The Law Times

gaoler might be right in refusing to take a person on bail into custody before the commission was actually opened, yet that after the commission was opened, he was bound to receive him. It is well that this mistake has been rectified, otherwise great hardship would be inflicted on many persons, and the Act would have been violated in one of its very essential principles, viz., that of granting as early a trial as possible to all persons labouring under the odium of a criminal charge.

WE are glad to see that some of the judges have commented on the many weak objections that have been raised in regard to the frequency of holding assizes. Lord Justice BRAMWELL might have been expected not to have omitted the opportunity of making some such observations in view of the report of the Judges on the subject which has just been published in our columns, but as he has always been the zealous advocate of the consolidation of counties, and the alteration and improvement of the old system of holding assizes, his remarks on this subject may not be considered to have that weight which everything coming from such a judge deserves. No such qualification can be applied to the remarks of Lord Justice THESIGER on the subject. In his charge to the grand jury at Chester, he spoke at length on the frequency of assizes, and in the course of his charge pointed out to them that whatever opinion they might have generally as to the advisibility of holding four assizes a year, they could not but come to the conclusion, looking to the calendar and the character of the offences contained in it, and that less than three months ago assizes had been held in the county, that that particular assize was not held without good cause. Dealing with the old and well-worn argument that the grandeur and dignity of the assizes would be lost by holding them more frequently than as of old, his Lordship said he did not attach much importance to it. Nor do we, and we agree with his Lordship "that in these days of educational enlightenment the respect which was paid to the judges, both of superior and inferior tribunals, was not so much due to the accidental surroundings of pomp and dignity which attached to them, but rather to that innate love of law which was to be found in the English race, and to the consciouness that in all those tribunals the law would be independently and impartially administered.' By all means we say let "the gentlemen of the counties," who, it would appear, are most strongly opposed to the provisions of the Winter Assize Act, ventilate their grievances, and state their views, for then perhaps, as his Lordship remarked, "a change may be made that will be consonant to their feelings." present, however, nothing that they have said is a sufficient argument to justify the abolition of the fourth assizes. Let the Act have fair play, and we are confident that only slight changes are necessary to make it a success.

THE question of jurisdiction, as well as the point of practice raised in Scully v. Lord Dundonald (39 L. T. Rep. N. S. 116) has undoubtedly been settled in conformity with the meaning and intention of the Judicature Act. From the evidence in that case it appears that the plaintiff brought an action in the Common Pleas Division to recover a commission for services performed by him in obtaining payment from the Brazilian Government of a sum which was being administered in the Chancery Division. The plaintiff subsequently commenced an action in the Chancery Division to establish his right to a lien on the defendant's interest in the fund, and to restrain the defendant from receiving the fund without first paying the commission. He afterwards agreed to accept £2000 and costs out of a sum set apart to abide the event of the action in the Common Pleas Division, in satisfaction of his claim. The defendant, however, repudiated the compromise, although he had himself made the offer. The plaintiff then moved in the Chancery Division that the £2000 and costs might be paid to him out of the sum that had been so set apart. It was argued that the latter division had no jurisdiction to enforce the compromise on motion. On the other hand, Eden v. Naish (L. Rep. 3 Ch. Div. 177) was cited, and an unreported decision of the MASTER of the ROLLS (Hakes v. Hodgkin), where his Lordship decided that where there is a compromise in an existing suit the terms of that compromise can be enforced by a separate order in the suit, without another action being commenced to enforce the terms of the compromise. The order made by the Chancery Division when the above sum was set apart was to the effect that all proceedings should be stayed until after the trial of the action in the Common Pleas Division. Vice-Chancellor MALINS, before whom the application to enforce the compromise first came, was of opinion that the plaintiff ought to have applied to the Common Pleas Division, and held that he had no jurisdiction to enforce a compromise of an action in that division, because the form of the order was that all proceedings in the cause should be stayed until after the trial. On that technical point he felt obliged to dismiss the motion, with the observation that, if the Court of Appeal could take a different view and enforce the compromise, he should be glad. The Court of Appeal did take a different view, and held that the Vice-Chancellor had jurisdiction. 'Instead of the action

being tried," said Lord Justice THESIGER, "the claim was settled by the parties. This seems to be within the terms of the last part of the order, for, unless the claim being settled gives the parties a right to apply, they never could apply at all, since after such settlement there is no way of bringing the action in the Common Pleas Division to decision." The order in question reserved liberty to apply in general terms.

