a very objectionable character, and for doing so he was attached. Smith v. Lakeman, 2 Jur. N.S., was a case between private suitors, in which a threat was made in order to intimidate a suitor. The last in order is Daw v. Eley, with which our readers are well acquainted. The opinion expressed by Chief Justice COCKBURN in Wason v. Walter, 17 L. T. Rep. N. S. 385, was noticed in the argument, and in the judgment of Mr. Justice LAWSON, that "the public writer, on commenting on this matter of public interest would be protected and excused, if in writing honestly and with reasonable consideration and selfcontrol he made mistaken inferences as to matters of fact, and advanced statements that could not be substantiated."

was

It was noticed by the Common Pleas in Ireland that all these cases had reference to injuries inflicted upon private individuals. No case, as Mr. Justice LAWSON informs us, was cited, in which an application similar to that under discussion made, where public rights or public interests were concerned. And here we arrive at a most important question, namely, whether election petitions are to be regarded as suits between private persons or as matters of public interest so as to take them out of the rule of law laid down in the cases from Pool v. Sacheverel to Daw v. Eley. Mr. Justice LAWSON distinctly deals with this. He says, "I have no doubt that the court, under the Act of last session, possesses a similar jurisdiction in cases of election petitions, to that in ordinary cases prior to the Act, and I can readily conceive cases in which it would be the duty of the court, or a Judge trying such a case, to check the issue of publications intended to deter or intimidate witnesses, or otherwise prejudice a pending trial; but I am clearly of opinion that the court should apply a very different rule in determining whether it would exercise that jurisdiction in the cases of election petitions from that which should guide it in ordinary civil actions. The question raised by an election petition, whether a candidate is duly elected, is essentially a question of a public nature, in which the general community have an interest, and the inhabitants of the place have a peculiar and special interest. In like manner the person who becomes a petitioner in an election petition is not an ordinary suitor. By his own act he places himself in a public position-and his act is of that public character that it may, in my opinion, be freely canvassed by the public journalist as long as he does it honestly and bonâ fide." He further expressed his view that no comments, no expression of opinion in any form as to the result of the trial of the petition could affect the course of justice, and thus give rise to contempt of court; but stated that if the press endeavoured to intimidate witnesses that would amount to contempt.

Mr.Justice MORRIS, on the other hand, regarded election petitions as private suits, to be governed by the ordinary rules of law in such cases. But we cannot regard his judgment as satisfactory, because, whilst admitting that election petitions have an element of public interest not possessed by private suits, he thought one rule of law was applicable to both, but that in the discretion of the court it should be exercised upon somewhat different principles. Without further explanation-which the learned Judge does not give we confess that this is to us unintelligible. Either the element of public interest makes what otherwise would be a contempt legitimate, or it does not. We observe, however, that at the close of the judgment, as already remarked, he thought the defendant should be admonished and ordered to pay the costs. This, we assume, is what the learned Judge means by carrying out the rule of law upon a different principle. To our mind it is an absurd compromise. The grounds of his difference from the opinion of Justices LawSON and KEOGH was, that the article upon the petition incidentally referred to the guilt or innocence of the parties to the petition. But the answer to this is supplied in the judgment of Mr. Justice LAWSON, who remarked that the petition would be equally sustained by proving bribery or undue influence committed or exercised by an agent.

The judgment of Mr. Justice KEOGH makes elaborate reference to the origin of the jurisdiction over election petitions and the growth of the law of libel, but he based his decision upon the fact that, if the Judge found that general corruption had prevailed, an entire borough might be disfranchised, so that in fact every

