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for the opinion of the court whether, under such circumstances, there was
Re LODER–North, J., 28th October. sufficient evidence, if not rebutted, to prove the publication of the German
MARRIED WOMAN-MORTGAGE-MARSHALLING OF SECURITIES-RESTRAINT specifications in this realm prior to the date of the plaintiffs' patent so as
ON ANTICIPATION AS TO ONE FUND. to avoid the same. It appeared that the two German specifications had been actually open to inspection in the Patent Office Library, the one
In this case a question arose as to the marshalling of securities given by during some two and a half years and the other during some forty days pre: a married woman, part of whose income was subject to a restraint on viously to the date of the plaintiffs' application. Plimpton v. Malcolmson (24 anticipation. A testator, by his will, gave a sum of £50,000 to trustees, W. R. Dig. 170,3 Ch. D. 531); United Telephone Co. v. Harrison, Cox, Walker, on trust to pay one-third of the income thereof to his daughter, for her & Co. (30 W. R. 724, 21 Ch. D. 720); Otto v. Steel (34 W. R. 289, 31 Ch. D. separate use without power of anticipation, and to apply the remainder of 241), were the authorities principally referred to. Chitty, J., said that the income for the benefit of her, her husband C., and their children. The the question in issue was one of fact, and all that he had to consider was fund was paid into court. The husband died. An order was made in the what was the fair inference to be drawn from the facts as admitted. action for the payment of one-third of the income of the fund to the daughHad the German specifications been published in this country in such a ter, the application of a specified sum for the benefit of her family, and the way as to become part of the common stock of public knowledge in this payment of the residue of the income to her. While she was a widow she country? This was the question asked by the late Master of the Rolls in executed a mortgage of her interest in the trust fund, and of some policies Plimpton v. Malcolmson. To answer it it was not necessary to shew that of insurance on her life, to F., and an order was made for the payment of the śnowledge had been acquired by the public in general or by the bulk ber income to him. She afterwards married M., and after her marriage of the public or by any large number of persons, but if a sufficient num.
she charged her interest in the trust fund in favour of P., who obtained ber, as Jessel, M.R., had said, knew it, or if the means of communication the appointment of a receiver. The income which was received by F. was were such that a sufficient number might be presumed or assumed to know more than sufficient to pay the interest on his mortgage and the premiums it. Had Jessel, M. R., been required to re-write his statement of the law on the policies, and he did not desire to apply any part of the surplus in he would probably have stated the matter, not as one of presumption or reduction of his principal debt. The question was how the surplus was to assumption, but as a matter of fact and legitimate inference to be drawn be applied. North, J., held that, part of the income being, since the from the facts proved. Of course Jessel, M.R., did not mean that an as second marriage, subject to a restraint on anticipation, while the other sumption was to be made without sufficient grounds. Pearson, J., in Otto part was not, there should be a marshalling in favour of the second mortv. Steel, and Fry, J., in the l'nited Telephone Co. v. Harrison, put the gagee, and that the premiums and the interest on the first mortgage question in the same way as did Jessel, M. R. Upon the facts admitted should, as between the wife and the second mortgagee, be paid out of that in the special case it appeared that one of the specifications bad, previously part of the income which was subject to the restraint on anticipation. to the date of plaintiffs' patent, been, for a period of two and a half Counsel, Onslow ; Stokes ; S. Hall; Swinfen Eady. SOLICITORS, Frere, years, accessible to any person who chose to go to the Patent Office. In Forster, Ś Co.; Hicks š Arnold; Brownlow f. Howe; Rooks f. Co. the Patents Journal notice was given that it could be found there, and also the commissioners classified the foreign patents with the view of facili
Re FRANCE, FRANCE V. CLARK-North, J., 29th October. tating access. With regard to the other patent it was true that the period was forty days only. He did not, however, consider that to be too short ADMINISTRATION Action-Service of NUTICE ON THIRD PARTY-R. 8. C., a period, and he considered that, having regard to the facilities of access
1883, XVI., 40-LANDLORD-PROVISION FOR FUTURE Rent. in a free public library, to the information given by the commissioners in This was the further consideration of an action by a legatee for the the journal, and the length of time, the proper inference was that the administration of the estate of a testator who had carried on business in public did have access to the documents. "It appeared to him that the partnership. The chief clerk had found by his certificate the amounts of public availed themselves of the knowledge which was thus the testator's separate debts and partnership debts. The plaintiff asked placed readily available for them, and that it was not necessary for leave to serve the testator's surviving partner with notice of the order, to shew that any person actually did avail himself of such under rule 40 of order 16, with a view of binding him by the proceedings knowledge. As to the circumstances that the specifications were in the in the action, and asked that the payment of the partnership debts out of German language, he considered that was immaterial, for they were in a the assets might be meanwhile postponed. North, J., refused the appli, language that must be deemed to be well understood. He, therefore, cation. He held that the surviving partner was not a person interested held that the specifications constituted publication. Costs were reserved. in the estate," and that rule 40 did not apply. -COUNSEL, Aston, Q.C., and Bousfield ; Romer, Q.C., and Goodeve. Soli Another qriestion arose thus. The landlord of a colliery, a lease of CITORS, Crouders & Vizard, for Ouston, Dickinson, g Simpson, Leicester; which had been granted to the testator and his partners, had carried in a Johnston, Harrison, & Powell, for R. f R. C. Winder, Bolton.
claim for future rent. The chief clerk found that the rent had been
paid up to the 1st of January, 1886. The landlord took out a summons Re JONES, GREENE v. GORDON-Kay, J., 3rd November. for the admission of his claim, and he asked that a note of his claim might Will-POWER OF APPOINTMENT—Wills Act (1 Vict. c. 26), s. 27.
