THE argument of the appeal from the judgment of the Queen's Bench Division, in the case of Reg. on prosecution of Julius v. Bishop of Oxford, which is now being heard in the Court of Appeal, has elicited an important decision on a point of practice. The counsel who appeared for the Bishop, in the course of his argument, proposed to read the report of Lord CAIRNS' speech, upon the introduction of the Public Worship Regulation Act into the House of Lords, from Hansard's Reports, vol. 220, p. 394, 25th June 1874. Upon an objection being taken to his doing so, he contended that he was entitled to read it for his purpose, which was to show what the LORD CHANCELLOR had stated was at that time the existing law, although he admitted that he could not read passages to show what was the intention of the Act then under consideration. It was contended that the case was undistinguishable from that of quoting a text-book by a living judge; and that it was every-day practice for Byles on Bills, Lindley on Partnerships, and Phillimore on Ecclesiastical Law to be referred to in argument. Counsel for the respondent objected to a report being used of any statement of law which was not the work of a barrister, and, therefore, was of no authority. The Court of Appeal allowed the speech to be read. Mr. BOWEN was arguing that, previous to the Public Worship Act, the Bishop had a discretion as to whether he would proceed in any case at the instance of a parishioner or not; and he read from Lord CAIRNS' speech the following passage, amongst others : "The bishop is to retain the discretion which he at present possesses as to whether he will proceed or not." There can be no doubt that an opinion so directly in point, coming from such a source, will have great weight with the court when they come to consider their judgment. We doubt, however, whether it is wise to allow these extra-judicial utterances to be cited in argument; and we think that the ruling of the Court of Appeal is a departure from well-established practice. It is true that of late a practice has arisen of citing living,text-writers, but it is a new and vicious practice, and one not to be extended. In Garnett v. Bradley, in the Court of Appeal, Lord Justice BRAMWELL had cited a textbook in his judgment; but Lord HATHERLEY, in the House of Lords, says (L. Rep. 3 App. Cas. 950; 39 L. T. Rep. N. S. 262): "The law upon this subject is stated in the observations of a textwriter, cited by Lord Justice BRAMWELL. But I prefer taking the law as it is laid down by Lord Justice TURNER in a well-known case," &c. In the case of Coombe v. Edwards (39 L. T. Rep. N. S. 295) Lord PENZANCE, in commenting upon the judgment of the LORD CHIEF JUSTICE in a previous case, says: "The judgment in question must also be a surprise to Sir Robert PHILLIMORE, my very learned and highly respected predecessor. After the very

unusual compliment paid to him, a living author, of quoting his valuable book on Ecclesiastical Law as a legal authority," &c. Whatever is to be said against quoting text-books by living judges, applies much more strongly to the permitting words, spoken, it may be, in the heat of debate, without due consideration, or, at all events, under circumstances the whole of which it is impossible for the court to have before them, to be cited as authority for legal propositions, by however great a lawyer the words may have been spoken. It will now become necessary for every practising lawyer, already over-burdened with reports, to add HANSARD'S voluminous journals to their number.

THE opinion appears to be still entertained, in a greater or less degree, that defendants are entitled as of right to a trial by jury. In support of this opinion it is usual to quote the concluding part of the 3rd rule of Order XXXVI., which provides that a defendant may, upon giving notice within four days from the time of the service of the notice of trial, to the effect that he desires to have the issues of fact tried before a judge and jury, be entitled to have the same so tried. Now, so far as regards a strictly common law action, there is no doubt that the above provision gives to a defendant the absolute right to elect to have the action tried by a judge and jury. The decision of Sugg v. Silber (34 L. T. Rep. N. S. 682), is an authority to that effect. Where, however, the action is not a strictly common law action, but one which before the Judicature Acts would have been properly brought in Chancery alone, the rule is different. Vice-Chancellor BACON was recently engaged in determining, in the case of Spratt's Patent v. Ward and Company (40 L. T. Rep. N. S. 250) the right of a defendant to elect his mode of trial. The action was to restrain the defendants from selling dog biscuits under the title of "Fibrine Dog Cakes," the said title tending to make the public believe that the biscuits sold by the defendants were manufactured under Spratt's patent. It was commenced in the Chancery Division to restrain the sale of certain goods by the defendants. It was stated that the article sold by the defendants were manufactured under the plaintiff's patent, and for an account and damages. One instance of an alleged improper sale was given. Issue was joined, and notice of trial before a judge alone given by the plaintiffs. The defendants then gave notice under Order XXXVI., rule 3, that they desired the action to be tried before a judge and special jury. On behalf of the defendants it was urged that they were entitled to have the action tried before a judge and jury, unless the other side showed good reason to the contrary. The 27th rule provides that the court

