CURRENT REVIEW OF ENGLISH CASES.

(Registered in accordance with the Copyright Act.)

PRACTICE-WRIT ISSUED FOR SERVICE OUT OF THE JURISDICTIONSUBSTITUTED SERVICE WITHIN THE JURISDICTION OF WRIT FOR SERVICE OUT OF JURISDICTION-RULE 63.

In Western Suburban & N.H.P.B. Building Society v. Rucklidge (1905) 2 Ch. 472 a writ for service out of the jurisdiction was on the application of the plaintiff ordered to be served substitutionally by mailing a copy to certain places within the jurisdiction, the defendant applied to discharge the order allowing substitutional service within the jurisdiction contending that a writ for service out of the jurisdiction could not be ordered to be served within the jurisdiction, but Eady, J., following Ford v. Shephard, 34 W.R. 63, held the order regular and dismissed the motion.

EXECUTOR JUDGMENT CREDITOR--JUDGMENT AGAINST EXECUTOR SUBSEQUENT DECREE FOR ADMINISTRATION INSOLVENT

ESTATE.

In re Marvin, Crawter v. Marvin (1905) 2 Ch. 490 illustrates the danger a personal representative incurs who omits to set up a defence of plene administravit. In this case the plaintiff recovered a judgment in the usual form against the defendant as executrix for damages and costs to be levied out of the goods of the testator in the defendant's hands to be administered if she hath so much, and if she hath not as much then the costs out of her own property. The estate was in fact insolvent, and the plaintiff subsequently obtained a judgment for its general administration. The defendant then set up a right of retainer as against the plaintiff in the administration proceedings, but it was held by Eady, J., that the judgment was a conclusive admission of assets by the defendant, and as she had omitted to plead plene administravit or her right of retainer, it was now too late to do so. Of course, in Ontario the right of retainer has been abolished, but here, as in England, the personal liability of the defendant on such a judgment remains, as Eady, J., points out, "For, although the judgment is only de bonis testatoris, yet the executor, upon a deficiency of assets, must ultimately pay the debt as well as costs recovered, out of his own pocket; because the judgment is in law a proof that he has assets to satisfy it." Wms. on Exors., 8th ed., p. 1986.

COMPANY-FORGED TRANSFER OF STOCK-INNOCENT PRESENTMENT OF FORGED TRANSFER FOR REGISTRATION-IMPLIED CONTRACT TO INDEMNIFY.

In Sheffield v. Barclay (1905) A.C. 392 the House of Lords (Lord Halsbury, L.C., and Lords Davey and Robertson) have reversed the decision of the Court of Appeal (1903) 2 K.B. 580 (noted ante, vol. 40, p. 68) and restored the judgment of Lord Alverstone, C.J., (1903) 1 K.B. 1 (noted ante, vol. 39, p. 186). In commenting on the decision of the Court of Appeal we ventured some adverse comments and are not, therefore, surprised to find that decision reversed. In laying down the law to be that where a person innocently presents to a company a forged transfer of stock to be acted on, there is an implied contract on the part of the presenter to indemnify the company against any loss. occasioned by the transfer proving to be forged, we think they have put the loss on the right shoulders.

DEBT-EQUITABLE ASSIGNMENT-CHOSE IN ACTION-REQUEST BY CREDITOR TO DEBTOR TO PAY DEBT TO THIRD PARTY-JUD. ACT, 1873, s. 25, SUB-S. 6—(ONT. JUD. ACT, s. 58 (5)).

In Brandts v. Dunlop Rubber Co. (1905) A.C. 454 the House of Lords (Lord Halsbury, L.C., and Lords Macnaghten, James and Lindley) unanimously reversed the judgment of the Court of Appeal (1904) 1 K.B. 387 (noted ante, vol. 4, p. 262). The facts were shortly these, the defendants owed Kamrisch & Co. a debt, Kamrisch & Co. gave the plaintiffs Brandts & Co a letter addressed to the defendants requesting them to agree to pay the debt to the plaintiffs. This letter the plaintiffs duly forwarded to the defendants, and it was duly received by them, but by neglect or oversight of their manager, he omitted to send the letter of Kamrisch & Co. on to the defendants' head office, and in consequence, instead of paying the debt to the plaintiffs, it was paid. by the defendants to an agent of Kamrisch & Co. pursuant to some previous arrangement. In the Court of Appeal the case was discussed as though it turned entirely on the clause in the Judicature Act relating to the assignments of choses in action (see Ont. Jud. Act. s. 58 (5)), but as Lord Macnaghten points out the really substantial question was whether or not there had been a good equitable assignment of the debt, and as he significantly remarks, "Why that which would have been a good equitable assignment before the statute should now be invalid and inoperative because it fails to come up to the requirements of the statute I confess I do not understand." The letter of Kamrisch

& Co. was held to be clearly a good, equitable assignment, perfected by notice to the debtors, and, therefore, the plaintiffs could not be prejudiced by the neglect of the defendants'

manager.

PRACTICE HOUSE OF LORDS-CONSTITUTIONAL LAW-RIGHT OF PEER TO APPEAR AS ADVOCATE IN THE HOUSE OF LORDS.