be made in the order on further consideration. NORTH, J., directed that
the order should contain a note that, all rent and liabilities under the This was an adjourned summons. The will of J. Jones contained a lease having been paid and discharged up to the 1st of January, 1886, provision that it should be lawful for his wife, by will or codicil, to the executors not asking to have any part of the assets appropriated, the appoint that any sum or sums of money, not exceeding altogether the court did not think fit to make such an appropriation. -Uounsel, Cozenssum of £20,000, should, after her decease, be raised and paid or applied to Hardy, Q.C., and Willis- Bund; Everitt, Q.c., and B. Eyre; Cookson, Q.C.; or for the benefit of such person or persons for such purposes, upon such and Seward' Brice; Marcy; Ingle Joyce. SOLicitors, Wright f Wright; conditions, and with such restrictions as his said wife should think fit. G. L. P. Eyre of Co.; Torr J Co.; Fer & Co. Mrs. Jones, the widow, by her will, devised and bequeathed all her estate and effects, real and personal, which she might die possessed of or entitled to unto her only daughter absolutely, for her sole and separate Will–CONSTRUCTION—Gift of Fund to MARRIED WOMAN-RESTRAINT ON
Re GRAY, ACASON v. GREENWOOD-North, J., 28th October. use. KAY, J., held that this devise contained in the will of Mrs. Jones operated as an execution of the power in the husband's will to the extent
ANTICIPATION. of the sum of £20,000.- Counsel, Ingle Joyee; Begg. SOLICITORS, Ingle, The question in this case was as to the construction of an appointment Cooper, f Holmes ; Duffeld & Bruty.
by will to a married woman, which purported to be subject to a restraint
upon anticipation. The testator had, under a settlement, a testamentary COLEMAN v. LLEWELLYN-North, J., 29th October. power to appoint certain funds among his children. By his will he MORTGAGB-FORECLOSURE--REDEMPTION-RIGHT TO RENTS RECEIVED
appointed certain specific sums, and directed that the residue “ of the RECEIVER AFTER DATE OF CHIEF CLERK's CERTIFICATE.
said money or investments " should, as to one - fourth part thereof, be This was a foreclosure action, and the plaintiff, who was first mortgagee, use, independently of marital control, and without power of anticipation
held upon trust for my daughter F. absolutely, for her sole and separate now moved to make the foreclosure absolute as against the mortgagor. during any coverture.” The daughter was now married. It was conThe second mortgagee had already been absolutely foreclosed. had been appointed, who had received rents and royalties, the greater the restraint on anticipation was inconsistent with that gift, and that she
A receiver tended, on her behalf, that, there being an absolute appointment to her, part of which had been paid into court, but a balance remained in his hands. Part of the money had been received since the date of the chief NORTI, J., held that she was not entitled to immediate payment, but that
was, therefore, entitled to have the capital paid over to her at once. clerk's certificate. The judgment at the trial allowed the second mort- during coverture only the income of the fund could be paid to her, gagee and the mortgagor successive periods for redemption, and there founding his decision on the fact that the trustees were directed to hold was a provision that any perso» redeeming, or the plaintiff in the event of (not to pay) the sbare appointed to her.-Counsel, Sladen ; Vaughan foreclosure, should be at liberty to apply in chambers for payment or Hawkins." SOLICITORS, Ingham; Wright & Pilley. transfer of any money in court or in the hands of the receiver. It was contended on behalf of the plaintiff that this clause distinguished the case from Jenner- Fust v. Nec tham (34 W. R. 409, 709; 31 Ch. D. 500, 32 Ch.D.
HUGGINS v. JEFFRIES-Q. B. Div., 28th October. 582; 30 SOLICITORS' JOURNAL, 255, 271, 418, 449), and that the mortgagee PROHIBITION AFTER EXECUTION LEVIED- JURISDICTION or Maror's Court. was entitled to have the foreclosure made absolute at once, without directing any fresh account, or enlarging the time for redemption, and prohibition after execution had been levied and the proceeds paid over. It
In this case a question arose as to whether the court would issue a that the plaintiff was entitled to the whole of the money in court and in the receiver's hands. NORTH, J., held that the above special provision judice, the contract--for the breach of which the defendant was sued
was alleged that the proceedings in the action had been taken coram nonin the judgment did not distinguish the case from Jenner-Fust v. Needham. having been made, and the breach thereof having taken place, outside And he directed a further account to be taken, and allowed the mortgagor a further period of a month, from the date of the fresh certifi
the jurisdiction. It appeared, however, from the evidence that an cate, for redemption.-Counsel, J. G. Wood.
account had been stated within the jurisdiction. THE COURT
SOLicitors, Peacock $ (Lord COLERIDGE, C.J., MANISTY and Stephen, JJ.) held that in Goddard.
case prohibition would not go. Lord COLERIDGE, C.J.,
said that when an account had been stated by two persons of a point of law.” The Court refused the application. LORD COLERIDGE, specific sum in terms as owed by the one to the other, there was no doubt C.J., said that the magistrate might have used the expression that he that that account formed a good subject matter for the consideration of a should hold, as a matter of law, that the defendant's dog had not been court within the jurisdiction of which it had been stated. The contertion under control, when he might well have meant so to hold only as a matter that after execution and satisfaction a prohibition might be issued of fact. The control over the dog must be so effective as to prevent the appeared to be founded on a dictum of Lord Coke, but had not any decided mischief at which the statute aimed, and, in the absence of very positive case to support it. When the whole matter of an action is at an end the evidence to the contrary, the fact that a dog had neither been muzzled court ought not, by suffering a writ of prohibition to issue, to make a nor led was sufficient to prove that it had not been uuder proper control. declaration upou which future proceedings against the successful party MANISTY, J., in concurring, said that, in his opinion, the question as to might be founded. MANISTY, J., concurred, and said that, whatever whether or not a dog would be under control must be one of fact only for might be the case in an application made by a stranger to an action to the decision of the magistrate. STEPHEN, J., concurred. -COUNSEL, restrain a court from exceeding its jurisdiction, a party could not get such | Candy. SOLICITORS, Pitt & Savage. & writ when the proceedings were finally concluded and there was nothing to prohibit. It might be that where the interests of the public or the Crown were concerued the court would take such a step, though even
REEVE v. FOWLE-Pollock, B., at Chambers, 29th October. then it had a discretion in the matter, but the present application was DEBTORS Act, 1869 (32 & 33 Vict, c. 62)-COUNTY COURT-PROHIBITION. not one of that character. STEPHEN, J., concurred.-COUNSEL, R. Vaughan Williams; Kemp, Q.O. and Vennell. SOLICITORS, F. Burchell ; Ranger $ validity of a committal by a county court judge for past default, and a
A point, as to which some doubt has existed in the profession, as to the Burton.
direction that the warrant thereunder should not issue so long as monthly HALL v. COMFORT-Q. B. Div., 28th October.
