holders are not bound to assume that their directors are acting otherwise than in discharge of their duty. But if they receive notice that they are acting in excess of their legal powers, and with that knowledge permit a long time to elapse without actively objecting to what has been done, they will be held to have ratified by acquiescence the irregular transaction: (Evans

sequently, as the sea made a free passage over the ship, a vast quantity of water continued to rush into the hold till the stump of the mast was cut off and a new coat nailed over it.

This occupied about an hour and a half, when they found four feet water in the hold, though one pump was continually going, the other having been totally disabled by the mast in falling.

The vessel labouring much in a heavy sea, it

plaintiff for the loss of the corn (609.61 dols.), is recoverable in the first instance from the insurer. It appears (from Abbott, 296) to be the English practice for the insurer to pay in the first instance the adjusted average.

Houldsworth v. Evans, Ibid. 211.)

PURCHASE OF THE IRISH RAILWAYS. — In accordance with a most influentially signed requisition, the mayor has called a meeting in Belfast to consider the question of the purchase of the Irish railways by Government, and in particular the report of the Parliamentary committee on the subject, agreed to at a meeting in London in July last. The matter is one of very great importance to the whole country; it is one on which we do not believe that there is any real difference of opinion existing; but at the same time it is one on which it is very necessary that clear views should be entertained, and decided opinions expressed, especially by great mercial communities such as Belfast. not doubt that the meeting will be influentially and numerously attended, or that the speakers will be gentlemen who know the subject and can handle it satisfactorily. As the expression of the opinion of a town like Belfast, the resolutions of the meeting cannot fail to have an important bearing on the future of this great and important question.-Northern Whig.

com

We do

DICKINSON v. JARDINE. SIR,-I send you notes of the American decisions upon which the above case was decided by

the Court of Common Pleas.

A BARRISTER.

2, Brick-court, Temple, Nov. 3, 1868.

LE ROY, &c., v. GOUVERNEUR. (St preme Court of the State of New York, Albany, Jan. 1800. Johnson, 1 Rep. 226.) Insurance was effected on goods shipped on beard the Anne and Mary for a voyage from New York to Madeira.

The policy contained a memorandum warranting grain of all kinds to be free from average under 7 per cent., unless general.

The circumstances of the case are described in the foregoing abridged report of Maggrath v.

Church.

The case was tried before Kent, J., and the question which arose on the special verdict was whether the plaintiffs were entitled to recover for a total loss or for a general average only.

The court said there is no doubt that the plaintiffs are entitled to recover a proportion of the general average occasioned by the jettison. The ship, freight, and cargo must contribute to this les.

The claim for a total loss depends on the construction to be given to the exception in the memorandum "free from average unless general."

The French writers, Valin, Emerigon, and Pothier, consider it as protecting the underwriter from every partial, but not against any total loss.

The English construction is that the protection extends to all losses, except an actual, as distinguished from a technical total loss: (3 Burr, 1550; Park, 114, 116; Miller, 359, s.c.) The clause appears to have been introduced in the year 1749, ad the English decisions upon it recognise a

usage conformable to this construction, coeval

with the introduction of the clause.

We are therefore of opinion that the rule must be the same with us, and of course that the plaintiffs can recover for the general average only: (Marshall, 138, 155.)

MAGGRATH v. CHRCH. (Supreme Court of the State of New York, Albany, 1803; 1 Caines's Cases, 196.)

An insurance was effected in New York on Indian corn and staves on board a vessel called the Anne and Mary for a voyage from New York to Madeira. The policy contained a memorandum whereby it was agreed that grain of all kinds should be warranted "free from average unless general."

The first cost of the Indian corn was 2982 dols. and 98 cents. The first cost of the staves was 293 dols. 93 cents.

The freight for the corn was to be 5501. sterling,

and for the staves 1481.

The ship sailed on 17th Sept. 1798, encountered squally weather and heavy seas, and on the 26th in a sudden shift of wind was laid on her beam ends, and for safety they cut away the mainmast. In doing this, it splintered off in the way of the partners, and tore away the mast coat, and con.

threw overboard about half the staves.

When the weather moderated, the vessel was in so disabled a condition that they were obliged to bear away for the nearest port, and on the 17th Oct. they reached Newcastle.

into which the cargo might be discharged, nor There were not in that place any warehouses any means of repairing the ship.

Philadelphia. The vessel, therefore, lay at NewThe yellow fever then raged at Wilmington and castle till the fever abated, and on the 30th went up to Philadelphia.

On the 25th or 26th the shippers received information of the circumstances, and abandoned the cargo to the underwriters.

It was agreed that the shippers should send a clerk to take charge of the cargo, without prejudice to the rights of either party.

On discharging the cargo at Philadelphia it was found so damaged as to be wholly unmerchantable. It was, therefore, sold for the benefit of those who might be concerned, and produced, after deducting charges, 924 dols.

That sum, in pursuance of an award of arbiters appointed by the shipowners and shippers, was paid over to the owners of the ship for freight.

The ship was repaired at Philadelphia, and ready to take in cargo on 28th Nov., but as no corn of the same kind as that formerly shipped could be obtained, the voyage was given up, and the ship returned to New York.

The court was requested to express an opinion whether the plaintiffs were entitled to recover as for a total loss, or for a general average in respect of the sea damage to the corn as having been occasioned by the cutting away of the mast.

If, on the above facts, the court should be of opinion that the plaintiffs were entitled to recover as for a total loss on the policy, the jury assessed the damages at 1231.54 dols. if for a general average in respect of the sea damage sustained by the corn as having been occasioned by the cutting away of the mast, then at 909.61 dols.