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Sandys v. Small, to which we referred briefly in a recent number of the LAW TIMES, will now be found reported at length in the LAW TIMES REPORTS (39 L. T. Rep. N. S. 118). In that case, it will be remembered, the agent of an inspector appointed under the Sale of Food and Drugs Act 1875, purchased from the respondent, who was a licensed victualler, a half-pint of whisky, which was found when analysed to be thirty degrees under proof. A notice printed in large characters to the effect all spirits sold at the respondent's place of business were mixed, was conspicuous where the whisky in question was sold; but there was no proof that the inspector's agent saw it before he made the purchase. The justices refused to convict in a proceeding under the above Act, and the inspector appealed. We refer now to the case for the purpose of pointing out the grounds upon which the Queen's Bench proceeded in dismissing the appeal. The sections of the Act material to the present case were sects. 6 and 8. The former provides that no person shall sell to the prejudice of the purchaser any article of food or any drug which is not of the nature, substance, and quality of the article demanded by the purchaser; and the latter, that no person shall be guilty of an offence in respect of the sale of an article of food as aforesaid, if at the time of delivering such article be shall supply to the person receiving the same a notice by a label distinctly and legibly written or printed on or with the article to the effect that the same is mixed. No label was affixed to the bottle received by the agent, nor was a written notice given to him. Hence it was argued that the respondent was not protected. The Court, however, was of a different opinion, and Chief Justice COCKBURN expressed himself in the following terms: "The provisions of the Act were intended to apply to adulterations of a clandestine character which operate to the prejudice of the purchaser. The provisions of the 6th section seem to me to apply to cases where a seller professes to sell to a purchaser an article as being of a certain denomination, whereas the article has been altered by an admixture of some other ingredients, and it seems that when the article is so altered, this must be considered to have done to the prejudice of the purchaser,' unless it is duly and sufficiently brought to his knowledge; but if the alteration of the article, as of spirits by the admixture of water, is brought to the knowledge of the purchaser, and he chooses to purchase it notwithstanding, it can never be intended that such a transaction should be interfered with." With reference to the effect of sect. 8, his Lordship was of opinion that a seller may, by taking advantage of its provisions, protect himself completely; whereas, if he does not so protect himself, he must prove by other means that the purchaser had notice what he was purchasing. We have already expressed satisfaction with the result of this appeal, and an examination of the reported case serves to confirm our previously expressed opinion.

THE term " person" is, in the ordinary acceptation of that word in our law, said to include corporations, but it is manifest from the recent decision of the Common Pleas Division in The Guardians of St. Leonard, Shoreditch, v. Franklin (39 L. T. Rep. N. S. 122), which in effect followed an earlier authority, that the expression as applied to corporations is not strictly correct. Corporations are said to be bodies politic or incorporated-consisting of a single person or of a number of persons, empowered by law to act under one name and as one person. They are either aggregate or sole. They cannot commit felony or treason, nor can they be excommunicated or outlawed. The above action was brought by the plaintiffs for a breach of contract to deliver coals. They also sued for the half of certain statutory penalties incurred by the defendant in selling coals for and as a sort which they really were not. The defendant demurred to the latter part of the claim on the ground that the plaintiffs, being a corporation, were not entitled to sue for penalties as a common informer, and were not specially entitled to sue by the Act which imposed the penalty. The 1 & 2 Will. 4, c. lxxvi. s. 45, provides that if any seller or dealer in coals shall knowingly sell one sort of coal as and for a sort which they really are not, within the distance of twenty-five miles from the General Post-office, he shall forfeit and pay for such offence 101. per ton for every ton of coals so sold; and sect. 85 provides that the penalties imposed by the Act, when exceeding 251. are recoverable by action in any of the Courts of Record at Westminster "by the person or persons who shall inform and sue for the same within three calendar months after the offence or offences shall have been committed; one moiety of such penalty to go to the Crown, the other to the use of the person or persons who shall inform or sue for the same. In support of the demurrer it was contended that no

