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before him there was no controversy as to the facts of the case, and the mass of evidence which had been filed on both sides went only to the opinions of the witnesses and their inferences from the facts (Attorney-General v. Terry, December II). In another case, however, in which the question was as to nuisance arising from a steam engine, witnesses were examined vivá voce. His Honour took notes of the evidence so far as he thought it material, and said he should be prepared to send his notes, if necessary, to a court of appeal (Beasley v. Brierly, December 16). Thus, the Equity judges in fitting cases have no difficulty in hearing a case on vivá voce evidence, as the judge in the Court of Probate and Divorce does, without the delay and incumbrance of a jury; while, at the same time they perfectly well know that there are cases which require a trial by jury, though they also know that in equity these are comparatively rare. Sir George Jessel, the new Master of the Rolls, took his seat the first day of Term. Many company cases came before him, chiefly contributory cases, or applications to wind up. In one of these, three Shareholders’ petitions had been presented for winding up the Company, which was already in voluntary liquidation, and His Honour, in deference to the wishes of the majority, made an order for winding up under supervision. (The Australian Agency Corporation.) In another case, His Honour, on the authority of a similar case before the Lord-Chancellor (in the New Zealand Company, 21, Weekly Reporter, 782 made an order to take the names of applicants out of the register, on the ground that the shares were not duly issued, in consequence of an omission to file contract with the Registrar. (Harwood's Machine Company Works.) In the case of a Company's above act, required that the original Directors should each possess in his own right in certain number of shares as a qualification, his Honour held that they were not satisfied by merely nominally taking paid up shares issued gratuitously, but that they each must take so many unpaid shares, and that they were liable to calls thereon as Shareholders. (The Wiltshire Railway Company, Seymour's case.) In a case where he was asked to restrain a railway company from entering in possession of land they had taken under notice to treat, which had not been carried out and which it was insisted, had dropped, as their compulsory powers had expired, and the capital had not really been subscribed, though there was the certificate of it required by statute —
“The Master of the Rolls said it was settled that the Court had jurisdiction to restrain a company from misusing Parliamentary powers, but ought not to exercise its jurisdiction except in a very clear case, as there was a remedy at law by action of trespass or ejectment. The question, therefore, was whether it was very clearly shown that the company had exceeded their powers, and in this case, as the time had been extended under a new Act, he thought it was not shown, and as to the capital, the certificate, apart from fraud, was conclusive.” (The Iron Company v. the Neath Railway Company.)
There was a case of the breach of an agreement to sell all the coal of a particular seam, in a coal mine in which, as the agreement was of such a nature that a decree for specific performance could not be made, the bill prayed for an injunction to restrain the defendants from supplying other persons with the coals. The defendants demurred to the bill, and the Master of the Rolls held that it could not be sustained, as it was a mere breach of contract, which could be compensated in damages, to be assessed by a jury, and he denied emphatically that for his part, he had never been able to understand why the court refused in certain cases to decree specific performance because an agreement was difficult to enforce, yet attempted to arrive at the same result, only in a roundabout manner, by granting an injunction. (Fothergill v. Rowlad.)
There were several cases illustrative of the equitable doctrine of trusts. One was as to the doctrine of what are called “resulting trusts,” that is, trusts failing, or voluntary, and revoked, and resulting in an implied trust for the real owner. The plaintiff had transferred stock into the names of himself and his mistress, and now filed a bill to compel her to join in a re-transfer, which she was decreed to do.
“The Master of the Rolls said he was obliged to give the plaintiff a decree. Probably, he had meant to make some provision for the defendant; but the law said, whatever common sense might say, that when a man transfers stock into the joint names of himself and his mistress, there was by implication a resulting trust in favour of himself. The evidence did not rebut this implication, and there must consequently be a decree for the plaintiff.”
In another case a man filed a bill to recover a sum of money which his deceased wife had deposited with the defendant, who at first denied it, and then said it was in gratitude or remuneration for kindness shown to her when she lodged in his house, but
“The Master of the Rolls said he could not, under all the circumstances, come to any other conclusion than that the defendant had constituted himself an express trustee of the sum in question. But even if he were a mere bailee, the refusal to account would give the court jurisdiction. The defendant's story that the lady gave the money to him as a present was uncorroborated and improbable. But whether the story were likely or not, the court would never allow a man, whether bailee or trustee, to discharge himself of an obligation by his unsupported oath after the death of the bailor or cestui que trust. There must be a decree for payment with interest.”—Fortune v. Thompson.
