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an appointment with him-for I don't wish to abridge your lawful VICE-CHANCELLOR BACON.
enjoyments-go into it alone.” THE retirement of Vice-Chancellor Bacon removes from the bench
On another occasion à counsel, notorious for long-winded a judge of marked peculiarities, both of temperament and of intellect. speeches, wandering away from the matter in hand, was thus It removes, too, the oldest of her Majesty's judges, and the last of those addressed by the learned judge :-"Mr. X., at any other time, or in who have filled the office of Vice-Chancellor since its creation in 1813. any other place, I should be most happy to converse with you on Sir James Bacon was born in February, 1798, and was called to nothing to do with the case before me, and I must request you to
this or on any other subject, but what you are now saying has the bar at Gray's-inn on the 16th of May, 1827. He became a Queen’s Counsel in 1846, and in 1868 he was appointed Commissioner confine yourself to the subject matter of the case.” And the learned in Bankruptcy for the London District. This post he held till the judge, having completed with elaborate politeness this address, end of the following year when he became Chief Judge in Bank- relieved his mind by adding, sotto voce, "jabbering idiot” ! ruptcy, and in June, 1870, he was appointed Vice-Chancellor, at
In another case the question was whether the defendant, who lived an age when most men, who are still able to think, are thinking of the height of his house as to diminish the amount of light coming
on one side of the street, ought to be prevented from so increasing retiring. The members of the profession have long appreciated the great street. In delivering judgment the Vice-Chancellor is said to have
to the windows of the plaintiff, who lived on the other side of the merits, while they have been entertained with tale of the peculiari, made the following remarks :ties and accomplishments, of the learned judge ; but to the general public he was probably, as little known as any man could be who “The plaintiff is an artist. The proposed building will undoubtedly had been on the bench long enough to earn a retiring pension. diminish the amount of light which has for the statutory period been in Neither the ill-ventilated court which he so long occupied in the habit of finding its way into the windows of the plaintiff's studio. Lincoln's-inn, nor the melancholy place in which, on some thirty An attempt has been made to justify this interference with the plaintiff's days in the year, he discharged Þis duties as Chief Judge in Bank- property, and for this purpose certain cousiderations have been suggested ruptcy, nor the more cheerful court to which he removed after the which, by the courtesy of the counsel on the other side, have been called
an argument. I am told that if the plaintiff's work is to be properly Easter Vacation of 1883, was often thronged by a large and atten executed it is desirable that light should fall upon it from only ore tive audience. His was not the court into which sensational cases
source; that the studio is sufficiently lighted by a skylight, with which the naturally found their way: Plaintiffs who had been shabbily treated, defendant's building cannot possibly interfere; and that the defendant is but whose cases were such as could hardly admit of legal redress, conferring a positive benefit upon the plaintiff by removing the inconwere in no hurry to appeal to him for unavailing sympathy in the venience which would necessarily be caused by an access of light from days when a plaintiff in chancery had the privilege of choosing his other sources. Now I am not aware that there is any rule of law or any judge. Nor did it appear that a desire for "swift justice” caused principle of equity which confers upon a man's opposite neighbours å any rush of litigants anxious to have their rights determined by right to decide upon the amount of light which is good for him, and I am him. Before the days when causes began to be assigned to the of opinion that the gentlemen with whom this argument originated are judges in rotation his cause list was largely filled by means of trans- in no danger of suffering from an excess of illumination.” fers from other branches of the court; and it was probably on this
In another case, a plaintiff who sought to have bis name removed account that it usually contained a large number of cases requiring from the list of shareholders of a company relied upon the statement tedious investigations, cases of which the other judges of first of a witness who had published a pamphlet purporting to shew that instance would naturally be glad to be relieved.
the company had been fraudulently floated, and that its business To the bearing of the cases brought before him Vice-Chancellor had been dishonestly conducted. The witness admitted that his Bacon addressed himself with an almost apathetic patience, which was information had been derived from the secretary of the company, perhaps recommended by considerations to which he once referred in whose acquaintance he had cultivated with the express design of answer to a junior counsel who expressed his regret at having de- eliciting from him something detrimental to bis employers. After tained the court so long. “Don't apologize to me. You haven't de- commenting on the conduct of the witness, the judge said :tained me. I am bound to be here, and I must be listening to this case, “Out of this scurrilous libel, to which the writer of it referred with or the next, or to some other. I have no reason to suppose that the next manifest satisfaction as my pamphlet,' the plaintiff has culled and got case will be less uninteresting tban this.' Yet it was impossible for together a number of odds and ends of incoherent tales, a set of particles any observant person to suppose that the Vice-Chancellor did not and patches and fragments and scraps and rags and shreds and sticks and carefully attend to what was going on before him. We have often straws, out of which he has constructed a kind of jackdaw's nest, not withbeen surprised at the readiness with which, in delivering judgment, out mud enough to hold it together. he marshalled the facts of the case and the particulars of the evidence But we must not multiply instances. Nor do we desire to attempt which had been given. And though he certainly was reticent enough to estimate the Vice-Chancellor's abilities as a judge. No doubt he (and, in this respect, has left an example which migbt perhaps be bad his failings, amongst which may perhaps be justly reckoned a followed with advantage by some of those who were lately his readiness to make up his mind too early as to the merits of a case ; colleagues) yet the remarks addressed by him to counsel during an excessive ingenuity in finding reasons to support the opinion argument sufficiently proved that his reticence was not the result of which he had too hastily adopted; and a marvellous facility in indifference. Nor is it to be supposed that he always displayed an ignoring what might be said against it. This was, perhaps, only endurance incapable of being surprised into at least the appearance of what was to be expected from one who, when he had reached his irritation. His remarks not unfrequently exhibited rather more threescore years and ten, was still an advocate. But we desire to acerbity than was likely to be agreeable to an untrained taste. These express our conviction that he possessed many and great merits remarks were distributed with an impartiality worthy of the judgment which are far from being common on the bench; and he must indeed seat. Nemo ex hoc numero mihi non donatus abibit might seem to have have been a dull man who could practise long before Vice-Chancellor been the maxim by which he dispensed his sarcasms amongst those Bacon without finding anything better to imitate than his occasional who practised before him. Probably no counsel who, in the course asperity. We will only add that we part with great regret from a of his practice, had much to do with Vice-Chancellor Bacon failed to judge wbo combined so much of the vivacity of youth with the elicit from him some remark too personal to be ignored, too true to experience of a very mature age, and whose great originality was be palatable, and too pointed to be readily forgotten. Yet, even adorned by so many accomplishments. when his observations were most caustic, there appeared to be something either in the matter or in the speaker's manner which prevented such observations from exciting protest or creating annoyance; and, in spite of the proverbial difficulty of appreciating a joke made at one's own expense, it often happened that the victim, though, perhaps, not endowed with a keen sense of the ludicrous, would join
CORRESPONDENCE. heartily in the laugh raised against him.
