« EelmineJätka »
Upon hearing the application of [add, if so, and upon hearing the Respondent] It is ordered that, notwithstanding the provisions of section 1, sub-section 1 (b) of the abovementioned Act, the Applicant be at liberty to exercise the following remedy for the purpose of enforcing the payment or recovery of a sum of money due to him from the Respondent [or in default of the payment or recovery of a sum of money due to him from the Respondent], that is to say
[here state the remedy which the Applicant is to be at liberty to enforce, according to examples in Schedule]
[Here add conditions, if any, as, e.g.—
Unless the rent [or as the case may be]
due to the Applicant amounting to the sum of £ to the Applicant on or before the
[or by an instalment of £
days after that date].
19, and the balance by instalments of £
[or as the case may be.]
be paid 191
And it is ordered that the Applicant be allowed the sum of for fees and costs on this application, and that the Respondent do pay the said sum to the Applicant on or before the day of 191 [or if so ordered (see Rule 27), and that the said sum be added to the costs of the proceedings hereby authorised to be taken.]
To the Respondent (naming him).
PROCEEDINGS UNDER ACTS Conferring JURISDICTION ON THE COURTS.
The following Rule shall stand as Order L., Rule 59. The Army Act 1881, 44 & 45 Vict., c. 58, s. 115, and the Acts amending the same.
(1.) An application to a judge for a certificate under subsection 4 of section 115 of the Army Act 1881, and the Acts amending the same (herein referred to as the Act), fixing the amount of payment for any carriage, animal, vessel, or aircraft, may be made to any judge mentioned in the said sub-section in accordance with the provisions of this rule.
(2.) The application may be made either in or out of Court on notice in writing according to the form in the Appendix, which shall be served on the opposite party ten clear days at least before the hearing of the application, unless the judge or registrar gives leave for shorter notice.
(3.) Service of notice of the application may be affected in accordance with Order LIV., Rules 2 and 3.
(4.) Where the notice of the application is to be served on the Army Council, it may be served on the Permanent Secretary to the War Office or on the Solicitor to the Treasury.
(5.) No affidavit in support shall be used, except by leave of the judge, but the judge shall hear oral evidence tendered by either party.
(6.) On the hearing of the application, or at any adjournment thereof, the judge shall fix the amount in accordance with the said sub-section, and shall specify the amount in a certificate which shall be signed in duplicate and sent to the parties; but no order directing payment shall be inserted on the certificate except in the cases mentioned in the next following paragraph and in paragraph 5 of the Sixth Schedule to the Act.
(7.) If the judge orders any sum to be paid by way of costs to the Army Council, pursuant to paragraph 4 of the Sixth Schedule to the Act, and such sum exceeds the amount payable by the Army Council as the value of the article requisitioned, the judge shall certify the amount of the excess, and shall order the amount so certified to be paid to the Army Council, and the order shall be enforceable in like manner as a judgment of the County Court.
(8.) Subject to the provisions of the Act and this Rule, the practice and procedure of the Court in an action, and in particular the practice and procedure with respect to the summoning of witnesses, and with respect to discovery and inspection of documents, shall, with the necessary modifications, apply to proceedings on an application for a certificate.
(address and description)
The Army Council
(or as the case may be.)
intends to apply to the judge at (state
That of where application is to be made)
RULES UNDER THE LEGAL PROCEEDINGS
1. All applications and proceedings under the Legal Proceedings against Enemies Act, 1915 (in these Rules referred to as the Act', shall be made and taken in the King's Bench Division of the High Court of Justice to and before such Judge or Judges thereof, as the Lord Chief Justice shall from time to time direct Provided always that such Judge or Judges may order that any such application and/or proceeding shall be transferred to any other Division of the High Court, subject to the consent of the President of that Division, and thereupon, on such consent being obtained, the said application and/or proceeding shall be so transferred, that any provisions of these Rules or directions given by the Lord Chief Justice thereunder shall apply so far as they are not inconsistent with the practice of that Division.
