sentative, and that a man who is unfit to have a vote is nevertheless fit to be voted for. There is no provision in The Education Act for voiding the election of members guilty of corrupt practices, and the only question is whether such election is void at common law. It has always been considered by Parliament that the statutes creating disqualifications to sit as members of the Lower House on proof of corrupt practices at elections, were merely declaratory of the common law, and that at common law a seat was vacant when it was shown to have been in any degree acquired by such means. There were no enactments on the subject of corrupt practices until A. D. 1669 and 1677, and these were followed later by 7 & 8 Will. 3, c. 4, called the Treating Act. Previous to this legislation it was always held by the House that by the common law elections were voided by corrupt practices, and WHITELOCK in his book on Government, vol. i. p. 387, clearly shows that seats had been avoided for bribery, and much regrets that the same penalty had not been extended to treating. WHITELOCK Wrote in the time of the Commonwealth, and there are records in the journals of the House of Commons of the avoidance of seats as early as the 13th year of Elizabeth, and the ground upon which the House decided all these questions was that the House, being a representative body, the voters, who choose its members, must not be influenced by any corrupt means, and that any violation of the freedom of election must vitiate that election. It is a fair presumption that this would extend equally to all representative bodies of a public nature. We should not, however, place much reliance upon such an argument for the purpose of unseating a member of a school board, and we would rather urge the Government to take measures to prevent the recurrence of such a scandal as the case above cited, by comprehensive legislative

enactment.

THE APPELLATE JURISDICTION OF THE LORDS. ATTENTION was directed last Term to the all important subject of the appellate jurisdiction of the Lords; and no subject is more deserving of consideration. The Judges of England, last year, in their letter on the CHANCELLOR'S Judicature Bill, declared their opinion to be that any such measure at least so far as related to apellate judicature must be postponed until the question of

judicature has been settled. And the LORD CHIEF JUSTICE, in his able letter on our Judicial System, pointed out that it sometims depended on the casting vote of a Scotch law Lord in a House composed of three Lords, whether or not the opinion of all the Judges on a question of English law should or should not be overruled. Last week attention was directed to the subject in such a way as quite to confirm this startling statement of the LORD CHIEF JUSTICE. On a compensation question the company against whom the claim was made relied on two decisions in the Lords-Rickett's case and Brand's case--in both of which the opinion of the Judges of England in favour of the claimant was overruled by a majority of one, in a House of three law Lords, and that one a Scotch Lord.

When we mention that the dissentient Judge was in one case Lord CAIRNS, and in the other Lord WESTBURY, we need say no more as to the relative authority on a question of English law, of either of those noble Lords and Lord COLONSAY. For that noble and learned Lord, we have the highest possible respect, but we venture to think that he will not wonder that it is hardly satisfactory to an English suitor to find that the opinion of the Judges of England, in his favour supported by the high authority of Lord CAIRNS or Lord WESTBURY, should be overruled by the authority of two law Lords, one of them a Scotch Lord. In one of the cases, it appeared that there were the opinions of three courts of law in the claimant's favour, comprising, as Lord WESTBURY said, “ "ten or twelve Judges," and though it is true that the judgment of the court of law in the particular case following the opinion of two other courts, in other cases was overruled by a majority of two in a court of error, composed of six Judges, so that the judgments of eight Judges were overruled by four, that only enhances the absurdity of our appellate jurisdiction, for it stands thus: It is possible in a court of error for four Judges, or even three in a court of five Judges, to overrule the judgments of all three courts, consisting of ten or twelve Judges, and then it is possible for the opinion of the three or four to be upheld in the House of Lords against the opinion of twelve Judges and one law Lord, by two law Lords, one of whom is a Scotch Judge. Such is the state of our appellate judicature. Is it wonderful that it begins to attract attention and excite discontent? No doubt it has been worse, and Lord BROUGHAM, twenty years ago, mentioned that in his time, for a quarter of a century, errors and appeals were determined by a single law Lord, the Lord Chancellor (Lord ELDON), and he added with quiet sarcasm, "It is not suprising that there were few appeals.' That noble and learned Lord thought nothing of overruling the opinion of the Judges. So it is not a new grievance by any means. But it is new to the mass of the people, and, when they understand it, depend upon it they will not be satisfied with it. How is it possible that they should?

