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Ford, William James, and James King, Leicester, Hosiery Manufacturers. Feb 1 at 3 at office of Owston, Friar lane, Leicester Gibson, John, Leek, Staffordshire, Grocer. st, Leek

Jan 30 at 11 at office of Challiner, Derby

Goodman, William Henry, Ramsgate, Kent, Builder. Feb 6 at 3 at Bull and George Hotel, Ramsgate. Edwards, Ramsgate

Green, William Henry, Drummond rd, Bermondsey Surrey, Licensed Victualler. Feb 8 at 2 at offices of Ladbury, Queen st, Cheapside

Hammond, James, Tunstall, Stafford, Boot and Shoe Dealer. Jan 28 at 11 at offices of Hollingshead and Moody, Tunstall

Harrison, Owen, Ebury st, Eaton sq, Butcher. Jan 27 at 3 at offices of Godfrey, South sq, Gray's inn'

Hart, Moses Abraham, Sutherland gardens, Maida Vale, Commission Agent. Jan 26 at 2 at offices of Leslie and Fenwick, Conduit st, Bond st

Hayhoe, Edward, Balham, Streatham, Surrey, Builder. Jan 30 at 3 at offices of Saunders and Co, King st, Cheapside

Hillary, John, Tottington, Lancaster, Licensed Victualler. Jan 30 at 3 at offices of Haslam, Market st, Bury

Hind, William, Leicester, Boot and Shoe Manufacturer. Feb 1 at 12 at offices of Harvey Selborne bldgs, Milstone lane

Hedge, George, sen, Luton, Bedford, Builder. Jan 27 at 11 at Park st, West Luton. Ewen and Roberts, West Luton

Holland, John Coxon, sen, and John Coxon Holland, jun, Macclesfield, Coal, Salt, and Stone Merchants. Jan 30 at 3 at offices of Barclay and Henstick, Exchange chmbrs, Macclesfield

Holloway, Thomas William, Bridport place. Hoxton, Builder. Jan 30 at 3 at offices of Warburton and De Paula, West st, Finsbury circus

Houghton, Thomas Marcus, and George Lawton, Imperial buildings, Ludgate circus, Builders. Jan 26 at 3 at offices of Preston and Co, Southampton bldgs, Chancery lane Isenberg, Jacob, Sussex pl, Leadenhall st, Boot and Shoe Dealer. Jan 30 at 3 at offices of Harte, Moorgate st

James, William, Barnes, Surrey, Bootmaker. Jan 30 at 3 at offices of Farman, Great James st, Bedford row

Johnson, Henry James, the Elms, Ramsgate, Kent, Schoolmaster. Feb 8 at 2 at offices of Sparkes, Harbour st, Ramsgate

Johnson, Joseph, Burscough, Lancaster, Apothecary. Jan 30 at 11 at offices of Brighouse and Brighouse, Ormskirk

Jones, Alfred, Bootle, Lancaster, Cement Manufacturer. Feb 1 at 3 at offices of Morris and Jones, Dale st, Liverpool

Jones, John, Calne, Wilts, Upholsterer. Feb 2 at 12 at the Lansdowne Arms Hotel, Calne. Henly, Calne

Jackson, Thomas, Eaton, Nottingham, Farmer.

Co, the Square, East Retford

Jan 30 at 12 at offices of Newton and

Jones, Matthew, New Swindon, Wilts, Auctioneer. Albion bldgs, New Swindon

Lambert, Richard Mullins, Hastings, Sussex, Builder. port and Co, Bank bldgs, Hastings

Jan 30 at 11 at offices of Boodle,

Jan 30 at 12 at offices of Daven

Laycock, Thomas, Bradford, York, Grocer. Jan 30 at 12 at office of Morris, Ivegate, Bradford

Lee, Thomas, Manchester, Chemist. Feb 2 at 3 at offices of Brett and Craven, Kennedy st, Manchester

Lovegrove, John Way, Wells, Hairdresser. Jan 30 at 12 at office of Collins, Priory House, Wells. Woodforde, Clevedon

Lucraft, George Thomas, Almorah rd, Islington, Chair Frame Maker. Jan 23 at 10 at offices of Shakespear, Budge row, Cannon st

Marley, Samuel Hitchin, Manchester, Home Trade Merchant. Jan 31 at 3 at Mitre Hotel,
Cathedral yd, Manchester. Atkinson and Co, Manchester

Marshall, John, Kingston-upon-Hull, Yeast Importer. Jan 30 at 3 at the hall of the
Hull Incorporated Law Society, Lincoln's inn bldgs, Kingston-upon-Hull. Summers,
Hull
Matthews, Eli, Moor lane, Fore st, Wholesale Grocer. Feb 2 at 2 at 6, Arthur st East.
Carter and Bell, Eastcheap

Midgley, James, Cheapside, Commission Agent. Jan 27 at 3 at 19, Gresham st. Micklem, jun

Midgley, Joseph, Walkley, Sheffield, Bookkeeper. Jan 27 at 1 at office of Mellor, Queen st, Sheffield

