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a carriage specially appropriated to such persons. Railway companies would not be railway companies if they did not contest, reasonably or unreasonably, every liability with which they are sought to be fixed: but it would be highly inconvenient if a porter had not such a power of removal where a passenger is misconducting himself. Whether railway companies like it or not, the necessities of the public become the measure of the implied authority in such cases.

It is satisfactory to find that infants are not to have things all their own way. A pseudo-infant of twenty years and nine months who executes a marriage settlement knows quite well what he is about, and when he pleads incapacity the plea is a bare technicality, which the Court, taking judicial notice of the precocity of the modern infant, regards with small sympathy. It answers like Portia,

“He shall have merely justice and his bond.' What the unconscionable infant in Edwards v. Carter ('93, A. C. 360) wanted was to keep his privilege of disaffirming his settlement in suspense until he saw how it was going to affect after-acquired property within the settlement when it fell into possession. This extravagant claim the Court made short work of. "Solvuntur risu tabulae,' indeed it is difficult to see what relation such deferred election bears to the disability of infancy at all. Not much better was the contention in Harris v. Beauchamp Brothers (42 W. R. 37) that judgment could not be given against a firm with an infant partner. If this immunity were allowed every firm would keep an infant partner on the premises.


The story of the Howe Peerage (Willis v. Earl Howe, '93, 2 Ch. (C. A.) 545) 'staled by frequence,' has lost whatever elements of romance it once possessed, and serves now only to point a dry legal moral. Palming off a supposititious baby as heir to an estate (to suppose for a moment the story true) is certainly fraud, but fraud alone will not prevent the Statute (3 & 4 Will. 4, C. 27) running, because fraud may by diligence be discovered. It is only when fraud is concealed, and therefore incapable of detection, that the Statute does not run, for the very good reason that laches in such a case cannot be imputed. The mere taking possession of the estate on behalf of the infant (as in the Howe case) does not render the fraud incapable of detection. On the contrary it challenges inquiry. It was splendid audacity in the plaintiff to pose as the discoverer of a fraud, after novelist, newspaper and solicitor had all had their turn at the situation for a century. In fact Willis v. Earl Howe sums up in itself all the elements which make up the policy of Statutes of Limitation : laches, the quieting of titles and finis litium.'


The question for decision' when reduced to its simplest form, may be thus stated : Suppose an owner of deeds has placed them under the control of another, and has authorized him to pledge them for a certain sum, and suppose that he has pledged them for more with a person dealing with him boná fide and without notice of the limit of his authority, can the owner of those deeds redeem them without paying the full amount advanced upon them? The answer to this question is No.' (Brocklesby v. Temperance Permanent Building Society, ’93, 3 Ch. (C. A.) 130, 140, judgment of Lindley L.J.) These words exactly sum up the point and effect of a case which to most readers must seem complicated. The complication, such as it is, arises from the intricacy of the mercantile transactions the effect whereof had to be considered by the Courts. But when once this is ascertained the principle applicable to the case is both obvious and well established. It is simply this: that a principal is bound to third parties by any act on the part of his agent which from the principal's own conduct a third party has a right to believe is within the authority of the agent, and this principle again which, if once clearly grasped, solves almost all the problems of the law of agency, is merely an application of the fundamental rule or axiom which governs the whole law of contract, viz. that a promisor is bound not by the promise which he means to make, but by the promise which by his conduct he has led the promisee to believe that the promisor means to make. It is always, in short, the apparent, not necessarily the real intention of a promisor by which he is bound. The law looks, as regards intention, and most wisely, to the natural result of a man's acts and not to the condition of his mind. From a legal point of view a person intends whatever he gives others reasonable ground for supposing that he does intend.


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* The main question in this case' (Wheaton v. Maple & Co. '93, 3 Ch. (C. A.) 48) ‘is whether the plaintiff

, who has actually enjoyed the access and use of light to his dwelling house for the full period of twenty years without interruption before action brought over lands contiguous to his house–in this case in reality for forty years, for his house was built in 1852-is entitled to restrain certain lessees of the Crown from building upon such lands so as to obstruct his lights. (Judgment of A. L. Smith L. J., The Court of Appeal has answered this question in the negative.

p. 69.) The answer rests on the simple ground that the plaintiff's right (if any) to lights arises under the Prescription Act, 1832 (2 & 3 Will. IV. c. 71), s. 3, but that section 3 does not bind the Crown, and the plaintiff therefore has no rights whatever. The decision is good law, but it results in very scant justice. There is certainly not a layman living who on reading the 3rd section of the Prescription Act, 1832, would not suppose, as the plaintiff in Wheaton v. Maple did suppose, that the plaintiff had acquired an absolute and indefeasible' right to light. This idea would no doubt have been erroneous, but it is no small evil that a law on which ordinary men have constantly to act should apparently mean one thing whilst it really means another. The time surely has come when the whole law of prescription may be reduced to a simple and intelligible form which might be understood by a layman of intelligence no less than by a lawyer.

