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Mr. Raymond Asquith. the son of the Prime Minister, who has a'ready attained a considerable position at the Bar, is stated to have refused to entertain a proposal to represent a town constituency in the House of Commons, on the ground that it was more appropriate for a young man to make his début as an applicant for Parlia mentary honours in a county division. This is an exposition of Constitutional morality which would have been considered as a political heresy in days gone by. A county seat was regarded as a very much higher distinction than a seat for a city or town. The county members were till 1872 known as knights of the shire as contrasted with the citizens and burgesses. When members of the House of Commons were paid for their services, the wages of the county members were double the wages of the citizens and burgesses. Not only has a member been elected from a town to a county constituency as a position of greater honour, but even a seat for a university has in Ireland been vacated for a seat for a county. Mr. Gladstone in 1859 defended the existence of small boroughs as a means of enabling young men of promise to enter the House of Commons, adducing as instances the cases of Pelham, Chatham, Fox, Pitt, Canning, and Sir Robert Peel, who all entered the House of Commons for the first time as members, not for county constituencies, but for small boroughs.
In honour of the memory of Thackeray, this year being the centenary of his birth, and the 26th May being the anniversary of his call to the Bar, the Treasurer and Masters of the Bench of the Middle Temple, of which society Thackeray was a member, entertained at dinner on the 26th ult. & distinguished party of guests, chiefly connected with literature and Thackeray's family, and with his old school, Charterhouse. Among those present either as guests or as members of the society were Lord Tennyson, Mr. Birrell, M.P., Sir R. Finlay, M.P., Colonel Sir F. Thackeray, Lord Mersey, Sir A. West, Sir Hugh Owen, Sir K. Muir Mackenzie, the Master of the Temple. the Master of the Charterhouse, Sir W. S. Gilbert, Sir H. Lucy, Sir R. Ball, Sir F. Pollock. Mr. Justice Darling, Mr. Justice Horridge, Professor Goudy, Mr. A. Hope Hawkins, Mr. T. W. Brogden, and many others. The chair was taken (in the unavoidable absence of the Treasurer, Mr. H. D. Greene, K.C.) by Sir Robert Finlay, and there were present about 150 members and guests. The principal toasts were "Thackeray" and "Literature," the former being intrusted to Sir R. Finlay and the latter to Lord Mersey. The toast of Literature " was responded to by Mr. Birrell and Mr. Justice Darling. The occasion was of somewhat exceptional interest, being one of the first on which one of the Inns of Court has done special honour to the memory of a deceased member whose claims to distinction were not in the region of law, but in literature.
Sir Rufus Isaacs, the Attorney-General, gave a full-dress dinner at Claridge's Hotel on the 27th ult. on the occasion of His Majesty's birthday. The following is the list of the acceptances: The Solicitor-General (Sir John Simon), Sir Robert Finlay, Sir Edward Clarke, Sir Edward Carson, M.P., the Earl of Deeart, the Attorney-General for Ireland, Mr. Scott-Dickson, M.P., Mr. J. H. Campbell, M.P., Sir Neil Elliott, K.C. (Tasmania), the Solicitor-General for Ireland, Sir J. W. Downer, K.C. (South Australia), Sir Kenneth Muir Mackenzie, Sir Charles Mathews, Sir Francis Oppenheimer, Sir N. J. Highmore, Mr. H. W. Johnson (the President of the Law Society), Mr. W. English Harrison, K C., Mr. E. Tindal Atkinson, K C., Mr. R. A. McCall, K.C., Sir David Brynmor Jonee, K. C., M.P., Mr. L. A. Atherley-Jones, K.C., M.P., Mr. Albert Gray. K.C., Mr. J. M. Astbury, K.C., Mr. S. O. Buckmaster, K.C., Mr. W. O. Danck werts, K.C., Mr. Herbert Manisty, K.C, Mr. J. Scott Fox, K.C, Sir Frederick Low, K.C., M.P., Mr. D. Stewart Smith, K.C., Mr. E. G. Hemmerde, K.C., Mr. E. Shortt, K.C., M.P., Mr. T. M. Healy, K.C. M.P., Mr. Ellis Griffith, K.C., M.P., Mr. S. A. T. Rowlatt, Mr. C. H. Sargant, Mr. Boydell Houghton, Mr. R. W. Muir, Mr. A. H. Bodkin, Mr. E. Beaumont, Mr. Austen Cartmell, Mr. E. W. Hansell, Mr. J. P. Grain, Mr. W. Ryland Adkins, M. P., Mr. A. J. C. Liddell, Mr. C J. B. Hurst, Mr. J. Lithiby, Mr. H. D. W. Westmacott, Mr. J. P. Mellor, Mr. S. W. Casserley, Mr. W. H. Leycester, Mr. Travers Humphreys, Mr. A. J. Lawrie, Mr. R. F. Graham Campbell, Mr. W. Finlay, Mr. B. A. Cohen, Mr. C. R. Dunlop, Mr. F. F. Daldy, Mr. A. C. Forster Boulton, Mr. H. C. A. Bingley, Mr. W. G. S. Schwabe, Mr. G. A. H. Branson, Mr. W. A. Greene, Mr. J. H. W. Pilcher, Mr. C. B. L. Tennyson, Mr. R. G. McDonald, Mr. O. B Clarke, Mr. M. L. Gwyer, Mr. A. T. Hare, Mr. H. M. Isaacs, and Mr. G. C. Isaacs.
