To Readers and Correspondents. E. S. G.-1. You cannot do both. You will have to give up your articles, and keep your terms at one of the Inus of Court, and either pass an examination or study in a barrister's chambers for twelve months. 2. Middle Temple. 3. 100%, we believe, unless you have taken a The objection to the old law was to its seeming inequality. We say seeming, because it was in appearance only. It provided a summary jurisdiction in certain disputes, and gave a remedy to either party; but the remedy against the master was an order to pay the wages or compensation found to be due; the remedy against the servant was punishment by imprisonment. In this there was no practical injustice, for the master was always able to pay and unable to evade the law; while the servant usually had nothing that could be taken, and therefore DIARY OF SALES BY AUCTION DURING would enjoy virtual impunity unless some per University degree. 4. Yes; you can do nothing whilst keeping terms. 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. THE NEXT WEEK. Advertised in the Law Times. Valuable reversionary interest in funded property and important estates in Sussex. Advertised this day. 3s. 6d. CHARGES FOR ADVERTISEMENTS. Advertisements must reach the office not later than five o'clock on Thursday afternoon. NOTICE. The Fifteenth Volume of the LAW TIMES REPORTS is now complete, and may be uniformly and strongly bound at the LAW TIMES Office. Price 48, 6d. THE NEW COUNTY COURTS ACT. THIS Act does not come into operation until the 1st Jan. 1868. A plaint may be entered in the County Court of the district in which the defendants, or one of them, shall dwell or carry on business at the time of action brought; or with leave of the Judge or Registrar, in the district where he has done so within six months, or where the cause of action wholly or in part arose. No action is to be maintainable in any court for ale, porter, beer, cider, or perry, consumed on the premises. Costs are not to be recoverable in the Superior Courts in any action of contract where 20% is not recovered, or in tort where 107. is not recovered, unless the Judge shall certify, or a Judge in chambers so order it. Where, in an action of contract brought in a superior court, the claim indorsed on the writ does not exceed 501, or is reduced by payment as an admitted set-off to a sum not exceeding 507, the defendant may apply to a Judge in chambers for the plaintiff to show cause why it should not be tried in the County Court in which the action might have been commenced, and the Judge may so order, and the proceedings are then to be continued in the County Court. Where any proceeding is taken in the superior court in Equity which might have been taken in the County Court, either of the parties may apply to a Judge in chambers for the transfer of it to the County Court, and an order may be made accordingly. sonal punishment could be inflicted. Again, the wrong done to a servant by dismissal was slight, and could in all cases be compensated by By Messrs. RUSHWORTH, JARVIS, and ABBOTT, at the Mart damages; but the injury done to a master by breach of contract by his servant, the stoppage of an entire manufacture, the spoiling of a costly process, the penalty for not performing a contract, the destruction of valuable material, and the like, was of such magnitude, and so serious in its consequences, that no damages the servant could pay would adequately protect the master. But the law was made the theme for demagogues in the press and on the platform, and it has been amended in manner following: When either employer or employed shall neglect or refuse to fulfil any contract of service, or the employed shall neglect or refuse to enter or commence his service according to his contract, or shall absent himself from his service, or whenever any question, difference, or dispute shall arise as to the rights or liabilities of either of the parties, or touching any misusage, misdemeanor, misconduct, ill-treatment, or injury to the person or property of either of the parties to any contract of service, the party aggrieved may lay an information or complaint in writing before a justice, setting forth the grounds of In any action for malicious prosecution, illegal complaint, and the amount of compensation, arrest, illegal distress, assault, false imprisonor damage, or other remedy claimed, upon ment, libel, slander, seduction, or other action of which a summons is to issue for the appear-tort brought in a superior court, on affidavit that the plaintiff has no visible means of paying the costs if a verdict be not found for him, a Judge of the court in which the action is brought, may order the plaintiff to give security for defendant's costs, failing which the action shall be stayed, or the cause may be remitted to a County Court for trial, and the costs allowed shall be the costs of the County Court only. The New Volume of the LAW TIMES, just completed, may be uniformly and strongly bound at the LAW TIMES Office for 58. 6d. 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. Subscribers and Advertisers are requested to make their Cheques and Post-office Orders payable to Mr. HoRACE Cox, the latter at the Strand Office. NEW AND CHEAPER EDITION. On Saturday next will be published NEW EDITION, revised and enlarged, ance of the party before two justices, not less for the use of Families and Schools, price 6. Gd cloth, ilt, of HINTS for the ARTS of READING, SPEAKING, and WRITING; Letters to a Law Student. By EDWARD W. COX, Recorder of Helston. London: LAW TIMES Office, 10, Wellington-street. W. C. THE Law and the Lawyers. THE JURY COMMITTEE. THE state of the jury system led to the appointment of a Select Committee by the Commons to inquire and take evidence as to the law and practice relating to the summoning, attendance, and remuneration of special and common juries. The committee have made what is termed a report, but is in truth no report, so that not even the materials have been furnished or suggested for a measure next session to improve the system. The socalled report is to the effect that, in consequence of the late period of the session, the committee have been unable to complete their inquiry, and they have accordingly agreed to report the evidence taken before them, and to recommend to the House the reappointment of