Page images


being within the exceptions of that clause; this was supposed to leave it doubtful whether companies or partnerships formed for the purpose of some profit or advantage to the individual members, but not to the company at large, were within the provision, as in the case of the companies which formed the subject of Reg. v. Whitmarsh (15 Q. B. 600; 15 Jur. 7; 19 L. J., Q. B., 469), and Bear v. Bromley (16 Jur. 450; 21 L. J., Q. B., 354). That section has therefore been repealed, and re-enacted in an altered form (sec. 3), the words now being, "having for its object the procurement of gain to the partnership." So that that point is set at rest. There is also an alteration in the description in the second class of trading societies allowed by this section, on which we may possibly have to comment by and by; that class is now described as 66 companies incorporated or otherwise legally constituted by or in pursuance of any act of Parliament, royal charter, or letters-patent," instead of, as in the repealed section, "companies authorised to carry on business by some private act of Parliament, or by royal charter or letters-patent."


Official liquidators (Part 3 of Principal Act).— Secs. 14 to 21 relate to official liquidators. secs. 14 and 15 they are for the future to be appointed with reference to, and as the representatives of, both the creditors and the contributories. By ss. 16, 17, and 18 they are intrusted with additional powers to those given them by the Principal Act, with regard to compromising debts, calls, and claims, selling the property of the company in the course of liquidation, and calling together general meetings of such company. After these provisions as to official liquidators, there is an enactment in the new act (s. 19) to enable the court winding-up a company to adopt, partly or wholly, proceedings previously taken under a voluntary winding-up. By s. 20, they are liable to a penalty for failing to report to the registrar the decree or the resolution declaring the dissolution or the fair winding-up of any company they have been engaged in liquidating, either under the court, or voluntarily; and (by s. 21) constituting them trustees, under 10 & 11 Vic. c. 96-the act of 1847 for securing trust funds, and for the relief of trustees -with regard to any property of the company they shall find themselves unable to distribute at the expiration of twelve months from the dissolution of such company, owing to the death or absence of the parties entitled thereto.

Repeal of statutes (Part 5 of Principal Act).—The only sect. under this head is the 23rd, which repeals the 107th section of the Principal Act. We may remark that this 107th sec. repealed the 7 & 8 Vic. c. 110 (the Joint-Stock Companies Act, 1844), the 10 & 11 Vic. c. 78 (for the amendment of the act last mentioned), and the 18 & 19 Vic. c. 133 (the

Limited Liability Act, 1855)—but, so far as regarded any company completely registered under 7 & 8 Vic. c. 110, not till such company registered under the Principal Act. Under this section a difficulty arose as to insurance companies, they (together with banking associations, which are now regulated under another act of the present session-viz. c. 49) being expressly excepted from the operation of the Principal Act. Hence the 23rd section of the new act, after repealing the 107th section of the Principal Act, proceeds to enact, with reference to the three acts above mentioned, that they "shall be deemed to have been, and still to remain, unrepealed as to any company completely registered" (i. e.,. under 7 & 8 Vic. c. 110) "which has not obtained registration under the Principal Act, until such time as such company obtains registration under" the Principal Act, or the new act, "but from and after such time, and not before, shall be repealed as to such lastmentioned company; and, subject as aforesaid," all the said three acts, "shall be repealed." It was, however, later in the session discovered that that section did not meet the case of insurance companies, and therefore was passed 20 & 21 Vic. c. 80, called (as well as the above new act) "An Act to amend the Joint-Stock Companies Act, 1856." By this latter act it is enacted, that neither the Principal Act nor the above new act shall be deemed to have been repealed as respects insurance companies already or to be hereafter 'formed under 7 & 8 Vic. c. 110, or any act amending the same, or relating to such companies. There is, however, the following provision as to certain particular insurance companies :-Provided, that, if any insurance company formed under 7 & 8 Vic. c. 110, or the directors of, or shareholders in, any such company, have, during the interval between the passing of the Principal Act and the above new act, acted as if the 7 & 8 Vic. c. 110, had, as to such company, been repealed by such Principal Act, then, "so far as affects the mutual rights and relations of the said company, its directors and officers, and late or present shareholders, and so far as affects any penalties which the said company, or its directors, officers, or shareholders may have incurred by non-observance of 7 & 8 Vic. c. 110, the said 7 & 8 Vic. c. 110, shall, as regards the actions of such company, its directors and shareholders, during such interval as aforesaid, be deemed to have been repealed." The result of all this seems to be, that (whatever may have been intended by the Principal Act) the 7 & 8 Vic. c. 110, and 10 & 11 Vic. c. 78, are still the statutes under which all existing insurance companies are regulated, and under which future ones are to be formed. It is to be remembered that companies for assurance are expressly excluded from the Limited Liability Act, 1855.

