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Mr. Justice FITZGERALD observed) “no prospect of the some equally frivolous complaint. When the Audit trial being terminated except by the death of a judge Office makes this complaint, the Paymaster has parted or a juror.” Evidence of this class (whether for or with the money or stock, and is not in a position to put against the prisoner) is of course of especial importance pressure on a solicitor so as, in effect, to force him to take in prosecutions for conspiracy, where the knowledge the order to the registrar for alteration. Solicitors have and intention of the alleged conspirators are always the no means of getting remuneration for such work, and it most material issues.
is unfair to them to require them to run about for the purpose of correcting something which the Audit Office
thinks wrong, but which the Paymaster has acted upon THE POPULAR NOTION of the duties of the Lord as right. Nevertheless, when another portion of the Chancellor, or more properly speaking of the Chancery
same order has to be worked out, we have known the Division, with regard to wards of court, is by no means
Paymaster refuse to act upon it unless the previous part clear. A correspondent of an evening paper assumes
is, at great expenditure of time, rectified to meet his that, because the friends of Mr. LAW supported his
views of what ought to have been done. It is clear that marriage with a ward of court, the fact of the marriage
| some of the modes of doing business at the Chancery must have been “ferreted out" by the court. That
Paymaster's Office must be changed sooner or later, paris to say, it is supposed that a learned Vice ticularly the delay which always takes place in making Chancellor, with a list of his wards in his hand,
out a certificate of the fund in court, a delay which calls at sundry houses to ascertain how his young
twenty years ago never exceeded one clear day, but lady wards are getting on, and what male visitors
which, according to the experience of at least one person, are in the habit of paying them attention. It is
is now extended to ten clear days. This is, of course, needless to say that no such parental care is bestowed
caused by the deficiency in the Paymaster's staff, which upon wards of court. Unless they are entitled to money, it is hoped will shortly be augmented. they do not become wards, and then only when the money is in court, or under the control of the court. And even when a ward of court marries without leave, it
THE ORDER IN COUNCIL, based upon the report of the is quite possible the court may never discover the fact it
Council of Judges, contains little that has not already the parties never come to the court for the ward's money.
come to the knowledge of the public. The offices of In fact in this, as in all other cases, with the exception
Chief Justice of the Common Pleas and Chief Baron are of those instances of contempt which touch the person of
to be reduced," and there is proposed to be constituted a the judge or the dignity of the court, the court never
single division, to be composed of all the judges of the interferes unless moved by some person who is a party to
Queen's Bench, Common Pleas, and Exchequer Divisions. the proceedings. There is, however, a complaint made
This consolidated division is to be called the Queen's by this correspondent which is worthy of attention. He
Bench Division, and is to be presided over by the Lord mentions three children who are entitled to £90 a year,
| Chief Justice of England. Provision is made for the the interest of a fund in court, which interest is
transfer of pending causes and matters in the three paid to their father who neglects his children and
divisions to the consolidated Queen's Bench Division; squanders the money. A guardian having an ollow
for assigning to that division all proceedings which, by ance for maintenance is not accountable if it appears
or under the Judicature Act or Rules, have been or are that the infants have been in fact maintained,
assigned to the three divisions respectively we presume educated, and supported (Jodrell v. Jodrell, 14 Beav.
this covers the marking of pleadings with the name of the 397; Hora v. Hora, 33 Beav. 89); and where children
division] ; for the taking in the consolidated division of all are neglected, there must be some one to make the repre.
proceedings which have heretofore, by any law or custom sentation of that fact to the court before any interference
other than the Judicature Act and Rules, been taken can take place. It is not difficult to suppose that, among
respectively in the Queen's Bench, Common Pleas, and the large number of guardians who receive from the court
Exchequer Divisions of the High Court, and for the an allowance for maintenance, there are some persons
exercise by the Lord Chief Justice of England of the who are utterly unworthy of their trust; and some plan
powers of the Chief Justice of the Common Pleas and of by which such guardians may be made to show from
the Chief Baron, "unless such exercise shall be contrary time to time that those in their charge are properly
or repugnant to any express provision in any Act of Parcared for according to their station in life would be of
liament contained." great service in many cases, but such a plan could only be carried out at the expense of the infants' property.