With regard to the remedy, the only way to discover a remedy for an evil is to get at the cause. Now what was the cause of this most monstrous evil of the defect of judicial power in the

Lords? Simply the usurpation by the law Lords of the exclusive exercise of the appellate jurisdiction. Originally, and for centuries, the Judges were members of the House for the purpose of appeals -Judges assistant they were called-who had voice and vote, and these with the Lords decided appeals, so that the scandal of the opinion of the Judges of England being overruled by one or two ex-Judges (for the law Lords are no more) was avoided. It is true that at that time the lay Lords also voted and acted as arbiters between the Judges and the law Lords, or between th majority and minority, in cases where the Judges differed, and as they often voted without attending to the arguments, and without reference to the merits, the result was that they were ousted of their jurisdiction, or at least of the exercise of it. But the Judges also were ousted from their share in it; and it was exclusively assumed and exercised by the few law Lords in the House.

This, it is obvions, was only curing one evil by another-and a worse one. It reduced the Judges to mere ciphers. Instead of being always summoned according to ancient usage, at the opening of Parliament, to sit in the Lords throughout the Parliament on the hearing of appeals, they were only summoned, at the pleasure of the House, to give their opinion, without power of vote or any part in the decision. As the law Lords disregard and overrule their opinions when they please this comes to nothing at all, and the result is often most startling. For instance, a few years ago, Lord CRANWORTH, supported, we believe, by Mr. Justice BLACKBURN, laid down a view of the law of rating which overturned all the law that had existed from the time of Lord MANSFIELD, and the general belief of almost all the Judges at the present time, and established the monstrous doctrine that charities are rateable, so that forthwith hospitals and poorhouses devoted to the poor were rated to the relief of the poor; that is, that the very funds contributed by the charitable for the relief of the poor were taxed for the same purpose. No wonder that this startled all England; and when St. George's Hospital was accordingly rated, people were struck with the instinctive sense of some strange absurdity, and Lord DERBY brought it before the House of Lords. Such a decision would have been impossible if the Judges had been members of the House. Thus a startling paradox-imposed by a powerful Judge on one or two law Lords whose intellects were not quite so keen as his involved the law of England in an absurdity which struck plain men and startled even lawyers.

If we go on in this way the whole law of England will be revolutionised, and what is worse will be permanently unsettled and disturbed, and the nation will lose their confidence in its administration. It is impossible not to perceive already that judgments of the House of Lords have not the authority they ought to have, and if some remedy be not applied there will be danger to the jurisdiction, which we shall be sorry to see at an end, for we regard the House of Lords as one of the greatest bulwarks of constitutional liberty, and we should deprecate any interference with its just authority.

The remedy we propose seems simple enough, and it is to be observed that of course it involves this, that all the Judges of law and equity should be made members of the House for judicial purposes. If it be objected that the effect would be that their united opinions would overwhelm those of the two or three law Lords, we consider that so it ought to be; and that it would be infinitely better than that the opinion of one or two law Lords should overbear those of all the Judges of England. Centuries ago the House of Lords concurred in a similar proposal, and it would be sure to do so now. The effect would be to constitute in the House of Lords the most magnificent legal tribunal the world could show.

TRIAL BY SPECIAL AND BY COMMON JURY. UNLESS we felt it to be a matter of very considerable importance, we should be indisposed to criticise with any severity the general principles upon which our present system of trial by jury is based. But it appears to us that it is a great injustice that exceptional advantages as to the mode of trial should be within the reach of any party to civil or criminal proceedings, which are not equally available by all Her Majesty's subjects; and, further, that the one side in a cause may claim to have it tried by a jury particularly calculated, perhaps, to take a prejudiced view of the merits, in spite of the strong desire of the opposite side to have a jury of the ordinary character.