instalments are duly paid, was decided in this case. There is no doubt as BILL OF SALE-MORTGAGE BY DEMISE ATTORNMENT-RECOVERY OF LAND
to the desirability of the order and direction in question, which, generally UNDER R. S. O., 1883, XIV.
speaking, is made with the consent of both the plaintiff creditor and the
defendant debtor, and greatly lessens the number of imprisonments. This was an application for the recovery of land under the provisions Such orders have been made and directions given by nearly all the judges of ord. 3, r. 6, and order 14, The tenant of certain premises used for of county courts for many years past. Counsel for the applicant con. warehousing furniture mortgaged them by demise. The mortgage deed tended that Judge Stonor, the judge of the Brompton County Court, contained a clause that " for the purpose of better securing the punctual should be prohibited from proceeding further on an order of committal dated payment of the interest on the said principal sum, the mortgagor attorns the 4th of March last. He said that since it was made two instalments tenant to the mortgagee" at a yearly rent. It was also provided that the had been paid by the defendant, and though instalments were now in mortgagee might, at any time after a certain date, enter into or upon the arrear, the order should not be enforced. Counsel for the county court premises and determine the tenancy thereby created without giving to the judge contended that the order was valid. On the 4th of March, when mortgagor any notice to quit. It was argued for the defence that the the order of committal was made, the judge was satisfied by evidence attornment clause was void as being in effect an unregistered bill of sale, that the debtor had had, since the date of the judgment, the means to pay, and that section 6 of the Bills of Sale Act, 1878, included such a deed, the and had neglected to pay. This was all that is required by section 5 of mortgagee never having been ia actual possession. It was also con. the Debtors Act, 1869. The county court judge should not therefore be tended that ord. 3, r. 6, did not apply to a demise such as this, which prohibited. Pollock, B., said :-It is admitted that the county court had been terminated by the landlord for non-payment of the rent, since judge, at the time he made the committal order, was satisfied that the relief might be obtained against the forfeiture. The Court (Lord ! debtor had had the means to pay since the date of the judgment, and COLBRIDGE, O.J., MANISTY and STEPHEN, JJ.) held that order 14 was then in contempt. The order of committal and directions were perapplicable, and the deed was not a bill of sale. Lord COLERIDGE, C.J., fectly proper. The order of committel for ten days was in respect of the said that in this case the debt was admitted, and unless the objections to defendant's past default, but the judge directed his officer (the registrar). the instrument succeeded there was no reason why judgment should not not to issue the warrant so long as £i a month was paid ; that was no part be given against the defendant. The Bills of Sal Acts did not include of the order, but was a direction that the judge gave to the officer of the such an attornment as that in this deed. Certain rights were attached by court, similar to the directions given in the High Court on committals, the law to the relation of landlord and tenant, and among them was the that the warrant should lie in the office for a time. I am well acquainted right under certain limitations to seize all property on the demised pre- with the form which is used in the Brompton County Court, where I have mises. Such property could not be brought into a schedule. If this sometimes sat as deputy-judge, and it is right. The summons for a prodeed were to be held to be a bill of sale every lease under which a right | bibition against the judge must be dismissed, with costs, and, as the of distress passes to the landlord would be a bill of sale also. With registrar was served, and the judge of the county court thought it of reference to the other contention, that ord. 3, r. 6, did not refer to such a suficient importance to be represented by counsel, certificate for counsel case as the present, his lordship added that Daubuz v. Larington (32 W. R. will be granted.—Counsel, R. Wallace; Lynch ; Cooper Wyld. 772) was authority to shew that where a landlord had determined a tenancy at will by a notice to quit and entry, as in the present proceedings, PIERCE v. WILLIAMS (JONES, Claimant)-Ruthin County Court, he was entitled to put in force the provisions of the order. MANISTY
29th September and 28th October. and Stephen, JJ., concurred.--Counsel, D. Walker ; Macaskie. SOLICITORS, INTERPLEADER-BILL OF SALE, STATUTORY FORM OF-Bills or Sale Act, Gedge, Kirby, f: Millett ; Wood, Bird, & Co.
1878, AND Bills or Sale Act AMENDMENT Act, 1882. the Matter of AN APPLICATION FOR A RULE FOR A
This interpleader action was to test the validity of a bill of sale given MANDAMUS,Q.B.Div., 28th October.
by the defendant in the original action (Robert Williams) to Jchn Jones, Ordex under Dogs Act, 1871 (34 & 35 Viçr. c. 56)—"UNDER CONTROL payınent of 450. The high bailiff had seized and sold a portion of the
the claimant, whereby the scheduled goods were assigned to secure the OF ANY PERsox."