member of the community stood in the position of a party to the suit. This, we think, is the most forcible argument adduced in favour of considering election petitions in the light of public matters, upon which the courts should be very slow to restrict the comments of the press. The CHIEF JUSTICE was not strong in his reasons for agreeing with Mr. Justice MORRIS. He said simply, after referring to the cases already mentioned, "I would be the last person to limit in the least degree the discussion by the press of public matters; but I think it must have this limit, that if there be an action pending in court they must not enter into the merits or demerits of the case, so as within the authorities to prejudice the fair trial of it. I shall not go into the details of the articles brought before us, as they have been referred to at length by my brother Lawson; they are not discussions on public matters generally; they are, each and every one of them, discussions as to the merits or demerits of the Belfast Election Petition, and being a discussion of the merits or demerits of a pending petition, I don't think they are protected. I am quite aware the matter is one for our discretion; and the subject of discussion being one of public interest, I would, in the exercise of that discretion, view with less jealousy comments on the case than if the case merely involved private rights; but, in my opinion, these articles, particularly that in the Northern Whig, clearly go beyond anything that is justifiable."

Our own view of this very important question is that, inasmuch as our Judges are far above the reach of the comments of a party press, and inasmuch as an election petition is essentially a matter of public interest, and in many cases of serious importance to an entire constituency, articles of the nature complained of as appearing in the Northern Whig are not within the rule relating to private suits, and ought not to be regarded as a contempt of court. As to the proposed compromise-an admonition, with payment of costs-we have already said that in our opinion it is absurd. Admonition is not a dignified exercise of the functions of a Judge. It must be attachment or nothing. And for this reason: Either the article obstructs the course of justice or it does not. If it does not, admonition would be an excessive exercise of jurisdiction. If it does, attachment must fol'ow.

The true remedy in such cases lies in the hand of the petitioner or respondent, as the case may be. Action should be delayed until the petition has been tried. Whichever party succeeds might then have his action for libel.

THE RIGHTS OF SURETIES IN
BANKRUPTCY.

THE right of a surety of a creditor in regard to the estate of a bankrupt debtor has been much discussed, and the discussion has resulted in decisions which have laid down a rule of law necessary to be well understood. There is a distinction between a creditor holding security and a creditor whose debt is guaranteed by a third party. In the former case the creditor holding the security on any portion of the estate of the debtor must first realise or give credit for the value of his security, and prove for the balance only. But where there is a security from a third party, the creditor is entitled to prove against the estate of the debtor for the full amount, and receive a dividend, without regard to the security.

This leads to the question of the remedy of the surety, and the rule accepted in the recent case of The Midland Banking Company v. Chambers, 19 L. T. Rep. N. S. 548, is that in the absence of a contract to the contrary, the creditor is bound to pay to the surety so much of the dividend as may be referable to the amount received under the security. There are several cases, which will be found mentioned in the judgment of the Vice-Chancellor, which establish the right of the surety to stand in the place of the creditor, as stated above, and the only matter for discussion is, by what sort of contract this right will be waived.

There are two prominent cases which give us examples of this kind of contract. In Ex parte Hope, 3 De G. M. & G., there was a running guarantee given to a bank in respect of a particular customer. The same state of facts existed in Ex parte Miles, 1 De G. 823, Bank. Cas., and Vice-Chancellor Knight Bruce settled the point without calling on the respondents, as he was

of opinion that a running guarantee was inconsistent with the claim of the petitioner to be placed in the shoes of the creditor. Both were cases in which the surety bargained that the creditor should be paid in full before the surety should be entitled to receive anything in respect of the guarantee-in other words, that the guarantor should not be entitled until the creditor was paid in full.

In Chambers's case, before Vice-Chancellor Malins, the guarantee was in these terms :-"I hereby guarantee to you the repayment of all moneys which shall at any time be due from him to you on the general balance of his account with you (such balance to include all interest, charges for commission, and other expenses which you may, in the course of your business as bankers, charge in respect of advances or discounts made to him or on his account, or for keeping his said account with you); and I hereby declare that this guarantee shall be a continuing guarantee to the extent at any one time of 3007., and shall not be considered as wholly or partially satisfied by the payment or liquidation at any time or times hereafter of any sum or sums of money for the time being due upon such general balance as aforesaid, but shall extend to cover and be a security for every and all future sum and sums of money at any time due to you thereon, notwithstanding any such payment or liquidation. . . . And that all dividends, compositions, and payments received from them or him respectively shall be taken and applied as payments in gross, and that this guarantee shall apply to and secure any ultimate balance that shall remain due to the said company." Had it not been for the terms of this guarantee, the guarantor would have been entitled to stand in the place of the company. The Vice-Chancellor held it to be plain from the language that the company should receive the 300/. from the guarantor, and that whatever dividend was payable should be on the whole sum until they were paid in full.