Temporary provisions for registration of old companies (Part 5 of Principal Act).-The 27th section of the act extends the time for the registration of the old companies to the 2nd November, 1857, by which time they are required to be registered; and the 28th section, in order to compel them to be so registered, provides the following penalties in case of defaultfirst, that the company shall be incapable of suing in any court of law or equity; secondly, that no dividend shall be payable; and, thirdly, that each director or manager of the company shall be liable to a penalty of £5 per day during the time of such default; but, except in these respects, the company will remain unaffected, and subject to the provisions of the old act, which for that purpose is to be considered as unrepealed until it is so registered. Also, by the 25th section, the registration of companies which were registered under the act of 1856, after the 3rd November, but before the passing of that of 1857, is to be considered as effectual as if it had taken place before that day: so that in these two respects the doubts which existed are entirely removed. Then the 29th section provides for the case of other lawfully constituted companies, and in substance re-enacts the latter part of the 110th section; but the description of companies which may be registered at their own option is slightly varied; it is now, แ any company consisting of seven or more shareholders, having capital of fixed amount, divided into shares, also of fixed amount, duly constituted by law prior to the passing of the act, and not being a company hereby required to be registered." There was another question of some importance arising on the construction of the 113th section, which made the deed of settlement or charter of an existing company, when registered anew under the Principal Act, regulations of the company within the meaning of the act," and declared that all the provisions of the act should apply to the company in the same manner as if it had been originally incorporated under that act; and it was doubted whether that effectually excluded the "application of Table (B.), subject to the deed or charter, and also whether there was power to alter the deed or charter by special resolution; and to meet that doubt the section is repealed, and in lieu thereof it is provided -first, that all the provisions contained in the act of Parliament, deed of settlement, letters-patent, or other instrument of incorporation constituting or regulating the company, shall be deemed to be regulations of the company in the same manner as if they were contained in any registered memorandum and articles of association, and then that the company shall be treated in all respects as any other company formed under the act, except subject to certain provisoes. First, Table (B.) is not to apply to such

[ocr errors]

a company, unless adopted by special resolution; secondly, no company shall have power to alter any provision contained in any act of Parliament relating to the company at all; or, thirdly, in any letterspatent, without the consent of the Board of Trade; lastly, no company is to alter any of the provisions in the instrument which incorporates it, which, by the 5th section of the Principal Act, are required to be prescribed by the memorandum of association, and not authorised to be altered by the acts of 1856 and 1857.

CAP. XLIII. SUMMARY PROCEEDINGS BEFORE JUSTICES OF THE PEACE-APPEALS BY SPECIAL CASES.-It has hitherto been a rule, that no appeal lies from a magistrate's decision unless it is expressly given by statute. The consequence has been that in very many cases no right of appeal has existed, although the adjudication may have been as important in its nature and its results as in other instances from which the party dissatisfied had the power of appealing to the court of quarter sessions. This anomaly was not remedied by Jervis's Act (11 & 12 Vic. c. 43), although it professed to consolidate and render uniform the procedure which relates to summary convictions and orders; but the new act furnishes a remedy by allowing an appeal against any conviction or order of magistrates to one of the superior courts of common law, upon the ground that it is erroneous in point of law. The magistrates,, it is true, may refuse to allow the appeal (except where the application is made under the Attorney-General's direction), if they are of opinion that the application is merely frivolous; but even then the appellant may apply to the Court of Queen's Bench for a rule calling upon them to show cause why the appeal should not lie. The form of the appeal is to be by special case, which is to be stated and signed by the justices, provided the application for that purpose is made to them in writing, and security to prosecute, &c., given within three days of their decision. The appellant on receiving the case is to give a copy thereof, and notice of appeal, to the respondent, and is to transmit the case itself (without certiorari) to the superior court within three days after he, the appellant, has received it. The superior court, or a judge at chambers, is to decide the case, having power over the costs, and their decision is to be enforced by the magistrates. The act is already in force, but the courts are empowered to make rules for regulating procedure under it. It will be observed that the statute does not provide for appeals on matters of fact these, therefore, remain almost as before, and will lie only where expressly allowed by statute, and then to quarter sessions. The only alteration made as to such appeals is, that they will be taken to have

been abandoned when an appeal on a point of law is justice or justices, or any one or more of them, or made under this statute.


