« EelmineJätka »
argument "While we have the Aliens Restriction Act in
But it so happened that this case raised no commercial question
On the cases it might be hard to establish that it does so apply. But the practice is now all in favour of allowing an alien residing in this country the rights of a British subject so long as he is of good behaviour. It is here that "registration comes in. If he duly registers himself and keeps within the law, he will probably be regarded as of good behaviour. We hardly think it probable that this view of the law is taken about British subjects in the Berlin courts. How if he is of bad behaviour and unregistered? We conceive that it will be hardly possible for such a one to escape the disqualification which the common law undoubtedly originally attached to all alien subjects of a Power whose Sovereign was at war with ours.
Mr. Justice Bailhache has decided that an alien enemy proper has certain rights. He has a right to defend bimself if he is sued. So he may apparently set up the moratorium, which contains no exception for his case, such as is contained in the Courts (Emergency Powers) Act 1914.
We may therefore sum up our conclusions as to the position of Germans in our civil courts of law at the present day in the following propositions :
1. Germans naturalised in England have all the rights of British subjects in our English courts.
2. Germans naturalised in a dominion have all the rights of British subjects in the courts of that dominion, but not in our English courts. But it does not at all follow that even here they will be treated as alien enemies.
3. Germans holding a licence to trade have all the rights of British subjects in respect to such trade as long as the licence remains valid.
4. Germans who are "registered" get no rights as such registered persons, but the registration affords some evidence that they are of good behaviour.
5. Germans resident or carrying on business here and being of good behaviour have all the rights of British subjects in our courts in commercial cases, and in practice will probably have such rights in non-commercial cases.
6. Germans, though alien enemies proper, will be heard in court when they are sued by British subjects.
7. Germans, though alien enemies proper, may set up the moratorium, but not the Courts (Emergency Powers) Act 1914. It will be useful to lawyers in practice to recognise and apply these laws.
It will be useful to politicians and statesmen to consider these laws and to realise what the present practice is, in order that they may feel quite sure that it is wise to leave the subjects of enemy so many rights and privileges. If it is not wise, it is not too late to alter the law by Act of Parliament.
COMMENTS ON CASES.
Redemption of Weekly Payment to Injured Workman. DESPITE the numerous cases that have from time to time come before the Court of Appeal, on appeal from awards made by County Court judges relating to questions arising out of the redemption by an employer of the weekly payment payable to an injured workman by a specified lump sum, that raised in the recent case of Rex v. Registrar of Bow County Court (111 L. T. Rep. 277) was apparently tare of authority. It was left to the Divisional Court, on a rule to show cause, to tackle a rroblem under the Workmen's Compensation Act 1906, the difficulty of which might well have tried the experience of the court very much more accustomed to deal with such matters. Where an agreement has been entered into between an employer and an injured workman that the weekly payment payable by the Third Sheet
former to the latter shall be so redeemed, it certainly would seem that, according to sect. 9 of the second schedule to the Act, the only objection that can be taken by the workman to the recording of a memorandum of the agreement is that the fame is not genuine. It would seem that it is solely the registrar, and not the workman, who may take an objection to the inadequacy of the lump sum. But when form 38 of the forms appended to the Consolidated Workmen's Compensation Rules., July 1913, is referred to, it is seen that anyone might easily be misled by the language used therein. The phrase "object to its being recorded, and, if so, on what grounds," followed later on by "dispute the genuineness of the memorandum, or object to its being recorded," would give the workman to believe that he is entitled to object on grounds other than mere "genuineness "-either upon the ground of the compensation offered by the employer being inadequate, or upon some other ground. Having regard, however, to the provisions of sect. 9 of the second schedule to the Act, the learned judges of the Divisional Court were unanimously of opinion that, although it was unnecessary to declare the statutory form to be ultra vires, yet the same could not alter the specific provisions of the section, being simply machinery for carrying those provisions into effect. It is a significant fact, however, that the registrar, in regarding the adequacy of the lump sum, is to do so "on any information which he considers sufficient." Such information would primarily come from the workman himself. And if he objected to the adequacy of the lump sum, his "information" would unfailingly enlighten the registrar on that head.
Duty of Lessor of House Let in Separate Tenements.