In the first place we would refer to the removal of the trial of indictments by certiorari from the criminal courts to the Court of Queen's Bench. This court has power to change the place of trial in felonies and misdemeanors whenever it is necessary for the purpose of securing a fair and impartial trial. The Legislature has done all it can by successive Acts (5 & 6 Will. 4, c. 33, and 16 & 17 Vict. c. 30), to limit the granting of writs of certiorari to causes in which it is absolutely necessary; but still the Crown may claim the writ as of right, and it is in the discretion of the court or a judge to grant it at the suit of either party. We would simply remark on the general advisability of allowing criminal causes to remain in the criminal courts; since their removal is apt to give to the parties concerned a fictitious respectability, and to throw over the whole case, however objectionable, a gloss which is apt to have its effect, not only upon the public, but on the minds of the

jury. We think, therefore, that unless it is absolutely plain that a fa ir and impartial trial cannot be had in the criminal tribunal, the Crown should not demand a certiorari, and the Court, where it has a discretion, should be more chary than it is of granting applications, more particularly by defendants.

But the main object of the present article is to inaugurate, if possible, a movement for the purpose of doing away with the present system by which causes are tried by special juries at the option of either party. Where an indictment is removed into the Queen's Bench the party removing it obtains the advantage of a trial by a special jury. In a civil cause likewise, either party may, by payment merely, obtain the same advantage. There would be little cause to complain if trial by special jury were to be desired by everybody alike. But, as we have remarked, it must generally be in the interests of the rich to obtain a special jury; it is the rich who can obtain it. The poor do not generally desire it, and if they did they could rarely pay for it; therefore, it amounts to this, that a rich defendant may impose upon a plaintiff against his will a class of tribunal which by its instincts would be prejudiced in favour of the former, and thus by mere force of the purse place his opponent at a disadvantage.

It appears to us that with reference to jury trials we have somewhat inverted the ancient procedure. Originally, in criminal trials, the superior order, that is to say, knights, was drawn upon, and if they could not be obtained, then such liberos et legales homines were chosen as were well qualified to despatch the King's business. In civil causes no distinction could be made, as those only were called who were witnesses. Gradually, as regards civil causes, matters became changed, and the qualification of jurors who tried causes on the evidence of witnesses was placed at a high rate. When jurors having the necessary qualification were not present in sufficient numbers, the persons belonging to the locality out of which the cause came were, by a statute of Henry VIII., empanelled, being called tales de circumstantibus persons who now compose our ordinary or common juries. By inverting the ancient order of things we conceive that a great injustice is inflicted upon suitors. It should be the right of every man to have his cause tried by the most highly-qualified jury which the law gives to suitors, and it should not be in the option of either party to pray a tales, but as of old, if the jury could not be made up, the court should be empowered to order the empanelling of any jurors who may be available.

We object altogether, and it is our desire to put our objection in the strongest possible form, to leaving the mode of trial to the option of either party. We protest against the one side or the other being able, by the power of the purse, to obtain an advan tage, or to place his adversary at a disadvantage. We are utterly unable to see the reason of the rule which makes such a result possible, and we certainly do hope that when the jury system comes under discussion in the House of Commons the view of the subject which we have here put forward will be considered, and some steps taken to procure the admission of even-handed justice to all her Majesty's subjects, whether they be rich or whether they be poor.

THE PARK AND BOULTON CASE. "THIS case," observed the Lord Chief Justice, in his summing up, "illustrates the necessity for public officers to control and conduct public prosecutions." It illustrated also many other things, which the Lord Chief Justice made the subject of observation in the course of the trial; and our own observations will be, in effect, the embodiment of his. We will take the case from the commencement. It was at the outset, he observed, “in the hands of the police;" and here, as he also observed, was the source and origin of all the errors, and worse than errors, which occurred. To this it was owing that a case, which might have been dealt with, we think, even summarily-but, at all events, easily and effectually-as an offence against decency, was exaggerated, upon what turns out to have been worthless evidence, into a horrible scandal, which has disturbed and disgusted the country. There was nothing beyond the going about to public places in female apparel, which was a clear misdemeanor, as a public violation of decency, and as tending to immorality; as the Lord Chief Justice declared it to be, and, as such, it might have been dealt with effectually and without difficulty. But the police were not satisfied with this. They had got into their head the idea that it must mean something worse; and, though they had employed detectives about it, and they had detected nothing worse, they could not be satisfied without trying to make something worse of it. And so they resorted to the odious expedient of an outrage upon the persons of the prisoners, by a police surgeon, in order to obtain evidence of the offence of which they had persuaded themselves. This was denounced by the Lord Chief Justice with just severity. He said emphatically that the police surgeon had no more right to effect that outrage upon them than he had upon anyone in court. There was some obscurity as to how far it had been done by order of a magistrate, but the Lord Chief Justice declared whether it was so authorised or not, that it was illegal. Like everything done irregularly and illegally, it was done ill, and had ill results. It was the first fatal error, which caused many dreadful blunders and

