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THE TRUSTEE ACT, 1850, with an Introduction, Notes, ACTS, with the GENERAL ORDERS and CASES. Stevens & Norton, 26, Bell-yard, Lincoln's-inn. Just published, in 8vo., price 11. 48. boards, BURTON on REAL PROPERTY. Seventh Edition, with Notes, shewing the Alterations in the Law to the present Time: to which is now prefixed an Introductory Chapter, giving a concise Historical Outline of such parts of the Law as have been the subject of statutory alteration. By EDWARD PRIESTLEY COOPER, Esq., Barrister at Law. J. B. Parry, Esq., Q. C., Lincoln's-inn, (Chairman). *G. H. Barlow, M. D., Guy's Hospital. D. Cornthwaite, Esq., Old Jewry Chambers. F. J. Farre, M. D., F. L. S., St. Bartholomew's Hospital. T. W. Greene, Esq., Lincoln's-inn. Richard Jebb, Esq., Lincoln's-inn. *J. C. W. Lever, M. D., Guy's Hospital. W. J. Little, M. D., London Hospital. J. Parrott, Esq., Clapham-common. *R. Partridge, Esq., F. R. S., King's College Hospital. *R. Quain, Esq., F. R. S., University College Hospital. R. 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COURT OF CHANCERY. COURT OF QUEEN'S BENCH. 52 Overton v. Freeman and Another.-(Contractor and Subcontractor not liable for Negligence) 65 ........ 53 57 THE numerous guaranties which formerly existed against the admission of biased and tainted testimony have been gradually removed; neither the strongest interest nor the foulest crime now stands in the way of a witness being heard; the contest turns mainly upon the credibility, and not the admissibility, of evidence; examinations upon the voir dire are almost obsolete; and the proposition of Jeremy Bentham, that no objection should be allowed to the competency of witnesses, (1 Rat. of Jud. Ev. 3), may be said to be established. This relaxation of long prevailing rules of evidence affords reasons for increasing, rather than diminishing, tests for trying the credit and the memory of witnesses; and the privileges of counsel in this respect should be enlarged rather than contracted, inasmuch as they are more valuable than ever for the exposure of defects in the honesty or memory of a witness. The case of M'Donnell v. Evans, (not yet reported), which came before the Court of Common Pleas a week ago, has a direct bearing upon this subject; and we call the attention of our readers to the decision in that case, because we think that it has a tendency to impede the due administration of justice, and to interfere with the rights of cross-examining counsel. The facts were simply these: -At the trial of an action upon a bill of exchange, which the defendant asserted to be a forgery, the person whom he charged with having forged it was called by the plaintiff's counsel as a witness to prove that he saw the defendant accept the bill. The defendant's counsel, on cross-examination, put a letter into his hand, and asked him this question-"Did you not write this letter in answer to a letter charging you with forgery?" The question was rejected, upon the ground that the letter, said to contain a charge of forgery, VOL. XVI. C CROWN CASES RESERVED. Reg. v. Phillpotts.-(Perjury-Materiality) should be produced, or its non-production accounted for, before the witness could be asked a question involving a statement of its contents. The Court afterwards granted a rule nisi for a new trial, but ultimately discharged the rule, holding that the question was rightly rejected. The following were the grounds of the judgment:The rule laid down in The Queen's case (2 Br. & B. 284) was applicable, namely, that cross-examining counsel cannot be allowed, in the statement of a question, to represent the contents of a producible letter, and to ask the witness whether he wrote a letter to any person with such contents, but that the proper courseis to shew the witness the letter, and then to ask him whether it is in his handwriting, and if he admit it, the letter must, at the proper time, be produced, and read as part of the evidence of the cross-examining counsel; that the best evidence in the possession of the party must be produced; that this letter might have been in the possession of the cross-examining counsel at the time he put the question, and no evidence was given by him to shew why the letter was not forthcoming. With much deference for the learned judges who arrived at this conclusion, we think that the grounds of their decision are not sustainable. In The Queen's case the distinction between an examination conducted with a view to establish a fact in a cause, and one conducted with a view to test the credit or memory of a witness, was not suggested to the judges, either by the nature of the case, which was a mere examination into the character of the Queen with a view to legislation, (which ultimately proved abortive), or by the form of the question, or by the argument before the House of Lords*. The answer of the judges ^! *Our best text-writers on the law of evidence are of opinion ONE the Court, and not the jury, was the judge, and that evidence (as upon affidavit) was received by a Court sitting in banco, which could not be tendered to a jury. The grounds, however, given in the text-books for allowing this mode of