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DUBLIN, SEPTEMBER 2, 1854. 409 ROLLS COURT: FOSTER V. HIGGINS. Writ of partition-Return by one of two commissioners-Dividing a house— Contempt... ......... 409 ates, to impair the moral effect of his punishment. It is of course no longer a matter of presumption, as it was before his trial, that the prisoner is an inWe think that some change is desirable in the law nocent man; he has now by his peers been proor practice of hearing aud disposing of writs of nounced guilty of the offence imputed, and the fresh error in criminal cases, with regard to requiring the proceedings are not with respect to the validity of personal attendance of the criminal on those occa- that judgment, but merely with reference to the sions. The course at present is that a writ of ha- regularity of the proceedings in point of law. The beas corpus goes to the authorities in whose custody reversal of the sentence will only free him from the prisoner is, to bring him before the court where legal responsibility; it will certainly not purge his the writ of error is returnable, in order that he may character from the stain of moral guilt. Whether, assign errors. This proceeding, except in the com- pending such proceedings, the rigours of his sentence paratively rare instances in which the prisoner ar- should be suspended, is another question. No one gues and conducts his own case, is of course nothing however can approve of the prisoner enjoying what, but a solemn farce. The prisoner hands in a parch- to one in his circumstances, would be almost tantament which he has never read, the contents of which mount to relaxation or even recreation. But this prowould, to his untutored mind, be utterly unintelli- cedure is at all times fraught with inconveniences still gible, and of the object of which he probably has more serious. What can be more revolting than to beno conception. The arguments, which subsequently hold, thus paraded in open court, the wretched crimitake place, are of such a nature as in general to be quite nal under sentence of death, whose existence hangs incomprehensible to the accused, and in the progress on a thin web of subtle sophistry, which the humane of which he can afford to his counsel no assistance. ingenuity of his advocate has woven to give him It is, therefore, as a general rule, utterly immate-a last chance of life? Far be it from us to deny rial to the furtherance of justice that the accused to such a man the fullest benefit of the law, accordshould be present during the proceedings. On the ing to which alone he ought to suffer; but it is truly other hand, many are the disadvantages arising dreadful to think of the grievous misapplication of from the present practice. In the first place, it his precious moments, so soon to be swallowed up entails considerable expense. Again, it is calculated in eternity: bewildered, as he is, in the throng of not only with the prisoner, but also with his associ- spectators, and anxiously speculating on the pro babilities in favour of his existence, instead of calmly THE MERCANTILE LAW, AND THE (Continued from page 243.) The privilege of limited liability, if conceded at all, should be dependent not upon the number of the partners, but upon the sufficiency of the capital contributed at the commencement. If two concerns start to compete in the same business, and with the same amount of capital, it would surely be inconsistent and unjust to grant the privilege of limited liability to one of those concerns, because it consists of ten or more partners, and to withhold it from the other concern, because it is conducted by two or three parties. 8. Directs attention to the probability that unlimited liability in the case of large joint stock associations may have the effect of generating too much confidence in the concern on the part of the public, and too much boldness in their operations on the part of those who manage the concern. Upon the supposition that such is the case, we think no reasonable person will propose limited liability as the appropriate remedy for this evil; that is, to restrict the responsibility of the concern for the express purpose of weakening its credit, and thus creating a necessity for prudent management. We conceive that the amount of confidence which can be properly placed in any concern, is a question, the decision of which should rest with the public, and not with the Legislature. All attempts in such matters to substitute legal provisions, in the place of individual prudence or of the public judgment, have proved proverbial failures. Confidence will be meted out to concerns not exclusively in reference to the amount of capital ultimately responsible for its engagements. Two things are requisite to secure well-placed confidence in a concern. First, adequate knowledge and prudence for the management of it. Second, an amount of capital in due proportion to the scale of the concern. More than this amount of capital in the concern will be injurious, and not advantageous, to it. The sense of further ultimate responsibility will not be necessary to strengthen the credit of a concern, in the conduct of which there is adequate skill, prudence, and capital. And when there is a notorious deficiency of these, the sense of final responsibility, of the nature alluded to in this question, will do little to supply the defect. Credit will be much more readily, and more properly, given to concerns conducted with adequate living capital and prudence, than to concerns deficient in those qualities, however wealthy the shareholders may be esteemed. 9. We think that the interests of trade will be best protected from injury, and that competition will be most effectually restrained within proper concerns what amount of capital they think proper, limits, by leaving all parties free to bring to their and the public free to trust them to what extent it thinks proper; the arrangements of both parties being subject to the legitimate influence of full responsibility. 10. If the character of unlimited liability be assumed to secure to a concern additional credit at one time, it must be equally assumed to produce that effect at another time. If, during a period of general excitement in trade, it affords the facility for bolder operations, it will, during a period of the concern, afford an extra source of profit. These general depression, by strengthening the credit of effects must be dependent upon the public judgment of the character of the concern, but any attempt legislation must be unsound in principle, and, we to guide or influence that judgment by means of believe, will be found injurious in its results. The supposition that "unlimited liability deters holders in banks or other public companies," is, in prudent persons of property from becoming shareour estimation, a proof of the value of that princi ple. And the law as it now exists must be considered as operating, not "injuriously" as stated in the question, but beneficially. Such prudent per sons are so deterred, because they are not convinced of the prudence, safety, and probable success of such concerns, and are therefore very properly unwilling to incur the full risk attending them. A law of limited liability, which shall enable parties to secure to themselves the whole chance of profit whilst they throw an important portion of the risk of loss upon others, and which shall thus have the effect of inducing prudent persons to promote and support concerns of whose success they have well-founded misgivings, must, we conceive, be clearly contrary to public policy. 