2. The indorsement of claim on any writ of summons, leave to issue which is sought under the Act, shall set forth the declaration which the Plaintiff seeks and give particulars of the contract in respect of which such declaration is sought. The Judge shall have power to make, or allow, any amendment of such indorsement at any stage of the proceedings.
3. The Lord Chief Justice may from time to time give directions as to the practice and procedure to be adopted on applications and proceedings under the Act.
4. Subject to the provisions of the Act and these Rules and any directions thereunder the same practice and procedure may be adopted in any application or proceeding under the Act as would or might be adopted in any action or matter under the Rules of the Supreme Court.
5. Where an enemy service order has been made and the enemy defendant appears, nothing in these Rules shall apply to any proceedings taken after the appearance.
The 16th of March, 1915.
and F. R. Mattingly will continue to carry on business at above address; W. D. Milliken will carry on business at 10, Staple-inn, W.C.
THE BANKRUPTCY ACT 1914.
To surrender at the High Court of Justice, in Bankruptcy. JANES, EDWIN HUNFORD, New King's-rd, Fulham, publican's manager. March 17.
JONES, FREDERICK GEORGE (trading as Dyson and Co. and sometimes as Dyson and Company). late Earl-st. Finsbury, stay materials merchant. March 18.
MACAULAY, MALCOLM, late Kingston-on-Thames, hairdresser. March 17. MORGAN, ARTHUR, Southwark Park-rd, Bermondsey, dairyman. March 17.
RAPHAEL NORMAN HENRY, Hans-pl, Chelsea, private in the Royal Fusiliers. March 15.
To surrender at their respective District Courts. ANDERSON, FREDERICK WALTER, Wimbledon, builder. Ct. Kingston, Surrey. March 16.
BELLIS, JAMES, Cottingham, late market gardener. Ct. Kingston-uponHull. March 16.
BERTRAM, HARRY, Barry Dock, tobacconist. Ct. Cardiff. March 15. BRYANT, DAVID, and BRYANT, TOM (trading as D. Bryant and Son), Harrogate, wholesale bakers. Ct. York. March 16.
BURBIDGE, ALFRED, Leicester, late boot manufacturer. Ct. Leicester. March 15.
CLARK, FRANK, Toynton Saint Peters, farmer. Ct. Boston. March 15. HEMING, ALLEN, Eckington, baker Ct. Worcester. March 17. HOLDSWORTH, JOHN JAMES, Redcar, boot dealer. Ct. Middlesbrough. March 17.
HORSLEY, WILLIAM ARTHUR, Surbiton, outfitter. Ct. Kingston. Surrey.
LEAN, SAMUEL, late Camborne, plumber. Ct. Truro. March 15,
NUGENT, CHARLES (SIR), Moreton-in-Marsh, trainer of racehorses.
PHILLIPS, FRANK STUART, Aberfan, stationer. Ct. Merthyr Tydfil.
PORTER, HENRY, Liscard, late managing director of the Liverpool Stone
THOMAS, JOSEPH, Pontlottyn, grocer. Ct. Merthyr Tydfil. March 16.
WHITE, THOMAS (trading as White and Co.). Cambridge, tailor. Ct. Cambridge. March 15.
WILSON, EMILY ELIZABETH, Aylesbury, grocer, widow. Ct. Aylesbury. March 16.
GAZETTE, MARCH 23.
To surrender at the High Court of Justice, in Bankruptcy.
GAYFORD, WALTER HENRY, late Mincing-la, wine merchant. March 19.
To surrender at their respective District Courts. ASTON, WILLIAM ASTBURY, Stafford, draper. Ct. Stafford. March 19. DAVIS, ALBERT ARTHUR (late trading as G. Brown and Co.), Birmingham, motor cycle dealer. Ct. Birmingham. March 19. DYSON. RENNIE ELLIOTT, and STOTT, WILLIAM (trading as R. E. Dyson and Co.), Colne, coloured goods manufacturers. Ct. Burnley. March 18.
EMBLEY, FREDERICK WILLIAM, Settle, yeast dealer. Ct. Bradford.
FLOWER, ALFRED JOHN WILLIAM SAUNDERS, Bournemouth, builder. Ct. Poole. March 19.