Our readers will be enabled from this and the cases cited to comprehend clearly what is and what is not a guarantee which will entitle the guarantor to stand in the place of the creditor in the event of the bankruptcy of the debtor.

BARON MARTIN'S LAW OF ELECTION AGENCY.

BARON MARTIN has laid it down in the Norwich election petition trial that the relation existing between a candidate and a canvasser is more that which exists between master and servant, than that which exists between principal and agent. For the purpose to which the learned Judge used this analogy we agree as to its expediency, but we are inclined to think that he went beyond the limits of the comparison. He did not indeed say that in a matter of bribery he would not go beyond the law as it exists between master and servant. In fact, he used the expression that the relation existing between a candidate and his agent is "more that of master and servant than of principal and agent."

What we mean by saying that the learned Baron went beyond the limits or the comparison is this: clearly the relationship between principal and agent is not that which in Baron MARTIN'S view is that between a candidate and his agent, for in the former case the authority, of whatever description it is, must be strictly observed, otherwise the principal, in the case of a particular agent such as an election agent, will not be bound. But, coming to the law of master and servant, we find that the former is liable only for the negligence and not for the wilful act of the latter. Yet we must admit that there is a case (Limpus v. The London General Omnibus Company, 7 L. T. Rep. N.S. 641, Ex. Ch.), from which it would appear that where the act of the servant which causes an accident is merely contrary to the regulations of his master the latter is liable: (See also Greenwood v. Seymour, 4 L. T. Rep. N. S. 835.)

The former of these cases resembles somewhat the case of an agent of a candidate resorting to bribery to secure his return. There the driver of an omnibus drew across the road to obstruct a rival vehicle, and the judge at the trial directed the jury that if the defendant's driver in driving across the road to obstruct the plaintiff's omnibus was an act done by him in the course of his service, and which he thought best for the interest of his employers, the defendants were responsible, and that the instructions given to

the driver not to obstruct another omnibus, or hinder or annoy the driver, were immaterial. This summing up was held by the Exchequer Chamber to be correct, "as the proper questions for the jury to determine were, whether what was done was in the course of the employment, and for the benefit of the master." Probably Baron MARTIN had this case in his recollection, as it was upon his summing up, that a bill of exceptions was tendered. But it has to be observed that it was not an unanimous decision of the Exchequer Chamber, for Mr. Justice WIGHTMAN thought the summing-up of Baron MARTIN calculated to mislead the jury, observing "It certainly appears to me that the wilfully and wrongfully attempting to obstruct the progress of another omnibus, contrary to the express directions of the defendants, though done by their coachman whilst in the employment of the defendants, cannot be considered an act done by him in the course of his service. It was quite beside the course of his service which he was employed to do, and I cannot consider the express prohibition to the coachman to do what he did, was immaterial in considering what was the course of his service in this respect." Justices WILLIAMS, CROMPTON, WILLES, and BLACKBURN agreed, however, with Baron MARTIN, although Mr. Justice CROMPTON expressed considerable doubt. The case of Greenwood v. Seymour, though incidentally applicable, is not directly in point.

We have expressed our opinion that at Norwich Baron MARTIN went somewhat beyond the limits of accurate comparison; but after perusing the judgments in Limpus's case, we are bound to admit that there is ample room for a difference of opinion upon the point. The question which we should consider is, whether it can be regarded as for the interest and the benefit of a candidate that his agent should resort to bribery. Undoubtedly for the immediate purpose of the election it is so, but, looking to the ultimate consequences, it is not so. We are bound to admit, however, that the same observation applies to the omnibus case. It was possibly of immediate moment that a rival omnibus should be obstructed, but the chances were that the remote consequences would be opposed to the interests of the company, or, at any rate, could not materially promote them.