or a judge may, if it shall appear either before or at the trial that any issue of fact can be more conveniently tried before a jury, direct that such issue shall be tried by a judge with a jury. Similarly the court or a judge may, by the preceding rule, direct a trial without a jury of any question or issue of fact, or partly of fact and partly of law, arising in any cause or matter which previously to the passing of the Judicature Act could without the consent of parties be tried without a jury. The latter rule would seem to cover every cause entered in the Chancery Division, which before the Act would have properly been taken into Chancery. The VICE-CHANCELLOR, exercising his discretion in the above case, held that as there were questions of law to be decided beyond the one simple issue of fact to be submitted to a jury, it was desirableto direct a trial without a jury; and that the defendants were therefore not entitled to prevent the action from being tried in the mode selected by the plaintiffs. We are not such unqualified admirers of the system of trial by jury in civil matters as to regret that that system had not invaded the Chancery courts to a greater extent than has been the case.

ONE of the essential features of the law of specific appropriation has been summed up with brevity in the maxim Solvitur in modum solventis, which was applied by the Common Pleas Division in the recent case of The Lancashire Waggon Company (Limited) v. Nuttal and Others (40 L. T. Rep. N.S. 291). This was an action brought on an agreement for leasing for two several terms of three and five years two distinct portions or lots of waggons. The defendants agreed to hire forty-four waggons from the plaintiffs, paying in respect of twenty specified waggons an annual rent of £235for five years, and in respect of the other twenty-four an annual rent of £249 for three years. It was agreed that the said waggons should, at the expiration of the respective terms of the demise, and after the payment of the rents reserved during the said terms respectively, become the absolute property of the lessees without any further payments whatsoever. The defendants paid the first two years in respect of the twenty-four waggons; they subsequently sent to the plaintiffs the whole of the remaining one year's rent with a letter, stating that this sum was paid in discharge of all rent or other payment due in respect of the twentyfour waggons. The rent in respect of the other twenty waggons was then in arrear, and the plaintiff's agent declined to receive the payment upon the terms of the letter, requesting the clerk who brought it to take it back; the clerk refused to do so, and left the house without taking up the money or the letter; the plaintiffs agent thereupon retained the money, and entered it in the plaintiff's ledger as a payment upon the general account. The question for the Court to determine was whether or not the plaintiffs were not entitled so to do. "According to the law of England," said Chief Justice TINDAL, in Mills v. Fowkes (5 Bing. N. C. 461), "the debtor may in the first instance appropriate the payments solvitur in modum solventis; if he omits to do so, the creditors make the appropriation recipitur in modum recipientis; but if neither make any appropriation the law appropriates the payment to the earlier debt.' Two questions were in fact raised in the case under notice; the first was whether the contracts as to the two sets of waggons were divisible or not; the second was the question to which we have referred. The first having been decided in the affirmative, it was urged on behalf of the plaintiffs that their agent had done that would reasonably be expected. Lord COLERIDGE, however, suggested that the clerk could have abstained from taking the money upon learning the defendants' intention. If the money was kept, argued his Lordship, "it was kept on those terms on which it was sent, and on no others. It was contended that the plaintiffs had a right to keep it, and to set it off against the general account, but I cannot take that view." Cases of the above character are of the utmost practical importance; in fact, a better illustration of that cannot be needed than this decision of the Common Pleas Division. The right to appropriate the year's rent or hire carried with it the right to the property in the twenty-four waggons.

