so separating his own property from the rest that it is no longer in any sense at risk, he cannot be held liable to contribute to the expenses subsequently incurred." But then the court add, "unless the property claimed to be exempt is not only separated from the rest, but entirely disconnected with the enter prise, it must be regarded as still at risk, and liable to contribute."

The facts there were these: The cargo of the vessel being on fire, the master transferred a quantity of specie to another ship, which by his request convoyed him into a port of distress. He there incurred expense in putting out the fire and repairing damage to the vessel, the specie being meantime deposited in a bank. The damages were found to be such that the cargo was sold, and the voyage abandoned. It was held that the specie was liable in general average for the expenses incurred at the port of distress. The court said, "If the captain of the Galena had put the specie on board the brig, not in any way to be returned to him, but to be taken by the brig to its port of destination, and

the latter had then been suffered to pursue its course, the specie would clearly not have been subject, to contribution for any subsequent expenditures to save the Galena."

The American decision which goes farthest in opposition to the decision of the Exchequer Chamber is that of Bevan v. The Bank of the United States, 4 Wharton, 301. There the vessel was on a voyage from New Orleans to Philadelphia, and became stranded and ice-bound in Delaware Bay, but a short distance from her port of delivery. She had on board 9,000 dollars belonging to the defendants. It was necessary to discharge the cargo, and the specie was first removed, being taken on sleds to the shore, and delivered the next day to the defendants. Two months afterwards the vessel reached Philadelphia in safety, with the residue of her cargo, which had been discharged into lighters, and afterwards re-shipped. During this interval a number of additional charges had been incurred for the safety of the vessel and the remainder of the cargo. The action was brought to recover the defendants' proportion of the general average loss; and the court held that they were liable for the expenses after the specie had been delivered to them at Philadelphia. In Nelson v. Belmont this case was in effect overruled. We will look, however, at the grounds of the decision as stated by the court, and the objections put forward to them in Nelson v. Belmont.

ties would seem to be in favour of the doctrine
that where cargo is taken out of a ship with the
intention of reshipping it when the ship is in a
fit state to proceed, the cargo is liable to con-
tribute. And when the reshipment has actually
taken place, and the ship about which expenses
have been incurred has actually carried the
cargo to its destination, it is difficult to under-
stand why it should be exempted from con-
tribution.

PATENTS IN ENGLAND AND AMERICA.
MR. STETSON, an able American writer on ques-
tions affecting patents, has communicated to the
Liverpool Polytechnic Society, what is the con-
ditions of patent right in that country accom-
panied by some suggestions for modifying the
English law and practice so as to bring it into
a form more resembling the American system.
In the first place he points out that American
patent law and practice differs from the British
mainly in this. They allow experiments in
public with an invention for any period less than
two years prior to the application for patent,
without vitiating the claim. Further, they make
a severe examination, by skilled experts, into the
novelty of the invention, with a view to refuse
the patent if it will not be valid. By the first
he tells us an excellent desideratum is attained.
The inventor's money is saved, and the record of
patents to a great degree is prevented from being
inventions.

British system compels almost absolute secrecy
On the other hand he justly remarks the
down to the day of application for provisional
protection. In England, as is well known, the
short time to comply with all the requirements
English inventor has even now a comparatively
necessary for completing his patent.
The
American, on the other hand, Mr. STETSON re-
marks, "may experiment in comparative safety
for eighteen or even twenty-three months in
public before he spends the first dollar on his
application for patent. It is not often necessary
to do this, but when the inventor requires even
more time our laws are lenient in regard to
him."

report by one hundred pages of dissertation on the general law. To this we shall proceed to refer, simply remarking before doing so, that the charge to the jury has been carefully revised by the Lord Chief Justice.

It is of considerable importance that we should all be well informed as to the history of attempts, whether successful or otherwise, to punish commercial offences by means of the criminal law. Mr. FINLASON has had occasion to report many such cases during past years, and he is therefore a valuable assistant in reviewing the history of the subject. We will summarise what he details. Burnes v. Pennell, 2 H. of L. Cas. 497, laid it down that if the directors of a company agree to publish false statements of the affairs of the company under such circumstances as show a fraudulent intention to deceive, they may be criminally prosecuted and punished. Upon this case arises the important question, What is a fraudulent intent? Our author states cases to illustrate what is to be regarded as a fraudulent intent with regard to the sale of a business. "It is a rule," he says, "that the purchaser of an estate, stated to be subject to leases, is presumed to have known the nature of the leases; as he might have known them if he had chosen to ask for them. So on this principle it is plain that the purchaser of a business known to have made some bad debts must be presumed to have he had asked for the accounts. And so in the against losses of assets transferred, it was for the present case, where the prospectus, on the face of it, disclosed that there was to be a guarantee : (Pope v. shareholders to ask the amount Garland, 4 Y. & C. 394.)