SOLICITORS' ADVERTISEMENTS. It is no doubt easier to illustrate by examples than adequately to analyze the Baconian method. We will take one or two examples
[To the Editor of the Solicitors' Journal.] out of many which occur to us. We remember an occasion on which Sir,—The enclosed advertisement appeared in the Weekly Times of & pertinacious advocate, after having completed a somewhat dreary Sunday last. Surely it is time that soine steps were taken to put an review of one part of his case, said: "Then, my lord, we come to end to this disgraceful system of touting.
C. G. SHERWOOD. the matter of the accounts, to which I desire to direct your lordship's 23, John-street, Bedford-row, London, W.C., Nov. 9. attention." “This is not the place for it; the accounts cannot be taken here—they must be discussed in chambers.” “There are only
The following is the advertisement enclosed :three items which I wish to mention,” “Three more than it is my
LAW Business. -A well - established Firm of City Solicitors, being duty to consider now; three more than I propose to consider."
aware that bonâ fide Cases of Divorce and Probate, &c., and Claims for
There Damages or to Property, are often not carried out for want of Professional is one item which I am particularly anxious to go into.” “Go into Aid, are willing to Give Advice by post or at interview without charge,
by all means," said the judge, but don't ask me to go into it. And to take up approved cases at their own risk.-Address Lex, 64, Go into it with my chief clerk; or, if you cannot wait till you get | Gresham-street, London, E.C.
section 57 of the Judicature Act, 1873, to make an order of reference, NEW ORDERS, &c.
and there was also a question as to the mode of the exercise of the
judicial discretion given by that section. The plaintiff, by his writ, PAY OFFICE-SUPREME COURT.
claimed an injunction to restrain the defendants, who were builders, and
who were engaged in rebuilding a house adjoining the plaintiff's house, REMITTANCES BY Post,
from taking away, or in anywise injuring, the supports of the plaintiff's The attention of persons within the United Kingdom entitled to house, and also from continuing to damage such house and the supports payment of money out of court is directed to the increased facilities, thereof, and also from continuing any other works at the house adjoining under rule 48 of the Supreme Court Funds Rules, 1886, for obtain the plaintiff's house so as to cause injury and damage to the plaintiff's
house and the supports thereof, and also claiming damages. In pursuance ing payment without personal attendance :1. Dividends or other periodical payments (without limit of of notice, the plaintiff moved for an interlocutory injunction in the
The motion was heard by Grantham, J., as Vacation amount) may be remitt d by post as they fall clue upon the request Judge. The plaintiff's counsel asked for an injunction, but told the of the persons entitled thereto, attested by a justice of the peace, or
judge that the evidence was conflicting on the question whether any a commissioner to administer oaths, or a clerk in holy orders, or a injury had been done to the plaintiff's house and its supports by the notary public [Rule 48 (d)].
defendants' operations. The judge suggested that the best course would 2: A direction for payment, not exceeding £1,000 (other than a be to refer the matter to a special referee, to inquire and report to the periodical payment), specially crossed to the banking account of a court whether any injury had been done, and what damages (if any) the person or firm whose name and address are stated in the order or defendants ought to pay to the plaintiff. The plaintiff's counsel assented other authority, or certified (as specified in the rule), will be remitted to this view, and the defendants' counsel, though he said that he was by post upon the written application of such person or firm [Rule not instructed to consent to any order of reference, agreed n this view of 48 (a)].
the result of the evidence, and the judge thereupon made an order of
reference to the effect above stated. The order was not expressed to be 3. A direction for payment, not exceeding £500 (other than a
made by consent. The defendants appealed from the order, and, on periodical payment), to a person not having a banking account, or
behalf of the plaintiff, the preliminary objection was taken that, though whose name and address are not ascertained as above mentioned, the order was not technically a consent order, yet, after the course taken will be remitted by post upon a request signed by such person and by the defendants' counsel at the hearing, they were not entitled to attested by a justice of the peace, or a commissioner to administer appeal. On behalf of the defendants it was contended that the judge oaths, or a clerk in holy orders, or a notary public [Rule 48 (b)]. had no jurisdiction to make the order under section 56 or section 57 of
4. A direction for payment of a sum not exceeding £10 (other the Judicature Act of 1873, and that, not having heard the affidavits than a periodical payment) to a person whose address is furnished to read, he could not have exercised a judicial discretion in making the the Paymaster in the manner specified in the rule, will be remitted by order. The Court (Cotton, Bowen, and Fry, L.JJ.), held that the post upon the written request of such person, without attestation preliminary objection must be allowed. Cotton, L.J., said that it would [Rule 48 (c)].
be impossible for business to be carried on if it could be said that, under Requests for remittances may be sent to the Paymaster by post.
such circumstances, the judge was not exercising a judicial discretion. Forms for the purpose may be obtained in rooms 5, 419, and 420.
