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In the sphere of criminal procedure technicalities banished from other parts of English law drag on a lingering and noxious exist

The motor car case, R. v. Hankey [1905] 2 K. B. 687, 74 L. J. K. B. 922, illustrates the way in which formalism may obstruct justice. The Earl of Craven was convicted of unlawfully refusing to give the name and address of the person who was at a specified time driving his motor car, such name and address being required that procecdings might be taken against him under the Motor Car Act, 1903, s. 1, and Rule 6, Art. 4, of the Statutory Rules and Orders, 1904. Every one knew what in fact was the offence, and that there was no defence on the merits. The Court was most reluctant to quash the conviction, yet the Court was forced to quash it because the charge was not described with correctness. 'A conviction must be as certain in its allegations as an indictment.' The Court no doubt did its duty, but many persons will regret that it was the duty of the Court to let an offender go



A learned correspondent writes as follows:

• The decision of the Court of Appeal in Re Tasker [1905] 2 Ch. 587, 74 L. J. Ch. 643, suggests too much summum jus, summa injuria. It not only defeats the title of a number of bona fide transferees for value of debentures, but it introduces a new risk which may well make people shy of investing in that class of security. The situation was this. The company had duly created £35,000 worth of registered debentures, and part of these it had issued to A, B, and C. Then, needing to borrow more, the company obtained loans from D and E, and issued to D and E debentures to twice the amount of their loans, together with blank transfers to enable them, if necessary, to realize their security. From time to time the company paid off part of the loans by D and E, and D and Eon such occasions handed over to the company the debentures and the blank transfers, but no retransfer to the company was executed. In the meantime applications for debentures were made to the company by X, Y, and 2, and the company complied with them by filling in the transfers handed over by D and E, with the names of X, Y, and 2, and registering X, Y, and Z as debenture-holders. Then came the question-raised in a debenture-holders' actionwhether X, Y, and Z were entitled to rank pari passu with A, B, and C against the property comprised in the security, and the Court of Appeal has held that they are not. The company on paying off D and E's charge became equitable owner of the debentures, and as such could not-on the principle laid down by Lord Cranworth in Otter v. Lord Vaux— keep them alive or transfer them even to a bona fide holder for value without notice, so as to

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give the transferees a title to rank with the other debentureholders of the series A, B, and C. The company draftsman must now set himself to outmanæuvre this decision by conditions securing more effectually a quasi negotiability by estoppel.'

With great respect for our correspondent, we do not see what question of negotiability could arise on debentures expressly trạnsferable only by writing and registration. We agree that an adequate remedy may be found in the resources of company draftsmen without calling on Parliament to tinker the Companies Acts once more, probably with ambiguous results.

It seems obvious that a debt not payable on demand-such as arises from a deposit with a banker subject to ten days' notice of withdrawal—is not within the description of ready money’; and indeed this was not treated as arguable on either principle or authority in Re Price [1905] 2 Ch. 55, 74 L. J. Ch. 437. The point of more substance in this case is that such a deposit is not made a 'pecuniary investment' merely by the fact that the bank allows some interest on the deposit.

There are two principles of public policy involved in the construction of a company's memorandum of association: one is that a company must be allowed a fair latitude in carrying on its business, that is, the ultra vires doctrine must be reasonably and not unreasonably applied. The other principle is that persons who have subscribed their money for one purpose ought not to be committed to a new scheme which they never contemplated engaging in. It was this latter consideration which dictated Lord Justice Lindley's ruling in the German Date Coffee Company's case (20 Ch. Div. 169). The subscribers there had paid their money to work an invention for manufacturing coffee-or a substitute for coffee-out of dates. The directors, finding that impracticable, proposed—under general words in the memorandum—to acquire another patent in another country for a similar purpose, and the Court would not allow it. This principle was emphasized by Swinfen Eady J. in Stephens v. Mysore Reefs (Kangundy) Mining Co. ([1902] 1 Ch. 745, 71 L. J. Ch. 295) where that learned judge while holding that it was proper to give a liberal construction to subsidiary paragraphs for the furtherance of the main object of the company, would not accept a construction which would virtually enable the company to carry on any business of any kind whatever. A somewhat similar question came lately before Warrington J. in Pedlar v. Road Block Gold Mines of India, Lim. ([1905] 2 Ch.427, 74 L. J. Ch. 753). The first paragraph of the objects clause there empowered

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the company to acquire and work a particular gold mine in Mysore, the second paragraph to acquire and work gold mines'in Mysore or elsewhere. The particular gold mine in Mysore proved impracticable, and the directors were proposing to acquire a gold mine in Bombay under the word 'elsewhere.' Warrington J. held that they were entitled to do so. This in no way conflicts with Swinfen Eady J.'s ruling. A company may have two or more different objects; thero is nothing against it: only if the company has, the objects must be set out in reasonably clear language. A company cannot give itself a roving commission to go anywhere and do anything merely by stringing together a large number of general enabling clauses.

Since the Money-lenders Act, 1900, not only a money-lender cannot recover interest or charges of any kind which the Court thinks harsh and unconscionable, but a money-lender who neglects to register his name under the Act cannot recover anything at all, and in such a case the Court has no power to order payment of what it thinks fairly due. So Buckley J. has decided in Victorian Daylesford Syndicate v. Dott [1905] 2 Ch. 624, 74 L. J. Ch. 673. It was not uncommonly supposed, when the statute was new, that it would have little practical operation. If this decision is affirmed or acquiesced in, any such apprehension will be effectually removed.