WE DEEPLY REGRET to announce the termination of a career of great promise, in the death, at the early age of
thirty-one, of Mr. H. M. R. POPE, of the equity bar. It THE CHANCERY PAYMASTER is not, in a general way, in is not very many months since, in noticing in these much favour (or “favor") with those who have to do columns the death of his friend, the lat with his department. He is accused of being un. Sweet, he wrote of that eminent conveyancer, that necessarily strict, and of requiring all sorts of things to “to his pupils his teaching was rendered doubly valube done which those required to do them consider | able by the same painstaking and conscientious superfluous, and, indeed, vexatious. The story told in thoroughness which formed in truth the distinguishing the Times of the gentleman who was required to procure characteristic of his life and writings." These last the alteration of the word “favour" into “ favor," and words were hardly less true of the writer than of the afterwards to get it altered back again, may be taken as a subject of his observations. Mr. POPE was eminently specimen. So far as appears, the order containing the word thorough and careful in all his work, and, as a natural supposed to be spelled so as not to agree with the spelling consequence, had already obtained a very fair junior of the same word in the title of the account, had been business, and, if his life had been spared, would, in all acted on, and the transaction afterwards came before the probability, have risen to eminence. His university Audit Office. Now, if the transaction was complete career was distinguished. He was formerly scholar of and had been rightly completed, we fail to see St. John's College, Oxford, and graduated first class in by what authority the Chancery Paymaster could Literae Humaniores in 1871. In the following year he require the solicitor to procure the alteration of the obtained the Craven Scholarship, and was afterwards order. That such or similar requirements are made, it elected a fellow of Lincoln College. He was well known needs oply a moderate experience to be able to attest. as the author of a treatise on "The Law and Practice The Audit Office writes a long letter to the Paymaster of Lunacy," and had edited the Bills of Sale Act, stating that some word is wrongly spelled or making 1878.
THE New County COURT RULES will be found in at a place other than the place prescribed by the statute. another column. Although made to come into operation Though the judges may have used expressions going, at on the 1st of January last, we believe that they were not first sight, further than this, no lawyer could fail to see known to the officials of the County Courts until some that this was really all that was meant, and that the time after that date, and they did not reach us until too decisions of the Queen's Bench Division had nothing late for publication last week.
whatever to do with the excuse alleged for defiance of the tribunal. The Court of Appeal has decided that the
Pablic Worship Regulation Act did not create a new Mr. MacDoNOGH, Q.O., the leading counsel for the
tribunal, but expanded or modified the powers of an defence in the trial of the members of the Irish Land
existing one, and that, save and so far as the new League at Dublin, constitutes an interesting link with
jurisdiction or new procedure is expressly made subject the past history of Ireland, since he was one of the
to different conditions and incidents from those of junior counsel for the defence in the O'CONNELL trial in
the old, all the conditions and incidents of the old 1844. The only other survivor of these counsel is the
are applicable. We cannot help thinking that this present Lord O'HAGAN.
was the only reasonably possible conclusion.
Of the points as to the forms of the requisition, monition,
and inhibition the Court of Appeal made short work. THE DALE CASE.
These documents followed the forms given by the rules WHILE we are glad that the Court of Appeal saw its
and orders approved by Order in Council under the Act.