Michael, Joseph Jacob, Portobello rd, Notting hill, Timber Merchant. Jan 31 at 2 at 83, Gresham st. Poole, Bartholomew lane

Miller, Edward, Leather lane, Holborn, Pawnbroker. Feb 28 at 1 at office of Forbes, Paternoster row

Moore, George, Crawcrook Mill, Durham, Farmer. Jan 27 at offices of Law Society, Royal arcade, Newcastle-on-Tyne. Jolliffe, Newcastle-on-Tyne

Morriss, John, Goole, York, out of business. Jan 30 at 2 at offices of Hind and Everatt, Goole

Mortlock, George Abraham, Kingston-upon-Hull, Oyster Merchant. Jan 27 at 12 at offices of Torry, Cogan's chmbrs, Bowlalley lane, Kingston-upon-Hull

Oddy, Sam Lodge, Huddersfield, York, Licensed Victualler. Jan 28 at 11 at offices of Barker and Co, Estate bldgs, Huddersfield

Palmer, Edmund, Westbromwich, Stafford, Carpenter. Jan 30 at 4 at offices of Forrest, Church st. Oldbury

Papworth, Elijah, Harrogate, York, Milliner. Jan 27 at 3 at offices of Bointon, Old Bank chmbrs, Leeds

Peat, Robert, Onecoat, near Leek, Stafford, Schoolmaster. Jan 28 at 11 at 59, Stockwell st, Leek. Redfern, Leek

Peirson, James, Goodramgate, York, Sewing Machine Agent. Feb 1 at 1 at offices of Wilkinson, St Helen's sq, York

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Charities on Special Terms by the Sole Proprietors, H. SCHWEITZER & CO 10, Adam-street, London, W.C.

Poulton, John, Clarendon pl, Clarendon sq, Builder and Decorator. Jan 26 at 2 at offices
of Bishop, Serjeant's inn, Chancery lane. Freston and Co, Euston rd
Jan 30 at 3 at offices of
Price, Arthur Henry, Rochdale, Lancaster, General Draper.
Molesworth, Central chmbrs, the Walk, Rochdale
Pye, George, Barnsley, York, Shoemaker. Jan 30 at 10 at offices of Gray, Eastgate,
Barnsley

Render, James, South Bank, York, Grocer. Jan 30 at 11 at offices of Robson, Linthorpe rd, Middlesborough

Rogerson, Joseph, Hemingby, Lincoln, Farmer. Jan 30 at 12 at offices of Weller and
Sons, Horncastle
Robinson, Thomas, West Sunderland, Durham, Grocers' Outfitter. Feb, 2 at 11 at offices
of Alcock and Routledge, Frederick Lodge, St Thomas st, Sunderland
Rowe, Francis Henry, St Stephen's rd, North Bow, Baker. Jan 21 at 11 at Unicorn
Tavern, Vivian rd, Roman rd, Old Ford. Hicks, Grove rd, Victoria park
Russell, William, Hoddesdon, Hertford, Provision Dealer. Feb 6 at 11 at the Salisbury
Arms Hotel, Fore st, Hertford. Gisby and Son

Sandy, Thomas, Redfield, Gloucester, Grocer. Jan 30 at 2 at offices of Sibly, Exchange
West, Bristol

Sears, Michael Linfold, Manca, Cambridge, Farmer. Jan 30 at 1 at Lion Hotel, Cambridge. Welchman and Carrick, Wisbech

Scaife, John, Brackenburgh Tower, Plumpton, Cumberland, Farmer. Jan 26 at 2 at offices of Scott, King st, Penrith

Smith, Thomas, Bath, Oil and Colour Merchant. Jan 31 at 12 at offices of Tucker, Northgate st, Bath

Spensley. William, West Hartlepool, Durham, Grocer. Jan 27 at 3 at Stein's Crystal Bar Hotel, West Hartlepool, Thomas, Stockton-on-Tees

Stevens, Henry, Lower Tooting, Surrey, Builder. Jan 30 at 11 at offices of Rexworthy and Co, Cheapside Thaege, Oscar, and Gustav Schwegler, Jewin cres, Jewin st, Dealer in Fancy Baskets. Feb 3 at 3 at offices of Goldberg and Langdon, Finsbury circus Thomas, Joseph, Venny, Llangennech, Carmarthen, Farmer. Feb 2 at 3 at 3, Dulais ter, Pontardulais. Thomas, Swansea

Thompson, Frederick, Gt St Helens, Shipbroker's Clerk. Jan 19 at 2 at Guildhall Tavern, King st, Cheapside. Turner and Co, Bedford sq

Vann, Joseph, Leicester, Stone Mason. Jan 31 at 3 at offices of Buckby, Gallowtree gate, Leicester

Vann, Mary, Nailsworth, Gloucester, Draper. Jan 31 at 3 at offices of Witchell, Lansdown, Stroud

Wadham, John Samuel, Dockhead, Surrey, Clothier. Feb 1 at 2 at offices of Smith, Walbrook. Norton, Queen st, Cheapside

