« PreviousContinue »
practice is extraordinary in an author so anxious for the ancient rights and privileges of the Court, but reference to the Appendix containing the Order in Council itself shows how very little the author can be trusted. At the top of p. 6 of Appendix we read, " That all the provisions of the summary procedure on Bills of Exchange Act, 1855 (except, &c.) shall apply to this Court.” And that the said several sections and schedules to the said last mentioned Act shall be read as if the word “plaint” had been used therein instead of the words “ writ of summons” or “ writ."
The author is indignant with the Court for not availing of s. 45 of the Act to make new rules, and comments on the “ Recorder's task of making bricks without straw, the necessary result being that a great number of the orders made by the Court and Registrar are illegal and without warrant." And in a note pasted in to explain omission of the rules under the Debtors Act, we are told “ that this Court has from time to time made rules of its owu authority which materially alter the practice of the Court; no notice of them will be found in this work, because it is clear they are not of any force until sanctioned as required by the Act (s. 45).” These sweeping assertions are wholly unsupported by evidence, and not a single instance is given of even an alleged illegal order.
The observations on procedure occupy some dozen pages, and are substantially taken from the Registrar's work, and the useful tables of costs are copied verbatim from the same source.
The Corporation advisers doubtless intended that no objection to jurisdiction should be possible except by plea, and so far as the ordinary jurisdiction between the parties to an action is concerned, 8. 15 may be considered conclusive on that point, but, with the carelessness so noticeable in the work before us, at p. 33 it is stated
no plea to the jurisdiction is allowed in cases under 501.” This would be most deceptive and misleading, as by reference to s. 12, at p. 31, pleas to jurisdiction below 501. are pleadable
66 where defendants do not dwell or carry on business in the City, or have not done so for six months before suit, or the cause of action did not in part arise therein."
The case of Manning v. Farquharson (30 L. J. Reports, Q.B., 22) certainly decided that defendants cannot obtain a prohibition on the ground of non-liability to the process of the Mayor's Court, but must in all cases personally appear and plead to the jurisdiction. · The author, however, endeavours to make this case an argument against the law laid down by the House of Lords in Cox's case, where the garnishee in an attachment case was held entitled to prohibit the Mayor's Court on the ground that the bare fact of the garnishee having been personally found in the City gave the Court no power under the Custom of Foreign Attachment where the parties were not resident in the City, and no part of the cause of action arose therein. The defendant even in such a case as this would be obliged to plead, and before he can appear must give good bail to dissolve the attachment, but the position of a garnishee warned of an attachment when passing through Cheapside is clearly
very different. We agree with the author that the questions connected with Cox's case are very important, but do not see how they can be argued again, as unless the Legislature interferes, the decision of the House of Lords is quite final. “ Foreign Attachment by the Custom of London” is too wide a subject for discussion here, but we think it may be worth the consideration of the City authorities, whether they should seek power to serve attachments anywhere in England similar to ordinary actions, upon proof that the cause of action in some part arose in the City. This would interfere very little with the usefulness of these attachments, and would probably enable the Mayor's Court to retain the same right as in ordinary cases, of trying the question of jurisdiction itself. The author's observations on the ancient powers of the Lord Mayor are interesting, and those on the vexed question of the inferiority of the Court pertinent enough from his view of the case.
A remark at p. 23 is quite new and somewhat startling. " The Court has exclusive jurisdiction in ejectment, formerly just
as in the superior court, and now as described in the Common Law Procedure Act, 1852.” Actions of ejectment are rarely, we believe, brought in this Court, and what the author means by "exclusive jurisdiction " we cannot imagine.
The Corporation have given notice of a Bill for the present Session to amend their Act affecting this Court, and we wish them every success. The present necessity for all affidavits to be sworn at the Court or before justices will doubtless be easily remedied, and power given to all commissioners of the superior courts in town and country.
As stated in a former article, we are not opposed to the foreign attachment of this Court reasonably carried out, and now that all creditors' remedies have been so much curtailed by the partial abolition of imprisonment for debt, we think this power might be conveniently extended, but so far as we can comprehend the “ custom” on this subject, it has always been limited to cases within the Court's juris. diction.
