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T1112 Loan CIIIEF J usrrcs, in his address to the Birmingham Law Students’ Society, which we report elsewhere, renewed his plea for a. better system of legal education, and took occasion to refer, with some reprobation, to the recent change in the arrangements made by the Incorporated Law Society for the education of articled clerks. We think that he can hardly have been fully informed as to the reasons which led to the change. The Council of the society were not only willing, but anxious, to continue the lectures and classes; but they had no means of enforcing attendance at them, and the articled clerks refused to take advantage of the means of education ofiered. The substitute provided is merely temporary, the Council being among the warmest supporters of an eflicient law faculty in the Teaching University of London, and if the benchers of the Inns of Court were equally hearty in availing themselves of the opportunity, there would probably be little difficulty in setting on fioot a school of law which would carry out Lord RUssnI.r.’s w1s es.
Tnn LATTER ram‘ of the Lord Chief .Tustice’s address, which is devoted to a consideration of the qualifications for successful advocacy, though perhaps not very novel, is likely to be of value to law students and practitioners. The recipe for this, as for cookery, is first of all to catch your hare—that is, in the present case, to ascertain with precision the facts which are to be dealt with. We remember to have heard that an eminent criminal law advocate was in the habit of making a sort of time-table with regard to each of his cases; arranging all the facts in exact chronological order, with date and time in the margin; and in all legal matters a somewhat similar process is necessary. Then you have to consider the principle of law applicable to the question arising on the facts, and from a consideration of the facts and the law to ascertain what is the main
point on which the decision is likely to turn. Next there is to be considered what can be said on the other side, and then the advocate has to convey as clearly as he can to the court the point on which the case turns, and to enforce his view as to the rule of law which is applicable. The Lord Chief Justice seems to suggest that this is the whole art of advocacy; but, with great deference, we venture to think that there comes in here the whole difference between the great and the common-place advocate. The great _advocate is the man who, in addition to knowing the strong points of his own and his adversary’s cases, knows how to l_ay the case before the court in such a manner as to render prominent his own points, and, while not ignoring the points of is adversary, to reduce their importance, or, as far as possible, lead the mind of the judge away from them. Anyone who in former days had to consider a complicated and doubtful case and afterwards heard it argued by Sir Homes DAVEY, will remember the exquisite skill with which he marshalled his arguments, commencing with the least important, whereat the court would sniff; then progressing through a seiies of more tenable points, gradually bringing the court to think that after all there was a good deal in the matter; and continually fencing with and meeting any suggestions of the adversary’s case, until at the right moment he would bring forward his leading argument, and develop it until he saw that it had taken possession of the mind of the judge, when he would immediately wind up his address. This kind of skill is almost instinctive, but no one can be a great advocate without possessing it.
AN INTERESTING point as to the right of the creditor of a bankrupt to recover a debt incurred after notice of the bankruptcy, but before the date of the receiving order, arose in liuol.-well v. Norman before the Court of Appeal (reported elsewhere.) As a rule, all debts and liabilities to which the debtor is subject at the date of the receiving order are debts provable in the bankruptcy, and are consequently released by an order of discharge. But sub-spction (3) of section 37 of the Bankruptcy Act, 1883, under which debts generally are so provable, is preceded by the enactment that a person having notice of an act of bankruptcy available against the debtor shall not prove for any debt contracted by the debtor subsequently to the date of the notice. As this enactment stands in the section, it is extremely diflicult to say whether the effect is simply to debar the creditor from proving for the debt in the bankruptcy, leaving him to his remedy against the debtor after he has got his discharge, or whether, while the creditor is precluded from roving, the debt is still included among debts provable in the bankruptcy, so as to be released by the discharge. In Buc/l"u"ell v. Norman a debtor who owed his solicitor a sum for costs stated to him that he _w_as u_nable to pay his debts, and instructed him to file a petition in bankruptcy. Under section 4 (Ii) such a statement made to a creditor is in itself an act of bankruptcy, and the solicitor, in allowing the debtor to come under a liability to him for the costs of the petition, was allowing him to contract a debt after notice of_a_n act of bankruptcy. The petition was presented, and a receiving order made, and the solicitor received, under the Bankruptcy Rules, his taxed costs out of the estate ; but he claimed that the balance of the costs was not a debt provable i_n the bankruptcy, and that he could sue for it notwithstandmg the discharge. Section 37, in saying that for certain debts the creditor shall not prove, and then proceeding to deal with all debts “provable,” certainly raises a presum tion that debts which thus cannot be proved are not provabiza. But the Court of Appeal have held that the prohibition upon proving certain debts is a personal disqualification imposed upon creditors who allow the debts to be incurred after notice of an act of bankruptcy, and that the debt, though it is incapable of being proved in the bankruptcy, is still included under provable debts. Hence the balance of costs in the present case was not a debt in respect of which the solicitor could sue.