A case reported in one of the leading Paris papers, under the title "L'Interdiction de Tartarin," will appear strange to English and American lawyers until they recall the fact that the patria potestas of the Romans has a strong influence on French law. Saya our contemporary: "This is the title which naturally suggests itself to the pen to describe an application for interdiction, which came before the First Chamber of the Civil Tribunal, by a pire de famille against his son. After stating the complaint in general, M. P-- (this is how the father is designated) invoked the aid of the court on the following grounds: Whereas eince the date before mentioned the state of the defendeur (the son) has become more aggravated; that he has a disposition to exaggerate everything of which he speaks; that he has affirmed that he walked from sixty to eighty kilometres twice every day (from seventy-five to 100 miles) at Vichy; that he climbed snow-clad mountains to a height of 6000 metres (19,500ft.); that he boasts of encounters in which he has taken part, and in which he has broken four ribs of a coachman and treated a tramway passenger in the same way. Moreover, that he declares that at Vichy he saved the life of a young girl of fifteen who had jumped from a height of 20 metres (65ft.) into the water, and was in danger of
drowning; and asserts for this act of bravery he has been awarded a medal for life-saving." The tribuna! has granted the interdict craved. The report ends, "Pauvre Tartarin," the writer having in mind the principal character of Alphonse Daudet's Tartarin de Tarascon, a gasconading humbug. We are reminded of the correspondent who wrote in No. 136 of the Spectator, and to whom Addison applies the words Parthis mendacior: "I shall without any manner of Preface or Apology acquaint you that I am, and ever have been from my Youth upward, one of the greatest Liars this Island has produced." Further, unless this application be a preliminary to putting M. P——’s eon under restraint, it is difficult to imagine what will result from the interdict, and we are reminded of Mr. Dicey's passage (p. 169 of the Law of the Constitution, 5th edit.): "John Marshall," said President Jackson, according to a current story," has delivered his judgment; let him enforce it if he can."
Lord Reay presided over a meeting of the British Academy, held at the rooms of the Royal Society on Wednesday, when Professor T. E. Holland read a paper on "Proposed Changes in Naval Prize Law in connection with the Prize Court Convention and the Declaration of London. Professor Holland suggested that there should be disentangled from the Naval Prize Bill many of the complex questions regarding blockade and contraband, which should be referred to an expert Royal Commission. The Prize Court Convention ought not to be ratified until the proposed court was equipped with a satisfactory body of prize law. The declaration should be interpreted without reference to the covering report. Further, he thought that the declaration failed to supply the body of law required to justify ratification of the convention, and that irrespective of its insufficiency for the needs of the proposed court, the declaration was unfitted for acceptance even as an instalment of revised Prize Law. Finally, he thought that the establishment of an International Prize Court should follow, rather than precede, agreement as to the law which such a court would have to administer. There was no guidance as to whether 8 nation could equip its auxiliary commercial vessels 89 warships at sea. it had been asserted that under the declaration such a vessel might have a dual character, putting out and into ports as a trader and changing her character at sea. Lord Alverstone said they could not properly auge the value of the Bill without ascertaining what was the real importance of the provisions it contained. The opinion had been held that some of the concessions to this country were so valuable that we could afford to give way on some others. While he was all in favour of international agreements, we ought not to give way on anything because we got concessions in return.-Mr. T. Gibson Bowles said they had heard the jurists on the question, but the seamen had not yet been heard. He was muzzled, and it was only through men like Sir Edward Lambton, who said the whole navy was against it, that they indirectly knew what the navy thought. He cordially welcomed the suggestion for a Royal Commission. Mr. A. Cohen, K.C., said that the declaration unless interpreted in the light of Mr. Renault's report was vague, defective, and incomplete. It would be rash to ratify it without further discussion or negotiation, as it might be most injurious to the interests of England and to the interests of all nations.-Lord Reay, in expressing the thanks of the meeting to Professor Holland, said that that gentleman and Professor Westlake differed. He personally agreed with Professor Westlake, who had taken up the defence of the declaration.