goods assigned under a judgment against Robert Williams for £21 at the This was an application on behalf of Sir Hector Maclean Hay, for a rule suit of W. Clwyd Pierce, and the latter claimed the proceeds of the sale nisi in the nature of a mandamus calling upon Mr. H. Curtis Bennett, a in satisfaction of his judgment; John Jones claimed the proceeds under a metropolitan police magistrate, to shew why he should not state a case bill of sale granted by the defendant, Robert Williams, to hiro to secure raising a question of law for the decision of this court. The applicant the repayment of £50 and interest at five per cent. per annum as stated. was summoned at the Wandsworth Police-court for having acted in con The bill of sale was dated the 25th of May, 1886 (the date of the judg. travention of an order made in pursuance of section 3 of the Dogs Act, ment), and was expressed to be made in consideration of £50 “now paid 1871, in having allowed a dog belonging to him to have been in or upon to the said Robert Williams by the said John Jones"; the receipt was a certain thoroughfare when not under the control of himself or any other acknowledged; and it assigned unto the present claimant the scheduled person. Mr. Curtis Bennett was of opinion that, as it had been proved goods (according to the statutory form), and also all and singular the that the dog had neither been muzzled nor led, this was practically con- growing crops specifically described (it being the intention of the parties that clusive that it had not been under proper control at the time, and he fined when grown and ready to gather in they shall be severed, thereby coming within the defendant 3s. and 28. costs. He, however, expressed his willingness the provisions of section 7 of the Bills of Sale Act, 1878).” The deed then to state a case upon the point for the decision of this court, but when a continued in the statutory form, and the time for payment of the £50 was draft case had been submitted to him he hud refused to sign it, on the stated as the “ 26th day of May, 1886," the day following the date of its ground that the question raised by it was one of law. The draft case, so execution. Certain of the goods scheduled were not enumerated, but iar as material, was as follows:-*Upon the hearing of the said informa. were classified as “ Flowers in glass cases, cooking utensils, set of fancy tion a police constable of the metropolitan police, who was called on behalf vessels, brushes, knives and forks, thirty-one farming tools, haruess and of the respondent, proved that on the 26th day of September aforesaid, gear, tenant's fixtures in stables and house, &c., &c. Poultry, hens, the appellant was seen in a public thoroughfare, to wit the Upper Rich- ducks, chickens, dacklings." The growing crops were scheduled. For mond-road, in the district of the said Wandsworth Police-court, accom the execution creditor it was contended that the bill of sale was void in panied by a dog, which said dog was neither muzzled nor led. The toto, and the following cases were cited :-Davies v. Burton (32 W. R. 423, appellant appeared in person and adduced no evidence in contradiction of 11 Q. B. D. 537), Hetherington v. Groome (33 W. R. 103, 13 Q. B. D. 789), the evidence in paragraph 4 hereof mentioned. The appellant contended Roberts v. Roberts (32 W. R. 605), Re Williams, Ex parte Pearce (32 W. R. that the dog might have been, and, in fact, was under his control, 187, 25 Ch. D. 656), Daries v. Rees (34 W. R. 573, 17 Q. B. D. 408), Ex parte although it was neither muzzled 'nor led. I was of opinion and ruled, as Stanford (34 W. R. 507, 17 Q. B. D. 259). Judge HORATIO LLOYD, Q.C., in a a matter of law, that no dog not being either muzzled or led was, or could written judgment, said:--After careful consideration of the points raised be, under the control of any person within the meaning of the said order, as to the invalidity of the bill of sale, I have come to the conclusion that I and I accordingly convicted the appellant and imposed a fine of 38. and cannot declare it void on either of the grounds. I do not think that it 28. costs as in paragraph 1 hereof appears. The question of law arising contains any covenant so inconsistent with the Act and form that it can upon this case for the opinion of the court is, whether upon the facts be impeached on that account, nor do I think that the mere fact that the proved or admitted I, the said magistrate, came to a correct decision in time of payment is fixed at so early a date as the day following the execu
30 tion of the bill is of itself sufficient to avoid it. In Re Williams, Ex paret | had to decide the question alone he should have formed a different judg. Pearce, the time was forthwith, or when and so soon as the grantee ment. Fry, L.J., said that there must be a strong case to justify copies should think fit," and power was also given to relinquish possession and in more than one language. The present decision would lay down no resume it again so often as the grantee chooses. In the present case also general rule. It was permissible to allow them, but only in a peculiar there is no question of "capitalized interest or other circumstances As to the refreshers, he would have been glad if the registrar, in which existed in Davies v. Burton and other cases. Upon the whole I do exercising his discretion, had followed the rule of the Supreme Court, but not think there is sufficient reason for impeaching the bill of sale. I the question was one of quantum only, and was clearly in the registrar's must, therefore give judgment foi the claimant. The case was not so discretion, and it was not for the Court of Appeal on such a point to clear as not to justify litigation, and therefore I do not give costs against interfere with the decision of the registrar and of the Vice-Chancellor.– the execution creditor, and I think the claimant should bear the cost of Counsel, Ambrose, Q.C., and Hopkinson ; 0. Leigh Clare and S. Hall; W. B. the hearing fee and possession money. Judgment accordingly:--For Ferguson. SOLICITORS, Phelps, Sidgwick, 4 Biddle ; Cunliffes 5 Davenport, claimant, Malcolm Douglas, Barrister. For execution creditor, Solomon (Denbigh).
Re WADSWORTH, RHODES v. SUGDEN-Kay, J., 3rd November.
SOLICITOR-DISCHARGED BEFORE TRIAL-His CHARGING ORDER FOR Costs-
LIEN OF PRESENT SOLICITOR-23 & 24 Vict. c. 127, s. 28.
A solicitor employed by the plaintiff in an action and discharged
before trial obtained a charging order, under 23 & 24 Vict. c. 127, for SOLICITOR AND CLIENT—Costs-TaxatION—Copies of CORRESPONDENCE, his costs, charging them upon a sum of money ultimately recovered by REFRESHER FEES TO COUNSEL-RULES OF LANCASTER CHANCERY COURT
the plaintiff in the action, the judge holding that the services of the first DISCRETION OF REGISTRAR.
solicitor had been instrumental to the successful result. This order was This was an appeal from the refusal of the Vice-Chancellor of the made subject to the lien of the second solicitors for their costs (33 W. R. County Palatine of Lancaster (Mr. Bristowe, Q.C.) to review the taxation 558, 29 Ch. D. 517). Upon this summons, which sought to vary the chief of the plaintiffs' costs of the action. On a prior appeal to this court on clerk's certificate and to deal with the funds, the discharged solicitor, the merits of the action the plaintiffs succeeded, and the defendants were who had been served, asked to have his costs paid pari passu with those ordered to pay costs. There were two questions on the present occasion of the solicitors who had acted for the plaintiff down to, and at the time (1) the costs of copies of certain correspondence; (2) the amounts of the of, the trial. KAY, J., held, following Cormack v. Beisly (3 De G. & J. refresher fees which the registrar had allowed to the plaintiffs' counsel. 157), that the costs of the solicitors who acted at the time of the trial The main question in the action was as to a commission added by the must be paid in priority to those of the applicant.-- Counsel, Hastings, defendants to the sums due to them from the plaintiffs in the course of Q.O., and Renshaw; Whittaker ; W. Pearson and Oswald. SOLICITORS, dealings between the parties in cotton goods. The plaintiffs were mer- Jaquos, Layton, $ Jaques ;_W. Easton, for W. Durnford, Halifax; Sewell & chants in Mexico, but one of the partners in their flrm resided generally in Edwards, for I. E. f E. H. Hill, Halifax. Paris. The defendants carried on business in Manchester. A large mass of correspondence between the plaintiffs inter se and between the defendants inter se had been used as evidence in the case, the defendants seeking to shew
ELECTION CASES. from the plaintiffs' correspondence that they were aware of the commission with which the defendants were in the habit of charging them. For the Re SHOREDITCH ELECTION-Shoreditch County Court, purposes of the trial the correspondence, which had been conducted in
13th October. French, was translated into English, and copies of the originals and of the translations were furnished to counsel. The registrar had allowed the returning officer of the borough of Shoreditch at the late general election,
This was a sitting for taxation of the bill of Mr. Enoch Walker, the costs of the copies in both languages. The registrar had also allowed to the three counsel respectively employed by the plaintiffs refresher fees of delivered was divided into two sections under the heads of “returning
at the instance of Mr. Germaine, one of the candidates. The bill as twenty, fifteen, and ten guineas a day. The defendants contended that officer's charges " and "All other expenses as per vouchers," and objecthe rule of the High Court, limiting refreshers to a maximum of ten
For Mr. Germaine it was contended that the guineas a day, ought to be applied in the Palatine Court. The plaintiffs tion was taken to the whole of the items in the first of these for which no insisted that, under the rules of the Palatine Court, the quantum of returning officer had, in each instance, charged the maximum allowed by refreshers is left in the discretion of the registrar, who is the taxing officer the Act, while the Act says that "the churges are in no case to exceed in that court. The Court of APPEAL (Cotton, Bowen, and Frr, L.JJ.) the sums actually and necessarily paid or payable," and that the returning affirmed the taxation. COTTON, L.J., said that the registrar had considered officer was only entitied to such sums as he had really expended, and for that there was reasonable ground for furnishing copies of the corre
which he could shew vouchers. For the returning officer, it was argued spondence in both French and English. The Vice-Chancellor had taken
that the amounts mentioned in the schedule to the Act were scale fees the same view, and, though only a small number of the very numerous allowed for the remuneration of the returning officer, and he refused letters had been actually used, still this court could not see that the
upon principle to produce vouchers for any of these items.
