Page images
PDF
EPUB

...

635,

...

...

Williams (Appellant) v Llandudno District Stokes v Prance

68 Council (Respondents)

CASES BEFORE THE VACATION 34 Tucker, Richard

201

JUDGE.
Waterland v Serle

68
White, Re, Pennell v Franklin

200, 635

Alpha,” Owners of v Owners of “Maria SOLICITORS' OASES.

Rickmers'

764 Wynne, Campbell Mountague Edward 512

Bailey v Skinner and Fleming, Reid, & Co. 780 Armstrong, Richard

Wynne, Llewelyn Malcolm ...

512 573

Bristol Tramways Co. v National Telephone Bott, William Holloway 201

Co.

729 Butler, William Leonard 398, 416

Brown v Brown

729, 739 Davies (A Solicitor) and Re “The Solicitors'

BANKRUPTCY CASES

Companies Acts, 1862 to 1890, Re, Re The Act, 1888" 199

740 Athlumney (Lord) Re, Ex parte Wilson

National Stores (Limited) ...

7-10 Dent, 'William Richard

512

Bankruptcy Notice, Re an Application for Companies Acts, 1863 to 1893, and Re Dixon, Re, Tousey v Sheffield

669
the issue of

215 The Gee Floor Scrubbing Machine Co. Furber, Re, Ex parte C. S. Watkins

718
Buckwell v Norman

366
(Limited)

819 Furber, Richard, Re

613
Olark, Re, Ex parte Clark

15

Hobbs, Hart, & Co. (Limited) v Grover and Hallett v Andrews

68
Clark, Re, Ex parte Schulze...

573
Roe

833 Hawkes, Re, Ackerman v Lockhart

381
Cronmire, Re, Ex parte Waud; Re Cronmire,

Hutchings v Seaford Urban District Council 773 Hopkins, John ...

398
Ex parte Chetham

291
Keeble v Poole & Lucas

791 Humphreys, Re, Ex parte Lloyd-George

Debtor, A, Re, Ex parte The Debtor 657 and William George

Kennerley v The Owner of the Sailing Yacht 328 Gilbert, Re, Ex parte Gilbert 118 Olga"

792 Jones, Daniel 512

83 Oppenheim v Mackenzie Humphreys, Re, Ex parte Roberts ...

718 Lewis and Another v Burrell 135

117 Shirebrook Colliery Co. (Limited) Izod, Re, Ex parte Official Receiver

Burke Malings, Horace 512 Laurie, Re, Ex parte Green ...

346
and Others

761 Maw v Best

382
Palmer, Re, Ex parte Brims...

215 Taylor v The Cambridge Gazette Co. Norris, William Buffton 718

832

(Limited) and Kilner Piers, Re, Ex parte Piers v Read

132, 365 North, William

573
Stevens, Re, Ex parte The Board of Trade

703 Varey, W. H. (deceased), Re The Trusts of Phillips, David Thomas

201
Watkins v Lindsay

310

the Will of, and the Trustee Act, 1893 ... 781 S., Re 216

Victoria Date Co. (Limited), Re Shaw, James 718

Warr & Co. (Limited) v Edwardes and Daly 780 Solicitor, A, Re

718

COUNTY COURT CASES. Solicitor, A, Re, Ex parte The Incorporated

JUDGES' CHAMBERS. Law Society 200 Higginson and Deane, Re, Ex parte T. & H. Hall v Launspach

163 Solicitor, A, Re, Ex parte the Incorporated

Littledale & Co

781 Solicitor, In the Matter of a, and In the Law Society

...
397 | Jones v C. & W. Walker
833 Matter of the Solicitors Act, 1888

689

[ocr errors]
[ocr errors]

...

VOL. XLII.

THE COLONIAL COLLEGE AND TRAINING A New Volume commences this week. Subscriptions, PAYABLE IN

ADVANCE : Solicitors' JOURNAL and Weekly REPORTER, inFARMS,

cluding Indexes, Digests, Statutes, and Postage, 528. WEEKLY (LTD.), HOLLESLEY BAY, SUFFOLK.

REPORTER, in wrapper, 26s.; by Post, 23s. SOLICITORS' JOURNAL, Preparation for, and Introduction to, Colonial Life, &c.

26s.; by Post, 28s.

Full information from the RESIDENT DIRECTOR at above address; or from 6, Victoriastreet, Westminster Abbey, S.W. THE OLDEST & WEALTHIEST EXISTING MORTGAGE INSURANCE OFFICE.