NOTES OF RECENT DECISIONS NOT YET REPORTED.
BY OUR REPORTERS IN THE SEVERAL COURTS,
HOUSE OF LORDS. Company-Articles of Association-Increase of Capital-"Creation" and "Issue" of Shares-One of the articles of association of a company provided for the increase of its capital "in general meeting" by the creation of new shares. Tae article was afterwards amended by the substitution of the words "by resolution of the directors for the words in general meeting." Another article provided that any new shares from time to time to be created may from time to time be issued" with provisions as to preferential or deferred rights, premiums, and voting rights. "on such terms as the company may from time to time by resolution of a general meeting declare.” ́ Held, that while the directors had power to pass a resolution creating new shares, they could not be issued without a resolution of the company in general meeting. Judgment of the Court of Appeal (103 L. T. Rep. 516; (1911) 1 Ch. 73) affirmed.
[Koffyfontein Mines Limited v. Mosely. H. of L. May 29.Counsel Sir R. Finlay, K.C, Upjohn. KC., Jessel, K.C., and J. W. M. Holmes; Buckmaster, K.C, Clauson, K.C., and Harry Greenwood. Solicitors: Ingle, Holmes, Sons, and Pott; Cohen and Cohen.]
Employer and Workman-Accident in Course of Employment-Compen sation-Workmen's Compensation Act 1906.-The respondent company made a pathway over land belonging to them which cut off a corner, and gave their workmen a shorter way of access to their works than by following the public road. The footpath crossed a railway embankment by some steps. The appellant, a workman in the employment of the respondents, while using the path. with the permission of the respondents, fell while descending the steps,
and was injured. The place of the accident was more than threequarters of a mile from the works. Held, that the accident was not "in the course of the appellant's employment within the meaning of the Workmen's Compensation Act 1906, and that he was not entitled to compensation. Judgment of the Court of Appeal affirmed.
[Walters v. Staveley Coal and Iron Company. H. of L. May 30.Counsel: Astbury, K.C., Atherley-Jones, K.C., and W. Shakespeare; C. A. Russell, K.C. and T. E. Ellison. Solicitors: King, Wigg, Robertson, and Brightman, for Bertram Mather, Chesterfield; Cooper and Son, for Davies, Sanders, and Swanwick, Chesterfield.]
COURT OF APPEAL.
Employer and Workman-Accident-Death -Matter referred to Medical Referee after Death-Jurisdiction-Power subject to Regulations-No Regulations made-Workmen's Compensation Act 1906 (6 Edw. 7, c. 58), ched. 1, par. 15; sched. 2, pars. 5, 12, 15-Workmen's Compensation Rules, rr. 53, 54-Form 48.-The Workmen's Compensation Act 1906 by sched. 2, par. 15, provides that any arbitrator or judge may, subject to regulations made by the Secretary of State and the Treasury," submit to a medical referee for report any matter which seems material to any question arising in the arbitration. Held, that where a workman died after an accident, the judge had jurisdiction after his death to refer a question as to the cause of death to a medical referee, although no such regulations on that point had been made, for as the Act gives him the jurisdiction, bat subject to the control of certain regulations, if the regulations are not made he may act without such control.