the committee next session. As the committee commenced their sittings on the 17th June, and sat only four times, the last time being the 8th July, the excuse of want of time is not altogether satisfactory. They examined six witnesses-Mr. T. W. ERLE, associate of the Commom Pleas; Mr. Serjeant PULLING, who, though not officially connected with the system, has devoted a great deal of time to the subject of the jury laws; Mr. Deputy-Sheriff BURCHELL; Mr. Secondary POTTER; Mr. C. J. ABBOTT, Under-Sheriff for Surrey; and Mr. H. POLLOCK, Associate in the Court of Exchequer. We trust that the House will give its early attention to this important subject when it meets again. Meanwhile we may on a future occasion find it advantageous to refer to some of the more important parts of the evidence. NEW LAW OF MASTER AND The recommendations of Lord ELCHO'S Com- It applies only to the same classes of servants as the Acts to which it refers, namely, to artificers and servants in husbandry, not to domestic servants. VOL. XLIII-No. 1274. | than two nor more than eight days from the date Upon the hearing of the complaint the justices Damages may be assessed without annulling the contract, or the contract may be annulled and a fine imposed, or both, at the discretion of the justices. Where the condition of any bond for the performance of a contract has not been fulfilled, its enforcement may be ordered after hearing the parties and the sureties. Orders for the payment of money may be enforced by distress. Imprisonment is to operate as a discharge of compensation. The justices may direct part of a fine, not exceeding one-half, to be applied to compensate the party wronged for any loss or injury he may have sustained. Where the wrong complained of is of an aggravated character, and not committed "in the bona fide exercise of a legal right," or supposed legal right, and it is found that pecuniary compensation, or other remedy hereby provided, will not meet the circumstances of the case, the justices may commit the offender for a term not exceeding three months. A party convicted may appeal to the quarter sessions. The parties to the contract are to be competent witnesses. Nothing in the Act is to prevent the enforcement of any writ, right by action, nor prosecu. tion by indictment for felony or misdemeanor, nor take away or abridge any trial or special jurisdiction touching apprentices. A schedule of forms is given. The Act is only temporary, for one year from the passing of it, and to the end of the then next session of Parliament. The jurisdiction in equity is extended to suits of specific performance for the delivery up, reforming, or cancelling any agreement for the sale, purchase, or lease of property, where the value does not exceed 5007 Actions of ejectment where the value in dispute is not more than 204. per annum may be brought in the County Court, and it is also empowered to try questions of title to any corporeal or incorporeal hereditaments, where neither the value of the property nor the rent payable for it, exceeds 201. per annum. But the defendant may apply to a Judge in chambers for a summons to the plaintiff to show cause why the action should not be tried in a Superior Court, and the Judge on hearing may so order, if satisfied that the title to other lands would be affected thereby. An appeal is to be allowed in all such actions. The court may award costs where a cause is struck out for want of jurisdiction. A scale of costs to be allowed to counsel and attorneys in the above actions is to be framed by the Judges. Judgment may be entered where defendant does not appear. But the Judge may grant a new trial on terms. Where a defendant appears, and admits or authorises the admission of a claim, the registrar may settle the terms of payment and enter judgment accordingly. Any Judge of a County Court may act for any other Judge, and a Deputy Judge is to have all the powers of his principal. Trustees may pay into the County Court any moneys not exceeding 5007., under the provisions of the Trustees Relief Act, and all the powers of the Court of Chancery are given to the County Court for the purpose of dealing with it under that statute. Moneys paid into a County Court in equitable proceedings may be invested in a post-office savings' bank. Proceedings in equity may be commenced by summons. No action that can be brought in a County Court is to be brought in any hundred or other inferior court, whose officers are to be compensated. The Treasury is to make order for fees of registrars and bailiffs under this Act. The high bailiff may interplead where claims are made as to goods taken in execution. This Act is to be construed as one Act with the several County Court Acts, and to be cited as "The County Courts Act 1867." THE LORDS' VIEWS ON THE OAKES' The LORD CHANCELLOR's opinion turned first on the distinction between a void and a voidable contract putting together the 23rd section of the Act, that every person who had agreed to become a member and whose name was registered should be deemed to be a member, and the 74th, that "contributory should mean every person liable to contribute to the assets in the event of a winding-up," he concluded that a contributory was a person who had agreed to become a member and whose name was registered. But "agreed" did not mean having entered into a binding agreement. The consent of the will, which constituted the agreement, was one thing, the motive and inducement to give that consent was another and different thing. An agreement induced by fraud was in one sense not a binding agreement, as it was in the option of the person defrauded whether he would be bound by it or not. But when the winding-up order came and found Oakes with the shares in his possession and his name on the register, the agreement was a subsisting one. To hold otherwise would be to disregard the established distinction between void and voidable contracts. rateably as in a bankruptcy. This made no speculation had proved a failure, and claim to The Act contained on the face of it ample proof that the rights of creditors were not inIt was said, however, that the Act was to be tended to be affected, except only by the introregarded merely as an adjustment of the rights duction of the principle of limited liability. By of the shareholders inter se, and that, as the liqui- the