THE practice upon County Court appeals by motion under the Act of 1875 has always been confused, as we have several times pointed out. But in Admiralty cases matters are still worse, and great inconvenience has resulted from the hasty and haphazard way in which the new rules were drawn and the old ones repealed. In the case of The Confidence; The Susan Elizabelh (40 L. T. Rep. N. S. 291) this was most amply exemplified. That was an appeal from the County Court of Portsmouth; but when it came on for hearing there were no notes of any kind forthcoming by which the court could be guided, and the question was what was to be done? It seemed that by rule 32 of the General Orders 1869, provision was made for the evidence of witnesses being taken down in shorthand, and the transcript had always hitherto been used in the appeal. But this was omitted in the new rules of 1875, perhaps for the sake of uniformity in the practice of the different divisions; and parties would, therefore, have to fall back upon the judge's notes as in ordinary trials. In this case, however, the judge refused to furnish a copy of his notes, on the ground that they would be useless to the court, having been

taken for his own guidance only, and the counsel not having asked him to take notes of the points as he might have done. In this dilemma the parties came before the Admiralty Division practically for directions, it being contended for the appellants that the case should be reheard upon vivâ voce evidence, while the respondent argued that the judge's notes should first be obtained. Sir ROBERT PHILLIMORE ordered the appeal to be heard upon vivâ voce evidence, giving the parties liberty to obtain the judge's notes if they could. If all appeals from County Courts in Admiralty are to be heard after this fashion there will not be much time for any other business. It might be well, perhaps, to re-enact the old rule as to shorthand writers; but, at all events, it seems clear that the judge must be asked before the trial begins to take a note of the evidence, or similar difficulties may follow.

THE jurisdiction of the Bankruptcy Court over the debtor's property, and in settling adverse claims thereon, is a subject upon which we commented some time since. As was then pointed out, the case of Ex parte Dickin (38 L. T. Rep. N. S. 860), followed by that of Ex parte Musgrave (39 L. T. Rep. N. S. 647), stopped the career of the court in the indefinite enlargement of its jurisdiction. The result of these cases is that the court will not interfere to enforce a simple money demand by the trustee against a third person, even if accounts have to be taken, but will leave him to his remedy by the ordinary tribunals. This, as we then thought, and still think, was a most just and necessary decision. But these cases, being as they were so much against the current of former views as to cause some surprise, have been used to support a bold attempt greatly to reduce the jurisdiction of the Bankruptcy Court as against third parties. In the recent case of Ex parte Brown, Re Yates, the registrar acting as Chief Judge had set aside a mortgage deed executed by the bankrupt on the ground that it was void against his creditors as being fraudulent, and was also an act of bankruptcy by being an assignment of the whole of this property to secure an old advance. This has been frequently done by the Bankruptcy Court since the present Act was in operation. But the mortgagee, apparently emboldened by the above decisions, appealed, and argued that, he being a stranger to the bankruptcy, the court should leave the case to be decided by the ordinary tribunals. As might have been foreseen, the appeal was dismissed; but Lord Justice JAMES laid down a rule which is valuable for future guidance. He distinguished the two classes of cases that arise in reference to the debtor's property, and conflicting claims affecting the estate. He said that cases in which the trustee had only the same rights as the bankrupt should be left to the commn law courts. This is, in fact, a short way of putting the principle that was decided by the two cases we first quoted. But the LORD JUSTICE then laid it down that cases in which, by virtue of the law of bankruptcy, the trustee had a higher and better title than the bankrupt himself, as in the case before him, were intended to be dealt with and decided by the Court of Bankruptcy. This seems simple enough as a principle that can be used for all practical purposes, though instances may arise in which the boundary line would be difficult to discover.

LIABILITY OF HUSBANDS FOR DEBTS CONTRACTED BY WIVES.