There being everything to be said in favour of the expediency of fixing a member with the act of his agent, although ostensibly in contravention of explicit directions, we easily conclude that the other Judges will follow the ruling of Baron MARTIN, particularly as Justices WILLES and BLACKBURN, the other Election Judges, strongly concurred in his view in the omnibus case. Therefore it cannot be considered of any importance that the analogy referred to by Baron MARTIN is not technically accurate. It would, however, be difficult to show conclusively that it is not technically accurate if we take his express words that the relationship is "more" that of master and servant than of principal and agent.

INCOME TAX-RIGHT OF DEBTOR PAYING INTEREST TO DEDUCT.

THE correct interpretation of the rules for the assessment of property and income tax is in very many cases, as our readers scarcely require to be informed, a matter of no small difficulty; and when a correct interpretation has, or has been supposed to be, arrived at, the proper application of the rules to the particular case is often scarcely less difficult than their interpretation. We are sure that few of those who endeavour to make an honest return under schedule D. perform their task without encountering a very great deal of doubt and perplexity. The other schedules offer similar difficulties. In fact, the making out a proper return requires a combination of the faculties of a trained lawyer with those of a skilful accountant. In support of our assertion, we may point to the very valuable work of Mr. CHARLES SENIOR on the tax, which must prove almost indispensable to those who have to wade through the mass of legislation under which the property and income tax is levied, and its assessment and collection regulated. The particular difficulties to which we are about to direct attention arise out of the machinery provided by the Acts for the collection of the tax, and in consequence of which in certain cases the person really liable does not pay the tax directly to the commissioners, but

allows the same to the person from whom he receives rent, interest, or other income. A correspondent in a recent number suggests a question of very general interest, viz., whether the receiver of annual interest is bound to submit to a deduction of income tax, although the payer does not make any return of income tax. On this point we have not been able to find any assistance in Mr. SENIOR'S treatise,

abate and deduct so much thereof as a like rate on such interest, annuity, or other annual payment would amount unto." The section then enacts that the receiver shall allow the deduction, and that no certificate shall be required when payments are to be made out of the profits of lands, or of any office or employment of profit, or out of any annuity, pension, stipend, or any dividend or share in such public annuities, as in the Act are mentioned. We do not think

The Act under which income tax is now levied is the 31 & 32 Vict. c. 28, which by that the 40th section of the 16 & 17 Vict. c. 34, sect. 2 incorporates the previously existing laws and the 15th section of the 27 & 28 Vict. c. 18, relating to income tax, so far as consistent with which read by themselves would confer on every its own provisions. The first consideration person paying interest an unconditional right of which occurs to us is the impossibility of sup-deducting income tax, whether such interest were posing that the payor is at liberty to make any payable or not out of profits or gains brought deduction for his own benefit. In some way or into charge by virtue of the Act, can be conother he must have paid, or at the least be sidered as enlarging the qualified right of under obligation to pay, to the commissioners, or deduction given by the 102nd section, or of must have allowed or be under obligation to removing the necessity for the production of the allow, in respect of income tax, to some person certificate of the commissioners as provided by from whom he receives income, every farthing the 104th section, of the 5 & 6 Vict. c. 35. of the sum which he deducts. In our view, a deduction of property or income tax amounts to a representation by the person deducting that the sum deducted has been or will be paid to the commissioners, or has been or will be deducted from income receivable by the payor. There can be no doubt that the person deducting the tax, if he has not already paid or allowed an equal amount in respect of the tax, is bound to account to the commissioners for the sum which he deducts

Having arrived thus far, we consider next, whether the receiver of rent or interest is bound under the heavy penalties imposed by the 5 & 6 Vict. c. 35, s. 103, and the 16 & 17 Vict c. 34, s. 40 (and which, as we may state by the way, do not appear altogether consistent), to allow a deduction of the tax on the mere claim of the payor, or on his mere assertion that he has paid the tax. We are well aware that in most cases, and for the despatch of business, a deduction is allowed as a matter of course and without inquiry.