Acts of 1844 a register of shareholders was dators represented the company, the liability of to be kept, which every shareholder was to be at Oakes must be determined as between himself liberty to inspect. There was a similar obligaand the company, and not as respects creditors, tion in the Act of 1862 as to keeping a register; with whom he never contracted. It was true but there was an important change, for the there was no contract between a creditor and the register was to be open not only to shareholders, shareholders, and that the creditor probably but, on payment of a shilling, to all persons, never thought of the shareholders in his dealings which would therefore include creditors. That with the company; but he must be taken to seemed strongly to indicate the intention of the have known what his rights were under the Act, Legislature that the creditors were to look to and that he had the security of all the persons this document as showing them to what extent whose names were to be found on the register, they might trust the company. Before the and who had agreed to become shareholders. introduction of limited liability, the power was The liability of these shareholders was not under not so necessary. A creditor could scarcely fail a contract with the creditors, but it was a to know some, at least, of the shareholders, and statutable liability under which the creditors there was no limit to the extent to which he had a right attaching on the shareholders to might obtain execution against shareholders of contribute to the extent of their shares towards wealth. The permission to all persons to inspect the payment of the debts of the company. the register would have been an unwarrantable There must be an agreement to become a share-exposure, were it not that all persons had, or holder; and, as to any variation from the pro- might have, an interest in knowing who were spectus, persons who had taken shares were liable, and to what extent. bound to make themselves acquainted with the memorandum of association, which was the basis upon which the company was established. If they failed to do so and the objects were extended beyond those in the prospectus (a fact which might be easily ascertained) the persons who had so taken shares on the faith of the prospectus ought to be held to be bound by acquiescence. This rendered unnecessary the consideration in each case whether a reasonable time had or had not elapsed from which acquiescence might be assumed. Lord CRANWORTH considered that the first question was, whether the change effected by the Act of 1862, in the mode in which a creditor was obliged to seek relief, made a difference as to who were liable to him as shareholders. Previously to that Act the creditor's remedy, under the Joint-Stock Companies Act of 1844, and the Act of the same year for the regulation of banking companies, was by action against the company, and if on recovering judgment against the company he could not obtain satisfaction, then by execution against any individual shareholder. The creditor must now, as under the former Acts, proceed against the company, but he had no power to proceed against any individual shareholder. He must obtain an order for winding-up the affairs of the company by causing all its assets to be called in and distributed among all the creditors This view was strongly confirmed by the language of the statute in the 74th section defining a contributory, the 38th declaring that present and past members were to be liable to contribute, and the 23rd, that every person who had agreed to become a member, and whose name was entered on the register, should be deemed to be a member. The name of Mr. Oakes was certainly entered, and, admitting the fraud and misrepresentation, still he agreed to become a member, that is, he in fact agreed. With his rights against those who deceived him the outer world had nothing to do. The Legislature intended to put the persons whose names were on the register in the same position towards creditors (subject, of course, to the statutable restrictions) as persons engaged in an ordinary partnership, or persons trading formerly under the Act of 1844. As regards the variation between the memorandum of association and the prospectus, Lord CRANWORTH was far from saying that if Mr. Oakes had, within a reasonable time after he agreed to take shares, examined the memorandum, and found that it differed, in however small a degree, from that on the faith of which he had acted, he might thereupon have repudiated his status as a shareholder. But it was impossible to allow a person who had taken shares, and had gone on for nearly a year taking his chance of profit, to turn round when the Two important differences of principle in the views thus enunciated by the law lords may be perceived. The LORD CHANCELLOR rests his judgment on the language of the Act, deducing from that language the conclusion that the liability of shareholders in such cases as the present is not upon a contract with the creditors, but is a statutable liability under which the creditors have a right attaching on the shareholders. Lord CRANWORTHI, on the contrary, treats the liability as the old partnership liability, and therefore impliedly founded on a contract effected by the shareholder through the agency of the company. He considers that the right of a creditor against a contributory is merely the old right of execution against a shareholder enforced in a particular manner, and that the terms of the Act define who are the partners against whom it shall be enforced. This theoretical difference of view might possibly have some practical operation, if, for instance, a company incurred a debt in a matter beyond the scope of the objects in the memorandum of association. On the principle of partnership, a shareholder who had taken no part in contracting the debt would not be liable; but on the principle of the liability of corporate bodies, unless the matter were by clear expression or implication prohibited in the constitution of the company, the body would be liable, and on the language of the Act every member, as defined by the 23rd section, above noticed, would also be liable. A further difference was apparent on the subject of acquiescence. The LORD CHANCELLOR considered that a person who took shares on the faith of the prospectus