To Readers and Correspondents.

ERRATUM.-Mr. Campbell Foster wishes us to state that he is not settled at Leeds, but merely attends the assizes and sessions there as a member of the northern circuit.

All anonymous communications are invariably rejected.

All communications must be authenticated by the name and address of the writer not necessarily for publication, but as a guarantee of good faith.

NOTICE.

The LAW TIMES goes to press on Thursday evening, that it may be received in the remotest parts of the country on Saturday morning. Communications and Advertisements must be transmitted accordingly. None can appear that do not reach the office by Thursday afternoon's post. When payment is made in postage stamps, not more than 5s. may be remitted at one time.

This day is published, price 5s. 6d., PART V. of

MARITIME and

ARITIME LAW REPORTS (New Series). By J. P. ASPINALL,

the Superior Courts, with a Selection from the Decisions of the United States Courts; with Notes by the Editor. The First Series of "Maritime Law" may now be had complete in Three Volumes, half bound, price £5 5s. for the set, or any single volume for 22 25. Back numbers may be had in complete sets,

London: HORACE COX, 10, Wellington-street, Strand, W.C.

THE Long Vacation terminated on Thursday, and on the whole it has been a busy one. For some months previous to the Commencement of the vacation legal business had shown a large increase as compared with that of 1871, and the prospects of the Coming term, from the legal point of view, are considerably bighter than they were last year. If the contemplated changes in the constitution of the Bench are realized, the appearance of the courts and of the Bar will be materially different to what it has been for a considerable time past.

VOL. LIII.-No. 1543.

A POINT of law of considerable nicety will be argued in the case of O'Keeffe v. Cullen before the Irish Court of Queen's Bench next Term. In this action against Cardinal CULLEN, which is now wellknown to have originated in the latter suspending the plaintiff from his office of parish priest, a plea has been filed justifying the suspension of the plaintiff on the grounds of his having brought an action against an ecclesiastic in a civil court contrary to the law of his church, and his duty as a parish priest. To this plea the plaintiff has demurred. It will be seen that the question will turn on the point whether a member of the church can be bound by a rule which tends to oust the courts of their jurisdiction. The manner in which the point has been raised is novel, and the decision on it will be looked for with interest.

LORD WESTBURY announced on Tuesday last his intention to adopt in respect of the European Assurance arbitration the statutory Lord principles of calculation, as expounded by Lord CAIRNS. Justice JAMES had previously held in Bell's case that when a life assurance association was being wound-up the mode of ascertaining the value of a pending policy was as follows: Application should be made to a good office to ascertain for what premium the office would assure the life. The difference between this premium when capitalised and the premium previously paid by the policy-holder would indicate the damage sustained by him. Lord CAIRNS established a wholly different principle in Lancaster's case. His Lordship considered that the value of the reversion in the sum assured at the time of the winding-up order should be ascertained according to certain tables at 4 per cent. interest, and then the present value of the future annual premiums should be calculated, taking into account the pure premiums only, and the difference between these two sums would then represent the value of the policy. The Institute of Actuaries disapproved of this principle. Lord ROMILLY also rejected the principle laid down by Lord CAIRNS, and followed that of Vice-Chancellor JAMES. A statute, however, was passed last session establishing Lord CAIRNS's method of calculation for all future windings-up, and fixing the date of valuation at the time when the order to wind-up is made.

LORD WESTBURY has intimated that he will decide that premiums paid to the European Society between the presentation of the petition to wind-up and the winding-up order are not to be paid back. The contention on the part of the policy-holders was founded on Cook's case (L. Rep. 9 Eq. 703), in which Vice-Chancellor JAMES laid it down that a claim in respect of a policy was not affected by the non-payment of the premium which accrued due after the presentation of the petition and before the order to wind-up. The period that elapses between these two events is generally short, but in the case of the "European" it was seven months, and great numbers of policy-holders, accordingly, are interested in the question. During the interval of seven months some of the policyholders wholly abstained from paying any premiums at all; the others at first paid their premiums as they accrued due "to a suspense account until further order," according to an order made by Vice-Chancellor MALINS. Others paid their premiums in accordance with an order made by the VICE-CHANCELLOR on the 7th Dec. 1871, that the official liquidators might receive renewal premiums upon the term or condition that the respective persons paying them may (provided an order be made for the winding-up of the society) have such premiums returned in full." Lord WESTBURY considered that these orders were attributable to the great doubts and uncertainty that existed in the mind of the court as to the time of making a valuation of a policy. His Lordship was of opinion that inasmuch as a policy, to be valued, must be current at the time of the valuation, and as the time of valuation was fixed by the schedule to the new Life Assurance Act of 1870 as the date of the winding-up order, the claim of the policy-holders should be disallowed. His Lordship, however, postponed giving final judgment in the matter as the case was difficult, owing to the order of Vice-Chancellor MALINS.