In regard to rent, the right to deduct property tax from which rests on the 5 & 6 Vict. c. 35, schedule A, No. 4, and the 16 & 17 Vict. c. 34, s. 40, it seems to us that the landlord from whom the deduction is claimed is entitled to the production, though possibly not to the delivery to him, of the receipts for the tax. The right of deduction from the rent in respect of the tax is a deduction to be made by the tenant from the "next payment of rent, implying that there can be no right of deduction until after an actual payment of the tax by the tenant; and there must, therefore, be a right in the landlord to require the ordinary and appropriate evidence of the payment of the tax. Moreover, and this to our minds is conclusive, the tax under schedule A is a charge on the land itself, and may be levied by distress (5 & 6 Vict. c. 35, s. 70); the landlord is therefore completely justified in requiring proper evidence that it has been satisfied. We think it clear that a landlord is not liable to penalties for refusing to allow deductions for property tax, if his refusal arises from the fact that evidence of its payment has not been furnished.

66

The payee

In regard to annuities, yearly interest of money, and other annual payments, the right of the payor to deduct income-tax therefrom is governed by sects. 102, 103, and 104 of the 5 & 6 Vict. c. 35, by sect. 40 of the 16 & 17 Vict. c. 34, and sect. 15 of the 27 & 28 Vict. c. 18. On looking carefully into the 102nd section of the former Act, it will be seen that the right of deduction only arises when such annuities, yearly interest of money, or other annual payments, shall be payable out of profits or gains brought into charge" by virtue of the Act. is therefore entitled to some evidence that the annuities, interest, &c., are so payable, and the 104th section shows what the appropriate evidence is by enacting that whenever it should be proved to the satisfaction of the commissioners for the district where any person making the application should reside, "that any interest of money, annuity, or other annual payment shall be annually paid out of the profits and gains bona fide accounted for and charged by virtue of this Act at the rate and according to the rules specified in schedule D, without any deduction on account thereof," that it shall be lawful for such commissioners to grant a certificate thereof, "which certificate shall entitle the person so assessed, upon payment of such interest, annuity, or other annual payment, to

CHARACTERISTICS OF THE ELECTION TRIALS. VERY recently we ventured to differ most strongly with our contemporary the Pall-Mall Gazette, as to the probable effect of the transfer of the jurisdiction over election petitions to the judges. That journal, as our readers may remember, predicted the absolute decline of the Bench, the sacrifice of the respect which it has hitherto retained, and the ruin of our judicial system. How utterly this prediction has been confounded the trials themselves have shown, So far from the transfer of the jurisdiction proving in any way injurious to the Bench, it has already done much to elevate it in the confidence and admiration of the country. The press, and primarily the Times, on Wednesday last, recognises the fact that "a Judge of election petitions is a very different being from an election committee of the House of Commons." There can be very little doubt of this, and we have endeavoured to conjecture what would now happen to a case like that of Nottingham in 1866, which lasted twenty-eight days before a committee; and coming to the conclusion that a week would have sufficed to dispose of it before the present tribunal, we see the first great characteristic of the trials. That the Judges are of opinion that no case will occupy them more than a week is clear from the fact that they have fixed the dates of trials in several instances, and in none have they allowed more than seven days between the cases that are to be tried by the same Judge.

Another characteristic is, that the constituencies have been taught that the trial of an election petition is not a theatrical entertainment, as Mr. Justice WILLES informed the people of Windsor; and consequently that applause is altogether out of place. The latter lesson was impressed most strongly upon the audience by Baron MARTIN at Norwich, for his Lordship threatened to give into custody anyone who so far forgot the respect due to the Court.

