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and the general conclusion drawn by the Privy Council appears to be that 'evasion' in the legal sense, i. e. in the sense in which it may render an attempt to escape liability to death duties void, implies some underhand dealing or the existence of some sham transaction, such as an apparent gift by A to B, under which A does not in reality part at all with the property which he in form gives away. What is at any rate perfectly clear is that, even under an enactment more stringent than the English statutes which impose death duties, a man cannot be held to evade the law simply because he makes a perfectly honest and real gift of his property with the avowed motive of saving his children from the payment of death duties on his decease. In this matter the words of Lindley L. J. in Yorkshire Wagon Co. v. Maclure (1882), 21 Ch. D. 318, C. A., are still full of instruction. There is always an ambiguity about the expression "evading an Act of Parliament." In one sense you cannot evade an Act of Parliament; that is to say, the Court is bound so to construe every Act of Parliament as to take care that that which is really prohibited may be held void. On the other hand, you may avoid doing that which is prohibited by the Act of Parliament, and you may do something else equally advantageous to you which is not prohibited by the Act of Parliament.' Evasion, in short, in the sense in which it is legally or morally culpable, implies dishonesty.

The Attorney-General v. Merthyr Tydfil Union [1900] 1 Ch. 516, 69 L. J. Ch. 299, C. A., has a singular interest for persons versed in the comparative study of institutions.

The case exhibits, on the one hand, the fundamental difference between English and foreign ideas as to the functions of the ordinary courts. The judgment of the Court of Appeal has, in effect, determined a matter of high policy. We may be certain that on the continent, and especially in France, the ordinary judges would have deemed that the sort of question raised in the AttorneyGeneral v. Merthyr Tydfil Union lay outside their jurisdiction; it would have been determined either by the direct action of the executive or by administrative tribunals, which, though in France, at least, they have now developed into real courts, have a distinctly official character.

The case shows, on the other hand, a tendency of modern legislation to introduce into England administrative arrangements which have an affinity to the droit administratif of France; the power of the Local Government Board to sanction payments made by the guardians in relief of the poor, even though made unlaw

fully, may be practically expedient, but it is alien to the strictly legal spirit of English constitutionalism. It increases the discretionary power of the administration, whilst it diminishes the legal authority of the Courts.

The Lord Chief Justice in his recent discourse on advocacy told us that when he was at the bar, he once went before Lord Westbury with an armful of authorities to support his argument, whereupon Lord Westbury said, 'Mr. Russell, before you cite those cases, have you made quite sure that the facts in them are the same as those of the present case? . You will probably find, if you examine them closely, that most of them are irrelevant.' This is advice which may be commended to the profession generally, which 'runs at large,' as O. W. Holmes, sen., would say. It would have saved much citation of authorities, for instance, in Burchell v. Wilde ([1900] I Ch. 551, 69 L. J. Ch. 314, C. A), if the facts there, in particular the terms of the dissolution agreement, had been attended to. By that agreement, as expressed in the award, the clients' business and papers were to be divided, some going to the Burchells and some to the Wildes, and the goodwill so far as it was an incident of the possession of the papers was also to be divided between them not to be sold. This was the scheme of the dissolution. The name of the old firm was one of the assets-the partners were tenants in common of it—and the obvious inference of intention— coinciding with the legal result in the absence of agreement-was that each set of partners were to be entitled to use it. Given these conclusions, the case resolved itself into nothing more than one of fact, viz. whether the defendants Burchell, Wilde & Co., were using the name in such a way as to expose the plaintiffs, Burchells & Co., to liability or risk of liability. In this respect people must not be too particular. Nearly everybody is liable to the inconvenience of being mistaken for some one else.

X & Co., the proprietors of a circulating library, circulate copies of a book, which, unknown to them, contains a libel on 4; they are prima facie publishers of a libel, and, if they cannot show that their ignorance was free from negligence, they are liable to A in damages: Vizetelly v. Mudie's Select Library [1900] 2 Q. B. 170, C. A.

There is nothing, be it noted, in this case which really conflicts with Emmens v. Pottle (1885), 16 Q. B. D. 354. That case establishes that a newsagent who sells a newspaper in the ordinary course of his trade is prima facie the publisher of any libel contained therein,

though without his knowledge, but ceases to be the publisher of the libel and therefore escapes from liability if he can show not only his ignorance of the newspaper containing or being likely to contain a libel, but also that this ignorance did not arise from his own negligence. Vizetelly v. Mudie's Select Library, Ltd., determines that the owners of a circulating library are prima facie the publishers of any libel contained in a book circulated by them, and remain liable for publication unless they can show that they did not know that the book contained a libel, that they had no reason to know of the libel, and that their ignorance was not due to their own negligence. The defendants, in short, in Vizetelly v. Mudie's Select Library were held responsible just because they did not show the existence of the circumstances which in Emmens v. Pottle freed the defendant from liability for publication.

The decision may be well defended on grounds of expediency. There is no principle on the maintenance of which the comfort of private life more certainly depends than the rule that every person who sells or gives away a written or printed copy of a libel is prima facie its publisher, and liable in damages to the person libelled.