WE had occasion, when commenting on Mr. Justice Atkin's decision in the case of Lucy v. Bawden (see 137 L. T. Jour. 234), to discuss the position of a lessor in the circumstances referred to in the headline above. What we had there to say concerning the distinction to be drawn between an obvious or latent defect in the property belonging to the lessor and one in the nature of a trap-a latent defect-applies with equal force to the facts of the recent case of Dobson v. Horsley (noted 137 L. T. Jour. 563). The learned judges of the Court of Appeal have, indeed, in affirming the decision of Mr. Justice Ridley in that case, given their approval to the decision of Mr. Justice Atkin in Lucy v. Bawden (ubi sup.). As we remarked in our previous comment, the distinction thus drawn "seems so well founded as to be incapable of being refuted." And it was because the defect in the railings attached to the area steps in Dobson v. Horsley (ubi sup) was not in the nature of a trap-no more than was the defect in the flight of steps in Lucy v. Bawden (ubi sup.)—that the plaintiff, a stranger to the contract between the lessor and the lessee, was held to be unable to recover in tort. Where the lessor of a house let in separate tenements remains in possession and control of a common staircase or flight of steps, his ordinary duty to the several tenants of the demised premises, and to persons coming to visit them, is to take care that the staircase or steps are in such reasonable repair as to afford a safe access to the various tenements-the same being a way of necessity. Such was the effect of the decision of the Court of Appeal in the oft-cited case of Miller v. Hancock (69 L. T. Rep. 214; (1893) 2 Q. B. 177). It must be borne in mind, however, that the defective condition of the staircase in that case was a latent one. And that being so, it was unquestionably a trap to the unwary: (see Huggett v. Miers, 99 L. T. Rep. 326; (1908) 2 K. B. 278). On that account it was that Mr. Justice Atkin saw his way to depart from the decision in Miller v. Hancock (ubi sup.) when his Lordship was framing h's judgment in Lucy v. Bawden (ubi sup.). The principle of the decision in Mil'er v. Hancock (ubi sup.) became susceptible of being distinguished. As in Lucy v. Bawden (ubi sup.), so in Dobson v. Horsley (ubi sup.), everyone using the flight of steps could not fail to observe the patent defect, and scienti non fit injuria is the maxim in point.
Trust for the Protection and Benefit of Animals.
IF the words that define the objects to which charitable gifts may be devoted were to be regarded as exhaustively specified in the Poor Relief Act 1601 (43 Eliz, e 4), the secret
trust in the recent case of Re Wedgwood; Allen v. Wedgwood (noted post, p. 11) would certainly not have been held by the Court of Appeal to be a good charitable trust. Relief of the poor, religion, and education have no application whatever to animals. But, as was there said by the Master of the Rolls (Lord Cozens-Hardy), the courts have repeatedly held that the particular objects mentioned in that statute are not exhaustive. By analogy, a large class of other objects has been included; and the more modern tendency has been to enlarge the meaning of te word "charity." The opinions of the learned Lords in the amous case of Commissioners for Special Purposes of Income Tax v. Pemsel (65 L. T. Rep. 621; (1891) A. C. 531) are usually cited as containing a completely comprehensive definition of the meaning of the words "charity" and "charitable." But what was laid down by Lords Justices Fitzgibbon and Holmes in the Irish case of Webb v. Oldfield (1898, 1 Ir. Rep. 446) was referred to by the Master of the Rolls because the learned Lords Justices' language was more in point in the present case. Any gift which is intended to benefit an appreciably important class of our fellow-creatures, including animals . . . will be charitable." That was what Lord Fitzgibbon considered to be right. "Gifts, the object of which is to prevent cruelty to animals and to ameliorate the position of the brute creatures," is even a closer parallel, and Lord Justice Holmes said the same were charitable. Moreover, there is no lack of authority in this country for the proposition that animals, no less than human beings, can be made the valid objects of a charitable gift. Thus, a trust for the benefit of animals useful to man was so held in University of London v. Yarrow (1 De G. & J. 72). Gifts for the prevention of cruelty to animals were supported in Marsh v. Means (3 Jur. N. S. 790) and Re Valance (Seton, 5th edit., 1141). And in Re Foveaux; Cross v. London Anti-Vivisection Society (73 L. T. Rep. 202; (1895) 2 Ch. 501), where those two cases were alluded to, Mr. Justice Chitty (as he then was) held that societies having for their object the total suppression of vivisection were charities. That such purposes, therefore, as the protection and benefit of animals are eminently charitable in the accepted legal sense of the term, was stated by Lord Justice Swinfen Eady in the present case to be amply established by the cases.