VOL. XLII., No. 1.

THE LAW GUARANTEE AND TRUST SOCIETY, The Solicitors' Journal and Reporter.

LONDON, NOVEMBER 6, 1897.

LIMITED.
SUBSCRIBED CAPITAL £1,000,000. PAID-UP - £100,000.
FIDELITY GUARANTEES OF ALL KINDS. ADMINISTRATION AND LUNACY

BONDS. MORTGAGE, DEBENTURE, LICENSE, AND CONTINGENCY

INSURANCE. TRUSTEESHIPS FOR DEBENTURE-HOLDERS, &c.

The Editor cannot undertake to return rejected contributions, and copies should be kept of all articles sent by writers who are not on the regular staff of the JOURNAL.

1

16

x

X

HEAD OFFICE : 49, Chancery-lane, W.C. | CITY OFFICE : 66, Moorgate-street, E.C

Contents.
IMPORTANT TO SOLICITORS

CURRENT TOPICS

LAW SOCIETIES
THE NUMBER OF ACTIONS AFFECTED LAW STUDENTS' JOURNAL ..................

17
In Drawing LEASES or MORTGAGES of
BY THE COMPULSORY SUMMONS FOR LEGAL NEWS

.18 LICENSED PROPERTY

DIRECTIONS

THE LAND TRANSFER Act, 1897, AND To see that the Insurance Covenants include a policy covering the risk of

JUDICIAL REPEAL OF THE SETTLED

LAND TRANSFER IN AUSTRALIA 18
LOSS OR FORFEITURE OF THE LICENSE.

LAXD ACTS
5 STAMPING DEBÈXTURES

19 Suitable clauses, settled by Counsel, can be obtained on application to

ADJUDICATION AND DEXOTING OF In COURT PAPERS................................... 19 THE LICENSES INSURANCE CORPORATION AND

STRUMENTS UNDER THE STAMP ACT... 7 WINDING UP NOTICES ........................

20 GUARANTES FUND, LIMITED,

REVIEWS .............................................
8 CREDITORS' NOTICES..........................

21 24, MOORGATE STREET, LONDON, E.C.

CORRESPONDENCE ...............................
11 BANKRUPTOY NOTICES..............

21 Mortgages "Guaranteed on Licensed Properties promptly, without special valuation and at low rates.

Cases Reported this Week. ALLIANCE ASSURANCE COMPANY. In the Solicitors' Journal. In the Weekly Roporter. Established 1824. Capital, £5,000,000 Sterling.

malgamated Syndicate (Lim.), Re 13 HEAD OFFICE: BARTHOLOMEW LANE, LONDON.

Cornwall Minerals Railway Co., In re Baker v. Williams

13 Chairman : RIGHT AON. LORD ROTHSCHILD.

8

Evans, In re. Ex parte Davies

Clark, Re. Ex parte Clark LONDON BRANCHES : 1, ST. JAMES'S ST., 8.W.; 63, CHANCERY LANE, W.C.; Gallagher v. Rudd

Hatton (Appellant) v. Treeby (ResponNORFOLK ST., STRAND; WIGMORE ST.; 3, MINCING LANE, E.C. Gray v. Sylvester

13 dent)

6 LIFE AND FIRE INSURANCES AT MODEBATE RATES.

Lewis v. Poole
Life Policies free from Restrictions, with Perfect Security and Liberal Bonuses, Linotype Co.'s Trade-mark, Re

J. & P. Coats (Limited) v. Commis

13 Special forms of Policies have been prepared to provide for payment of ESTATE DUTIES.

1

sioners of Inland Revenue

London Freehold and Leasehold Pro-
LEASEHOLD AND SINKING FUND POLICIES.

perty Co. (Lim.) v. Baron Suffield 11 Powell v. Kempton Park Racecourse Full Prospectuses on application. ROBERT LEWIS, Chief Secretary. Morley v. Carter

14
Co.

8 Murphy v. Arrow

Reg. v. The General Medical Council... 2 LEGAL AND GENERAL LIFE ASSURANCE Penton v. Barnett.

11

Tibbits' Settled Estates, In re ............

Reg. v. Mead, Esq, Metropolitan Police
SOCIETY.

Magistrate. Ex parte The London Turnbull, In re. Turnbull v. Turn-
County Council

14 bull

.......