X owes A £125. Under a mistaken belief that a payment of £75 made in reality by Y has been made by X, A brings an action against X for £50, and credits him with the payment of £75 on account. I pays the £50 and receives from A a receipt for the whole £125. X is well aware of A's mistake. That Xhas no moral right to the £75 is clear, but has A a legal right to get back his money? Most lawyers would, we take it, before the judgment of Kennedy J. in Ward v. Wallis [1900] 1 Q. B. 675, 69 L. J. Q. B. 423, have answered, on the authority of Marriot v. Hampton (1797) 7 T. R. 269, 4 R. R. 439, and Hamlet v. Richardson (1833), 9 Bing. 644, 35 R. R. 650, that A must put up with his loss, for that money paid, or in effect paid under compulsion of legal process, is even, though paid under a mistake, irrecoverable. Kennedy J., however, gives judgment that A is entitled to the £75, and this on the broad ground that no man shall be allowed to profit by his own dishonesty. We incline to the opinion that Kennedy J. is right, and that in this instance, as in many others, the rules of law and the dictates of morality coincide. It is, however, possible that if Ward v. Wallis comes before the Court of Appeal, the Court may hold that, desirable though it be to discourage breaches of good faith, it is on public grounds inexpedient to extend the equitable exceptions to the rule in Marriot v. Hampton.

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Lawyers in their professional orgies are believed to drink to the health of the man who makes his own will. It would be quite as appropriate more so-if they drank to the health of the legislature, for do not the crude enactments of that body give rise to a litigation more perennial and profitable than any which comes from what the country solicitor called the oleograph' will. The Directors' Liability Act, 1890, promised exceptionally well in this way. Its policy was dubious, its drafting inartistic, its subject-matter one which comes home to men's business and bosoms,' but despite these natural advantages the Act disappointed expectation. There was not a recorded decision on it for ten years. It has seemed as if the mere putting up of the statutory scarecrow has been enough to frighten the birds of prey. Lately, however, there has been quite a little crop of cases on the Act proving it not altogether a dead letter. There has been Greenwood v. The Leather Wheel Co. [1900] 1 Ch. 420, 69 L. J. Ch. 131, warning directors that they are bound to exercise reasonable diligence in ascertaining that the contents of a prospectus are truthful; Drincqbier v. Wood [1899] 1 Ch. 393, 68 L. J. Ch. 181, conveying a further warning that a director who knows that a prospectus is being issued and refrains from inquiry as to its contents is liable for misstatements; and lastly Thomson v. Clanmorris [1900] 1 Ch. 718, 69 L. J. Ch. 337, C. A., deciding that an action under the Act for compensation is not barred after two years under the Civil Procedure Act, 1833, as an action for a 'penalty damages or a sum of money given to the party grieved by any statute now or hereafter to be in force.' This is just as well, because it is often some time before shareholders awake to the fact that they have been defrauded. But why did the draftsman of the Act talk of compensation' instead of damages? was it to differentiate the action from the common law action of deceit? Yet in substance is the action anything else? was not the raison d'être of the Act to restore the law as declared by the Court of Appeal in Derry v. Peek?

A lien on a member's shares for debts owing by him to the company is a perfectly legitimate condition of membership. But it is one thing to have taken shares in full view of a clause in a company's articles conferring such a lien and another to have shares, which were free when taken, saddled by a retrospective resolution of the shareholders with a lien in respect of debts contracted by the member with the company before the date of the resolution. It seems, however, from Allen v. Gold Reefs of West Africa [1900] 1 Ch. 656, 69 L. J. Ch. 266, C. A., that this rather startling proceeding is within the competency of shareholders under s. 50 of the Companies Act, and this though the member is dead at

the date of the resolution and the shares saddled with the lien were shares allotted to him as the company's vendor. The alterability of articles is a risk with which members of a company must always reckon, and the above case emphasizes the risk. True, a company cannot break its contracts by altering its articles, but it may do something very like it by making its contracts subject to revocable articles. An ordinary shareholder may find, for instance, preference shares created in front of him (Andrews v. Gas Meter Co. [1897] 1 Ch. 361, 66 L. J. Ch. 246, C. A.); a preference shareholder may find himself docked of half his interest by an all round reduction of capital (Bannatyne v. Direct Spanish Cable Co., 34 Ch. D. 287, 56 L. J. Ch. 107); a retiring member of a building society may find that a sum of money he was counting on has been given a different destination by new rules (Pepe v. City & Suburban Building Society [1893] 2 Ch. 311, 62 L. J. Ch. 501). These are incidents of the Joint Stock Company system and a majority control. The imposition of a retrospective lien is eiusdem generis. Lord Justice Romer playfully suggested a clause in this form: Caution! Remember the power of the company by altering its articles to extend its lien.' If such a note is, as the Lord Justice thought, unnecessary in articles, shareholders should certainly make a mental memorandum of the contingency.

The right of the public with regard to a highway is, as every lawyer knows, to pass and repass along it-Dovaston v. Payne (1795) 2 H. Bl. 527, 3 R. R. 527-and though highways are dedicated prima facie for the purpose of passage, things may be done upon them which go a little further than mere passing, which are recognized as a reasonable and usual mode of using a highway: Harrison v. Duke of Rutland [1893] 1 Q. B. 142. Thus a man may sit down for a time to rest himself by the side of the road, or may make a sketch from a highway without running the risk of being treated as a trespasser. But one must never lose sight of the fundamental principle that a highway can legally be used only in a reasonable and usual manner, and for its ordinary purposes. Hence if 4 passes again and again up and down a highway which crosses B's land for the purpose of watching B's racehorses whilst in training, and reporting their performances to a newspaper, A exceeds the ordinary and reasonable uses of the road. Hickman v. Maisey [1900] 1 Q. B. 752, 69 L. J. Q. B. 511, C. A. This we venture to say is good sense, as indeed are most of the rules of common law as applied by the Courts. No one ought to be allowed to use a highway in order to play the part of a spy.

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