66

In the Albert Arbitration Lord CAIRNS was called upon to consider the question whether the companies which had come into the Albert liquidation to establish their claim to an indemnity, were entitled to the costs of so doing? and, further, whether the assets of the Albert were liable for the costs of the liquidations of the absorbed companies. Lord CAIRNS decided these questions in the following terms :-" When the Albert did not pay the claims, there being no dispute about the claims, and the claims were presented by those who had a right to present them to one or other of the absorbed companies, those companies had the power of paying and satisfying, if they had been prepared to pay and satisfy, the claims. What was the precise ground that, technically, was the foundation of the winding-up order in each case I do not at this moment know, and it is not necessary for my purpose that I should inquire. It either was because they ceased to carry on business, or because there was a claim which they had not satisfied, or for one of the other reasons mentioned in the A But, whatever the statutory ground was which made th

wind up one or another of these companies, the real reason for the application for a winding-up was the reason of their not paying a debt presented to them for payment. If from any circumstances they were unable to make the payment, or did not choose, that is what has led to the winding-up in each case. That winding-up will settle a great many other things with which the Albert may have nothing to do. It will settle the rights of the contributories among themselves if there should be any assets to return; it will settle the principle on which they should be returned; it will finally dissolve all these companies; all that work will be done in the winding-up of the particular companies, and with all that work the Albert has nothing to do. It is the same case in substance as that which frequently occurs when a person, liable only in a secondary degree, is called on to pay a debt; he ought to pay it if there is no defence to it; and if he makes a difficulty, and renders it necessary to incur costs in order to obtain payment of the debt, such of the costs as fall on him he cannot charge against the person primarily liable. Therefore these absorbed companies cannot charge the costs of their liquidations against the Albert; but they are entitled to their costs, as any other creditors would be, of establishing their claim against the Albert."

66

THE West Sussex magistrates seem to have devoted considerable attention to framing rules under the Licensing Act. According to those rules, within seven days of the grant of the provisional licences by the Justices the applicant for confirmation is to send the licence or certificate to the clerk of the peace; within a similar period the licensing justices are to forward to the clerk of the peace, any memorial, statement, and any other evidence which may have been submitted to the licensing justices in support of the application." Any person intending to oppose the confirmation, must, within seven days of the grant, send a notification by registered letter to the clerk of the peace. In unopposed cases it will not be necessary to produce before the county licensing committee any evidence that the notices required by the Licensing Act have been given. Upon receipt of the documents, the clerk of the peace is to convene a meeting of the county licensing committee, to be held not earlier than seven clear days after the receipt of the provisional certificate or licence, for the purpose of considering the confirmation. The applicant is required to attend the meeting of the committee, and any person who has appeared before the licensing justices, and opposed the grant of a new licence, may appear before the licensing committee, and may oppose the confirmation of such grant. The county licensing committee is empowered, in their discretion, to award such costs as they may deem just to the party who shall succeed in the proceedings before them. The costs to be awarded by the committee are to be ascertained and settled by the clerk of the peace in the same manner and according to the same scale as those allowed as costs in civil cases. In case any grant for a new licence shall be sent for confirmation by the county licensing committee, and no person shall have given notice of objection, or have appeared before such committee to oppose the confirmation of such grant, the applicant is required to pay all the expenses incident to such application. In case of the conviction of the tenant of any premises for an offence, the repetition of which might render the premises liable to be disqualified under the provisions of the Act for receiving a licence for any period, the clerk of the licensing justices, in addition to the notice required to be given to the owner of such premises, is to cause notice to be given to such person other than the owner, interested in such premises, or mortgagees, or otherwise, who have given proper notice of the same to the said clerk, of the fact of such tenant having been convicted of such an offence, and the clerk of the licensing justices shall be entitled to receive from such person other than the owner, as aforesaid, the sum of 5s., for and in respect of such notice. And lastly, applicants for confirmation of licences may appear either by counsel, by attorney, or in person, and the ordinary rules of procedure in application before justices in quarter sessions, are to be observed as far as practicable before the committee. In bringing forward these rules, Col. BARTTELOT, the chairman, said "That the magistrates had thought over the matter of giving counsel exclusive audience, and they thought that in anything which came before the Court of Quarter Sessions they ought to hear counsel only, unless the applicant applied in person; but that before the licensing committee applicants should be privileged to be heard either by counsel or by attorney." This seems to us inevitable.