without informing himself of the objects as stated in the memorandum of association, must be deemed to have acquiesced in any variation between the two documents; so that it became unnecessary to consider whether a reasonable time had or had not elapsed from which acquiescence might be assumed. Thus the act itself of taking the shares would constitute the acquiescence. But Lord CRANWORTH still left open the question of time as an ingredient in acquiescence, and considered that the status of shareholder might within a reasonable time be repudiated. The difference is of practiccal importance, particularly as the LORD CHANCELLOR signified his dissent from the decision in Ship's case, and other cases regarded as established authorities for relief to shareholders on the ground of variation from the prospectus on the faith of which they have taken their shares. THE NEW LAW AND PRACTICE OF CHAPTER IIL THE NEW BOROUGH FRANCHISE-HOUSEHOLD SUFFRAGE-INHABITING A DWELLING-HOUSE. ALL the existing borough franchises are unaltered. The occupation of a "house, shop, warehouse, or other building," of the annual value of 101. for twelve months previously to the 31st July, and having on or before the 20th July paid all poor-rates due in respect of such tenement before the 5th Jan., will continue to confer the franchise. But, inasmuch as precisely the same conditions, saving that of value, are imposed upon occupiers claiming to vote under the new franchise, there would be no need for preserving a distinction but for this, that the occupation of a shop, warehouse, or other building of the annual value of 107, will qualify the occupier, whereas the occupation of a dwelling-house will alone suffice to qualify an occupier of less value than 107. The manager must therefore see to the registration of all occupiers of shops, warehouses, or other buildings, which, together with any land occupied therewith, may be of the value of 107. per annum, but who are not also householders within the borough. (a) By Edward W. Cox, Recorder of Helston, Author of "The Law and Practice of Elections," &c. But where the occupation is of a house, he needs no longer to trouble himself about its value, for whatever that may be, if the occupier be duly rated, he will be qualified by the new Act. The new occupation franchise for boroughs is thus defined by sect. 3: 3. Every man shall, in and after the year one thousand eight hundred and sixty-eight, be entitled to be registered as a voter, and, when registered, to vote for a member or members to serve in Parliament for a borough, who is qualified as follows: (that is to say) 1. Is of full age, and not subject to any legal incapacity; and 2. Is on the last day of July in any year, and has during the whole of the preceding twelve calendar months been, an inhabitant occupier, as owner or tenant, of any dwelling-house within the borough; and 3. Has during the time of such occupation been rated as an ordinary occupier in respect of the premises so occupied by him within the borough to all rates (if any) made for the relief of the poor in respect of such premises; 4. Has on or before the twentieth day of July in the same year bonâ fide paid an equal amount in the pound to that payable by other ordinary occupiers in respect of all poor-rates that have become payable by him in respect of the said premises up to the preceding fifth day of January: and it: What is a dwelling-house? The interpretation clause (s. 61) thus defines "Dwelling-house" shall include any part of a house occupied as a separate dwelling, and separately rated to the relief of the poor. A more unsatisfactory definition could not have been proposed. The first and main part of it would embrace all lodgings where the tenant had the exclusive occupation of the rooms. From this formidable consequence it is only protected by the provision that it shall also be separately rated. If the rating portion of the qualification should be at any time abolished, as is not improbable, every occupier of lodgings of any value would be admissible under this definition, which was designed to meet the case of chambers and flats, but which, in fact, opens the door to all lodgers, with only the uncertain barrier of the rate to restrain the deluge. But we throw out this suggestion to the solicitors who manage the elections, whether they may not turn this grave defect in the new law to profitable present account, after this manner : The Act defines a dwelling-house to include "any part of a house occupied as a separate dwelling." All lodgings are part of a house. All lodgings of which the lodger has the exclusive control are occupied as a separate dwellinghouse. They are not separately rated, because it is the practice to rate the whole house, and not parts of it. But the overseers may, if they please, separately rate the different parts of a house if occupied by different persons, so that it is in the power of the overseers, by rating the lodgers, to manufacture votes. But, if they decline to do so, such a lodger may, under the provisions of the Reform Act, demand to be rated, and if the overseer shall neglect or refuse, he is to be deemed to have been rated, and will be entitled to be registered as if he had been rated. May not the manager manufacture votes thus? Place a tenant in every room in a house, and let each demand to be rated. Each room is a separate dwelling, and though being only part of a house, is by the Act made a qualifying dwelling-house. Let each tenant demand to be rated separately. If the overseer complies, he is qualified by the definition in this Act; if the overseer refuses, the demand to be rated is by the existing law equivalent to actual rating. The only question that can arise upon this is, whether the room or rooms are occupied as "a separate dwelling," and reference will be made to the many points that have been mooted in relation to the command of a front door and a separate or common staircase. But in all these cases the question was, whether the apartments so occupied was "a house" "a shop," "a warehouse," or "a building." The words of the new Act are "occupied as a separate dwelling," and that is a dwelling in which the occupier dwells separately from other occupiers. We throw out the suggestion, for very extensive use might be made of it. As with the old Potwallers, every room in a house might turn out a voter. This would have been avoided if Sir R. PALMER, instead of attempting the definition of a dwellinghouse, had left the name to the interpretation already put upon it by the courts. 