Restrictive Covenants—No Dominant Tenement.
IT was decided as long ago as Tulk v. Moxhay (2 Ph. 774) that a court of equity will restrain a person who has acquired land with notice of a covenant that it shall not be used in a particular way from breaking that covenant, though it does not run with the land at law. The reason given by Lord Cottenham in his judgment for that decision is that, if it were not so, it would be impossible for an owner of land to sell part of it without incurring the risk of rendering what he retains worthless. It is sometimes said that that doctrine was based upon the covenant being a burden on the conscience of the assignee of the land, who had notice of it; but subsequent cases have placed the doctrine on a different basis. In London and South-Western Railway Company v. Gomm (46 L. T. Rep. 449; 20 Ch. Div. 562) Jessel, M.R. said that the doctrine of that case appeared to be either an extension in equity of the doctrine of Spencer's case to another line of cases, or else an extension in equity of the doctrine of negative easements. That the principle does not depend on notice appears from cases like Hayward v. Brunswick Permanent Benefit Building Society (45 L. T. Rep. 699; 8 Q. B. Div. 403), in which it was held that where land had been granted in fee in consideration of a rentcharge and a covenant to build and repair buildings, the assignee of the grantee of the land is not liable either at law or in equity, on the ground of notice, to the assignee of the grantee of the rentcharge on the covenant to repair. Further, it appears to be settled that the burden of a covenant will not run with the land at law, except as between landlord and tenant : (see Austerberry v. Corporation of Oldham, 53 L. T. Rep. 543; 29 Ch. Div. 750). It has for some time been a moot point whether the doctrine of Tulk v. Moxhay applies to a case
where there is no dominant tenement-that is, where the benefit is not annexed to any particular land. In Catt v. Tourle (21 L. T. Rep. 188; L. Rep. 4 Ch. 654) the facts were very shortly as follows: The plaintiff, a brewer, sold a piece of land to the trustees of a land society, who covenanted with him that he, his heirs, and assigns should have the exclusive right of supplying beer to any building erected on the land. The defendant, a member of the society, acquired part of the land with notice of the covenant, and built on it a public-house, which, being a brewer, he supplied with his own beer. In an action by the plaintiff to restrain the defendant from so-doing, it was held that the covenant was in substance negative, and that the court would interfere by injunction to restrain the defendant from acting in contravention of it. But (as pointed out by Lord Justice Buckley in London County Council v. Allen, hereafter referred to), the court in that case do not seem to have considered the question whether the covenantee had any land in respect of which the benefit could be enjoyed. Again, in Luker v. Dennis (37 L. T. Rep. 827; 7 Ch. Div. 227) the facts were very shortly as follows: The lease of a public-house, granted by a brewer to a publican, contained a covenant by the latter for himself, his executors, administrators, and assigns to purchase from the brewer all the beer consumed at that publichouse and also at another public-house of which the publican held a lease under a different landlord. Held, that the covenant was binding in equity upon an assignee of the second publichouse, who had notice of the covenant. As pointed out by Lord Justice Buckley (in London County Council v. Allen), the point which was there expressly decided was that Keppell v. Bailey (2 M. & K. 517) had been displaced by Tulk v. Moxhay. Keppell v. Bailey decided that a restrictive covenant which does not run with the land at law is not binding on an assignee with notice. But, having regard to London and South-Western Railway Company v. Gomm, Austerberry v. Oldham Corporation, and subsequent cases, the decision in Luker v. Dennis cannot be relied upon as now accurately stating the law. The question has come before the Court of Appeal in the recent case of London County Council v. Allen (137 L. T. Jour. 181; (1914) 3 K. B. 642). There the facts were shortly as follows: The owner of land in the county of London applied to the London County Council for their sanction to his laying out a new street on the land. They agreed to give such sanction provided he entered into a covenant not to build on a piece of land lying across the end of the proposed street so as to afford facilities for the continuation of it. The owner entered into such covenant for himself, his heirs, and assigns accordingly. The plaintiffs were not possessed of or interested in any neighbouring land for the benefit of which the covenant was imposed. The owner subsequently sold the piece of land to the defendant, who had notice of the restrictive covenant. The defendant then began to build houses on the land without the consent of the plaintiffs. It was admitted that the covenant did not run with the land at law. Held, by the Court of Appeal, that the plaintiffs were not entitled to enforce the covenant against the defendant, who was assignee of the covenantor. In the course of long and lucid judgments, in which Lord Justice Buckley and Mr. Justice Scrutton reviewed the authorities, they came to the conclusion that the doctrine of Tulk v. Mcxhay does not extend to a case in which the covenantee has no land capable of enjoying, as against the land of the covenantor, the benefit of the restrictive covenant. In other words, an owner of land deriving title under a person who has entered into a restrictive covenant concerning the land, which does not run with the land at law, is not bound in equity by the covenant, even if he took the land with notice of its existence, if the covenantee is not in possession of, or is interested in, land for the benefit of which the covenant was entered into. A similar point arose in Milbourne v. Lyons (111 L. T. Rep. 389; (1914) 2 Ch. 231, C. A.). There the owner in fee of a hotel in Dec. 1898 agreed to sell it to H., the predecessor in title of the plaintiffs. The agreement provided that the conveyance should contain a covenant by the purchaser that the hotel should not be used for any purpose which might be a nuisance or annoyance to the vendors as owners of certain adjoining houses and land of which the vendor was owner in fee simple, but under a different title. The purchase was completed in Dec. 1899, and the conveyance contained the