It is curious that twenty years ago there was an action at law by a husband under similar circumstances, and there also, he recovered, on the strictly legal ground that the money was legally his, and availment in law to his use.—Bird v. Pegrum 13 C. B. rep. 639. The cases cited there were both legal and equitable. The law and the equity are identical, and these cases appear to belong to that large class in which the legal and equitable jurisdiction are concurrent, and the equitable remedy was only resorted to on account of the advantage of a discovery—an advantage now equally attainable at law by interrogatory.
The Master of the Rolls decided an instructive case as to constructive notice of prior incumbrances and its consequent priority. A debtor had made an equitable mortgage to his bankers—that is a deposit of deeds—with an undertaking to execute a legal mortgage when called upon to do so. Afterwards he executed a legal settlement, and trustee, and cestui que trust had no actual notice of the deposit, but the attorney having asked after the deeds, was told they were deposited at the bank for safe custody, and made no further enquiry. The Master of the Rolls said it was a clear case of constructive notice. It was the duty of the solicitor to inquire at the bank respecting the deeds in their custody. Had he inquired, he would have learnt that the deeds were deposited there by way of equitable mortgage. There must, therefore, be a decree for the plaintiff. He had preferred deciding the case on the ground of constructive notice, but, if it had been necessary, he should have been disposed to hold that a man who enters into a contract to execute a legal mortgage when required, cannot squeeze out the other party by entering into another contract with a subsequent purchaser for value.—
Maxfield v. Buxton.
V.—THE CASE OF THE VIRGINIUS.
THE case of the Virginius was of equal interest in England
and America. The crew comprised English as well as American subjects, and English subjects were among those who were summarily executed. One would have thought the summary execution of men who were going to assist the insurgents would have raised a stronger feeling in this country than in any others, since we have always prided ourselves for our sympathy with those who are struggling for independence, and sympathizers have so often left our shores. Yet it is impossible not to have seen that the tone of public opinion was far more clear and prompt, and the tone of public feeling far stronger in America than in this country. Partly, this was, no doubt, owing to the superior knowledge of Americans in matters of international law. Thirty years ago Sir John Taylor Coleridge, in writing to Story, remarked that “the position of the Constitution of the United States forced the study of international law upon the Americans, and gave them a great advantage in that respect over lawyers in this country. The fact appears to be undoubted, and it was illustrated in the vague and erroneous ideas which were found to exist in this country as to piracy. There is a popular impression that those who aid the insurgents of other nations are pirates, and that being pirates they may be seized and summarily executed whenever they can be found. This impression is the result, partly of a reaction from former errors of an opposite character, and partly of the loose language of historical or political writers, of popular discussions, and parliamentary debates. At one time those who aided foreign insurgents were considered as heroes who assisted patriots, but in our own times there has been a disposition to denounce them as pirates. Such volunteers are not necessarily heroes, but neither are they necessarily adventurers, pirates, or buccaneers. It depends upon circumstances whether they approach more nearly to the one kind of character or the other. However pure their motives may be it does not follow that their conduct is laudable or even lawful; but there are many degrees of culpability, and the character of there acts turns solely on the motives and object. If the object is political, then, though the act is unlawful, yet it is not piratical. But if the object is piratical, then, and not otherwise, the act is piracy. But piracy is robbery, It is robbery on the high seas, and the object of robbery is personal gain and plunder. Therefore, it is only those who make political sympathies the cloak and cover for personal plunder, who are guilty of piracy, or can be treated as pirates. And even as to these, they are as much entitled to trial as other robbers, and men can no more be summarily executed on the charge of piracy, than robbery, neither can criminals be captured by one nation in the territory of another, nor in the ships of another nation, or on the high seas. This has long been a settled principle of international law. In general, as Vattel lays down, the criminal justice of each nation ought in general to be con