a great discomfiture. The police surgeon, after a hasty, almost momentary, examination, actually gave evidence before the magistrate that the appearances were those of persons habituated to the horrible crime. And on that evidence the accused were committed for that crime, amidst the execrations of all England. It turns out that he was in utter error. He was contradicted by the most overwhelming testimony; and at the close of the case the Attorney-General said he could not ask the jury to rely on that evidence on which the prisoners had originally been committed. But as the Lord Chief Justice observed, it was not competent to the Attorney-General to withdraw from it after he had made it the very basis of his whole case. The very attempt to withdraw from it, and to substitute another basis for the prosecution, started at the last moment, showed on what a blunder the prosecution had proceeded. The indictment, as the Lord Chief Justice observed, was for conspiracy to commit the crime, and the main evidence was of its commission. And he went on to observe that even assuming that it is competent to the prosecution to prove a conspiracy to commit a crime by the commission of it (which, when the crime is a felony, we doubt), the Lord Chief Justice gave it as his opinion, on the authority of Lord Cranworth, that it was not satisfactory.

Then as to the frame of the indictment. Here, again, the conduct of the prosecution became the subject of severe animadversion. The indictment was against eight persons for a conspiracy to incite the public to commit crime. As half the supposed conspirators knew nothing of the rest, and as no evidence was given against most of them beyond their knowing each other, the prosecution were well aware that they could not possibly convict the whole upon that general charge; and as it turned out-and as the Lord Chief Justice observed-the evidence on that charge affected only two out of the eight indicted—that is, Boulton and Park, who alone went about publicly in women's dresses. There was barely evidence that one or two of the others even knew of it, none that they concurred in it; nay, one of them had actually written against it. Yet they were all indicted for it. This part of the indictment, it is evident, was only the pretext for joining them all together in one indictment; for the rest of it consisted of a dozen counts charging a number of separate conspiracies between some two or more of the defendants, some relating to different matters, and all, it is obvious, different from the general conspiracy. And among these different separate charges of conspiracy two gentlemen were included-Messrs. Hurt and Fiske-who, as the Lord Chief Justice observed, had no knowledge of the indecent proceedings of Park and Boulton, and had no acquaintance even with Park; and had only known Boulton as a friend in Scotland, and had written in Scotland letters to him. No one can wonder that the Lord Chief Justice said with severe emphasis that they ought not to have been joined in the indictment at all that it was clear the courts of this country had no jurisdiction over acts done in Scotland, and that it was a great hardship to drag persons resident in Scotland to be tried in this country for offences committed in the country of their residence; and a great additional injustice to drag them into a charge of conspiracy along with other persons whose conduct had naturally excited great prejudice. Every one will see the force and justice of these remarks; but the evil was still deeper in the proceedings. For how could a bundle of different conspiracies, between different persons, be included in one indictment? Some related to different matters, different in time and place, but all were different conspiracies, between different persons; and supposing A. and B. convicted on one count for one of these conspiracies, and C. and D. on another count for different conspiracy, how could judgment have been given against them all in one indictment?

The injustice of the proceeding was pointed out by the Lord Chief Justice; and we confess we doubt its legality or regularity. Indeed, that it is unjust, is in itself strong ground for thinking that it is illegal, for our law is based on substantial justice. Again, as to the proof of the case charged. The worst part of it related to Lord A. Clinton and Boulton. There were five other inmates in the house; two servants, the landlady, and two lodgers, married persons. All, we believe, were examined by the Solicitor of the Treasury. Only one out of these five-i.e., one of the servants-made statements which would prove guilt, the other four contradicted her. The Crown called the single witness who proved guilt, discarding the four who proved innocence. Now considering the horrible, the odious nature of the crime, we own we cannot consider this a fair and just exercise of the discretionary power of the Crown. The four witnesses were as respectable to say the least-and as disinterested as the one, and why the one should be preferred merely because she proved guilt, is not intelligible. It is impossible not to see in this eccentric selection, evidence of a foregone conclusion." The police had got it into their heads that there was foul crime, and they would believe no one who swore against it.