stipulated restrictive covenant by H. with the executors of the vendor, who was dead. Between the date of the contract with H. and the date of completion all the vendor's adjoining houses and land were sold to purchasers without notice of H.'s contract or the restrictive stipulation; and all such lots were conveyed to the purchasers before Dec. 1899. In Dec. 1912 the plaintiffs sold the hotel to the defendant free from restrictions with notice that he proposed to erect a music-hall on part of the premises. The defendant objected to the title on the ground that the hotel was bound by the restrictive stipulation in H.'s contract and convey
Held (affirming the decision of Mr. Justice Neville, 109 L. T. Rep. 797; (1914) 1 Ch. 34), that the date of the conveyance of Dec. 1899 was the material date, and that as at that time the vendor had no property to which the benefit of the restrictive covenant could attach, the hotel was not subject to any restrictive stipulation, and accordingly that the appeal from the order of Mr. Justice Neville for specific performance must be dismissed. No doubt the question principally argued there was whether the agreement or the conveyance was to be looked at for the purpose of determining whether the restriction was binding, but the point was distinctly taken in argument that at the date of the conveyance there was no dominant tenement to which the benefit of the covenant could attach, and that view was adopted by the Court of Appeal.
MISCELLANEOUS PRECEDENTS (continued).
day of 1914 in the county of and C. D. of in the county of (hereinafter called "the vendors") of the one part and E. F. of in the county of (hereinafter called "the purchaser ") of the other part. WHEREAS B. W. late of aforesaid duly made his will dated the 191 and thereby appointed his wife the said A. B. and the said C. D. to be the executors and trustees thereof and after making certain pecuniary and specific bequests the said testator devised and bequeathed all his real and personal estate not thereby otherwise disposed of unto his trustees upon trust that his trustees should sell call in and convert into money the same or such part thereof as should not consist of money and should out of the moneys produced thereby and out of his ready money pay his debts and funeral and testamentary expenses and should invest the residue of the said moneys and should stand possessed of the said residuary trust moneys and the investments for the time being representing the same in trust to pay the income thereof to his said wife during her life and from and after her decease as to the capital as well as the income of the said residuary trust premises upon the trusts therein mentioned and the said testator thereby empowered his trustees on the sale of any of his real estate to sell all or any of the minerals together with or apart from the surface.
AND WHEREAS the said testator died on the
day 19 without having revoked or altered his said will and on the day of 191 the same will was duly proved by the vendors in the District Probate Registry. AND WHEREAS by an indenture dated the day 191 and made between H. L. of the first part the purchaser of the second part the vendors of the third part and X. Y. of the fourth part after reciting that the said H. L. had then lately agreed to sell the hereditaments thereinfter described (which included among other hereditaments the entirety of the hereditaments hereinafter described; to the purchaser and the said B. W. at the price of £p it was witnessed that for the purpose of giving effect to the said agreement and in consideration of the sum of £p paid as to the sum of £y by the purchaser and as to the sum of £q by the vendors out of the estate of the said B. W. deceased to the said H. L. the said H. L. conveyed the said hereditaments to the said X. Y. and his heirs To HOLD the same unto the said X. Y. in fee simple (subject to an exception and reservation of the existing rights of the lord of the manor of of and in the coal ironstone and other minerals lying and being within and under the said hereditaments as the same were reserved on the enfranchisement thereof therein and thereinafter mentioned and subject also to the restrictive provisions contained or referred to in an indenture of conveyance dated the day of 188 and made
between W. W. of the first part S. W. of the second part and H. H. of the third part being provisions as to building on and mode of using of the said hereditaments so far as the same related to the said hereditaments and were still enforceable
against the said H. L.) as to one equal undivided moiety thereof to the use of the purchaser in fee simple and as to the other equal undivided moiety thereof to the use of the vendors in fee simple as part of the real estate of the said B. W. deceased and to be dealt with by them in like manner as if the purchase of the said hereditaments had been completed in the lifetime of the said B. W.
