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bring into application the rule that no man can be judge in his owii cause. As to his voting power, the 15th section of the Act provides that ‘the mayor shall be a fit person elected by the council from among the aldermen or councillors, or persons qualified to be such ’; and the 61st section that ‘the election of mayor shall be the first business transacted ’ at the quarterly meeting on the 9th of November, and that ‘in case of equality of votes, the chairman, although not entilled to vote in the firs!‘ instance, shall have the casting vote ’ ; it being also provided, by rule 11 of schedule 2, as to council meetings generally, that ‘ in case of equality of votes the chairman shall have a second or casting vole.’ Here, again, I know of no common law rule to prevent a candidate for any office from voting for himself, and yet I am met with the difliculty that the Legislature has presupposed the existence of such a rule in this case, or rather has presupposed that such a rule may operate in some instance or instances. I do not read the words “ although not entitled to vote in the first instance,” as an express prohibition, but only as meaning “ even where not entitled," &c. It may, perhaps, have been thought by the draftsman that the rule of Reg. v. Owens (28 L. J. Q. B. 316) that a mayor cannot return himself as councillor, would apply to the case of a councillor voting for himself as mayor, and declaring his own election. But I cannot think that it does, and a misrecital does not alter the law (see Maxwell on Statutes, p. 381, citing Reg. v. Haughton, 1 E. & B. 501), and it would have been easy for the Legislature to deprive the candidate of his original vote by express words if that had been intended. On the whole, therefore, I think, though with hesitation, thatthe mayor has an original as well as a casting vote at his own election. The question whetherthe mayor can vote for an alderman depends on section 60, which provides that an outgoing alderman, although mayor-elect, shall not vote, and that ‘ the chairman, although, as an outgoing alderman or otherwise, not entitled to vote in the first instance, shall have the casting vote.’ I think that the prohibition of an outgoing alderman from voting, ‘ although mayor-elect,’ shews pretty conclusively that the mayor has an original vote in all ordinary cases, and the section expressly provides for the casting vote. To the words ‘ or otherwise’ in section 60 I cannot attach any meaning, and can only suggest that they were inserted ear abundanli cautelri."

Trii: iiocraisn laid down by Lord ROMILLY in Re Briyhtoiz Brewery 00., Hu1it’s case (16 W. R. 472), that where directors of a company “ have acted bami fide, and intended to do what was right and what they considered best for the interests of the company," the court “ could not visit them with the consequences of a mere error of judgment,” is misleading unless it is read in connection with the rule that directors are bound to use the same amount of prudence which, in the same circumstances, they would exercise if acting on their own behalf (U1-arend, Gurney, ff Go. v. Gill, 5 H. L. 480. 494). Two cases recently decided ought to bring home to directors the danger they run in not following carefully the transactions of the company, and entering into the details of each one as though it related to their own private business. The first is Re Oxford Building and Investment Society, decided by Mr. Justice _KAY (ante, p. 46), and here the directors, being treated as quasi-trustees of the_capital of the company, were held liable to repay dividends which had been improperly paid out of capital. One of the articles of association provided that no_ dividends should be payable except out of realized profits prisigg from_thc business of t_he_company. The facts will bu tguu lstated in the report, and it is suilicient to say that, as to Keqéea that the directors had acted bond fide, Mr. Justice

ii ollowed the late l_\Iaster of the Rolls in denying that the point could arise (ll/nlionnl Funds Assurance 622., 27 W. R. 302, 10 128): In that case J]-I55E[.., M.R., said that when 1; néan, _w1t la l the circumstances before him, nevertheless did, in fl! , mlBBpp_ y money, he could not be heard to say that he had no

raudulent intention. In the recent case the directors had the articles of association before them, and as to the meanin of “realized profits” no man of business could be in doubt g If then, they °l1°5e t0 pay dividends on the chance of their beiu realized, this was at their own risk, and when the com an w g b1'°“8ht t° mill. they were bound to ianswer for the pbrehch hf trust and make good the capital which had been paid away in the shape of dividends. This is enough by itself to shew the extreme