The

Kent, J., in delivering the judgment of the court said that the first point was settled by this court in the case of Le Roy v. Gouverneur, 1 Johnson's Cases, 226, a case which arose upon the same policy and upon facts substantially the same. question was on the construction of the words in the memorandum "free from average unless general;" and the court decided that to make the insurer liable there must be an actual destruction of the article specified in the memorandum, and not merely a constructive total loss. Consequently, as the corn existed, the insurer was not liable for it, howewer deteriorated it might have been by the perils of the sea.

The voyage has been given up and deemed lost, not because there was irreparable damage to the vessel, but in consequence of the unmerchantable condition of the cargo, and because no other cargo of the like kind could be there obtained.

As the plaintiff is therefore not entitled to recover as for a total loss, the next point that arises for consideration is whether he is entitled to recover a general average as fixed by the verdict.

In addition to the facts above mentioned, there is the deposition of a witness who heard the captain, mate, and crew say that the damage to the corn was principally occasioned by or in consequence of cutting away the mainmast for the general preservation. Upon these facts we are not dissatisfied with the conclusion drawn by the jury that the whole of the damage to the corn was thereby occasioned. No other cause of direct injury to the corn is found. The one stated must have essentially injured the corn. The injury was inevitable, and the cause was sufficient to have produced the whole effect. We think the conclusion a reasonable one.

We are, therefore, to consider the mast as sacri. ficed for the general safety of the ship and cargo, and that in the act of sacrificing the mast. or, as a necessary consequence of it, the corn was damaged, and this damage must be included in a general contribution.

The corn being damaged by the cutting away of the mast, is to be considered equally with the mast a sacrifice for the common benefit, a price of safety for the rest; and it is founded on the clearest equity that all the property and interests saved ought to contribute their due proportion to this sacrifice.

The plaintiff is therefore entitled to recover as for a general average for the loss sustained by the injury done to the corn; and we are of opinion that the totality of the contribution due to the

Lewis, C. J. was dissatisfied with this judgment, and said it appeared to him, as regarded the claim "for injury to the corn from the jettison of the mast," to be an ingenious contrivance on the part general what he could not under that of a particular average. NEILSON v. COLUMBIAN INSURANCE COMPANY. (Supreme Court of State of New York, May, 1805. 3 Caine's Cases, 108.)

Insurance was effected on 2300 bushels of corn from New York to Madeira, with the usual memorandum in which the corn was warranted free from voyage part of the cargo was thrown overboard average, unless general. In the course of the for safety. At Bonavista on opening the hatches the corn was found so damaged and offensive that it was sold as it lay on board for about 400 dollars. Swainston, J. pronounced judgment. Held that the decision of the same court in Maggrath v. Church was in point. To capacitate the assured to recover except for an average loss it must be shown that the voyage was defeated by the ship not being in a condition to proceed. So long as the corn physically existed there could not be a total Though good for nothing the defendants loss. were not liable, being protected by a clause in the

memorandum.

This was a question whether part of a cargo, specifically insured, and more than a moiety in quantity and value of the portion insured, having been sold to ransom the whole cargo after capture, the assured was entitled to abandon to the under

writers, although if the other cargo on board, which was not insured, were to be taken into calculation

23 bearing its proportion of the ransom or salvage, the part sold would fall short of a moiety, and the loss be turned into a partial one.

The decision in Maggrath v. Church could not be applied as regarded the contribution of ship and freight, because the plaintiff consented to be charged with the proportion of any general average payable by vessel and freight, without throwing it in this suit on the defendant.

The following case was relied upon by Story, J. in Potter v. Providence Insurance Company, 4 Mas. 298, as confirmatory of Maggrath v.

Church.

WATSON . MARINE INSURANCE COMPANY. (Supreme Court of New York, 1810. 7 Johnson's Rep. 57, 61.)

Opinion of court delivered by Kent, C. J.-A ship and cargo having been captured, the captain incurred certain expenses which he declared generally were incurred about the business of the ship: Held, that as the shipowner was obliged to pay those expenses incurred for the recovery of the ship, although the cargo and freight might, incidentally, enjoy the result of the effort, and although all these interests being involved in the peril, it would seem to be just that the ship, freight, and cargo, should bear these expenses in due proportions, yet, according to the decision in Maggrath v. Church, 1 Caines, 215, the shipowner is entitled, even if a case for contribution exist, to recover the whole of it in the first instance of the underwriter on the ship, and to leave it to him to call upon the owners or insurers of the cargo and freight for their contributory shares.

NOTE. This is contrary to the recent English decision in Kemp v. Halliday, 2 Mar. Law Cas. 271; L. Kep 1 Q. B. 520, Ex. Ch., as to expenses incurred in raising a sunken ship and cargo.

JUMEL . MARINE INSURANCE COMPANY.

(In Supreme Court of State of New York, Albany

Feb. 1811; 7 Johnson's Rep. 412.) Judgment delivered by Kent, C. J., that where cargo and ship belonging to the same person, the underwriters on ship are not liable for the total amount of general average expenses paid for the joint benefit of ship, freight, and cargo, but only for that share of the expenses which upon the principles of a general average will fall upon the ship.

NOTE. Neither, according to the recent English judgment in Kemp v. Halliday, 2 Mar. Law Cas. 271; L. Rep. 1 Q. B. (Ex. Ch.) 420, would the insurers of the ship be so liable if the ship and cargo belonged to different persons.

According to the settled construction of the clause, giving liberty to "sue, labour, and travel," the insurer is liable to expenses incurred to endeavour to recover captured property, in addition to a total loss: (Jumel v. Marine Insurance Company, 7 Johnson, 424.)

POTTER V. PROVIDENCE WASHINGTON

INSURANCE COMPANY.