corporation can sue as a common informer; and that the word 'person" in Acts relating to common informers has no relation to corporations, unless it is so provided by the Act itself. On the other hand it was urged that the tendency of modern legislation has been to make the word person include corporation, even in cases like the present. Lord COLERIDGE, whilst conceding that the word "person" might in many cases be taken to include a corporation, pointed out that it was necessary to construe the Act secundum subjectam materiam. "There are no doubt," said his Lordship, "certain old penal statutes as to which the contention would have been impossible, there being certain conditions precedent to any action for the penalties imposed which no artificial person, such as a corporation, could possibly perform. In those cases it would have made nonsense of the statutes to hold that the word 'persons' included a corporation." He admitted, however, that in this case such interpretation would not have that effect, and went on to say, "I think, nevertheless, that it would be against the general current of authorities which tend to show that a corporation cannot sue as a common informer; and this is rather illustrated by the argument that corporations are expressly included, and empowered to sue, by many statutes." Hence the inference that the word "person" without more was not intended to include a corporation. This case is probably not less interesting as illustrative of the liabilities which attach to fraudulent coal merchants within the radius prescribed by the Act.

PAYMENT OF COSTS BY MARRIED WOMEN.

THE remarks of Sir James Hannen in the case of Morris v. Freeman (39 L. T. Rep. N. S. 125) will be read with interest as showing the nature of the alteration effected by the Judicature Acts with respect to the law of costs. The action was brought for the purpose of proving the will of one Sarah Morris, deceased. The defendant, Jane Freeman, a married woman, entered a caveat against the proof of the will, and at a later stage of the cause her husband was added as a co-defendant. The action was tried before the President and a special jury, and a verdict was given for the plaintiff on all the issues. The Court accordingly pronounced in favour of the will, and condemned the defendants in costs. The husband being a pauper, it was proposed to enforce this order against the female defendant alone, who was possessed of separate estate, and the application which formed the subject of the judgment we are noticing was made to vary the order by rescinding so much of it as was applicable only to the female defendant. The question therefore was, whether an order for the payment of costs could be enforced against a married woman separately.

Before the Judicature Acts this could certainly be done in the Court of Probate, and several precedents for it are cited in Sir James Hannen's judgment. In one case (Parker v. Hick, 3 Sw. & Tr. 436) the Court even went so far as to order an attachment to issue against the married woman for non-compliance with such an order. In granting the attachment the learned judge (Lord Penzance) said: "If the defendant has no property she is not liable to attachment, but the onus of establishing that fact lies upon her, and as she has not thought fit to appear in this motion, I shall allow the attachment to issue." Notwithstanding this and other cases it was attempted to sustain the argument of the female defendant in the present case in the following way. The Master of the Rolls (before whom the matter had come in a different shape) was stated to have expressed an opinion that an order of this kind could not be made or enforced in the Chancery Division. No authority was given in support, and in fact, as we shall see hereafter, the authority, such as it is, tends the other way; but from this it was assumed that the practice of the Chancery Division was against these orders, and it then appears to have been suggested that the practice of the Chancery Division in this respect had been grafted upon the Probate Division. To support this the 25th section of the Court of Probate Act 1857 was in the first place relied upon. This section provided that the Court of Probate should have the like powers, jurisdiction, and authority "for enforcing all orders, decrees, and judgments made or given by the court under this Act, and otherwise in relation to the matters to be inquired into and done by or under the orders of the court under this Act, as are by law vested in the High Court of Chancery for such purpose in relation to any suit or matter depending in such court." This, as pointed out by Sir James Hannen, obviously does not affect the power of the court to make any particular decree, but only confers the means of enforcing decrees when made. Besides, in using this argument the defendants' counsel was flying in the face of the series of decisions before mentioned, the greater part of which were decided after the establishment of the Court of Probate. Recourse was next had to the Judicature Act, and it was contended that the amalgamation of the practice of the Court of Probate with that of the Court of Chancery was effected by sect. 25 sub-sect. 11 of the Act of 1873, which enacts that in all matters not therein before particularly provided for in which there is any conflict or variance between the rules of equity and those of common law with reference to the same matter, the former rules

shall prevail. To this it was answered that, with certain exceptions expressly made in the Probate Act 1857, and which did not include the case in question, the practice of the Court of Probate was not regulated by the common law, but that the old practice of the Prerogative Court was expressly retained to it by the 29th section of the Act. Sir James Hannen accordingly held that, whatever the practice of the Court of Chancery may have been, or whatever that of the Chancery Division would now be, it was in no way binding upon him; that this action having been tried by a jury, and no cause having been shown at the trial why the costs should not follow the event, he must, in accordance with Order LV., r. 1, make an order to that effect, and that no reason being given why the female defendant should not pay them beyond the fact that she was a married woman, he should, in accordance with the practice previously obtaining in the Court of Probate, order her to do so.