So far as to failure to disclose. Now as to misrepresentation. In his work on the sale of personal property Mr. BENJAMIN says (p. 315), it is now well settled that there can be no

remaining on board pay for the expense of saving In Bevan's case the court said that as goods encumbered with crude, immature, and useless known the amount; as he might have known if those landed, the obligation should be reciprocal. In Nelson v. Belmont the court considered this reasoning unsound, because the goods on board whilst saving those landed, contribute to their own safety. A second ground of the decision in Bevan's case was that the owners of cargo in a single ship are partners for the entire voyage. It was objected in Nelson v. Belmont that the partnership is accidental, and the tie being severed-which is severable at will-mutual obligations are at an end. Further, in Benan's case the "continuous operation" doctrine was relied upon, but extended, it being said that the same extraordinary exertions of the master and crew which carried the vessel and the residue of the cargo safely to its destination, were used for the speedy preservation of the vessel and cargo when stranded and in danger of being lost. We do not think, however, that so strained a

principle could by any possibility be supported. It will not be disputed that giving the fullest effect to the limitations in Nelson v. Belmont, it nevertheless establishes that so long as the cargo landed remains interested in the enterprise, and in cases therefore where the intention is that it

fraud without dishonest intention, no such fraud as was formerly termed a legal fraud. Therefore, however false may be the representation of one party to another to induce him to make a contract, there is no ground for avoiding it as obtained by fraud if the party making the repreThe American system of examinations would sentation honestly believed it to be true." This seem to be far better than ours. There are, we principle really lay at the base of the Overend are told, eighteen chief examiners (including and Gurney case, for the question resolved itself few first assistants, performing the duties of into this: Did the members of the old firm chief examiners) and there are an average of, know that the business was hopelessly insolsay, two assistants to each chief examiner. vent? Upon this Mr. FINLASON makes some Then there are three examiners-in-chief, to whom important observations. He asks "What is a appeals lie from the action of the chief exami- knowledge that bankruptcy is inevitable? which ners. From the board of examiners-in-ohief a involves the question What is insolvency?' case may be appealed to the commissioner in and indirectly involves the question of liability person, the highest authority in the office. There of money-dealers as to sufficiency of assets to is also a chief clerk with many assistants, who meet demands of their depositors." "This," have charge of the records and models, and a he adds, "is one of the most difficult questions force of copyists and attendants, including to determine in point of law, since it depends so about fifty women, making the total force in the much upon matter of fact, and on the nature and United States Patent Office amount to nearly usages of a particular business, and the demands two hundred persons. likely to be made upon it. The very term insoldealer or banker cannot pay, at the moment, all vency is (as has been pointed out by judges) ambiguous; for it may mean merely that a

should be taken on board again, and carried to its destination, it should be made to contribute to the expenses incurred whilst it is in safety. The exact period at which the operation of getting the vessel afloat commenced does not appear to be material, because the landing of cargo sought to be made liable would be a part of any such operation. And this view does not seem at all inconsistent with the decisions of Job v. Langton, and Moran v. Jones, looked at by the light which we have thrown upon them by be a great progressive step. But that "for her his debts at once, though he has plenty of assets

United Kingdom to adopt the two features of
Mr. STETSON'S conclusion is that, for the
the American system, which he describes, would

to enable him to meet the whole, if he has reasonable time to realise them: (Fidgeon v. Sharpe, 5 Taunt. Rep.) And it was long ago settled that this is not necessarily insolvency; at

stating facts universally admitted. To complete our citation of authority, we will next refer to McAndrew v. Thatcher, 3 Wall. There the master of the ship landed the cargo, and delivered it to the consignees, and abandoned. intelligent industrial classes of the world, a all events, in any such case as to render it the

The agent of the underwriters raised her, expending more than her value, and delivered a remnant of cargo to consignees. The owners of cargo were held not liable in general average for expenses incurred after the underwriters' agent came on board. The court below, this being an appeal, had held the owners liable, basing their judgment upon what appears to have been an admitted fact, that when the expenses in question were incurred, the cargo in the lighters was not completely in possession of the consignees, but was still at risk. They said that had anything then happened to the cargo, the ship would have been liable in general average, and thus the cargo was interested in the ship. The appellate court used these words: "The liability of a cargo to contribute in general average in favour of the ship does not continue after the cargo has been completely separated from the vessel so as to leave no community of interest." Consequently it was a question of fact, whether the goods had or had not been completely separated from the ship.