As this is a very important act, we will state its provisions somewhat more in detail. The first section interprets the meaning of the words " Superior Courts of Law and Court of Queen's Bench." The second section enacts, that after the hearing and determination by a justice or justices of the peace of any information or complaint which he or they have power to determine in a summary way by any law now in force or hereafter to be made, either party to the proceeding before the said justice or justices may, if dissatisfied with the determination as being erroneous in point of law, apply in writing within three days after the same to the said justice or justices to state and sign a case setting forth the facts and the grounds of such determination, for the opinion thereon of one of the Superior Courts of Law, to be named by the party applying; and such party, hereinafter called "the appellant," shall, within three days after receiving such case, transmit the same to the court named in his application, first giving notice in writing of such appeal, with a copy of the case so stated and signed, to the other party to the proceeding in which the determination was given, hereinafter called "the respondent." addition to the former remark, that the above section does not apply to matters of fact, it will be seen that it applies only to a determination upon a complaint or information in a summary way. The act states, that, in order to give a party a right to have a case stated, he must apply in writing within three days after the determination to the justice or justices to state and sign a case setting forth the facts and the grounds of such determination for the opinion thereon of one of the superior courts of law, to be named by the party applying. Under this head it will be observed, that the power to require a case to be stated is given to either party, so that it is equally open to an informant or complainant whose information or complaint is dismissed to require a case, as to a defendant who is convicted or has an order made upon him. The three days here referred to are one inclusive and the other exclusive; thus, if the determination be pronounced on the first of the month, the last day for giving the notice will be the fourth. The notice should be served upon each of the justices whose determination it purports to be, by delivering it personally or by leaving it at their places of residence; and as an additional caution it will be well to deliver a copy also to their clerk.

Security and notice to be given by the appellant.By sec. 3, "the appellant, at the time of making such application, and before a case shall be stated and delivered to him by the justice or justices, shall in every instance enter into a recognisance before such

any other justice exercising the same jurisdiction. with or without surety or sureties, and in such sum as to the said justice or justices shall seem meet, conditioned to prosecute without delay such appeal, and to submit to the judgment of the superior court, and pay such costs as may be awarded by the same; and the appellant shall, at the same time, and before he shall be entitled to have the case delivered to him, pay to the clerk to the said justice or justices his fees for and in respect of the case and recognisances, and any other fees to which such clerk shall be entitled, which fees, except such as are already provided for by law, shall be according to the schedule to this act annexed marked (A.), until the same shall be ascertained, appointed and regulated in the manner prescribed by the statute 11 & 12 Vic. c. 43, s. 30; and the appellant, if then in custody, shall be liberated upon the recognisance being further conditioned for his appearance before the same justice or justices, or if that be impracticable before some other justice or justices exercising the same jurisdiction who shall be then sitting, within ten days after the judgment of the superior court shall have been given, to abide such judgment, unless the determination appealed against be reversed."

Refusal of frivolous case.-By sec. 4, if the justice or justices shall be of opinion that the application is merely frivolous, but not otherwise, he or they may refuse to state a case, and shall, on request of the appellant, sign and deliver to him a certificate of such refusal, provided that they are not to refuse where the application is made to them by or under the direction of the Attorney-General.

Refusal of case by justices-Queen's Bench ordering case. The 5th sec. empowers the Court of Queen's Bench, when the justices refuse to state a case, to grant a rule (upon the application upon affidavit of the appellant) calling upon them and the respondent to show cause why such case should not be stated; and upon the rule being made absolute they are to state it accordingly.

Determination of questions.-Sec. 6 confers power upon the superior courts to deal with the case when brought up; and it enacts that "the court to which a case is transmitted under this act shall hear and determine the question or questions of law arising thereon, and shall thereupon reverse, affirm or amend the determination in respect of which the case has been stated, or remit the matter to the justice or justices with the opinion of the court thereon, or may make such other order in relation to the matter, and may make such order as to costs as to the court may seem fit; and all such orders shall be final and conclusive on all parties. Provided always, that no

justice or justices of the peace who shall state and deliver a case in pursuance of this act shall be liable to any costs in respect or by reason of such appeal against his or their determination."