Lastly, we have to mention a less agreeable characteristic-a conflict between counsel and parties. It will probably be anticipated that Mr. Serjeant BALLANTINE was an actor in the scene to which we refer. The learned Serjeant repeatedly during the inquiry levelled observations at the respondent, Sir HENRY STRACEY; but that gentleman subsequently gave evidence explicitly contradicting evidence against him, and solemnly disavowing all knowledge of bribery by anyone for whom he was responsible. We learn from a local paper that the following scene occurred, and we reproduce it in order that similar exhibitions may as far as possible be avoided in the future. Serjeant BALLANTINE, We are told, "charged upon Sir HENRY STRACEY that he perfectly well knew there had been extensive bribery." This was after Sir HENRY's denial on oath of any such knowledge. The report pro

ceeds:

Sir Henry Stracey.-You charge a falsehood on Sir Henry Stacey, and you tell it also yourself. [Applause.]

His Lordship said applauding was most improper conduct, and he instructed the police to of it again. His Lordship said his brother Baltake into custody any person who might be guilty lantine was only making a fair observation, and suggested that Sir Henry Stracey should withdraw from the court.

Serjt. Ballantine said if he were talking of the fowl dealer he should make use of exactly the same

language, and he should not shrink from doing his duty because he was speaking of Sir Henry Stracey. He must analyse the matter about the man Hardiment. Sir Henry admitted in cross-examination that he had received a letter from Hardiment. Sir Henry Stracey.-It is a lie. Serjt. Ballantine. My Lord, I shall ask if this language be repeated

His Lordship, to Sir Henry.-It would be better if you withdraw.

Sir Henry Stracey. It is impossible to receive these dreadful insults. It is trying to me. He tells a gentlemen he lies, and I never lied in my life, so help me God!

So.

His Lordship.-I don't understand him to say Sir Henry Stracey.-He ought to apologise. He before said he would apologise, and he has not He has accused me of every kind of

done so.

unfair transaction.

His Lordship said that what was said took not the slightest effect upon him. There was not a single syllable that Sir Henry Stracey had said in his evidence that he did not believe entirely. He believed it entirely and fully in its spirit. With regard to the Trumpet, there was evidence which affected Sir Henry, but Sir Henry had entirely relieved himself.

Serjeant Ballantine said that if his Lordship

had intimated that before he should not have adverted to it.

This, we are happy to say, is the only instance of any unseemly conflict, and we trust it may be the last, at least in England. And, on the whole, we think we have every cause to congratulate the country and the Profession upon the mode in which the proceedings are being con

ducted.

THE LAW OF EVIDENCE IN CEYLON. WE have received a little work from Ceylon upon the law of evidence, which as an addition to legal literature is absolutely worthless. The chapters which are original show a contempt for the judicial bench most unbecoming in an advocate, as the author, Mr. FRANCISCUS, states himself to be, and an assumption of superior knowledge and sagacity which on the face of his production he does not possess. But a matter of some interest is incidentally raised, and that is with reference to the mode of dealing with the varions races as defendants and witnesses in civil and criminal trials.

The law of evidence in force in Ceylon is the same as that which applies in England. The author has attempted to condense it into a manual, in which attempt he has conspicuously failed; and he has failed principally because he has become speculative instead of adhering closely to definition and the enunciation of principles. This spirit of speculativeness has led him into that inquiry which has interested us, as already mentioned. "We cannot," he says, "too strongly urge upon our young and inexperienced Judges the advisability of acquiring a knowledge of the languages, manners and customs, virtues and vices, faults and failings, prejudices and predilections, social habits and mental qualities, peculiar to the people over whom they are required to administer justicean accomplishment which will not only prove valuable to them on the bench, but will not fail to exercise a beneficial influence during their career in Ceylon. For whoever lacks this knowledge will, it is plain, make but an indifferent Judge, especially of native evidence."

