« ZurückWeiter »
No.895-VOL. XVIII. MARCH 4, 1854. Price 18., with Supplement, 23.
NAMES OF THE CASES REPORTED IN THIS NUMBER.
COURT OF QUEEN'S BENCH-(Continued). In re The Joint-stock Companies Winding-up Acts, In re Stephenson v. Raine.-(County Court-Jurisdic. and in re The Northern and Southern Connect.
tion- Office-Parish Clerk-Hereditament -9 $ ing Railway Company, (Mercer's Case).—(Alleged
10 Vict. c. 95, s. 58) ...
176 Contributory-Tender of travelling Expenses of, when summoned as a Witness before the Master).. 161
COURT OF COMMON PLEAS.
Clulee o. Bradley.- (Practice-Change of Venue-
Afidavit-Reg. Gen., H. T., 1853, r. 18) 177 the Curtesy—“Equitable Seisin"- Next Friend - Mistake --Acquiescence - Bill of Review-Va.
COURT OP EXCHEQUER. riation of original Decree).
162 Griffith v. Selby.- (Practice-15 & 16 Vict. c. 76, COURT OF QUEEN'S BENCH. s. 83- Pleading-Several Pleas)
178 Frost o. Oliver.-(Ship-Agreement for Sale-Ven.
COURT OF ARCHES. dor continuing in Possession-Goods suppliedAuthority of Master, at Home and Abroad, to Money v. Money.-(Practice-Husband and Wifepledge the Credit of registered Owner)
179 Bartlett v. Kirwood.- (1 & 2 Vict. c. 106, ss. 54, 58— Monition-Sequestration-Opportunity of answer.
PREROGATIVE COURT. ing Charge“ Space of one whole Year," Meaning In the Goods of Thomas Smith.-(Practice-Invalid of). 173 Marriage-Revocation of Will).
a person, in the presence of the prosecutor, threatened The Scale of Charges for Advertisements will in future be to give the prisoner into custody unless he told him as follows:
£ 8. d. “what business he had” in a stable, (where the offence For 2 lines or under.
0 2 0
was alleged to have been committed); and in a subse3
0 2 6 4
0 3 0
quent part of the same conversation stated the nature 5
0 3 6 of bis suspicions, when the prisoner confessed. The 6
0 4 0
confession was held to be inadmissible in evidence, And so on, at the rate of 6d. per line.
although at the time when the threat was made the A discount, proportioned to the number of repetitions, nature of the charge had not been stated. Before he will be allowed upon all Advertisements ordered for three or more insertions.
made the confession, however, he had been told, in the
presence of the prosecutor, what the charge was. The LONDON, MARCH 4, 1854.
person using the threat was not a person in authority,
but the prosecutor being present, it was the same as if OUR last review of criminal cases was in October he had used the threat himself. last*, and since that period several important decisions Embezzlement.-(See Larceny). have proceeded from the Court for Crown Cases False Pretences.—(See Larceny).-In order to conReserved.
stitute the offence of obtaining money, &c. under false Confession. The nature of the threat or inducement, pretence, the “ obtaining” must be in accordance with and of the authority of the person using it, has been the wish, or for the advantage, or for the purpose of again considered in two recent cases. In one, (Reg. v. effecting some object of the party making the false Sleeman, 17 Jur., part 1, p. 1082), a daughter of the pretence. Thus, where the defendant had fraudulently prosecutor, (the prisoner's master), but who did not altered the amount of a letter of credit on a bank, and live with her father, and was not the prisoner's mis- obtained large sums of money thereon, for which he tress, whilst she had temporary charge of the prisoner, had given drafts on the bank referring to the letter, and who had been previously taken into custody, said to the drafts were presented, but not paid, the defendant her, “I am very sorry for you: you ought to have was convicted of having attempted to obtain money known better. Tell me the truth, whether you did it from the bank by false pretences; but although the or no. . . . . Do not run your soul into more sin, but jury found that he meant the drafts to be presented, and tell the truth;” when the prisoner made a full confes- the money paid thereon, the Court held, that if the sion. The Court held that there was no threat or money had actually been obtained, it would not have inducement held out to the prisoner, and that the con- been an offence within stat. 7 & 8 Geo 4, c. 20, inasfession was not made to a person in authority. In the much as, so far from the defendant desiring that the other case, (Reg. v. Luckhirst, 17 Jur., part. 1, p.1082), drafts should be presented, he would have been better
pleased if they had been destroyed, he having already • 17 Jur., part 2, p. 393.