Circuit Court of U.S., Rhode Island, Nov. 1826, before STORY, J.; 4 Mason's Reports, 298.) A ship insured on a time policy sustained, in a hurricane, injuries so great that, after arrival at New York with a cargo on board belonging to the shipowner, it was found that it would cost more to repair her than she would be worth after repairs. An abandonment was seasonably made, and the

underwriters were held liable for a total loss. During the storm the masts and rigging were cut away for the general safety. The damage was not repaired. The cargo was insured by another policy, on which the general average had not been recovered. It was held that the loss arising from the masts being cut away was a general average, for which the shipowner was entitled to contribution from the owners of the cargo if it had belonged to strangers, and that the same claim belongs to the insurers of the ship after the abandonment, for they succeed to the rights of the assured.

That if the ship and cargo belonged to different persons, the shipowner would be entitled to recover the whole amount of the loss without first seeking to recover against the owners of the cargo their contributory share. The court in this respect followed Maggrath v. Church, 1 Caines, 196, and the other cases in New York which had succeeded it: Vandenheuvel v. United States Insurance Company, 1 Johns. 412, and Watson v. Marine Insurance Company, 7 Johns. 57, in preference to Lopsley v. United States Insurance Company,

4 Binn. 502.

But where the ship and cargo, as in the present instance, are owned by the same person, a different rule may well apply. Here the same hand that loses, pays. As between himself and the underwriters on the ship, his real loss is only the contributory share of the ship to the loss. The other loss (that is the remainder of the general average contribution for masts cut away) is borne by him as owner of cargo for which he directly is liable. The case of Jumel v. Marine Insurance Company, 7 Johns. 412, is directly opposed to such a course as deciding that the assured is entitled to recover a sum which he is bound immediately to pay back to the underwriters.

NOTE.-The ship being a total wreck, irrespective of the loss of the masts, and the underwriters liable for a total loss of the insured value, they were entitled to receive credit for the sales of the wreck. The amount of these sales was lessened by the masts having been cut away, which masts would otherwise have been sold with the rest of the property, and the proportion to be restored by the cargo in this respect as general average was therefore clearly a proper deduction in the settlement between the shipowner and his insurers.

We subjoin an extract from the argument by Binney for the underwriters in Lapsley v. U. S. Insurance Company, 1812, 4 Binn, against the direct liability of the underwriters even for the total general average contribution. Their liability for the insured value of jettisoned goods seems never once to have been entertained by the courts of law in the United States.

"The question is, what is the loss according to the maritime law and the law of insurance. In the policy jettison is the generick name for loss by general average, and does not merely include the goods thrown overboard. No argument can therefore be drawn from the use of the words. Interpret it as you may, still the question recurs, What is the loss by jettison ? and no doubt, according to the maritime law, the loss is what the owner himself has absolutely to pay or absolutely to lose; that is his contribution. Marshall is in point (2 Marsh. 546). An ancient authority is explicit to the very question before the court. Where goods are thrown overboard to lighten the vessel in a storm, are the insurers bound to indemnify the owners for the loss of such goods? They are not; because, among all those who have property in the ship, a contribution is made to pay the value of the goods thrown overboard, to their owner. But the insurers are bound to make good that rate or proportion which has fallen upon the assured in the contribution among all the owners of property in the ship' (Roccus 126, note 62, 148, note 92). Marshall recognises and adopts this doctrine (2 Marsh. 547). Park does the same, and says it is agreeable to the laws of all the trading

powers on the continent of Europe as well as to those of England (Park 179). In law all the goods owned by the assured are deemed to arrive, and are paid for accordingly by the other shippers, except his proportion of the general average (Abbott 228). The goods are pledged for the payment, in the same manner as the freight (Abbott 296, Molloy 8). And it would be most inconvenient if the assured could devolve in the first instance upon the underwriter the duty of obtain ing this payment under every inconvenience, when to him the inconvenience would be comparatively little. The cases in New York are the only authority against us; and those cases all flow from Maggrath v. Church, in which there is no notice taken of the authorities now cited, and there is apparently some misapprehension of the practice in England, in consequence of misunderstanding a remark of Mr. Abbott in page 296. I understand him to say that the average is paid in the first instance by the underwriter; that is to say, the contribution, not the jettison as is now contended. The judge said: " Why do the plaintiffs pertinaciously insist on resorting to the insurers? If indemnification for their loss is the object, what is the difference whether they receive it from the insurers or other persons? I can find no satisfactory answer to this question, but by supposing that bare indemnification will not satisfy the plaintiffs. Their object must be to gain by abandoning to the insurers, and thus producing a constructive total loss, whereby the insurers will be involved in the state of the market at New York." He refused to assist them in this attempt, and sent them to recover from the contributors to the general average first.

PEZANT V. NATIONAL INSURANCE COMPANY. (July 1836; 15 Wendell's Rep. 453.)

In this case the owners of the ship insured were owners also of the freight and cargo. Masts were cut away during the voyage, and the ship arrived in port damaged to an extent exceeding half its value. It was held that the average contribution payable by freight and cargo must be deducted from the estimated cost of repairs in determining the right to abandon.

COUNTY COURTS.

BISHOP AUCKLAND COUNTY COURT.
Tuesday, Oct. 20.

(Before H. STAPYLTON, Esq., Judge.)
TURNBULL v. Norwood.
Mines and minerals Royalties-Right to stone-
Wrongful excavation.

Held, that the owner of royalties in certain allotments was entitled to the substratum of stone, but that he could not quarry for it without the consent of the owner of the land: Held also (following Bell v. Wilson), 12 L. T. Rep. N. S. 529) that the owner of the royalties must pay to the owner of the land the value of the stone so wrongfully worked.