THE relationship of husband and wife has from the earliest periods of our law been the source of legal problems of nicety and difficulty. One of the most recent cases on the subject was decided during the last sitting in the Queen's Bench Division in Ireland. The facts of the case were peculiar, and must be carefully distinguished from a somewhat similar case now pending in England, which we understand is shortly to come before the Court of Appeal. The defendant in the Irish case (Chappell v. Nunn) was a gentleman of considerable property in Ireland; the action was brought against him for the hire of a piano and the price of a pianette, the debt being incurred between the months of Aug. 1875 and Aug. 1876. It appeared that the defendant during the years 1874, 1875, 1876, and 1877, was suffering from mental infirmity, and was living in different asylums in England, his wife during all this period continuing to reside in a house in London, which had been taken by the defendant whilst of sound mind. Previous to the commencement of his illness the defendant had given directions that the rents of his estate in Ireland should be paid to his wife, and accordingly during the period of the defendant's confinement she received his whole income. In the year 1876 (during which the goods were supplied) it was proved she received a sum of £5000 in respect of such income. On the defendant's recovery an action was brought against him by the plaintiff for goods supplied to his wife. Three questions were submitted to the jury: First, were the articles supplied necessaries? secondly, did the defendant's wife receive money sufficient for payment of all purposes, including the plaintiff's demand ? thirdly, did the defendant ratify and acknowledge the plaintiff's debt? The jury (as is usual in such cases) found in favour of the plaintiff on all the issues, viz., in the affirmative on the first and last, and in the negative on the second. On an appeal against the verdict it was not

denied on the part of the defendant that, although a husband may be a lunatic, and living separate from his wife, yet she possesses an implied authority to pledge his credit for goods strictly necessary for her support. Such a proposition is manifestly in accordauce with justice and common sense, and may, we think, be clearly perceived underlying the entire series of decisions from Manby v. Scott down to the present day. The English decision to which we have referred above (Swift v. Nunn) goes a step further; in that case (the defendant was the same person as in the Irish case) the goods supplied consisted of butchers' meat, and were unquestionably necessaries in the fullest sense of the term. The question there to be decided (and on which We at present express no opinion) was as to whether this doctrine of implied authority to pledge the husband's credit for necessaries can be held to exist where the feme covert is proved to have received the entire income of the husband. On this point the case of Richardson v. Dubois (L. Rep. 5 Q. B. 52) would seem to be an authority; but, as the entire question will shortly be set finally at rest by the decision of the Court of Appeal in this country, it is well to abstain from speculation on the point. The Irish case (Chappell v. Nunn) differs in toto from that case. The articles supplied by the plaintiff were plainly not of necessity but of luxury. Lord Chief Justice May thus clearly and, in our opinion, correctly, lays down the law on the point: "The jury have indeed found that they were necessaries, but I do not think that finding satisfactory; it does not appear that the distinction between articles necessary for the support of the wife, such as food, clothing, and habitation, and articles of luxury, was placed before the jury; and we are not dealing with articles supplied to a minor, who may be liable for articles of dress rather ornamental than useful if the jury find they were suitable to his degree, but with the question of implied authority of the wife to pledge the credit of her husband, and I am not aware of any case that establishes that the mere relationship of husband and wife vests in the latter an authority to bind her husband in respect of musical instruments and articles of that description." This decision would appear to be a sound one in not extending to juries the power which they possess, and unfortunately sometimes abuse, of finding in minors' cases articles to be necessaries which can only be called so by straining to its utmost a very flimsy legal fiction. The second finding of the jury, that the wife had not received money sufficient for all purposes, could hardly be seriously defended; the fact that the lady had received the entire income of her husband, amounting to some thousands a year, demonstrated the absurdity of such a finding, The third finding, that the defendant had adopted and sanctioned the plaintiff's debt, rested on a curious state of facts, which were as follows: The defendant wrote a letter to the plaintiff, calling his attention to an advertisement which he had issued, declining to be responsible for his wife's debts. The plaintiff asked the court to assume that this was in reply to a letter of application from the plaintiff to the defendant demanding payment of the debt, inasmuch as at the bottom of the defendant's letter there was an entry of the price of the pianette. The Court, however, held that, even assuming the letter of the defendant was a reply to an application from the plaintiff, a reply denying a liability could not be converted into an adoption of the debt claimed. On the whole we think the decision of the Irish court is based on sound principles in refusing to extend the doctrine of liability for necessaries to cases of this nature. It would be much to be desired if a somewhat similar check were put on the generosity of juries in minor cases, who seem always ready to play the part of the good Samaritan out of their neighbours' pockets.