GOODALL, EDWARD VINCENT, late Hartshorn, farmer. Ct. Burton-on-Trent March 18.
HARRISON, ELIAS (trading as Ellis Harrison), Whittington Moor, builder. Ct. Chesterfield. March 19.
HODGSON, THOMAS WOOD, Filey, clothier. Ct. Scarborough. March 18
HYGIENE MINERAL WATER COMPANY, Bournemouth, mineral water manu-
MUIR AND MUIR (a firm). Southport, stockbrokers. Ct. Liverpool
PEACOCK, ROBERT BRADLEY (trading as P. H. Gilbert and Co.), Clapham,
SCOTT, SAMUEL ADAM, Milford Haven, builder.
Ct. Pembroke Dock
SCRUTTON, FLORENCE CHARLOTTE (late trading as F. Scrutton), Southampton, licensed victualler, spinster. Ct. Southampton. March 19. STEWART, PETER, Brompton, publican. Ct. Scarborough. March 18. TOWNSEND, JOSEPH OSBORNE, Wootton Bassett, licensed victualler. Ct. Swindon. March 18.
TURNBULL, ANA FIEDA, Eton, confectioner, widow. Ct. Windsor. March 18.
WHITWAM, ANN, Leeds, late grocer, widow. Ct. Leeds. March 19. WILSON, HORACE HENRY EDWIN (trading as H. F. Wilson and Son), Portsmouth, leather merchant. Ct. Portsmouth. March 19.
GAZETTE, MARCH 19.
BATTERSBY, WILLIAM, Sheffield, wholesale milk contractor. Ct. Sheffield. March 16.
BELLIS, JAMES, Cottingham, late market gardener. Ct. Kingston-uponHull. March 16.
BERTRAM, HARRY, Barry Dock, tobacconist. Ct. Cardiff. March 15.
BROWNE, ANTHONY, late Camberwell-gr, gentleman. March 16.
BURBIDGE, ALFRED, Leicester, late boot manufacturer.
Ct. High Court.
CARTER, ELIAS, jun., Bedford, fishmonger. Ct. Bedford. March 15. CASTLE, DONALD Tokenhouse bldgs. Ct, High Court. March 17. CLARK, FRANK, Toynton Saint Peters, farmer. Ct. Boston. March 15. CLARK, JAMES PROCTOR KYD (described in the receiving order and late trading as George Driver and Son), Hythe-rd, Willesden Junction, electrical engineers. Ct. High Court. March 16.
CRAMPTON, JOHN HENRY, Leeds, round-a-bout proprietor.
FORD, JOHN WILLIAM, Pensford, baker. Ct. Wells, March 16.
HORSLEY, WILLIAM ARTHUR, Surbiton, outfitter. Ct. Kingston. Surrey. March 17.
JACKSON, WILLIAM (late trading as Jackson Brothers), Clitheroe, hay dealer. Ct. Blackburn and Darwen. March 12.
JANES, EDWIN HUNFORD, New King's-rd, Fulham, publican's manager. Ct. High Court. March 17.
JONES, FREDERICK GEORGE (trading as Dyson and Co. and sometimes as Dyson and Company), late Earl-st. Finsbury, stay materials merohant. Ct. High Court. March 18.
LEAN, SAMUEL, late Camborne, plumber. Ct. Truro. March 15.
LLOYD, FRANCIS GRAHAM (described in the receiving order and trading as B. S. Lloyd and Co.), King-st, Cheapside, merchant. Ct. High Court. March 16.
MARSHALL, OLIVER, Axbridge, coal merchant. Ct. Wells. March 17. MAXIM, SAVILE MAXIMILIAN, late New Bond-st. Ct. High Court. March 17.
PHILLIPS, FRANK STUART, Aberfan, stationer. Ct. Merthyr Tydfil.
READ, THOMAS, and READ, JAMES EDWARD (trading as Read Brothers),
UPHILL, ALBERT, late Eversley, farmer. Ct. Reading. March 13. WHITE, THOMAS (trading as White and Co.). Cambridge, tailor. Cambridge. March 15.