2nd. The occupation must be as owner or tenant. Therefore an occupation as a servant will be insufficient. 3rd. The occupation must be as an inhabitant, that is to say, by personal residence therein, so that an occupation by a servant will not suffice. Some difficult questions are likely to arise upon the meaning of the term "inhabitant occupier." It is a new term in election law. The occupation here contemplated differs from the For that, mere occupation, personal or by a Occupation required for the 101. franchise. servant, sufficed, provided the occupier dwelt within seven miles from the borough. But for the new householder franchise actual inhabitancy of the house is necessary. But then the question comes, what is inhabiting? For instance, a man has two dwellings, a town house and a country house; will he be held to inhabit both; or, if not, which of them? A man may well have two dwellings, but can he inhabit two houses at the same time? If not, there will not be that con tinuous inhabitancy for twelve months which is the condition of the franchise. 107. franchise; but under the householder franAgain, joint occupiers can vote under the chise it is expressly provided (sect. 3) that "no man under this section be entitled to be registered as a voter by reason of his being a joint occupier of any dwelling-house." This raises another question: can joint occupiers vote at all? Clearly they cannot vote as such; but will it be competent to one of them to be rated and registered, or, if A., B., and C. are joint occupiers and joint tenants of a dwellinghouse, as is not infrequent, and they agree together that B. shall alone claim, will it be a good objection to B. that he is only a joint occupier? It appears to us that it would be so; but this could scarcely have been designed by the Legislature. The occupation of different premises in immediate succession will suffice to qualify under this Act as under the Reform Act. This is provided for by sect. 26: Different premises occupied in immediate succession by any person as owner or tenant during the twelve calendar months next previous to the last day of July in any year shall, unless and except as herein is otherwise provided, have the same effect in qualifying such person to vote for a county or borough as a continued occupation of the same premises in the manner herein provided. CHAPTER IV. RATING. To entitle the occupier of a dwelling-house to the franchise he must have been rated "as an ordinary occupier in respect of the premises so occupied by him to all rates made for the relief of the poor in respect of such premises:" (s. 3.) The novel term "ordinary" occupier might be supposed to have some special meaning in relation to the new franchise, for it is not found in the Reform Act. But we are unable to discover what species of occupier it is intended to designate. There is no such occupier known to the rate-book as an extraordinary occupier, nor, indeed, can any other be rated than the ordinary occupier. But the occupier must be rated by name, and to secure this as far as possible it is enacted by sect. 7 that "the full rateable value of every dwelling-house, or other separate tenement, and the full rate in the pound payable by the occupier, and the name of the occupier, shall be entered in the rate-book." If the overseer should omit to enter the name of any occupier upon the rate-book, such occupier may avail himself of the provisions of the existing law, and demand to be rated, paying or tendering any rate then due, and if the overseer should refuse or neglect to do so, he will be deemed to have been duly rated; and it is further provided by the 14 & 15 Vict. c. 14 that it shall not be necessary to repeat such demand on the making of each rate. (To be continued.) IMPORTANT PRESENTMENTS. THE Grand Juries of Lancashire and Middlesex prefer the same complaint, that actions and prosecutions are taken to the assizes that ought to be disposed of elsewhere, occupying the valuable time of the Judges, and interposing costly delays in cases that can only be heard by a superior court. This was the complaint of the Grand Jury at Liverpool: My Lord, On behalf of the grand jury I have to make the following presentment to your Lordship:The grand jurors assembled at Liverpool at the present assizes cannot separate on the conclusion of their labours without venturing to call the special of the Government, to the nature of the cases which attention of Her Majesty's judges, and through them have come before them. There can be no doubt, as the Lord Chief Justice stated in his charge, that the calendar comprised almost every class and description of offences known to the criminal law; but, upon a careful analysis of the cases, it will be found that in a considerable number the offences charged are not, in fact, of a more serious character than those which are ordinarily dealt with at comparatively small cost, and, as the grand jury believe, quite satisfactorily to the public in the Courts of Quarter Session. The grand jury, therefore, respectfully submit that, except in cases of murder, aggravated manslaughter, concealment of birth, rape, arson, placing obstructions on the railway, robberies with violence, and the forgery of negotiable instruments, there are no charges in the calendar which, if the law so permitted, might not, without any injury to the public interests, at greatly reduced cost, and to the great relief of the work of the assizes and the judges presiding there, be confided to the quarter sessions. The grand jury, in support of the opinion just expressed, may refer especially to the great number of cases of burglary, which, in fact, charges of violence to the person of very simple amount only to housebreaking after dusk, and to character, some of which last-named charges, though made the subject of indictment for felony, resolved themselves into the less serious cases of misdemeanor and unlawfully wounding. It has been the duty of the grand jury to inquire into the circumstances under which the deaths of no fewer than eleven persons have taken place; and, with reference to these cases and to the other crimes of