The author suggests making the Mayor's Court a portion of the superior courts. We cannot agree with him ; the Mayor's Court is nearly the last of the municipal courts-practically the only one in the metropolis, as the Borough Court of Record is now seldom heard of, although still legally existent—and we would much prefer seeing the City of London Court (the City County Court, and a rival jurisdiction, in many respects, of the Mayor's Court) absorbed into the general County Court system, and thereby made completely a County Court, and the Mayor's Court left quite intact for the use of business men in the City. Should this be done, we are confident that in a very few years, the contrast of the practice of such a municipal court with all County Courts would materially assist in bringing about the reforms the latter bunals so much need.
A Manual of the Usages of the Stock Exchange, and of the Law
affecting the same, with Forms and Precedents of Pleadings. By Noel H. Paterson, B.A., Oxon., of the Middle Temple, Barrister
at-Law. London: H. Sweet. · 1870. “FENN on the Funds” has long and justly been regarded as the great English authority upon the subject of which it treats, and the little manual which is entitled above does not aim at superseding it, but, if it has any reference at all to it, aims rather at supplementing it. Thus, the former work, which is also very much the larger of the two, is principally, and, indeed, almost exclusively, statistical, consisting of a series or succession of tables, designed to show the origin, growth, and present state of the indebtedness of the different nations of the world ; whereas the latter work, the manual, is entirely legal, and aims at being an epitome or brief statement of the principles of law applicable to the Stock Exchange, and it is to be judged of in that regard alone. But, inasmuch as the statistics of national indebtedness, and the rules of law affecting that indebtedness, are evidently kindred subjects, from the kindredness of their respective subject matters, it might reasonably be expected that this manual of Mr. Paterson's, if it should prove to be well executed, and to be tolerably complete, and also tolerably authoritative as an exposition of the law upon the subject, would become a companion volume to the work of Mr. Fenn, which, for its part, is all that can be desired.
We have very carefully perused the little work, and shall, byand-bye, point out what we consider its faults; but, waiving those faults for the present, it must, in justice to the author, be admitted that his “ Manual of the Law affecting the Stock Exchange ” is possessed of a certain amount of intrinsic merit, or, at least, utility, as well for the student as for the practitioner of law. Thus presents, in a compendious form, a tolerably continuous and complete exposition of the principles and cases applicable to its subject matter; and all that is wanting to render it a safe and trustworthy guide is a reference at large to the authorities referred to in the volume, such a reference being necessary, as well for the purpose of verifying the statement of the law given in the manual, as also, and chiefly, for the purpose of ascertaining the particular modifying circumstances of each particular case, the decisions of Courts of Equity proverbially turning upon seemingly trivial circumstances. This manual affords, moreover, a good general résumé of the law, within limits which are easily masterable, even by the unprofessional reader.
Although thus commendable in its plan and useful in its contents, the manual is very far from being either clear in respect of its logice:l structure, or complete and accurate in respect of its matter, or authoritative in respect of the mode of its execution—three, faults of an undoubtedly serious character, which, unless they are greatly remedied in the next edition, seem likely to deprive it of the place
of honour which we should like to see it take, that, namely, of becoming a companion volume to the work of Mr. Fenn.
For, in the first place, it must unhappily be confessed that we experienced very considerable difficulty in discovering the logical method which underlies, as we believe, the three principal or concluding chapters of the work. Certainly the table of contents does not show this method, and therein it is most faulty, although therein also should have naturally lain its merit; nor again do any prefatory remarks at the beginning of the several chapters indicate the relation in which these chapters stand towards each other; and the inevitable multitude of details which are both usefully and well introduced into those chapters, only tends further to obscure the naturally unapparent plan of the work.