examination on the voir dire are, that the opposite party might not know that a certain witness might be called, and that he might have difficulty in procuring the requisite documents*; and if these be the grounds, they are certainly applicable to a cross-examination for the purpose of discrediting a witness. was given expressly with reference to well-established that it was an inquiry of a special nature, of which rules, as old as the common law of the land, which could not be said of cross-examination merely with a view of testing a witness, inasmuch as rules relating to such cross-examination were certainly not then well established, although it was different with respect to evidence of facts in the cause. Again: the grounds of the decision in The Queen's case, that the best evidence should be produced of which the nature of the case admitted, and that the Court should be possessed of the whole, and not only of a part, of a document, although applicable to evidence in causâ, can hardly be said to apply to evidence extra causam*. The reason why there should be a distinction between the two modes of examination is manifest: a party must be supposed to come prepared to prove or to answer material parts of a cause, but he cannot be expected to be equally prepared against any witness who may suddenly be called against him, and of whom he may never have heard until he appears in the witness-box. In the one case, that which is in the nature of secondary evidence is rejected, because it presupposes the existence of better evidence in the party's possession, which is kept back. (See Gilb. Ev. 13). In the other, no such presumption arises. Several instances of this distinction between these two modes of examination were suggested in argument before the Court of Common Pleas, but were denied or explained by the Court so as to deprive them of their distinguishable character. Thus, it was urged, that, in order to test a witness, you might ask him whether he had not been convicted, without producing the record of conviction; but this was denied by the Court. It certainly has been the practice to put such a question, as also to ask whether a witness has been bankrupt or insolvent; and it is stated in the text-books upon the subject to be a proper question. (See 2 Russ. Cr. 927, 931, 974; Ph. Ev. 937, 8th ed.) Another instance was, that, to test a witness, you might ask him whether he had not made a statement to a third party; and if he denied it, and it was relevant to the issue, that you might call such third party to prove that he did make it; and it was said that this was a different kind of evidence to that which is admissible to prove a fact in the cause, and was in the nature of hearsay evidence. Cresswell, J., however, observed, that for the one object it was relevant evidence, and therefore admissible; but that in the other it was irrelevant evidence. It was contended that the examination upon the voir dire afforded not only an analogous instance, but also an à fortiori argument; as a witness might, on such examination, be asked as to the contents of a written document without its production, although the object was wholly to exclude, and not merely to discredit, the witness. The Court, however distinguished the rule laid down as to the voir dire, upon the grounds that the rule in The Queen's case either does not extend, or One peculiarity in the case we are considering was, that the letter, if it had been produced, would not probably have been admissible in evidence, as it was not relevant to the issue; (Tayl. Ev. 966); therefore the only effect of producing it would have been to shew it to the witness; but that would altogether have defeated the object of the question, which was, to test his credit or his memory. If he could not have been contradicted, the answer of the witness would have been conclusive, whether in the affirmative or negative. If the letter could have been given in evidence, (and Maule, J., seemed to think that it could), and the witness had denied that he wrote it, then, to contradict him, it would undoubtedly have been necessary to produce the letter, and have the whole of it read. It might, however, have been very important for the defendant in either case to have had simply the answer of the witness; and it was such answer that he claimed a right to have. It is difficult to see how the fact of the letter being in the possession of the defendant can make any difference as to the allowance of the preliminary question, the main point being, whether he is bound to produce it, or account for its non-production, except where it becomes necessary for the purpose of contradicting the witness. To hold that he is so bound will probably amount to a practical disallowance of questions on crossexamination as to the character of a witness, if it so happen that the question involves a reference to written documents instead of oral statements; for how can it be expected that a party will come to trial prepared with records of conviction, or letters, or other writings relating to persons of whose existence he may have been ignorant until they appeared as witnesses against him? And if the question cannot be put, is the testimony of those witnesses to go to the jury as credible and untainted testimony, although they may have been guilty of offences which they might be forced to admit in a court The rule laid down in this case will govern criminal as of justice, and which would cover them with infamy? well as civil causes, and therefore the life of a man may depend upon the testimony of such witnesses. If the rule henceforth to be adopted is the one laid down by the Court of Common Pleas, and if The Queen's case be considered binding, to such an extent as this, upon our Courts, it would appear to be a fit subject for legislative interference. MASTER IN CHANCERY.