THE CONTRACT OF SURETYSHIP. ONE of the most important, but one of the least discussed, questions arising out of the contract of suretyship has reference to the release of the surety by condonation of the offences of the principal in respect of which the person guaranteed might claim to be indemnified by the surety. This branch of the law is not without ancient authority in some shape, but until the recent case of Phillips v. Foxall (27 L. T. Rep. N. S. 231, Q. B.), there were no decisions expressly to the point.

When a doubtful principle is settled, and when a point not before arising does arise for decision, it is highly desirable that the Profession should be clearly informed. And in the first place we would observe that the decision come to in Phillips v. Foxall was very much helped out by dicta of Vice-Chancellor Malins in the case of Burgess v. Eve (L. Rep. 13 Eq. 450). And we may say that it is the operation of the case in equity and the case at common law in agreement upon the question which renders the settlement of the principle entirely satisfactory. At the outset, however, it should be observed that Burgess v. Eve raised the old question whether a guarantee was continuing or not, but it will be seen that out of a continuing guarantee the point discussed in Phillips v. Foxall may arise. If, for instance, under a continuing guarantee the dishonesty of the principal be condoned, the surety might or might not continue to be liable. Therefore, as Burgess v. Eve is prior to Phillips v. Foxall in point of time, we will first see what the Vice Chancellor said upon the general question. The guarantee was given by a father to bankers to secure advances to his son, the latter giving his promissory note, and depositing documents and deeds to remain with the bank as security for the payment of all money due, or to become due, from the son to the bank on any account whatever. The note, which was for £2000, was discounted by the bank, and further advances were made to the son, for which further advances the father was held liable, his guarantee being continuing. It was upon the attempt to limit the construction to be put upon the guarantee, that the question we wish to consider arose. Being under seal, it was contended that the guarantee was irrevocable, and ought to be construed strictly as applying only to £2000, and by this means we arrive at the point in Phillips v. Foxall—when can a guarantee be revoked, and is it revoked by the act of the principal prejudicial to the surety, and known to the person guaranteed? The observations of Vice Chancellor Malins are perhaps the clearest he ever uttered.

66

"Certain guarantees," he said, are undoubtedly irrevocable. When a guarantee is of the fidelity or good conduct of a servant or clerk, or a person in a confidential position, it may be con sidered as a contract by the employer and employed and the surety on his behalf. Therefore if a father guarantees the fidelity of his son, and upon the faith of that guarantee the son obtains a situation, there being no misconduct on the part of his son, reason requires that the father should not arbitrarily have the power of depriving his son, or any person whose credit he guarantees, of the appointment which he has obtained on the faith of the guarantee. If arbitrarily, and without the fullest justification, he desires to withdraw that which he has deliberately entered into, I am of opinion, under such circumstances as those, that he would have no right to withdraw. But if there is misconduct on the part of the person whose fidelity is guaranteed-for instance, if a man guarantees that a collecting clerk shall duly account for all moneys received by him, and that collecting clerk is found to have embezzled his employer's money, reason requires that the man who entered into the guarantee because he believed the person to be of good character, when he finds he is not so and not to be trusted, shall have the power of saying, 'I now withdraw the guarantee I gave you; I give you full notice not to trust him any more.' Notwithstanding all that has been said, I am clearly of opinion that a person who has entered into such a guarantee, and who is therefore responsible for the person whose fidelity is guaranteed, has a right to withdraw from that guarantee when that person has been proved guilty of dishonesty."