With respect to the opinion thrown out by the Master of the Rolls, which, by the way, is merely vaguely stated to have been made, it must be doubted whether it could be sustained upon argument. In Pemberton v. McGill (1 Jur. N. S. 1045) the costs of the suit were ordered to be paid by a defendant, who was a married woman, her husband being a co-defendant. The case was afterwards mentioned to the Vice-Chancellor (Sir W. P. Wood) as to costs, and it was stated that the defendant being a married woman had no funds out of which she could pay costs. The Vice-Chancellor said: "I certainly recollect having ordered costs to be paid by the defendant, but I did not recollect that consequence of her being a married woman. Alter that part of the order by giving the plaintiff leave to apply for payment of these costs in the event of any moneys coming to the defendant. This is certainly a case where the defendant ought to be made to pay if possible." This seems to show by implication that a married woman could be compelled to pay costs out of her separate estate if she had any. But even if there should exist the most direct authority that under the old practice this could not be done, it by no means follows that it could not be done now. The remarks of Sir James Hannen on this point seem to us particularly worthy of attention. He said: "But further, if it be that the judges in the courts of equity had no discretionary power to condemn a married woman in costs, then it appears to me that the Judicature Act has made a new departure on this matter for the Chancery Division as well as for the other divisions, and that as in the Common Law Divisions, costs are now in all cases in the discretion of the court, unless the case is tried by a jury, freed from the restraints of all the statutes on the subject; so in the Chancery Division a like discretion is giver freed from the restraints of its previous rules of practice except in the cases specified in the section (referring to the clause in Order LV., r. 1, that nothing herein contained shall deprive a trustee, mortgagee, or other person of any right to costs out of a particular estate or fund to which he would be entitled according to the rules hitherto acted upon in courts of equity,') and that a judge of that division is now at liberty to condemn a married woman in costs, if on general principles of justice it should appear right to do so. The exceptions of certain rules of equity as to costs from the operation of the section, shows by implication that all rules of equity as to ccsts not excepted are abrogated; that is, as absolutely binding on the discretion of the court, although their effect on the minds of the judges, in the exercise of their discretion, will doubtless still continue." This seems to us the natural interpretation of Order LV., r. 1, and if it be the true one, previous rules as to costs in the non-excepted cases, though they may be adduced as arguments for the exercise of the discretion of the court, are of no inherent authority whatever. With regard to the payment of costs by married women it must, we think, be admitted that cases may arise in any of the Divisions of the High Court in which common justice demands that they should be so paid. Neither the Judicature Act (except in cases where special leave is obtained under Order XVI., r. 8), nor the Married Women's Property Act 1870 (see Hancocks v. Lablache, 38 L. T. Rep. N. S. 753) have made any difference in the necessity of joining the husband as a co-defendant, even when a decree against the separate estate of the wife only is desired, and it may be stated as a general rule that with certain special exceptions, such as where there has been a judicial separation or where a protection order has been obtained, or where her husband is beyond the jurisdiction, a married woman can neither sue nor be sued without her husband being made a party. Cases, however, sometimes occur where litigation is wholly due to the personal act of an unsuccessful party who is a married woman possessed of separate estate. In these cases the husband, who is joined for conformity only, may be unable to pay, and it would then be a great injustice if, by reason of the hard and fast rule said to have been thought to exist by the Master of the Rolls, a successful party should be deprived of his costs.

A recent decision in the House of Lords bears out Sir James Hannen's remarks as to all previous statutes relating to costs, except those expressly retained, having been repealed by the Judicature Act, and we see no reason why the previously existing rules of practice relating to the same matter should not be held to have been dealt with in the same way.

LIABILITY OF PARISHIONERS TO REPAIR THE PARISH CHURCH.