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An intelligent public officer could not be so easily misled by preconceived impressions, and would be more sensible of the paramount claims of justice and truth. "This," said the AttorneyGeneral, " is a charge most difficult to prove.' True," replied Sir J. Karslake, “and still more difficult to disprove, and therefore it is one which ought not to be made except upon clear and conclusive

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proof." Every one will concur in this; and the best comment upon it is the simple fact that the Attorney-General confessed he felt bound to admit that he could not point to any particular act of crime as proved. He admitted that the medical evidence on which he had originally acted could not be relied upon. And the Lord Chief Justice pointed out that the other part of the case on which the prosecution more relied-the dresses-was abundantly explained by the dramatic performances. How was it that the police had not heard of them? Had they been as anxious to find the truth as to discover guilt, they could easily have discovered so notorious a fact. It was known half over England; it was known in London; it was known from Scarborough to Colchester. It was known in Chelmsford, where one of the prisoners had lived, and where, of course, they must have made inquiries, and it was known in Scarborough, where inquiries might have been made. Had the police inquired everywhere they would have found that these youths had a whole wardrobe of theatrical dresses for performance of female characters, and the country might have been spared the pain of fancying that a whole wardrobe of dresses had been procured and provided by a party of young men for the most abominable purposes. If, instead of perpetrating the outrage on the persons of the prisoners, they had simply gone to Chelmsford or Scarborough and made some inquiries, they would have heard of the real truth about these dresses, and so have spared us all the scandal, and the Crown the discomfiture, of this most misconducted prosecution. It all rested on two huge blunders—the utterly worthless evidence of the police surgeon (which the Attorney-General had to confess was not to be relied upon), and the rash conclusion, drawn without the least inquiry, as to the dresses. We hope before long that prosecutions will cease to be conducted by the police.

THE REMOVAL OF CAUSES TO COUNTY COURTS. OUR readers must be familiar with sections 7 and 10 of the County Court Act 1867, which gives power to the Judges to remove certain causes from the superior to the inferior courtsunder the 7th section, where the claim is founded on contract and is below 501., and under the 10th in actions of tort, where the plaintiff has no visible means of paying the defendant's costs, unless the plaintiff can satisfy a Judge that he has a cause fit to be tried in the Superior Court. These powers have been very largely exercised of late, and any decisions bearing upon the sections must be welcomed as valuable additions to our case law.

6

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The Court of Queen's Bench in Ireland had two cases before it at the beginning of the present year, in which two points were discussed directly bearing on the above sections, as they were decided under the analogous Irish Act. Stated shortly they are these: (1) that visible means to pay costs must mean means available for costs;" and (2) that as to the fitness of a case to be tried in the Superior Courts the possibility of the plaintiff recovering more than the value limiting the jurisdiction of the inferior courts will be regarded as an element for consideration. In both cases the plaintiffs were persons in subordinate positions, one being a law clerk, earning a salary of 701. per annum, and the other a tradesman's clerk with a salary of 1007. per annum. The former sustained injuries through the negligent driving of a dray belonging to the defendant; the latter brought his action for slander. The first case was retained in the Superior Court on the second of the above grounds, namely, that it was not at all certain that the plaintiff would not recover more than 401., the limit of value under the Irish Civil Bill Act. In the second the import of the term "visible means was considered, and Chief Justice Whiteside said, "I prefer the word tangible,' and can it be contended that if a man have an office, to which a salary of 1001. per annum has been attached, he is possessed of no tangible means, because his property is not visible to the eye?-clearly not. think by visible means' is meant property which the defendant could reach to pay his costs, in the event of his obtaining a verdict." We had written that we could not concur in the view of the Lord Chief Justice, but on second thoughts we come to the conclusion that he does not mean that a plaintiff with a salary of 1001. a year is a person who ought to be allowed to proceed; for although he has tangible means he has not such means as the defendant could reach for the payment of his costs. This is supported by the subsequent remark of Mr. Justice Fitzgerald, who said, "there is one point of general importance that we must assume that the defendant in both cases has made out that the plaintiff has no visible means of paying his costs." Mr. Justice George also said that the plaintiff must have "resources.' "It is open in the answering affidavit," he said, "to show that though the plaintiff has no visible, tangible means, his resources are adequate to pay the costs." And no one could say that a salary of 1001. per annum constituted "resources out of which a defendant could hope to get his costs.