YENDELL, HENRY, Waverley-rd, Harrow-rd, house agent. Ct. High Court. March 17.
GAZETTE, MARCH 23.
BRYANT, DAVID, and BRYANT, TOM (trading as D. Bryant and Son), Harrogate, wholesale bakers. Ct. York. March 16. BUNCE, WILLIAM THOMAS, Lostock Hall, builder. Ct. Preston. March 17. COKER, LOUISA, Queen'e grdne, Lancaster-gate, Paddington, boardinghouse keeper, spinster. Ct, High Court. March 19.
DYSON, RENNIE ELLIOTT, and STOTT, WILLIAM (trading as R. E. Dyson
EMBLEY, FREDERICK WILLIAM, Settle, yeast dealer.
WILLIAM, late Great Winchester-st, director of a limited liability_company. Ct. High Court. March 19. HARRISON, SAMUEL WILLIAM, Birmingham, contractor. Ct. Birmingham. March 19.
HODGSON, THOMAS WOOD, Filey, clothier. Ct. Scarborough. March 18
NUGENT, CHARLES (SIR), Moreton-in-Marsh, trainer of race horses.
AGGS. On the 12th inst., at 13, Ladbroke-ter, W., the wife of William Hanbury Aggs, Barrister-at-law, of a son.
GREEN. On the 15th inst., at 61, Glenmore-rd, Belsize Park, N.W., the
NAYLOR. On the 13th inst., at Oakdene, Woodside-la, Woodside Park,
CASSERLEY. On the 14th inst.. at Hampstead, Samuel William Casserley, LL.B., of the Middle Temple, Barrister-at-law, aged 73. DIMOCK. On the 14th inst.. at Churchgate, Retford, John George Dimock, Solicitor, aged 72 years.
GOOLDEN. On the 17th inst., at his residence, 26, Gloucester-ter. Hyde Park, Percy Pugh Goolden Goolden, M.A., Barrister-at-law. HARE. On the 14th inst., killed in action while serving in the Expeditionary Force, Second Lieut. E. A. A. Hare, of the 2nd Middlesex Regiment, Solicitor.
When it is pointed out that, apart from the Criminal Justice Administration Act, there are thirty-eight other new Statutes dealt with in the new edition, it will be seen that the claim as to the importance and indispens.bility of the new edition is well founded.
The following are some of the Statutes passed in the ordinary course of Administration included in the Work for the first time :Milk and Dairies Act, Affiliation Act, Exportation of Horses Act, Patents and Designs Act, Coal Mines Act, Deeds of Arrangement Act, Bankruptcy Act.
Among the important Emergency Acts are the following: Aliens Restriction Act, British Nationality and Status of Aliens Act, Defence of the Realm Act, Defence of the Realm Act, No. 2, Customs (Exportation) Prohibition Act, Courts (Emergency Powers) Act, Trading with the Enemy Act, Trading with the Enemy Amendment Act.
Apart from the new Statutes that are included, something like 150 Cases decided during the last twelve months will receive attention in the Work. It has been stated that the lot of a STONE" would indeed be a hard Practitioner deprived of his one. This will be more true in the case of the 1915 Edition than in any previous year. Moreover, a Work that has attained its 47th Edition carries with it its own guarantee.
IN THREE EDITIONS: THICK, MEDIUM, THIN.
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JUDICIAL COMMITTEE OF THE
Re HOWELL; Re BUCKINGHAM;
Re ALLEN; Ex parte SHAW.-Bankruptcy Married woman who "carries on trade or business" 194 Re LORD LAWRENCE; LAWRENCE t. LAWRENCE.- Will-Construction -Legal devi e.. ...... 195 POULTON v. MOORE AND OTHERS. Estoppel-Creation of, by recital
HIGH COURT OF JUSTICE.
Re PETHICK DIX AND CO. LIMITED;
Re BIRKRECK PERMANENT BENEFIT
OCCASIONAL NOTES .................................................. 505
511 ...... 514
the Rule of Supreme Court-High Court of Justice: Easter Vacation Notice... 515 THE GAZETTES....... 515 BIRTHS, MARRIAGES, AND DEATHS 516
The Law and the Lawyers.