15
15

14

15

3

3

ESTABLISHED 1836.

FUNDS
INCOME
YEARLY BUSINESS
BUSINESS IN FORCE

£ 3,000,000

£ 373,000 £1,000,000 £11,000,000

CURRENT TOPICS. WE UNDERSTAND that the practice of entering judgment in default of defence without order, under ord. 27, r. 2, is not to be considered as in any way interfered with by ord. 30, r. 1 (b), and that instructions to that effect have been received at the Judgment Department of the Central Office.

[blocks in formation]

LORD JUSTICE WILLIAMS (we hope we may henceforth drop the VAUGHAN ") has well earned his promotion to the bench of the Court of Appeal by his services in the Bankruptcy and Winding

We believe that he has, during the last few months, from time to time, made observations in chambers indicating that his endeavours to check or punish fraudulent conduct with reference to company formation and business had been almost, if not entirely, abortive, and that he had some thoughts of resigning his seat, not on the High Court beuch, but in the Winding-up Court. The change of position will, therefore, be peculiarly welcome to him; and his presence in the Court of Appeal is certain to bring to the deliberations of the division in which he sits a vigorous and thoroughly independent judgment, not fettered by undue regard to prior decisions. To all appearance we shall continue to have a very strong Court of Appeal-a matter of no small consequence to suitors and the profession.

THE APPOINTMENT of the successor to Lord Justice WILLIAMS in the Queen's Bench Division is so good as almost to condone the last previous nomination. Mr. CHANNELL has long been

[blocks in formation]

known as a learned lawyer, an experienced and skilful advocate, actions pending at the time it came into operation. We are and a man of thoroughly judicial temperament. The fear of informed that the view adopted on the Chancery side has not his friends was that the entire absence of self-assertion which been the same on this point as that which has provailed on the characterizes him would lead to his fitness for judicial promotion Queen's Bench side. We understand that in Chancery no being overlooked, and it is greatly to the credit of the Lord summons for directions is allowed to be issued in any

action Chancellor that this has not come to pass. Mr. CHANNELL is, commenced prior to the 25th of October, while on the Queen's we believe, likely to make as good a judge as his father—and Bench side summonses for directions are issued and dealt with that is not saying a little.

in actions commenced prior to the 25th of October, provided no pleading has been delivered before that date. This difference

of practice in the two divisions is not a matter of any conWE ARE relieved to find that the new order 30 will not in sequence, because it will only remain during the period of practice interfere with procedure in default of defence to so transition from the old practice to the new. In the course of great an extent as was generally supposed. That the point another ten days all the Queen's Bench actions in which would have to be dealt with by authority must have been apparent summonses for directions will be issued will be actions comto all who read our recent articles on the working and intention menced since the new order 30 came into force, and the identity of the new order (ante, vol. 41, pp. 815, 836, 856). Procedure of practice in the two divisions will be restored. in default of defence works so admirably that it would have been unfortunate if it had been hampered by destroying its automatic character and requiring an application and an order A CORRESPONDENCE, which will be found elsewhere, has passed before it could be put in force. The wording of ord. 30, r. 1(6) between the Incorporated Law Society and the Inland Revenue seems to indicate that no judgment in default could be entered authorities with reference to the increased stamp duty on debenexcept by application to the court : “(6) Such summons (for tures repayable at a premium which has become enforceable in directions) shall be taken out after appearance and before the consequence of the decision last April in Rowell & Son (Limited) plaintiff takes any fresh step in the action other than application . Commissioners of Inland Revenue (1897, 2 Q. B. 194). Hitherto for an injunction, or for a receiver, or for summary judgment it has been considered sufficient to stamp £100 debeatures with under order 14, or to enter judgment in default of defence the usual mortgage duty of 2s. 6d., notwithstanding that they under ord. 27, r. 2.” The construction generally placed on this are repayable at a premium, and, if they were to be treated sub-rule, as regards default of appearance in particular, was altogether as mortgages, this would seem to be correct. By that, omitting its references to other things, it should be read section 86 of the Stamp Act, 1891, a mortgage is defined as "a thus : "Such summons shall be taken out after appearance and security by way of mortgage for the payment of any definite and before the plaintiff takes any fresh step other than application certain sum of money advanced or lent,” &c., and the duty ap

to enter judgment in default of defence under ord. 27, pears to be payable in respect of this sum. But a debenture r. 2.” If the rule is read in this way it indicates that an appli- not transferable by delivery is a “marketable security” under cation to the court or a judge would be necessary before enter the first head annexed to this title in the schedule to the Stamp ing judgment in default of defence under the last-named rule. Act, and is chargeable “in respect of the money thereby We are glad to find that it is not to be so applied.