It was everyday practice for a judge to ask counsel whether his affidavits (Signed) W. HENRY WHITE, Paymaster.
answered the case made on the other side, and, if counsel replied that he
could not say they did, it would be wrong for the judge to require the Royal Courts of Justice, October, 1886.
affidavits to be read at length. It would entirely destroy the mode in which business was conducted in the English courts (whatever might be the case in other countries) in reliance on the statements of counsel. If,
under such circumstances, the court were to allow the case to be reCASES OF THE WEEK.
opened, they might be doing great injustice. It might be that the
defendants had obtained the advantage of escaping from an order for an MOWATT 3. CASTLE STEEL AND IRON WORKS CO.-O. A. No. 2, injunction and of completing their works. The only question, then, was 3rd November.
whether the judge, exercising a judicial discretion, had jurisdiction to COMPANY-DEBENTURES-INVALID Issue-HOLDER FOR VALUE WITHOUT
make the order without consent. Both the parties being there, and the Notice-EsTOPPEL.
defendants' counsel not suggesting that he was taken by surprise, no
objection of form could arise by reason of the notice of motion not asking In this case a question arose as to the rights of the holder for value of for the order. The judge exercised his discretion upon the materials a document which purported to be & debenture duly issued by and which both parties thought fit to bring before him. And, in his lordship's binding on a company, but which, in fact, was not issued so as opinion, there was power to make the order under section 57 of the to bind the company. The action was brought by a holder of deben- Judicature Act of 1873, the matter being one which required "scientific tures issued by the defendant company, on behalf of himself and the other holders of debentures, to realize their security. The benefit of the could not be conveniently made before a jury. And, the judge having
or local investigation," if, in the opinion of the court, that investigation judgment was claimed by persons who were the holders of some docu- exercised his discretion in this way, there was no ground for the inter, ments which purported to be debentures issued by the company. They ference of this court. wore sealed with the company's seal, signed by two of the directors, and
Bowen, L.J., concurred, adding that he had countersigned by the secretary, and bore date the 10th of May, 1882. ambiguous form, not shewing whether it was intended to make the order
observed a practice growing up of drawing up such orders in a loose and The claim was resisted by the plaintiff on behalf of the other debenture- under section 56 or section 57 of the Act. He thought the order ought to holders. Both Chitty, J., and the Court of Appeal came to the conclusion that these particular debentures were not in fact issued until L.J., said that Schedule K to the R.S.C., 1883, contained appropriate forms
shew on its face under which section it was intended to be made. Fry, December, 1882, after the presentation of a petition to wind up the of orders (Nos. 32 and 33) under sections 56 and 57, and those forms company, on which a winding-up order subsequently made. Chitty, J., refused to admit the claims, and his decision was affirmed on Millar, Q.C., and H. Courthope Munroe.
ought to be followed.--COUNSEL, Grosvenor Woods and Bramwell Davis ; behalf of the appellants. It was argued that, as against a holder for Lousada ; J. J. Chapman.
SOLICITORS, Tatham, Son, f value with notice, the company were estopped from denying that the debentures were issued at the date which they bore, and that the prior holders of valid debentures, all of which were to be paid pari passu, were
Re MILLS' ESTATE-C. A. No. 2, 9th November. equally estopped. They took their debentures subject to the rights of
Costs-JURISDICTION-DISCRETION OF COURT-JUDICATURE Act, 1873, 8. all subsequent holders of valid debentures, and also to the claims of all
23—JUDICATURE Act, 1875, s. 16–R. S. O., 1883, LXV., 1-R. S. C., persons as to whom the company were estopped from denying that they
1875, LV., 1. were the holders of valid debentures. CortON, L.J., said that, even if the which had been paid in by the Commissioners of Works and Public
In this case there was a petition for the payment out of court of money company were bound by estoppel, as to which he would not express any opinion, the other holders of valid debentures could not be so bound. Buildings, in respect of land which they had taken under the When it was said that all the debenture-holders were to rank pari passu, it powers conferred on them by the Acts 3 & 4 Vict. c. 87 and 9 & 10 Vict. was only meant that those who were rightly debenture-holders should so
c. 34, which contained no provision for the payment by the commissioners rank-not persons whom the company had wrongly admitted to be of the costs of a petition for the payment of money out of court. One quesdebenture: holders. The company could not by an admission by way of tion was, whether section 80 of the Lands Clauses Act was to be considered as estoppel bind persons who had previously acquired rights against them. I incorporated in the Act 9 & 10 Vict. c. 34. In Re Cherry's Settled Estates A man could not bind by an admission by way of estoppel those who did (4 De G. F. & J. 332), Lord Westbury, C., held that there was no such not claim through him by virtue of some act done by him after the incorporation, but in Re Wood's Estate (31 Ch. D. 607), Lord Esher, M.R., admission. Bowen, L.J., agreed. He expressed great doubt whether expressed his disapproval of that decision, though it was not then necessary even the company would be bound, though it was not necessary to decide to overrule it. In the present case Bacon, V.C., had ordered the com. But there was not a shadow of a ground for saying that the other
missioners to pay the costs of the petition, on the ground that rule 1 of debenture-holders were bound. Fry, L.J., concurred. -COUNSEL, Farwell ; order 65 gave the court jurisdiction to do so. The Court of Appeal Macnaghten, Q C., and W. Latham ; Macaskie. SOLICITORS, J. H. Hortin; (Cotton, Bowen, and Fry, L.JJ.) reversed the decision, on the ground that Robins, Cameron, f Kemm ; Davidson of Morriss.
there was no jurisdiction. Cotton, L.J., was of opinion that the Lands WHITE v. PETO-C. A. No. 2, 3rd November.
Clauses Act was not incorporated in the Act 9 & 10 Vict. c. 34. That
point was settled by Re Cherry's Settled Estates, and he could not agree PRACTICE-ORDER OF REFERENCE-JURISDICTION-EXERCISE OF JUDICIAL
with the dictum of Lord Esher, M.R. The decision of Lord Westbury DISCRETION-JUDICATURE Act, 1873, ss. 56, 57.
could not, he thought, be disregarded, and in his opinion it was right. In this case a question arose as to the jurisdiction of the court, under that the commissioners could not have been ordered to pay these costs.