-The Lord Chancellor has appointed Isham Henry Edward Gill, of Liverpool, Gent., to be a Master Extraordinary in the High Court of Chancery. * 2 Russ. Cr. 987; 1 Stark. Ev. 206, note (e); 1 Ph. Ev. 154. THE COST-BOOK SYSTEM OF MINING. THE gold mining speculations at present before the public almost remind us of the mania for mining concerns which raged in London, and the empire generally, in 1824 and 1825, after the opening of Mexico and other parts of Spanish America to our intercourse. It is not for us, however, to hazard a conjecture as to their ultimate success. We perceive that some of these inchoate companies propose carrying on operations under the cost-book system of mining. We think, therefore, that a few remarks, in the first place, on the peculiar character of cost-book mining companies, and, secondly, on what deviations from the cost-book system would probably subject such companies to the penalties for non-registration under the Joint-stock Companies Act, may not prove unacceptable to some of our readers. Mines conducted on the cost-book principle occupy an intermediate position between joint-stock companies on the one hand, and ordinary trading partnerships on the other. The machinery of the Joint-stock Companies Act was considered inapplicable to many of these obscure associations, and consequently they were expressly exempted from the provisions of the same. They essentially differ also from ordinary trading partnerships, in not being founded on the consent of the parties, or delectus personæ, from which principle, as our readers know, the rights and obligations of ordinary trading partners are mainly derived. Companies which adopt the cost-book system of management are, for the most part, small associations, commencing with little capital, though with a full list of shareholders, wanting the stability of registered, commonly called, scrip companies. The following is a description of the manner in which a mining company is usually formed in Cornwall or Devonshire, on the cost-book system, in its simplest form:-Permission is obtained from the owner of the land to work a lode; the adventurers then hold a meeting, and decide on the number of shares into which their capital is to be divided, and the number to be allotted to each; they appoint an agent, commonly called a purser, for managing the affairs of the mine; and enter in a book, called the "cost-book," the minutes of their proceedings, which are signed by all present. A license to try for ores for some short period is then obtained, followed, if the search be promising, by a sett, that is, a lease of the minerals, or a license to dig, or both, granted by the landowner to the purser, or to one or two of the adventurers, without any expression of trust on their part for the rest, or any other persons, for a term of years, usually twenty-one, stipulating for the annual payment of some portion of the ore raised. The purser manages the works, keeps the cost-book, in which he enters all the proceeds and disbursements of the mine, the names of the shareholders, together with the account for and against each, and the transfer of shares, whenever they are transferred; he makes calls, such as have been agreed to at a general meeting, and convenes those meetings by circular letters, at regular intervals, commonly of two months. These general meetings review the accounts and report of the purser, and pass resolutions, either declaring dividends, or authorising calls, and directing the mode of carrying on the mine. Any adventurer may relinquish his share, and with it his liabilities-at least, as far as his partners are concerned-by giving notice of relinquishment in writing to the purser, and settling his account with the mine. There is a certain class of mines in Germany which is required by law to be managed much in the same model, there is no difficulty in deciding that they are managed on the cost-book principle; but when some of these essential features are found wanting, or where others are introduced analogous to the joint-stock company's type, it becomes no easy matter to pronounce as to the real character of the concern. This leads us to the second head of our remarks, viz. as to what deviations from the cost-book system would probably subject such an association to the penalties of the Jointstock Companies Act, for non-registration. If there be any deviation from the legitimate type of a cost-book society, it must assume the features either of an ordinary trading partnership or a joint-stock company. We have seen that they