secured” with the same ad valorem duty as upon a mortgage. The introduction of the words just quoted induced the

Divisional Court (VAUGHAN WILLIAMS and KENNEDY, JJ.) to IT SEEMS a pity that procedure in default of defence under hold that debentures for £100, repayable with a premium of ord. 27, rr. 4 to 9, cannot also be rescued from the operation of £7 10s. on a fixed date, were chargeable with a duty of 3s. 9d., the new order 30, r. 1. But this is obviously impossible as the the “money secured” being £107 10s. In the case before the rule now stands. Judgments in default under ord. 27, r. 2, are court the company were bound in any event to pay the £107 10s. limited to claims for liquidated demands only. Those under rules on each debenture, but the same reason does not apply—and so 4 to 9 are for unliquidated claims and recovery of land and de- the Inland Revenue Commissioners admit—where the premium tention of goods. If a defendant makes default of defence in is only payable where the company issuing the debentures these cases, the plaintiff is still bound, apparently, by the exercises an option to redeem before the day fixed for payment. express words of ord. 30, r. 1, to issue á summons for direc- In the case of the former class of debentures, however, the tions, because the exceptions in sub-section (6) of that rule do decision settles the law, and the revenue will gain a substantial not include these other default cases. The difficulty which this profit from this unexpected result. omission presents, as we pointed out in the articles referred to, is that there does not appear to be any power in order 30 to order judgment to be entered, but merely to give directions as In view of the decision in Rowell's case it has, of course, to any interlocutory matter or thing.” A plaintiff, therefore, in become a matter of importance to determine how the defect in the such a case, when the defendant makes default, will, according stamps on existing debentures is to be cured. At the beginning to the rule, have to issue his summons for directions, although of June the Inland Revenue Commissioners sent a circular to the only thing he required—viz., judgment in default of defence the secretaries of public companies calling attention to the deciunder ord. 27, rr. 4 to 9-cannot be given under the summons. sion, and intimating that it was desirable that companies We feel sure this was no more intended than was any inter- affected by it should forthwith inform each debenturo-holder ference with procedure under ord. 27, r. 2, and we have no that his debenture was not duly stamped, and that he must doubt that some way will be found to put the matter right. have the additional duty impressed without delay.

It was further stated that, in the case of debentures presented within a

reasonable period, the duty would be impressed without penalty. THERE ARE two other points of interest with regard to the The author of this circular seems to have paid no attention to working of the new order 30. Some doubt seems to have the great inconvenience which would have been involved in existed as to whether rule 8 of that order had been duly issued getting debentures produced by the multitude of debentureas an effective rule in accordance with the Rules Publication holders all over the kingdom, and, since the payment of the Act. That rule empowers a defendant to apply to dismiss if the duty must fall on the companies, it was obviously the easier plaintiff does not issue his summons for directions within four course for the duty to be paid at once in a lump sum by each teen days from the entry of appearance. It was passed by the company affected, and for this payment to be available for the Rule Committee on the 4th of August as a draft rule, and was debentures whenever produced. A proposal to this effect was ordered to come into operation on the 25th of October. In the made in August by the Incorporated Law Society, and the Comabsence of any certificate of urgency, that would not be suffi- missioners have recently intimated that they are prepared to cient to make it an effective rule. It appears, however, that the accede it. It will now only be necessary for the company to rule in question was duly signed by the Rule Committee on the pay over the additional duty chargeable by virtue of Rowell' 8 case 25th of October, so the doubt as to its validity is laid at rest. against a receipt specifying the debentures covered by the payThe other point is as to the application of the new order 30 to ment,' and any debenture so covered will, on production, be