In the second place, the work is incomplete, not, indeed (so far at least as has occurred to us), in totally omitting any particular class of matters, but in neglecting to fully state and fully illustrate some few of the matters which it expressly handles. For example, the great case of Pinkett v. Wright (2 Ha. 120) is altogether omitted from this treatise, and is not even included in the list of cases referred to on p. 67 in illustration of the power of the directors of companies to refuse registration of shares. Moreover, the work is slightly inaccurate in one or two places ; as, e.g., in asserting broadly on p. 28 the absolute obligatoriness upon the general community of the customs or usages of the Stock Exchange. It is true indeed that, in the words of Lord Denman, in Sutton V. Tatham, every one who employs a broker must be taken to authorise bim to act in accordance with the rules of the Stock Exchange ; but then, when the last mentioned case, and the other cases quoted on this subject by Mr. Paterson are referred to at large, it is found that the authority in question is one entirely relative, and is not absolute in any sense, but is on the contrary confined to the relation which for the time, or on the occasion of any particular transaction, is established between the broker and the person employing him. For no usage of the Stock Exchange, nor indeed of any other body or society, is absolutely binding on the community, until recognised by the Common Law, or law of the community, as possessing such obligatory character.
And in the third and last place, this manual is extremely defective in a respect which it lay and lies with the author to remedy, we mean, in respect of its authoritative character. We admit that the narrow limits which the author has assigned himself in this manual necessitated in great measure the fault in question ; but then an author is not the less to blame because he chooses to strait-lace his babies; and we do think that, considering the increasing cheapness of law publications, and the acknowledged want of such a work as this one of Mr. Paterson's might have been and yet might readily become, the author of it might profitably have extended and might yet extend the limits of his manual-say to twice or three times its present range—so as to set forth within this larger area the more leading cases with somewhat of detail, bringing such cases into clief, and arranging around them, in subordinate groups, the
less important kindred cases. But in truth as Mr. Paterson's work is at present constructed, the prominent fault of it is this, that it brings no one case into greater prominence than another, with the doubtful exceptions of Grissnell v. Bristowe and Coles v. Bristowe, but presents a large assortment of miscellaneous cases, huddled together after the manner of a Turner's landscape, which although it may be suitable in a sketch imitating the disorders of nature, is most unsuitable in a didactic treatise professing to methodize the disorders of the law. It is true that this fault of Mr. Paterson's manual is not peculiar to him, but is common to the majority of writers upon law ; yet there cannot be imagined a more pernicious fault, and where it occurs in the works of juvenile authors, its effect is to deprive those works of the larger part of the merit which is often unquestionably due to the painstaking labours of their authors ; whereas if juvenile writers would but contrive to make themselves the mere mouthpieces of the legislator and the judge, mere oratores facundi, they would infallibly acquire for their treatises an authority which their persons did not possess. We suspect the present author for a juvenile ; yet we have been so much pleased with numerous features in his work, and we are also so much desirous of seeing a good and convenient manual upon the subject, that we have been at considerable pains to point out the faults of Mr. Paterson's work, at the same time that we allow its merits, in the hope that Mr. Paterson may be induced, by the kindly and suggestive criticism of this Review, to enlarge his manual in the next edition of it to a size larger, and to execute it in a manner which will entitle it to take its place side by side with the work of Mr. Fenn. That were a good alliance, and a poble spouse to win. The Life Assurance Companies Act, 1870, with a Commentary on
the Life Insurance Legislation of that Year : forming a Supplement to the “Law of Life Assurance." By C. J. Bunyon, M.A., Barrister-at-Law. London: Charles & Edwin Layton, Fleet Street.
1870. The passing of the Life Assurance Companies Act, and the recent decisions with respect to what is called Novation of Contract have rendered it necessary to the completeness of Mr. Bunyon's standard work on Life Assurance Law that he should supplement it by the present publication. Both these subjects have been considered at length in the Law Magazine (Vol. XXIX., p. 193, and Vol. XXX., p. 96), and it is not necessary, therefore, to enlarge upon them in the present notice. It is sufficient to say that our views receive confirmation from the independent thought of so competent an authority as Mr. Bunyon is.
He criticises with some severity the draughting of the Act, which he describes as “an actuary's Bill rather than a lawyer's,” though he complains of it as not defining what an “actuary” is. He suggests that the opportunity should have been taken to require from the