Now we venture to think that Mr. FRANCISCUS has set before the Judges of Ceylon a perfectly useless task, except as regards acquiring a knowledge of the language of the witnesses. For what is the disposition of those with whom he first deals-the Kandian witnesses? "To us," speaking of himself, he says, "they seem to present anything but a character for truthfulness. They are generally ignorant, stupid, and indiscriminating." These, we are inclined to think, are characteristics not attaching to the Kandians peculiarly. They belong to certain sections of every people. And, as stated in the introduction to Powell on Evidence (last ed. p. 3), "Ignorance, passion, prejudice, and other constitutional infirmities of the witness, which are far beyond the sight or conjecture of either Judge or jury, may, and constantly do, without the consciousness of the deponent, distort his evidence so far as to render it absolutely worthless; although it may be delivered with perfect calmness and consistency, and even remain unshaken by the most searching examination."

The principal objection to a Kandian is his

want of truthfulness, but it does not require a knowledge of national character to find out when a man is lying. Men lie in England; and they would be more frequently found out had we a public prosecutor. No peculiar knowledge on the part of a Judge would be more effective in assisting him than is the demeanour of any witness. Perfect candour may be assumed as well by an Englishman whilst lying as by a Kandian. The only good point made by Mr. FRANCISCUS, appears to be with reference to Moorish witnesses. "We are not aware," he says, "of any other class of witnesses whose evidence we would receive with greater caution. If the Moorish trader sees a rich but foolish customer, he very often makes an attempt to plunder him of something, by bringing false cases of goods sold and delivered; and when he does bring a false case, he so contrives its various incidents by mixing a portion of truth with falsehood, and drills his witnesses in such a way, that he cannot, it seems, be defeated, save with great trouble and ingenuity. When a Moorman appears as a plaintiff in a case, and produces all Moorish witnesses, who bear him ments there are no contradictions or discrepanout in every particular, and between whose statecies, even on immaterial points, the truth of that case may well be doubted."

Knowledge of this peculiar capacity on the part of the Moor might, of course, be valuable to a judge. But it is easily learned; and Mr. FRANCISCUS does not prove so much that the Ceylon Judges will not learn, as that they have not the capacity to comprehend. Some, he says, are too sceptical; others too credulous. It will be quite clear from what we have said that the standard of judicial acumen raised by this writer is entirely fanciful, and really not worthy of further serious consideration.

One remarkable contention we must notice in conclusion: "In our opinion," says Mr. FRANCISCUS, "no Judge would be justified in nonsuiting a plaintiff, and thereby sending him out of court after hearing only his evidence, unless the Judge is satisfied that he has no locus standi in law, or that his legal title is weak and untenable, or unless he is undeniably convinced that the case is a false and groundless one, and that each and all the witnesses have been guilty of wilful and corrupt perjury."

Mr. FRANCISCUS is possibly not the only person who thinks that a Judge ought not to nonsuit a plaintiff without any ground for doing

So.

MORTGAGES BY TRADER DEBTORS. IT is laid down in Fisher's Law of Mortgage vol. 1, p. 201, on the authority of the cases, that "An assignment by the debtor of the whole, or of the whole with a colourable exception, of his property (otherwise than under the arrangement clauses of the Bankruptcy Act) is an act of bankruptcy; which is also the effect of an assignment of so much of the property, that the trader is, or by the enforcing of the mortgagee's remedies would be, prevented from carrying on his business, through a practical insolvency, or the loss of the necessary appliances. And as the defeat of the creditors by means of the insolvency, and not the mere stoppage of the business, is the foundation of the act of bankruptcy, a security upon all the trader's property, so that it be in consideration of a proper advance or equivalent, may be good, as a transaction most beneficial to the creditors by enabling the debtor to carry on his business."

Clearly the question what is a "proper advance or equivalent," is one calculated to give rise to diversity of opinion, and thus to litigation. It is remarked, in the work from which we have quoted, that a present and substantial advance of money is considered as placing the matter on the same footing as the exception from the assignment of a substantial part of the debtor's property. This is a proper advance, and the difficulty arises as to the meaning of "equivalent." An example is furnished us in the case of Woodhouse v. Murray, which was carried to the Exchequer Chamber (19 L. T. Rep. N. S. 70). There, a creditor issued execution upon a judgment, and to procure the withdrawal of the execution, the trader executed a mortgage to the creditor of the whole of his property. At the trial, the jury found that the mortgage was bona fide and executed to save expense; but the Exchequer Chamber affirmed the decision of

the court below, that the mortgage was an act of bankruptcy.