stamped without penalty. The Law Society, in the letter of the position of an accessory before the fact to murder. their secretary, Mr. E. W. WILLIAMSON, also suggested that, in accessory before the fact, however, could not at common law be cases where the duty was not thus paid in advance, it might be tried until the principal felon had been convicted, unless he were paid at any time and the debentures stamped without penalty, tried along with the principal. Hence it followed in such a case provided they had not been improperly withheld from stamping; that the accessory to the felony of self-murder escaped punishand further that it would be convenient if a rule in the same ment, as it was not possible to try the principal. The law on direction could be made which would be of general application the subject has, however, been altered by section 2 of 24 & 25 where the stamp duties on existing deeds are affected by sub- Vict. c. 94, which provides that an accessory before the fact to sequent decisions. But while the Commissioners profess their any felony may be indicted and convicted as such, " whether the readiness to consider favourably any particular application with principal felon shall or shall not have been previously convicted, respect to debentures the additional duty on which has not or shall or shall not be amenable to justice.” If, however, as been paid in advance, they decline to give any pledge as to the in the cases noticed, a person aids or abets another in commitcourse to be adopted, and they decline also to lay down any ting suicide, and is actually present when that other takes his general rule. Perhaps, under the circumstances, it is not to be own life, he is guilty of murder at common law as a principal expected that they should thus limit their discretion, though it in the second degree. And as principals in the second degree is clear that persons who become liable to pay duty in conse- and accessories before the fact are all in law equally guilty with quence of the decisions of the courts conflicting with common the principal in the first degree, it follows that anyone who aids practice are entitled in the exercise of that discretion to every and abets another in the crime of suicide is in law guilty of consideration.

murder and liable to the penalty of death.

IN VIEW of the approacbing School Board elections, it seems opportune briefly to consider whether women are legally eligible

ANOTHER CASE of interest, also involving loss of human life, for election. Hitherto, as is well known, they have frequently indicted for manslaughter, was a member of the sect called the

was tried last week at the same court. The prisoner, who was been elected without question, and probably, therefore, no Peculiar People. These people have religious objections to returning officer would feel justified in giving effect to any calling in medical advice or to using medicine in case of illness, objection made to a female candidate's nomination on the score of her sex. Hence, in order to obtain a decision of a binding, but, instead of this, they call in some of their elders, who pray

over the sick person and anoint him with oil in the name of the would have to be presented against the return of a successful Lord. In this case a child of the prisoner's died without having female candidate. This, it will be remembered, was the course

received any medical attention, though it was sworn that the pursued in Beresford-Hope v. Sandhurst (37 W. R. 525, 23

child would probably have recovered under proper treatment. Q. B. D. (C. A.) 79), where it was held that a woman cannot At one time the law seems to have been different on this subject herself become a member of a county council, though she can has a duty to another culpably neglects that duty, by reason of

There can be no doubt that if a person who elect thereto. The ratio decidendi of that case appears to be which neglect the other dies, such person is guilty of manthat, save by express enactment, a woman cannot exercise public function, and that, as Parliament has not rendered her slaughter at the least. When, however, a parent is kind to, eligible to be a county councillor, she is ineligible. On this and careful of, his child, but nevertheless in case of illness subject Lord Esher, in his judgment in the case cited, says : the anointing with oil and prayer of elders is more likely to

refuses to summon medical aid, under the bond fide belief that "By neither the common law nor the constitution of the country, be beneficial to the child, it was found hard to say that the from the beginning of the common law until now, can a woman be entitled to exercise any public function." This doctrine thus parent was guilty of culpable neglect. Therefore in times past enunciated would seem adequately to account for a recent statute it has been held (though the law was never quite settled) that

- namely, the Poor Law Guardians (Ireland) (Women) Act, 1896 such persons were not guilty of manslaughter, even though a to be elected a poor law guardian shall not be disqualified by sex. ment Act, 1868, provided that every parent who wilfully noglected (59 Vict. c. 5)—which provides that a person otherwise qualified jury was convinced that with proper medical attention the child

would have lived. Section 37, however, of the Poor Law AmendNow, in the case of school boards, there is certainly no express to procure medical aid for his child, so as to seriously injure the statutory provision contained in the Elementary Education Acts or elsewhere entitling women to be elected as members thereof. health of such child, should be guilty of a misdemeanour, and so We therefore venture to submit that, by parity of reasoning, Act became law the case of Reg. v. Downes (24 W. R. 278, 1

imposed upon a parent a positive statutory duty. After this women are as much ineligible to sit on school boards as they Q. B. D. 25) was argued before the Court of Crown Cases undoubtedly are to become county councillors. It is to be hoped Reserved. The facts were precisely the same as in the recent that this really important question will, ere long, be judicially case, and the court held that, whatever the motives of the determined.