11. We think that unlimited liability ought to be the established principle of our commercial legislation, and that any suspension of this principle should be permitted only under the special authority of the Board of Trade, or of an Act of Parliament. In the few exceptional cases in which it might be expedient to concede the limited liability, we think it ought to be for a limited period; that the opportunity may thus be secured for a periodical reconsideration of the subject. 12. We see no reason for sanctioning any of the distinctions alluded to in question 12. In all cases of assurance societies we think that the greatest possible protection to the parties assuring in them should be provided. The confidence solicited by the companies is great, the credit granted to them must necessarily be of long duration. It is therefore essential that the interest of those trusting the companies should, to the utmost possible extent, be placed beyond the reach of risk. The object of limited liability can in all such cases be effectually secured, and by the most appropriate means. It rests with the managers of such companies to take due care that their paid up capital and the accumulation of premiums are abundantly sufficient to meet all possible risks. This is a duty of paramount importance which they owe to the public. The shareholders, by seeing that this duty is properly discharged, will at once protect their own interests, and those of the assurers, in the most proper way. 13. We see no facts whatever to justify the supposition that the energies of commerce are paralyzed, or that trade is so impoverished by the operation of the law of unlimited liability as it at present stands as to be unable adequately to meet the constantly increasing demands which are constantly made upon it. Continual increase of activity and of enterprise, and extended operations on the part of the trading world, is the phenomenon which all the official accounts successively substantiate. We believe that a law of limited liability would induce some persons to employ capital in trade who at present refrain from doing so, being unwilling to embark in trade unless they can throw a portion of the risks which attend it upon other parties than themselves. But we do not think it by any means clear that the community would be benefited thereby. The present distribution of capital we believe to be the natural, and therefore the legitimate and most beneficial, distribution. And it must be fur ther observed that limited liability cannot create any new capital. If, therefore, it has the effect of bringing more capital into trade, it must necessarily have the effect of abstracting that capital from some other occupation in which it is at present employed-probably with equal advantage to the community. 14 to 18 inclusive. These questions are intended to draw attention to the various difficulties in detail, which will necessarily arise in the attempt to carry into operation a law of limited liability. We fully recognize the magnitude of these difficulties, but we do not think that any means can be devised for effectually obviating them. a Upon the supposition put in question 18 that " portion of the subscribed capital of the limited partnership is lost," we think that the full published amount of the subscribed capital of each partner ought to be made good at the end of every year. The principle of a law of limited liability is, that a fixed and specified amount of capital is substituted for the uncertain and undefined security which unlimited liability affords. To satisfy this principle it seems requisite that the stated amount of liability of each partner shall be continually maintained; that the losses like the profits shall be annually distributed amongst the partners-the stated amount of each partner's liability remaining unaltered. It is not increased by the share he annually receives of the profits; it ought not to be diminished on account of the share which he may annually be called upon to bear of the losses. In 19. It appears to us very difficult to justify any restriction upon the power of the limited partners to interfere in the management of the concern. all probability the limited partners will be the partners of real responsibility, whilst the so-called " gerant," will be a man of little or no responsibility. With what reason can it be said that the really responsible partners shall offer no opinion or advice respecting the conduct of the concern to the gerant? Or how is it possible to draw any real and practical distinction between tendering advice and directly interfering in the management of the concern? What degree of prudence in the conduct of a concern, or of safety in the results, can be reasonably expected under a system which placed the management exclusively in the hands of parties of possibly no responsibility, and precludes from interference those parties for whose prudence we have the best guarantee in their real responsibility. Where is the line to be drawn and how can it be enforced? A concern is established upon a common understanding among the partners as to the mode in which it is to be conducted. After a short time the limited partners find the gerant violating this understand. ing; he is too bold-or he is deficient in the energy of his operations--or he is deviating into paths of trade not contemplated by the original agreement. What degree of advice, of remonstrance, or of interference is permissible to the limited partners? How far can they go for their own protection without forfeiting their privilege? The period for the annual balance arrives--all the engagements of the concern must be estimated--stock and all out NEW LAW BOOKS. THE ... Just Published, price 7s. 6d., by Post, Ss. HE LAW OF JUDGMENTS AND EXECUTIONS, together with the DUTIES and OFFICE OF SHE. RIFFS, in relation to WRITS of EXECUTION and INTERPLEA DER; with INDEX, NOTES, and CASES. By ROBERT W. OSBORNE, Esq., Barrister-at-law. ...... Solicitor. O'Brien & Stackpoole. S. Creagh. J. H. Briscoe. John Julian. Anderson & Findlater. H. Wrenfordsley. R. W. Greer. B. F. Ottley. J. Ferguson. Peebles and Shiel. L. W. Hartstonge. NEW ORDERS IN CHANCERY. Just published, price 3s., by Post, 3s. 6d. 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