importance of following every transaction, inasmuch as a careless, though otherwise honest, director cannot shelter himself behind his bona /ides. But the same lesson has been recently given still more forcibly in the Court of Appeal. This was in the case of Firl>a1|k'| Ezocuforr v. Humphrey: and Others, Directors of the Clmmwood Forest Railway Co. FIBBANK was the contractor for the railway, and was to be paid in the usual way, by instalments, upon production of the engineer’s certificate. But the company, after the manner of companies, had no money to pay him with, and in this difiicnlty they arranged with one MADISON that debenture stock should be issued to him, by means of which ho was to finance the company and pay the contractor. At first F IRIIANK received his instalments, but afterwards these ceased, and he pressed for an arrangement with the company directly. This the directors acceded to, and, at a board meeting at which they were all present, the company's seal was aflixed to a contract by which they agreed to issue debentures to the amount of £18,000 in satisfaction of his past claims. This issue, after that already made to MADISON, exceeded the whole amount of debentures allowed by the articles, but of the fact of such over-issue the directors were not aware. There were thus only two points in the case— an actual over-issue of debentures and ignorance on~ the part of the directors. They tried to say that they did not know what was done at the meeting, but this the court would not listen to. Lord Esnnii, M.R., in his judgment, treated the matter as a question simply of agency. The directors had, in fact, held out that they were authorized to issue debentures on behalf of the company, their principal, and inasmuch as FIRBAXK, relying on this representation, had suffered loss, they were bound to make good that loss to him. Here again, therefore, it is seen that the bona _/ides of a director will not help him if he gives his assent to transactions which are not authorized by the constitution of his company. Now that the formation of companies has taken a new turn, and is going on with revived vigour, the enforcement of this principle may not be out of place.

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IN the recent case of Abrafli v. .iVort/i-Eastern Rm'l;0a_i/ Co. (ll App. Cas. 250), Lord Bramwell went somewhat out of his way to express, in the very strongest terms, his opinion that an action for u malicious prosecution will not lie against a corporation, mainly on the ground that a corporation is incapable of malice or motive. The remainder of the learned lords present, however, declined to express any opinion on the point, seeing that it was not really raised by the case, and had not been argued. It is a curious and somewhat interesting point. We should feel great difiidence in entertaining an opinion contrary to that expressed by so learned and weighty an authority as Lord Bramwell ; but, apart from the quc_stio_n whether his conclusion is correct, we must say that the main piece of reasoning by which he enforces it, and for which he claims that it is demonstrative, does not seem to us so absolutely conclusive. It is very logical and very neat ; but we believe it to be an example of that kind of scholastic reasoning which from time out of mind has occasionally misled English lawyers.

_ Shortly summed up, the steps of the argument appear to be substantially these. Malice is an essential element in an action for malicious PT_°-“‘°11i51°11 ; _B Corporation, being a inere legal entity or abstraction witnout a mind,_cannot feel malice, ergo a corporation cannot be liable for a_ malicious prosecution. It seems to us that this argumeii_t_is quite independent of the question whether a prosecution mallolously instituted by oflicials or servants can be within the scope of their authority or employment. Though Lord Bramwell d°e9, 15° Home extent, mix up the two questions together, it seems to us _that that is quite a ilit't'erent_ point. The main line of his "ea5m'_1£-I1 *1! 1t_sccms to us, depends on the two propositions that inalice is essential, and a corporation cannot feel malice. At first $13115 till! chain of reasoning appears to constitute a most inexPllglmble51l¢1°l1; but, strong as it may look at first sight when we go beyond the more words of the propositions, and coiiic to conffl(1_er a little the realities of the case, we feel some doubt whether it is quite so strong as it 1o0k5_

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doubt in many cases it has been said that malice on the part of the defendants is essential, and a declaration against ii corporation for causing the plaintifi to be prosecuted without reasonable or probable cause, without alleging malice on the part of the defendants, would have been held bad according to the old rules of pleading; and we have also no doubt that, in the old authorities on the subject, the actual feeling of malice in the mind of the defendant was meant; but then, on the other hand, these authorities probably all related to, and contemplated, the case of an actual natural person, where any malice must have been actual, and there would be no question of imputed malice. To say that a proposition which was originally asserted in a certain scnsc in relation to an actual natural person also applies in the same sense to the case of the fictitious person, u corporation, is, when it comes to he considered, the most obvious politic principii. If you treat the old propositions about malicious prosecution as amounting to the major premiss that an action of malicious prosecution can never lie without a feeling of malice in n. real mind of a defendant, you beg the question, because a corporation has not really a mind, and the original propositions never contemplated corporations. But the real question, when the true proposition is considered with regard to ii corporation, seems to us to be whether the word “ malice ” is to be understood in exactly the same sense as that in which it must have been understood with regard to an actual person, or whether, as for some purposes you impute a mind to a corporation which it has not really got, you are not to impute to that mind, under certain circumstances, feelings it cannot really have. To think the question solved by saying that a corporation cannot feel malice is begging the question because it assumes that in the major premiss “malice” always means actual and never “imputed” malice; and it seems to us that this view ignores altogether the nature of the legal fiction or abstraction with regard to corporations. To carry the same line of reasoning out to its logical results would almost involve the negation of the possibility of the existence of the legal entity which av Ii;/pot/wsi docs exist. A corporation is D. mere abstraction which, by the fiction of law, does acts and exercises volitions, whereas in truth it cannot do any act or exercise any volition because it does not really exist. A corporation is said to have broken and entered my close, and so committed a trespass. A trespass clearly involves an act of the will, because it would be no trespass by a person if a hurricane took him up and hurled him through another person’s window. Now, a corporation cannot really have a will any more than it can feel malice; m-yo, a corporation cannot commit a trespass. The truth is that the legal existence of a corporation involves the principle that, in many cascs, the acts and volition of its directors or servants will be imputed by law to the legal entity which cannot really do any act or have any will. Again, notice can be given to a corporation. Can a corporation really receive notice any more than they can feel malice? The true question would seem to be whether, upon general considerations of expediency, the law ought, in certain cases, to impute to a corporation the malice of its officials or servants just as it imputes to the corporation the acts and volition of its servants in the case of a trespass. We are not prepared to discuss that question, and we have no settled opinion upon it ; we can conceive that much might heseid on both sides. What we seek to shew is that the argument of the learned lord, when realities instead of words are looked at, seems rather to collapse. We believe that the curse of the human mild is the tendency to be the slave of phrases, and that lawyers have inherited their full share of the curse. Law is, 01‘ ought to be, for the most part, based on general expediency, and thoroughly to appreciate the meaning of o. rulc it is always necessary to seek for the original reason for it. We take it the reason why malice was a necessary ingredient in the action for malicious prosecution was the necessity for the protection of Perilous who bond fide undertook a public duty. Looking at the matter from this point of view, what is the application of the rule gltflorporatlons? We shall develop this consideration more fully er.