The Court of Queen's Bench did not decide Phillips v. Foxall upon the question of the surety's right to revoke. The guarantee in that case was a guarantee of the honesty of a person employed by a tea merchant to deliver goods and collect money, and the defendant promised to be answerable to the plaintiff for any loss not exceeding £50 in all, which she might from time to time, or at any time thereafter, sustain through any breach of duty by the principal. The facts were that he became a defaulter, and, unknown to the surety, the offence was condoned upon an arrangement that payment of the deficiency should be made by instalments. This was done, almost to the full amount, when the servant became a second time a defaulter, and it was in respect of this default that it was endeavoured to make the surety liable. The court found in favour of the defendant on this short ground: "We think the surety is discharged, unless he assents or agrees after he has had notice of the dishonesty that the guarantee shall hold good for the subsequent service; but as a revocation of the guarantee as soon as the dishonesty has come to his knowledge, will be the best evidence of dissent, whether his discharge from the contract is founded on express revocation or want of assent after notice of the dishonesty, seems rather a question of words

66

than of substance."

This principle, taken together with the observations of Vice-Chancellor Malins, to our mind make the subject abundantly clear. There is one further question arising out of these cases which ought to be noticed. Parsons, in his work on Contracts, vol. 2, p. 31, lays it down, without, however, citing any authority, that "If the guarantee be to indemnify for misconduct of an officer or servant, the promise is revocable, pro

THE EUROPEAN ASSURANCE SOCIETY ARBITRATION. Ox Tuesday, the 22nd, Lord WESTBURY began his public sittings under "The European Assurance Society Arbitration Act 1872." This society was established in 1854 by the union of two companies formed shortly before, and called "The United Guarantee and Life Assurance Company," and "The People's Provident Assurance Society." Under its deed of settlement, dated the 2nd Sept. 1854, the name of the society was to be "The People's Provident Assurance Society," and the business was to consist of making and effecting assurances on lives, survivorships, &c., and of granting endowments, annuities, &c.; and secondly, of guaranteeing and becoming security for the integrity of persons holding offices of trust, and further, of receiving moneys on deposit, and granting fire assurances, and assurances against the risk of accidental death, &c.

Their capital was (subject to powers of increasing the same) to consist of £200,000, divided into 80,000 shares of £2 10s. each. At an extraordinary general meeting held on the 29th May 1862, the capital of the society was increased to £1,000,000. On the 19th April 1859 an Act of Parliament received the Royal assent, whereby the name of the society was changed to its present name, 66 'The European Assurance Society." Subject to the provisions of this Act the society was to continue established, and be regulated by its deed of settlement.

Lord WESTBURY to be solicitors for conducting under his direction proceedings in the arbitration, and all persons desirous of raising any of the preceding questions were directed to communicate with them. All communications respecting calls and other pecuniary matters are to be made to the joint official liquidator, and respecting the general business of the arbitration to Mr. PRESTON, the assistant secretary, at the office, 3, Westminster Chambers.

The following is a brief summary of this week's proceedings:In Lloyd's case application was made to the arbitrator to direct the applicant as to the method in which he was to proceed, inasmuch as he had a difficulty in obtaining the full information which he required for his case with respect to the practice of the office. The arbitrator directed that every facility should be given to the applicant by the official liquidators to enable him to obtain the required information. As the applicant and the official liquidators had not been able to agree upon a case, the arbitrator directed that a case should be prepared by each side, stating the issues specifically, and he would determine the question on these cases."

In Wallberg's case the question was considered whether the premiums that had been paid to the European during the period between the presentation of the petition on the 10th June 1871 and the winding-up order on the 12th Jan. 1872 were to be paid back or not. In accordance with orders made by Malins, V.C. some of these premiums had been paid "to a suspense account until further order," and others to an account "upon the term or condition that the respective persons paying them may (provided an order be made for the winding-up of the society) have such premiums returned in full." Lord Westbury did not determine the question, but wished to hear further argument on it. Those desirous of joining in having the point argued again are to make their application within a week from Tuesday last. Those, also, of the policy-holders who omitted to pay their premiums during the interval alluded to, and who wish to have their views considered, are to make their application within ten days from the same date. Although the arbitrator did not decide the question, he seemed to be of opinion that the premiums would not be paid back, inasmuch as the policies must be current at the time, as at which the valuation was to be made. And this time would be, in this arbitration, the date of the order to wind-up. With regard to the method of estimating policies, he is going to follow in its entirety the New Life Assurance Act of 1872, which establishes the principle for all future windings-up.

The value of the policy is to be the difference between the present value of the reversion in the sum assured on the decease of the life, including any bonus or addition thereto made before the commencement of the winding-up, and the present value of the future annual premiums.

In calculating such present values the rate of interest is to be assumed as being 4 per cent. per annum, and the rate of mortality as that of the tables known as the seventeen offices' experience tables.