Walsh, Philip Joseph, Wolverhampton, Manager of Tank Works. Feb 1 at 11 at offices of Higgs, Queen st, Wolverhampton

Wallack, Ernest Townsend, Parliament st, Westminster, Wine Merchant. Jan 31 at 2 at offices of Thompson and Co, Cornhill

Walton, William Edwin James, Stroud green, Finsbury pk, Islington, Fishmonger.
Jan 20 at 11 at Crown Tavern, Clerkenwell green. Bassett, East Dulwich
Ward, Thomas, Ulverston, Lancaster, Clogger. Jan 20 at 11 at Temperance Hall,
Ulverston. Pearson, Ulverston

Ward, William, Dawley, Salop, Fitter. Jan 31 at 12 at offices of Knowles, Welington,
Salop

Wardle, John, Derby, Cattle Dealer. Feb 3 at 3 at offices of Wilkins, High st, Utt

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CURRENT TOPICS.

LONDON, JANUARY 28, 1882.

THE GENERAL ORDER to be made under the Solicitors' Remuneration Act has been drafted, and sent for perusal and suggestion to the Council of the Incorporated Law Society and certain officers of the court.

MR. R. H. LEACH, the Senior Registrar of the Chancery Division, has resigned his post owing to ill health. Mr. LEACH commenced his official connection with the Court of Chancery about fifty years ago,

WE PRINT elsewhere an order for the transfer of forty-one causes from the list of Vice-Chancellor HALL to that of Mr. Justice KAY for the purpose only of trial or hearing.

THERE APPEARS TO BE NO PROBABILITY that the anticipations entertained of the completion of the Royal Courts of Justice by Easter will be realized, but it is now hoped that by November 2nd next, when the new legal year begins, the building will be ready for occupation.

VICE-CHANCELLOR HALL has issued regulations, which will be found elsewhere, for the conduct of business in his chambers, particularly with reference to cases in which counsel appear. The provision that the parties in two cases only will be allowed to be in the room at the same time will be an unquestionable improvement.

NOW THAT the Council of the Incorporated Law Society have before them the draft order to be made under the Solicitors' Remuneration Act, the question will, doubtless, have been considered whether steps should be taken to elicit the general opinion of the members of the society on the provisions of the order. There is nothing in section 3 of the Act to prevent this course from being adopted, for it is merely provided that " one month at least before any such general order shall be made, the Lord Chancellor shall cause a copy of the regulations and provisions proposed to be embodied therein to be communicated in writing to the council, who shall be at liberty to submit such observations and suggestions in writing as they may think fit to offer thereon." Even if the draft has been confidentially communicated, there is no reason why the council should not endeavour to ascertain the opinion as to what would be a proper scale of remuneration of the great body of persons who will be affected by the important and altogether exceptional duty which they have now to perform. There are, on the other hand, strong reasons why this course should be adopted. The heavy responsibility of the council will be lightened, and their suggestions or remonstrances cannot fail to possess greater weight when it is known that they represent the opinion of solicitors in general, and not of a few gentlemen who, however able and eminent they may be, know little of the smaller class of conveyancing work. The course pursued with regard to the recommendations of the Legal Procedure Committee affords a precedent which might well be adopted on the present occasion. If this is considered undesirable, there ought at least to be sent to each member of the society a circular, stating in general terms the scale proposed by the council, so as to give solicitors an opportunity of communicating their observations there

on. Of course, if the council are so satisfied with the provisions of the draft order that they feel certain it will be hailed with satisfaction by the profession, they may be right in keeping their counsel and reserving the intelligence until the matter is finally settled. But if what we hear is correct, we doubt whether solicitors in general will be very grateful to them for doing If the proposed order should afford very inadequate remuneration to solicitors in small transactions, the council will justly incur very heavy censure for failing to afford to the persons affected by it an opportunity of protesting before the order is made.

So.

THE COURSE taken by the judges on the present circuits with reference to the question of statements by counsel on behalf of prisoners does not tend to show that the consequences of the rule to which we referred last week had been very carefully considered. At the Worcester Assizes, Mr. Justice LOPES explained the meaning of the rule as being that " counsel, when defending prisoners, could no longer be permitted to make statements from instructions they had received which were not supported by facts adduced in evidence. The proper course for them to pursue was that which up to recent times had been invariably adopted-namely, to give an explanation that might be suggested by way of hypothesis." If this is all the rule means, then we venture to think, with all deference, that a more absurd doctrine was never devised. Counsel may not say to the jury, "Gentlemen, this is the prisoner's account of the matter," but he may say, "Gentlemen, you know the prisoner's mouth is closed, and I am not allowed to state directly what is his version of the facts. I can only state it by way of hypothesis, and this is the hypothesis I am going to lay before you." If this were not the practical result of the deliberations of a score of learned judges, we should call it childish. Lord COLERIDGE, the chief mover in the matter, appears to have been so impressed with the hardship of keeping the prisoner's statement from the jury that he allowed the prisoner himself to make his statement after the speech by his counsel. This is in accordance with the practice adopted by Mr. Justice HAWKINS, with the concurrence of Mr. Justice LUSH, at the Leeds Assizes in February, 1880, when the learned judge said that though there are dicta of individual judges to be found in the books that a prisoner, when defended by counsel, is not at liberty to make a statement to the jury, I ought not to be bound by any such dicta because there is no decision of any court of criminal appeal on the point." But if this course is to be adopted, what becomes of the solemn remarks of Mr. Justice NORTH about "statements which could not be proved by competent witnesses"?