father were, he had wilfully and intentionally, though perhaps

not maliciously, disobeyed the law by neglecting to call in THE FACTS proved in the case of Reg. v. Stormonth, tried last medical aid. This was culpable neglect, and through this week before RIDLEY, J., at the Old Bailey, are almost identical neglect the child's life was lost, therefore the prisoner was with those in Reg. v. Alison (8 C. & P. 418). In each case a guilty of manslaughter. The section of the Act of 1868 referred man and a woman had agreed to die ; poison was obtained, to above has been repealed, but the Provention of Cruelty they divided it, drank it, and lay down together to die ; but the to Children Act, 1894, provides that any person having woman alone died, whilst the man recovered and lived to be the care of a child under sixteen years of ago who wilfully indicted for her murder. In the reported case PATTESON, J., held neglects such child in any manner likely to cause the child on the facts that in law the prisoner was guilty of murder, and unnecessary suffering or injury to its health shall be guilty of a he was accordingly convicted. In a more recent case, Reg. v. misdemeanour. It is clear that this provision includes the proJessop (16 Cox 204), the facts were again practically the same, vision of the repealed section. It must be noticed, however, though in this case both the persons who agreed to die together that, in order to convict a person of manslaughter by neglect to by poison were young men. FIELD, J., before whom the sur- call in medical aid, it is necessary to satisfy the jury that, if vivor was tried for the murder of his friend, in summing up to such aid had been called in, the life of the deceased would the jury, said: “A person who administers poison to another probably have been saved, or at least prolonged. This was with the intention of killing him is guilty of murder if that decided by the Court for Crown Cases Reserved in the case of person dies, and if two persons agree that they will each take Rog. v. Morby (30 W. R. 613, 8 Q. B. D. 571), another similar poison, each person is a principal and each is guilty.” The prosecution of one of the Peculiar People, in which, however, prisoner was convicted in this case also, and neither decision the medical witness would not swear that the deceased child's has over been seriously questioned. At one time a person who life would have been probably prolonged by medical attention. counsellod, aided, or abetted another to commit suicide, but who In the recent case at the old Bailey the prisoner was found was not present when the felo de se put an end to his life, was in guilty of manslaughter, as also was another of the Peculiar

People charged with a similar offence. They were both released has in this case been amply justified. False alibi can easily be on their own recognizances to come up for judgment if called attested, with every appearance of truth, by witnesses describupon. We cannot but think that the judge was mistaken in ing the events of some other day than that on which the crime this leniency, though we fully recognize the difficulty of dealing took place, or the same thing can be effected by the witnesses with such people. On the one hand a substantial punishment speaking to the movements of some other person than the has the effect of conferring upon the prisoner the crown of person accused. In either case the evidence would be such as martyrdom to his cause, but, on the other hand, it is clear that could not be shaken in cross-examination, and in either case the if these persons are not to be punished they will continue to story might be quite compatible with the honesty of the witness. allow their children to die for want of proper attention. It seems probable that in Reg. v. Spriggs the witnesses mistook

the prisoner for the prisoner's brother.

A SINGULAR dearth of authority exists upon the procedure to be adopted for getting rid of a judgment obtained by fraud, although it has never been doubted that fraud always vitiates a THE NUMBER OF ACTIONS AFFECTED BY THE judgment (see The Duchess of Kingston's case, 2 Sm. L. C.). It COMPULSORY SUMMONS FOR DIRECTIONS. was decided by the Court of Appeal in the case of Flower v. Lloyd (6 Ch. D. 297) that a judgment obtained by fraud would In the course of our previous articles (ante, vol. 41, pp. 815,

836, 856) on the practical working, intention, and effect of not be set aside on appeal, but that the proper course was to the new order 30, making the issue of a summons for direcbring an action putting in issue the fraud, and the fraud only; tions compulsory, we mentioned incidentally that although and according to the words of James, L.J., the action should the order in question ostensibly applied to “every action” charge that “You,” the defendants, obtained that judgment to which an appearance was entered, it was not to be asin your favour by fraud," and should claim to have it set aside. sumed that the court had taken upon itself the gigantic The plaintiff in that action adopted the course suggested, as task of exercising a discretionary power to direct the whole appears from the same case, reported 10 Ch. D. 327, and there

course of procedure in all the vast number of actions comJAMES, L.J., after holding that no fraud was proved, goes on to menced in the High Court. We further stated that it was say that, even if it were, it is very doubtful whether such an action will lie, because there would never be finality in a judg. approximate estimate of the number of actions which the new

possible, with the help of the judicial statistics, to arrive at an ment, and the defeated party might go on ad infinitum applying order is primarily intended to affect, and we undertook to perto have it set aside on thỏ ground that it was fraudulently form this task for the benefit of our readers. The figures are obtained. It is impossible to reconcile these two judgments by extremely interesting, and we may add, in passing, that it is due the same judge in the same case, delivered in the course of one solely to the completeness of the exhaustive tables in the now year, and it is most unfortunate, because no other case can be Judicial Statistics edited by Master MACDONELL that we are found of an action brought directly to set aside a judgment on able to fulfil our undertaking. the grouod that it was fraudulently obtained. The question