It was held that the provision of the Act giving power to way to affirming the decision of the Queen's Bench Division on all the more important points raised by Mr.
frame rules and orders regulating procedure included
the power to frame forms; and, therefore, the forms Dale's case, we cannot help regretting that it felt itself
were of statutory authority. The contention which, by compelled to differ on the one minute technicality
reason of this view, became immaterial, is one which has, through which the appellant has for the present suc
| with relation to other statutory tribunals, played an imceeded in defeating and defying the law and the tribunals of his country.
portant, and often mischievous, part in English law. The A judge is, perhaps, bound
principle it embodies may have done some good, but it to give effect to the merest balance of opinion which he
has, in our opinion, done also much harm. It is that may form on one side or the other, but we are tempted
the proceedings of a statutory tribunal of limited to wish that judges could strain a point in a case such
jurisdiction must, on the face of them, show juris. as that we are discussing in favour of uniformity
diction. This principle, applied to the proceedings of of opinion. It is really a lamentable thing that law, as declared by the most eminent and able of its expositors,
magistrates with as much subtlety and severity as that
which formerly characterized the practice on special should be such a very uncertain thing. It gives cause
demurrers, produced such mischief and absurdity that to the enemy to blaspheme, and is mischievous in many
the Legislature has had, on various occasions, to interrespects, not the least of which is that it must tend to
vene. We doubt whether the principle was originally a diminish the public reverence for the law. The form
sound one. Its advocates argue, as the advocates of the alities that were omitted were pure formalities in fact; 1.
old system of special pleading did, that the necessity for no person could be one whit the better or safer for their
showing jurisdiction so distinctly on the proceedings observance.
tended to keep inferior tribunals within the limits of their At the same time we must admit that the judgment
jurisdiction, and to teach them the necessity of observing of the court below, though most full and satisfactory
the extent of their powers with accuracy, just as on the other points, did treat the points as to the writ
the former system of special pleading produced an de contumace capiendo in a somewhat offhand and inadequate manner. To work an implied repeal of a
| accurate knowledge of the fundamental distinctions and
ideas of law. There may be something in this, but we provision originally intended for the protection of the
doubt its truth, at any rate in the present day, when
doubt its truth. liberty of the subject-however much such provision may such abundant facilities exist for setting any excess of since have become a mere form, or unnecessary from the
jurisdiction right. On the other hand, it does seem the existence of other safeguards—there must be a most
height of absurdity that, where there is no shadow of complete and absolute inconsistency with the subsequent
pretence for alleging that, in fact, there has been any enactment, such as hardly appeared to exist in the
excess of jurisdiction, and the person complaining does recent case. Moreover, the view taken by the Queen's Bench
not make any complaint of such excess in fact, he can Division hardly gave sufficient application
come and endeavour to pick holes in the phraseology in to the fundamental maxim that generalia
which the proceedings are stated, and take the most specialibus non derogant. A general provision that
subtle objections, pot corresponding to any real illegality writs may issue and be returnable in vacation,
or injustice in rerum naturâ. We should have been however sweeping its terms, hardly appears to con
sorry if objections of this kind had prevailed. template such very special provisions peculiar to the
The only point of real interest in the recent case was writ de contumace capiendo as these were.
the question whether there was a power of signifying for The decision of the Court of Appeal is important
contempt in proceedings under the Public Worship as correcting the too sweeping view of the effect
Regulation Act. The case, however, as is usual with of the decisions in Hudson v. Tooth (L. R. 3 Q. B. D. 51), and Sergeant v. Dale (L.
similar cases, consumed a dozen days or so of judicial
R. 2 time which could be ill spared. Q. B. D. 558), which the Ritualists have been inclined to take. Those decisions gave countenance to the idea that the jurisdiction established by the Public In the House of Commons, on the 18th inst., in answer to Worship Regulation Act was a new and unhallowed Sir H. Holland, Sir W. Harcourt said the judges, to creation of an Act of Parliament, and not a true eccle- the number of twenty-five, assembled in council, under siastical court at all. Of course the Queen's Bench the provisions of the Judicature Act of 1873, and Division, in deciding those cases, had no such notion in discussed the expediency of the changes proposed to view. What was really meant was that when a new
be made by the Order in Council. Each judge separately jurisdiction is given, in the sense that new modes of pro.