received the money for them. If the drafts had been Vol. XVIII.
honoured, they said, it was not shewn that the defendant the forged document. The jury acquitted him of the would have received the money; he would not have forging, but found him guilty of the uttering with obtained it himself, nor by his agent; and the jury intent to obtain the emoluments of the office, and to must be taken to have found that the defendant merely to constitute an offence at common law, of which the
deceive the prosecutor. The facts so found were held foresaw that the drafts would be presented. (Reg. v. prisoner was properly convicted. (Reg. v. Sharman, Garrett, 17 Jur., part 1, p. 1060). In this case one of | 18 Jur., part 1, p. 157). the objections taken was, that the prisoner, being at St. Larceny.--Illustrations of the extreme subtlety prePetersburgh when he passed off the letter of credit and vailing in that portion of our criminal law which when the drafts were presented in London, had com
relates to larceny and embezzlement have been afforded mitted no offence in this country; but the Court were part 1, p. 66), the Court, after two arguments, and
in the following cases:- In Reg. v. Reid, (18 Jur., clearly of opinion that “ if a man employ a conscious much time taken to consider, decided that the prisoner or unconscious agent to commit an offence in this coun- was guilty of larceny, and not embezzlement, under try, he is amenable to the laws of England, although the following circumstances :-He had been sent with at the time that the offence was committed he was
his master's cart for some coals, which were delivered living beyond the jurisdiction.”
to him, and deposited in the cart, their price being
entered to the master's account. On the road home Upon a charge of obtaining money by false pretences, the prisoner disposed of a portion of the coals. The it is sufficient if the actual substantial pretence, which ground on which the judgment proceeded was, that the was the main inducement to part from the money, he prisoner had determined his exclusive possession of the alleged and proved, although it may be shewn in evi- coals when they were deposited in the cart; and from dence that other matters in some measure operated that time, and therefore at the time of taking, the upon the mind of the prosecutor as an inducement for that direct authority was to be found for their decision
possession was in the master. The Court considered him to part from his money. (Reg. v. Hevgill, 18 Jur., in Spears's case, (2 Éast's P.C.568 ; 2 Leach’s C.C. 825), part 1, p. 158).
especially as it is reported in the Black Book, v. 2, Forgery-Order for the Payment of Money.-To con- pp. 182, 183, which contains the decisions in Crown stitute the offence of forging an order for the payment cases, and is deposited with the Chief Justice for the of money, within the stat. 11 Geo. 4 & 1 Will. 4,
time being c. 66, it is not necessary that the name of the party to facts were as follow:-W. had contracted with a rail
In Reg. v. Beaumont (18 Jur., part 1, p. 159) the whom it is addressed should appear upon the face of way company to provide horses and carmen for the the order itself. The direction may be shewn by ex- delivery of the company's coals, and for "collecting, trinsic evidence; as, for instance, by taking and pre- receiving, and duly accounting for the monies received senting it to a “party for payment. Thus, where the for the same;" such tarmen were to obey the orders of prisoner called at a bank, and said that she had been the delivery of the coals, and “receipt and payment
the company's manager in all things connected with told by Mr. Ramsay that she was to have the sum of of monies” received by them, and W. or the carmen 8001. if she called for it; being told that his order was were daily “ well and truly to pay, account for, and necessary, she went away, and returned, presenting a deliver to the said company's manager all cheques, forged document, beginning, “Sirs, please to pay” &c. monies,” &c. which they might receive in payment of The names of the bankers did not appear on any part to receive delivery notes and receipted invoices from the
the coals. The course of business was for the carmen of the document; but their clerk said, if he had known company's office. The former they took to W. for the that Mr. Ramsay had signed it, he should have paid purpose of being entered in his books, but the invoices it; and it was held, that she was properly convicted of were left with the customer on payment of the account. forging an order within the statute. (Reg. v. Snelling, The prisoner was a carman of W., and the case found 17 Jur., part 1, p. 1012). It was said by the Court, that it was his duty to pay over direct to the comthat the putting a mere signature to a bill may be pany's clerks any money he received for coals. He, shewn to amount to a receipt, although in itself it is the money, and appropriated it to his own use, and was