As to the other point, up to the passing of the Judicature Act it was clear
Nov. 13, 1886.
45 For the present purpose rule 1 of order 55 of 1875 and rule 1 of order 65 of 1883 were identical, and the question was whether the rule enabled the THE NEWPORT (MONMOUTH) SLIPWAY, &c., Co. v. PAYNTERcourt to order costs to be paid by persons who, till the coming into opera
C. A. No. 2, 10th November. tion of the Judicature Acts and the rules under them, would not have PRACTICE–PARTICULARS OF ALLEGED FRAUD—R. S. C., 1883, XIX. 6, 7. beon liable to pay those costs. The point now argued did not seem to have been really argued in Ex parte Mercer's Co., for there the Commissioners
This was an appeal from the decision of Kay, J. (ante, p. 11), the ques. of Sewers desired to make out that the court had power to refer the costs
tion being whether the defendants should be ordered to give further and in question to taxation, and Jessel, M. R., commenced bis judgment by better particulars of certain fraudulent and false entries which the saying that he thought the point was decided by the House of Lords in plaintiffs alleged to have been made in their books by the defendants. Garnett v. Bradley (3 App. Cas. 944). In his lordship's opinion Garnett v.
The plaintiffs had, in September, 1883, purchased from the defendants, Bradley did not govern Ex parte Mercer's Co. or the present case. Was, P. and s., the business of engineers and ship repairers which they carried then, Ex parte Mercers' Co. right? The rule was to be considered as part of
on, and it was then agreed that the defendants should take the purchasethe Act, and the only question was, what was its true construction? money partly in cash and partly in shares of the plaintiffs ; that P. and S. Was it the object of the rule to give the court a jurisdiction which did respectively should be employed by the company as general manager and not previously exist, or was it not rather to regulate the exercise of a
manager of the engineering department for the term of two years; and previously existing jurisdiction? Section 23 of the Judicature Act of 1873 that the defendants should guarantee that the net profits of the company had an important bearing on this. It provided that "the jurisdiction by for two years should be sufficient to pay a dividend of not less than seven this Act transferred to the said High Court of Justice and the said Court and a-half per cent., and that, if they did not, the defendants would make of Appeal respectively, shall be exercised (so far as regards procedure and good the deficiency, but that they were not to be liable beyond £5,000 on practice) in the manner provided by this Act, or by such rules and orders the guarantee. By the present action the company claimed damages from of court as may be made pursuant to this Act, and, where no special pro- the defendants for fraud. Since the formation of the company the vision is contained in this Act or in any such rules or orders of court with defendants had kept their books, and by the books it appeared that a reference thereto, it shall be exercised as nearly, as may be in the same profit had been made sufficient to pay a dividend of seven and a-half per manner as the same might have been exercised by the respective courts cent, and such a dividend had been accordingly paid. The statement of from which such jurisdiction shall have been transferred, or by any of claim alleged that the defendants had made false and fraudulent entries such courts." The object of the Judicature Acts was not to in the books in order to make it appear that such a profit had been earned, create a new jurisdiction, but to enable the High Court to exercise
so that they might escape liability upon their guarantee, and that no the jurisdiction of all the courts whose jurisdiction was transferred profits had been, in fact, made. The defendants took out a summons to it—to enable it to administer both common law and equity: Having asking for an account in writing of the particulars of the improper, wrong, regard to the object thus expressed, rule 1 of order 65 was, in his opinion, fraudulent, and false entries alleged in the statement of claim, and an intended only to regulate the way in which costs were to be dealt with in order was made that the plaintiffs should " deliver further particulars in cases in which, either by statute or independently, the court had already writing as asked” with reference to the statement of claim. The plaintiffs jurisdiction to deal with costs. And it must be remembered (as was said then delivered particulars, which consisted merely of a list of the entries by Lord Blackburn in Garnett v. Bradley) that to hold the contrary would of which they complained, but not shewing, in what way the entries were be to alter the rights and liabilities of individuals under special Acts, and alleged to be false and fraudulent. On behalf of the defendants it was to throw upon them a greater burden than had been imposed on them by contended that they were entitled to know what was the case which they Parliament at the time when they had taken land under those Acts. And
had to meet. Kay, J., held that the defendants were not entitled to any it would also affect the right to costs given to landowners by the Lands further information. The Court of APPEAL (Cotton and Fry, L.JJ.) held Clauses Act. In his lordship's opinion. Garnett v. Bradley in no way that further particulars must be given. Cotton, L.J., said that the object and decided the present point. Certain restrictions on the right of a success, intention of the order for particulars was that the defendants should know ful party to costs had been imposed by statute in certain cases, and what was the case made against them, and the mere statement that Garnett v. Bradley decided that rule 1 of order 55 had removed all those certain specified entries were false was not enough. The defendants were fetters. But that was a very different thing from saying that the rule left entirely at sea as to the mode in which the entries were alleged to be gave the court a jurisdiction to make a suitor liable to costs which it did false. The plaintiffs were not asked to disclose the evidence by which not previously possess. This view of the construction of the rule was they intended to shew that the entries were false, but they must state the supported by some previous decisions of the Court of Appeal. In Dicks general nature of the falsity which they intended to prove. For instance, v. Gates (18 Ch. D. 76) Bacon, V.C., had ordered a defendant against if they alleged an entry of the purchase of goods to be false, they must whom the action had been dismissed to pay the plaintiff's general costs state whether they meant that the goods were never purchased at all, or of the action, and it was argued that there was no right of appeal, that there was an overcharge, or that the quantity was in excess. The because the costs were in the discretion of the court. But the Court of plaintiffs would be at liberty to withdraw any of the entries as to which Appeal held that there was no power when an action was dismissed to they did not think it worth while to give them further particulars.. Fry, make the defendant pay the plaintiff's costs. Again, in Witt v. Corcoran L.J., said that under such an order he thought reasonable particulars (2 Ch. D. 69), where the respondent to a motion to commit for con would not be given unless some particulars were given of the character tempt of court had been ordered to pay the costs of the motion, the court of the fraud or impropriety which was alleged in the entries complained held that an appeal lay, because there was no discretion to order the of. --Counsel, Swinfen Eady; Pearson, Q.O., Seward Brice, and Woodfall. respondent to pay costs unless a contempt liad been committed. And in SOLICITORS, Stocken J Jupp; Gibbs & White. Foster v. The Great Western Railway Co. (8 Q. B. D. 515), the Court of Appeal held that, under section 28 of the Regulation of Railways Act, 1873, the words of which were similar to those of rule 1 of order 65, the Railway Commissioners had no jurisdiction to make a railway company pay the costs of an unsuccessful applicant under the Act.