To return to the questions propounded at the commencement of this article, all the authori

to abolish patents for useful inventions alto-
gether, would be a step towards the condition of
Egypt and China, and, in the firm belief of the
great public calamity."

THE PUNISHMENT OF COMMERCIAL
FRAUD.

duty of the trader to deem bankruptcy inevitable: : as where traders had many thousands of pounds locked up in distant assets, but believed that their creditors would give them time to realise the assets. Or, again, insolvency may Ir will probably be a very long time before mean that a man is in such a state that he must the prosecution of the OVEREND and GURNEY know he cannot pay his creditors, as he has not directors is forgotten. Possibly years may assets equal to their claims; and in either sense elapse before its silent influence ceases to be of the term, it is manifest that this involves, in regarded. However ill-judged the prosecution, a great degree, a question of estimate and and however miserable its failure, there can be valuation as to the amount or value of the assets, no doubt that it was a natural product of the and that this must necessarily be more or less a state of our commerce. Consequently it remains matter of opinion; so that it is virtually a quesas an example, and a legal precedent of con- tion of honest or reasonable belief. siderable value. It involved the immensely im- And, again, it has been laid down that, from a portant question where innocent misrepresen-person being in embarrassed circumstances, it tation ends, and where fraudulent misrepresentation begins.

All who perused the report of this case in the columns of the Times, must have observed the remarkable fulness and accuracy with which that duty was discharged, and nothing could be more natural than that the reporter should publish a separate report in book form. This has been done, and Mr. FINLASON introduces the

does not necessarily follow that he contemplates bankruptcy, as he may hope that his affairs may rally and come round:' (Green v. Bradfield, 1 Car. & K. 149.) And it has repeatedly been held that it is not an abstract question of law, but a question eminently of fact, dependent upon all the circumstances of the case, especially the nature of the business, the estimated value of the assets, and the probability of imme

diate pressure, and not merely on the bare abstract amount of the liabilities, as compared with the amount of ready money to meet them: (Gibson v. Muskett, 3 Sc. N. S. 419; Cook v. Prichard, 5 M. & G.)"

And as to the business of money lending he

makes this deduction: "No doubt the money

dealer, like any other trader would be bound to have a sufficiency of assets to meet or balance all demands, but not to meet them all immediately and all at once. That is, he would be bound to have assets equal in value and amount; and if he had, he would be solvent, provided, at all events, he also had ready assets to meet all ordinary demands; that is, all demands which from the nature of his business, were likely to be made, until he could realise his other assets. In the case of a banker or at least of a money dealer, this would mean that he had ready assets sufficient to meet the amount of arrears due and

jury as counsel. (a) And in a criminal case a
party has no right to confound the function of
witness and advocate. And although in criminal
courts it is the practice for barristers to plead
without the intervention of attorneys, and taking
their instructions only from their clients, this
has never been usual except in cases of pri-
soners who may not have funds to instruct
attorneys; and in the time of Lord CAMPBELL
it was pronounced by the Court of Queen's
Bench more convenient for the satisfactory ad-
ministration of justice that the ordinary practice
of instructing counsel through attorneys should
prevail: (Doe d. Bennett v. Hale, 15 Q. B.)"

This is the view which we expressed at the
time, and we are glad to see it supported by un-
doubted authority.

THE ILLEGALITY OF GAMBLING.

We propose to consider in the present paper the
question as to how far the act of gambling is in
itself illegal, and the effect of such illegality.

six years, because tending to discourage marriage, have been held illegal and void: (Evans v. Jones, 5 M. & W. 77; Hartley v. Rice, 10 East. 22.) With the above and similar exceptions wagers were not unlawful at common law, and might give a good cause of action.

sons.

daily

payable on loan, and the amount of deposits ordinarily likely to be withdrawn, after allowing for other deposits ordinarily renewed. In other words, the assets ought to equal in value and And we shall include under the term gambling, decayed and daily is like to be more minished."

amount the whole of the liabilities, and the ready assets the ordinary amount of current or instant liabilities, with some reasonable margin for some excess of demand."

both the playing at any game for money or any
valuable thing, and the making any wager or bet
dependent on any uncertain event.