Tn]: nscisioiw of the House of Lords in South A_/rimn Terri'Iories (Limited) v. Wellington (reported elsewhere) a pears to add nothing to the law as to the remedies for a breach of contract to lend money. lt is perfectly well settled that of such a
contract specific performance will not be ordered. The remedy
for the breach is in damages, and in damages only, and the party
complaining of the breach can only recover if he proves damage.
“On a contract to make a loan of money,” said CIIIITY, J., in
Western Wagon C0. v. lVest (40 W. R. 182; 1892, 1 Ch. 271),“ the measure of damages is the loss sustained by the breach, and the damages may be merely nominal. For instance, if A. agrees to lend B. £100 at interest for a week and makes default, and B. within a few minutes after the time at which the money ought to have been lent obtains from his bankers a loan of £100 at the same rate of interest and for the same period of time, the damages would be merely nominal.” This is an extreme case, but it illustrates the principle, and it shews the impossibility of allowing the plaintiff in an action for breach of the contract to obtain judgment for the whole sum agreed to be lent. Damages, as the learned judge in the same case went on to say, are not recovered by way of loan. The plaintiff puts them into his pocket and keeps them. But to permit him to obtain in this manner the entire amount of the loan would be to turn the loan into a gift. In South African I2'rritor1'es v. Wellington (see ~15 W. R. -167 ; 1897, 1 Q,. B. 692) the defendant had applied for sixteen debentures of the plaintifi company of £50 each. By the terms of the prospectus the £50 was payable as to £5 on application, and the remainder by instalments. The defendant paid £80, but refused to pay the instalments ; and when the company brought the action the amount of the instalments due was £520. Wniorir, J ., refused specific performance, but nevertheless-treating the £520 as a debt due—gave judgment for that sum. There is, however, no middle course between ordering specific performance of the contract and giving damages for the breach. The judgment for £520 was not a judgment for damages. It was in effect udgment for specific performance, and it could not stand. The decision of the Court of Appeal reversing WRIGHT, J., was accordingly aflirmed by the House of Lords. The plaintiff company missed also the chance of recovering damages properly so called, as they had given no evidence of actual loss. An attempt was made in the House of Lords to get the case sent back for a new trial so that the necessary evidence might be given, but it was held to be too late for the question to be raised. Moreover, the company had received substantial compensation in the right to forfeit the £80 deposited by the defendant. Practically this chance of forfeiture protects companies against the inconvenience which the refusal of the law to compel specific performance might impose on them. Of course in the application of the above principle a contract to lend money on debentures does not differ from any other contract of loan.