The premium to be calculated is to be such premium as according to the said rate of interest and rate of mortality, is sufficient to provide for the risk incurred by the office in issuing the policy, exclusive of any addition thereto for office expenses and other charges.

This method of valuation differs wholly from that approved of by Lord Justice James in Bell's case (L. Rep. 9 Eq. 706), and by Lord Romilly in Holdich's case (14 Eq. 72).

66

The deed of settlement contained a clause giving the directors the power of purchasing the business of other life assurance and guarantee companies. Acting under this power the directors from time to time purchased the business of various companies, which had themselves previously absorbed other societies. And ultimately the European Society became the representative of forty different companies. Such is its history until the order to windup the Albert, after which it was rumoured that the European was also insolvent. The attempts to wind it up did not succeed until the 12th Jan. 1872, when an order was made by Vice-Chancellor Malins to wind-up the society. After the liquidation had proceeded in Chancery for a time, an Arbitration Act was passed on the 25th July 1872, taking the whole of the liquidation out of the court and referring it to Lord WESTBURY as Arbitrator. The Act is almost an exact reproduction of the Albert Arbitration Act. Under it Lord WESTBURY has continued the proceedings in the winding-up. The lists of contributories have been settled of the European Society and also of the British Nation Life Assurance Association, subject to certain reservations. The whole of the unpaid share capital of the European has been called up, payable in moieties, on the 31st Aug. and 30th Nov. 1872, respectively. Up to the 5th September the call had produced £18,225 14s. 6d. A call has also been made on the contributories of the Royal Naval and Military Society of £7 a share, payable in moieties on the 1st Oct. and 2nd Dec. 1872, respectively. All loans on policies in the European Society have been called in. Notice was given by the arbitrator on the 5th August, that any scheme for the reconstitution or reconstruction of the society was to be sent to him by a certain date, but no such scheme was submitted to him. He has now began his public sittings at 3, Westminster Chambers, and will sit every day until term time (Saturdays excepted) at eleven. The questions to be argued in these October sittings are those relative to the payment of premiums accruing due before the date of the order to wind-up; the question of the extent and effect of the indemnity given by the European Society to the British Nation Life Association on amalgamation; questions connected with the fund known as the Government Guarantee Fund; questions relating to the liability of contributories; and questions of novation. Messrs. MERSER and MERSER are the solicitors appointed by

In the Ruthin Guardians of the Poor case it was decided that a claim on a guarantee policy, which was payable out of the European's "reserved fund," after the exhaustion of the "assurance fund," was not payable at It was alleged that the assurance fund was exhausted, but this was held not to be the case, and the claim must first be against the assets of the society, and then application must be made for payment of the residue out of the reserved fund. With regard to the proviso in the 7th section of the Arbitration Act, "Provided always that nothing herein contained shall affect the reserved fund and the application thereof under the recited Act,' i.e., the European's Act of Parliament, the arbitrator interpreted this to mean that any dealing with the fund was subject to the limit of not imposing upon it any kind of application that was in the smallest degree inconsistent with the language of the Act of Parliament.

In the Oporto Mining Company's case a claim was made for interest at 5 per cent. on a sum due on a guarantee policy, whereby the integrity of an official liquidator was secured. The Vice-Chancellor's chief clerk had certified as to the damage incurred by the absconding of the official liquidator, only in Nov. 1871, which was after the petition to wind-up had been presented. No interest was allowed.

In the British Nation Indemnity case it was held that the covenant to indemnify, which the European entered into on its amalgamation with the British Nation, is limited to the assets of the European. The covenant was that the European would undertake, pay, and perform all dehts assurances, and other engagements or liabilities of the British Nation, and that it would "at all times thereafter save, defend, keep harmless and indemnified the British Nation and the individual proprietors of shares in the capital thereof from and against all actions, suits, proceedings, costs, damages, claims, and demands whatsoever for, upon account, or in respect of the same." However, the European's deed of settlement contained a clause, by which every contract to be entered into by the directors on behalf of the society was to contain a proviso limiting the scope and effect of such contract, so that the capital stock and funds of the society should alone be liable to answer and make good any claims on such contract. The British Nation were held to be bound by this restriction. The arbitrator deferred the hearing of the question as to whether the costs of winding-up the British Nation were to be included in their claim against the European. Lord Cairns had in similar cases in the Albert arbitration, held that the winding-up of the indemnified company would settle various things with which the indemnifying company were not concerned, and accordingly that the costs were not to be included in the claim against the indemnifying company. However, Lord Westbury seemed to be of opinion that when it was ascertained what the costs of the winding-up of the British Nation actually were, and what portion of those costs arose out of the failure of the European to abide by its covenant, then the British Nation would be entitled to claim the latter sum. The application for it must be deferred until its amount is ascertained.