At common law gambling was not illegal. It was illegal only if it involved cheating or some Much misapprehension is likely to arise when unfair practice, or playing for large and excesa business breaks down as to the remedies of sive sums, or taking part in some game or transparties deceived by exaggerated representations, action in itself illegal or contrary to public and for the purpose of enlightening them, Mr. policy. Thus, cheating at cards or any other FINLASON'S Work will be valuable. Quoting his reference to cases, it has been held (Rex V. ning money, was indictable and punishable by game, using false diee, &c., as a means of winWatson, 27 L. J. 281, M. C.) "that a party fine, imprisonment, and the pillory. So, too, obtaining money from another upon the most playing for excessive sums, as was said by Lord exaggerated representations as to the value Tenterden, in Reg. v. Rogier, 1 B. & C. 275, of a business, which, or a share in which, he dis- would "of itself make any game unlawful and poses of to the other, cannot be indicted for the an offence at common law," though the question fraud, unless the whole scheme is a sham, and as to what would be an "excessive" sum would the business merely a pretence of somethingbo difficult of solution. Wagors on a cock-fight really not existing. Thus, where a person induced another to enter into partnership with him upon the most gross and exaggerated misrepresentations of the value of a business, which in truth was extremely small, it was held that he could not be indicted, because his representations (as Cockburn, C.J., put it) were not altogether false, and there was a business and a partnership in it, and because (as Erle, C.J., put it) an indictment cannot be sustained by proof of mere exaggeration of the prosperity of a business where there is a business. It is difficult to draw a defined line, but it has been decided that exaggerated praise does not render a person liable."

This case and the case of Reg. v. Williamson, 21 L. T. Rep. N. S. 444, are, as our author points out, quite consistent with the string of decisions, including the great British Bank case in 1858. Upon that case Mr. FINLASON remarks: "The defendants were convicted; but it will be observed that they were convicted of actual misrepresentations, wilfully false, and that they were convicted of putting forth to the public and the shareholders fraudulent balance sheets, founded on falsified books, representing a concern to be solvent and profitable when they knew it to be totally insolvent, and representing debts, known to be desperate and hopeless, as good for the full amount. All this was represented by them to the public by means of fraudulent balance-sheets put forth to the public. It would be impossible to conceive a clearer or stronger case of actual fraudulent misrepresentation to the public of facts within the knowledge of the defendants."

We have by no means exhausted our author's introduction as to the law which is followed by an exhaustive examination of the case against the Gurneys by the light of the legal principles so ascertained; but we have done sufficient to show the prevailing bearing of judicial opinion, and for fuller information we refer to the work itself.

says,

was illegal at common law, because cock-fighting
were illegal and indictable at common law. And
in various cases wagers have been held void, as
contravening public policy.

In Da Costa v. Jones, 2 Cowp. 729, the plaintiff
and defendant made a wager on the sex of the
Chevalier D'Eon, the wager being that in con-
defendant, on Oct. 4, 1771, the sum of seventy-
sideration that the plaintiff would pay to the
five guineas, the defendant promised that he
would pay the plaintiff 3007. in case the Chevalier
should at any time prove to be a female. Lord
Mansfield, in giving judgment, said: "Indif-
ferent wagers upon indifferent matters without
interest to either party, are certainly allowed by
the law of this country in so far as they have not
been restrained by particular Acts of Parlia-
ment." But he held that the action would not
lie, because such a wager was an injury to the
individual made the subject of it, affecting his
interests and feelings, and calculated to disturb
the peace of society. In Gilbert v. Sykes, 16
East. 150, the plaintiff declared upon a wager
the terms of which were that, in consideration of
the plaintiff's paying down to the defendant 100
guineas, the defendant should pay the plaintiff
one guinea a day so long as Napoleon Buona-
parte (then First Consul of the French Republic)
should live. The defendant paid one guinea a
day from May 1802 till Dec. 1804, when he
ceased the payment, and the action was brought
to recover 22967, the amount unpaid up to the
date of the action. The bet, it appeared, was
made after a conversation between the parties as
to the probability of Napoleon's assassination.
The bet was held void on grounds that are not
very clear. Lord Ellenborough appeared to
consider that the plaintiff's pecuniary interest in
Napoleon's life would prevent him from taking
a very active part in resisting, what was then
thought to be, an impending invasion of England
by Napoleon; that such a bet might encourage
the "malignant imputation that England coun-
tenanced in any way the assassination of an
enemy," and therefore that the bet was against
public policy and of immoral tendency.