In re Kinross (1905) A.C. 468. This is an interesting discussion as to the right of a peer to appear as an advocate at the bar of the House of Lords. Incidentally is also discussed the right of a Privy Councillor to appear as an advocate before the Judicial Committee of the Privy Council. The doubt arose from the supposed impropriety of a person being allowed to be heard as an advocate before a body of which he is himself a member. But their Lordships come to the conclusion that according to the constitutional practice which now prevails, no peer is competent to take part in the judicial business of the House unless he happens to be a law lord, and, therefore, there is no impropriety in a peer who is not a law lord from acting as an advocate before the House. Some remarks of the Lord Chancellor on judges resuming practice at the Bar are significant in view of recent utterances on the supposed novelty and impropriety of that proceeding. He says: "If anything is to be said about the traditions of the Bar, my impression derived from the old reports is, that in the times of our early legal history a man was one day an advocate and the next day a judge. In fact, where you use the old reports for the purpose of authority, it is difficult, without making some sort of antiquarian inquiry to ascertain whether or not the words you quote are words of authority coming from one of the judges, or whether they are merely the argument of counsel which may have been uttered the day before in his capacity as counsel, and not as a judge at all. From time to time they went from the Bar to the Bench and from the Bench to the Bar during all those years." The descent from the Bench to the Bar would seem to have very ancient authority in its favour. The remarks of Lord Spencer are also interesting. "Probably I am the only lay peer present to-day who has sat in the House when hearing an appeal. I remember very well when I was a mere boy I was called in one morning to make a quorum, and I recollect sitting here and hearing appeals." For cases in which peers have asserted their right to vote in judicial cases see May's Parl. Pr. 10th ed., p. 340.

SLANDER-EVIDENCE-PRIVILEGE-WITNESS.

Watson v. McEwan (1905) A.C. 480 although an appeal from a Scotch Court, deals with a question of general interest. The action was for an alleged slander. The plaintiff had brought an action for separation against her husband, and the alleged slander consisted of statements made by the present defendant as a witness in that action and prior to the trial to the husband and his counsel, with a view to his being called as a witness: the defendant claimed privilege. The Court of Session though unanimous that the statements made by a witness in the witness box were privileged, yet (Lord Young dissenting) considered that the privilege did not attach to statements made by an intend. ing witness to a litigant or his counsel. The House of Lords (Lord Halsbury, L.C., and Lords James and Robertson) reversed this ruling, holding that not only are the statements of a witness in the witness box privileged, but also the statements made by him to the litigant or his counsel with a view to his being examined as a witness, any other conclusion would certainly, to say the least, be extremely inconvenient.

SHIP CHARTER PARTY - DAMAGES FOR DETENTION

LOADING CARGO NOT READY-CUSTOM OF PORT.

DELAY IN

Ardan SS. Co. v. Weir (1905) A.C. 501 was an action by ship owners to recover damages against charterers for detention of the ship owing to delay in providing a cargo. The defendants claimed to excuse themselves from liability because the delay was unavoidable and attributable to the custom of the port. ship in question arrived at the port of loading on July 14, and was ready to load, but there was no cargo ready for her until August 13, and then not enough. She had twice to be removed from her berth under a regulation of the port that a vessel must not occupy a berth when not loading, and her cargo was consequently not completed until 23 August. The House of Lords, reversing the Scotch Court of Session, held that the defendants were liable for the delay, and it was immaterial that it was due to causes over which they had no control, and to some extent occasioned by the custom of the port of lading.

SHIP-CONTRACT OF CARRIAGE-BREACH OF CONTRACT OF CARRIAGE -MEASURE OF DAMAGES.

Bolag v. Hutchison (1905) A.C. 515 was an action against ship owners for breach of a contract for the carriage of goods. The contract was made by the plaintiffs for the purpose of carry

ing out a contract for the sale of the goods in question. In consequence of the non-arrival of the goods in question, Owen & Co., the persons to whom the plaintiffs had contracted to sell them went into the market to buy other goods in their place, and the plaintiffs were called on to pay and did pay to Owen & Co. £830 in respect of the goods so purchased. This the plaintiffs claimed to recover from the defendants. The Court of Session considered that as the contract of the plaintiff with Owen & Co. had not been mentioned to the defendants, and the time for performance of the plaintiffs' contract with Owen was not strictly identical with the time limited for the performance by the defendants of their contract with the plaintiff, the loss caused by the breach of the plaintiffs' contract with Owen & Co. was not the measure of damages for the breach by the defendants of their contract, and they awarded the plaintiffs only nominal damages; but the House of Lords (Lord Macnaghten, Davey, James and Robertson) reversed this decision, holding that the defendants must, as an ordinary matter of business, have known that the goods were to be carried for the purpose of enabling the plaintiffs to carry out some contract actually in existence, or in immediate contemplation, that a breach of their contract with the plaintiffs would inevitably cause a breach of contract by the plaintiffs with some manufacturer or merchant, and, therefore, the damages occasioned thereby were properly recoverable against the defendants. The rule being that "setting aside all special damages, the natural and fair measure of damages is the value of the goods at the place and time when they ought to have been delivered."

RAILWAY-SALE OF RAILWAY BY MORTGAGEE 46 VICT. C. 24, ss. 14, 16 (D.)-DOMINION RAILWAY ACT, 1888 (51 VICT. C. 29 (D.)).

In Central Ontario Ry. Co. v. Trusts and Guarantee Co. (1905) A.C. 576 the Judicial Committee of the Privy Council (Lords Macnaghten and Davey and Sir A. Wilson) have affirmed the judgment of the Court of Appeal, 8 O.L.R. 342, to the effect that a railway under the jurisdiction of the Dominion Government may now be sold as a going concern in an action at the suit of a mortgagee whose mortgage is in default.