AND WHEREAS the vendors as such trustees and executors as aforesaid have agreed with the purchaser for the sale to him for the sum of £r of one undivided moiety of and all other (if any) the interest of the vendors or which they have power to convey of and in the messuage land and hereditaments first hereinafter described AND ALSO the entirety of the easements and rights secondly hereinafter described subject to the said restrictive provisions contained or referred to in the said indenture of the 1888 day of as hereinafter mentioned and subject to the restrictive covenants on the part of the purchaser hereinafter contained.
AND WHEREAS upon treaty for the said sale it was agreed that the vendors should enter into the covenants on their part hereinafter contained.
NOW THIS INDENTURE WITNESSETH as follows:
1. In consideration of the sum of £r now paid to the vendor by the purchaser (the receipt whereof the vendors hereby acknowledge) the vendors AS TRUSTEES hereby convey and release unto the purchaser and his heirs FIRST ALL that the undivided moiety and all other (if any) the estate and interest of the vendors or which they have power to convey of and in first all that &c. and of and in all mines and minerals in or under the said hereditaments all which hereditaments were formerly parcel of the manor of but were enfranchised by an indenture dated the day of 191 and made between O. P. of the first part B. H. S. J. and M. B. of the second part and the said H. L. of the third part. SECONDLY TOGETHER also with (in addition to all other rights and easements conferred or implied by virtue of the Conveyancing Act 1881 or otherwise) full right and liberty for the purchaser his heirs and assigns owners or occupiers for the time being of the messuage land and hereditaments first herein before described or any part thereof or any building for the time being thereon or of any adjoining or adjacent or neighbouring property which may at any time hereafter be acquired by the purchaser his heirs executors administrators or assigns during his life or within twenty-one years after his death and all persons authorised by the purchaser his heirs executors administrators or assigns as such owners or occupiers as aforesaid (in common with all other persons who have or may hereafter have the like right) at all times hereafter by day or by night and for all purposes with or without horses carts carriages or waggons motor cars or other vehicles laden or unladen to go pass and repass and to drive cattle sheep and other animals along over and upon the strip of land or road approximately 20ft. wide leading from the said messuage land and hereditaments first herein before described to -road and also
a right to use in common as aforesaid all drains and sewers and gas water and other pipes and electric conduits now laid or at any time hereafter to be laid in under or along the said strip of land or road with liberty to enter thereon for the purpose of opening into or making communications with such sewers or diains water gas or other pipes and electric conduits and to lay the same down thereunder and to remove trees or other obstructions on the said strip of land or road making good all damage caused thereby and restoring the surface as soon as may be TOGETHER also with the right at any time hereafter to form the said strip of land or road by means of and in conjunction with any other adjoining land on the south side thereof into a road ft. wide such widened road to be subject to all the rights easements liberties and privileges herein before granted in respect of the said strip of land or road ft. wide To HOLD all the said hereditaments and premises hereby assured unto and to the use of the purchaser his heirs and assigns subject to the said exception of the existing rights of the lord of the manor of of and in the said coal ironstone and other minerals as the same were reserved on the enfranchisement thereof and subject to the said restrictive provisions contained in or referred to in the said indenture of the day of 188
so far as the same relate to the aid hereditaments herein before described and are still enforceablə against the purchaser and subject to the stipulations contained in the first schedule hereto.