6

I

We recur, therefore, to what the Irish Court considers to be a case fit to be tried in the Superior Court, and to this we would ask the attention of those English Judges who are constantly remitting important causes to the County Court. One ground we have already stated—namely, where it seemed likely that the plaintiff would recover more than the inferior court had (in Ireland) juris

diction to give. That does not apply to England; nor, in our opinion, should it be taken to apply to England, there being no express words in the Civil Bill Act limiting the amount of damages in actions of tort. It seems to have been thought, however, by the Court of Queen's Bench that there is some limit, and the point was consequently considered. Mr. Justice Fitzgerald goes fully into what a plaintiff should do to entitle him to continue proceedings in the Superior Court. He says: "The plaintiff should lay before the court, or Judge, circumstances sufficient to estabthat his action is not a sham, frivolous, and vexatious action, and that it has been instituted bona fide to enforce so ne real, substantial cause of action, which ought to be tried in the Superior Court, in preference to the inferior court; that is, that the injury complained of is so serious that the damages may probably be large, or that the action may raise a difficult question of law, or a complicated state of facts, give rise to important constitutional questions, raise a question as to title or character, and, therefore, that it is a case more fit to be tried by a Superior Court than an inferior court."

It is rather remarkable that, as far as we are aware, no order for remitting a cause in England has been appealed against. The Irish Court refer to Craven v. Smith (20 L. T. Rep. N. S. 400), and Taylor v. Cass (Ib. 667), to which they might have added Moody v. Stewart (23 L. T. Rep. N. S. 465), but these cases refer to taxation of costs in a case tried in a County Court, where the action was necessarily commenced in the Superior Court. Of course the principle is the same, but where a case is already tried the court is apt to take a stronger view, and in Craven v. Smith they judged by the result. As Baron Bramwell said, "the words complained of were most offensive, and by their verdict the jury have given a substantial recognition of the propriety of the action." What we should like English Judges to do is to exercise the same keen discrimination which was manifested by the Irish Judges before sending a case to a County Court. We have already shown that there is frequently an increase in expense in proceeding in the court below, as parties are apt to be dissatisfied solely on the ground that they are heard in an inferior court.

CALLS ON PAST MEMBERS OF COMPANIES IN LIQUIDATION.

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WHEN a company under the Companies Act 1862 goes into liquidation, the then existing members are liable, so far as their shares are not paid up, to contribute to the assets of the company. If a sufficient amount can be got from them to pay the company's debts, no other class is called on, but if the existing members are unable to satisfy the contributions required to be made by them in pursuance of the Act, then those persons who have been shareholders within a year before the commencement of the windingup (that is, the presentation of a petition for that purpose), become liable to contribute. Such is the effect of sect. 38 of the Act, but it is provided by that section that, first, no past member shall be liable to contribute in respect of any debt or liability of the company contracted after the time at which he ceased to be a member;" secondly, no past member shall be liable to contribute to the assets of the company, unless it appears to the court that the existing members are unable to satisfy the contributions required to be made by them." These are the provisions regulating the liabilities of past members, and one would think they were too clear to admit of any question being raised; but people will avoid paying money if they can, and the result of this is that much discussion has taken place as to the construction of this section, and there have been several decisions with regard to it.