[Carrolan v. Harrington. Ct. of App.: Cozens-Hardy, MR, Buckley and Kennedy, L.JJ. May 25.-Counsel: Cuthbert Smith and Newman: Rigby Swift. Solicitors: Helder, Roberts, Walton, and Giles, for J. A. Behn, Liverpool; Sharpe, Pritchards, and Co., for Richardson, Marsh, and Co., Liverpool.] Marine Insurance-Inchmaree Clause-Damage to Hull through latent Defect existing prior to the Policy-Latent Defect becoming Patent through Wear and Tear during Currency of Policy.-Appeal by the plaintiffs from the judgment of Scrutton, J. in an action tried by him without a jury, reported 104 L. T. Rep. 203. The plaintiffs, owners of a ship, claimed against the defendants as underwriters the sum of £137, being defendants' proportion of an expense of about £2300 incurred by the plaintiffs in replacing a stern frame condemned on account of a crack or fissure. The claim was made under a policy, dated the 10th Dec. 1908, insuring the plaintiffs, subject to the Institute time clauses as attached, for twelve months from noon on the 8th Deo. 1908 to noon on the 8th Dec. 1909 against ordinary Lloyd's peril. The Institute time clauses included a clause known as the Inchmaree clause," the relevant words of which were as follows: "This insurance also specially to cover loss of or damage tɔ hull through any latent defect in the hull provided such loss or damage has not resulted from want of due diligence by the owners of the ship or any of them or by the manager. The defendants alleged that there was no loss by perils insured against within the period of the policy. The learned judge found as a fact that there was an obvious defect in the stern frame, and that it was covered up and remained undiscoverable by reasonable inspection until after the commencement of the policy; and that its becoming visible was due to the ordinary wear and tear of a ship's life. It was submitted on behalf of the plaintiffs that there was a loss or damage to the hull through a latent defect within the policy. It was contended on behalf of the defendants that the latent defect did not arise during the currency of the policy, that it existed in 1906, and that the consequences of ordinary wear and tear were not insured against. Scrution, J. held that the assured were not entitled to recover, as there had been no loss or damage from the perils insured against during the currency of the policy. The plaintiffs appealed. The court dismissed the appeal.
[Hutchins Brothers v. Royal Exchange Assurance. Ct. of App. : Vaughan Williams, Fletcher Moulton, and Farwell, L.JJ. May 25. -Counsel for the appellants, Bailhache, K.C., Dunlop, and C. H. Carden Noad; for the respondents, George Wallace, K.C. and Chaytor. Solicitors: for the appellante, Holman, Birdwood, and Co.; for the respondents, Coward and Hawksley, Sons, and Chance.] Negligence-Agent-Disposal by Contractor of Sewage removed under Contract from Cesspools-No Provision as to Disposal in ContractCasual or collateral Negligence "-Respondeat superior.—The plaintiffs complained that the defendant council had trespassed on their land and caused a nuisance by the deposit thereon of sewage removed from cesspools in their district under the following circumstances: Pending the completion of a scheme of drainage, the defendants had contracted with one H. for the emptying of the cesspools under sect. 42 of the Public Health Act 1875. The contract was contained in a letter written by H. on the 18th Nov. 1910 in these terms : 44 In answer to your kind inquiry re sewage barrel and working the same with two men, I am prepared to carry out the working of the emptying of cesspools as follows-viz., that my two men shall work the barrel alone. I guarantee to keep cesspools clear so that there be no complaint whatsoever under the present amount of cesspools, the council pay for all repaire. ." The sewage barrel referred to belonged to the defendante. The sewage was pumped by H. from the cesspools and was usually deposited, by arrangement with the neighbouring farmers, upon their lands; but on one or more occasions he had, without the consent of the plaintiffe, deposited sewage upon their land in proximity to houses occupied by their tenants, and thus caused a
serious nuisance. The defendants did not claim to be entitled to do what was complained of, and the only question was whether they were legally responsible for what had been done by H., and consequently liable to pay damages and costs The plaintiffs commenced an action against the defendant council and H., and then moved for an injunction which by consent was treated as the trial of the action to restrain the defendants, their servants, agents, and workmen from trespassing on the land of the plaintiffs and from placing or depositing any sewage or other foul matter thereon, and trom doing any act thereto which might cause a nuisance to the plaintiffs or their tenants. It was decided by Joyce, J. that the defendants were liable to the plaintiffs for the acts of H. under the circumstances of the case. The defendants appealed. Held, that the defendants having omitted to make arrangements in their contract with H. for the disposal of the contents of the cesspools after the same had been removed therefrom were liable to the plaintiffs. Appeal dismissed.