DONNELLY «. DONNELLY-Chitty, J., 5th November. principle and authority, therefore, his lordship thought that the decision of INJUNCTION-MARRIED WOMAN-SEPARATE PROPERTY-HUSBAND AND WIFE the Vice-Chancellor was wrong. BOWEN, L.J., agreed that, as to the
-INTERFERENCE WITH WIFE-Access. incorporation of the Lands Clauses Act, the case was clearly governed by Re Cherry's Settled Estates, which he thought was rightly decided. As to In this case an ex parte motion was made by the plaintiff for an interim the effect of rule 1 of order 65, the question was, whether it over-rode all injunction to restrain her husband from molesting her and interfering with previous laws as to costs and made quite a fresh start, placing the costs her business and entering her premises and removing goods therefrom. It in every case in the discretion of the court? There was a distinction was stated that a deed of separation had recently been executed by the between the general costs of litigation, and such costs as, before the parties, and a deed of assignment alsə had been executed by which a Judicature Acts, the Court of Chancery would have felt itself precluded millinery business, stock-in-trade, and leasehold shop were assigned by the from dealing with. With regard to the general costs of litigation his husband to his wife as her separate property, and by which the husband lordship confessed that he should have thought the rule was intended to
covenanted not to molest or interfere with her. The wife had since carried on place them entirely in the discretion of the court. But Foster y. The an extensive business, and resided apart from her husband on the premises,
The wife's Great Western Railway Co. was a decision to the contrary, and he would and had obtained from the lessor a lease in her own name. never be a party to frittering away a decision which was based on principle. statement was that the husband had, on more than one occasion, forced his And in the case of the costs of privileged persons-i.e., costs which by way into the shop and used abusive language to her fright and disturbance, statute or otherwise were taken out of the general category-Garnett v, and causing serious interference to her business, and had also, against her Bradley did not bind the court to hold that rule 1 of order 65 had repealed wish, spent Saturday to Monday on the premises. It, however, did not all the fetters on the power of the court by which the privileges of such appear that the husband had removed or taken any of the wife's property. railway company or a particular corporation should not be liable to pay for granting an injunction under such circumstances. CHITTY, S., said certain costs, Garnett v. Bradley did not decide that rule 1 of order 65 had that the case was one which might raise important questions on the law destroyed that privilege. Fry, L.J., was of the same opinion. He of husband and wife, for it was difficult to say how an order could be so thought that both the questions raised' were entirely covered by authority. framed as to confine the injunction to protecting the wife in her business The question as to the incorporation of the Lands Clauses Act was covered without interfering with the husband's right of access to his wife. It was, by Re Cherry's Settled Estates, the decision in which was, in his judgment, however, to be borne in mind that the property was settled by the husband not only perfectly comprehensible, but perfectly right. The question of himself, and therefore the case was not one of enforcing a settlement of the construction of the rule, he should have thought, if there had been property settled upon a married woman by a third person. He would, no decision, a question of great difficulty, and he desired not to express therefore, under the circumstances, grant an injunction until next motion any opinion as to what his conclusion would have been. But he thought day or further order in the terms of the deed of assignment, restraining the precise point was decided by Foster v. The Great Western Railway Co. the husband from molesting or otherwise interfering with the wife and Counsel, Sir R. Webster, A.G., and Vaughan Hawkins, H. Burton Buckley. from entering upon her premises and otherwise interfering with her busiSOLICITORS, Hare f Co., Hollams, Son, f Coward.
Re JAMES HICKIE (DECEASED); HICKIE v. COLMER Re LORD PETRE, LORD PETRE r. PETRE-North, J., 2nd November. Kay, J., 4th November.
EVIDENCE-CLAIM AGAINST ESTATE OF DEAD MAN-CORROBORATION. ATTACHMENT-CONTEMPT OF COURT-DEFAULTING EXECUTOR PossessION This was the further consideration of an administration action, and the
or CONTROL-PRINCIPAL AND INTEREST — Debtors Act, 1869 (32 & 33 question arose whether a claim for £1,000 against the estate of the testaVICT. C. 62), s. 4.