One of the observations which Lord Bramwell makes appears to us to suggest some rather material considerations which tend in the direction opposite to his conclusion. Hc says, “it ma? be said ‘well, but this is rather hard upon a man who has been prosecuted and improperly prosecuted.’ That is to say, the

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happens in the case of an individual prosecutor. A man receives false information; he prosecutes upon that information. . . . It is no harder upon a man that he has no remedy against ii public company which has prosecuted him when the servants of the company have been malicious than it is that there is no remedy against any individual man who has prosecuted, lie having no malice, but somebody who gave him information having malice." Lord Bramwell does not, we are aware, put these cases as analogous, except so far as the hardship is concerned, but there is an obvious distinction which seems to us very material to the general question involved, bearing in mind the reason for the rule on the subject. In the second case the private individual himself actually prosecutes, the prosecution is his act; the malicious informer cannot be said to prosecute ; and the person really acting acts Imna'_/ide in the exercise of a public duty. A more analogous case to that of the corporation would be that where o. man authorized another to prosecute in his name and with his funds anyone whom the other might, in his discretion, think fit, and then that other maliciously prosecuted somebody, for the ofiicials actually instituting the prosecution must for this purpose be supposed to be acting within the scope of their functions. A corporation can only act or think through its officials or agents; in the one case different persons entertain the malice, and do the act of prosecuting; in the other, the oflicials through whpni_the corporation acts do both. If the persons who really institute the prosecution must be considered as doing so without authority and beyond the scope of their employment as between the corporation and the person prosecuted, cadit guassfio; nice questions might perhaps arise as to the existence of authority, _but the part of Lord Bramwell’s argument we are discussing does not seem to us to be really based on the question of authority, it is based on the necessity for malice in the mind of the corporation, which cannot exist. It must be assumed for the purposes_of that argument, that, as between the legal entity, the corporation, and the person prosecuted, the ofiicials who really prosecuted were authorized to prosecute-—in other words, that they were acting in the exercise of their official functions. Then you have the case of persons who are authorized to prosecute in_the name of the corporation and apply the funds of the corporation to the prosecution. It might, we think, be argued, looking to the general principles regulating the liability of corporations, which_must in all cases depend on the imputation to the corporationan law of the acts of the officials through whom alone a corporation _cau act, that it would be dangerous, and a great hardship to individuals, to_ allow the power and funds of a .corporation tp be applied iii this way without making the corporation responsible for the motives of the authorized oflicials who so apply them. It seems _to us_ this would be a greater hardship than exists in the case of the individual prosecutor suggested by Lord Bramwell. Looking to the reason of the rule as before stated-—viz., that it is for the protection of bond /Ede prosecutors--can a corporation be allowed to prospcute and then to say, We must be deemed to have prosecuted bona fide because we have no mind at all?