66

WHEN TWO MEN, sentenced to penal servitude upon the unsupported evidence of one man alone, were discovered to be innocent merely on the accidental confession of that one man, it was to be expected that some demand should be raised for the introduction of the rule of plurality of witnesses into English law, and Sir GEORGE BOWYER very naturally steps forward as the champion of the civilians. The history of the maxim, "unius omnino testis responsio non audiatur" (Cod. lib. 4, tit. 20, 1. 9, s. 1), is very curious. It seems to be derived from the supposed authority of various passages, both in the Old and New Testament (see, e.g., Numbers xxxv. 30, Matt. xviii. 15, 16), which no doubt require a plurality of witnesses for the support of capital charges, and which were erroneously construed to require the testimony of more than one witness in all judicial proceedings. See, for instance, Decretal Gregor. ix., lib. 2, tit. 20, c. 23, which requires such testimony (only, however, in certain specified cases), "juxta illud Dominicum, In ore duorum vel trium testium stet omne verbum,'" and for an attempt to introduce the rule upon

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similar authority in England, see Sir Walter Raleigh's requested to show it, he did so, but refused to have it clipped. case (2 Ho. St. Tr. 15); R. V. Vaughan (2 Ho. He was then "ordered to return outside the barrier," and the St. Tr. 535). It has been shown, moreover, that the train started without him. Mr. Commissioner KERR is reported lawyers of ancient Rome did not establish the rule, but that it to have ruled that the bye-law requiring a passenger to deliver up was the production of the lower empire, "C'est au Bas Empire his ticket "for any purpose was "a salutary and not an q'appartient l'introduction de la maxime, "testis unus testis unreasonable one, and one that all reasonable-thinking men would nullus,"" says Bonnier (Traité des Preuves, s. 201). Even in submit to," and he gave judgment for the defendants, with costs. this country we have adopted the rule, in no less than five cases: in This decision appears to us to go a good deal further than was the case of a trial for perjury or treason; in the case of an action contemplated by the framers of the bye-law. It is one thing to for breach of promise of marriage (in which, however, the old refuse to permit a passenger to pass the barrier unless he allows law was that the plaintiff could not be a witness at all); in the his ticket to be clipped, but when he has once reached the platcase of an application for an affiliation order, and, lastly, in the well- form, having admittedly paid his fare and duly taken his ticket, known case of the attestation of a will. We have also practically most "reasonable-thinking men" would consider it a strange adopted the rule by rejecting the unsupported evidence of an accom- construction of the bye-law to hold that it justifies expelling him. plice, though such evidence is legally admissible. But should from the platform and forbidding him from entering the train. these exceptions (for all of which there are good and obvious reasons) be extended? We answer without hesitation, No. We cannot describe the evils of the "unus nullus" rule better than they are described in Best on Evidence, book 3, pt. 2, ch. 10 (from a learned note to which we have abstracted what we have said about the origin of the rule). "It offers a premium to crime and dishonesty, by telling the murderer and the felon that they may exercise their trade, and the knave that he may practise his fraud, with impunity in the presence of any one person. 2. Artificial rules of this kind hold out a temptation to the subornation of perjury, in order to obtain the means of complying with them. 3. Such rules produce a mischievous effect on the tribunal, by their natural tendency to re-act on the human mind, and they thus create a species of mechanical decision, dependent on the number of proofs, and regardless of their weight." We must face the possibility of the recurrence of a case like Brooks's, which is of far too infrequent occurrence to justify the alteration of the law.

WE LAST WEEK printed a letter upon the effect of section 71 of the Conveyancing Act, which repeals a part of Lord CRANWORTH'S Act, upon the rights and powers of mortgagees who have silently relied upon the repealed Act in their mortgage deeds. The qualifications of our eminent correspondent, Mr. A. J. WooD, to speak with authority upon such a question, are well known. We own that we were not convinced by his arguments, and that we could not help having a very low opinion of a cause for which such eminent talents and acquirements could, as it seemed to us, do so very little. The powers given by Lord CRANWORTH'S Act to the mortgagee are, apart from the Act, no more "a consequence" of the "instrument" than a power to create baronets of Nova Scotia is a consequence of the instrument. On the repeal of the Act, these powers simply cease with it, unless they are kept alive by a substantive new enactment in the shape of a saving clause, and we are constrained to repeat our opinion, that section 71 of the Conveyancing Act is, in this respect and for this purpose, the least satisfactory specimen of its kind with which we have any acquaintance. We print this week a letter from Mr. CLERKE, but we are sorry not to be able to discern any great importance in the distinction taken by him, that the powers conferred by Lord CRANWORTH'S Act are conferred on a person. The question, as we understood it, was about the source from which the person derived his powers. This question seemed to suggest a difficulty in the way of the persons's retaining the powers when the source of them is dried up. Our objectlon was that, in the case under consideration, the powers are conferred upon the person by the Act, and not by the instrument, and that they cannot be styled consequences of the instrument except in some remote sense which we thought too vague for the severely precise purposes of an important statute.