delivered his opinion, besides which two of the judges cedure-as the procedure upon representation in this
stated their views in printed papers, and those papers,
if the judges did not object, could be produced. The names case-are given, the requirements of the statutes giving
of the judges who assented and those who dissented from the the new modes must be followed. For instance, Lord
proposals made appeared under their own hands, and, under Penzance, though created a judge of the Provincial the circumstances, the Lord Chancellor was of opinion that Court of Canterbury, and subsequently Official Principal, it would not be proper to apply to the judges for information could not claim to hear the matter of the representation on the subject in writing.
nubila condit; the argument goes out in a fog, through THE DIGNITY OF JUDGES. which, after a while, we catch sight of what, when we “The business of a judge of first instance is of more
examine it, turns out to be a mere ignis fatuus. This importance than the business of a judge of appeal."
cloudy region which we have to traverse consists in the No doubt then can be entertained of the importance of
main of a comparison, the bearing of which it is hard to the duties which the judge of first instance has to
follow, between the methods and the subject matter of discharge.
what used to be called respectively common law actions “The true dignity of a judge's position depends
and chancery suits. We will not follow it in detail; the ultimately neither on his rank nor on his salary, but on
substance of it may be read in the introductions to the importance of the duties which he has to discharge."
equity manuals; the only novel feature is contributed by It follows therefore that no anxiety need be entertained
the illustration expressed in the statement that, “ It is as to the dignity of his position.
not a mere fancy to say that a criminal trial or an action To the conclusion thus drawn from the premisses laid
for damages has a resemblance to a surgical operation, down by the learned author of an article on the High
and a decree in equity to a course of medical advice.” It Court of Justice, published in the current number of the
would be interesting, and might be instructive, to listen
to the learned author distributing, after the manner of Nineteenth century, though on grounds not precisely identical, we venture respectfully to assent. And con
one of Dr. Gauden's sermons, the various forms of prosidering that no proposal has been yet foreshadowed
cedure under the appropriate medical and surgical tending to any diminution in the duties which judges of
categories ; but a less lively fancy flags in the effort. first instance, as such, have to discharge, which duties
The well-known story of King John and the Jew seems, are, as we have seen, his most important duties, we are
indeed, to connect the extraction of money—that is, of the more anxious to learn why it should appear to the
“ damages ”—with an operation of dentistry; but, on author that the abolition of two offices which have
the other hand, the operation seems in another aspect wholly lost their significance, the offices of Chief Justice
akin to the equitable remedy of discovery; while another of the Common Pleas and Chief Baron of the Exchequer,
operation belonging to the same branch of surgery, the forms a step in a process "likely to diminish the dignity
stopping of a tooth, may be thought analogous to the of the bench by diminishing the importance of the duties
properly equitable remedy of an injunction, or ne exeat allotted to the judges."