His HONOUR to-day delivered the following judgment. This action was brought to recover damages for that the defendant had entered upon the plaintiff's field at Billy Hill, and had worked thereout and converted to his own use a large quantity of stone. The defendant admitted that he had entered upon the plaintiff's field and had worked thereout and converted to his own use a large quantity of stone; but qualified his acts by alleging that the plaintiff's field was formerly part of Billy Row Moor or Common, which was enclosed by an Act of Parliament in 1764, whereby it was declared that nothing therein contained should prejudice, lessen, or defeat the right, title, and interest of Farrer Wren, the then owner of the soil, inheritance and royalties of the said moor or common of or to the royalties, incident or belonging to the said common or moor, but that the said Farrer Wren, his heirs and assigns, and the owner or owners for the time being of the royalties of the said common, should and might at all times thereafter hold and enjoy amongst other things all mines and quarries whatsoever to the owner of the royalties of the said common, incident, appendant, and belonging, or appertaining in as full, ample, and beneficial manner to all intents and purposes as he or they could or might have held and enjoyed the same in case that Act had not been passed. And that the said Farrer Wren, as such owner of the soil, and inheritance, and royalties of the said common, was at and before the time of the passing of the said Act, entitled to all the mines, minerals, and quarries within or under the said common, with full power to enter into and upon the common, and to win and work the mines, minerals, and quarries by mining operations, or by open workings, and to convert the produce thereof to his own use and benefit, provided that he left sufficient common for the commoners. And that the Hon. Mrs. Barrington was at the time of the alleged wrongs and trespasses and

And

still is the owner of the royalties of the inclosed lands; and that she, by an agreement in writing, duly authorised the defendant to enter upon the plaintiff's field, and to win and work, by means of a quarry or open workings, the beds and strata of stone within or under the plaintiff's field, and to load and carry away for his own use and benefit the produce thereof. that he, by virtue of such leave and licence, had committed the alleged trespasses and wrongs. In answer to this defence, the plaintiff admitted that the Honourable Mrs. Barrington was the owner of the royalties of the inclosed lands, and that she had granted unto the defendant her leave and licence to enter upon the plaintiff's field, and to win and work, by means of a quarry or open workings, the beds and strata of stone within or under the same; but he denied the residue of the defence. I am clearly of opinion that the Hon. Mrs. Barrington is entitled to all the beds and strata of stone within or under the plaintiff's field. And I am of opinion that the liberty or licence, granted by the 17th section of the Act of 1764, to the owners or occupiers for the time being of the allotments, to win and work stone out of their respective allotments does not at all impugn this conclusion, but, on the contrary, rather confirms it, for it proves that the ownership of the beds or strata of stone was not transferred to the owners of the several allotments, but still remained in the owner of the royalties. Nor do I think that this licence or liberty for the owners for the time being of the allotments to win and work stone in their respective allotments, prohibits the owner of the royalties and beds or strata of stone from demising the beds and strata of stone within or under the allotments, or from granting leave and licence to other persons to win and work the same. The next question which is as to the power of the owner of the royalties, mines, minerals, and beds and strata of stone to enter upon the allotments, and to win and work the same, is rather more difficult of solution. Taking into consideration that the owner of the mines and minerals had, before the Act of Parliament, in 1764, full power to win and work the same by mining operations or by quarries and open workings, provided that he left sufficient common for the commoners, and, taking into consideration the 15th and 16th section of the Act, I am of opinion that the owner for the time being of the royalties, mines, and minerals may at least enter upon the allotments for the purpose of winning and working the same by means of mining operations. The 15th section of the Act says that nothing centained in that Act shall prejudice, lessen, or the mines, minerals, and quarries within or under defeat the right, title, or interest of the owner of the allotments, but he shall enjoy the same in as full, ample, and beneficial a manner as if that Act Act declares that in case the owner for the time had not been passed. And the 16th section of the being of the royalties of the allotments shall work any mine or mines lying within or under any of the allotments or inclosures, then, in such case he shall make reasonable satisfaction for the damage or spoil of ground occasioned thereby to the person or persons who shall be in possession of such ground at the time or times of such damage or spoil. Taking these two sections together, and bearing in mind that several cases have decided that the words, making reasonable satisfaction for the damage or spoil of ground occasioned by the working of the mines, have reference to the damage done by the subsidence of the surface of the land by the removal of minerals and strata under it, but they refer to the injury or damage done to the surface of the ground by the sinking of pits and shafts, pit heaps, and other work and operations on the surface; it is impossible to doubt that the Act intended to grant or reserve unto the owner of the royalties full power to enter upon the allotments for the purpose of winning and working the mines and minerals, including the beds and strata of stone, by means of mines or underground works. Whether the owner for the time being of the royalties and minerals is entitled to enter upon the allotments, and to win and work the beds and strata of stone by means of quarries or open workings, is a question not free from considerable difficulty. At the hearing, the counsel of the defendant contended that inasmuch as before the Act the owner of the royalties and minerals had full power to enter upon the moor or common and make or open as many quarries as he thought fit for working the stone lying within or under the common, and, inasmuch as the 15th section of the Act declares that the owner for the time being of the royalties shall and may at all times thereafter hold and enjoy all rents, perquisites, profits, mines, quarries, waifs, estrays, and other royalties and jurisdictions whatsoever to the owner of the royalties of the said moor or common incident, appendant and belonging, or apertaining in as full, ample, and beneficial manner to all intents and purposes as he could or

made in pursuance of sect. 200, directing the registration of a deed, and declaring it to be sufficiently assented to, precluded the right of another branch of the court entertaining the question of the sufficiency of those assents: That a deed under section 200 is not invali dated by containing other matter than that presented in schedule D. providing it do not neutralise the operative part of the deed: That a deed bearing a particular date, although assumed to have been executed on that day, may, for the purpose of proving its due registration under the fourth branch of the 192nd section, be shown to have been executed on a subsequent day:

And that sect. 199 is not limited to a case where motion is made for the stay of proceedings in bankruptcy before the registration of trust deed, but applies alike to a case where the application is made subsequently to registration.