We have not lost sight of the fact_that Lord I_3ramwell also argues that, in maliciously prosecuting, the oflicials of_ a corporation are necessarily acting Ill/fil vzres. We are quite prepared to admit that this question seems to us more substantial and more diflicult. In one sense, no doubt, officials cannot be authorized to_ prosecute maliciously; but is that consideration conclusive? Would _not that argument be equally fatal to any action against a corporation for the illegal act of its servant, such as a trespass? It is common knowledge that an act mayhbe within the scope of the employment of a servant as between 118 employer and an outsider, though the employer may havelcxpress prohibited the act._ The question is_ what_is the genera scope od the scrvant’s functions, not his particular instructions. It is sai that it is not the function of directors to pl'(?S€C1llZ6hm!l— liciously, and so, also, a man does not employ 1Jl8_ (£183 {mm to drive furiously._ _He employs him to drive, and yet. {f 9 Ynzfis furiously while driving the carriage of_ th_e employ", It 25 3}‘ 1 t Q employer did it himself. If it is within the scope Cp irec osres functions as between themselves and a company to or _er a 1:; ii cution, we do not see that the fact of the malicious l1I110l'.l;;31 mipnalice any less so; the only question seems to be whet 91‘ 6. to be must be imputed to the company. The real q\1€Stl0fl1t;€9lfiirect°rB' whether the shareholders, who reap the benefit o 8


action in acting‘ for the company, must not also take the burthen of responsibility for the mode in which they so act. We 0111111015 help thinking that there are passages in his judgment which shew that Lord Bramwell’s mind has unconsciously been_warped Ill thls case by consideration of the scandalous manner in which juries often find verdicts against companies which they would not find against private individuals. But this has not really any bearing on the theoretical aspect of the question.


27 Q 28 Vict. c. 1l2.—This statute (reciting that it is desirable to assimilate the law affecting freehold, copyhold, and leasehold estates to that affecting purely personal estates in respect of future judgments) enacts (section 1) that no judgment entered up after the 29th of July, 1864, “shall affect any land, of whatever tenure, until such land shall have been actually delivered in execution by virtue of a writ of elegit, or other lawful authority, in pursuance of such judgment.” Bv section 2 “ judgment” is defined as in section 5 of 23 & 24 Vict. c. 38 (suprd), and “land” includes all hercditaments, corporeal or incorporeal, or any interest therein. By section 3 every?‘ writ or other process of execution ” by virtue whereof any land shall liare been actually delivered in execution is to be registered in the name of the judgment debtor, “ and no other or prior registration _of such udgment shall be or be deemed necessary for any purpose." Probably, therefore, the word “ registered," in section 2, defining “judgment ” as including registered decrees, &c., may be disregarded. The Act does not require any such prior registration of the writ of execution as is required in cases under the Act of 1860 ( per Cotton L J., in Re Pope, 34 W. R. 693) ; and, though it does not profess to repeal the last-mentioned Act, it does, in effect, make it obsolete (per Lindley, L.J., ]bid.).

The words of the lst section are not to be confined to land capable of delivery at law by the sheriff (per Lord Selborne, C., Hutton v. ]Ia_1/wood, 9 Ch. 233) ; and the statute leaves untouched all rights given by earlier Acts, except so far as it expressly takes them away, so that there is still an inchoate right to a charge under l Sc 2 Vict. c. ll0, s. 13 (rmle, p. 42) though it must now be perfected by actual delivery in execution (9 Ch. 234; 1 Dan. Ch. Pr., 6th ed., 93l). The creditor can come into equity where there is an impediment to. legal execution as he could before l & 2 Vict. c. 1l0 (ante, p. 24), and the order of the court, whether in form it be a writ of sequestration (Re Rush, l0 Eq. 442, L. J. Ch. 759) or the appointment of a receiver, will be a delivery in execution by lawful authority within this Act (Hat/on v. Ha:/wood, ubi sup).

It was said (per Day and Wills, JJ.) in Re Pope (34 W. R. 654), that the word “affect” in this Act must mean “create an equitable charge,” and that the word appears for the first time in l & 2 Vict. c. 110; sed qu. for the same word is used in the Docket Act (ante, p. 25) of Wm. and M. which had reference to legal execution only.

The result of assimilating the law with respect to real estate to that relating to personal estate is that “ where there is no execution

there is no lien. The main purpose and object of the Act t

facilitate the transfer of land by rendering it unnecessary twink: searches for ' d t

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e is writ or other process of execution,” to obtain “forthwith” upon petition a summary order from the Chancery Division for sale of “his debtor's interest in such land ” without waiting for the expiration of a year as was re uired proceeding under 1 8: 2 Vict. e. 110, s.,l3 (see, 82 to th: practice, Seton, 1137 foll.). The court ist d‘ ' ' '

“as to the nature and particulars of the debtorls iiiltfiiiisilliliiuihltfli


land, and his title thereto." Thus the creditor can still take only what belongs to his debtor (see ante, pp. 4, 42). “ Of_ course only the debtor’s interest in the land can be sold; and if any third party has an equitable claim upon the land, he is not bound by the order;" per James, LJ. (Re Oyilwe, 20 W. R. 226, 7 Ch. 174; 41 L. J. Ch. 336).