In Pownall's case, one of the provisions of the amalgamation deed between the European and the British Nation was that each shareholder in the latter was to have allotted to him three shares in the European "in respect of each of his shares" in the British Nation. Three shareholders in the British Nation, had in accordance with this provision received European shares on the amalgamation. In the winding-up of the two companies their names were found on the share register of the British Nation, and they were now held to be liable to be placed on the list of contributories to the British Nation.

In the India and London Company, ex parte Dyke, an application was refus ed for the appointment of separate solicitors and a separate official liquida tor for the winding-up of this company. The application was founded on the fact that there were but three creditors, and the liquidation might be speedily completed. The arbitrator gave directions for the list of contributories to be settled as soon as possible, and the winding-up effec te d.

THE CONSTITUTION AND PROCEDURE OF THE

COUNTY COURTS.-II.

In our first paper on this subject we dealt more particularly with the judicial power of the courts as at present constituted, and the proposal to give this power to registrars in cases up to £5. Before proce eding to another branch of the question we would refer to a corres pondent's letter which appears in another part of our issue, complaining of an injustice done to the registrars. Whatever may have been the expressions which we employed, the objections which we wished to put forward had reference not so much to the personnel of the registrars, but to the registrars' courts. We certainly know of instances in which the registrar and the Judge might change places with much benefit to the public, but these are very exceptional cases, and however able and experienced some registrars may be it does not at all follow that suitors would contentedly accept their decisions in litigated matters. The Judicature Commissioners evidently understand that it is desirable, in raising the status of registrars, to open the appointments to the Bar, from which the County Court Judges themselves are drawn. We know perfectly well that the distinction between the rank and file of the Bar and of the attorneys is purely artificial, but barristers are associated in the public mind with the judicial office, and attorneys are not. Consequently, our correspondent "J. J." notwithstanding, we consider we were perfectly justified in saying what we did concerning the proposed extension of the registrar's sphere of labour. And we would add that if the jurisdiction is to be given the title of registrar should be done away with, and the registrars should be relieved of much of their routine work. It is always desirable to secure the greatest possible respect for even the most inferior tribunal.

But to proceed. That there are radical defects in County Court procedure, regarding County Courts even as mere debt collecting machines, seems to be fully admitted. At present there is no means of obtaining judgment by default, and perhaps this is the greatest defect in our County Court procedure. As the Judicature Commissioners correctly observe, "until the cause is called on for hearing the plaintiff generally has no means of knowing whether or not it is to be defended, so that unless the case comes within the exceptions provided by sect. 28 of the County Courts Act 1856 (which only applies to debts exceeding £20) or sect. 2 of the Act of 1867, he is compelled to be prepared with proof of his debt, and the going through these formal proofs occupies unnecessarily the time of the court, and keeps other parties and witnesses waiting.'

The remedy suggested by the commissioners is the obvious remedy, namely, that the same power of obtaining judgment by default, by writ specially endorsed, which has, since the year 1852 existed in the Superior Courts of Common Law, should be extended to the County Courts. To this recommendation the Commissioners; append the remark, "that although there has been a general concurrence of evidence in favour of extending the power of obtaining judgment by default to all cases exceeding £5, there has been considerable difference of opinion amongst the witnesses as to the expediency of extending it to the class of persons who are ordinarily the defendants in the smaller cases. We think it will be desirable for the protection of such persons to make special provision as to the nature of the notice, which ought to be served on the defendant, so as to draw his attention specially to his liability to such judgment, and to the steps he is to take to avoid it."

This would undoubtedly occasion a considerable change in the mode of conducting business, inasmuch as to avoid the process of judgment by default the defendant would have to enter an appearance, and whatever the consequences of failing to do this might be, small debtors, we believe, would be slow to understand the process, and still slower to avail themselves of it. In the case of a small claim the waste of time in going to the court on the day of hearing is considerable; and to add to this the necessity of entering an appearance, or giving notice of an intention to defend, would, in our opinion, give an advantage to the plaintiff still greater than that which he already possesses.