This was an application for the dismissal of a petition for adjudication of bankruptcy which had been filed by the National Bank against Oscar Irving Van Wart, a partner in the late firm of George Wright and Co., of Liverpool, merchants. Gully, instructed by Martin, appeared for Mr. Van Wart: and Wilfred Bushby for the petitioning creditors in bankruptcy.

Gully, in opening the case, moved. in the terms of his notice, that the petition for adjudication of bankruptcy be dismissed, on the ground that it was presented after the registration and execution by Mr. Van Wart of a trust-deed prepared in conformity with the provisions of the B. A. 1861. He referred at length to the terms of the deed, which was one under sect. 200 B. A. 1861, and made in the form prescribed in the case where a debtor cannot obtain the assent of a majority in number, representing three-fourths in value, of his creditors, by reason of being unable to ascertain his liabilities in respect of bills of exchange and other negotiable securities to which his firm had subscribed their names, and contended that as it was an assignment for the equal benefit of all the creditors, and had received the necessary assents, it was a bar to the proceedings in bankruptcy of a non-assenting creditor. The proof of the due registration of the deed, and of its compliance with all the requisites of the statute, appearing by the affidavits filed, he submitted that the petition in bankruptcy ought to be dismissed.

Bushby, in opposition to the application, took exception to the deed on several grounds. First, he contended that it was not in the form prescribed by the statute for a debtor who is unable

to discover the whole of his liabilities, but that it contained other matter for which there was no

authority in the Act; secondly, that it bore date the 4th Sept., but was not registered till the 7th Oct.. which was after the twenty-eight days limited by the Act had expired; thirdly, that the deed purported to be made between Van Wart and the creditors whose names appeared in the schedule thereunder written, whereas there was no schedule; fourthly, that there was contained in the deed an assignment of all the joint property of the debtor's firm, whereas already the other partner was bankrupt, and his share of the estate was vested in his assignee; and lastly, that it was at variance with the policy of the bankruptcy law to sanction two debtors, constituting a firm, resorting to two distinct modes of administering their estate, and thereby incurring costs which must lessen the

creditors' dividends.

Gally, in reply, submitted that as the deed contained all that was in the form prescribed by the statute it could not be held to be invalid by reason of something more having been added, as that might be regarded as surplusage; that the execution of the deed by the debtor was not on the day of its date, but on the 5th Oct., as was evidenced by the affidavit of Mr. Martin. the attesting witness; that a deed which assigned all a debtor possessed was not invalidated because it assigned more than he possessed; that the deed, although purporting to be made with the creditors named in the schedule, was, by its terms, made to apply to all the creditors alike; and lastly, that a debtor had a right to resort to any method which was legitimate and in accordance with the Bankruptcy Act for the purpose of getting rid of his liabilities.

The learned DEPUTY-COMMISSIONER, after hearing Mr. Bushby, who cited several cases, overruled all the objections raised, and upon the point of the form of the deed observed that if the deed contained all the statute specified it was sufficient, and as the additional matter objected to did not neutralise the operative part of the deed it could not affect its validity. The 65th section of the Act provided that any want of form or omission in a document prescribed by the Act should not invalidate the proceeding unless it was calculated to mislead or prejudicially affect the parties concerned, and there was no evidence in the present case of the creditor being prejudicially affected by the non-compliance with the form.

Bushby then proceeded to cross-examine the trustee of the deed, and the debtor, for the purpose of showing that the requisite assents to the deed had not been obtained, and had continued his examination at some length, when objection was taken by Mr. Gully to the course of procedure. The deed in the present case, he submitted, should be taken as duly registered, for by the order of the commissioner of the London Court of Bankruptcy it was declared that the deed had received the requisite assents and was one which was proper to be registered. The actual registration was proved by the certificate, and the other condition, requiring the trustee to take possession, had also been fulfilled, therefore he maintained the petition in bankruptcy ought to be dismissed. Mr. Bushby submitted that an ex parte order obtained in the London Court of Bankruptcy did not preclude him from showing, on the motion then before the court, that the deed was invalid. The 199th section provided for a petition in bankruptcy being dismissed in case application was made pending its registration, but not afterwards, as in the present case: and even if it were afterwards, the court to which application was made must be satisfied before dismissing the petition that a deed which complied in all respects with the 192nd section had been registered. The order of Mr. Commissioner Bacon, in London, was obtained behind the back of his client, and was made wrongly and in ignorance of all the circumstances of the case, and ought not to preclude evidence from being then adduced to show that the deed had not been sufficiently assented to.

His HONOUR said that he felt considerable doubt upon the point as to how far he could consider the question of the sufficiency of the assents to the deed, seeing the order made by Mr. Commissioner Bacon, directing it to be registered, and certifying that it appeared to him a majority in number, representing three-fourths in value of the creditors, had assented to the deed. Before making that order the learned commissioner must have had evidence which satisfied him upon the point, and therefore to re-try that question here would be to review the decision of the commissioner. The power to review the decision of another branch of the court rested with the Court of Appeal, and the order of Mr. Commissioner Bacon, if wrong, must be there set right, or motion made to him to review his own decision, which was the inherent right of every court if it had been deceived. The Court of Bankruptcy would always receive evidence affect ing the validity of a deed ultra the certificate of registration, but where, prior to registration, it was declared by a court of competent jurisdiction that the deed complied with the statute and was a fit one to be registered, he thought he had no right to question that decision. The deed in the present case, therefore, having been found by Mr. Commissioner Bacon to be properly assented to, and having since been duly registered, and the trustee, through Mr. Harmood Bunner, having taken possession of the debtor's effects, he (the deputy commissioner) had no alternative but to disiniss the petition in bankruptcy.