One or two concluding remarks as to the conduct of the case. Speaking of Dr. THOM's wish to conduct the prosecution in person, Mr. FINSo a wager as to the conviction or acquittal of LASON states clearly the practical and political a prisoner on a criminal charge, because tending objections to such a course. "This," he to cause the parties to it to endeavour to in"would have been contrary to the settled prac-fluence in some way the result of the trial; and tice of superior criminal courts, and contrary to a wager that a person would not marry within convenience and public policy, as it would tend to mix up the functions of prosecutor, advocate, and witness. Hence it has been held that a prosecutor conducting his case in person, and who is to be examined as a witness in support

(a) Rex v. Brice, 2 B. & Ald. 606; Rex v. Milne, 2 Ibid. 606. A person who conducts a cause as advocate cannot be examined as a witness therein; and if he is so examined, the court will graut a new trial on that ground: (Dunn v. Packwood, 1 B. C. Rep. 312; 11 Jur. 242— Rep. 248; 16 L. J. 32, Q. B. ; 11 Jur. 44-Patteson, J.)

This being the common law, we will now consider how that law has been affected by statutes. By some of the early statutes certain games and sports were made illegal to certain classes of persons, or if used in certain places or seaThe statute 12 Ric. 2, c. 6 provided that "servants and labourers shall have bows and arrows, and use the same on Sundays and holidays, and leave all playing at tennis or football, and other games called quoits, dice, casting of the stone, and other such importune games." This statute, obviously for the encouragement of archery, was followed by 33 Hen. 8, c. 9, which in the preamble recites that "many subtle and inventative and crafty persons find many and sundry new and crafty games and plays, by reason whereof archery is sore Sect. 6 then enacts that no "artificer, craftsman, husbandman, apprentice, labourer, servant serving-man shall play at tables, tennis, dice, at husbandry, mariner, fisherman, waterman, or cards, bowls, &c., or any other unlawful game for every time, and in Christmas to play at any out of Christmas, under pain of 20s. to be forfeit of the said games in their masters' houses or in shall at any time play at bowls in open place out their masters' presence." This is followed by a general provision that "no manner of person of his garden or orchard, under pain for every time so offending to forfeit 6s. 8d." The statute subsequently, by sect. 16, gives to noblethe yearly value of 100%, the power to license men and others having manors, lands, &c. to their servants and families and others repairing to their houses to play at cards, dice, tables, bowls, and tennis, within the precincts of their houses, gardens, and orchards. Any gambling connected with games by the above statutes statutes contained no express provision on the made illegal was of course illegal also, but the subject. The first statute expressly against "An Act against This recites that, all lawful games and gambling was 16 Car. 2, c. 7, Deceitful, Disorderly, and Excessive Gaming." exercises should not be otherwise used than as innocent and moderate recreations, and not as make unlawful advantage thereby; and enacts constant trades or callings, to gain a living or that if any person by any fraud, deceit, or illpractice in playing at, or in bearing a part in the stakes, or in betting on any game or pasthen such person shall forfeit treble the sum so time, shall win any money or valuable thing, by the loser or an informer." Sect. 2 enacts that won, and pay treble costs in an action brought if any person shall, by playing at, or betting on any game or pastime, lose a sum of money or other thing, "exceeding the sum of 100%. at any otherwise, and shall not pay down the same at one time or meeting upon ticket or credit or the time when he shall lose the same," then the loser shall not be compellable to pay, and any contract or security for payment shall be void, given by the 1st section. This statute did no with the like penalty on the offender to that affirm and enforce by a penalty the common law more than define the term "excessive," and as to cheating and excessive gambling. But it will be seen that the statute had no application to gambling, where the losings, whatever the amount, were paid down. Then came the statute 9 Ann. c. 14, making void all contracts or securities for the payment of money lost or knowingly lent for gaming or betting, and perof 10. by gaming or betting to recover the mitting the loser, at any one time or sitting, money, if paid to the winner, by action within

three months. If the loser did not sue within the time named, any person might do so, and recover treble the sum lost and treble costs. Sect. 5 makes winning money or any valuable thing by fraud, deceit, or unfair practice in gaming or betting indictable, the offender to be be subject to a penalty of five times the value so won, to infamy, and to corporal punishment as in perjury. We have given the effect of the above statutes, because they illustrate the progress of the law on the subject, but they are not now in force. The statutes of Ric. 2, Car. 2, and Anne, above referred to, have been repealed, and that of Hen. 8, though

of the indictment, has no right to address the Erle, J., S. P.; Stones v. Bacon, 4 Dowl. & L. 393; 1 B. C. expressly repealed as to some of its provisions