Amendment of case. By sec. 7, the case may be sent back for amendment.

Judge at chambers exercising powers. By sec. 8, the powers of the superior court may be exercised by a judge at chambers.

Enforcing conviction.-By sec. 9, after the decision of the superior court, the justices may issue warrants to enforce the conviction or order which has been affirmed or amended by the superior court.

Certiorari.-The 10th section dispenses with the necessity of obtaining a writ of certiorari in order to remove into the court above the case stated by the justices. This is a great improvement upon the practice which now obtains with reference to cases stated at the quarter sessions, with respect to which all the cumbrous machinery of a certiorari is brought into action.

Enforcing recognisances.-When a party entering into a recognisance has failed to comply with its conditions, by sec. 13, the justice is to certify in what respect the failure has been, and then to transmit the same to the Clerk of the Peace, &c., to be proceeded on in the same manner as forfeited recognisances at quarter sessions.

Appellants not to appeal to quarter sessions, &c.— The 14th section enacts that any person who shall appeal under the provisions of this act against any determination of a justice or justices shall be taken to have abandoned any right which he otherwise may have had of appealing to the court of quarter sessions.


BIRMINGHAM LAW STUDENTS' DEBATING SOCIETY. Sept. 16, 1857.-Moot Point, No. 231. Would evidence of an usage of trade be admissible to render an agent liable as principal where he had by writing expressly contracted as agent?

A point raising the question as to the admissibility of parol evidence of custom and usage, for the purpose of annexing incidents to or explaining the terms of a written contract, being considered a matter of commercial interest and importance, and as an item of commercial law, was accordingly reserved for discussion. It need scarcely be stated, that parol evidence is admissible to explain the meaning of any term used in a contract, and in reference to which known usages or customs have been established and prevailed; and, in the next place, that parol evidence is not admissible to add to or vary the terms of a written contract, but that such evidence is only

receivable when the incident which it is sought to import into the contract is consistent with the terms of the written instrument. If inconsistent, the evidence is not receivable.

With respect to commercial contracts, it has been long established that evidence of an usage of trade applicable to the contract, and which the parties making it knew, or may be reasonably presumed to have known, is admissible for the purpose of importing terms into the contract respecting which the written instrument is silent; however, evidence of usage, though sometimes admissible to add to or explain, is never so to vary or to contradict, either expressly or by implication, the terms of a written instrument (see Vallego vr Wheeler, Lofft. 631; Eden v. East India Company, 1 Wm. Black. 299; 2 Burr. 1216; Magee v. Atkinson, 2 M. and W. 442; Adams v. Wordley, 1 M. and W. 374; Trueman v. Loder, 11 A. and E. 589). Therefore, as to the liability of an agent where the name of his principal is disclosed by the contract, it is difficult to contend, on the authority of the cases, that he would be liable, inasmuch as the contract in our case is with the principal; and to force the agent into a liability on the score of an usage or custom is to violate the very terms of the instrument, and to incorporate a condition totally inconsistent therewith. The current of authority appears to favour the negative view of the question; but a distinction prevails where the agent names his principal, and where not. The chief authorities on the moot point are Browne v. Byrne, 23 L. J. R., Q. B., 313; Humfrey v. Dale, 26 L. J. R., Q. B., 137; Green v. Kopke, 25 L. J. R., C. P., 297; Gillett v. Offer, 18 C. B. 905; Godts v. Rose, 25 L. J. R., C. P., 61; Phillips v. Briard, 25 L. J. R., Ex., 233; and notes to Wigglesworth v. Dallison, 1 S. L. C. 4th edit.

The meeting decided in the negative, but upon the ground that the name of the principal is disclosed by the contract.

A. FEREDAY, Corresponding Secretary.


No. 13.-Petty Sessions.

Are clerks to justices of the peace bound to publish in the county papers the proceedings at petty sessions? If so, under what statute are they so bound. A. B.

We have never heard that clerks to justices are bound to publish the proceedings of the petty sessions, but, if they are, we shall be obliged by any of our subscribers giving us the required information.-EDs.

No. 14. Dissenting Minister.