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First, with regard to the list of past members, it was held by the Master of the Rolls in Western's Case; Re Contract Corporation (Law Rep. 6 Eq. 17), that a past member should not be placed on the list until evidence was given in each individual case that at the date of the winding-up order there was some debt of the company which was due when he transferred his shares, and, also, that the person to whom he transferred his shares has not paid up the full amount of the shares; but it is not necessary to show that all the debts incurred before he ceased to be a member were not incurred before he became a member: (Re Barned's Banking Company, Helbert's Case, Law Rep. 6 Eq. 509), and a past member may be called on to contribute to the payment of all the company's debts and liabilities incurred prior to his ceasing to be a member. The most important case, however, that has been decided as yet on the 38th section is the recent one before the House of Lords, of Helbert v. Banner, re Barned's Banking Company (5 L. Rep. H. L. 28), which very clearly defines the position of past members with regard to their rights and liabilities. This was an appeal from an order of the Master of the Rolls, made at the instance of the liquidators of a company in winding-up, and ordering payment of a call by the past members of the company; and the question in it chiefly turned upon the kind and sufficiency of evidence that justified the court in making a call on past members. On the part of the appellant it was argued that it should appear to the court, not only that the present assets are not sufficient for the payment of the debts, but that there is no probability of assets being got in sufficient for the payment of the debts, and that this was not shown by the affidavits

of the liquidators; and also that present and past members stood to each other in the relation of principal and surety, consequently, certain compromises that had been effected by the liquidators with the sanction of the court with some of the existing members of the company operated as a release to the past members. The objections were overruled, and the appeal dismissed with costs. It was held that, although the court will not make a call on past members, if satisfied that there are sufficient assets in the hands of the liquidators, yet it will make it if there are only outstanding assets, the realisation of which is doubtful, both as to amount and time. With regard to the evidence necessary to satisfy the court that a call ought to be made, their Lordships held that the affidavits need not enter into minute details to show why the liquidators declare themselves only able to realise a certain sum, but must state reasonable grounds for that opinion of the liquidators. On this point Lord Westbury observed, "The question, whether more can be got from the assets of the company or from the existing shareholders, is left to depend on the conclusion of the official liquidators, coupled with the assurance which they give the court that they have used every

effort to ascertain that their conclusion is correct. Undoubtedly it would be a most lamentable thing if inquiries in a court of justice in matters of this kind were required to be conducted with that particularity which would involve a sort of prying into every man's affairs, into the condition of his business, and into his solvency or insolvency, which it is obvious could not be carried on." Lastly, it was emphatically laid down, and it would be well for members of companies in liquidation to take particular note of it, that past members who deem the statements of liquidators on a winding-up to be insufficient to justify calls being made on them, must not lie by till after a decision has been pronounced on those statements and has been made the subject of appeal, but must, at the time of those statements being made, submit them to the process of a cross-examination. One will not and ought not to be allowed to complain that the court has proceeded on insufficient grounds, when he cannot say that at the right time he brought before the court proofs of the insufficiency of the conclusions of the liquidators, or required that their conclusions should be put in a more specific and definite form, or suggested to the court any mode of examining and testing these conclusions.

NOTES OF THE WEEK.

V. C. MALINS' COURT.
Monday, May 8.
Re EVANS'S HOTEL COMPANY (LIMITED).

Company-Motion to discharge order-Winding-
up petition-Fraud.
This was a motion to discharge an interim order
whereby a provisional liquidator of the company
had been appointed. A winding-up petition had
been presented by two persons, who alleged that
they were creditors, for 600l. and 3501. respectively,
but the allegation was not borne out by the evi-
dence. Neither the company nor the secretary
heard of the petition until they were served with
the order appointing a provisional liquidator, the
petition not having been served on the company
or even advertised. The company was incorporated
in November last, and Mr. Browne acted as the
chairman until January last, when he had a dis-
pute with his co-directors. It appeared that the
company were doing a good business, could pay

all their debts, and had a considerable balance at their bankers. The petitioners were a contractor and decorator, who had been paid 75 per cent. of the contract moneys, and had not been paid the 25 per cent. because they had failed to perform their contract, and the architect had accordingly

withheld his certificates.

Locock Webb, in support of the motion. Glasse, Q.C., and Ince, in support of the order. Higgins said he appeared for shareholders and a creditor, but the Vice-Chancellor declined to hear him upon this application.

Cotton, Q.C., and Solomon, for Mr. Browne, the chairman of the company, who assented to the

order.