regno. Thus the distinction of classes is again lost sight Before entering on the “explanation necessary to
of; and in the result it will, perhaps, be more than make this plain," it will be convenient to see more
justice if we say, ridiculum est hæc illis similia putare; exactly on what grounds the above-stated comparison
nec tamen sunt omnimodo dissimilia. In sober earnest, between the importance of the business of judges of
however, the question has been debated and discussed long appeal and judges of first instance rests. “In the first
enough whether there is such a radical and essential diverplace, a large majority of the trials of any importance
sity between the subject-matters respectively adjudicated which take place in this country, and practically all
upon by the old courts as to make them unsuitable for trials in which the public take much interest, are trials
being adjudicated upon by a single tribunal. For the by jury, or rather by a judge and jury.” “In the
last thirty years every step taken has been in the direcsecond place, trial by jury is the really popular and im
tion of consolidation; and though the learned author pressive part of the administration of justice." To
" thinks it questionable whether the Judicature Act did which may be added (though not expressed as a distinct
not go too far" in that direction, he will hardly induce ground) the difficulty of the functions which a presiding
the world to take that step backwards which he advises. judge is called upon to perform. “Hardly anyone (it
But still, and all granted, in what secret channel is the is said) who does not pass his life in courts can know
argument meanwhile running? what is the bearing of how constant are the demands made, not only or chiefly
the "explanation"? and how does it make plain that on his knowledge of law, or on his readiness in under
the process hinted at “ will diminish the dignity of the standing intricate facts and their bearings on each
bench, by diminishing the importance of the duties other, but on his temper, his good manners, his self
allotted to the judges " ? control, and his knowledge of mankind, and, in particu
We must see more precisely what is this process." lar, on his sympathy with the feelings of those who It appears from the following statement: "The method appear before him, either as counsel, witnesses, or par- 1 of procedure favoured by the Judicature Act, and which ties.” Nor are the demands on his knowledge of law
it is now, I apprehend, proposed to extend, is sometimes slight, for “the questions of law which usually arise upon | described as the one-judge system,' and its essential such a trial are almost always questions as to how the feature is thi
feature is that every cause, whether legal or equitable, judge ought to direct the jury, or whether certain evid
should be tried in the first instance by a single judge, to ence should be admitted or rejected. Such questions to whom it should be allotted from its commencement, must be decided at once, and cannot be properly argued
and who should preside over it throughout till he before they are decided.” In addition to all which, delivers a final judgment, and that this judgment should however, the judge may have further to consider on full
be subject to an appeal to a court of three judges." We argument how, on the findings, judgment ought to be
have already pointed out that there was no proposal forentered, a task which, as recent reports to go no
shadowed for abridging the functions of judges of first further) show, often involves questions of law of great instance, and, therefore, wondered how the importance nicety and difficulty-of necessity, indeed, involves all the of their duties was to be diminished. We now wonder questions of law to which the facts and pleadings can
the more, finding that their duties in respect of any single give rise.
cause are to be increased. We are to see, therefore, which of these duties, func The first proposition, however, laid down as to this tions, incidents, or characteristics is impaired or “method” is still outside the line of the argument. threatened by the “process" of that which the learned | This system, which, it is said, has, “ since the Judicature judge expresses so lively a mistrust and fear; and in Act, prevailed in the fullest way in the Chancery putting the question in this form we are giving it as Division," " cannot be carried out fully without abolishwide a scope as it is possible to do, consistently with the ing trial by jury in civil cases." Now, if the words are leading principles which he enunciates. And here the taken strictly, and from what follows it is plain the uninstructed reader would quickly come to an end; for, author desires them to be so taken in a very eminent apart from the changes which the learned author pro- | degree, this system has not for many years, and has still
to propose, it is not proposed to impair or less since the Judicature Act than before, prevailed in diminish any of them.
the fullest way in Chancery or the Chancery Division. What then is the “ explanation"? But just at this For if the essence of the system is that one judge is, to point, to our regret, the learned author cuput inter I put it shortly, to see the case through from the beginning
to the end, the system has, in a multitude of cases tried case at York with a jury, will have to do precisely the at Lincoln's-inn, not been followed ; since not only have same that his predecessor did in 1880. His funccases been for many years wholly transferred at some tions will have remained the same. Why, then, period of their existence from one chancery court to will their “importance” have become less, or his another; but since the appointment of Mr. Justice Fry a “ dignity" have been lowered, since “ his true dignity great number of cases, still retained in the chambers of depends on the importance of the duties which he has other judges, have been sent for trial before him. And to discharge"? The only difference will be that, instead this observation is not unimportant, because the chief, if of a new trial being granted by the Queen's Bench, it not the only real, obstacle to the system being fully will (perhaps) be granted by the Court of Appeal. carried out in the other divisions is the impossibility of But how then is this supposed descent in the duties securing that the trial of a cause shall take place before and digpity of a judge of first instance to be met and any particular judge.