Section 5 provides that where it shall appear that any other judgment debt is a charge on such land, notice of the order for sale shall be served on the creditor entitled to the benefit of such charge, whether prior or subsequent to the charge of_ the petitioner. This section contemplates the existence of several judgments constituting charges on the lands; and “ if there were no other mode of delivery except by the sheriff,” and if there could be only one return, “there would then be a difficulty as to the existence of prior or subsequent charges, because only one charge would be possible. But if the charge can be perfected by the Court of Chancery in case of a legal obstruction, that difiicultyis removed " (per Lord Selbornc, C.: Hutton v. Haywood, _9 Ch. 233). Section 6 provides that every person claiming any interest in such land through or under the debtor by any means subsequent to the delivery of such land in execution, shall be bound by every order for sale under section 4, and the proceedings consequent thereon. As was pointed out by Giifard, V.C. (Guest v. Cowbridye Railway 00., l7 Vi’. R. 7, 6 Eq. 619), the old law was altered, by 1 &: 2 Vict. c. ll0, in favour of judgment creditors, by giving them very extended rights and remedies as against lands; and then by the subsequent statutes, noticed above, those rights were gradually contracted and cut down. Section 1 of 27 & 28 Vict- 0- 1121 “ must mean that no judgment creditor can have any right of any kind in the shape of a lien on the land until he has got a return from the sheriff. That is pretty clear from the 3rd section" (which requires no registration of the judgment itself) whereas, under l & 2 Vict. c. 110, registration was necessary to give a lien (per Giffard, V.C., Guest v. Cowbrizlye Rai'lwn_1,/ Co., ubi sup.)

As was observed by the author of a paper on Searches read at the last meeting of the Incorporated Law Society (see 30 SoLIcrroas' JOURNAL, p. 804), the framers of the Act (27 & 28 Vict.c. 112) appear to have assumed that actual delivery in execution is a patent fact, necessarily known to or ascertainable by all the world, and not to have contemplated the possibility of a purchase without notice after completed execution, the case which happened in Re Pope (34 W- R654, 693. 55 L. T. 268, 369; and, in C.A. only, 55 L. J. Q- B522). We have seen (ante, p. 58) that, by 2 & 3 Vict. c. ll, a purchaser without notice of a judgment, though registered before the contract, was protected against the operation of l & 2 Victc. 110, but left exposed to the remedies given by the old law, under which a moiety of certain real estates could be extended, against a purchaser without notice, upon a judgment entered up and doeketed before the contract. In Re Pope (34 W. R. 65-1) the Divisional Court appear to have expressed an opinion that the modern legislation leaves untouched the effect Of a completed execution, and refers only to cases in which the creditor seeks to enforce a charge on the lands, so that, if the creditor had actually seized the land in execution——whether under an elegit or an order appointing a recciver—~a purchaser without notice would be bound, though thc judgment was unregistered, 5° far as regards the right of the creditor to hold possession of the land and to satisfy his judgment debt out of the rents and profit/8, though he would not have any charge, under section 13 of 1 & 2 Vict. c. 110, unless the judgmerzt had been registered. It is n0t quite clear from the reports that the learned judges in term! limited the remark as to the necessity of registering the judgment» in order to give a charge, to cases prior to 27 & 28 Vict. c. 112; but it is submitted that they must have intended so to limit it, fol‘, as we have pointed out, section 3 of that Act expressly says that 110 other or prior registration of the judgment shall be, or be deemed, necessary for any purpose. It is apprehended, however, that, in cases coming within 23 & 24 Vict. c. 33, there must be both a registration of the judgment itself within five FQMB before the contract and also registration of a writ of execution within three months before completion, in order to found agilt t° a °l""Ee under 1 & 2 Vict. c. 110, s. 13 : see pm‘ C0tl11i L-J->1" 38 Pore (34 W. R. 693, 55 L. T. 369) :—“Under the Acts previously [to 23 & 24 Vict. e. 38] in force, a judgment did not affect the land without registration. The 23 & 24 Vicic. 38 added that execution must be issued and registered;

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and it provided that it should not afiect a purchaser unless glecution was hexecuted within three I]1011lZ]l31S of registration. at was a urt er protection to purchasers. ut registration was necessary, for not only was land not aifected where there was no execution of the judgment or of the writ, but where there was no registration of the judgment or writ. Then 27 & 28 Vict. c. 112 was still more in favour of purchasers. It_ provided that no judgment tor writk should afiqlct the land untilf it was delivered in execu ion—ta ing awayt e incumbrance o a judgment or writ of execution not executed. When the land was actually delivered in execution, did the Act require registration of the writ? I think not. The registration required by the previous Act was where land was to be affected bya judgment or writ not executed ; but under the later Act the land must be actually delivered in execution, and registration was then not necessary” (ale, unless the creditor desires to petition for a sale under section 4). L I; éhregqgt '§I;S€Ll]&‘fOl;8(:)B)&C0l1fi j(Igewetttv. Aéigray, 54

.. . .. wee ugmen creirinan action for eqhitable executioin (upon a judgment recovered in February, 1885) obtained the appointment of receiver for the purpose of creating a charge upon the debtor’s ropert sub'ect to prior incumbrances, but not for the purpose sf enteixiing iiito possession or receiving the rents and profits, the receiver was not requtiged to give security, the plaintiff and the receiver undertaking not act without the leave of the court.