In Part II. of our previous article on this subject we have generally arises in an action brought upon the judgment, and it dealt with the intention of the new order, and have endeavoured is clear law that to such an action it is a good defence that the to show that its primary object is to place the court in possesjudgment was obtained by fraud (Abouloff v. Oppenheimer, 10 sion of machinery which will enable it to sift out from all Q. B. D. 295), and it is probable that where leave is required to the actions which go to trial in the Queen's Bench Division ssue execution upon a judgment, such leave would be refused those which can and ought to be tried without pleadings, and if it could be shown that the judgment was fraudulently without being dragged through unnecessary, and expensive obtained. But cases must arise in which it is desirable to

In order to arrive at an esti

interlocutory proceedings. initiate proceedings with the simple object of getting such a mate of the number of these cases, we propose to tako judgment set aside, and it is submitted that the course indicated the number of actions commenced in a given year, and in Flower v. Lloyd is the correct one, and that the doubts expressed in that case on the second occasion by JAMES, L.J., and account for them all, showing how they are disposed of by the

court or what becomes of them. To guard against any misapTHESIGER, L.J., cannot be considered as laying down any þind- prehension, we may say at the outset that we take all our figures ing rule to the contrary. This is indicated by BRETT, L.J., in from the Judicial Statistics for 1897, which deal with the returns his judgment in Abouloff' v. Oppenheimer, and if it is good law for the year 1895. If it is said that many actions extend in that a Court of Appeal has not jurisdiction to set aside a judg: duration over more than a single year, or cover periods comment on the ground that it was obtained by fraud, it would seem clear that a remedy must exist in the shape of an original prised in different years, we admit that such is no doubt the

case, but the totals from year to year as to all the stages of action to set aside the judgment.

actions from commencement to trial vary so slightly that it is possible, by dealing only with the statistics for a single year, to

to obtain accurate results with regard to all the stages of the THE CASE of Reg. v. Spriggs, tried at the last Ruthin Assizes, actions commenced in that year. If some, for example, are illustrates the unreliable nature of evidence as to an alibi. Nover passed on to the next year before completion, a proportionate did a more unassailable alibi seem to have been established than number are brought in from the previous year. Therefore the in that case. The prisoner was charged with highway robbery returns for a single year do in fact give us all the information on a girl riding a bicycle near the Travellers’ Arms, at Rhudellan, we require. in Flintshire. The robbery took place on the 13th of July at In the year 1895 the total number of actions (excluding Ad11 a.m. By way of defence, a complete record of the prisoner’s miralty, to which order 30 does not apply) commenced by writ movements from the 10th to the 13th of July was given. During in the High Court was 71,309, which were divided between the all that time, it was proved, apparently without a shadow of different divisions as follows : doubt, by a number of witnesses, that the prisoner was in London, and that he slept at his own home at Forest Gate on

Chancery

3,335 the night of the 12th. None of the witnesses for the defence Queen's Bench .

67,752 were in the slightest degree shaken by cross-examination, and

Total the chain of evidence seemed complete. On the other hand,

71,309 the witnesses for the prosecution were equally positive and pre As we have shewn in our previous articles, the new order 30 cise in swearing to the identity of the prisoner with the man is only applied to Chancery and Probate actions as a precaution who robbed the prosecutrix in North Wales on the morning of and not with any intention of interfering with the regular course the 13th of July. In consequence of a strong summing up by of procedure in actions properly belonging to those Divisions. the judge against the prisoner, a verdict of "guilty" was We therefore put those actions on one side. guilt, so that the distrust with which the defence of alibi has the 67,752 actions commenced in the Queen's Bench Division in always been looked on by those experienced in criminal trials | 1895 ? It will be somewhat of a surprise to most people to hear

Probate

222

« PreviousContinue »