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The occupier of land can, as a matter of right, bring an action for any trespass, whether it does or does not cause any measurable damage, and whether it does or does not interfere with his reasonable use or enjoyment of the land. But he cannot therefore, as a matter of right, claim the remedy of an injunction. The Court puts forth its power only when substantial injury or annoyance would result from the repetition of the trespass : Behrens v. Richards [1905] 2 Ch. 614,64 L. J. Ch. 515. A troublesome local controversy seems to have been reasonably settled by the order ultimately made in this case, which shows how much a judge can do in the course of the argument by the exercise of beneficent, if strictly extrajudicial, diplomacy.

Geisse v. Taylor [1905] 2 K. B. 658, 74 L. J. K. B. 912, illustrates the old saying that there is many a slip 'twixt the cup and the lip,' in other words it is one thing to attach a debt, and another to get payment of it. The judgment creditor in Geisse v. Taylor had obtained a garnishee order absolute attaching a debt due from a limited company to his judgment debtor, and had served the order on the company. The very next day the company executed a debenture to secure an advance, charging in the usual way its undertaking, and all its property and assets, present and future, including its uncalled capital. It was certainly smart practice on the company's part to intercept in this way the garnishor's remedies against its property, and Kennedy J., not quite easy in his mind as to the conscionableness of it, cast about to see if there were not some equity discoverable in favour of the disappointed garnishor; but in vain. It is well settled that a garnishee order does not make the garnishor a secured creditor. It merely surrogates him to the original creditor's rights to enforce the debt against the garnisheein this case, the company; but till he does so, by fi. fa. or other form of execution, there is nothing to prevent the garnishee dealing with the property available for payment of the debt in any way he chooses, e. g. charging it in favour of a debenture-holder. The lesson will be a useful one to creditors resorting to the remedy of attachment of debts. The hardship-if hardship there is—must be laid to the account of the floating charge.'

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The recent codification of German civil law and the prospective revision of the French Civil Code have naturally bespoken much of the attention of those who are interested in the comparative study of legislation. Similar work is going on elsewhere, not less efficiently because more quietly. For some years the Civil Code of the Netherlands-founded, as we may presume that most of our readers know, on the Code Napoléon--has been under a systematic process of redrafting. Its French origin has not prevented the learned persons in charge from keeping an eye on German legislation with a view to adopting any improvements it might suggest. The procedure is careful and business-like; the draft brought before the Legislature by the Minister of Justice is founded on a report of the Raad van State (Conseil d'État-there is nothing very like this body in England), which is not necessarily a public document, but is generally communicated if asked for. This is without prejudice to further consideration by a select committee at a later stage. We have before us a specimen of the work already done on the title of the Code dealing with evidence and prescription, and we hope to report further when the project approaches completion.

The meeting of the American Bar Association for 1905 was held in August at Narragansett Pier, R. I. The President, Mr. Henry St. George Tucker, of Virginia, devoted his address to a review of state legislation. Five more States have adopted the Negotiable Instrument Law framed by the Commission for Uniformity of Laws: Motor cars have been regulated in several States, and the maximum speed fixed at rates varying from fifteen to twenty-five miles an


hour. Texas has made a laudable endeavour to put down the practice of carrying arms; whereby the New York tailor's question to the customer who orders a hip-pocket (sicut dicitur)Maine or Texas ?'-may perhaps become a thing of the past. Habitual frauds committed by itinerant hawkers have moved North and South Dakota to pass statutes intended to make it impossible to give a negotiable instrument in payment for a lightning rod, a patent right, or, in North Dakota, a stallion or jackass. Massachusetts has taken drastic measures for the suppression of the ‘gipsy' and brown-tail' moths-really dangerous enemies to trees. The powers conferred on the officer appointed for that purpose appear to go to the extreme of constitutional correctness. Generally there is a marked tendency to the increase of governmental control.

The relation of law schools and their degrees or diplomas to the conditions which are or ought to be required for admission to practice has been lately discussed by the Association of American Law Schools and the American Bar Association: American Law School Review (St. Paul, Minn.), November, 1905. The opinion expressed here by the Oxford Law Faculty and others ten years ago (L. Q. R. xii. 1), that theoretical and practical training should be separately provided for, and examination alone will not secure either, appears to be generally accepted. We hope to be able to report before long on the new scheme of the Law Society here, which marks a considerable advance on anything hitherto done in England.

The following papers in the newly issued vol. xix of the Transactions of the Royal Historical Society may be noted as interesting to lawyers: Dr. Baldwin, The beginnings of the King's Council'; Miss E. M. Leonard, “The inclosure of common fields in the seventeenth century’; J. Neville Figgis, ‘Bartolus and the development of European political ideas'; I. S. Leadam, 'Polydore Vergil in the English Law Courts' (informations for dealing in bills of exchange without licence); H. E. Malden, Bondmen in Surrey under the Tudors.'

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ERRATUM. Vol. xxi (October number), p. 436, line 25 from bottom, for 'simple' read' similar ’.

It seems convenient to repeat in a conspicuous place that it is not desirable to send MS, on approval without previous communication with the Editor, except in very special circumstances ; and that the Editor, except as aforesaid, cannot be in any way answerable for MSS. 80 sent.

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