violence not resulting in death which the calendar contains, the grand jury have been painfully struck with the fact that many, indeed most of them, were committed while the parties were in a state of intoxication, and they are satisfied that the exof many preceding assizes as to the evils attending perience of these assizes must be added to that upon our present publichouse and beerhouse system. But the grand jury, while they are advocates for a large increase of jurisdiction to the Courts of Quarter Session, are not insensible to the great public importance of investigating the administration of criminal justice with the utmost solemnity, and with the high sanction and presence of Her Majesty's superior judges. They think, however, that these solemnities so sanctioned may probably be reserved for cases involving the most severe penalties of the law. The grand jury, in calling attention to this subject, are but repeating in effect the presentment made by their predecessors through their foreman, Mr. Horsefall, twelve months ago; but they think there is special appropriateness is now referring to the subject, because it seems to be admitted that something must be very soon done to relieve the business of the Northern Circuit, and because also the whole question of circuit arrangements is, as the grand jury believes, about to be submitted to inquiry under a royal commission." His Lordship begged to thank the grand jury, on behalf of the country, for the presentment they had made, and to assure them it should be forwarded to the proper quarter. As to his own opinion, it was that of entire concurrence with the substance of what they had presented. He would only venture to add this, that, in addition to the saving of expense and time and labour bestowed on cases at the assizes, he conceived it to be to the great interest of the prisoners themselves that they should be brought to a more speedy trial than they could be if sent to the assizes. The Grand Jury at Leeds has expressed similar opinions: Before they separated Mr. Plimsall, of Sheffield, who was one of that body, addressed the judge as follows: special juries from large areas, no necessity exists in in 1866 exceeds the number in the preceding year year is 6971, or upwards of 9 per cent. As com- There was a consequent increase in the num- The judgments were, in the Q. B. 14,060; in the C. P. 11,405; in the Ex. 16,851, making a total of 42,316, as against a total in 1865 of 38,440, and against an average of the preceding five years of 34,625. The increase in the Q. B. has been 16 per cent.. in the C. P. 9 per cent., and in the Ex. 5 per cent. THE CIVIL CODE OF THE STATE OF NEW YORK. (Continued from page 274.) CHAPTER III. (continued). Consent. § 762. Mistake of fact is a mistake not caused by the neglect of a legal duty (a) on the part of the person making the mistake and consisting in = tried in the several courts, and what became of fulnes (d) of a fact past (e) or present (ƒ) mate1. An unconscious (b) ignorance (c) or forget The next list exhibits the number of causes them : My Lord,- On behalf of the grand jury I have to make the following presentment: "The grand jury summoned at the present sessions beg to call the attention of your Lordship, the Judges, and the Number of Causes. Bench, to the nature of the numerous cases brought before them. At a sessions heavier than has occurred for some months-nearly two hundred bills of indictment have been presented to them—it appears the majority of the cases have been burglaries and robberies with violence from the person. The grand jury would submit that the evidence in the majority of these cases has been so clear that it was obviously unnecessary to present the cases for their investigation; that the public-both prosecutors and witnesses-have been put to serious inconvenience, as well as the time of the grand jury taken up by these cases, which having been fully gone into by the police magistrates, might have been committed for trial without being sent before another tribunal. On the back of each bill is the name of at least one police-constable, on some three and four, and the serious detriment to the public service, and the consequent failure of justice in many instances by such a number of constables being withdrawn from their ordinary duty, seems, in the opinion of the grand jury, to call for some alteration in the law, by which, in minor cases, the preliminary forms in the administration of justice may be facilitated; and, therefore, through the proper channel, they beg to draw the attention of Her Majesty's Judges, and, through them, of Fier Majesty's Government, to this important question. — Signed, S. B. MEREDITH, Foreman." The remedy is quite obvious. The new County Courts Act Amendment Act has provided it for civil suits. The petty actions that Occupy the cause-list at the assizes will henceforth be banished from them, and only such as properly belong to a Superior Court will be tried there. But the defect lingers still in the criminal court. A Judge tries petty larcenies which should be disposed of by magistrates. An extension of the summary jurisdiction to petty offences of all kinds, misdemeanors as well as felonies, and of the jurisdiction of -quarter sessions to all cases but murder, manslaughter, forgery, rape, and arson, would accomplish all that the grand juries desire, and it may be done with perfect safety. It would be a great improvement to extend the jurisdiction of quarter sessions, and to place a paid lawyer in the chair, as in Ireland and in Middlesex. JUDICIAL STATISTICS. No. I. THE annual report for the year 1866 is now before us, and we proceed to present our customary abstract of it. The business of most of the civil courts has increased, but especially of the Common Law Courts and the Admiralty Court. The totals for the three Courts of Common Law are thus stated: Nisi Prius. Remanets from Defended 129 690 476 348 399 100 335 122 617 209 155 634 125 13 255 11 out, &c. ............ of The nature of the suits tried is thus stated : rial to the contract; or, 2. Belief in the present existence of a thing material to the contract, which does not exist, (9) or in the past existence of such a thing, which has not existed. (h) (a) United States Bank v. Bank of Georgia, 10Wheat. 