After a decision was clearly wrong, and therefore could not differ from the taxing very long discussion on the principal items objected to, the REGISTRAR officer and the Vice-Chancellor. There was more doubt as to the copies (Mr. EARLE) stated that he would reserve judgment, at the same time in French than as to those in English. If the documents had only been
intimating that did not think the Act intended the returning officer to wanted for the purposes of the argument in court, or to shew the course of the correspondence, the English copies would have been sufficient, and £54 off Mr. Walker's bill of £175 198. 6d. -For the candidate, H. W.
make a profit out of the election charges. He has since taxed a sum of if questions arose between the interpreters on the oral evidence as to the Chatterton. For the returning officer, Hedderwiek (barrister), instructed by letters, then the originals would have been sufficient. The writers of the Mills, Lockyer, g Mills.— Times. letters had, however, been examined in court through interpreters, and frequent references had been made to the French copies, and as the taxing officer and the Vice-Chancellor had thought that in this particular case it was reasonable to supply those copies, the Court of Appeal could not
On Monday evening the members of the Surrey Sessions Bar Mess differ from the decision. Though the letters between the defendants were
entertained the Solicitor-General at a complimentary dinner at Willis'snot used at the trial, yet the case was to be tried with oral evidence, and rooms, King-street, St. James's, in celebration of his recent appointment. there was a conflict as to the nature of the agreement between the parties The chair was occupied by Mr. Serjeant Robinson. and their knowledge of what had been done. It was therefore reasonable At the Bristol Assizes, on Saturday, before Mr. Baron Huddleston, to have the copies in readiness. With regard to the refreshers it had Frederick Alfred Stock, builder, was charged with perjury. Last May been urged thał the rules of the Palatine Court provided that, where they one Swain, a builder at Bath, let some land to the prisoner, on which the did not fully and adequately provide in any particular with regard to latter was to build a house. Swain agreed to act as builder, the materials procedure and practice, the practice of the Chancery Division of the High being supplied by the prisoner, who was introduced to one Book, a Court was to be followed. Therefore it was contended that the rule of haulier, by Swain. Book supplied the prisoner with certain stone and the High Court as to refreshers must apply. In the Palatine Court there did hauling for him, for which he sent in a bill to the prisoner, who were two sets of rules—one, made by the Chancellor of the Duchy and promised to pay it by cheque. He, however, did not do so, and at last Book the Vice-Chancellor, with the advice of one of the Lurds Justices of had to take proceedings against him. Appeal, dealt with practice and procedure ; the other, relating to costs issued for the sum due, and Book made the proper affidavit to recover
A specially indorsed writ was and fees, were made by the Chancellor, with the advice of the Vice- immediate judgment against the prisoner in accordance with the terms Chancellor. Rule 19 of the latter set provided that, “as to all fees or of R. S. o., 1883, XIV. The prisoner, in answer to this, made an allowances which are discretionary, the same are, unless otherwise pro- affidavit, in which he positively swore that the goods supplied and the vided, to be allowed at the discretion of the taxing officer.” In his lord labour done by Book were not for him, but for Swain ; and it was for ship's opinion the amount of the refreshers was in the discretion of the the false statements made in this affidavit that he was now tried. The taxing officer, and this court ought not to interfere. BOWEN, L.J., con writ was issued at the district registry of the High Court at Bath, and the curred, after some hesitation, and though he desired to say nothing affidavit was sworn before a commissioner there. In the result, the jury against the ability of the taxivg officers of local courts, it was very found the prisoner guilty, and the judge sentenced him to 18 months' vard important that those officers should keep a firm hand over costs and fees, labour. and that the courts should exercise vigilance to see that a lax practice did charge to say that no harm could come of the perjury. They did not
In summing up the judge said: “It was no answer to the not grow up. The officers of the local courts necessarily had less experi- even know that no harm had come. ence in these matters than the taxing masters in London. With regard to Book, promising to pay the money, was it possible to believe for a mo.