THE liability of the parishioners to repair the parish church is laid down in the following unqualified terms in the case of Veley v. Burder (12 Ad. & Ell. 233, 302): "Such, then, being the law of the land, it follows, as a necessary consequence, that the repair of the fabric of the church is a duty which the parishioners are compellable to perform, not a mere voluntary act which they may perform or decline at their own discretion; that the law is imperative upon them absolutely that they do repair the church, not binding on them in a qualified limited manner only, that they may repair or not as they think fit; and that where it so happens that the fabric of the church stands in need of repair, the only question upon which the parishioners, when convened together to make a rate, can by law deliberate and determine, is not whether they will repair the church or not, for upon that point they are concluded by the law, but how and in what manner the common law obligation so binding them may be best and most effectually, and, at the same time, most conveniently and fairly between themselves, performed and carried into effect. The parishioners have no more power to throw off the burthen of the repair of the church than that of the repair of bridges and highways-the compelling of the performance of the latter obligation belonging exclusively to the temporal courts, whilst that of the former has been exercised usually, though perhaps not necessarily exclusively, by the spiritual courts from time immemorial." This is undoubtedly still good law; but the practical enforcement of the obligation so existing has been complicated by the passing of the 31 & 32 Vict. c. 107, by which (sect. 1) "No suit shall be instituted or proceeding taken in any ccclesiastical or other court, or before any justice or magistrate, to enforce or compel the payment of any church rate made in any parish or place in England or Wales." An indictment would probably lie against any parish for non-repair of the church, or a mandamus might be obtained calling upon the churchwardens to repair, or a suit instituted against them in the Ecclesiastical Court. But how an individual parishioner can be compelled to contribute his quota towards the necessary repairs is a question of great doubt and difficulty. Phillimore, in his "Ecclesiastical Law," II. 1790, says, citing Reynolds, Lind. 53: "If there are any particular persons who are bound to contribute towards the repair, and, although they be able, are not willing, or do neglect the same, such persons may be compelled by a monition to such contribution, under pain of excommunication. That, so the church may not continue for a long time unrepaired through their default." He adds: "But this was before the time that churchwardens had the special charge of the repairs of the church, and also before the passing of the Compulsory Church Rate Abolition Act"; and there leaves it.

Perhaps a rate, made under 5 Geo. 4, c. 36, for the repayment of a loan advanced by the Commissioners of Works for the repairing of a church may be enforced by a suit in the Court of Arches against any occupier of property in the parish who satisfies conditions to be mentioned refusing to pay such rate. Such a rate is not a Church-rate in terms. In Smallbones v. Edney (L. Rep. 3 P. C. 444) a tithe-owner, who was exempted from an ordinary church rate, was held liable to pay a rate made under the above Act. But the property occupied must be such as would entitle the occupier to vote upon the question whether money should be borrowed under the Act, and possibly he must receive some benefit from the money borrowed.

RIGHT OF AGENT TO COMMISSION WHEN EMPLOYED BY BOTH PARTIES TO A CONTRACT.

Of the numerous cases which have been determined in our courts of law with reference to the right of an agent to commission, few are more important to the community at large than such as deal with the various questions that arise when the agent has made a secret profit out of the conduct of his agency. The decision of the Queen's Bench in the case of Harrington v. Victoria Graving Dock Company (39 L. T. Rep. N. S. 120), affords an excellent illustration of such cases. That case was an action to recover a balance unpaid by the defendants upon an agreement by which they undertook to pay the plaintiff, who was an engineer, a commission of 5 per cent. for superintending the repairs of two ships, which had been executed by the defendants for the Great Eastern Railway Company. The plaintiff had been previously employed by the Great Eastern Railway Company to advise and make estimates with respect to the said repairs. The defendants alleged that they entered into this agreement with the plaintiff in order to induce him to obtain this employment for them from the Great Eastern Company. The agreement had been made through an official of the defendants' company, but was repudiated by the directors when they became aware of it. At the trial, before Mr. Justice Field, the jury found that the agreement between the parties was in consideration in part of the plaintiff's undertaking to superintend, on behalf of the defendants, the execu. tion of the works contracted for, that the agreement to pay the was in consideration in part of a promise by the e his influence with the Great Eastern Railway