The VICE-CHANCELLOR said, that this petition was presented by two persons who knew that they were not really creditors, and Mr. Browne had consented to the petition for the purpose of defeating the just rights of his co-directors. The petition was fraudulent and collusive between and on the part of the petitioners and Mr. Browne, and the order for provisional liquidation having been obtained by false, fraudulent, and fictitious means, that order must now be discharged with costs. Solicitors, G. and A. Lindo; Riches.

COURT OF QUEEN'S BENCH.
Wednesday, May 3.

BECK V. STRINGER.

The Petroleum Act 1868 (31 & 32 Vict. c. 56)Test.

Case stated by justices under 20 & 21 Vict. c. 43. The appellant was convicted under the Petroleum Act 1868 (31 & 32 Vict. c. 56), s. 4, for keeping stored, without a licence, petroleum which gave off an inflammable vapour, at a temperature of less than 100 Fahr. The mode of testing petroleum is prescribed in the schedule of the Act which directs that the vessel which is to hold the oil shall be two inches deep; that the "thermometer to be used shall have a round bulb about half an inch in diameter;" that a "small flame" shall be applied to the bottom of an outer vessel containing water; and that the thermometer shall be inserted into the oil so that the bulb shall be immersed about one and a half inches beneath the surface." Objections were raised by the appellant, at the hearing of the complaint against him, to the test made by the inspector of weights and measures. It appeared that a "very small flame" had been applied, although a still smaller one might possibly have

"

Held (per Blackburn and Mellor, JJ.), that the mention of the three lives in the covenant was a mere description of the lease, and was no warranty that the three persons were then living, and consequently that no breach of covenant had been committed.

Held (per Lush, J.), that it did amount to warranty, that they were all alive, and that therefore the action was maintainable.

Judgment for the defendant. Attorneys for the plaintiff, Stocken and Jupp. Attorneys for the defendant, Routh and Stacey.

COURT OF COMMON PLEAS.
Thursday, May 11.

KING v. GREAT WESTERN RAILWAY.
Negligence-Privity.

This was an action under Lord Campbell's Act. Demurrer to a declaration, which stated that plaintiff was the widow of one Thomas King, who on, &c., was lawfully in and upon a certain railway there employed in unloading, and as servant of station of the defendants, at Wallingford, and was the consignee thereof, certain stone from a truck, in which it had been conveyed to Wallingford by the defendants, as carriers for the said consignee, the same by means of a crane, with certain tackle for reward to the defendants, and was unloading connected therewith, by the defendants, provided

as such carriers for the use of such consignee and

their servants in unloading the said stone for reward to the defendants, yet the said crane and tackle were, through the negligence of the defendants, in such bad order, and so badly adjusted and kept adjusted, that the said Thomas King, in using the same, became and was greatly wounded and injured, and by reason of the said wounds and injuries thereby occasioned to him as aforesaid the said Thomas King afterwards, and within twelve calendar months before this suit, died. Digby for defendants.

Baker Greene for plaintiff, was not heard. The COURT (Willes and Brett, JJ.) held the delaration good. Judgment for plaintiff. Attorneys for plaintiff, Merriman, Powell, and

Co.

Attorneys for defendants, Young, Maples, Teesdale, and Nelson.

May 11 and 12. METROPOLITAN RAILWAY COMPANY (plaintiffs in error, defendants below) . WILSON AND WIFE (defendants in error, plaintiffs below)

Error in fact-Neglect to plead in bar. The plaintiffs below brought an action against the defendants below to recover damages for injuries done to the female plaintiff through the negligence of the defendants, and recovered damages against them on the plea of not guilty. The defendants below now brought error in fact, for that the female plaintiff was not the wife of the male plaintiff, as alleged, but the wife of one Keeble. They had not pleaded this circumstance or otherwise raised the point in the court below. Montague Chambers, Q.C. (Philbrick with him) for the plaintiffs in error.

Prentice, Q.C. (W. G. Harrison with him) for the defendants in error, were not called upon.

The COURT (Willes, M. Smith, and Brett, JJ.), held that as the plaintiffs in error might have pleaded the matter on which they now relied in the court below in bar of the action, and had neglected to do so, they could not now assign it for error. They at the same time intimated that, unless a