By R. S. C., L., 15a (R. S. C., Oct., 1884, r. 12), on applications for appointment of a receiver by way of equitable execution, the court or a judge is to have regard to the amount of the debt claimed, to the amount which may probably be obtained by the geceiver, and to theh probable costs of his appointment, and may

irect inquiries on t ese or other matters.

Discovery in aid of ea:ecuIion.—lf it is suspected that the debtor has an interest in lands, but the precise nature of such interest or the situation of the lands is not known, discovery in aid of execution can be obtained under R. S. C., XLIL, 32 (see as to the mode Of proceeding under this rule, 1 Chitty’s Archb., 14th ed., p. 791).

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Only three _years elapsed between the publication of the fourth and fifth editions of this work. whereas twelve years have elapsed between the publication of the fifth and that of the present edition. Since_ 1814 radical changes have been made in general county court practice by the County Courts Act of 1875 and the successive consolidations of the Rules in 1875 and 1886, while numerous Acts—of which the Parliamentary Elections (Returning Oflicers) Acts, 1875 and 1336._the Employers and Workmen Act, 1880, and the Agricultural Holdings Act, 1883, are the most important—hi-ive thrown into the wunty courts additional business in connection with special subjects. The present edition, therefore, contains so much new matter that it Zpeecessary to examine it with more than ordinary miuuteness and

And. first. with regard to the new rules. They are all inserted, hint h_ow ?_ We read in the preface that “generally the very words Ere given in the text,” but that “to give the i'ps1'.~m'1na verba of every rule and form would necessitate an appendix at a cost much greater than the price of official copies,” so “ with the aid of tables ” [which ‘"9 "TY neat and good] “and a full index, it is hoped that the '_°l""1°- while portable, will prove suflicient for county court praciwe, whether p uced in the court bag or travelling case.” In the vast “}51'1W Of cases, as will be seen from the difi'erently-printed pages g’ the table of rules, the rules are ractically printed in _\1ll or the substantial [arts given, and the exceptions (see Faun?! _&t pp. 184, 641, and 684) are so few that we cannot

“P thinking that the better course would have been to make no ex°°Pt_10ns at_ all. There is no table of forms, and very few forms are printed. in respect of facility of reference it would have been Fm" better to print the number of each rule and form in the text instead of in foot-notes. mS°°°“d-13'» as to the general practice, we are glad to find that the bog‘: fire and exhaustiveness which have always distinguished the “ “mare still preserved, though in some cases the notes are perhaps

9 t°° long. eflpecially where extracts from judgments are given.

The latest cases appear to be inserted, and we find a reference to the important case of Reg/.v. Kettle (55 L. J. Q. B. 470) in the index. \Ve regret, however, that no more than two of the four current sets of reports are, so far aswe have observed, referred to. As a good sample of the execution of this part of the work, we may refer to the treatment of appeals, and we may congratulate the editor on having, in a note (p. 428), successfully predicted the judicial construction of the statutes and rules which was arrived at in Reg. v. Kettle.

Thirdly, as to the special practice under the numerous Acts passed since 1874, we think that the Employers’ Liability Act is extremely well treated. There is first a summary of the general scope of the Act, then follows an account of the liability for personal injuries apart from the Act, and then the clauses of the Act and the decisions upon them. These decisions are carefully given, though, looking to the importance of Moyle v. Jenkins (L. R. 8 Q. B. D. 116) and of Keen v. Millwall Dock Go. (L. R. 8 Q. B. D. -182), we think that these two cases might have been treated at a little more length. In dealing with the Agricultural Holdin Act the editor has not been so successful. There is no introgdetion or comment worthy of the name, and many sections of the Act arc printed, whereas the greater number of them might have been abstracted only, and many omitted altogether, so as to bring into their due prominence the powers of the county court on appeal. A Queen’s priuter’s copy of the Act would serve the reader’s purpose nearly as well as the reprint of it which is 'ven. Taking another instance of special practice, we are not a litgii surprised to find that the Parliamentary Elections (Returning Oificers) Act of 1886 is quite unnoticed in connection with its parent Act of 1875, nor is there any mention of Rey. v. Jiulye of Lambct/i County Court (17 Q. B. D. 96).

