834 V. BENCH AND BAR their money in a commercial enterprise, ought to be vigilant to see that it contains such representations only as are in strict accordance with fact, and I should be very unwilling to give any countenance to the contrary idea. I think there is much to be said for the view that this moral duty ought, to some extent, to be converted into a legal obligation, and that the want of reasonable care to see that statements, made under such circumstances, are true, should be made an ac- tionable wrong. But this is not a matter fit for discussion on the present occasion. If it is to be done, the legislature must intervene and expressly give a right of action in respect of such a departure from duty. It ought not, I think, to be done by straining the law, and holding that to be fraudulent which the tribunal feels cannot properly be so described. I think mischief is likely to result from blurring the distinction between carelessness and fraud, and equally holding a man fraudulent, whether his acts can or cannot be justly so desig- nated." In common with many strong minded judges, Lord Herschell was much given to interrupting counsel during argument. His propensity in this direction is said to have been temporarily checked when, during the hearing of the case of Allen v. Flood, one of his more conservative colleagues remarked with caustic humor, " We can all pretty well under- stand from the present proceedings what amounts to molest- ing a man in his business." ^ Lord Halsbury enjoys the double distinction of having risen to the woolsack from the criminal bar, and of having
- The following are Lord Herschell's ablest opinions : Allen v. Flood,
(1898) A. C. 1; Nordenfelt v. Maxim-Nordenfelt, (1894) A. C. 535; British South Africa Co. v. Mozambique, (1893) A. C. 602; Bank of Eneland v. Vagliano, (1891) A. C. 107; Solomon v. Solomon, (1897) A. C. 22; Russell v. Russell, (1897) A. C. 395; Smith v. Baker, (1891) A. C. 325; Derry v. Peek, 14 App. Cas. 359; The Bernina, 13 App. Cas. 1 ; Reddaway v. Banham, (1896) A. C. 207; London Joint Stock Bank v. Simmons, (1892) A. C. 201; Trego v. Hunt, (1896) A. C. 7; Concha v. Concha, 11 App. Cas. 541; White v. Mellin, (1895) A. C. 155; Ooregum Gold Mining Co. «. Roper, (1892) A. C. 125; Trevor v. Whitworth, 12 App. Cas. 409; Alexander v. Jenkins, (1892) 1 Q. B. 797; Mackenzie v. Mackenzie, (1895) A C. 388; Wild v. Waywood, (1892) 1 Q. B. 783; Tabley ». Official Receiver, 13 App. Cas. 523; Hawthorn v. Fraser, (1892) 2 Ch. 27; Commissioners of Income Tax v. Pemsel. (1891) A, C. 631; London County Council v. Frith, (1893) A. C. 562; Ward v. Duns- comb, (1893) A. C. 369; Barnado v. McHugh, (1891) A. C. 388; Wood- ward r. Goulston, 11 App. Cas. 469; Makin v. Atty Gen., (1894) A. C. 57.