5 per

Company to obtain an acceptance of the defendants' tender; that the plaintiff, at the time the arrangement was made, was in a position of trust and confidence in relation to the Great Eastern Railway Company in reference to the tender for the repairs of the ships, and that the agreement was calculated to bias the mind of the plaintiff so that he could not give his full, free, and unfettered advice to the Great Eastern Railway Company. addition the jury found that the agreement did not so bias the mind of the plaintiff, and that he did not give advice to the company less beneficial than he otherwise would in reference to the said tender; but that the agreement was not disclosed to the Great Eastern Company. Upon these findings his Lordship refused to enter judgment. The plaintiff accordingly moved the court for judgment, on the ground that no part of the consideration was corrupt, and that the defendants could not raise the defence in any event.

The principle is well established that all profits directly or indirectly made in the course of or in connection with his employment, by a servant or agent without the sanction of the master or principal, belong absolutely to the master or principal: (Massey v. Davis, 2 Ves. jun. 317.) In support of this principle a number of cases may be cited, dating from an early period. In Thomson v. Havelock (1 Camp. 527) the plaintiff, who was the captain of a ship owned by the defendant, brought an action to recover money paid to the latter for services performed by the captain in the course of his employment. Lord Ellenborough ruled that as between the parties to the action the money belonged to the shipowner. "It is contended," said his Lordship, "that a servant, who has engaged to devote the whole of his time and attention to my concerns, may hire out his services or a part of them to another. . No man should be allowed to have an interest in conflict with his duty." In a subsequent case (Diplock v. Blackburn, 3 Camp. 43) a usage in support of such a claim was disallowed.

Turnbull v. Garden (38 L. J. Ch. 331) may be cited in support of the same principle. There the plaintiff had employed the defendant, an army agent, to provide her son with a reasonable outfit for India. The articles which went to make up the outfit were paid for through the defendant. who acted as the plaintiff's agent. The latter debited the plaintiff in account with the full amount of the invoice prices charged by the tradesmen supplying the outfit, and made no mention of the discount allowed him in each instance. He clained that this was according to the universal practice as between tradesmen and army agents; but it appeared that the plaintiff had no actual knowledge of the practice. The defendant brought an action in the Mayor's Court against the plaintiff to recover the balance of his account. A sum of money deposited by the present plaintiff with her bankers was attached to answer the claim. The plaintiff thereupon filed a bill praying a general account, and an injunction to restrain the further prosecution of the action. Upon directing the account to be rectified by disallowing as against the plaintiff the full amount of the discounts retained by the defendant, it was observed by Vice-Chancellor James that "What appears in this case shows the danger of allowing even the smallest departure from the rule that a person who is dealing with another man's money ought to give the truest account of what he has done, and ought not to receive anything in the nature of a present or allowance without the fullest knowledge of the principal that he is so acting." The last two cases show clearly that the claim to make a profit out of an employment or agency cannot be legalised by the mere existence of a usage or custom.

A case which throws additional light upon the questions raised in Thomson v. Havelock is that of Morison v. Thompson (L. Rep. 9 Q. B. 480), which was an action by the purchaser of a steamship to recover from the broker employed by him to purchase the ship as cheaply as possible, the sum of 2251. received by him from the broker of the vendor by way of commission. A verdict was entered for the plaintiff, with leave to enter it for the defendant, if the court should be of opinion that an action of money had and received could not be maintained on the facts. A rule accordingly having been obtained in the Queen's Bench, Lord Chief Justice Cockburn stated the rules of law applicable to the case in the following terms: "The result of these authorities is that whilst an agent is bound to account to his principal or employer for all profits made by him in the course of his employment or service, and is compelled to account in equity, there is at the same time a duty, which we considered a legal duty, clearly incumbent upon him, whenever any profits so made have reached his hands, and there is no account in regard to them remaining to be taken and adjusted between him and his employer, to pay over the amount as money absolutely belonging to his employer." The rule was discharged. When compared with the earlier case of Thomson v. Havelock, it will be observed that Morison v. Thompson turns upon the same principle, the circumstance that the action was brought by the agent in the one, and by the principal in the other, making no material difference. In Kimber v. Barber (L. Rep. 8 Ch. 56), when a similar principle was involved, the material question was whether at the time of a certain transaction the relation of principal and agent existed, so as to entitle the plaintiff to the benefit of a contract made by the