\Vi11=:N A iiousa, hitherto unlicensed, succeeds in the now-adays very dificult task of obtaining a licence to sell intoxicating liquors, the value of that house is usually increased enormously. Many persons consider this fact a public grievance, and strongly object to a present of a large sum of money being made in this way to the newly-licensed person. Some portion, at least, of this increase in the value of the premises, they argue, should go into the coffers of the public. It is quite possible that Parliament may some day take this matter in hand, and, under certain restrictions, allow justices to demand from applicants for licences a sum of money to be used for public purposes. Until Parliament does so, however, it seems obviously objectionable for justices to take this line of their own accord, as was done not long ago by the justices of South Shields. The facts came before a Divisional Court lately in the case of Reg. v. ]}ozoman and Others, which was an application for a ca)-ti'orari' to bring up and quash the grant of alicence, and also for a mandamus to compel the justices of South Shields to rehear the application. These justices at their annual licensing meeting had heard an application for a new licence, and also had heard objections, and had intimated that they would grant the licence, subject, however, to certain conditions, the nature of which would be stated at the adjourned meeting. Some of these conditions were probably quite legitimate, but one was that the applicant should pay the sum of £1,000, to be devoted to some public purpose. Rules 1u'sz' for a ce*rI."ui-.1/1' and a mandamus were obtained on behalf of one of the objectors to the grant of the licence. The rule for the c‘ert1'orarz' was discharged on the
authority of the recent case of Reg. v. Sherman (supra, p. 326), but the mandamus was granted. Now, there is no doubt that justices have absolute discretion in the granting of new licences, but they have constantly to be reminded that this discretion must be exercised judicially and according to law, not capriciously or according to private opinion. The character of the applicant, the condition and situation of the house, the requirements of the neighbourhood, and such-like matters should be carefully considered. If an applicant satisfies the justices on all such points he is entitled to a licence ; if, on the other hand, an objector establishes his objection on any such grounds, the licence should be refused. These are the legal rights of the applicant and of the objector. But where the justices are satisfied that no such objection exists, and yet refuse to grant the licence unless a sum of money is paid, or where they are satisfied that such an objection does exist, and in spite thereof agree to grant the licence in return for a money payment, they cannot in either case be said to act judicially. As was said by Wrnns, J., in the Divisional Court, they might as well put the licences up to auction. And although from a moral point of view the difference is enormous, from e. legal point of view the justices might just as well demand the money for themselves as for the public.
THE JURISDICTION of the county courts was recently invoked in the case of London and Norlk- WE’;-[urn Railway Co. v. Donallan, which was an action brought to recover rent due in respect of trucks left standing by the defendant on railway sidings belonging to the plaintifis, the rent in question being claimed under a circular addressed by the plaintiffs to all their traders, including the defendant, which notified that such rent would be claimed. The defence raised was that the county court could not entertain the action because, under the London and NorthWestern Railway (Rates and Charges) Order Confirmation Act, 1891 (54 & -55 Vict. c. ccxxi.), jurisdiction to determine the matters in difierence was given to an arbitrator. The enactment relied on is contained in section 5 of the schedule of maximum rates and charges appended to the Act. It provides that “the company may charge for the services hereunder mentioned or any of them” (including detention on the company’s line, for an unreasonable time, of trucks laden with merchandise) “ when rendered to a trader at his request or for his convenience, a reasonable sum by way of addition to the tonnage rate. _Any drfibrenca arz7sz'n_q mulor this section shall be dale-rnubaed by an arbitrator, to be appointed by the Board of Trade at the instance qf citlzer party. - Provided that where, before any service is rendered to a trader, he has given notice in writing to the company that he does not require it, the service shall not be deemed to have been rendered at the trader's request or for his convenience.” The county court judge upheld this defence, consideri_.;, .hat there was a difference between the parties, within the meaning of the section, fit to be determined by an arbitrator. At the same time, he made a special finding to the effect that, though the plaintiffs had demanded the siding rent, the defendant had always refused to pay it, and alleged that it was exorbitant and unjust. On appeal, however, the Divisional Court (\Vr.1onr and DARLING, J J .) reversed this decision, holding that there was evidence of a contract to pay the siding rent, and that no case for an arbitration had been made out. That there was a