"DESCENDANTS" AND "ISSUE" WHEN TO BE RESTRAINED TO MEAN CHILDREN BY A CONTEXT.

RALPH v. CARRICK.

On Saturday last the Court of Appeal reversed the decision of Vice-Chancellor Hall in Ralph v. Carrick. The case before the Vice-Chancellor is reported 38 L. T. Rep. N. S. 112. The decision of the Appeal Court is of great interest-not so much for the precise point actually determined, though that is not unimportant, as for the instructive judgments delivered by the several members of the Court.

On reference to the report it will be seen that the question, or one of the questions, in Ralph v. Carrick, was whether in a gift by will to "descendants," the particular context was sufficient to reduce the generality of the word descendants, which would primâ facie include descendants of every degree, to "children" or descendants in the first degree only. The context relied on for this purpose, and which the Vice-Chancellor thought sufficient, was contained in a direction immediately following a gift by the testator of his general residuary real and personal estate after the death of his wife (to whom he had given a life interest in such estate), in twelfths, directing that three-twelfths should go

To the children of his late aunt Mrs. Wingate equally among them, the descendents, if any, of those who might have died being entitled to the benefit which their deceased parent would have received had he or she been then alive; that two such portions should, in like manner, be given to the

children and descendants of his late aunt Mrs. Bannerman; two such portions to the children and descendants of his late aunt Mrs. Montreth; one such portion to the children and descendants of his late aunt Mrs. C.; one such portion to the children and descendants of his late aunt Mrs. Matthie; one such portion to the children and descendants of his late aunt Mrs. Elder; one such portion to the children and descendants of his late aunt Mrs. Finlayson; and that the remaining twelfth part or portion should be given to the children or descendants of his late maternal aunt Mrs. Pearson; and should there be no children or lawful descendants of any his aunts above named remaining at the time these bequests should become payable, then, and in that case, the portion or portions of his said residuary estate thereby devised and destined for such of them should be placed in the general residuary fund.

The reference to a "parent's share," it was successfully contended before the Vice-Chancellor, brought the case within a rule, supposed to have been established by the decision of Lord Eldon in the well-known case of Sibley v. Perry, viz., that in a gift to "issue" a similar reference to a parent's share reduces the meaning of the words "issue" to "children."

The Court of Appeal did not accede to the argument founded on the alleged rule, but held that "descendants was a word of a less flexible or ambiguous signification than "issue," and not so easily to be controlled-that, although in legal documents "issue" embraced descendants of every degree, in common parlance issue was used in the sense of children only; as, for instance, in speaking of the issue of a marriage, children only were intended; whereas no one would think of using the word "descendants" when only children were meant to be included. The Court accordingly held that if such a rule as was alleged had been laid down in Sibley v. Perry, or subsequent cases, it would not have governed the case before it; and that adequate effect would be given to the reference to "a parent's share" by allowing it to regulate the mode in which the issue were to take, viz., "per stirpes and not per capita."

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The Court further held-or rather said, for it was not necessary to the decision-that even assuming the word used had been 66 issue "instead of "descendants," the restricted construction would not have been applicable, on the ground that in the case before them there was a gift over introduced by words showing that it was not to take effect if issue of any degree should be in existence at the death of the tenant for life, when the distribution was to be made; that the meaning of the word "issue," as used in the words introducing the gift over in the unrestricted sense must have been reflected back so as to render the interpretation of the word "issue" in the clause of gift to them consistent in both clauses. In this connection the Court spoke with approval of the decision of the late Lord Romilly in Ross v. Ross (20 Beav. 645) to the like effect.