Gully asked that the costs might follow, but the court refused to make such an order. Bushby said he had a strong opinion upon the question at issue, and should take the case to the court of appeal.

His HONOUR remarked that he had some hesitation in arriving at the conclusion he had, and would suggest that before going to the court of appeal they should try and get Mr. Commissioner Bacon to review his order.

Bushby said he meant to pursue that course first, but in the event of not succeeding he should appeal, and would therefore wish the amount of the deposit to be fixed.

His HONOUR named 101.

The total debt in this case was stated to be 57,8621., one local bank figuring for 14,000l., another for 90007., and a coal and iron company for 10,000l.; whilst the assets were sworn under 20001.

CORRESPONDENCE OF THE

PROFESSION.

LAWLESS COURT, ROCHFORD, ESSEX.-The above is described in Wharton's Law Lexicon as "a tribunal held on King's-hill, at Rochford, in Essex, on Wednesday morning next after Michaelmas day, yearly, at cock crowing, at which court they whisper, and have no candle, nor any pen or ink, but a coal; and he that owes suit or service there, and appears not, forfeits double his rent.' Is this court, or any modern form of it, still held?

STUDIOSUS.

LORD BROUGHAM AS A WRITER.-The writer of the article in the Eclectic and Congregational Review, quoted in to-day's LAW TIMES, appears to have a very imperfect recollection of the Useful Knowledge Society. Its full name was "The Society for the Difusion of Useful Knowledge,"

TEN YEARS' CLERKS.-Mr. Deacon's letter is

all very well so far as it goes, but unfortunately it does not go far enough. I think that, if the practice of allowing ten years' clerks to be articled without passing the Preliminary Examination (although objectionable) be discontinued at the end of ten years from the passing of the Act, no great harm will be done. But what guarantee have we of this? It is much more likely that, at the end of the ten years, the prece lent will be considered to be so established that in all cases of ten years' clerks wishing to be articled the plan will be adopted as a matter of course. I must again express the hope that the matter will be taken up by the Law and Articled Clerks' Societies, for I think there is nothing of more vital im portance to the Profession. What Mr. Deacon can see in my letter to lead him to think there is anything of the spirit of the "dog in the manger" expressed in it, I'm sure I don't know. I am, however, content to leave your readers to judge how far I am probably actuated by such a spirit in broaching this subject,

H. TANNER.

INTERMEDIATE EXAMINATION.-In reply to the letter of H. Tanner, I observe your correspondent, A. W. Deacon, has taken up the subject of the preliminary examination for articled clerks, which has so frequently been discussed in your columns. I have perused his letter with much attention, because, as an articled clerk, I am deeply interested in the subject, and had he omitted the latter part comparing H. Tanner to a dog in the manger, I should have thought it a temperate and sensible epistle, but at the same time only one side of the question, which in most cases holds good until the other has been told, and in this case I think I may safely say no longer. A. W. Deacon assumes that all clerks who entered into solicitors" offices before the passing of the Act (23 & 24 Vict.) did so on the understanding that at the end of a certain term of service they should be articled without premium. If such have been their expectations, how fallacious must they have proved, when not one in a hundred has been so fortunate. But let me admit that it was so, which is not at all probable. In the mean time, however, owing to the readiness with which all classes are admitted, the Profession has ceased to be regarded with that respect which is its due, and many are enrolled amongst its members who, instead of endeavouring to increase that respect, and upholding the dignity of the law, prove a disgrace and blot to their Profession. The attention of the Legislature is now called to the subject, and by the 23 & 24 Vict. c. 127, ss. 2, 5, and 8, and the orders made thereon, it is provided that from and after the first day of Hilary Term 1862 every person proposing to enter into articles of clerkship, and not having taken a degree or passed one of the public examinations therein mentioned, shall, before being articled, pass an examination in general knowledge, called the Preliminary Examination." A cry is at once raised that this is very unjust to those who thought of entering the Profession without any classical knowledge whatever, and a back door is soon found for a favoured few who do not feel inclined to study, and who think that it will help them considerably to be admitted." No doubt those who thought of getting into the Profession so easily, were disappointed when these orders were issued; but is it hard that for the sake of a few the whole community should suffer? Is it not harder, more unjust, and most improper, that those who creep in at the back door should be placed on a par with those who, having spent their time and money in the effort, enter into the Profession in the only legitimate way? All those who will prove a credit to the Profession, however long they may be employed at their office work, will find time for study; and it is only such men as "P. G.," who naturally thinks that it will help him considerably to be admitted, that wish to enter by any other means than the right one. In conclusion, I may perhaps observe that I have

always been under the impression that the fable of the Dog in the Manger represents a person who refuses to another what he cannot enjoy himself; but in this instance put "in all kindness of spirit" by A. W. Deacon, it is not at all applicable, becanse it appears that H. Tanner is in the legal profession, and doubtless reaps the fruits of it; nor does he deny the same benefits to anyone who, whether by his own exertions or otherwise, is entitled to them. J. BALLARD.