are principally distinguished from ordinary trading partnerships by the absence of delectus personæ. It was decided, after many doubts, that the mining partner had a right either to relinquish or transfer his share without the consent of his co-partners; and that, upon his death or bankruptcy, the law, instead of dissolving the partnership, would transfer it to his executors or assigns; and the power of partners to bind each other, by engagements entered into with non-partners, was restricted. Should a cost-book company endeavour to forbid or restrict the transfer of shares, without the consent of the whole association, it would introduce the principle of delectus personæ, and virtually become an ordinary trading partnership; the consequence would be, that such a partnership would come within the operation of the Joint-stock Companies Act, under that part of the 2nd section which enacts, that the term "joint-stock company" shall comprehend "every partnership which, at its formation, or by subsequent admission, (except any admission subsequent on devolution or other act in law), shall consist of more than twenty-five members." But the deviations to be apprehended are in the direction of the joint-stock company type. It is abundantly clear that a company cannot escape from the provisions relating to trading and commercial companies, if they act as a joint-stock company, by merely calling themselves a company under the cost-book system, or keeping a cost-book, or entering into a deed of partnership declaring that the mine shall be conducted on the cost-book principle. Cost-book companies are excepted from the Joint-stock Companies Act. The 63rd section enacts, "that nothing in this act contained shall extend, or be construed to extend, to any partnership formed for the working of mines, minerals, and quarries, of what nature soever, on the principle commonly called the cost-book principle."" The principal difference betwixt cost-book and joint-stock companies lies in this-that, in the former, control over the management of the concern is directly exercised by the whole body of shareholders; whereas, in the latter, all powers are in a great measure delegated to a representative body, commonly called a board of directors. It has been remarked that the most essential and peculiar features in the organisation of these mining societies are the keeping of a cost-book, containing the beforementioned entries, and to which every adventurer has access; and the appointment of a purser, who acts as the servant of all, whose functions are purely executive, who is removeable at pleasure, and accountable to frequent meetings of all the shareholders, at which meetings only, the general affairs of the company are deliberated upon and regulated, dividends declared, or calls made. Whether the discharge of the purser's duties by more than one person, or by a committee, would constitute a material deviation from the cost-book system, would depend upon the nature of the acts performed. Provided their general scope did not exceed the ordinary functions of purser, there can be no doubt that they may be discharged by a committee of management, without essentially departing from the costbook type. But should powers beyond those usually exercised by the purser-for example, the borrowing monies, the drawing bills, or the making of calls, or auditing and passing accounts-be delegated to a board of directors, or a committee of management, or to a select body of shareholders by any other name, and the general meeting of shareholders be discontinued, and held at rare intervals, it seems equally clear that these would be material alterations in the cost-book system, and constitute also obvious deviations in the direction of joint-stock companies. As we have touched generally on the law of cost-book companies, we take this opportunity of observing, that they come within the operation of the Winding-up Acts. It is enacted by the 2nd section of the Winding-up Act, 1848, "that all associations or companies, formed for the purpose of working mines or minerals, shall be liable to the operation of this act." Mr. Ludlow remarks that | these words were inserted with a view to include mining companies on the cost-book principle. The 1st section, however, of the Winding-up Amendment Act, 1849, that nothing in this act, nor in any act herein enacts, referred to, contained, shall extend, or be construed to extend, to any partnership, association, or company formed for the working of mines on the principle commonly called the cost-book principle,' within the said stannaries and jurisdiction of the said court, unless the owner or owners of one-tenth in value of the shares in any such mine, as shall appear on the cost-book, shall present a petition," &c. Mr. Wordsworth says that the Winding-up Amendment Act places" mining partnerships, on the cost-book principle, on a special footing." We submit, however, that this special provision applies only to cost-book companies within the stannaries of Cornwall; and that associations conducted on this principle, without the jurisdiction of the Court of Stannaries, are included within the general operation of the Winding-up Acts. This