343. (b) McDaniels v. Bank of Rutland, 29 Vt. 238; (c) Briggs v. Vanderbilt, 19 Barb. 222, 239; Bell (f) Hutacher v. Harris' Adm'r. 38 Penn. St. 491. (h) See Martin v. McCormick, 8 N. Y. 335. § 763. Mistake of law constitutes a mistake. within the meaning of this article, only when it arises from: 1. A misapprehension of the law by all parties, all supposing that they knew and understood it, and all making substantially the same mis7 45 take as to the law (a); or 15 51 14 21 36 9 28 4 4 5 1 9 3 1 61 132 3 23 50 23 29 to land, houses, &c....... Questions on wills. For breach of promise of marriage............ Seduction................................................ Libel........................................................ Slander..... On the case.............. Breach of covenant For recovery of rent... On life and fire policies Other suits 7 19 S ། ། 17 1115 2. A misapprehension of the law by one party. 2 9 of which the others are aware at the time of 5 4 14 contracting, but which they do not rectify; (b) (a) Many v. Beekman Iron Co., 9 Paige, 188; Holl v. Reed, 2 Barb. Ch. 501; see Pitcher v. Turin Plank Road Co., 10 Barb. 436; Wake v. Harrop, 6 H. & N. 768. *ཌ*།| 7 8 4 13 25 5 8 28 16 10 8 7 6 2 8 9 51 34 23 14 7 11 16 21 9 The following was the business of the circuits: 38,771 161 51,243 184 11,947 13,236 13,227 14,060 9,917 201 Entered Circuit. Tried. for trial. 355 246 11,405 16,851 8,087 12,049 Other special motions 198 246 432 220 255 Haud motions and on side bar rules 1,428 279 Writs of summons issued. Writs of capias... Appearances entered.. A great increase in the business of the courts is apparent. The number of writs of summons issued (b) In Cooke v. Nathan, 16 Barb. 342, it was held that a misrepresentation of the law by one party, on which the other ignorantly relied, was a fraud. It seems to follow that a transaction such as is described in the text, should be relieved against, as a mistake, if not as a fraud. § 764. Mistake of foreign laws is a mistake of fact. Bank of Chillicothe v. Dodge, 8 Barb. 233 = § 765. Consent is not mutual, unless the parties all agree upon the same thing (a) in the same sense. (4) But in certain cases defined by the chapter on Interpretation, they are to be deemed so to agree without regard to the fact. (a) Seranton v. Booth, 29 Barb. 171; Salters v. Pruyn, 18 How. Pr. 512. (b) Hazard v. New England Insurance Company, 1 Sumn. 218; Greene v. Bateman, 2 Woodb. & M. 359. § 766. Consent can be communicated with effect, only by some act or omission of the party contracting, by which he intends to communicate it, or which necessarily tends to such com munication. This is intended to exclude the possible case of a declaration of consent made to a person having no interest in the contract, and communicated by him to the other party, without authority. § 767. If a proposal prescribes any conditions concerning the communication of its acceptance, the proposer is not bound unless they are conformed to; but in other cases any reasonable and usual mode may be adopted. Dunlop v. Higgins, 1 H. L. Cas. 381, 398; Fassar v. Camp. 11 N. Y. 451. § 768. Consent is deemed to be fully communicated between the parties as soon as the party accepting a proposal has put his acceptance in the course of transmission to the proposer, in conformity to the last section. This section is intended to recognise the rule that consent is complete as soon as a letter of acceptance is put into the post-office: (Mactier v. Frith, 6 Wend. 103; Vassar v. Camp., 11 N. Y. 441; Dunlop v. Higgins, 1 H. L. Cas. 381; Tayloe v. Merchants' Fire Ins. Co., 9 How. (U.S.) 390; Eliason v. Henshaw, 4 Wheat. 228; Hamilton v. Lycoming Ins. Co. 5 Penn. St. 339; Averill v. Hedge, 12 Conn. 436; Beckwith v. Cheever, 1 Fost. (N. H.) 41; Duncan v. Topham, 8 C. B. 225. To the contrary is Gillespie v. Edmonston, 15 Humph. (Tenn.) 553.) $769. Performance of the conditions of a proposal, (a) or the acceptance of the consideration offered with a proposal, (b) is an acceptance of the proposal. (a) Harvey v. Johnston, 6 C. B. 304; see Kenyon v. People, 26 N. Y. 203. (b) Decker v. Judson, 16 N. Y. 446. So the conditions of a graut are accepted by an acceptance of the grant: (Spalding v. Hallenbeck, 30 Barb. 292.) § 770. An acceptance must be absolute and unqualified, (a) or must include in itself an acceptance of that character, which the proposer can separate from the rest, and which will conclude the person accepting. (b) A qualified acceptance is a new proposal. (a) Hough v. Brown, 19 N. Y. 114. 115; Code $ 771. A proposal may be revoked at any time before its acceptance is communicated to the proposer, (a) but not afterwards. (b) (a) Stephens v. Buffalo and N. Y. R. R. Co., 20 Barb. 332; Eskridge v. Glover, 5 Stew. & Port. 261; see Boston and Me. R. R. v. Bartlett, 3 Cush. 224. (5) Routledge v. Grant, 4 Bing. 653; Head v. Diggon, 3 Man. & R. 97; Cooke v. Oxley, 3 T. R. 653. § 772. A proposal is revoked: 1. By the communication of notice of revocation by the proposer to the other party, in the manner prescribed by sections 766 and 768, before his acceptance has been communicated to the former. (a) 2. By the lapse of the time prescribed in such proposal for its acceptance, or if no time is so prescribed, the lapse of a reasonable time without communication of the acceptance. (b) 3. By the failure of the acceptor to fulfil a condition precedent to acceptance; or 4. By the death or insanity of the proposer.(c) (a) See last section. (b) Beckwith v. Cheever, 1 Fost. (N. H.) 41; Peru v. Turner, 1 Fairf. 185; Moxley v. Moxley, 2 Metc. (Ky.) 309. (c) The Palo Alto, Daveis, 356. § 773. A contract which is voidable solely (a) for want of due consent, may be ratified by a subsequent consent. (b) (a) Gray v. Honk, 4 N. Y. 449. (b) Newton v. Bronson, 13 N. Y. 595; Bronson v. Wyman, 8 Id. 188; see Sweetman v. Prince, 26 Id. 224. § 774. A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the person accepting. Bennett v. Judson, 21 N. Y. 238. Object of a Contract. § 775. The object of a contract is the thing which it is agreed, on the part of the party receiving the consideration, to do or not to do. Martin v. McCormick, 8 N. Y. 385. when the contract is made, and possible («) and § 776. The object of a contract must be lawful ascertainable (b) by the time the contract is to be performed. (c) (a) Code La. 1885, 1886. See Tufnell v. Constable, 7 Ad. & El. 798; and note 4 to section 727. For a definition of the word "lawful," see Title IV. of this Part. (b) Code La. 1880; Richards v. Edick, 17 Barb. § 777. Everything is deemed possible, except that which is impossible in the nature of things. Impossibility is to be determined, not by the means or ability of the party, but by the nature of things: (Code La. 1885, 2028; see McNeill v. Reed, 9 Bing. 68; Beebe v. Johnson, 19 Wend. 500; Harmony v. Bingham, 12 N. Y. 99; Warfield v. Watkins, 30 Barb. 395; Tufnell v. Constable, 7 Ad. & El. 798.) Thus a promise to procure the assent of a third person to any lawful and proper act is valid: (Lloyd v. Crispe, 5 Taunt. 