PRELIMINARY EXAMINATION.-Perhaps "Candidate" will allow me, as an articled clerk, and one that has passed the above. to offer him a few remarks and suggestions. "What really are the highest questions set in the arithmetic paper?" I will not undertake to satisfy, but will merely give a few specimens of what seemed to be the most conspicuous. We are informed by the examiners that the sums will be set out of the first four rules. This, upon a little consideration, "Candidate" will find notto be strictly adhered to. I give the following examples: "What is meant by a scale of notation? Express 323 on the senary scale; express why, in adding up numbers, you begin at the right-hand column; reduce seven men, twelve women, three children, to an equivalent number of children, supposing two women equal to a man and three children equal to a Two numbers are such that one-third of the one equals four-fifths of the other, and their difference is twenty-one. What are the numbers?" I would give many more difficult, but I presume they will suffice "Candidate" that he must be well up in arithmetic. I beg to add the N. B.-that "Algebra is strictly forbidden, and the working of each sum must be shown; but for my part Algebra seems to be by far the easiest way to work them; and if "Candidate" would only purchase the “Articled Clerks' Hand Book," by R. Hallilay, Esq., which is a most useful and valuable one, he will there become acquainted with all the questions asked at "Prelims," and other necessary information, which unfortunately I had not, at the time of preparing for my examination, seen. J. H. E. Cardiff, 4th Nov. 1868.

woman.

NOTES AND QUERIES POINTS OF PRACTICE.

IN.B.-None are inserted unless the name and address of the writers are sent, not necessarily for publication, but as a guarantee for bona fides.

Queries.

1. GUARANTEE.-Will you or any of your correspondents give an answer to the following inquiries? referring, if possible, to decided cases: First. A gives a guaranty to bankers or merchants for money then advanced or owing from, or for goods then furnished to his son; or at any time thereafter to be advanced or furnished to such son. Does such guaranty extend only to the amount of money advanced, or goods furnished to the son up to the time of the decease of A., or to all moneys

Mr. Serjeant Stephen's New Commentaries on the
Laws of England, partly founded on Blackstone.
The Sixth Edition. By JAMES STEPHEN,
Esq., LL.D., Barrister-at-Law, one of the
Registrars of the Court of Bankruptcy. In

4 vols. London: Butterworths.

WHEREVER it was practicable to do so, Mr. Serjeant Stephen has preserved the text of Blackstone, indicated upon the pages before us by being placed within brackets, so that the student is enabled to discover at a glance, even if the style of the composition did not tell him, whether his teacher is the old commentator or the new one. This feature of the popular book before us offers to the Statistical Society-or say to Professor Leone Levi or Mr. Dudley Baxter-a problem that would not merely tax their own calculating powers, but which would yield a really valuable product, and repay the toil of the task. Thus might be ascertained by positive figures what sum of changes the law has undergone since Blackstone digested it in his delightful Commentaries. So many pages of Blackstone, so many of Stephen-or, if it be preferred, as the number of Blackstone's words is to the number of Stephen's words, so is the sum of the old law to the sum of the new law. Really it would be a very interesting inquiry, and it would bring out results far more valuable than the most ingenious conjectures by those most familiar with our modern legal history.

A glance at these volumes tells us that the changes have been very great indeed, almost every page being studded with the brackets that Lark the division between the ancient and the modern commentator. But it is remarkable that the entire bulk of the law is not so swollen as ON a view of the Statutes at Large and Reports would have led us to suppose. The original Blackstone was in four volumes, and so is the modern Blackstone. True, that more matter is compressed into the same space, aud it is probable (but this also would be a point for the statisticians) that the text may have been increased in quantity by onethird; but what is that as compared with the hundreds of volumes of Statutes and case law by which the law of England has been modified during the long interval between the two labourers in the work of presenting it in a scientific shape for the instruction of their countrymen-as well laymen as lawyers; for such knowledge of the laws of their country as is here contained, ought to be possessed by every English gentleman. And surely no elementary book upon any branch of knowledge was ever written in any country or at any time, so well fitted as this for its object. The popular notion of the study of the law is, that it is "dry." No person who reads these Commentaries will call it so. It is a fascinating book. The style of Blackstone is so pleasant, his expositions logical, without the formula of logic, that the are so clear, his arrangement of his subject so reader who begins with dreary anticipations of a dull duty finds himself engaged in a task that is neither laborious nor dull, but he is carried on from chapter to chapter and from book to book with the charm of a narrative rather than with the toil of a treatise. "Law," says the law student, closing his Blackstone after a reading reluctantly suspended, "is a charming study; if this is all, I shall soon learn it." It is not all, it is only the foundation; but then it is a good solid basis upon which his future studies will be built, and he has conquered his first impressions of the tediousness of his task. He has now, in his mind, at least, a map of the country he is to and their relationship to one another, and he explore, the divisions into which it is thrown, knows precisely where he is to store up the divers pieces of special knowledge he is afterwards to acquire. It is of vast moment to the

advanced or goods furnished to him after the death of A., and until notice from the executors to put an end to the guaranty. In short, does the death of A. as a matter of course put an end to the guaranty, as to future loans or advances of money, or delivery of goods to the son after the death of A.? Secondly. Does it alter or any way affect the law of the case, if a bond be given by A. instead of an ordinary guaranty? Thirdly. Or if a deposit of deeds be made with a corresponding declaration instel of guaranty or bond? Fourthly. If the guaranty, bond, or deposit only extends to the amount owing from the son at the death of A., ought a balance to be then struck between the parties, and notice given

to the executors of A. of the amount then due, and what

would be the effect of any omission to do so?

2. JUDGMENT-DEBTOR ABROAD.-I am concerned for a judgment-creditor of a person who, to avoid execution, has gone to resile at Port Natal, taking with him ample means, and quite able to satisfy my client's judgment. Can any subscriber inform me whether and how I can proceed to enforce the judgment (which was obtained in the Queen's Bench here) against the debtor whilst in Natal. If it be necessary to employ an agent in Natal, a reference to a respectable practitioner will oblige.