The Court of Appeal.
AT Christmas last year Lord Justice BUCKLEY drew attention to the way in which the division of the Court of Appeal over which he presided had dealt with the arrears in the King's Bench Final and New Trial list. At Michaelmas last, apart from interlocutory appeals, 178 cases were for hearing, and during that term sixty-nine of these were disposed of. Thirty-nine were entered up to the end of the year, making a total at Christmas of 148. Before the Hilary Term commenced this figure was increased to 154. During a considerable portion of the term that has now ended, another court, presided over by the Lord Chief Justice, has been also dealing with this list for about four days a week, and ninety-nine cases have been heard by both divisions. Sixty-seven new appeals have been entered, so that the total number for hearing at the present time is 122, as compared with 178 in October and 154 in January, the net decrease being during the Michaelmas Term twenty-four and during last term thirty-two. Put in another way, the Michaelmas 1914 list dated back to Dec. 1913; the Hilary 1915 list to March 1914; while the list for next sittings will commence with cases set down in Nov. 1914-a gain of about five months in the time of hearing. As we pointed out last week, by next August it is to be hoped that the incubus of arrears will be cleared, and that common law appeals will then be heard within a reasonable period of setting down.
The Sale of Drink.
THE growth of public opinion upon this subject is rot only of the utmost importance to the national interests at this juncture, but it is also a most instructive development to watch on the part of all those who have committed to them any part in the administration of the law regulating it. It is, however, a very striking feature of the times that every advance in stringency seems to be taken as a mere prelude to a further advance, and, at the present moment, every person having authority of any sort in regard to the drink traffic is being urged to go to lengths practically tantamount to prohibition out and out. Looking to the extremely vigorous language employed of late by Mr. LLOYD GEORGE, and to the prepared state of the public mind, the coming reassembly of Parliament may witness further regulations under the legislation which now deals with, or may hereafter concern, the defence of the realm. The present is no time for talking of interference with vested interests or personal liberty, and, if total prohibition is necessary for the more successful prosecution of the war, it must and will be accepted by the nation without demur.
LEGAL PROCEEDINGS AGAINST ENEMIES. BECAUSE of the suddenness with which this world war was launched on civilisation, the outbreak of hostilities found the civil institutions of this country wholly unprepared for the state of circumstances which has now intervened. Our legal system did not provide for the new order of things. Lawyers found themselves obliged to search for principles which had long remained unevoked-principles, moreover, which were evolved at a time when commerce was a very different thing to what it is nowadays. The short paragraphs dealing with the position of alien enemies in legal text-books had had a tendency to shrink rather than to grow as edition after edition of the same work increased in size and particularity. Το the Victorian and Edwardian legal text-book writers, a world was something inconceivable-so exceedingly improbable as to call for no serious attention from practical lawyers dealing with principles of law of a highly civilised country.
The judicature was not to blame. It is occasion that creates and develops law. The courts were not called upon to develop this branch of the law. True, there was the South African War. Out of that arose a handful--so to speak-of reported cases concerning probate matters chiefly. There were the cases of Gattward v. Knee (86 L. T. Rep. 119; (1902) P. 99), In Bonis Scott (89 L. T. Rep. 588; (1903) P. 243), and May v. May (86 L. T. Rep. 120; (1902) P. 103n.) dealing with the rules of law concerning will making by soldiers in the field. There was also, of course, the important case of Jans n v. Driefontein Consolidated Mines Limited (87 L. T. Rep. 372; (1902) A. C. 484), in which the question of the validity of an insurance of gold seized by a foreign State intending to wage war against this country was fully discussed. But it would be quite an accurate statement to say that the postponement of the coronation of King Edward VII. made more law, and certainly gave rise to a great many more reported cases, than did the three years' war in South Africa.
The Crimean War is represented in the great code of judge-made law by only a few cases. The case of Wahl v. Braune (1856, 35 L. J. 343, Ex.) arose out of that war. So did the more important cases of Esposito v. Bowden (1857, 7 E. & B. 763) and Clemontson v. Blessig (1855, 11 Ex. 135). But, on the whole, the Crimean War did little towards developing the law relating to the rights and obligations of civilians as amongst themselves under war conditions. In that war the branch of law most affected was the law of marine insurance, and the reports of the cases which arose at that time will be found to contain a number of decisions on this subject.