averted ? By abolishing trial by jury. The popular" It seems, however, that a still more rigorous strictness and “impressive" incidents of a jury trial are to be of meaning belongs to the description of this “ essential
lost, and the judge is to be relieved or deprived of feature." The "essence" is that “the case is first tried the difficult and important duties connected with that by a single judge, who decides both the law and the popular form of administering justice, in order to support fact.” Of course, if this, which no one has hitherto his failing dignity. Now the true dignity of the judge understood to be of the “essence,” is really of the “depends on the importance of the duties he has to dis"essence," there is an end to the question. There can charge," but for some reason, not easily to be gathered be no more jury trials. But we are hardly come so far to from, nor very consistent with, what has gone before, we learn so little; and when this is learned, wbat follows ? must assume that to perform the function of finding the Only that there will be no more jury trials, and that the facts oneself, and applying the law to them, is in itself discussion of the next proposition becomes superfluous. a more important duty, than taking part in and presiding
For the next proposition is, that“ any attempt” to do over the trial of facts by a jury, and applying the law to this impossibility-namely, “to carry it (the system) out the facts so found, although taken altogether the profully without the abolition of trial by jury-will greatly ceeding in the latter case is more important than in the lower the efficiency and the dignity of the puisne judges former. In other words, in a jury trial the honour and of the Common Law Divisions." Well, then, we must dignity is divided between the judge and the jury, and consider this impossibility as if it were possible, and though the whole is greater, yet the judge's share is less assuming that trials by jury in civil causes are not than what falls to the judge sitting alone. What, thereabolished, see how the “ efficiency and dignity" of the fore, is claimed is not that the judge's dignity shall not judge engaged in trying such causes are to be lowered. be diminished, for it would remain the same, but that it And it is here that the argument recommences, and that is too little, and should be increased. In short, the we meet with that ignis fatuus already referred to, which dignity of judges of first instance not sitting in the is nothing else than a phrase invented, reiterated, and Chancery Division--for it must be observed that these thus made to do duty for a fact. This phrase is to be are the judges who are really meant throughout-is less found in the statement that the judge will thus become than the dignity of judges who do sit in the Chancery "a mere commissioner to take evidence." Now, no one Division, and must be made equal to it. can know better than the learned author of the “ Digest The more strange is the observation, which seems of the Law of Evidence" that a mere commissioner to intended to form part of the general argument, that take evidence has none of those functions, powers, or “the practical effect of trying to apply the so-called duties, and needs none of those qualities, and that his one-judge system to trial by jury must be to subordinate acts are accompanied by none of those incidents, nor the judges of the Common Law Divisions entirely to the followed by any of those consequences which belong to Court of Appeal.” Now, since this “entire subordinaor attend the acts of a judge (or, what is equivalent to a tion” has been experienced by a long succession of judge, though here described as something different, a Masters of the Rolls and Vice-Chancellors, it would be * commissioner for the trial of causes at Nisi Prius") worth while to inquire whether they have been conscious trying & cause in the ordinary way. Nor would the of a want of sufficient dignity, And it would again making of judges “ mere commissioners for the trial of be a curious inquiry whether there is more subordinacauses at Nisi Prius” (which includes the entering of tion on the part of the judge when the Court of Appeal judgment) in any degree even tend to “ deprive them of has only the opportunity of reversing his determination all connection with the decision of matters of law.” on questions of law, than when it has the opportunity of
Let us see how the matter really stands. In the reversing also his findings of fact. year 1850 Mr. Baron A. tried at York a case in which In truth the learned author seems here again not to the writ issued out of the Queen's Bench. The trial, have stated his true meaning exactly. What the judges being a jury trial, was “popular" and "impressive" ; it at Westminster had before the Judicature Act, what gave occasion for all that display of tact, temper, know. they have to a certain extent lost by the operation of ledge of men and things, readiness of apprehension, and the Judicature Act, and what they (80 far as not correctness in ruling the points of law necessary to members of the Court of Appeal) would entirely lose control the evidence, to direct the jury, and to cause the