In the face of prisoner's letter to the copies in French he had doubts, because he was afraid that the ment that prisoner thought he was not liable? Yet, in spite of that, he registrar had taken the correspondence wholesale, instead of considering recklessly made the affidavit denying that he was liable for the money or whether the solicitor had applied his mind to the particular letters of any part of it. No doubt the object of prisoner was to gain time, and he which both French and English copies might be necessary. In general, might then either have got the money or have taken steps to render the the practice would be to allow copies only in one language. If he had l execution worth nothing."
because witnesses and others engaged in one court may be required in MR. JUSTICE CAVE AND MR. HIGGIN, Q.C.
the other at the same time; but what indecency or what want of decorum
there could be in the learned chairman of quarter sessions sitting yesterday MR. HIGGIN, Q.O., chairman of the Salford Quarter Sessions, recently I cannot for the life of me conceive. I arrived in the city of Manchester abandoned the business of the sessions, leaving thirty-one prisoners to be at six o'clock in the evening, and the commission was not opened at all on tried at the assizes. In doing so he spoke strongly of the arrangements that evening; you yourselves have just heard it opened by the clerk of made by the judges for holding assizes, allowing the sessions and assizes to assize ; and I certainly do regret that while the learned chairman was so clash. He further stated that it would be a breach of decorum to have extremely anxious to avoid indecorum and indecency by sitting upon a courts sitting together. In charging the grand jury at the Manchester day when he could not by any possibility have interferred with the court Assizes on the 29th ult. Mr. Justice Cave said :-“I must take notice of of assize, it did not strike him that there was something which might certainly what in my experience is a totally unprecedented circumstance, possibly be said on the ground of decency and decorum in favour of not and that is that at the sitting, the Salford Quarter Sessions, which I holding up from this seat her Majesty's judges to public reprobation. believe took place on Monday last, the chairman seems to have gone out of his way to make an attack upon her Majesty's judges. In all my experience, now extending over, I am sorry to say, as barrister and as judge, a great many years, I bave never known such a case to take place before. I could hardly have believed it possible that such a thing could have been done, but I have had laid before me an extract from one of the local newspapers
THE ADMINISTRATION OF LAW IN INDIA. detailing the circumstances. Now the learned chairman of quarter sessions SIR WILLIAM MUIR delivered an address on this subject on Monday is reported to have stated that there would be a number of cases which at Edinburgh in which he said (we quote from the Scotsman) that of necessity would have to be handed over to the judge of assize to try, Warren Hastings, in 1780, laid down the rule that in all matters and it appears that there are no fewer than thirty-one of those cases, which regarding inheritance, marriage, caste, and other religious usages, undoubtedly ought to have been disposed of at the quarter sessions, and the laws of the Koran should be administered with respect to the which have been sent here from the quarter sessions at considerably in- Mohammedans, those of the Shastas with respect to Hindoos; and creased expense to the county, and no doubt very considerable inconvenience where the parties were of different creeds, by, the laws of the to the parties who are witnesses in those cases. The learned chairman is defendant. For the other classes there was no other legislative provision reported to have said that “if the authorities who fixed the commission than that the law should be administered with justice and equity and good day did not choose to consult the chairman of these sessions or the clerk conscience. This rule continued to be long observed. Fifty years ago of the peace as to when it was likely the sessions would be finished, and if a Royal commission was appointed to promulgate a universal code, but it the authorities fix the commission day when it is absolutely certain the was only in 1862 that a penal code was enacted with a universal applicasessions will not be finished, it is not the fault of the authorities of tion. There had also been further steps in the same direction, among Manchester that a clashing of this kind should take place. If they would which he mentioned the enactment of laws of contract, twenty years ago, condescend to make inquiry they would receive sufficient information to in which the principle of limited liability was largely recognized; the prevent for the future the clashing of these two courts.' Now I must say separate and independent rights in certain cases of married women, to a
regret extremely that the chairman should have indulged in language of greater extent, indeed, than he had himself considered at the time expethat kind, which applies, and must only apply, to her Dlajesty's judges of dient. Regulations of wills and testaments had been enacted ; but in assize. It is her Majesty's judges of assize who fix the time for holding the these, as in other matters, large exceptiuns were necessary with respect to assizes. At the winter and summer assizes that is done at a meeting of all the usages of certain classes. It would thus be seen that a large code of the judges, and I can assure you that a very great deal of trouble is taken territorial law affecting large classes of subjects in India could be looked and a very great deal of time spent in endeavouring to fix the date of forward to eventually. Exceptions, however, must remain, especially in holding the assizes so as to inflict the minimum of inconvenience on those the case of the Hindoos and Mohammedans, which constituted the who have to be brought there ; and, so far as my experience undoubtedly vast majority of the nation. In one main feature the Mohammedan extends, whenever there has been any reason to suppose that there might and the Hindoo agreed-namely, that their law was based upon be a clashing between the sessions and the assizes, which is very difficult Divine sanction. The law bound up in the religion, and indeed to prevent in the month of July, because on some circuits-not on consequently it was of a personal, not of a territorial nature, and this-judges are compelled to begin very early indeed, the chairman of followed the individual wherever he went. The Mohammedan law was qnarter sessions takes care to communicate, directly or indirectly, with intolerant of interference, and novelty or change was absolutely impossible. the judge of assize and to call his attention-for he is necessarily ignorant The Hindoo system differed in that respect. In many important points it of those matters—to any possible inconvenience that may be caused by had been materially influenced by British administration, the tendency of the clashing of the sessions and the assizes. Now it so happens that, though which had been towards the disintegration of the family and the larger I have been on the bench nearly six years, I have never yet been to Man. recognition of the individual; so also in regard to the matters of rechester at this time of the year, and consequently I was quite unaware of marriage and widowhood. It had likewise suffered modification under the day fixed for holding the Salford Quarter Sessions. All I knew of the the action of the British law courts ; in other words it was largely insubject was that the first day upon which the sessions could be held was debted to case-made law. Divine as the law pretended to be, it had in the 18th of October. I was necessarily also entirely unaware of the course of time received many modifications, and a corresponding variety of probable number of prisoners that would be brought to trial at these interpretation was put upon its clauses. In this way diverse schools sessions, and it certainly does seem to me that if the chairman of quarter of Hindoo law had arisen, flourishing in different centres. But sessions had really desired that this clashing should not take place, nothing