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No branch of English law is, as has been constantly remarked in these pages, so unsatisfactory as that portion of it which is created by judicial interpretation of Statutes. Take for example Hill v. Thomas, '93, 2 Q. B. (C. A.) 333. It is a decision on the meaning of the words 'extraordinary traffic' used in the Highways and Locomotives (Amendment) Act, 1878 (41 & 42 Vict. c. 77), s. 23. To any one who studies the case two points become apparent. The first is that neither judges nor magistrates have hitherto been able to make up their minds as to the true meaning of the words we have cited, and very possibly for the best of all reasons, namely, that the draftsman who drew and the legislature which passed the enactment in question attached no definite sense to a very vague expression. The second point is that even now the interpretation affixed by the Court of Appeal after great deliberation on the words 'extraordinary traffic' may cause a good deal of perplexity to magistrates and others engaged in the practical administration of the Highways, &c. Act, 1878. It seems to mean any traffic which is beyond the ordinary traffic over a given road. But, on the other hand, if the amount of traffic is not as a whole extraordinary, the use of the road by one person, say to tenfold the amount of its use by all other persons, does not constitute extraordinary traffic. From which it would seem to result that the habitual use of a road by one person can never in the long run constitute extraordinary traffic. For his user of it forms by degrees the

. measure of the ordinary or average traffic over a particular road.


N obtains furniture from A on the purchase and hire system. N while the instalments on the furniture are still unpaid, and


in violation of the agreement with A, sells the furniture to X, who buys it in good faith without any knowledge of A's rights. X has a good title to the furniture against A. This is the point decided in Lee v. Butler, '93, 2 Q. B. (C. A.) 318. “This,' says Lord Esher, 'is a very plain case, and the construction of the Statute is very clear. The truth of this assertion is in one sense indisputable. The case falls precisely within the very words of the Factors Act, 1889, 8. 9. N has 'agreed to buy goods' and obtains, with the consent of the seller [4], possession of the goods. There is then delivery' by N.of the goods' under a sale to X, who is a 'person receiving the same in good faith, and without notice of any lien or other right of the original seller' A. It follows then that X has under the Act a valid title. Compare the Factors Act, 1889, ss. 2 and 9. But though the words of the enactment are amply satisfied, many persons will feel that its spirit is violated. One thing is pretty clear. If the judgments of the Queen's Bench Division and of the Court of Appeal be, as they probably are, good law, either the Factors Act, 1889, must be amended, or the purchase and hire system must be given up or modified.

It is a dangerous thing to receive as a present fully paid up shares in a company formed under the Companies Act, 1862, when in fact nothing has been paid for them; the gift, should the company fail, will impose on the donee the necessity of paying up the full price of his shares. This is the moral of In re Eddystone Marine Insurance Co., '93, 3 Ch. (C. A.) 9. It is an important one to all men engaged in business. Everyone must sympathise with the judges in regretting that quite respectable men who have acted with perfect honesty should suffer loss from receiving a well deserved present. But anyone who looks to the interest of the public and to the necessity of maintaining mercantile honesty must be glad that the principles of the Companies Act, 1862, should be rigidly enforced. Mercantile associations should not give presents.

What is a criminal proceeding? This is an inquiry to which it is not easy to obtain a clear and decisive answer. Rayson v. South London Tramways Co., '93, 2 Q. B. (C. A.) 304, decides that a summons taken out against a passenger in a tram-car for having committed the offence under the Tramways Act, 1870, 33 & 34 Vict. c. 78, of avoiding, or attempting to avoid, payment of his fare is a criminal proceeding, and, if taken without reasonable and probable cause, will support an action for malicious prosecution. The character, in short, of the proceedings is not affected by the


fact that their object is to obtain payment of a penalty. The test by which to determine whether a proceeding is a criminal proceeding appears to be the character of the act in respect of which the proceeding is taken. If the offence complained of is in itself a misdemeanour then proceedings for a penalty are criminal proceedings, i.e. proceedings intended to punish a crime.

Bankers and business men will have to reconstruct their ideas a little after Powell v. London and Provincial Bank ('93, 2 Ch. (C. A.) 555). The practice of pledging certificates with blank transfers to secure an advance has become universal in the mercantile world. Convenience is all in its favour. The security may never want enforcing, but if it does, all the pledgee has to do is to fill up the transfer and get it registered. One little thing, however, in this transaction has been in danger of being forgotten-was in fact forgotten in Powell v. London and Provincial Bank and that is that for the transfer to operate as a deed, it must be re-delivered by the pledgor after being filled up, delivery not being as yet an obsolete formality. It would soon become so if the Court had yielded to the argument addressed to it to presume 'omnia rite acta’ in plain contempt of facts. Of course the pledge is good, in equity, apart from any deed, as an agreement to give a charge, but in a commercial shipwreck there is nothing for an incumbrancer like having a plank in the shape of the legal title to cling to.

The Court of Appeal had a very good opportunity in Re Washington Diamond Mining Co. ('93, 3 Ch.(C.A.) 95) of 'sticking in the bark'in construing the fraudulent preference section of the Companies Act, 1862. The difficulty arose from the mischievous practice, now so common among parliamentary draftsmen, of incorporating by reference the law of one subject into another, in the particular instance the bankruptcy law of fraudulent preference into winding up. They save themselves trouble and call it assimilating the law. If the analogy is perfect no harm is done, but the analogy seldom is perfect. It is certainly not so in the case of bankruptcy and winding up. There is in winding up a well settled rule that a contributory of a limited company cannot set off a debt against calls—a corollary from the fundamental principle (the price of the privilege of limited liability) that the capital must be paid up in full in cash. There is nothing like this in bankruptcy. Hence the Court of Appeal had to torture the section to make it fit the requirements of company law. It was well they could, for this impeached transaction is far too common. Directors, that is to say, vote fees to themselves when the ship is sinking, and set off the sum against liability on their shares.


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