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ordinary number of a Court of Appeal under the new system.
The Court of Appeal in Chancery, during the last Term, was, as Lord Selborne had contended, usually constituted of himself, the Lord Chancellor, and both the two Lords Justices, though once he sat with one of them, and the two Lord Justices also sat by themselves. The cases brought before the full Court of Appeal were chiefly company cases, and it is most, remarkable how large a proportion of Equity business belongs to that class of cases, especially contributory cases. The first case heard before the full court constituted by the Lord Chancellor and the two Lord Justices, was the case of the Bank of Hindustan, raised, as the Lord Chancellor observed, a question as to the power of companies to bind their shareholders, the importance of which may possibly extend much beyond the particular case and the particular company. The case had been in litigation at law and equity for a series of years, ever since 1866, and it afforded an illustration of the practical operation of our judicial system, with its separation of courts, and differences of jurisdiction, and consequent tendency to confusion and error. The case had arisen out of an arrangement between two companies as long ago as 1864, which gave rise to a suit in Equity. The late Vice-Chancellor Giffard gave a decision which was not followed by evidence, and was misunderstood by the courts of law, when further litigation ensued, and
court of law held the parties sued for calls not legally shareholders, and so not so liable to the calls (Bank of Hindustan v. Alison, 6 L. R. C. V. p. 54.) The decision in February, 1871, was affirmed in the Exchequer Chamber, ibid 222, and thereupon one of the parties applied to the late Vice-Chancellor Wickens to order the money he had already paid to be returned to him, and two other shareholders made similar applications. The late Vice-Chancellor Wickens, in June last, made the order in the latter two cases, and Lord Justice James, sitting for him, made a similar order in the other case, that of Alison. The company appealed, and the appeal was now argued. The court, without hearing counsel
on the part of Alison, decided in his favour, on the ground that the company having sued at law were bound by the decision, but in the other two cases they decided in favour of the company, holding them liable, as contributaries, and reversing the order of the Vice-Chancellor. The Lord Chancellor, in an elaborate judgment, declared that the court did not deem themselves bound by the decision of the Court of Error, as it proceeded on an incorrect statement of the effect of the decision of Vice-Chancellor Giffard, and that the Court considered the new shares were legally created (case of the Hindustan Bank). Two other appeals in contributory cases were heard and decided by the Lord Chancellor and the two Lords Justices. In one case, that of the Metropolitan Carriage Company, the Court held, reversing an order of the late Vice-Chancellor, that an assent by a person, at the instance of one of the promoters to act as a director, on a promise by the promoter to give him the necessary qualification, did not make it requisite that any contract should be entered into with the company, as he might obtain shares in some manner, , not of necessity as their original holder : that it could not be inferred from the mere fact that he assented to his appointment as director, that he had entered into a contract with the company to take the amount of shares necessary for his qualification : and that the evidence went to show that he intended to qualify himself by the shares which were actually registered to his name and allotted to him as nominee (Brown's Case). The Master of the Rolls had a few days ago held otherwise in the case of one of the original promoters, who were bound by the Act to have as a qualification a certain number of shares held in his own right (The Wiltshire Railway Company : Seymour's Case). In another similar case, the full Court of Appeal held that money due from the company might be set off against the sum due on the shares the directors was bound to take, that being the obvious intention of the parties (The Matlock and Bath Hydropathic Company : Maynard's Case).
The Lord Chancellor sat, with Lord Justice Mellish, as Court of Appeal in Bankruptcy, and set aside two orders. made by Registrars sitting as Chief Judge, a practice more than once animadverted upon by the Judges of Appeal. In one of these cases the debtor, after a deed of inspectorship, which provided that his estate should be administered as in bankruptcy, received a large sum of money coming to him under an agreement to which he was not a party, and " which vested in him" (the court said) “no right either at law or equity.” The registrar held the creditor entitled to the money, either as an interest vested in him at the time of the deed, or as a future interest; but the Court held that on neither ground were the creditors entitled, the deed being in the ordinary form, merely vesting his estate and effects, i.e., as they thought, his existing estate and effects. (Ex parte Perry). In the other case a banker had remitted a bill by post, and after it was posted, and before it was sent out, finding that the consideration failed, he applied to the post office to obtain it back, and would have obtained it but for a mistake by a clerk, in consequence of which it reached the remittee, who failed next day. The registrar refused to order his assignees to return the bill; the Court held that it ought to be returned for, said the Lord Chancellor, there was a power, and an intention to reclaim the letter, and everything that could be done was done to reclaim it. And Lord Justice Mellish concurred. “The property in the bill was not changed merely by writing an endorsement on it and by an inchoate act of delivery; until actual delivery it could be recalled.” (Ex parte Cote). Many cases at law support this view. See Marston v. Hall, 8 M. and W.