The real importance of Ralph v. Carrick seems to us to consist chiefly, 1st, In the regret expressed by the Court that Sibley v. Perry should ever have been treated as a leading case; 2nd, In the opinion which they gave, that Lord Eldon in Sibley v. Perry never intended to lay down any such general rule as that which has been attributed to him; that, on the contrary, he carefully guarded his judgment, in order that he might not be supposed to be laying down any general rule in that case, which was decided on the whole context of a will, from which context he concluded that the word "issue" had been used as synonymous with "children;" 3rd, In the disapprobation expressed of the rule, if rule there be, and which it might possibly be now too late to question, viz., that in a gift to issue, followed by a direction that issue were to take the share of a deceased parent, the restricted construction must, in the absence of any further controlling or rebutting context, be adopted. On this, Lord Justice James took occasion to point out how terribly the reasonable wishes of a testator might be disappointed by the effect of the restricted construction in carrying away the testator's bounty from grandchildren, or more remote lineal descendants, to mere strangers; 4th, In the anticipation indulged in by Lord Justice Brett that the application of the rule, or alleged rule, in question, would, by reason of its involving the mischievous consequences mentioned by Lord Justice James, be confined to cases and circumstances precisely similar to those occurring in the authorities or supposed authorities on which the rule was, or was supposed to be, founded; in short, that the general rule, like other rules of similar mischievous tendency, would turn out to be no general rule at all, or a general rule at whose funeral, as Lord Justice Brett said, he should be pleased to assist.

Taken altogether the judgments in Ralph v. Carrick mark very distinctly the disposition of the courts to abstain from multiply. ing rules of construction, or importing fixed definitions or interpretations into any given word, phrase, or collocation of phrases. As Lord Justice Cotton remarked, rules of construction are not to be looked upon as fetters. On several recent occasions the Master of the Rolls has done good service in the same direction by his impatience of the wearisome iteration of authorities to control the interpretation of instruments submitted to him for construction, and of the endeavours of counsel thereby to show that the case before him is more or less similar to some other case reported in the books. In construing an instrument, the only proper course is for the judge, placing himself as far as may be in the chair of the testator or disponer, to extract, as best he can, the intention from

the entire instrument. This process should be completed (subject. of course, to review and reconsideration) without regard to the details of any other case, which at the utmost should be referred to merely as a guide-not a fetter. As a means of assistance in: arriving at the intention in a doubtful case, the reported decisions may be looked at, and be of service, but, considering the ever increasing bulk of our case law, we greatly sympathise with the Master of the Rolls in his deprecation of endless citations on questions of construction. In such cases there is great room for the discretion of counsel as to the selection of cases for citation to the court; and frequently enough any attempt to cite authorities. at all might well be dispensed with.

THE POWER OF RAILWAY COMPANIES TO LET
THEIR ROLLING STOCK.

THE reversal of the decision of the Master of the Rolls in Tire Attorney-General v. Great Eastern Railway Company (40 L. T Rep. N. S. 265) calls attention to a branch of the law relating to railway companies, which is of considerable moment to the large section of the public pecuniarily interested in such companies. From the evidence given in that case it appeared that a line of railway, called the Tilbury line, was constructed by contractors to whom the line was leased. The traffic was worked by means of the locomotives and rolling stock of the Eastern Counties Railway Company, by whose line and that of the Blackwall Company alone the Tilbury line had access to London. An Act was passed in 1863 to authorise arrangements between the Tilbury Company, the lessees of its undertaking, the Eastern Counties, which is called the Great Eastern, and the Blackwall Railway Companies, with reference to the lease and working of the Tilbury line, and for other purposes. By the Act in question the two last-named companies were jointly and severally empowered to take a lease or a transfer of the existing lease of the Tilbury line; it also empowered them to enter into agreements with respect to the working of the Tilbury line, and with respect to the apportionment of the traffic and the tolls. Neither company took a lease, but the Great Eastern Company continued to work the Tilbury line till the expiration of the contracting lease, whereupon it entered into an agreement with the Tilbury Company to supply locomotive power and rolling stock for the working of the Tilbury line upon terms mentioned. The Attorney-General brought an action at the relation of certain persons representing the body of manufacturers and dealers in locomotive engines and rolling stock to restrain the Great Eastern Company from letting for hire any locomotive engines or other rolling stock except for the traffic of another railway in extraordinary emergencies. The Master of the Rolls granted a perpetual injunction to restrain the Great Eastern Railway Company, their directors, agents, and servants, from letting for bire any locomotive engines or other rolling stock, except for the purposes of the traffic on another railway in extraordinary emergencies, and from manufacturing locomotive engines or other rolling stock for the purpose of letting the same on hire, or for any other purpose except for the purpose of being used by the Great Eastern Railway Company upon a railway worked by them or some part thereof. The Great Eastern Railway Company appealed from this order.