having delivered coals to a customer, received no receipt, except as explained by usage; (and see, as then indicted for embezzling the money of W., bis to this point, Reg. v. Overton, post); and a request to master. It was held, by a majority of the judges, that deliver goods, although no request on the face of it, there was a privity between the prisoner and the commay be shewn by evidence to be one; that the samé pany, so as to make him their agent; that he agreed to rule is applicable to orders for the payment of money; it on account of W., and was wrongly convicted of em
pay the money to them, and therefore had not received and that if the order had been genuine, and paid, bezzling his money. it would have operated as a discharge to the bankers The prosecutor gave some marked money to a friend in respect of the payment. Parke, B., seemed to think to expend at his the prosecutor's) shop, for the purthat it might be an order within the statute inde- pose of detecting a servant whom the master suspendently of the prisoner's conduct in shewing to pected; and the servant having received the money,
it was found in his box, instead of in the till, where it whom it was addressed. The case of Rex v. Clinch,
was his duty to have put it. The jury having convicted (2 East's P. C. 938), in which it was held that an order him of einbezzlement, the Court upheld the conviction. to deliver goods must be directed to the holder of or (Reg. v. Gill, 18 Jur., part 1, p. 70). The objection person interested in the goods, if not overruled, was was, that it was the master's own money at the time held to be no longer applicable, since the change in the of the receipt of it, and therefore the offence was law not requiring the instrument to be set out in the thority of Rex v. Headge, (2 Leach's C. C. 1033).
larceny; but the Court held otherwise, upon the auindictment.
A prisoner was convicted of larceny on these facts. The prisoner was indicted for forging a testimonial It was his duty, as bailiff to the prosecutor, to pay and to his character as a schoolmaster, and other counts receive monies. Upon an account thereof rendered, it of the indictment charged him with having uttered I appeared that he had charged his master with larger payments than had been actually made, and had thereby delivered by mistake may be amended in a reasonable obtained more money than was actually due to him. time, was discussed in a recent case. (Reg. v. Vodden, The Court held that the offence, if any, was obtaining 17 Jur., part 1, p. 1014). One of the jury pronounced money under false pretences. (Reg. v. Green, 18 Jur., a verdict of “not guilty,” which was entered by the part 1, p. 158).
clerk of the peace, and the prisoner was discharged By the interpretation clause (sect. 47) of the stat. out of the dock, when other jurymen interfered, and 7 Will. 4 & 1 Vict. c. 36, relating to offences against said their verdict was "guilty;" whereupon the prisoner the Post-office, the expression person employed by or was brought back, and the jury were again asked for under the Post-office” is to include “every person em- their verdict, when they all said it was “guilty," and ployed in any business of the Post-office.” The pri- that they had been and were unanimous. The verdict soner was employed as a letter-carrier from A. to B., was amended, and the Court held properly so, and that such employment being complete upon delivery of the the conviction must stand. It had been previously letters at B. Upon one occasion, at the request of the held (Reg. y. Parkin, 1 Moo. C. C. 45) that a verdict, postmaster at B., the prisoner assisted in sorting the having been recorded, might be amended, where the letters at that place, and while so engaged stole one jury a few minutes afterwards expressed their dissent. of the letters containing money. It was contended, Stamp.-Two very important cases have been decided that as this was not an ordinary or official, but merely upon the stamp laws, which now seem to be applied a casual, employment, the prisoner did not come within without question to criminal cases, but our space will the definition,
but the Court held that he was properly not permit of our doing more than merely referring to convicted. (Reg. v. Reason, 17 Jur., part 1, p. 1014). them. In one (Reg. v. Overton, 18 Jur., part 1, p. 134)