tor could be admitted upon the uncorroborated evidence of the claimant. This was a motion by the plaintiff for leave to issue a writ of attachment In opposition to the claim it was not suggested that the claimant's testi
mony was untrue-indeed, it was admitted that he was an entirely against the defendant, who was an executor, on account of his having failed trustworthy witness ; but reliance was placed on Hill v. Wilson (8 Ch.888) to pay into court a sum of money in pursuance of an order to that effect,
and Re Finch (23 Ch. D. 267), as shewing that there is in the Chancery Divi. the order describing the money as money " in his hands." The sum of
sion a rule that such a claim will not be admitted on the uncorroborated money in question was composed partly of debts which had been due from
evidence of the claimant. On behalf of the claimant it was urged that the defendant to the testator in his lifetime, being the balance on an open this supposed rule, if it ever existed, has been materially modified by the account between the defendant and the testator in reference to transactions decisions of the Court of Appeal in the more recent cases : Re Gandy in which they were jointly engaged, and partly of the interest charge(31 Ch. D. 1) and Re Hodgson (31 Ch. D. 177). North, J., admitted the able thereon. Kay, J., 'held that the fact that the money ordered claim. He said that the rule as to the weight to be given to the testimony to be paid in consisted of debts due from the defendant to the of a single witness had not varied within his recollection, though it had testator during his lifetime did not prevent the defendant from
been applied somewhat differently by different judges. When a person being “a person acting in a fiduciary capacity, and ordered to
was giving evidence in his own interest one naturally sought for some pay, by a court of equity, any sum in his possession or under his
corroboration. His evidence must be received with some care and control,” within the third exception to section 4 of the Debtors suspicion. But, if the court came to the conclusion that the testimony Act, 1869 (32 & 33 Vict. c. 62). But it was incumbent on the
was to be believed, it would act upon it without corroboration. A plaintiff to shew that the defendant had the money “in his possession or under his control.” The defendant could not be committed for default in remarkable instance of this was to be found in the case of Sugden v. Lord
St. Leonards (1 P. D. 151). It was true that in that case there was some paying in so muc of the money in question as represented interest, for that could not be said to be in his possession or under his control” ; 'and, corroboration, but Cockburn, C.J., said that he would have acted on the
In the present case as the order did not distinguish between principal and interest, he could his lordship thought the statement of the claimant sufficient. ---Counsel, not be committed at all. The motion therefore failed. --Counsel, Hastings, Cozens-Hardy, Q c., and Ingpen ; Higgins, Q.C., and Ingle Joyce ; Cookson, Q.C., and Bramwell Daries ; Oswald. Solicitors, Charles Gregory ; l'ippetts Q.C., and Theobald', Maclean, Q.C., and Nalder ; Ereritt, Q.C., and Stokes ; g Son.
Hollond King. SOLICITORS, Arnold f. Co.; Few of Co.; Blount, Lynch, &
Re THE BARANGAH OIL REFINERY CO.-North, J., 3rd LIABILITY OF DIRECTORS-PAYMENT OF DIVIDENDS OUT OF ESTIMATED
COMPANY-WINDING UP-CONTRIBUTORY_PAYMENT or SHARES IN CASI – This was a summons by a creditor of the company, now in course of
COMPANIES ACT, 1867, s. 25. winding up under section 165 of the Companies Act, 1862, to obtain
The question in this case was whether certain shares, which had been repayment of large sums from the directors. The case against allotted to A., a director of the company, as fully paid up, had been paid the directors, stated generally, was that they had paid dividends out
for in cash within the meaning of section 25 of the Companies Act, 1867. capital instead of out of income. The articles provided that no dividends In the early part of the year 1882 A. went to India on business for the should be paid except out of the realized profits arising from the business
On that occasion he was paid £500, which of the company. The principal business of the company consisted in purposes of the company, borrowing money at five per cent. and lending it at about eight and a half again in November, 1882, returning in the following spring, and was on that
was employed by him in the expenses of his journey. He went to India per cent. to persons building, on the security of the premises about to be occasion paid £683 for his expenses. At a meeting of the board of built, the terms of the mortgage being that the principal and interest directors, at which A. was present, on the 19th of June, 1883, it was should be paid by a number of equal instalments, extending over fourteen years. In order to arrive at what was divisible as dividends, the directors presented to A., in recognition of his services
resolved " That 500 fully paid-up shares in the company be voted and
on behalf of the adopted calculations, on the basis of five per cent. tables, as to what was
undertaking company in
to Irdia, subject the present value of all sums due to the company; this made up one side
confirmation at the next general meeting of the shareholders." of the balance-sheet, on the other appeared the amount of paid-up The minutes of a meeting of the directors on August, 28, 1883, capital, and of borrowed money, and other liabilities of the company, contained the following entry :-“With reference to,
the minute and the dividend paid to the shareholders. Such balance-sheets shewed a balance in favour of the company, and that balance was stated to be
of the 19th of June, 1883, it was resolved that the board further carried over to the next account, which was not, in fact, done. The divi
vote A. seventy-five fully-paid shares, subject to confirmation of the shart
holders at the next general meeting, for the additional assistance he had dend was paid out of any money the directors happened to have in their
rendered the company." hands, not out of profits in hand, and the balance on each occasion was
A general meeting of the company was held not one of money in hand. KAY, J., held that the articles only authorized £2,875 be voted to A., which he agreed to take in 575 fully paid-up
on the 24th of October, 1883, at which it was resolved “That a sum of the directors to pay dividends out of money either reduced to actual shares." The shares thus voted were never registered in A.'s name. The cash in hand,” or at least "tangible for the purpose of division," and not out of estimated profits," which was the precise thing intended to be company being in liquidation, the question was whether the shares could prohibited by the article. The directors had committed a breach of trust that the resolutions of the board of directors were only in the nature of a
be treated as having been paid for in cash. It was urged on A's behalf outside the Statute of Limitations, and an order must be made making the recommendation to the shareholders, and that the resolution of the sharevarious directors jointly and severally liable to the creditors for the holders could only be looked at. By that resolution a debt of £2,875 from amounts improperly paid away during their respective directorship, with the company to A. was created, and he was entitled to set that off against interest at four per cent.--COUNSEL, Hastings, Q.C., Ashton Cross and Hamilton ; Sir Horace Darey, QC., Maclean, Q.C., and Burton Buckley; action for the calls by a plea of payment. North, J., said that there never
the calls on the shares, and he would have had a good defence to an Creed. SOLICITORS, Speechly, Mumford, & Langdon ; Johnson, Budd, f was a moment of time at which A. could have demanded payment of any Johnson ; Philpot f. Son; Collinson & Mallam, for Mallam, Oxford.
sum of money by the company in respect of his services in going to India. If Re THE MEDICAL ATTENDANCE ASSURANCE ASSOCIATION– shareholders would not have voted it to him. A plea of payment could not
he had said that he would receive the payment in cash and not in shares the North, J., 4th November.