A remarkable case arose under the Church Discipline Act, which came before the Court of Chancery, on an application for a prohibition against the Bishop, illustrating more than one part of our judicial system. The Bishop had issued a commission, at the instance of a layman, though a caveat had been filed in the Consistory Court and without hearing the opponent, who opposed on the ground of some objection to the fitness of the promoter. Term was over, and the Courts of Law were not sitting, so the application for a writ of prohibition was made to the Court of Chancery, which is always open, and whose sittings are not suspended by the antiquated absurdities of Terms. The application was made to one of the Vice-Chancellors (Bacon), who dismissed it as entirely untenable. The next day an appeal motion was heard before the Lord Chancellor and Lord Justice Mellish, a striking illustration of the speed with which appeals can be heard in Chancery owing to the constitution of its judicature in two distinct orders, original and appellate, and the continuing of its sittings. The Court without hesitation adopted the view of the Vice-Chancellor that the Bishop was not bound to hear the opposition, and they dismissed the petition of appeal. (Ex parte the Rev. John Edwards, Vicar of Prestbury, Gloucestershire.) Accordingly the Commission sat, and found that there were sufficient grounds for a proceeding, for some alleged ecclesiastical irregularity in violation of the rubrics. There can be no doubt that there will be a great many more of these proceedings promoted by laymen disposed to quarrel with their incumbents, and that there will be a vast deal of ecclesiastical litigation of this kind.
Before the Lords Justices of Appeal, a case occurred in which there was an excellent illustration of the application of the power of viva voce cross-examination. The question was as to the right of a partner to keep property claimed by bankers under a mortgage by the partner for his separate debt. Their written answer declared that they had knowledge that the property was partnership property, a fact on which the question of priority depended. The Vice-Chancellor had held that they were not affected with knowledge, and that, therefore, they were entitled to priority. The Lords Justices had them orally examined before the court, and they then admitted that they knew at the time of the mortgage that the premises were in the occupation of the partnership and that the business was carried on there. And the Lords Justices were of opinion that this evidence displaced the grounds of the Vice-Chancellor's decision, because the bankers had notice of a fact which should have put them on inquiry, and that they were, therefore, entitled to priority, so they reversed the decision (Cavander v. Bulteel). A case occurred which will be a "leading case” on the legal effect of lunacy and in which Lord Justice James delivered a masterly judgment containing a copious and interesting exposition of the law on the subject. A bill had been filed in the name of a person of unsound mind, not so found by inquisition, by a person professing to be his next friend, but really appointed by the solicitor who filed the bill, and which was filed really on behalf of a person accountable to the estate, and against whom the bill was filed, in order to have the accounts taken, and so obtain his discharge. After a decree thus obtained, there was a petition in lunacy, and when the committee was appointed, he discovered the proceedings in the suit, and a petition was presented by him to have them set aside, and though the Vice-Chancellor made only a modified order, the Lord Justices held the whole proceedings, beyond the mere appointment of a receiver, irregular and improper, and set them aside (Beall v. Smith).
Many important points of procedure have been illustrated and mooted before the Chancery judges, in the course of the recent sittings. The Lords Justices, as already mentioned, tested the benefits of oral examination in open court on a question of disputed fact. ViceChancellor Bacon declined to send to a jury a claim of damages for breach of contract, saying that the ordinary practice of the court was sufficient, and that there was no reason or necessity for invoking the aid of a jury nor any need of stopping the usual business of the court by hearing evidence vivá voce (re Lafitte and Co., December 6). ViceChancellor Malins took a similar course in a case in which, though there was a question of fact, it did not appear to require trial by jury. The Master of the Rolls described a large class of cases in equity, when he said that in the case