The proof of the corpus delicti in larceny was lately it was held, that a document, not purporting on the face considered. The prisoner was found coming out of a of it to be a receipt for the payment of money, may be warehouse, where a large quantity of pepper was kept, shewn to be one by evidence aliunde, and thus be with pepper of a similar quality in his pocket. He had brought within the stamp laws; and if it does require a : do right to be in the warehouse, and on being discovered / stamp, and is unstamped, it cannot be given in evidence said, “ I hope you will not be hard with me," and took , merely for the purpose of identifying the prisoner, if it some pepper out of his pocket and threw it upon the also proves a material fact against him, e.g. the receipt ground. There was no evidence of any pepper having of the money on a charge of embezzlement. In such a been missed from the bulk. It was objected that the case the proper course is to shew that the money was prosecutor had failed to make out his case, and had not paid to the party who signed the paper or book, and thrown upon the prisoner the onus of answering it, ac- then to prove and put in only the signature. In the cording to the maxim of the civil law, “ Ei incumbit other, (Reg. v. W'atts, to be reported in part 1 of our probatio, qui dicit, non qui negat.” (Cod., lib. 2, tit. 1, next number), an unstamped agreement was held 1. 4; and see Dig., lib. 22, tit. 3, 1. 2). The Court, (Parke, B., dissenting) to be within the rule of common however, held that there was sufficient evidence of the law which prevents choses in action from being the corpus delicti to go to the jury. (Reg. v. Burton, 18 subject of larceny. Jur., part 1, p. 157*). Night Offences.-By stat. 14 & 15 Vict. c. 19, s. 1,
Review "if any person shall be found by night armed with any dangerous or offensive weapon, with intent to break or enter any dwelling-house, &c., and to commit felony Observations of a Solicitor on the Right of the Public therein; or if any person shall be found by night having
to form Limited-liability Partnerships, and on the in his possession, without lawful excuse, (the proof of
Theory, Practice, and cost of Commercial Charters. schéch excuse shall lie on such person), any picklock, &c.,
By Edwin Wilkins Field. 8vo. Pp. 96. or other implement of housebreaking; or if any person
[Longman.] shall be found by night having his face blackened or Our law of partnership requires great amendment otherwise disguised, with intent to commit a felony," in many particulars, but there is little hope of any &c. It has been decided that an intent to commit useful alteration being made while the inconsiderate felony forms no ingredient in the above offence of being cry for limited liability is kept up, in connexion with found by night with housebreaking instruments with complaints of defects in the law, which have nothing to out lawful excuse, and therefore that an indictment do with limited liability. In these observations we omitting such averment is good. (Reg. v. Bailey, 17 shall confine ourselves strictly to that subject, and Jur., part 1, p. 1106).
principally with reference to Mr. Field's pamphlet, Perjury.-A Master Extraordinary in Chancery has though it does not include, or profess to include, the no power to administer oaths in matters before the whole case in favour of limited liability*. Court of Admiralty. It was therefore held, that a Mr. Field's pamphlet is his answer to the questions conviction for perjury in an affidavit so sworn, but circulated by the Mercantile Law Commissioners. He used in the Court of Admiralty, could not be supported. complains that those questions include points of pure (Reg. v. Stone, 17 Jur., part i, p. 1106). It was said economical science, which are outside any present legithat the practice to receive such affidavits was as old timate investigation-such, for instance, as the inquiry as the Court of Chancery itself, which had a jurisdic- whether legislative acts can afford undue facilities for tion in matters within the Admiralty. Lord Campbell the creation of unwholesome competition ---questions stated that in ancient times the Lord Chancellor issued which were included, and altogether disposed of, in the letters of marque and reprisal. The Masters Extraor- settlement of the general question of free trade; and in dinary had also an old date assigned to them. Fleta another place he insists on the laissez faire principle of (4. D. 1340) speaks of “clerici honesti;” and Lord commercial legislation as a thing absolutely settled, and Campbell said they had existed from the time of the not to be opened. But all that was settled, either in Anglo-Saxons, and that they were members of the economical science or in legislation, in respect of the Wittenagemote.