Is a dissenting minister, appointed by trustees to officiate in a Dissenting chapel, a tenant at will? That is, when no term was fixed or agreed upon, but his salary paid yearly. Does Doe v. Jones, 10 B. and C. 718, apply? AN ARTICLED CLERK.


The decisions upon the series of acts called the Public Health and Nuisances Removal Acts (see vol. 2, pp. 84-86) are very numerous, and the occasions in which the acts are required to be put in force are so frequent, that the following compendious abstract of their provisions will be acceptable. POWERS OF LOCAL BOARDS OF HEALTH, WHICH OUGHT ΤΟ BE STRINGENTLY EXERCISED AT THIS TIME.

1. Under the Public Health Act.

To provide that all streets within the district, including the foot pavements, are properly swept, cleansed, and watered, and the dust, ashes, rubbish, filth, dung, and soil therein collected and removed (sec. 55).

To provide that all drains and water-closets, privies, cesspools, and ash-pits, are constructed and kept so as not to be a nuisance or injurious to health, and to give authority in writing to the surveyor to enter and examine any premises with reference to the state of the drain, water-closet, privy, cesspool, or ash-pit (sec. 54).

To drain, cleanse, cover or fill up, at the owner's or occupier's expense, all pools, ponds, open ditches, sewers, drains, and places used for the collection of any drainage, filth, water, matter, or thing of an offensive nature or likely to be prejudicial to health, with power to pay the whole or part of these expenses out of the general or special district rates (sec. 58).

To order the removal, within twenty-four hours, of any nuisance arising from swine, kept so as to be a nuisance to any person (sec. 59).

To proceed against any person who suffers waste ́or stagnant water to remain in any part of a dwellinghouse for twenty-four hours after notice, or who allows the contents of any watercloset, privy, or cesspool to overflow or soak therefrom (sec. 59).

To take proceedings against the owners or occupiers of any houses which, on the certificate of the officer of health, shall appear to be in such a filthy or unwholesome condition that the health of any person is affected or endangered thereby; and to direct the whitewashing, cleansing, or purifying thereof where this would tend to prevent or check infectious or contagious disease (sec. 60).

To prevent the business of a blood-boiler, boneboiler, fellmonger, slaughterer of cattle, horses, or animals of any description, soapboiler or tallowmelter, tripeboiler, or other noxious or offensive trade, business, or manufacture being newly established in any building or place, without the consent of the local board, unless the General Board shall otherwise direct (sec. 64).

To prevent the occupation of cellars as dwellinghouses, unless certain conditions be attended to (sec. 67).

To provide a proper and sufficient supply of water for their district if the waterworks company established within such district are not able and willing to furnish such a supply upon terms certified to be reasonable by the General Board of Health (sec. 75).

To require that houses be supplied with water, if such supply can be furnished at a rate not exceeding twopence per week (sec. 76).

To cause all existing public cisterns, pumps, wells, &c., used for the gratuitous supply of water to the inhabitants, to be maintained and plentifully supplied with water; or to substitute and maintain other works equally convenient; or to construct any number of new cisterns, pumps, &c., for the gratuitous supply of any public baths or washhouses established otherwise than for private profit, or supported out of any poor or borough rates (sec. 78).

To recover penalties from any person fouling any water under the management or control of the local board (sec. 80).

2. Under the Nuisances Removal Act, 1855.

To appoint, or join with other local authorities in appointing, a sanitary inspector, a power of entering into premises being given for the following purposes :

1. To ground proceedings.

2. To examine the same where nuisances exist, to ascertain the course of drains, and to inspect works ordered by justices to be done.

3. To remove a nuisance in case of non-compliance with order, or to inspect articles of food, &c.

Where a nuisance exists a justice shall, on complaint, require the person causing it, or, if he cannot be discovered, the owner or occupier of the premises where the nuisance is to abate it, and in case of noncompliance such person is liable to certain penalties. Where the person causing the nuisance, and the owner or occupier of the premises are unknown, the order of the magistrate may be addressed to and executed by the local authority.

Any nuisance removed may be sold after five days' notice, but where that delay would be prejudicial to health justices may direct an immediate removal and


To provide that when any ditch, gutter, drain, or watercourse is a nuisance, and cannot be rendered innocuous without a sewer or other structure along the same or instead of it, such sewer, &c., be laid down, and to keep it in repair; and assess parties using the ditch, gutter, drain, or watercourse as a means of sewerage to the expense thereof, such pay

« PreviousContinue »