THE "TICKET-CLIPPING" CONTROVERSY between the railway companies and their passengers has been shifted from the police courts to the City of London Court. A passenger sued the Great Eastern Railway Company for an assault, and for damages caused by losing his train, under the following circumstances:-The plaintiff passed through the barrier at the Liverpool-street Station without being asked for his ticket, but being afterwards

A CORRESPONDENT SAYS:-"Your somewhat destructive criticism of the Conveyancing Act must have depressed the (apparently) too hopeful spirits of many amongst your readers, but your article on payment of purchase money is the 'last straw.' The provision on which you there comment seemed to me, and I suppose to others, convenient and useful. But if your two propositions are sound, the section might (for practical purposes) as well never have existed. With your first point I do not care to quarrel; but surely, as regards the second, it would be a question of bona fides. A banker's draft or a genuine cheque is surely money' within the meaning of the Act, the purpose of which in this instance is evidently (I submit) to relieve both parties of an extra formality, leaving matters in other respects as they were before. In small transactions between solicitors known to each other-favourably known, of course, I mean-it is as common as it is convenient to pay and receive by cheque, and it is just in small transactions that formalities are burdensome. I respectfully beg you to reconsider this point." We have reconsidered the point-which we may add for the information of our correspondent was not an objection started by ourselves, but had been some time before mooted among solicitors anxious to avail themselves of the Conveyancing Act—and we remain of the opinion before expressed. Section 56 gives a certain authority on certain conditions. What is the authority? To pay "consideration money" to a solicitor. If a cheque is money, then cadit quæstio; but is our correspondent, on reconsideration, really clear that a cheque can properly be described as money, or that the courts will hold that the Legislature intended to give the purchaser authority to pay his consideration by any cheque the vendor's solicitor may think fit to accept? If he is not clear on these points, then he will admit that we were right in advising that, until the point is settled by decision, payment under the statutory authority should be made by bank notes.

two practices as to the depositions sent to the judges through the clerks At the recent Maidstone Assizes, Mr. Justice Grove strongly condemned of assize in criminal cases, one being that original documents (as certificates of marriage, &c.), were unnecessarily sent at the risk of their being lost, and the other being that the dates of matters spoken to by the witnesses were not given, otherwise than circuitously and indirectly ("last Tuesday," &.), thus throwing on the judge great additional trouble and loss of time in continually referring backwards to see what was the date of the conversation

or occurrence spoken to.

ampton, on the 20th inst., a new point of practice arose.
In a case of Reg. v. Taylor, before Lord Justice Baggallay, at North-
Mr. Etherington
Smith had, at Bedford, applied to his lordship for directions as to the at end-
ance of witnesses. The prisoner was committed to these assizes on a charge
of burglary in a workhouse. Since the committal, smallpox had broken out
in the workhouse, and the witnesses, who could perfectly well travel with-
out danger to their own health, could not be called without danger to the
public. His lordship, after consultation with Sir Henry Hawkins, had ini-
could not attend without endangering the public health, to postpone the
mated that he should be ready, upon a medical certificate that the witnesses
trial, although no bill had yet been laid before the grand jury. Mr. Arthur
Denman now renewed the application upon the medical certificate proper'y
verified. His lordship ordered the prisoner to be placed in the dock and ex-
plained to him the reasons why he could not be tried at this assize.
fordship added that any application the prisoner wished to make for release

from custody on bail would be favourably considered.

His

REMOTENESS OF DAMAGES.

THE question whether damages are too remote is frequently one
of the most difficult questions of law that can arise. It is almost
impossible to deduce from the various cases a scientific principle
by which to determine what damages are recoverable and what
on the other hand, are too remote. The case of Macmahon
v. Field (L. R. 7 Q. B. D. 591), recently decided by the Court
of Appeal, does not contribute much assistance towards the solu-
tion of the problem, inasmuch as the judges who decided the case,
under hardly distinguishable circumstances, came to a directly
contrary conclusion to that arrived at by the judges of the Court
of Queen's Bench in the case of Hobbs v. London and South-
Western Railway Company (L. R. 10 Q. B. 111). In the last-
mentioned case, in consequence of the train not stopping at the
place to which the company had agreed to carry a passenger,
she was obliged to walk home on a wet night from a distant place,
there being no accommodation or means of conveyance to be
obtained there. The passenger, in consequence, caught cold, and
it was held that the damage so incurred was too remote. In
Macmahon v. Field, in consequence of the defendant's letting
stables which he had contracted to let to the plaintiff to another
person, the plaintiff's horses, after they had been put into the
defendant's stables, were turned out of the defendant's stables
without their clothing, and remained in the defendant's yard
exposed to the weather until the plaintiff could find suitable
stables for them elsewhere. Owing to this exposure several of the
horses caught cold, and were deteriorated in value.
It was
held that the damage so occasioned to the plaintiff was not too

remote.