free-trade question, was, that native growers and manuPractice. The important question, how far a verdict facturers have no right to confine native consumers to
* The rules relating to the important subject of proof of * See the well-written article on the subject in the Westa the corpus delicti in different cases are accurately stated and minster Review for October, 1853, and a recent pamphlet by clearly illustrated in Mr. Best's Principles of Evidence, pp. Mr. W. Ffooks, " The Law of Partnership an Obstacle to. 503—515, 2nd ed.
| Social Progress."
the home market; and the so-called laissez faire prin- binding on the firm. Thus a private shareholder in a ciple is obviously no scientific principle, but merely a joint-stock company has no power to bind the firm. statistical fact, that the history of legislation here and Every partner is liable for the whole of the partnerabroad affords many instances of interference in cases ship debts duly contracted as above, except where his where the parties intended to be benefited would have liahility has been limited by special contract with the done much better for themselves. It is not yet a creditor, (as is common in insurance contracts), by a settled principle that Government should leave people general notice which the creditor is bound to regard, to take care of themselves in every particular. There (as by a clause in the registered settlement deed of a are still economists who think that the law should in- joint-stock company, if the doctrine in The Sea Fire terfere to prevent gambling and fraud, and to enforce and Life Insurance Company, 18 Jur., part 1, p. 118, executory contracts; but the expediency of interfering is correct), or by charter or act of Parliament. with mercantile transactions is denied. Be it so. But What are called cost-book partnerships in mines are what if commerce is apt to slide insensibly into gam- frequently instanced as customary exceptions to the bling and fraud ? Is « undue” speculation with bor- general law of unlimited liability; but the only legal rowed capital a purely mercantile transaction? Is the peculiarity of cost-book associations is, that they are getting together of a flock of subscribers hy means of expressly excepted from the operation of the act for the à delusive prospectus, reports of “eminent scientific registration of joint-stock companies. If two tenants men,” &c., and then using their capital as a means of in common of a farm agree to cultivate it at their joint attracting credit, and spending the whole upon a staff expense, and to divide the profits, neither of them is of lawyers, officers, and engineers, a mercantile trans- answerable for any debt contracted by the other for the action ? We must leave the term “ laissez faire” to its purposes of the farm, unless he has given an express or legitimate use, as a convenient expression, and inquire general authority, or by his conduct has entitled the in each case what is right to be done. Mr. Field pro- creditor to imply such authority. There is no general tests against what he calls “the empirical method of presumption that a farming business is conducted on inquiry almost invariably pursued by commissioners.” credit. For the same reason the manager of a joint “ To ascertain any scientific truth, (and I need not adventure in a mine, whether worked on the costsay that the question before us is a purely scientific book principle or not, has no implied authority to conone, containing a solution true for all people and times*, tract debts. A mine is presumed to be a ready-money if we can arrive at it), it is a very unscientific way concern; and even debts contracted by the manager of to ask the opinion of A., B., C., D., &c., and out of the a registered joint-stock mining company would not average of their notions to think you get the truth bind the shareholders, if the deed of settlement gave the required.”. Setting aside the large class of commissions manager no authority to contract debts. issued with a view to the defending, continuing, or Partnership in an undertaking which can be carried creating of jobs, commissioners of inquiry do not pro- on without credit may be created without binding the ceed in the way described by Mr. Field. Their com- partners beyond the engaged capital. This consideramission assumes that the truth required is not to be tion answers most of the alleged examples of our found settled past dispute in a chapter of Mill, or else-law's discouragement of useful undertakings, such as where. It does not assume that the commissioners lodgings for the poor, gas, companies, water-works, understand the subject better than the rest of the world, &c. No doubt the law does a little obstruct the or that they are the most competent persons to collect proceedings of those speculative gentlemen who for particulars, make observations, and go through the their own ends are always ready to provide a poprocess of induction or analysis, as the case may re- pular want or sentiment with the corporeal tenement quire, from the beginning. If it did, commissions of a joint-stock company. But no charter or limitation would seldom be issued to members of Parliament. of liability is necessary for the making of a lodgingIt is not for their skill in such operations that men are house, or a hundred lodging-houses, of gas-works, or sent there. The commissioners are selected for their water-works, or any other undertaking of the like general intelligence and impartiality: they are asked, nature, which, as it requires no credit, needs never innot to fancy themselves Adam Smiths or Benthams, volve any liabilities beyond those distinctly provided but to procure information from all who are likely to for at the outset, and may be effected without authohave thought and observed on the subject with effect. rising any person to trade on the account of the proThe abilities of the commissioners may give value to moters. Mr. Neale's case of a lodging-house building their report, but the main object of the commission is society, chartered at the cost of 14001., is the favourite generally the appendix of evidence and information. instance to the contrary; but no practical man believes
that that charter was wanted by any one except the By our law a debtor is under unlimited liability to lawyers concerned. A deed now before us, for establishpay the debt, unless the creditor has agreed to a limitation of the liability.