2. The purchaser as to the entirety of the hereditaments first herein before described to the intent to bind the same he editaments into whosesoever hands the same may come but not so as to render the purchaser personally liable in damages for any breach of the covenant after he shall have parted with the said hereditaments hereby for himself and his assigns covenants with the vendors their heirs and assigns and as a separate covenant
with the said A. B. her heirs and assigns respectively owners for the time being of the land and hereditaments coloured on the said plan that the purchaser his heirs and assigns will at all times hereafter observe and perform the stipulations in relation to the said hereditaments first herein before described which are contained in the first schedule hereto.
3. The vendors and as a separate covenant the said A. B. to the intent to bind the said hereditaments coloured on the
said plan into whosesoever hands the same may come but not so as to render the said covenanting parties personally liable in damages for any breach of this covenant after they respectively shall have parted with the same hereditaments hereby for themselves respectively and their respective assigns covenant with the purchaser his heirs and assigns owners for the time being of the said hereditaments first hereinbefore described and delineated on the said plan and therein surrounded by a red verge line that the said covenanting parties respectively will at all times hereafter observe and perform the stipulations in relation to the said hereditaments coloured and upon the said plan which are contained in the second schedule hereto. 4. The purchaser with the object and intention of affording to the vendors and the estate of their testator a sufficient indemnity in respect of the said restrictive provisions contained or referred to in the said indenture of the day of 188 so far as the same relates to the said hereditaments first hereinbefore described but not further or otherwise hereby covenants with the vendors that the purchaser his heirs and assigns will henceforth observe and perform such restrictive provisions and indemnify the vendors their heirs executors aud administrators and the estate of their testator against all actions claims and demands in respect of such restrictive provisions so far as the same affect the hereditaments hereby assured and are still enforceable against the purchaser. IN WITNESS &c.
THE FIRST SCHEDULE ABOVE REFERRED TO. [Restrictive stipulations to be entered into by the purchaser.] THE SECOND SCHEDULE ABOVE REFERRED TO. [Restrictive stipulations to be entered into by the vendors.] NOTE.-It must not be assumed that under ordinary circumstances trustees for sale can grant new easements.
NOTES OF RECENT DECISIONS NOT YET REPORTED.
BY OUR REPORTERS IN THE SEVERAL COURTS.
COURT OF APPEAL. Electric Supply-Differentiation in Charges-Undue PreferenceSimilar Circumstances.
The relators were a company authorised to supply gas within the limits of their private Act. The defendants were a local authority authorised to supply electricity by an Act passed under the Electric Lighting Acts 1882 to 1888; and they so supplied electric energy for the purposes of power and light. Up to the 1st Jan. 1912 the defendants had made the following charges for electricity (so far as such charges are material they were for the lighting of factories): 3d. per Board of Trade unit for the first 2000 units per quarter, afterwards 2d. per Board of Trade unit; for power they charged for a supply of over 4000 Board of Trade units, but not exceeding 6000, 1d. per unit per quarter, and over 6000 at the rate of 3d. per unit per quarter. On the 25th Sept. 1911 the defendants issued a circular giving notice of their intention to alter these charges for electricity by increasing the charge for power to consumers who took power only or power and partial lighting, the charge for power remaining unaltered at the lower rate for consumers who took power and all their light from the defendants. It was decided by Sargant, J. (137 L. T. Jour. 63) that the defendants had failed to discharge the onus of proof that the preference was justified within sects. 19 and 20 of the Act of 1882. The defendants appealed.
Held, that the appeal must be dismissed.
[Attorney-General at the relat on of the Long Eaton Gas Company v. Long Eaton Urban District Council. Ct. of App.: Lord Cozens-Hardy, M.R., Kennedy and Swinfen Eady, L.JJ. Oct. 29.-Counsel: Martelli, K.C., H. Courthope-Munroe, K.C., and W. W. Morgan; Romer, K.C. and Percy_F. Whesler. Solicitors: Lees and Co., agents for E. Williams, Long Eaton; R. W. Cooper and Sons, agents for Fraser and Son, Nottingham.]
Husband and Wife-Divorce-Practice-Alimony pendente liteAllegation by Husband against Wife-Denial-Cross-examination.
A husband petitioned for divorce from his wife on the ground of her adultery. The wife denied that charge and asked for
judicial separation. Subsequently she petitioned for alimony pendente lite. In answer to that petition the husband alleged. that she was cohabiting with the co-respondent and being maintained by him. The wife filed an affidavit denying that allegation. The registrar ordered payment of interim alimony. The husband applied that the wife might be ordered to be cross-examined on her affidavit and for leave to file evidence that the wife was being maintained by the co-respondent. Bargrave Deane, J. suspended payment of alimony, and ordered that the husband should be allowed to cross-examine and file evidence. The wife appealed.