We are at present concerned with only one contention of the counsel for the appellants-namely, that there was nothing wrong in what the Great Eastern Company was doing, even in the absence of express Parliamentary authorities. The Master of the Rolls examined various Acts of Parliament, and came to the conclusion that they did not authorise the proceedings of the Great Eastern Company; in fact, that they contained no special power enabling that company to enter into any agreement which any other company would not have a right to enter into. His Lordship, however, expressed an opinion that the appellants' contract was against the public interest, because it was a contract by a railway company to let for hire, not only its own rolling stock which it had in possession, and which it would otherwise purchase or manufacture for itself for its own purposes, when not wanted for those purposes, but any quantity of rolling stock which might be required for carrying the traffic on the other railway-a businesswhich, according to his Lordship's expression, the Legislature had not considered in the public weal should be carried on by railway companies, except for the purpose of being carriers on their own line, or for the limited purpose of running over adjoining or other lines of railways.

In the Court of Appeal it was contended that, apart from any special provisions of a private Act of Parliament, the Great Eastern Company was justified in what had been done by the 87th section of the Railway Clauses Consolidation Act 1845, which enacts that "it shall be lawful for the company, from time to time, to enter into any contract with any other company, being the owners or lessees, or in possession of any other railway, for the passage over or along the railway by the special Act authorised to be made, of any engines, coaches, waggons, or other carriages of any other company. . . . or for the passage over any other line of railway of any engines, coaches, waggons, or other carriages of the company, or which shall pass over their line of railway, upon the payment of such tolls, and under such condi

tions and restrictions as may be mutually agreed upon." That this agreement is reciprocal appears from The Midland Railway Company v. The Great Western Railway Company (28 L. T. Rep. N. S. 718). The Master of the Rolls, however, thought it did not legalise the agreement. The Attorney-General, in arguing the case for the respondents, pressed the construction for which the appellants contended to its utmost, by insisting that if their contention was correct they would be entitled to enter into agreements with all the railway companies in the kingdom, such as they had entered into with the Tilbury Company.

The Court of Appeal, consisting of Lords Justices James, Bramwell, and Baggallay did not arrive at an unanimous opinion. The two former agreed in thinking that the judgment of the Master of the Rolls should be reversed, whereas the latter was of a contrary opinion. Lord Justice James did not hesitate to say that there was nothing, even in the absence of express parliamentary authorities, wrong in what the Great Eastern Railway Company were doing. "It is manifestly for the safety and convenience of the public," observed his Lordship, "that the same engines, the same carriages, the same staff should be employed to do all the work, instead of one set doing part, and another set doing another part of it." Having expressed an opinion that there was no pretences for saying that this was a sham or a colour for enabling the Great Eastern Company to enter into any distinct business outside the Act of Parliament, his Lordship went on to say, "Whether as regards a private partnership, a joint stock company, or an incorporated company, in the absence of fraud or deliberate perversion, the majority or managing partners may be trusted and ought to be trusted, in determining for themselves what they may do, and to what extent they may go in matters indirectly connected with or arising out of their business relations with others." Some instances were cited by his Lordship of actions, on the part of partners or companies, which, though not expressly authorised, could not be called illegal. Thus we may find a partner taking a cheque from a customer for an amount larger than the debt and giving the balance in cash; or a insurance company, in order to create a good impression, may pay a loss not technically covered by the terms of the insurance; or a railway company may establish refreshment rooms for the convenience of passengers, and make a profit thereby; or one company may let another enjoy the use of part of its offices at a rent. Not long ago, during the course of an arbitration in which there was a large number of witnesses, the defendants, a railway company, agreed by their solicitor to contribute half of the expense of supplying those witnesses with food during the hearing, the other half being contributed by the plaintiffs.