249; McNeill v. Reed, 9 Bing. 68.) § 778. Where a contract has but a single object, and such object is unlawful, (a) whether in whole or in part, (b) or wholly impossible of performance, (c) or so vaguely expressed as to be wholly unascertainable, the entire contract is void. (a) See Smith v. Wilcox, 24 N. Y. 353; Porter v. Harens, 37 Barb. 343; Derlin v. Brady, 32 Id. 518. (b) Brown v. Brown, 34 Barb. 533; Hopkins v. Prescott, 4 C. B. 578. (c) See Faulkner v. Lowe, 2 Exch. 595. § 779. Where a contract has several distinct objects, of which one at least is lawful, and one at least is unlawful in whole or in part, the contract is void as to the latter, and valid as to the rest. See Bank of Australasin v. Bank of Australia, 6 Moore P. C. 152; Leavitt v. Palmer, 3 N. Y. 37; Chase's Exr v. Burkholder, 18 Penn. St. 50; Kerrison v. Cole, 8 East, 236. CHAPTER V. Consideration. $780. Any benefit conferred, (a) or agreed to be conferred, (b) upon the promiser, by any other person, (c) to which the promiser is not lawfully entitled, (d) or any prejudice suffered, (e) or agreed to be suffered, (ƒ) by such person, (9) other than such as he is at the time of consent lawfully bound to suffer, (h) as an inducement to the promiser, is a good consideration for a promise. (a) Johnson v. Titus, 2 Hill, 606; Oakley v. Boorman, 27 Wend. 588; see Hamilton College v. Sterart, 1 N. Y. 581; Palmer v. North, 35 Barb. 282. It is immaterial whether the benefit is small or great: (Haigh v. Brooks, 10 Ad. & El. 309; Johnson v. Nicholls, 1 C. B. 251.) (b) Houghtailing v. Randen, 25 Barb. 21; Sage v. Hazard, 6 Ibid. 179; Seaman v. Hasbrouck, 35 Ibid. 151; Briggs v. Tillotson, 8 Johns. 304. (c) Lawrence v. Fox, 20 N. Y. 268; Judson v. Gray, 17 How. Pr. 289, 296. (d) Forbearance of a claim which the claimant knows to be totally unfounded, is no consideration (Wade v. Simeon. 2 C. B. 548; Dolcher v. Fry, 37 Barb. 152; Morey v. New fane, 8 Id. 645.) But forbearance of a claim in the least doubtful, made in good faith, even if unfounded, will support a promise: (Crans v. Hunter, Court of App, Jan. 1861; Rassell v. Cook, 3 Hill, 504; Sea'nan v. Szaman, 12 Wend. 381; Longridge v. Dorville 5 B. & Ald. 117.) The fulfilment, at the request of A., of a promise previously made to B., has been held a sufficient consideration for a promise by A.: (Scotson v. Pegg, 6 H. & N. 295.) (e) Waydell 'v. Luer, 3 Den. 410; Livingston v. Ratcliff, 6 Barb. 201; Miller v. Drake, I Caines, 45: Rutgers v. Lucet, 2 Johns. Cas. 92: Parker v. Crane, 6 Wend. 647; Stuart v. MeGuin, 1 Cow. 99; Elting v. Vanderlyn. 4 Johns. 237; Smith v. Weed, 20 Wend. 184; Heinman v. Moulton, 14 Johns. 466; Hilliard v. Austin, 17 Barb. 141. (f) Decker v. Judson, 16 N. Y. 449; Smith vi Algar, 1 Barn. & Ad. 603; Conover v. Brush 2 N. Y. Leg. Obs. 289. (g) Decker v. Judson, 16 N. Y. 449. (h) Livingstone v. Rogers, 1 Cai. 583; Utica v Syracuse R. R. v. Brinckerhoff 21 Wend. 139 Roscorla v. Thomas, 3 Q. B. 234. § 781. An existing legal (a) obligation resting upon the promiser, or a moral obligation (b) originating in some benefit conferred upon the promiser, or prejudice suffered by the promisee.. is also a good consideration for a promise, to an extent corresponding with the extent of the obligation, but no further or otherwise. (c) (a) Spencer v. Ballou, 18 N. Y. 330. The common law does not recognise mora obligations, except in a few cases, as sufficient to sustain a promise: (Nash v. Russell, 5 Barb 556; Geer v. Archer, 2 Barb. 420; Watkins v Halstead, 2 Sandf. 311; Ehle v. Judson, 24 Wend. 97: Smith v. Ware, 13 Johns. 257; Beaumont v. Reeve, 8 Q. B. 483; Eastwood v. Kenyon, 11 Ad. & El. 438. But see to the contrary, Doty v. Brown, 14 Johns. 381; Lee v. Muggeridge, 5 Taunt. 36.) The authorities, however, entirely fail to establish any satisfactory principle upon which to distinguish between the different species of moral obligations. Thus in Bunn v. Winthrop, 1 Johns. Ch. 329, past seduction was held a good consideration to support a grant. In Beaumont v Reere, 8 Q. B. 483, the same consideration was held insufficient to support a promise. In Goulding v. Duridson, 28 Barb. 438, it is said that there must have been at some time au actual legal obligation. Yet in Rice v.. Welling, 5 Wend. 595, and Early v. Mahon, 19 Johns. 147, the original contract was usurious, and therefore void from the be ginning. The same may be said of promises to pay debts contracted in infancy, which are held valid. Goulding v. Davidson was reversed, 26 N. Y. 604. The rule stated in the text seems to the commissioners to be just, and to be, on the whole, as easily reconcilable with the authorities in this state as any other that can be devised (c) Phetteplace v. Steere, 2 Johns. 442; Roscorla v. Thomas, 3 Q. B. 234; Hopkins v. Logan, 5 M. & W. 247; Kaye v. Dutton, & Scott N. R. 495, 502; s. c., Ray v. Ditton, 7 Man. & G.. 807; Elderton v. Emmens, 6C. B. 160; 13 Id. 495. § 782. The consideration of a contract must be lawful, within the meaning of section 827. § 783. If any part of a single consideration for one or more objects, or of several considerations for a single object, is unlawful, the entire contract is void. This principle is deducible from all the cases § 784. A consideration may be executed or executory, in whole or in part. In so far as it is executory, it is subject to the provisions of Chapter IV. of this title. § 785. When a consideration is executory, it is not indispensable that the contract should specify its amount or the means of ascertaining it. (a) It may be left to the decision of a third person, (b) or regulated by any specified standard. (c) (a) So held as to sales, Hoadly v. McLaine |