contract binding on the defendant seems clear enough. For, notwithstanding the above findings of the county court udge, which negative acquiescence properly co-called (as to which see Jlfitclwll v. London aml Yorkshire Railway Co., 23 WV. R. 853, L. R. 10 Q. B. 2-56), the defendant by omitting, in compliance with the above enactment, to give notice in writing to the plaintiffs that he did not require the services charged for to be rendered, precluded himself from denying that they were rendered at his request. The question of jurisdiction, however, presents greater difliculty, as the language of the above enactment certainly seems to contemplate resort to arbitration, whatever the cause of difference may be, and whether arising out of breach of contract or otherwise. It is, therefore, satisfactory to find that the Divisional Court, in the case under consideration, gave leave to appeal. _
Samoa 32 of the Companies Act, 1862, secures both to,
shareholders and to the general public the right to inspect a company’s register of members. To members the register is required to be open free of charge. Other persons must pay a shilling or such less sum as the company prescribes. The question has arisen in Ra Kent Coalfields Syndicate (Limited) whether the section applies after the company has gone into liquidation. Interest in the register does not cease upon the commencement of a winding up, and in the case of the syndicate which had gone into voluntary liquidation, Gnmrrrnm, J., assumed that the section continued to apply, and made an order for inspection in favour of an applicant although he was interested in the company neither as shareholder nor as creditor. But apart from the fact that the section occurs in Part II. of the Act, which does not refer to winding up, there is a very significant indication that a restriction must be placed upon it in the fact that a penalty is imposed in the event of inspection being refused. The liability to the penalty attaches both upon the company and also upon every director and manager who authorizes the refusal. These penalties cease, however, to be appropriate as soon as a winding up has commenced and the control of the directors has been replaced by that of the liquidator. It would be an anomaly for a penalty to be imposed on a company in liquidation, and there is no provision for transferring to the liquidator the liability of the directors. The Court of Appeal held accordingly that the right of inspection existed only while the company was a going company, and reversed the order of Gnsxrnmu, J.
Tun ORDINARY provision in articles of association, that the directors may in the case of shares not fully paid up refuse to register a transfer to a person of whom they do not approve, does not, it is well settled, throw upon the directors the burden of justifying their refusal. The question was thoroughly discussed in Ev parts Penney (L. R. 8 Ch. 446), and the position of directors would have been made very unpleasant had a different principle been admitted. In exercising such a power the directors are in a fiduciary position to the company and to every shareholder in it, and the question of the proposed transfer must be fairly considered by the board. But by considering it the directors do all that is required of them. They need not assign their reasons, and the court will not interfere unless it is made out that they have been acting from some improper motive or arbitrarily and capriciously. It is for the person impugning their conduct to make out that such has been the case. “I cannot,” said James, L.J., in the case just cited, “ conceive that any director would choose to accept oflice or exercise the power entrusted to him if he were liable to be called upon to say what the particular reasons were, or the particular motive was, which influenced him in coming to the conclusion that any person was not eligible as a shareholder.” This principle has been acted upon by the Court of Appeal in dismissing the appeal from the decision of STIRLING, J., in Ra Hannan’s Gold J[im'n_q Co. (Limited). Allegations were made that the directors were refusing to register transfers of a certain class of shares for the purpose of keeping them out of the market, but the allegation was not established. The transferor, therefore, who complained that the transfer tendered by him had been improperly rejected, was not able to make out his case, and he was not allowed to shift the onus of justifying the rejection on to the directors. The court, said the Master of the Rolls, ought to presume that the directors were acting within their powers until the contrary is
In THE recent case of Hanan-e'n_q v. Davis (reported elsewhere) the power of a county court judge to direct security for costs to be given in an action remitted to him from the High Court was under review. On the bankruptcy of the original plaintiffs in an action to recover £57 for goods sold and delivered, their trustee in bankruptcy _was added as plaintifi, at his own request, under the provisions of R. S. C., ord. 17, r. 4. Afterwards an order was made remitting the action to the county court, under section 65 of the County Courts Act, 1888 (51 8: 52 Vict. c. 43). Subsequently, the county court judge, by order, directed the trustee in bankruptcy to give security for costs under section 94 of the last