provision is considered singular also, as introducing a test of value with respect to the petitioner, instead of a test of liability merely, which is the rule as respects all other associations subject to the Winding-up Acts. The English law applies to a company established and directed in this country for carrying out operations in a foreign part. (See The Madrid and Valencia Railway Company's case, 3 De G. & S. 127). We conclude, therefore, by expressing our opinion, that a mining concern may be formed in this country on the cost-book principle for working foreign mines; and that even the functions of purser may be discharged by a committee of management without materially departing from this principle. Practically, however, it would be impossible for a scattered body of small shareholders to exercise individual and collective control over the concern, or to hold frequent general meetings; the committee of management must be necessarily invested also with such powers as virtually to make them a board of directors. We think, therefore, that these would constitute essential deviations from the cost-book principle, and would probably subject such a mining company to the penalties of the Joint-stock Companies Act, for non-registration. COURT OF COMMON PLEAS. HILARY TERM.-15 VICTORIA.-Jan. 26, 1852. This Court will, on Wednesday the 4th, Thursday the 5th, Monday the 9th, and Tuesday the 10th days of February next, hold sittings, and will proceed in disposing of the business now pending in the Paper of New Trials, and in giving judgment in certain of the matters that will then be standing for the consideration of the Court. JOHN JERVIS. * Wordsworth's Law of Joint-stock Companies, 446, note 1, 6th ed. London Gazettes. TUESDAY, JANUARY 27. BANKRUPts. WILLIAM ABRAM COGAR, Newgate-street, London, and Quadrant, Regent-st., Middlesex, boot and shoe dealer, commission agent, dealer and chapman, Feb. 6 at halfpast 1, and March 12 at 1, Court of Bankruptcy, London: Off. Ass. Whitmore; Sols. Dennis, Northampton; Hensman, 25, College-hill, Cannon-street West.-Petition dated Jan. 26. GEORGE GULL and FRANCIS DEACON WILSON, Old Broad-st., London, Russia brokers, dealers and chapmen, Feb. 6 and March 10 at 12, Court of Bankruptcy, London: Off. Ass. Graham; Sol. Murray, 10, London-st., Fenchurch-st.-Petition filed Jan. 21. JAMES BOXALL, Brighton, Sussex, coach maker, leather seller, dealer and chapman, Feb. 6 at 12, and March 5 at 11, Court of Bankruptcy, London: Off. Ass. Cannan; Sols. Kennett, Brighton; Sowton, 6, Great James-street, Bedford-row, London.-Petition dated Jan. 20. HENRY FRANCIS WOLLASTON, late of Cape Town, Cape of Good Hope, also Great St. Helen's, London, and now of Union-grove, Wandsworth-road, Surrey, merchant, Feb. 6 and March 13 at 11, Court of Bankruptcy, London: Off. Ass. Nicholson; Sols. J. & T. Gole, 49, Lime-street, London.-Petition dated Jan. 21. FREDERICK WINCH, Margate, Isle of Thanet, Kent, tailor, Feb. 6 at 12, and March 13 at half-past 11, Court of Bankruptcy, London: Off. Ass. Pennell; Sols. J. Allen & Allen, 17, Carlisle-st., Soho-sq.-Petition filed Jan. 21. WILLIAM PLATTS, Crawford-st., Marylebone, Middlesex, draper, dealer and chapman, Feb. 5 at 2, and March 11 at 12. Court of Bankruptcy, London: Off. Ass. Johnson; Sols. Ashurst & Son, Old Jewry.-Petition filed Jan. 17. LEON J. NERINCKX, Great Portland-street, Marylebone, Middlesex, laceman and silk mercer, Feb. 5 at 2, and March 9 at 11, Court of Bankruptcy, London: Off. Ass. Groom; Sols. Reed & Co., 59, Friday-street, Cheapside.Petition filed Jan. 16. WILLIAM ROCK, Surrey-place, Surrey, printer and engraver, Feb. 12 at 1, and March 9 at 11, Court of Bankruptcy, London: Off. Ass. Edwards; Sol. Jerwood, 17, Ely-place, Holborn.-Petition filed Jan. 24. HENRY GLADWIN, Nottingham, draper, dealer and chapman, Feb. 6 and March 5 at half-past 10, District Court of Bankruptcy, Nottingham: Off. Ass. Bittleston; Sols. R. & H. Enfield, Nottingham.-Petition dated Jan. 16. EDWARD TINSLEY, Cradley-heath, Rowley Regis, Staffordshire, cooper, Feb. 11 and March 3 at half-past 11, District Court of Bankruptcy, Birmingham: Off. Ass. Christie Sols. Whitehouse, Dudley; James, Birmingham. -Petition dated Jan. 24. WILLIAM WOOD, Bristol, provision merchant, dealer and chapman, (trading under the firm of William Wood & Co.), Feb. 7 and March 9 at 11, District Court of Bankruptcy, Bristol: Off. Ass. Miller; Sol. Bevan, Bristol.—Petition filed Jan. 15. CHARLES BACON, Walton, Somersetshire, tailor and woollendraper, Feb. 10 and March 3 at 11, District Court of Bankruptcy, Exeter: Off. Ass. Hirtzel; Sols. Hobbs & Son, Wells.-Petition filed Jan. 22. JAMES COPLAND, Barnstaple, Devonshire, tea dealer and draper, dealer and chapman, Feb. 10 and March 3 at 11, District Court of Bankruptcy, Exeter: Off. Ass. Hernaman; Sols. Carter & Chanter, Barnstaple; Moore, Exeter. -Petition filed Jan. 16. HENRY POUND, Plymouth, Devonshire, builder, dealer and chapman, Feb. 9 at half-past 1, and March 18 at 11, District Court of Bankruptcy, Plymouth: Off. Ass. Hernaman; Sols. Surr & Gribble, Elworthy, and Lavers, jun., Plymouth.-Petition filed Jan. 22. EDWIN WALKER, Huddersfield, Yorkshire, woolstapler, |