I

LAW LIBRARY.

jurisdiction has been arrived at. Attempts have been made from time to time to extend its powers rather than to confine them within their original limits, but these attempts were finally and completely frustrated by the decision of the House of Lords in the well-known case of The Mayor, &c., of London v. Cox (L. Rep. 2 H. L. C. 239). This decision has definitely made the Mayor's Court what it was no doubt originally intended to be, namely, a municipal court with a purely local jurisdiction. It is this question of jurisdiction which occupies the principal portion of the work now before us, and Mr. Candy deserves the thanks of all interested in the subject for the great care he has displayed in lucidly tracing out the rise and present extent or limitations of this jurisdiction. It was one of the objects of the Mayor's Court of London Procedure Act 1857 to make the court more useful and efficient by increasing its powers, at the same time keeping them within its jurisdiction. This object was chiefly attained by the 12th and 15th sections, the former enacting that "where the debt or damage claimed in any action shall not exceed the sum of £50, no plea to the jurisdiction shall be allowed, provided the defendant, or one of the defendants, shall dwell or carry on business within the City of London, or the liberties thereof, at the time of the action brought, or provided the defendant, or one of the defendants, shall have dwelt or carried on business at some time within six months next before the time of the action brought, or if the cause of action, either wholly or in part, arose therein," while the latter proobject vides that defendant shall be permitted to no

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to the jurisdiction of the court in or by any proceeding whatsoever, except by plea." The writer explains that the apparent effect of these sections is that, while a person sued on a claim exceeding £50 is not to be permitted, to challenge the jurisdiction "in or by any proceeding whatsoever, except by plea" ("it does not say,' says Mr. Candy, "otherwise than by plea"), every person sued on a claim not exceeding £50 is further forbidden to resort to that mode of objection. one section," continues our author, “takes away from all defendants in the Mayor's Court the right of objecting by any proceeding whatsoever except one; the other section takes away from such defendants as are sued under the conditions therein set forth the right of objecting by any proceeding whatsoever." that the result is that in cases within the terms of sect. 12, the Mayor's Court is absolutely precluded from all inquiry into the question of its own jurisdiction, because the defendant has no means whatever of raising the question in that court. Candy confutes this absurdity by showing very concisely what was the real intention of the Legislature. This the view taken in the case of Hawes v. Paveley (34 L. T. Rep. N. S.), which decided that the joint effect of the 12th and 15th sections of the Mayor's Court Procedure Act is to take away from a defendant sued in the Mayor's Court under certain specified conditions the right of moving for a prohibition, either in his own name or in the name of anyone else; and it also decided-or rather assumed as settled law-that in cases where these conditions are not present, there is nothing in sect. 15 to prevent the defendant from doing what the Crown and any subject of the Crown, including the plaintiff, may an inferior Superior Court that do. namely inform the The author's allusions to court is exceeding its jurisdiction. the questions relating to attachment, the service of process, and the effect of the Judicature Acts on the Mayor's Court procedure are well thought out and alike interesting and instructive. In the chapter on procedure Mr. Candy makes some useful suggestions in reference to pleading counter-claims since the Judicature Acts. Although there is no provision made in these Acts for the mode of pleading a counter-claim in the Mayor's Court, he considers that there ought to be no doubt on the subject. He submits that the Mayor's Court has no power to refuse to try any claim set up by the defence, but that it has power to say how it shall be set up. In the absence of any reguÍation to the contrary, Mr. Candy assumes that a claim set up by a defendant is to be pleaded as nearly as may be in the same form as would be used if the like claim were set up by the plaintiff. The counter-claim, he suggests, should be like any other numbered plea, and should commence thus: "And, by way of counter-claim, the defendant says that, &c." (here the cause of action should be stated as in the declaration), and should conclude with a claim for £ (if the amount be liquidated), or for damages, &c. (if the amount be unliquidated), or (where necessary) for such other and further relief as the Particulars of counternature of the case may require." claim, he says, should be given with the pleas, just as, under the practice before the introduction of counter-claims, the defendant had with his pleas to supply particulars of set-off, and the plaintiff to supply particulars of demand with or after declaration. In pleading to a counter-claim plaintiff should treat it as one of the pleas, and not as a statement of claim.

The work concludes with an appendix containing precedents of forms used in the Mayor's Court, scale of costs and other information. It is a book upon which great care has been bestowed by a gentleman who thoroughly understands his subject.