ants broke their contract by not admitting a ship into their dock,
and the question was whether the ship's being wrecked was the
natural consequence of the breach of contract. The judges of the
Court of Appeal seem to have thought Hobbs v. The South-
Western Railway Company only just distinguishable, and they
certainly expressed considerable dissatisfaction with the decision in
that case, so that it is not easy to determine whether it is still to
be regarded as an authority. It seems to us extremely difficult to
treat these questions of the comparative probability of consequences
of a breach of contract as questions of law. The general proposi-
tion can only be laid down in very wide terms; but the question
is really one of degree, and some cases are obviously on one side
or the other of the line, while there will be other cases extremely
difficult to determine. Brett, L.J., seems to have thought that
these questions are of a character more appropriately to be solved
by a jury as questions of fact than by a judge as questions of law.
In this we are disposed to agree as a matter of theory, but as in
the case of negligence, the difficulty is that juries cannot be trusted
to determine these questions, especially as between companies or
smaller means who have suffered injuries.
persons who they think can well afford to pay, and persons of
Their decisions
on the same circumstances as between different parties would be
very uncertain and fluctuating, from the operation of the same
sort of motive that frequently induces the small retail shopkeeper
to vary his prices according to the status of the purchaser.

BANKRUPTCY LAW REFORM.
[COMMUNICATED.]
IX.

Clause 58 relates to adjudication in case of an absent or lunatic

member of a firm, and we print it at length :

against a member or members of a firm, and any other member of the same
"Clause 58.—(1.) Where an adjudication of bankruptcy has been made
firm is out of England or of unsound mind (whether so found by inqui
sition or not), the High Court of Justice shall have jurisdiction, after giving
the prescribed notices, and without adjudging him a bankrupt, and on
proof to the satisfaction of the court that the firm are [sic] unable to pay
their [sic] debts as they become due, to make an order in bankruptcy for
of the members of the firm.
the administration according to the law of bankruptcy of the joint property

There is so strong a resemblance between the facts of these two cases that it is extremely difficult to reconcile the two deci- THE clauses of the Government Bankruptcy Bill included under the sions. The decision in Hobbs v. London and South-Western Rail- general heading "Supplemental," and numbered 57 to 67, contain a way Company seems to have been based upon the ground that it number of proposals upon various subjects, many of which have been could not be considered as the probable result of the company's debated and advocated in very influential quarters, and it is important breach of contract that the passenger should catch cold. The that they should be examined somewhat closely in order that their full effect may be understood, and so that what at first may appear judges in Macmahon v. Field seem to distinguish the case on the to be improvements may not, from defect in wording or absence of ground that the horses were more likely to catch cold on being details, be really worse than the present system which they are designed turned out of the stable than the passenger on being obliged to improve. With this object we criticized in our last paper the first of to walk home a long distance on a wet night. This those clauses (57), relating to the administration of estates of insolvent comparison of probabilities is a very delicate matter. Every-deceased persons, and we will now proceed with the other clauses in thing that happens is, in a scientific sense, the inevitable result of their numerical order. the antecedent circumstances; but no doubt the consequences are in some cases antecedently more obviously necessary or probable than in others. If a collision occurs it is extremely probable a passenger will be injured. But if a passenger is carried to the wrong place it is by no means so obvious that he will probably catch cold. One person may catch cold where another will not. It depends on a great variety of circumstances-for instance, on the constitution of the person, the distance he has to go, the state of the weather, the thickness or thinness of his boots or coat, and other circumstances. Again, the results of a cold differ greatly in different cases: one man may catch his death, another may only have the inconvenience of a severe bout of sneezing and sniffing. Suppose the passenger gets inflammation of the lungs and dies in consequence, surely that consequence would be too remote; it would be a strong thing to say that a probable consequence of the passenger's being carried beyond his proper station is that he will die. Suppose that he was laid up for a very long time and his constitution permanently injured, how would the case stand then? Can it be said to be the natural consequence of a man being taken to a more distant station than he bargained for, that he should contract pneumonia and be seriously injured for life? The mischief must depend on other concurrent circumstances besides the company's default--viz., the absence of accommodation and means of conveyance at the place to which the passenger is taken-of which circumstances the company would probably not be aware. On the other hand, it cannot be said to be exactly an extraordinary and unprecedented result that the passenger should catch cold, and it seems difficult to say that the passenger ought to recover in respect of a slight cold, but not in respect of a severe one.