ing a similar association, provides completely for every When the profits of a business are shared by several object without even creating a partnership, and of course persons, all are, in questions between them and the cre- their subscriptions. Gas companies are almost inva
without exposing the subscribers to liability beyond ditors of the business, considered as partners, whether riably established with unlimited liability, and the fear their interest was known to the creditor at the time of of it has never yet kept a town in darkness. A charter giving credit or not.
or an act is not thought of, unless the undertaking is so Every partner, whether secret or avowed, is considered to give to the persons who are publicly recog
large as to entitle the solicitor in courtesy to such & nised as carrying on the business authority to contract perquisite, or powers are required to break up highon behalf of the firm all such engagements as are usually or reasonably necessary for the purpose. But any re- the members of a firm should be allowed to limit their
Such being the state of the law, it is proposed that striction placed on this implied power, by agreement between the partners, is binding on creditors who be- liability, by a public intimation annexed to the name come such with notice of the agreement, and credit,nerally asked is the legalisation of partnerships en
or the register of the partnership. What is most gegiven to a dormant partner contrary to the intent of commandite, with the rule, that the active partners, the partnership agreement would not generally be and also every dormant partner who interferes in the
Mr. Field here runs counter to a fundamental maxim of management, 'should be fully liable. Mr. Field, howlegislation--that there is no abstract propriety in a law, apart ever, considers that all the partners should be on the from the actual condition of the people, morally and otherwise. I samé footing with respect to liability, and asks that
any two or more traders—nay, that any sole trader- would exercise a wholesome control, and leaves the field shall be at liberty to announce to the world, with free to those who are reckless. The proposition does not effect, that only a certain capital is pledged for the look well in an à priori view. Effective control, whepayment of the trade debts. Our law does not say ther with limited or with unlimited liability, can only that this shall not be done, but it lends no special help be exercised by one who advances & considerable proto the doing of it in ordinary cases. Whoever thinks portion of capital—80 much, that, being by the hypofit to make such an announcement is entitled to the thesis prudent, he would not venture it if he thought benefit of it as against those whom he can fix with there was any chance of the losses absorbing the whole. notice. If Sir J. Stuart, V.C., rightly held in the case The chance of their exceeding the amount of the capital of The Sea Fire and Life Insurance Company, (18 Jur., put in would, à fortiori, prevent his undertaking even part 1, p. 118), that notice of the registered settlement the limited liability. Mr. Field's first instance is that deed of a joint-stock company is notice of the contents of undertakings requiring a large capital to be raised of the deed to all persons dealing with the company, the by companies. “By saying that all such combinations law has already conceded all that is asked with respect shall be on the unlimited liability principle, the law to joint-stock companies; and unless Mr. Field desires interposes an obstacle of risk which at once makes all that in other cases those also shall be bound whom the capitalists embarking require great returns-which, in announcement never in fact reached, we do not know other words, excludes the public from the benefit of what more he wants. It seems, then, that Mr. Field cheap capital in their undertakings.” “Cheap capital” is saying to the Legislature, not “ laissez faire," but means small profits; and as the rate of profits is not "interfere."