under the “so-called one-judge system,” is no part of judgment to be rightly entered, which has been so justly the functions of judges of first instance; but belongs to praised. The learned Baron had seen nothing of the case | the “less important business" of judges of appeal-the before; he saw nothing of it afterwards; but he learnt opportunity, namely, of overruling one another, of that a rule was afterwards granted and made absolute in sometimes assenting to and sometimes protesting against the Queen's Bench for a new trial, on the ground of the overruling of themselves, and of sometimes being misdirection. In the year 1860 a similar course of overruled, without the opportunity of either concurring events took place, except that it happened that, finding or dissenting, by their brethren. In face of the learned a difficulty in some of the points raised, the learned author's express declaration to the contrary, we find a Baron gave the go-bye to them, and reserved them for difficulty in supposing that this is the loss which he the decision of the Queen's Bench. In the year 1880 really complains of; yet an examination of the facts a similar course of events again took place, with this seems to leave it as the sole residuum of the argument. difference, that, as he could no longer reserve the difficult Nor only so; the restoration of appellate jurisdiction points for the Queen's Bench, he was obliged to decide to all the judges is the pith of the scheme which the them himself, which he did on full argument upon learned author proposes as a substitute for the existing further consideration. In the same year a cause at system, and in favour of which he would abolish the Guildhall was similarly dealt with. In the year 1890, it | Court of Appeal. As it can hardly be expected that such is feared that-what is feared ?-that a judge, trying a l a departure from the lines on which the reformation of
procedure has hitherto gone would be accepted, it would not be a practical matter to discuss this scheme in
WINSPEAR N.' ACCIDENT ASSURANCE COM. detail ; nor does space admit the consideration of all the
PANY (LIMITED), C.A., 29 W. R. 116. topics touched upon. We may, however, be permitted,
It was held some years ago by the Court of Common with all respect to the eminent persons who hold the | Pleas, in Reynolds v. Accidental Insurance Company (18 office of judges of the High Court of Justice, to say, that | W. R. 1141), that where a man became insensible and even in the heavenly bodies “one star differeth from fell into a pool of water face downwards and was another star in glory.” All who are judges cannot be drowned, this wa
| drowned, this was death by accident within a policy of Lord Chancellors nor Chief Justices. Is there anything
insurance against injury by accident. Since that deunreasonable in supposing that some may be preferred
cision it would appear that the accident insurance com.
cision it would appear tha to others as judges of appeal ? Nor need any fear be
panies have added to their policies a clause providing entertained of our losing, or failing to have the full ad. that “this insurance shall not extend to ... any vantage of, the services of those brilliant and distin. injury caused by or arising from natural disease or weak. guished candidates for posts of the first rank and magni. ness, or exhaustion consequent upon disease, ... or tude in respect of whom, but not by them, so much to any death arising from disease, although such death anxiety has been lately, in some quarters, expressed. may have been accelerated by accident”; and in the
present case, where the facts were that the insured, while crossing a shallow brook, was seized with a fit of epilepsy and fell into the brook and was drowned, it was urged that the insured was drowned because he was
too weak to hold his head above the water ; that the cause SULLIVAN ». MITCALFE AND OTHERS, C.A.,
of this weakness was disease, not accident; and there29 W. R. 181.
fore that the proviso covered the case. But the Court of According to Sir H. Thring, section 38 of the Com
Appeal refused to assent to this view, holding that the panies Act, 1867, was hurriedly introduced during the
cause of death was not disease or weakness or exhaustion, passage of the Bill through the House of Commons, with.
but drowning. The court do not appear to have observed out being recommended by the Select Committee. The
upon the words “ arising from natural disease or weaklanguage of the section is of the most general and sweep
ness," upon which, perhaps, more might bave been ing character. It directs that “every prospectus of a
said in favour of the insurance company. Suppose, company, and every notice inviting persons to subscribe
owing to natural disease or weakness, the insured had for shares in any joint stock company, shall specify the
fallen from a great height and had been killed by the dates and the names of the parties to any contract
fall, would this have been covered by the proviso ? entered into by the company, or the promoters, directors, or trustees thereof, before the issue of any such prospectus or notice, whether subject to adoption by the directors, or the company, or otherwise."