defendant. The plaintiff was desirous of procuring shares in a company, the defendant thereupon represented to him that he could procure some at 31. per share. The plaintiff accordingly agreed to purchase at that price, and certain shares were thereupon transferred part to the plaintiff and part to his nominee, and were paid for at 31. per share. Some time after this transfer the plaintiff discovered that the defendant was himself the owner of the shares which had been assigned to himself and his nominee. The Court of Appeal upon these facts held that the defendant was an agent for the plaintiff to purchase the share in question, and ordered him to pay back the difference between the price which he gave for the shares and the price at which he sold them to plaintiff. Once the court determined the question of agency, the difficulty of the case was at an end.

The Master of the Rolls decided the case of Williamson v. Barbour (37 L. T. Rep. N. S. 698) in 1877. There the plaintiffs were a firm of merchants trading at Calcutta, and the defendants their Manchester agents, who had purchased and shipped goods on behalf of the plaintiffs. The plaintiffs now applied to have the settled accounts which extended over the past twenty years, opened, and to obtain repayment of certain alleged overcharges in those accounts. The ground of the action was that the defendants were charged with having bought goods at one price, and invoiced them to the plaintiffs at an increased price, that having been instructed to buy white goods, they purchased grey goods and got them bleached, charging the plaintiffs more than the cost price of the grey goods plus the cost of bleaching; that they had not credited the plaintiffs with the discounts allowed to themselves; that they had charged for insurances that they had never effected, that they had sold their own goods to the plaintiffs at a profit; and that they had overcharged the plaintiffs in other ways. The Master of the Rolls held that in a case of principal and agent one case if it proved a fraudulent overcharge is sufficient to open the accounts between the parties; and that in the present case far more than enough had been proved to induce the court to open the accounts. With reference to what constitutes a fraudulent overcharge as between principal and agent, Sir G. Jessel, M.R. remarked that "the meaning of fraudulent overcharge as I understand it, is an overcharge deliberately made, and one which the man who makes it must know is an overcharge. It is impossible for a judge to dive into the recesses of any man's mind; he cannot tell what his theory of morals may be, or to what extent his conscience may have been corrupted by a long course of bad habits. He must suppose that reasonable men-men carrying on business-must understand their own acts, and must be prepared to abide the consequences. When we find an agent buying goods, paying one price and invoicing them at a higher price, we must take him to know he is committing a breach of his duty as agent; that he has taken from out of the pocket of his employer a sum which belongs to that employer; and that, unless it were done on a single occasion by accident or mistake, he cannot treat that overcharge as being properly described by any other term than a fraudulent overcharge.' In the course of his judgment his Lordship laid down the principle that a man is not the less an agent because, as regards some part of the work, he is employed to do it on the terms of having a fair profit, and cited as an illustration the case of an auctioneer who is employed to sell a freehold estate. Here, if he is a surveyor also, he obtains his fair profit as auctioneer and surveyor; but if he lays out money in any other way, as-e.g., for advertising, he can charge only the money actually expended.