as the Hindoo law was personal, and not territorial, a Hindoo passing from would have been more simple than that he, who was aware of all these one province to another carried the provisions of his law along with him, matters, should write to me, who was necessarily ignorant of them, and and was judged according to them, so that adherents of the diverse schools should give me some little warning of what might be expected to take might be found side by side in the same locality. To add to the complace unless some change were made in the ordinary date of holding the plexity of the subject matter there were the sub-divisions and castes, assizes. Now the judges in holding the assizes adhere to certain fixed especially the four great castes into which society was divided. Each of times. They do not, as is frequently the case with the recorders of cities these had its own usages and rights to which it clung tenaciously, and in and boroughs, for instance, fix those times to suit their own convenience, accordance with which it was entitled to have its civil causes heard and but they adhere to certain fixed times which are prescribed for them by determined. Turning next to the Mohammedan law, Sir William Muir custom, and although they undoubtedly have power to alter those times, noticed the absence of the recognition of anything like the Hindoo family pet, speaking for myself and I think I may speak for the rest of the unit, by which the household was maintained. Among the Hindoos the judges also they would hardly think of doing that to suit their own sinking of the individual in the family had no doubt tended to retard the private convenience, although fully prepared to do so to suit the convenience progress of society, but it had also tended to make domestic life far of the public; and had I knowu that there was any likelihood whatever of sounder and healthier than the Moslem, and the same might be said of any great public inconvenience arising by the assizes being fixed at the the marriage tie and the nearer approach to monogamy among the time they were fixed, I certainly would have deferred them for three days, Hindoos. Scattered through the Koran, which
the great or even for a week had it been necessary; and I certainly very much regret foundation of Moslem law, were the rules and instructions which that the learned chairman of quarter sessions, instead of addressing to the Mohammed had issued from time to time for the guidance of his followers. grand jury from this seat a public reprobation of her Majesty's judges, Consequently the code was not laid down according to any systematic did not think fit to communicate with me directly or indirectly, and warn plan, nor did it state any general or abstract principle capable of extension me of what the consequences might be of holding the assizes as early as the to other lands or ages. And hence, when the Arabs had imposed their 28th of October. The time of holding the assizes was fixed some five or dominion and their creed over highly civilized nations, these rules which six weeks ago ; but although it was fixed as far back as that there was had suited their simple habits had to be widened to meet the new still nothing which would prevent me from altering that date for good demands. The laws of inheritance, of marriage, and divorce were laid chairman of quarter sessions I certainly would have had the necessary Divine inspiration; but, in matters not irrevocably settled, reference was Majesty's judges of assize to come here to-day, on the contrary, they have tradition sprang up, delivered at first orally, and afterwards committed to come at considerable inconvenience. I cannot refrain also from expressing writing. These traditions depended upon independent chains of witnesses, thin regret, if it is true, as I am informed it is, that the chairman did not which found different degrees of credence with different schools. Of these think it to continue sitting yesterday. Now I gather the ground on which four orthodox schools sprang up, besides the Shiah school which rejected the learned chairman puts it is that it would be a breach of decorum and the first threc Caliphs and acknowleged only the fourth, Ali and his des. an act of indecency for the court of quarter sessions t, be sitting at the cendants, and the tradition proceeding from them. The majority of by an act of indecency” and a “ breach of decorum." I have generally whole, was founded on principles of reason and justice. It presented understood that it is inconvenient for both cogurts to be sitting at once, certain peculiarities, such as the enactment that no more than one-third
of a property could be bequeathed by law, and the criminal code was in with the utmost confidence, giving reasons for her previous mistakes. On some respects barbarous, but it was no longer enforced, if it ever was, in its this evidence, had it stood alone, the man must have been acquitted. severer aspects under British rule. While endeavour was made to supply The woman had, however, been robbed of a purse containing three or India with a territorial law of universal application, attention was not less four coins, which she specified--one being a half-sovereign, kept in a small given to special legislation for individual classes and tribes wherever the compartment of the purse with a separate clasp. It was proved that im. law required amelioration or amendment.
mediately after the commission of the offence the prisoner was at a public. house, in which he saw an amber mouthpiece for cigars. He bought it from the landlord after some talk, in the course of which he displayed a purse exactly corresponding to the description of her purse given by the
prosecutrix, not only in its shape, colour, and material, but in the coins PRISONERS AS WITNESSES.
it contained, and the way they were distributed in it. The prisoner said MR. JUSTICE STEPHEN contributed an article on this subject to the October nothing of the purse, and did not produce it. This caused his conviction. number of the Nineteenth Century, in which he says :-I have gained much He was not called as a witness, and there would bave been no use in experience on this matter since the Criminal Law Amendment Act came calling him if he had not been able to produce a purse like the one seen into force in the autumn of last year. Since that time I have tried a great by the publican but different from the one stolen from the prosecutrix. many cases in which prisoners were competent witnesses. In most of This was an instructive case in another way. If it had not been for the these cases, though not in all, they were called, and I have thus had the purse, the prisoner would probably have been acquitted on account of the opportunity of seeing how the system works in actual practice. My ex weakness of the evidence of the prosecutrix, and his evidence would have perience has confirmed and strengthened the opinion upon the subject been immaterial even if hers had beeu stronger. He was unquestionably which I have held for many years and maintained on various occasions, near the place at the time of the crime, and had not more than perhaps a
If he had sworn that he was that the examination of prisoners as witnesses, or at least their competency, quarter of an hour to account for. is favourable in the highest degree to the administration of justice. lounging about the streets (as he had been just before) for this quarter of The principal object of this paper is to shew by illustrations taken from an hour, and did not commit the crime, his evidence would, for reasons actual experience that the value of the evidence given by prisoners is already given, have made no difference. It may seem to be paradoxical exactly like the value of the evidence given by other witnesses, and that, to say so, but it is nevertheless true that the class of accused persons who though their interest in the result must always be taken into account, and will get least advantage from having their mouths opened are those who is in many cases so important as to destroy altogether the value of their are entirely innocent of and unconnected with the crime of which they are evidence, there are also many cases in which it is of great and even deci- charged-people who have nothing to conceal and nothing to explain. sive importance.