REVIEWS. It has been conceded on all hands that some limitation must be placed on the language of this section ; for in its literal meaning it would include every contract
LIBERTY OF THE SUBJECT. entered into by promoters, &c., whether relating to
THE LIBERTY OF THE PRESS, SPEECH, AND PUBLIC Worthe company or not. As Lord Justice Bramwell said, in
SHIP ; BEING COMMENTARIES ON THE LIBERTY OF THE Twycross v. Grant (25 W. R. 701, L. R. 2 C. P. D.
SUBJECT AND THE LAWS OF ENGLAND. By James PATER469), two limitations have been suggested, “one that
SON, Barrister-at-Law. Macmillan & Co. every contract is meant which would assist a person in .
In this treatise, which deserved an earlier consideradetermining whether he would be a shareholder; the
tion than we have been able to give it, Mr. Paterson has other that only those contracts are meant which affect |
written of the law upon a variety of topics which are not the company, which put an obligation upon it, whether often found in juxtaposition. The book appears to be but with or without some benefit attached.” And, con
a section of the author's commentaries upon the liberty of sistently with his principle of leaving people to look
the subject generally, and the idea by means of which he after themselves, the learned Lord Justice declared his
endeavours to make it a complete treatise of itself is not preference for the latter limitation. In the present case
wanting in boldness or originality. Starting with the he expressed the same opinion, but Lords Justices
contemplation of the citizen as a thinking, speaking, and Baggallay and Thesiger adopted the former limitation,
writing animal, Mr. Paterson proceeds systematically to which certainly appears to us to have the balance of
survey his rights in this capacity. He divides his subject reason in its favour. It seems to us that there is a great
into two branches, dealing, firstly, with the law relating deal in Mr. Buckley's suggestion that the key to the to secu
to security of thought, speech, and character, and, interpretation of the section is contained in the latter
secondly, with the law relating to public worship. Under part of it, which provides that “any prospectus or
the first head is discussed the law regulating public notice not specifying the same shall be deemed fraudu
meetings, the press, newspapers, the post office, theatres, lent on the part of the promoters, directors, and officers
and others of our babits or institutions which involve of the company knowingly issuing the game as regards
the expression of thought; and the limits of free exson taking shares in the company on the faith of pression as imposed by the law against blasphemy, sedisuch prospectus, unless he shall have notice of such con
tion, immorality, and libel are laid down. Patent law tract”; that these words should be read as meaping and copyright may seem at first sight to be outside the “on the faith that there was no such contract, inasmuch scheme indicated by the title, but the author fairly thinks as the prospectus did not mention it," and that this lets that the subject is not exhausted without considering, in the test of whether the concealed contract is such as as well as the right to free expression, the right of if disclosed would have deterred a prudent man from property which a person may have in the form in which joining the concern. The balance of authority is his thought expresses itself. Nevertheless, the introducclearly in favour of the view taken by the majority of
tion of questions of proprietary right involves the the Court of Appeal in the recent case, and it must now,
difficulty that it is impossible to decide where to stop. subject to the decision of the House of Lords, be re This is obvious when we come to the second part of the garded as settled that the prospectus must disclose all book, which appears to be intended as a résumé of our law contracts by promoters, &c., which might reasonably |
relating to the expression of the religious instincts of the nds of persons reading the prospectus in I people, and which is, in fact, a readable outline of Church deciding as to whether they will or will not apply for law, the rights in Church property, and the legal poslShares.
tion of Nonconformists. Here it would appear that pro