Upon a comparison with the above decisions it will be at once

noticed that the case of Harrington v. Victoria Graving Dock Company differs from them in an important particular. In the former the agency is single, in the latter it is double. In the latter again, part of the consideration was to be given by the defendants for the plaintiff's breach of duty to his immediate employers. Mr. Justice Field stigmatised the whole case as a melancholy exhibition of the character of commercial usage. "I am sorry to say," said his Lordship, "that the habit appeared to have grown until it has eaten like a canker into the commercial morality of the city." The Lord Chief Justice assumed, for the purpose of the argument, that the effect of the agreement was not to induce the plaintiffs to do anything that was dishonest towards his employers, and having. remarked that unless upon the findings of the jury as they stood, he was prepared to give judgment against the plaintiff, he would have been of opinion that the case ought to have been sent for a new trial, went on to say, "But I think we can give judgment on the findings as they stand, against the plaintiff, for I am of opinion that when a bribe, or promise of a bribe, is given to a person employed by another, and is given by some one who has contracted with the employer, in order to induce the agent to do something in contravention c derogation of his duty of loyalty and fidelity to his employer that is a corrupt bargain, the man who takes the bribe or promise of a bribe, knowing that the object is to bias his mind, so as to induce him to be dishonest, it is as between them a corrupt bargain, and it is unnecessary to inquire into its actual effect or operation. The tendency of it is undoubtedly to influ ence and bias the mind of the agent, and lead him to be disloyal and unfaithful to his employer. It is intended to have that effect. The man who takes it does it with the perfect knowledge that it is intended to influence his mind so as to induce him to act unfaithfully towards his employer. To say this was not corrupt would be a contradiction in terms; and to allow trustees to enter into and enforce such a contract would be fraught with the most mischievous consequences. It does not matter whether the employer has been in fact, damnified; it is enough that it was intended to be injurious to him; that is a corrupt object, and it vitiates the contract." Mr. Justice Mellor was quite of the same opinion, holding that the fact that the agreement for the payment of the per-centage failed to have the effect intended between the parties, did not render it valid and lawful so as to afford the agent a good cause of action. The principle upon which this decision appears to be founded is that an agent who, in consideration of a future payment, undertakes, with a third party, to commit a breach of his duty towards his own principal, cannot recover from that third party the consideration so agreed to be paid. Claims of this kind, similarly to those already quoted, might probably be supported by proof of acquiescence où the part of the principal with the conduct of the agent. Thus, in The Great Western Insurance Company v. Cunliffe (L. Rep. 9 Ch. 525), a marine insurance company in New York appointed agents in London for settling claims in England, and for effecting reinsurancing. The agents were to receive a fixed percentage for settling claims, but nothing was provided as remuneration for reinsurance. As between brokers and underwriters, the agents were by a custom allowed by the underwriters 5 per cent. on each re-insurance, and also at the end of the year, on the general balance between the underwriters and the broker, 12 per cent. on the profit of the year. The company discovered the fact that 12 per cent. was thus paid in 1866, but made no objection until 1868. A Bill filed in 1869 calling upon the London agents to account for the 12 per cent. was dismissed.

SOLICITORS' JOURNAL.

things, for which the masters of the Common Law clerk recently charged throughout a bill of costs
Divisions of the High Court must be held re- "paid for forms," and when this charge was
sponsible, and the quiet, orderly, and regular
way in which business in the chambers of the
Chancery Division is conducted by the chief
at the common law chambers can only be ac-
clerks, is so remarkable that the state of matters
counted for by a disregard on the part of the
fessional men attending such chambers, and the
common law masters of the convenience of pro-
We are tired of complaining against the existing
legitimate requirements of the public in general.
miserable state of things at the Common Law
Judges' Chambers in Rolls Gardens.

As usual there are loud complaints against the
arrangements for conducting the business at the
Common Law Judges' Chambers. Business men
are as loth now to enter these chambers as they
were ten years ago. The state of things was
well described in a letter from a solicitor recently
published in the columns of the Times. We are
able to state, on reliable authority, that on
Wednesday in last week the crush and confusion
at these chambers was of such a character that
the transaction of business was for some time
altogether suspended, and on the following Friday
matters were almost as bad, and the noise and
confusion almost as great. Many judgment THE common law taxing masters have, no doubt
debtors who attended there on that day upon judg. from want of practical experience, mistaken
ment summonses left early without having such notions of what really constitutes "the stationery
summonses disposed of, owing to the disordered of the office" as applied to forms required to be
state of the large amount of business waiting to
be dealt with, and the general uproar that
prevailed. The contrast between this state of

used in solicitors' chambers in connection with the
issue of process, and the adoption of legal pro-
ceedings generally. An experienced common law

reached in the bill in connection with the issue of a subpoena, the master declined to allow anything for the form of præcipe on which a 2s. 6d. of præcipe was part of the stationery of the stamp is impressed, on the ground that such form office." But, as a matter of fact, forms of præcipe at at least one writ office, and the use of a printed written out by a copying clerk have been refused must be impressed in the case of a subpoena. form required; besides which the 2s. 6d. stamp We call attention to this matter because, as a matter of practice, the use of a large number of printed forms is required by the officials in the law offices, for which no kind of allowance is made to solicitors by the taxing masters.

IN our present issue we publish a report of the proceedings at the meeting of the members of the Solicitors' Benevolent Association, which was held last week at Manchester, and which report—

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The Law Times, 第 66 卷