regulated by the capitalist's notion of what is an adeThe advocates of limited liability say that it is un- quate return, but by the laws of demand and supply, just and tyrannical to hinder a man from employing (being always as much as he can get), the proposipart of his capital in trade without becoming liable tion amounts to this-that the risk in question either for all the trade debts. It seems to us a perfectly rea- prevents a particular undertaking altogether, besonable rule. It is reasonable that a trader should be cause the expected profits would be too small, or preliable for his debts in solido. He may make a diffe- vents the establishment of competing companies, and rent contract with his creditor if he can; but when he thereby enables one to enjoy a monopoly and high asks the State to contrive machinery to assist him in profits. There is no other possible mode of excluding making what primâ facie is an unreasonable arrange- cheap capital.” Mr. Field, therefore, asserts, that in ment, he must give better reasons than we have yet this country, first, useful undertakings are checked by heard for the application.
the difficulty of procuring subscribers to them with Interest is the return due to capital for its use, in- unlimited liability; and, secondly, successful undercluding also, in the common meaning of the term, takings, not being legally monopolies, become so pracinsurance where the capital is risked, though that is tically from the absence of competition assertions rather to be reckoned as the profits of the trade of lend- which are notoriously contrary to experience. In every ing money. Profits are the returns, beyond interest on mercantile country a glut of capital, followed by wild capital and insurance, due to sagacity, skill, prudence, speculation, ending in a panic, occurs periodically, like honesty, industry, and enterprise. The object of legis- the return of a comet. It is commonly said that the lation should be to encourage the exercise of those period in England is seven years, in America four qualities wherever they exist. Those who have capi- 1 years. A people whose ordinary mercantile transactal, and do not possess or exercise the faculties necessary tions are so frequently deranged by panics can have no to turn it to account, have no claim to share in the re- reason to complain of the discouragement of wholesome ward of their exercise by others. The idle capitalist enterprise. If capital is found for wild speculations, should be content to circulate his capital through the while there is not enough for prudent ones, it is the fault channels of the 31. per cents. and mortgages. Even of the public judgment, not of the law. discounts are beyond his sphere. We are told that Mr. Field's next objection to unlimited liability limited liability is necessary to protect small capitalists is, that it creates middlemen, whose profits must be from the competition of large capitalists. This is the charged to the public. “These middlemen are bankers, fallacy of changing the terms. There is no competition bill brokers, merchants, and others, who live on difbetween large and small capitalists, to the peculiar de- fusing (virtually on del credere commission) capital, triment of the latter. On the contrary, the interest on from the cautious lender to the most wildly speculative small loans, like the rents of small houses, is always at borrower;" so that, after all, the cautious lender does the highest rate. If the small capitalist, seeking to contribute capital to wild speculations-capital dear to eke out his interest with a share of the profits which the speculator, but not dear to the public. This is all he does not earn, finds that he must accept the risks that Mr. Field says on that head. If he had only incident to the pursuit of profits, he is not wronged. paused a little before flying off to another topic, he The real sufferer is the man who, possessing mercan- might have discovered the fallacy of all the objections tile abilities with little capital, is prevented from to the law founded on its assumed interference with exercising them by the competition of those who use the free employment of capital, and he might also have both abilities and wealth. He would have reason to thought of consulting Mr. Mill, who, we presume, complain if the encouragement of mandatory partner agrees with other economists in regarding bankers, bill ships superadded the competition of mere brute capital, brokers, merchants, and the whole class of mercantile and made his rise from the rank of clerk or gérant still middlemen, as the means, and the only possible means, of more hopeless.
keeping commerce, credit, and speculation in a healthy Mr. Field says that there are cheap capitals and dear state. Not to mention that without this police of midcapitals, and that unlimited liability makes capital dlemen the honest and prudent trader would be undear by raising the risk. The risk incident to the addistinguishable from, and have no advantage over, the venture per se cannot be affected by the law of partner-knavish or foolish adventurer, Mr. Field has only to ship; and any difference of risk in favour of a limited recall his Anti-Corn-law rudiments to perceive how liability must arise either from the risk being shifted much more frequent, violent, and disastrous the flucfrom the debtors to the creditors, (who in their dealings tuations in the supply of capital would be if it were not will charge an equivalent insurance), or from the risk regulated by a class of men performing the same service being actually diminished by the limited system, or in the money market that the corn merchants do in from both causes. Mr. Field relies only on the second, Mark-lane. insisting that our law repels prudent capitalists, whó! Next, the law of partnership overstocks certain trades.