[Robinson v. Beaconsfield Urban District Council. Ct. of App.: Cozens-Hardy, M. R., Buckley and Kennedy, L.JJ. May 23 and 24 Counsel: For the appellants, Hughes, K.C. and A. J. Spencer; for the respondents, Younger, K.C. and F. Baden Fuller. Solicitors: for the appellants, Slow, Preston, and Lyttelton, agents for Charsley and Reynolds, Slough; for the respondents, Surtees, Phillpotts, and Co.] Power of Appointment-Exercise of, by Will of domiciled DutchwomanWill made in Dutch Form-Attestation in Manner required by English Law -Grant of Probate in England-Construction of Will-Applicability of English Law-Wills Act 1837 (1 Vict. c. 26), s. 27.-On further consideration of certain points arising in an administration action. it appeared that Mrs. G. at her death had under an English will a general power of appointment over certain funds. She had married a Dutchman and been domiciled in Holland, thereupon presumably becoming a Dutch subject. Under those circumstances the made a will. That will was made in Dutch form, but was executed and attested in the manner required by English law. It was therefore admitted to probate in England. By that will the testatrix declared that, whilst revoking her former dispositions, she appointed as her sole heir of the whole of her property of which the law in force at the time of her death should allow her to dispose in his favour her husband, Mr. G. That was in effect a gift to her husband of all that she could leave in his favour. It appeared that according to Dutch law there were certain parts of property which a man or woman cannot dispose of freely by will, which devolve in a course determined by the Dutch law. She further declared that she appointed her husband as executor of her disposition or last will, giving him for that purpose all requisite power, mandate, and authority, including therein the right to take possession of all her real and personal properties according to law. The question was whether and how far and in whose favour that will operated to exercise the power of appointment. It was contended against Mr. G. that according to the true construction of this will there was an appointment to him of seven-eighths of the fund and an appointment in favour of the person who would be entitled according to Dutch law to the other one-eighth. It was decided by Parker, J. (104 L. T. Rep. 202) that the effect of the exercise of this power of appointment by the Dutch will was to vest the whole fund in her husband, to whom the appointment was made, notwithstanding that according to Dutch law the testatrix was subject to certain disabilities in disposing freely of her estates in Holland. The defendant appealed. Held, that the husband took beneficially only so much of the fund as the Dutch law allowed him-i.e., seven-eighths. Appeal allowed.
[Re Pryce; Lawford v. Pryce Ct. of App.: Cozens-Hardy, M.R., Buckley and Kennedy, L.JJ. May 9, 10, and 31.-Counsel: for the appellant, Martelli, K.C. and Owen Thompson; for the respondents, Komer, K.C. and Bisschop; Bethell; Austen-Cartmell. Solicitors: for the appellant, Pattersons, Snow, Kinder, and Lawson; for the respondents, Russell, Cooke, and Co.; Wansey, Stammers, and Co.; Pattersons, Snow, Kinder, and Lawson.]
Set led Land-Mansion-house-Lease by Tenant for Life-Dilapidations -Payment by Lessee of Damages for Breach of Covenant to repairCapital or Income-Tenant for Life-Settlement Trustees-Settled Land Act 1882 (45 & 46 Vict. c. 33), 88. 6, 15, 45, 53-Settled Land Act 1890 (53 & 54 Vict. c. 69), ɛs. 7, 10.—A tenant for life under the Settled Land Acts, with the consent of the trustees of the settlement which was made by the will of his father, in exercise of his leasing powers under those Acts demised the mansion-house for a term of twenty-one years to a tenant who covenanted to keep the house, erections, and buildings in good and substantial repair. The lessor died without any issue before the determination of the lease, leaving his nephew tenant for life without impeachment of waste of the settled property. Upon the expiration of the term a claim was made against the lessee's representative for (inter alia) damages for breach of covenant to repair, which claim was after 80 me correspondence settled at a certain sum which was duly paid. The question then arose between the trustees of the settlement and the tenant for life as to who was entitled to the sum so paid as such damages. An originating summons was taken out by the trustees against the tenant for life for the determination of that question. It was decided by Swinfen Eady, J. (104 L. T. Rep. 200) that the sum received as compensation for dilapidations to the building was in the nature of capital money, and should be paid to the trustees of the settlement and not to the tenant for life for his own benefit. The tenant for life appealed. On the appeal two questions were argued: First, whether the sum paid as damages was payable to the trustees of the settlement or to the tenant for
life; and, secondly, if the sum were payable to the tenant for life, whether he could at his option lay it out in effecting the repairs or could use it as he thought proper. Held, first, that the sum was payable to the tenant for life; and, secondly, that the sum when in the hands of the tenant for life was not a sum which as between himself and the remaindermen he was bound to apply in effecting the repairs, as otherwise it would be compelling him to do that which the settlor had said he need not do being a tenant for life not impeachable for waste. Appeal allowed.