And this leads us on directly to the question of professional costs, and induces the following conclusions:-That the present procedure ought to be retained for claims not exceeding £5, but that in cases above that sum the process of obtaining judgment by default should apply, and that the costs of obtaining professional assistance should be recoverable as of course. Supposing that the suggestion to make registrars judges in cases up to £5 were adopted, more frequent sittings might be held, which would obviate the delay which now occurs and render judgment in default of appearance unnecessary. In a pamphlet which he has recently published, Mr. WETHERFIELD suggests that 40s. should be the limit below which judgment by default should not be available.

"We should much regret," he observes, "limiting judgment by default to cases exceeding £5, which would practically be depriving all present suitors of that great advantage, the present average of plaints being considerably under £3. . . . With proper care to instruct the debtor by notice in his summons that, unless he filled up a form annexed, judgment would pass, we can see no objection to such judgment by default to the smallest sums." Further, he expresses himself confident "that the defendants themselves would soon see their advantage, as the summons ought carefully to instruct them that double costs would follow proof of the plaintiff's debt after a notice of defence." This does not strike us as altogether logical. How could defendants possibly see it to their advantage that a process should be adopted which might render them liable to double costs? The effect upon debtors would probably be such that they would be afraid to do as much even as they now do in the way of defending themselves against claims which are frequently extortionate. Conceive, for example, the enormous power which this process of judgment by default would give to the tallyman, many of whose customers cannot write, and would barely comprehend a notice to defend. To this it may be replied that the tallyman's claims are ordinarily below 40s,; but, if this is so, the majority of County Court plaints being for sums of £3, there must be many debtors having some defence who would necessarily be placed at a disadvantage. Consequently we should prefer to see the jurisdiction of registrars extended, say, as a first step, to claims for £3, and required to hold fortnightly sittings. No creditor could be seriously prejudiced by so small a delay. (To be continued.)

LORD CAIRNS'S DECISIONS IN THE ALBERT
ARBITRATION.

MR. FRANCIS S. REILLY, of Lincoln's-inn, has published his first part of Lord CAIRNS's decisions in the Albert Arbitration (STEVENS and HAYNES). We extract the head-notes of the decisions which it contains.

List of Contributories.

Where a person whose name stood in the share register book of a company in liquidation applied to have his name removed from the list of contributories, on the ground that on an amalgamation the amount paid on his shares had been paid back to him by the transferee company, and his share certificates had been delivered over to that company, the payment purporting, under the amalgamation agreement, to be by way of satisfac tion and in extinction of his shares: Held, that, notwithstanding what had been done on the amalgamation, his name must remain on the list.

Amalgamation-Marshalling.

On the construction of the several amalgamation agreements between the Albert on the one hand, and the Bank of London, Medical, Family Endowment, Kent Mutual, and Western, respectively, on the other hand: Held (1) That the respective transferor companies were entitled to indemnity from the Albert against liability on policies of assurance and annuity contracts, whereon claims should be established against the respec tive transferor company; but that this indemnity was limited to the amount of the share capital and other assets of the Albert: (2) That the indemnity did not extend to the expenses of the liquidations of the several transferor companies. Amalgamation by directors, uitra vires, maintainable on ground of acquiescence of shareholders.

In this case Lord CAIRNS said, on the question of amalgamation, It is to be borne in mind that a power to enter into a contract of amalga mation is most clearly no part of the general powers which the law would imply in directors of an insurance company; it was no part of the powers committed to the directors of the Albert by the deed of settlement of the Albert. The power to insure lives, and the power to grant annuities on lives, committed to the directors of an insurance company, implying as it does skill and care on their part in selecting lives, could not be contended to authorise the taking over in mass by the executive of one insurance company of all the insured lives and all the annuity contracts of another company, selected and entered into by the executive, not of the first com pany, but of the other company.

That being so, in order to maintain a contract of amalgamation, or any rights of indemnity arising out of a contract of amalgamation, the power to amalgamate must be shown, and that power must be strictly pursued; and general principles of law which would show that in the ordinary details of business, in obtaining necessary articles and entering into contracts for them, the directors would have power to bind their shareholders, whether their shareholders had or had not stipulated for particular limits of liability in the deed, cannot be appealed to in order to support an amalga mation, or an undertaking to indemnify, as part of a contract of amalga

mation.

Mr. REILLY appears to have done his work remarkably well.