have been supported in an action for calls. His name must be placed on COMPANY – WINDING UP-CONTRIBUTORY-DIRECTOR-QUALIFYING SHARES.
the list of contributories.-COUNSEL, Cozens-Hardy, Q.C., and H. Burton
Buckley ; Swinfen Eady. SOLICITORS, Rooks f. Co., Milton Bradford. The question in this case was whether 0., a former director of the company, was liable to be placed on the list of contributories in the winding up of the company in respect of the number of shares forming the qualification of a director. 0. had held five shares, and the question
CASES AFFECTING SOLICITORS. was whether he was liable for twenty more, twenty-five shares being the number provided by the articles of association as necessary to qualify a
Re SCARLETT-C.A. No. 2, 8th November. director. The company was registered in December, 1883. Onslow was
SOLICITOR--CostS OF LEASE-LESSOR's Costs — Co-OWNERS-SOLICITORS' appointed a director by the subscribers to the memorandum in May, 1884.
REMUNERATION ACT, 1881--REMUNERATION ORDER OF AUGUST, 1882, R. In March, 1885, he signed an application for twenty-five shares. Soon
2, SUB-SECTIONS (B.) (c.;. afterwards it was arranged that the qualification of directors should be This was an application by the committee of the estate of a lunatic to reduced to five shares, and resolutions were passed at meetings of share- review the taxation of certain costs incurred by the committee with holders which purported to alter the articles in that respect; but these reference to the granting of two leases of parts of the estate, pursuant to resolutions were invalid. Five shares were ultimately allotted to 0., and an order made in the lunacy in May, 1885. The lunatic was entitled to he was never treated in any way as the holder of more than five shares one moiety of certain estates situate in Lancashire. The solicitors of the till the company was ordered to be wound up. Under these circum owner of the other moiety resided in Lancashire, and the committee's stances NORTH, J., held that 0. could not be placed on the list of contributories in respect of more than five shares. ---Counsel, Cookson, Q.C., prescribed by rule 2, sub-section (6.), includedt he costs of both co-owners.
solicitors resided in London. The question was whether the scale fee and H. Burton Buckley ; Napier Higgins, Q.C., and E. S. Ford. SOLICITORS, A great number of leases had, prior to the passing of the Solicitors' C, Harco'it; A. S. D. Duncan,
Remuneration Act, been granted of parts of the estates. The practice
was for the solicitors of the sane co-owner to see the proposed lessees Upon this I ventured to express some surprise to the usher at the number and arrange with them the terms of
the lease, and afterwards of acquittals in the face of uncontradicted evidence. He admitted to forward a draft of the proposed lease to the committee's solicitors that they were rather numerous, but, he added, in a triumphant tone, in London, who perused the draft, and, if they were satisfied with it, "Last week a boy was sentenced to three months' imprisonment for the took the lease into the Lunacy Office for the sanction of the master.
I found this to be the case, and much indignation has The solicitors of the sane co-owner were paid by the lessee the scale fee been caused thereby among the Brugeois, as the lad was only fifteen. They prescribed by rule 2, sub-section (6.) of the Remuneration Order. The compare his case with the leniency of Vandersmissen's sentence (which is taxing master was of opinion that that sub-section included all the lessors' still on appeal) and say that Belgian justice is inexplicable. Three costs, except so far as they were increased by the lunacy, and he dis other cases were tried, making seven in all, and every one of the prisoners allowed the costs of the committee's solicitors of the perusal of the lease was acquitted. There was no one else in the list, so the judges rose the and of the examination of the ingrossment in the Lunacy Office. On soldiers presented arms, and the day's work, which had lasted barely behalf of the committee it was contended that sub-section (6.) only three-quarters of an hour, was at an end. applied to the costs of the person having the conduct of the business, and that, in the case of co-owners, the costs of the co-owner who had not the conduct fell under sub-section (c.) of order 2, and Humphreys V. Jones (31 Ch. D. 30, 30 SOLICITORS' JOURNAL, 6), was cited, where, in a sale under the court in a partition action, the master bad only allowed the THE RETIREMENT OF VICE-CHANCELLOR BACON. costs of the plaintiff, who was entitled to one-fourth of the property, and bad the conduct of the action, and had disallowed the costs of the about to take his seat for the last time.
On Wednesday morning it became known that Vice-Chancellor Bacon was
The learned judge's court was defendants, who were entitled to the other three-fourths, and the Court crowded with members of the bar and officers of the Supreme Court. of Appeal allowed the costs of the defendants as coming under sub-section Shortly after 11 o'clock the Vice-Chancellor took his seat, and was (C). The application was not opposed by the next of kin of the lunatic. followed by the Lord Chief Justice, the Master of the Rolls, the Lords The Court (Cotton, Bowen, and Fry, L.JJ.) were of opinion that the Justices of Appeal, and the judges of the several divisions of the High costs in question ought to be allowed, and referred the matter back to Court. the master in lunacy.- CounsEL, E. S. Ford; Cecil Russell. SOLICITORS, The Attorney General (the judges and every one in court standing), Robins, Burges, f Co., Bowlings, Foyer, f Hordern.
addressed the Vice-Chancellor. After some preliminary remarks he said: Your lordship is the last of a long chain of eminent judges, and with your retirement disappears a title from the judicial bench never to appear
again. The office of Vice-Chancellor, established in 1813, ceases with POLICE COURTS IN BELGIUM.