Answers.

ATTORNATUS.

(Q. 120.) LEASE SECOND MORTGAGEE-Will "J. C." kindly give an authority for his reply to this query in

the LAW TIMES, 24th Oct. last.

G. W.

Com. 115, "Kant Sharkin" will find that one of the (Q. 132) EQUITABLE WASTE.-On reference to 2 Black. incidents to a tenancy in tail is: "That a tenant in tail may commit waste on the estate tail, by felling timber, pulling down houses or the like, without being impeached, or called to account for the same." And on reference to Will, on B. P., he will find: "A tenant in student of any science that he should begin tail may cut down timber for his own benefit, and commit what waste he pleases, without the necessity of barring the entail for that purpose." Surely these in clude equitable waste or he might not pull down houses ; besides he can commit "what waste he pleases." S. R. G.

(Q. 133.) COMMISSIONER-ADMINISTRATION OF OATHS. To enable a solicitor to become a Commissioner to Administer Oaths in Chancery, or the Probate Courts, he must be duly certificated annually, for without that, he would be wholly debarred from taking affidavits as

with a clearly defined mental map of that science; in none is this more needful than in the study of the law, Blackstone's map has been accepted with one voice, and no rival has obtained a hearing.

After six editions it is impossible to say anything new of a standard work like this. The title page tells its own tale of the confidence of the Profession given after many trials, of con

tinual improvement by experience and of periodical adaptation to changes, as they are made by the Legislature and the Courts. We can but repeat that Stephen's Blackstone is indispensable, not to the law student alone, but to all who take part in public affairs, and examined in it before they are permitted to sit especially to magistrates, who ought to be upon the bench. Nay, it may be affirmed that no gentleman can be considered properly educated, unless he has acquired so much knowledge of the law of England as is contained in Blackstone, noted up by Stephen.

LAW SOCIETIES.

HULL LAW STUDENTS' SOCIETY. The first weekly meeting of this society was held at the Hull Law Library, at 6.15 p.m., on Tuesday, the 3rd inst. Mr. Laverack was in the chair, and the following question was discussed by the members: "A., who died since 1838, devises his real estate at Blackacre to his daughter B. and her issue for ever."

At the time of A.'s death B. has

two children. Do B. and her two children take an Mr. Laverack leading in the affirmative, and immediate estate as joint tenants in fee simple ?" Mr. Bromby following in the negative. The point was finally decided in the negative. Three gentlemen were elected members of the society.

On Nov. 10 the subject of the president's examination will be "Contracts for Sale of Goods.". Moot Point.-A. advanced to B. 200!., receiving "In confrom him the following memorandum, sideration of 2001. this day advanced to me by A., I undertake to execute to him a bill of sale of all my effects whenever required by him so to do." Some months afterwards a bill of sale was executed became bankrupt, the adjudication being within reciting the memorandum; and subsequently B. twelve months from the date of the memorandum. Is the bill of sale void as against assignees in bankruptcy? (See Mercer v. Peterson, 37 L. J. 54, Ex.) In the affirmative, Mr. Sibree; in the negative, Mr. Dawson.

SCOTTISH LAW AMENDMENT SOCIETY.

Recently a meeting was held in the Hopetounrooms, Edinburgh, for the purpose of forming a Scottish Society for the Amendment of the Law. Mr. Young, M.P., advocate, occupied the chair, brooke, M.P., the Solicitor-General, Sheriff's Campand among those present were Sir Edward Colebell, Jameson, Heriot, and Shand, Professor Lorimer, Mr. Carment, President of the Society of Solicitors to the Supreme Courts; Mr. Wardlaw, Parliamentary solicitor, London: Mr. Charles, Cowan, of Valleyfield, &c. Mr. M Lennan advocate, stated that letters had been received from sixty-four gentlemen in different parts of the country, indicating their willingness to join the society. Sir Edward Colebrooke remain so great diversity between the laws of said it was to be regretted that there should still England and Scotland, and he moved, "That it is expedient to form in Scotland a society for promoting the amendment of the law; and that we, therefore, with those who have intimated their willingness to join us, now form ourselves into a society, to be called 'The Scottish Society for Proadvocate, seconded the motion, which was adopted. moting the Amendment of the Law."" Mr. Watson, The Solicitor-General moved, "That the constitution of the society and its objects be the same mutatis mutandis, as those of the English Law Amendment Society, now incorporated with the National Association for the Promotion of Social Science." Mr. A. B. Shand, advocate, in seconding the motion, referred to the newly-appointed Scotch Law Commission. He said he thought it was matter of great regret that, as that body was constituted, Lord Westbury had seen fit to retire from it. In the loss of Lord Westbury there was the loss of one of the most important elements in that commission. He might also say that while he gave the Lord Advocate the utmost credit for a sincere desire to appoint a commission that would that respect--he thought the commission was subthoroughly do its work and he believed there was no man more conscientious in doing his work in ject to the observation that there were some names conspicuous from their absence. He alluded particularly to the omission of the names of their chairman, Mr. Young, Sir Edward Colebrooke, and Mr. Baxter, M.P. The motion was unanimously carried. On the motion of Mr. Carment, S.S.C., seconded by Sheriff Maitland Heriot, Mr. Young, M.P.. was appointed the first president of the association. The following gentlemen were the Solicitor-General, Mr. Baxter, M.P., Mr. elected vice-presidents: Sir Edward Colebrooke, Watson, advocate; Mr. J. C. Brodie. W.S.; Mr. Andrew Bannatyne, Glasgow; and Mr. TowarsClark, Glasgow. The proceedings then terminated.