The index is very long, occupying 140 pages, and we are glad to be able to add that it is an extremely good one. We have not been able to detect a single omission or defect in it, except under the head of “ Form,” where, as only a selection of forms is rinted, it might have been useful to give a reference to those selected.

As to mechanical arrangements, the book is well and clearly printed, but in shape and size it is cuinbrous, and it would have been better to have divided it into two volumes, one of which might have been conveniently devoted to the general, and the other to the special, procedure.


Tun ELEMENTS or J URISPRUDENCE. By '1‘. E. HOLLAND, Barristerat-Law. THIRD EDITION. Oxford: Clarendon Press.

Professor Holland has suggested, on page 7 of this work, a parallel between “Jurisprudence” and "Abstract Grammai-,"’ to which exception has been, he tells us, taken by Professor Pollock. We are inclined to think that the parallel is an extremely just one; and that an important lesson may be learnt from it—namely, that there is very little use in trying to teach jurisprudence to anyone who is not already pretty well acquainted with at least one system of law. No one, we take it, would venture to leam abstract grammar until he had already acquired a familiarity with the grammar of at least one language ; if he did, he would be beg-inning at the wrong end. And we think that the same objection applies to attempting to glet a knowledge of so artificial an abstraction as jurispru euce, wit out having first made acquaintance with some of the sources from which it is abstracted. For anyone, however, who possesses this preliminary knowledge, there is much to begained by its study, and we do not know any better guide to that stu y than the book now before us; indeed the fact that it has within so short a time from its first publication reached a third edition, is a sufiicient indication that it has proved a valuble addition to our legal literature. The present edition contains but few and unimportant alterations from its predecessor; such as there are, however, are improvements. The chapter on the “ Analysis of a Right” has been rearranged and expanded; some passages which in the former editions were coniprised in other chapters having been transferred tc_ it; and the discussion on the necessity of consensus to a contract is considerably expanded; Mr. Holland's view, that such consensus is not necessary, being supported with considerable acumen. We must confess, however, that we are by no means convinced that Mr. Holland is right, so far as regards English law, on this point, though the_space at our disposal does not permit us to enter into any discussion of so complex

a question. _


THE LOCAL Boxan ELECTION MANUAL. By the late W. G. Li'iiLi~:\', QC. Founra Eniriox. By ALEXANDER MACMORIIAN, Barristerat-law. Shaw & Sons.

The application of the Corrupt Practices Act, 1864, to_local board elections has made a further edition of this work, of _which the last edition was issued in 1876, almost a matter of necessity. Mr. Mucmorran has added a lengthy chapter on the Act of 1884, and another



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Mr. Chaster has discovered a new subject and has treated it with fair accuracy and completeness, though in the old fashioned style of digest of cases, and setting out in full of sections of statutes. He collects within some 300 pages the statutes and cases bearing on the relations to the public of sheriffs, high bailiffs, bailiffs, revenue oil-lcers, police, gaolers, inspectors of factories, explosives, nuisances, weights and measures, and other officers too numerous to mention. We have failed to find much expression of independent opinion upon the cases. The statutes are, we think, given at too great length; an abstract of them would, in most cases, have supplied all that is wanted and usefully decreased the bulk of the book. The index, though the sub-titles are alphabetical, is rather short and meagre, and only one set of contemporary reports is ever referred to.

TITHE ACTS. THE Trrin: Acrs. By '1‘. H. BOLTON, Solicitor. Stevens & Sons.

This is a collection of seventeen Acts relating to tithe, prefaced by a short introduction and “ observations ” upon the recent Act, and followed by a good index. The observations furnish a useful commentary on the Act of last session and draw attention to the points to which evidence shouldbe directed in the procedure before the Commissioners. The Acls, however, are print.ed almost without annotation, even by way of cross reference, and Mr. Bolton has, in at least one instance, printed a string of repealed sections, being sections 4-9 of the Act of 1836 (6 & 7 Will. 4, c. 71).

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Sir,—Most members of the profession will, I think, agree with the remarks in your last number on the case of lie Allen, reported in the same number under “ Cases Affecting Solicitors," but I venture to ask whether you are right in taking it so entirely for granted, as you appear to do, that, where a lessee pays the entire cost of his lease, the lessor’s solicitor, who prepares it, can by notice to his own client-—-i.e., the lessor, and behind the back of the lessee, elect that his remuneration for the lease shall not be according to the prescribed scale. This seems to have been 0 assumed in Re Allen, and it appears _th_at the Council of the Incorporated Law Society are of the seine opinion (see their Digest, &c., on the Remuneration Act, p. 17, par. 58); but I have never myself been able to acquiesce in this construction of the General Order, and one would have thought, with all deference, that the common- sense view was the right oneviz., that the notice must be given to the person called upon to pay. Certainly, this seems to me the only view which gives full effect to the interpretation of the word “client” contained in section 1 of the Remuneration Act, which must, I take it, be considered as part of the General Order (see especially the last definition of “client ” in such clause).