I will begin with cases which appear to me to The only way in which the most innocent man can prove his innoeence of illustrate the doctrine that the evidence of prisoners may often be unim a crime, of which he knows nothing whatever, is by proving (as by an portant. A man was indicted under the Criminal Law Amendment Act alibi) that was physically impossible that he should commit the crime ; for the seduction of a girl under sixteen. About the facts there was no this in many cases he would be able to do only by his uncorroborated as. dispute, but the prisoner was defended on the ground that he believed the sertion. “I was sitting quietly writing letters in my library at the time girl to be of the age of seventeen. She admitted that she had told him when you say I was committing a crime” would in many cases be all a man she was seventeen. His counsel said that he should not call the prisoner. could say, and of such a statement he might have no corroboration whatHe would of course say, if he were called, that he believed the girl; but ever, and he might well have the means of leaving the room undiscovered. as this would be merely his own statement as to his own state of mind it If, however, there is a possibility of corroboration, the fact that a man can would add nothing to the case. His evidence would thus be superfluous. supply, so to speak, the threads on which the corroborating facts are The jury acquitted the prisoner, seeing no reason to doubt that the girl strung may be of the greatest importance. It must never be forgotten in had made the statement, and probably regarding her appearance as such connection with this subject that there are differences between people that the prisoner might naturally believe the statement made by her to be who tell the truth and people who lie, which it is not easy to specify, but true. In this case the prisoner's evidence was sure to be given if asked which are none the less marked and real. I have known cases in which for, whether it was true or false, and was therefore worthless. This case a jury has acquitted merely upon hearing an accused person tell his tale, is a typical one, and suggests a general principle which may be illustrated and in which I felt perfectly confident they were right. A girl, between in many ways as to the value of the evidence of prisoners and of interested thirteen and sixteen, prosecuted a hawker for an offence against her witnesses. It is, that the evidence of a deeply interested witness, given under the Act of 1885. He had no counsel, and he did not much crosson the side which his interest would incline him to give it, is of no value examine her, but he gave his own account of the matter in a way which when the circumstances are such that be cannot be contradicted on the led the jury to stop the case and declare that they did not believe a word subject matter of his evidence. This principle is of very general applica - of the girl's story." Theoretically, the two stories were no more than an tion, and reaches its height when the matter to which the prisoner testifies affirmation on the one side and a contradiction on the other. The girl is a fact passing in his own mind, such as knowledge, belief, intention, affirmed that the man had committed the offence, and that he had, when or good faith. : . Though the evidence of an accused person on a charged by her and her mother, edmitted it ; and the mother corroborated point in which he is interested and cannot be contradicted ought to be her daughter as to the last assertion. The man denied the offence, and regarded as worthless in the way of proving his innocence, the absence of said (and in this his wife confirmed him) that when the girl came to his such evidence may, under particular circumstances, go far to prove his house he threatened to kick her out and prosecute her. More particularly, guilt ; for it is a fact, and a very strange one, that criminals will now and then the girl declared that on a particular day and at a particular place the shrink from denying the commission of crimes from the actual commission man called her into the house and committed the offence. The man gave of which they have not sbrunk. The working of the Criminal Law Amend. a minute description of where he was and what he was doing on the day ment Act has furnished very curious illustrations of this. A girl swore in question, of his having met the girl and scolded or, as he called it, that her master committed an offence upon her in his shop, and that im. "chastised” her for some fault, and of her behaviour to him on the occasion. mediately afterwards he suggested to a friend who came into the shop that It would not be easy even by entering into minute details to give all the he should do the saine. The friend persuaded the girl (80 she said) to go reasons for my opinion, but I do not think that anyone who heard this man with him to his house to get some grapes, and, when he got there, com- give his evidence could have doubted its entire truth. He was a grave, elderly mitted the same offence. That the girl had gone to her master's' shop, man, with no kind of special talent, and with a slight impediment or im: that his friend had come in and had persuaded her to go to his house perfection in his speech ; but all that he said had upon it the mark of to get grapes, was clearly proved ; but the commission of the two offences honesty and sincerity, and the details which he gave-though, having no rested upon her testimony, which was in itself open to many objections, legal advice, he was not prepared to prove them by independent evidence showing, to say the least, great inaccuracy and confusion as to time and - were in themselves some guarantee of his truthfulness. It is little place, and being in several particulars intrinsically improbable. If the less than a monstrous denial of justice that a man so situated should be master's friend had sworn to his innocence and had said that all that had deprived of the opportunity of telling the truth in his own behalf under passed between him and the girl was that he took her to his house and every sanction for his truthfulness that can be devised ; and I think that gave her some grapes, and that the rest of her story was false, I think nothing but the force of almost inveterate habit could blind us to the he would have been acquitted; but he refused to be called as a witness. fact. It ought not however, to be forgotten that the opening of the The jury convicted him, I suppose, considering it incredible that mouths of prisoners opens a way to falsehood as well as to truth, and a man falsely accused of such an odious crime should not deny it sometimes to falsehood which it is difficult at the moment to unmask. I upon his oath when he had the opportunity. The girl's master did give have known cases in which-as it appeared to me-failures of justice evidence. He swore that the girl's story was totally false as regarded have occurred because the prisoner, either from artfulness or from mere his havirg committed the crime. The girl, he said, had been sent to blundering, kept back till the last moment some more or less specious his shop (which was some distance from his house) on an errand, and topic of defence, and brought it out at last when it was too late to test had, after a short interval and some joking with his friend who came in, left it in the friend's company.
the matter properly. Three soldiers were tried for a rape, which no doubt greatly dissatisfied with the girl's evidence. This was a very singular case.
The jury acquitted him, being was committed. The evidence against, perhaps, the most prominent of It clearly shews that in the class of cases under consideration accused
them was that he had a bugle upon which he repeatedly blew while the persons will, if the law is altered, have to swear to their innocence, unless
crime was being committed, the whole party being probably more or less the facts of the case are undisputed, or else be taken, and not unjustly, to
in liquor. He swore positively, and with many piteous appeals, that he have confessed their guilt. Cases sometimes occur in which the evidence blow upon a bugle because he had lost his front teeth, which loss he
was not only innocent, but that it was physically impossible for him to of a prisoner is useless because it is out of his power to give the only evidence which would be of use to him. A man was indicted for a rape. professed to be acquainted with playing on the bugle, and one of them
exhibited to the jury. Several persons in court, and one of the jurymen, The question was as to the identity of the prisoner, as to which the account of the prosecutrix was highly unsatisfactory, or at least very doubtful. prisoner should play. The jury, upon this, acquitted all the three pri.
swore to his conviction that it was, in fact, physically impossible that the The prisoner was a soldier. The prosecutrix saw him with other men at the barracks soon after the crime. She hesitated as to his identity, and
soners, thinking, no doubt, that a failure in the identification of one of
the three greatly shook the evidence against the other two. I was aftereven denied it one time, though at the trial she spoke to it wards informed that the bugle was actually taken from the man on is