It is back to the days of the Napoleonic wars that we must go for our law if we seek for the solution of any question concerning the effect of war on contracts made with alien enemies. The classical case is the case of The Hoop (Cornelius) (1 Rob. Rep. Adm. 196); but there are a great number of others all directly
connected with the wars waged between France and Great Britain towards the end of the eighteenth century and the beginning of the nineteenth century. Those are the cases in which our law governing the contractual relationship between alien enemy and friend was developed and brought to its present state. Lord Stowell, Lord Alvanley, Lord Ellenborough, Lord Hardwicke, Lord Eldon, and Lord Mansfield all contributed towards that end. But until the present war the Legislature contributed little or nothing to civilian war law. Just as Victorian text-book writers found this subject of no practical importance, so our Victorian Legislature seems to have abhorred the whole matter. Even at such a time as the fundamental altering of the law of land ownership by aliens, Parliament did not think fit to deal with the position of alien enemies. The Naturalisation Act of 1870, while making it competent for an alien to acquire and hold land in this country in the same way as any natural-born British subject, made no distinction whatever between an alien enemy and an alien friend. But our Victorian legislators ought not to bear the whole blame for such a palpable omission. For the new Naturalisation Act, which came into force on the first day of this year, contains no such distinction. It is occasion that makes law, and Parliament has made amends since the outbreak of this war by flooding the statute-book with a great number of legislative measures to cope with the present circumstances. One of the most recent additions to the war statutes is the Legal Proceedings against Enemies Act
In a series of nine articles which appeared in these columns under the heading "Contracts and the War," and the first of which appeared on the 12th Sept. last, we dealt very fully with the position of British subjects who had entered into contracts, prior to the commencement of the war, with persons who on the outbreak of hostilities became alien enemies. We pointed out the effect of the war on such of those contracts as remained undischarged, and incidentally we committed ourselves to views where the law appeared uncertain-views which have subsequently been substantiated by judicial decisions. One point particularly we insisted on namely, the danger of treating an undischarged contract with an alien enemy as at an end. An alien enemy, we said, is not civiliter mortuus. He is merely in a state of suspended animation. On a return of peace many contracts with alien enemies may be sued on at the instance of the quondam enemy. The ill-fated Treasury memorandum which made its appearance in August last, and which was intended to explain the legal position generally to the country at large, explained a great deal more than was the law, or, at any rate, explained matters in such a way as to require its very speedy withdrawal.
The Treasury memorandum made a great deal of the supposed distinction between an executed and an executory contract, implying that the war put an end to the latter, but not the former. Where this doctrine originated it is difficult to say. Possibly it received some encouragement from a note, no doubt most carefully prepared, to the case of Clemontson v. Blessig (1855, 11 Ex. 135, at p. 141 et seq). In that note, although it was confessed that there was then little authority on the point, the view was put forward that a contract with an alien, unexecuted at the time of the declaration of war, is rendered void by the declaration of war. With this view we disagreed in the series of articles already mentioned. Contracts which remained to be discharged either wholly or partially may have become discharged on the commencement of the war. On the other hand, they may still remain on foot dischargeable when the war is over. Even if the contract has been discharged as on the commencement of the war-and this is a very different thing from the contract being avoided-rights may still subsist in the alien enemy as well as in the British subject, and these rights may be enforced after the war is over.
It is mainly on these contracts that the new Act has such an important bearing. The British subject may well want to know what his rights and obligations are under the contract. Hitherto there has been great difficulty in devising a way in which these rights and obligations were to be determined. It was until recently a moot question whether an alien enemy could be sued in our courts during the continuance of the war. That he cannot sue has long been established. We should be anxious," said Lord Campbell in the case of Alcinous v. Nigreu (1854, 4 E. & B. 217, at p. 218), "to give the plaintiff, though an enemy, every advantage