If your construction is the right one—viz., that “ client ” means exclusively the person originally instructing the solicitor, there is nothing to prevent the lessor requiring the solicitor (lunder clause 5) tr carry through the business of the lease “ by specie exertion in an exceptionally short space of time,” and, should he do so, he would, in your view, be entitled to additional remuneration, not from the lessor, but from the lessee, which would be absurd.

Personally, I have as yet had no occasion to consider the point in actual practice, for, so far as my experience goes, the scale has been loyally accepted and acted upon both by lessors and lessees, but as the question has—I know from others—occasionally been raised I venture to trouble you with these few remarks, should you think lit to insert them in your paper. E E L

29th November. ' ' '

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i which should he applied to some of the provisions of the Remunera

tion Order. Under clause 6 of the Order, the solicitor's “ writing under his hand ” must be “ communicated to the client.” Who, then, for the pur oses of the order, is the client of a solicitor in the preparation of alease? The answer is to be found in Schedule I., Part 2; “ Lessor’: solicitor for preparing, settling, and completing lease and counterpart}? This interpretation is, we think, consistent with section 1 of the Act, inasmuch as the lessor is the person liable for costs in the first instance to the solicitor, if the latter has not been expressly retained by the lessee (see /lriaaell v. Robinson, 3 Bing. N. C. 10, and Baker v. Jlcryweather, 2 C. & K. 737).-—ED. S. J.]

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This was an appeal by the jud e of the Brompton County Court from an Ol‘d£l' of the Q,ueen’s Bench Tfivision granting a writ of prohibition, directed to the judge and the plaintiff, prohibiting them from further proceeding on and putting in force an order of commitment, dated the 4th of March, 1886, against the defendant in an action in the county court. On the 7th of January, 1856, judgment was given for the plaintiff in the action for £57 2s. 2d. inclusive of costs, and the defendant was ordered to pay it by two instalments, £20 on the 21st of January and the balance on the 21st of February. The defendant having made default in payment of the first instalment, a judgment summons was taken out by the plaintiff, and on it the county court judge on the with of March made an order as follows :—-“ Commitment ten days, suspended fourteen days.” This was entered in the Commitment Summons Book. At the same time the judge gave a direction to the registrar that the warrant was not to issue if the defendant paid £4 a month. This direction was not entered in the court book. The defendant paid two of these £4 instalments, but failed to pay the third instalment, and as the warrant for commitment was going to be issued, the defendant applied for and obtained the above writ for a prohibition, on the ground that the order of the 4th of March was in excess of jurisdiction. The county court judge appealed. When the registrar was asked by the defendant's solicitor what the order of the -1th of March was, he replied as follows :—“ Order made 4th of March, 1886—£-l to be paid 18th of March, 1886, and each succeeding calendar month. If not so paid warrant of commitment might be issued."

_ Tun Conn" dismissed the appeal. Lord Esurzn, M.R., said that the Judges of the Superior Court, sitting at chambers, upon a summons to commit a_debtor under section 5 of the Debtor-‘s Act, 1869, could either make an immediate order of committal, if it were sliewn that the debtor had means to pay, or might make a new order for payment by instalments; but they could not make an order for payment by instalments. and at the same time make a commitment order if any of those instalments were not paid in the future. That had been decided by Willesy ~_I-.1n1.'.~ im 12601..-3' /1.1 (-22 L. '1. N. s. U136), and followed by all the judges. The county court judges exercised their jurisdiction under the “ma _Bt3tl1@°. and subject to the same limitations as the judges of the superior court. It was clear from the letter of the registrar of the 18th of June that he thought the direction to him was an order. The judgc must have meant it to be an order, and it was acted on as such. Therefore the county court judge had, in effect, made an order on the 4th of March for payment of the debt and instalments, and at the same time made an order for commitment if any of those future instalments were 110$ puid. The order that the commitment order should be suspended for fourteen days was within the inherent jurisdiction of the court, but the order of_ commitment on failure to pay any one of the future instalinents was in excess of the jurisdiction of the court, and therefore 111e11- The effect of allowing it might be um a debtor, after psyivz two or three of the instalments, might, from some unforeseen calamity, be unable to pay the next instalment, when he would be committed to Pnson at °11°e» Wlthout having an opportunity of explaining his case_I‘he order commit could only be made upon failure to pay each instalment in an-ear. The prohibition, therefore, was rightly issued. Luwtnv and LQPES, L.JJ., concuned.—Covuszi., Sir E. Clarke, S.G.,

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