The court based this decision upon the 73rd section of the Bankruptcy Act 1861, which says that if any execution shall be levied by seizure and sale of any of the goods and chattels of any trader debtor, upon any judgment recovered in any action personal for the recovery of any debt or money demand exceeding 50l., every such debtor shall be deemed to have committed an act of bankruptcy from the date of the seizure of such goods and chattels. And the court say that if the debtor had allowed the law to take its course, and the judgment creditor to sell the property which he had seized, any other creditor might under that section have treated the seizure and sale as an act of bankruptcy; and by obtaining an adjudication within a fortnight (that is an essential provided by the section) would have enabled the creditors, through the assignees of the bankrupt, to recover the money, the proceeds of the sale, from the judgmentcreditor, and apply it to the use and benefit of the creditors at large.

It is noteworthy that in this case the debtor seizure of the goods; and the court say that the had ceased to trade two months before the saving of expense and the avoiding a sacrifice of property by a forced sale, which seemed to have induced the jury to treat the mortgage as bona fide, were a benefit only to the judgment-creditor, the mortgagee, whatever might ultimately be the produce of the property, leaving absolutely nothing for the other creditors. "If a transaction of this nature," the judgment concludes, "could be protected against the operation of the bankrupt laws, every debtor might, at any time, by suffering judgment and execution and then assigning the property seized to the judgment-creditor, convey away the whole of his estate to one favoured creditor, defrauding every other creditor of the whole amount of his debt, the very evil which the 73rd section of

the Bankruptcy Act was enacted to prevent."

On the particular construction of the term "equivalent," Bittlestone v. Cooke, 6 El. & Bl. 296, saying that the old cases clarly established the is the great authority, Mr. Justice Crompton there rule that the conveyance of a trader's property leaving it no longer in his option whether he would continue his trade, was in law an act of ditors. On this an exception has been grafted, bankruptcy, as necessarily defeating his creif it be for an equivalent." That case is distinthat the conveyance is not an act of bankruptcy guishable from Woodhouse v. Murray, because the money was raised to carry on the trade and was intended to benefit creditors, although in the result it did not do so. The immediate assistance by the advance of money was, although that advance was disproportioned to the goods assigned, held to be a good equivalent. Lord Chief Justice Campbell said, "In times of pressure, an advance in ready money of a very small amount may very often enable a trader to avoid stopping payment and so enable him to pay all his creditors 20s. in the pound." The court there approved of the decision of Hutton V. Cruttwell, in vol. I. of the same reports, being of opinion that whilst an advance may fairly be considered an equivaelnt, though small in amount, for an assignment of property, bills of sale and mortgages of this nature should be very closely watched.

THE REPRIEVE OF BISGROVE.

THE Pall-Mall Gazette is very severe with the Home Secretary for the mercy he has shown to this brutal murderer. Our contemporary says:

The Rev. J. E. Hole's letter in the Times on the case of the convict Bisgrove, would have been more forcible if he had confined it more strictly to

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the question in hand, and not wandered off into which it is impossible to pronounce an opinion remarks on another and totally different case, on without more detailed and, we may add, more impartial information than Mr. Hole supplies. But as regards Bisgrove, we believe Mr. Hole is quite within bounds when he says that great and wide-spread dissatisfaction is felt at the escape of this man from capital punishment;" that such an act is weak, unjust, and impolitic in the most comprehensive sense;" and that it shakes public such ill-timed and unjustifiable leniency. Withconfidence in an executive which could display out going over all the details of the case, which will be found carefully summarised in the last number of the Saturday Review, we will only say that a more brutal and abominable murder, more completely destitute of every circumstance of pal