your lordship's retirement, and it scarcely needs to reminà any one who
has studied the history of the English bench and of the English bar of A CORRESPONDENT of the Daily News says:-Being desirous of seeing the names of those eminent men who have filled the office before your how matters are worked in Belgian criminal courts, I found my oppor. lordship. We cannot but feel that your lordship has, for a period of no tunity during a recent visit to the ancient city of Bruges. Unfortunately less than sixteen years, maintained the dignity of that office and fulfilled none of the superior courts were sitting, but the judges were disposing of its duties in a manner which will not for many years, if indeed ever, be what we should call " night charges,” in the Court of Police Correction- forgotten by those who remember what its duties are and who the Viceelle, and accordingly I sought admission. It struck me, first of all, that Chancellors were. After referring to the career of the learned judge, the the machinery of justice was considerably in excess of the requirements Attorney-General proceeded :-We of the profession feel that we owe a of the case. The matters that came before the bench were all of the very debt of gratitude to your lordship for the way in which you have always smallest impcrtance, the most grievous offence that was tried being a shewn yourself ready to meet new changes, to see how best they could be theft of pears from a fruit stall in the market. To manage this there worked out, and to bring to those changes the advantage of that ripe were three judges -- viz , the president of the court and two other judges. experience and that mature judgment which had been formed in the All three were in full legal attire, with long robes, a white band, crimped practice of the old Court of Chancery. My lord, but one other word instead of being ironed out flat like the English bands, and a high black remains for me to say. Of your lordship’s judgments, we feel that they cap instead of a wig. In addition to these was an official, also in robes, will for ever live as models of the English language, and monuments of attached to the Government, who took notes of the cases, and another the great power and grasp which your lordship has had over facts--not gentleman who did nothing at all, except to put an occasional question to surpassed, perhaps, by any of the judges who have hitherto filled your the witnesses and to chat with the judges. There was, beyond these, a lordship's office ; and we can all bear testimony to the unfailing industry clerk, whose duty apparently it was to attend to the summonses, and and attention which your lordship has brought to bear even upon the there was a functionary who acted as usher. He called the cases on, longest suits, occupying many days, in your lordship’s court.
It is not administered the oaths, and in the intervals he interpreted the nature of my wish, nor would it perhaps be fitting for me, to refer to any particular the charges to me. Lastly, there were two soldiers of the Civic Guard. cases, but I do feel this--that on behalf of the bar I Both were armed to the teeth with a rifle and fixed bayonet, and they your lordship most warmly and most sincerely for the unvarying both wore huge bearskins and spurs. They seemed to be a kind of courtesy and for the immense consideration that you have always mounted infantry. There was a small dock in the centre of the court shewn, not only for the convenience, but for every true interest of the facing the dais where the judges sat; but the nature of the charges not bar of England. I am quite certain, my lord, that there are many who being sufficiently heavy, the accused sat on a form just in front of it. A have felt that in your lordship-though they were only members of the chair was placed upon the dais itself, exactly in front of the president, for bar while you occupied the bench-they had a true personal friend. My the witnesses, who thus sat with their backs to the persons against whom lord, in your retirement we wish you many years of rest, of happiness, of they gave evidence. There was not a single policeman in the court. ease, and of prosperity. We trust that your lordship may find in that In the cases to be tried there had been no arrests, and consequently, no well-earned repose pleasant companions in seeking again the paths of one was in charge of the defendants. The latter, upon a plaint being literature, in which we know that for many, many years, when you have laid before the commissary of police, had been invited” to attend the had leisure time, you have always found the greatest enjoyment. And, court and answer the charge, and they had all accepted the invitation my lord, asking you again to accept these feeble expressions of mive as If they had respectfully declined they would have been promptly endeavouring to explain what I feel (and I wish that I could have put it sent for, but they probaby knew better than to give the court into better words), I car, in conclusion, assure your lordship that you take so much trouble. The first
couple of criminals who seated into your retirement the best wishes-I think I may add the earnest themselves on the form were two men-one elderly, in working clothes, prayers—for your happiness, and the affection of the whole bar of and the other a private in the artillery, who appeared in uniform. They England. were charged with an assault, and the trouble seems to have arisen out of The Vice-Chancellor (who spoke with much emotion) said :-Mr. family differences. One after another the witnesses went up to the chair Attorney, my lords and gentlemen, -I feel myself a little overwhelmed and were duly sworn. No Testement was used. The witness had by the position in which the Attorney-General's speech has placed me. simply to hold up his or her right hand, with the index finger elevated, I'am overwhelmed to find that the Lords Justices, the judges of the other and repeat the oath after the usher. What its terms were I could not courts, and the Attorney-General representing the bar have thought it ascertain, but it was extremely short, and my impression is that the first worth while to present to me the most flattering address which the Words were Bei Gott. Theu the interrogation began by the president, and Attorney-General has just pronounced. I was prepared for no such the witness, who was a market dame, wrapped in a voluminous cloak and
I had prepared myself to express to my friends of bonnet, and who possessed no small share of the garrulity of her class, was my own bar if I may call anything my own-the very common soon off upon a long history which was untimely cut short by his lordship. feeling that no man can take leave of the occupation which has for Neither of the prisoners had a legal representative, and neither cross a long period engrossed and occupied his thoughts and exertions examined the witness. Nor were they asked to do so. The woman was without sentiments of gravity, if not of sadness. I had no notion I should simply told to stand down, and the turn of the next came. When their have had to return my sincere and humble thanks to my learned friends the statements, which lasted altogether about five minutes, were over, the judges, who were so good as to say they desired to be present at my retire. president held a short conversation with the accused themselves, and, ment, and to join the Attorney-General in presenting to me his expressions having heard a brief explanation of the circumstances, discharged them then and there. The same course was adopted with the next two, who the Attorney-General has said, for considerably more than half a century were sent on their way rejoicing after receiving a lecture from the bench. Then came the pear-stealing case.
I have been practically engaged in the profession of the law. During that this id seem to be a favourite amusement among the juvenile Brugeois at example of many distinguished members of that same profession, almost eight years old, and he had been caught red-handed. But in considera- I have seen many changes, all of which have been suggested and perfected tiene of his youth, and also, I believe, in accordance with a provision of the by the great lawyers to whom I allude, and all of which changes have had Belgian law, the judge declined to punish him, and he too was acquitted the effect of simplifying and perfecting the administration of the law to