Held, that the husband ought not to be allowed to crossexamine and file evidence, except on condition that nothing should go directly or indirectly to the question of adultery. Order varied.
[Bass v. Bass and Bianchi. Ct. of App.: Kennedy and Swinfen Eady, L.JJ. Oct. 30.—Counsel: Barnard, K.C. and T. Bucknill; Durley Grazebrook. Solicitors: Hasties; David A. ‹ Romain.]
Public Authority-Contract by, under statutory PermissionNegligence in Execution of-Action commenced more than Six Months after Injury-Liability-Bradford Corporation Gas and Improvement Act 1871 (34 & 35 Vict. c. civ.), s. 20-Public Authorities Protection Act 1893 (56 & 57 Vict. c. 61), s. 1.
Plaintiff's appeal from a decision of the Divisional Court (Bray and Lush, JJ., Lush, J. dissenting) reported 110 L. T. Rep. 254. By sect. 20 of their private Act of 1871 it was provided. that the corporation of B. may make, store, and supply gas. and may sell, manufacture, store, and dispose of coke and other matters, the products of the coal or other materials employed in the manufacture of such gas in such manner as the corporation may think fit." On the 10th Oct. 1912, the plaintiff ordered a ton of coals from the defendants, the corporation of B. Upon the same day the coals were delivered by the defendants in a cart driven by one of their servants. In endeavouring to tip the coal down the coal hole in the pavement in front of the plaintiff's shop, the defendants' eervant negligently tipped the coal through the window of the shop. On the 7th May 1913, more than six months after the accident, the plaintiff brought an action against the defendants claiming damages for negligence. The defendants gave notice that they intended to rely on the protection afforded by the Public Authorities Protection Act 1893, s. 1.. The learned County Court judge held that the statute afforded an answer to the plaintiff's claim, and gave judgment for the defendants. From this decision the plaintiff appealed. The Divisional Court differed. Lush, J. held that, as the defendants, acting within their statutory powers, had undertaken obligations towards a particular individual, and in the course of discharging those obligations had been guilty of negligence by their servant, the case was not one in which they were acting directly in the execution of a public duty, and consequently they were not protected by the provisions of the Act. Bray, J. held that the plaintiff's claim arose in tort and not out of the contract between the parties; that in selling and delivering the coke the defendants were executing a public duty, and, that being so, they were protected by the statute.
Held, allowing the appeal, that the defendants were not protected by the provisions of the Act of 1893.
[Myers v. Corporation of Bradford. Ct. of App.: Buckley, Phillimore, and Pickford, L.JJ. Nov. 2.-Counsel: for the plaintiff, Scott Fox, K.C. and Lowenthal; for the defendants, McCall, K.C. and Mason. Solicitors: E. Bogue, for Scott, Eames, and Mossman, Bradford; Cain and Son, for F. Stevens, Bradford.]
"at his own Disposal"-No express
By her will a testatrix appointed B. executor of her will, and directed "my executor" to pay her debts, funeral and testamentary expenses, and, after bequeathing some pecuniary legacies, and, among them, one to B., my executor," she declared that the residue of her property (if any) shall be at the discretion of my executor and at his own disposal." There was no express gift of the estate or the residue to anyone. Part of the estate consisted of a reversionary interest in the residuary estate of a deceased person. B. died several years after the testatrix, having made a will and appointed executors. Subsequently the reversionary interest fell in, and the residuary legatees of B. claimed that the fund belonged to B. absolutely and beneficially under the will of the testatrix. Itwas decided by Warrington, J. (137 L. T. Jour. 64), following the Irish case of Fenton v. Nevin (31 L. Rep. Ir. 478) in preference to that of Gibbs v. Rumsey (2 Ves. & B. 294), that B., having got the residue by virtue of being executor, and not by any direct gift, held it in that capacity, and not beneficially ;; and that, as the purposes for which he held the residus were uncertain, the result was that he held it in trust for the next of kin of the testatrix. On appeal :
Held, that the concluding words "at his own disposal" were sufficient to show that the testatrix intended that B. should take beneficially. Appeal allowed.