A somewhat similar point arose in the case of Wilson v. The Newport Dock Company (L. R. 1 Ex. 177), in which the defend

"(2.) On the order being made, the property of the firm shall vest and be administered as if a bankruptcy petition had been presented and an order of adjudication made in the first instance against all the members of

the firm."

be applied also to cases of members
of firms being minors. Upon the
subject of the non-liability of a minor who has contracted debts as a
trader-or rather, to be strictly correct, of a minor carrying on trade
and who has obtained goods on credit in the way of such trade-to be
made bankrupt, we shall have something to say in some general
suggestions which we propose to make upon points not dealt with by the
Government Bill after we have concluded our remarks upon the various
clauses of that Bill; but, supposing no alteration to be made in the law
as to this, then, so far as this clause is concerned, we think it highly
desirable that the case of a member of a firm being a minor (and we
have experienced such cases) should be provided for in the same way as
the cases of absent or lunatic members. Then it is the High Court of
Justice that is to have jurisdiction. Why should not the court having
jurisdiction in the bankruptcy be the court to make such an order?
That would be a much less expensive method than the other, and if the
county courts are deemed important enough to exercise ordinary juris.
diction in bankruptcy, we cannot see why they should be excluded in
this one particular. They have to deal with very much more important
matters in bankruptcy than this would be. As to the words "after
giving the prescribed notices," those words may mean comparatively
little, or they may mean a great deal. It would be much more satisfac-

We think this proposal in the main very desirable, and that it might

194

tory if the Bill were to state generally what notices should be given, and not to leave so much to rules. It is certainly one method of saving work to the Legislature and throwing it upon the judges or whoever may be appointed to frame rules to carry out the Bill.

Upon sub-clause (2) we should like to hear the following moot point discussed:-A firm consists of two members, one of whom becomes

lunatic and the other is made bankrupt, and an order is made under this clause for the administration of the joint estate. The bankrupt partner has separate creditors. Would those separate creditors be entitled to vote along with the joint creditors in the appointment of a trustee, or would the joint creditors alone be entitled so to vote, in the same way as if there had been a joint adjudication?

"Clause 59.-The identity of a petitioning creditor or debtor shall be deemed to be proved if the signature of the petitioner to the petition is attested by an official receiver of bankrupts' estates, or by a justice of the peace.

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We have not been able to satisfy ourselves whether this provision is intended to be in place of, or in addition to, rule 28 of the Bankruptcy Rules, 1870. That rule provides, by implication, for the identity of a petitioning creditor being proved if the petition be attested by a solicitor, and we would suggest the addition of the words "or by a solicitor" to the clause. At present we do not suppose there is ever a petition presented which is not attested by a solicitor, and any alteration in this Can anyone for a moment imagine practice would be most inconvenient. that it would be a saving of cost to require a petitioner to wait upon an official receiver or a justice of the peace in order to sign the petition in his presence instead of in the presence of his own solicitor? On the contrary, it would be an immense inconvenience and loss of time, and of course the petitioner's solicitor would attend along with him, so that the cost would be actually more-in fact, 13s. 4d. or a guinea instead of 6s. 8d., as at present. Surely the social status of solicitors is so good that they may be continued to be trusted with the attesting of petitions. It will be time enough to propose an alteration when the present practice has been proved to be abused.

Clause 60 provides for the publication in the London Gazette of notice of an order of adjudication instead of a copy of the order, as is now required. This will certainly be an improvement on the present practice, and a convenience for the printers, as the order and notice of appointment of meeting are unnecessarily long.

Clause 61 provides that where there is no committee of inspection the Board of Trade (instead of the court, as in section 83, sub-section 17, of the Act of 1869) shall have power to authorize acts to be done by the

trustee which a committee could authorize.

be an improvement.

This is one of the cases

where we think the substitution of some other body than the court will Clause 62 is in substitution for section 87 of the Act of 1869, and must be read bearing in mind clause 5, sub-clause (d.), upon which we have already commented. It will be more convenient to print the clause at length before proceeding to comment upon it, and we accordingly do

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"62.-(1.) Where a creditor has levied execution on the goods of a debtor, or has made an attachment thereof under any custom or statute, and the debtor is adjudged bankrupt, the creditor shall not be entitled to retain the benefit of the execution or attachment, except so far as he has, before the presentation of a bankruptcy petition against or by the debtor, and before notice of an act of bankruptcy committed by the debtor, and available for adjudication, enforced the execution by sale of the property seized, or enforced the attachment by possession of the money, or, as the case may be, by sale of the property attached.

(2.) Where the gcods of a debtor have been taken in execution in respect of a judgment, and before the sale thereof the officer of the court from which the process issued receives notice of the appointment of a receiver under a bankruptcy petition presented against or by the debtor, the officer shall forthwith deliver the goods to the receiver, and the costs incurred by the officer in respect of the execution shall be paid out of the property of the debtor.

(3.) Where the goods of a debtor have been taken in execution in respect of a judgment and sold, the officer of the court from which the process issued shall deduct his expenses from the proceeds of sale, and, if he has notice of a bankruptcy petition having been presented against or by the debtor, shall pay the balance of the proceeds to the trustee or receiver or other person entitled thereto under the petition, but, if he has not notice of any such petition, shall pay the balance into the court from which the process issued.