[Re Howell; Liggins v. Buckingham. Ct. of App. Lord
Will-Secret Trust-Charitable Gift-Trust for Benefit and
By her will, dated the 26th June 1913, a testatrix who died
Held, first, that the bequest was not an absolute gift to C. W. beneficially, but was subject to a secret trust, and, secondly, that the trust was a good and valid charitable trust. Appeal allowed.
[Re Wedgwood; Allen v. Wedgwood. Ct. of App.: Lord Cozens-Hardy, M.R., Kennedy and Swinfen Eady, L.JJ. Oct. 14, 15 and 29.-Counsel: Henry Terrell, K.C. and W. H. Salter; Clauson, K.C. and J. E. Harman; AustenCartmell Solicitors: Waterhouse and Co.; The Solicitor to the Treasury.]
HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Companies Winding-up-Distribution of surplus Assets-Company incorporated under Act of 1862 and adopting Table A-No special Resolution for Increase of Capital-Additional Capital authorised by Provisional Order-Position of Holders of additional Share Capital issued thus in Terms of Provisional Order.
This was a summons to determine whether the capital of a gas and water company had been validly increased and therefore whether the holders of such capital were entitled on the winding-up of the company to participate as shareholders in the surplus assets of the company, or whether their position was merely that of creditors of the company who were entitled to receive back what they had paid. The circumstances were as follows: The company was incorporated under the Companies Act of 1862 and had adopted Table A of that Act in lieu of articles of association. Art. 26 provided that the capital of the company might be increased by special resolution. The original capital of the company as to gas shares consisted of £1800, divided into 360 shares of £5 each, and as to water shares of £2200, divided into 440 shares of £5 each. Provisional Orders were made in 1878 and 1907 respectively under the Gas and Waterworks Facilities Act 1870. order of 1878, sect. 8, said that "The share capital of the undertakers shall for the purposes of their gas undertaking consist of the original share capital amounting to £1800 already raised
and of additional share capital to be issued subject to the provisions of the order not exceeding £2000, and the original and additional share capital of the undertakers shall not for such purposes exceed £3800." The order contained similar provisions (with different amounts) as to water shares. The order of 1907 said: "The limitation prescribed by the order of 1878 shall not prevent the undertakers from raising additional capital not exceeding £6000, provided that the share capital for the purposes of the gas undertaking shall not exceed £9800." Similar provisions (with different amounts) were contained as to the water shares. Under these orders the company issued additional capital, gave certificates, and registered the holders, but no special resolution was ever passed authorising an increase of capital.
Held, that the issue of the additional capital was valid and the holders thereof were entitled to be treated as members in the distribution of surplus assets.
[R: New Tredegar Gas and Water Company Limited. Ch. Div. Neville, J. Oct. 27.-Counsel: J. G. Wood; P. S. Stokes ; A. Adams; D. D. Robertson; Owen Thompson; A. F. C. LuxSolicitors: Bell, Brodrick, and Gray.]
Receiver Realisation of Security Necessity of previous Application to the Court-Courts (Emergency Powers) Act 1914 (4 & 5 Geo. 5, c. 78), 8. 1 (b).
In a debenture-holders' action commenced in October last for the usual declaration that the plaintiff and all other holders of the mortgage debentures of the defendant company were entitled to a first charge upon the undertaking, assets, and property of the company, for payment of the money secured, and for foreclosure or sale, the plaintiff applied for the appointment of a receiver of the property comprised in the debentures and of a manager of the business of the company. Objection was made that the action and the application were "to foreclose" and "to realise the security," and that under sect. 1 (b) of the Courts (Emergency Powers) Act 1914 there should have been an application to the court before the issue of the writ of summons and before the application for the appointment of a receiver, and that no such application had been made.
Held, that the issue of the writ of summons was not foreclosing or realising the security by the plaintiff, but only a preliminary step taken by the plaintiff to put himself in a position to obtain foreclosure and realisation, and that the motion for a receiver was merely for the purpose of preserving the property until foreclosure or realisation, and therefore no previous application to the court was necessary in either case, and the appointment would be made.
[Re Farnol, Eades, Irvine, and Co. Limited; Boyd Carpenter
The Public Trustee Act 1906, by sect. 3, in the case of estates
Held, that the Public Trustee having undertaken to
[Re Wells. Ch. Div.: Eve, J. Oct. 30.-Counsel: C. Stafford
The plaintiffs were manufacturers of pulley b'ocks, hand