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(4.) If a bankruptcy petition is presented by or against the debt within fourteen days after the sale under the execution, the balance so paid into court shall become divisible among the creditors under the petition, and may accordingly be paid out to the trustee or receiver under the petition on application by him in a summary way by summons or otherwise, but otherwise the execution creditor shall (subject and without prejudice to the provisions of this and the principal Act) be entitled to the balance, and may in manner & foresaid apply for payment thereof to him. (5.) Where the goods of a deb:or are sold under an execution on a judgment recovered against him for a sum exceeding fifty pounds, they shall, unless the court from which the process issued otherwise orders, be sold by the officer of that court by public auction, and not by bill of sale or

private contract, and the sale shall be publicly advertised by the officer on
and during three days next preceding the day of sale.

"(6.) It shall not be lawful to proceed against the goods or chattels of a debtor under a writ of elegit."

The changes which would be made by this clause would, for the most part, in our opinion, be very beneficial, but there are some of the details to which we decidedly take exception. Section 87 of the present Act is one of the most unsatisfactory in the whole Act. It introduced a number of changes in the law and practice from what they were under the Act of 1861, every one of which, in our opinion, was for the worse. This clause proposes to go back to the old law on a number of those points, but not upon all, whilst it proposes to make one or two innovations. We think it better to state our views upon them under the head of each sub-clause.

Sub-clause 1.-This is consistent with the proposal of clause 5, subclause (d.). At present an execution for not exceeding £50 (including all costs of execution) against a trader, or for any amount against a nontrader, constitutes the execution creditor a secured creditor, entitled to be paid in priority to the other creditors out of the property seized under the execution. Notwithstanding that we suggested in discussing clause 5, sub-clause (d.), that, to constitute an act of bankruptcy the execution should not be for less than £20 (which would be a considerable extension of the present law), we agree with the proposal of this and the following sub-clause to apply the principle thereof to all executions, whatever the amount. Is it, however, intended by the introduction of the words or has made an attachment thereof under any custom or statute" in line 2 to include a garnishee order? The words in that part of the sub-clause would appear only to refer to the "goods" of a debtor. Now, the word goods would not include debts, though the word "property" would (Bankruptcy Act, 1869, s. 4), and it is presumed that the latter word would have been used if it had been intended to have included a garnishee order. And yet the sub-clause speaks of enforcing "the attachment by possession of the money," which would rather lead us to infer that a garnishee order was intended to have been

included.

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Sub-clause 2.-How, we would ask, in the event of the petition being dismissed and no adjudication being subsequently made? There appears to be no provision in that case for the officer to obtain re-possession. We think there ought to be a proviso that in such event the receiver shall re-deliver the goods to the officer.

Sub-clause 3.-We would make this to apply to executions for upwards of £20 only, to make it consistent with our suggestions upon clause 5, sub-clause (d.). The amount of £20, we think, ought to be exclusive of costs of execution, but inclusive of any costs for which

judgment signed, and this ought to be stated to avoid similar litigation to what has taken place under section 87 of the Act of 1869 to settle the meaning of that section. Our query upon the preceding sub-clause will also apply to this. There ought, we think, to be provision for repay. ment of the amount to the officer if no adjudication made under the petition.

As applicable to both this and the preceding sub-clause, we wish to point out that section 73 of the Act of 1861 provided that the costs of the action as well as of the execution should be retained out of the proceeds. We think it hard upon execution creditors that they should be deprived of any of the fruits of their diligence, but especially with It is enough for them not to get their debts paid, respect to their costs. and to have to take a dividend thereon, without having to take a dividend also upon the costs which they have incurred in obtaining judgment. With the new practice under order 14 under the Judicature Acts, these costs in ordinary cases will be less than before, and we certainly think the law of 1861 might be re enacted to the full extent in this respect. The provision in that Act was inserted after the fullest discussion, and was, we think, found to work well and satisfactorily.

Lastly, why should the officer be required to pay the proceeds into court in the event of no proceedings in bankruptcy being taken, instead of to the execution creditor, as at present? The change will involve an execution creditor in all cases in the additional expense of applying to the court for payment out to him of the money, which expense he will have to bear himself, as he will not be able to recover it from his debtor in any way.

Sub-clause 4.-Our concluding remarks upon the last preceding subclause apply also to this.

Sub-clause 5.-Secret sales under executions are a means of carrying out ingenious frauds, and the omission from the Act of 1869 of a clause requiring sales under executions for £50 and upwards to be by public auction (as was required by section 74 of the Act of 1861), was a great blunder, aud opened the door to the 87th section being entirely evaded, and that in the worst of cases-viz., where a debtor wished to prefer a Several cases have come within our own experience particular creditor. where a creditor has, by collusion with his debtor (though proof of such collusion is in almost every case impossible), commenced an action against his debtor, obtained judgment, and issued execution thereunder. Then the sheriff's officer has sold to the creditor by a secret bill of sale. The debtor has been allowed to remain in possession and carry on his business as before until the fourteen days have expired, when the

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