[Be Lacon's Settlement; Lacon v. Lacon. Ct. of. App.: CozensHardy, M.R., Buckley and Kennedy, L.JJ. May and 26Counsel: for the appellant, Buckmas'er, KC. and T. T. Methold; for the respondents, J. M. Stone. Solicitors: for the appellant, Grover, Humphreys, and Son; for the respondents, Wellington Taylor.]
Will-Construction-Bequest of "the Amount of one Year's Wages” — Servants (indoor and outdoor)-Weekly Wages.-A testator bequeathed "to each of my servants (indoor and outdoor)," provided they had complied with certain conditions as to length of service laid down in the will, "the amount of one year's wages.' Held, that servants in receipt of weekly wages were entitled to the benefit of the bequest as well as those engaged by the year. Blackwell v. Pennant (9 Hare, 551) and Re Ravensworth; Ravensworth v. Tindale (92 L. T. Rep. 490; (1905) 2 Ch. 1) distinguished.
[Re Earl of Sheffield; Ryan v. Bristow. Ct. of App.: Cozens. Hardy, M.R, Buckley and Kennedy, L JJ. May 24-Counsel : Gutch; Draper; Bovill. Solicitors: Palmer and Bull, for Lewis and Holman, Lewes; Kennedy, Ponsonby, and Co.]
HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Administration-Intestacy-Distribution of personal Estate-Children of Marriage—Children of deceased Wife's Sister-Deceased Wife's Sister's Marriage Act 1907 (7 Edw. 7, c. 47), 88. 1, 2.-T. G. died intestate on the 19th March 1911. He was the son of J. G. by his marriage with A. F., who died in 1860. J. G. went through the form of marriage with H. F., the sister of A. F., in 1863. J. G. died in 1900, and H. F. in 1907. At the date of the death of T. G., there were living six of his brothers and sisters, four of whom were children of J. G. by his first marriage, and two were children of J. G. by his union with H. F. The question now arose whether these two children were entitled to share with the four brothers and sisters of the first marriage under the statutes for the distri bution of the estates of intestates in the personal estate of T. G., having regard to the Deceased Wife's Sister's Marriage Act 1907. Held, that all the children of J. G., whether of the whole or of the half blood, were entitled to share in the estate of T. G.
[Re Green; Green v. Meinall. Ch. Div.: Warrington, J. May 26. -Counsel: J. H. Redman; H. H. King; R M. Pattisson. Solicitors Child and Child; Hcres, Pattisson, and Bathurst.] Company-Debentures and Debenture stock-Assignment of specific Assets -Priorities.-I., C., and Co. Limited in 1890 created debenture stock amounting to £750,000 secured by a debenture trust deed of the 12th Sept. 1890, whereby certain freehold and leasehold properties were specifically mortgaged to trustees for the debentureholders, and a general charge was created upon the company's assets, and in the form of debenture it was provided that the charge was to be a floating security. In 1896 the company created £500,000 debenture stock and executed another trust deed of the 29th May 1896 creating a specific charge on certain property not comprised in the specific charge created by the previous trust deed. It also contained a general charge. In 1900 the company created irredeemable mortgage debenture stock and executed a trust deed of the 18th Sept. 1900 to secure the same, containing first a specific charge on certain specified premises and a general charge upon the other assets of the company, to rank as a floating charge. In 1906 the company issued a further series of securities called premium bonds, creating a floating charge. By deeds of the 1st Aug. 1908 and the 18th Sept. 1908 the company assigned to W. and H, as trustees for the L. C. and M. Bank, in consideration of the bank continuing to do business with the company, certain book debts which included rents in arrear and drawbacks" owing to the company by the Customs authorities. By two further deeds of the 22nd Oct. 1908 and the 27th Nov. 1908 the company assigned to W. and H. certain further draw backs" due to them by the Customs authorities. Receivers under all the trust deeds were appointed in Jan. 1909, and notice was given to all the tenants of the company, which put an end to the right of the company to receive rents. The arrears of rents assigned by the two deeds of 1908 consisted of rents payable in respect of premises specifically charged by one or other of the three deeds and of rents payable in respect of property not specifically charged. The question now raised was whether W. and H. were entitled to the specific assets-rents and "drawbacks"-assigned to them in priority to the holders of the various series of debenture stocks created by the company. Held, (1) that, as regards the rents payable in respect of property not specifically charged, W. and H. were entitled to priority over the debenture-holders; (2) that, following the rule laid down in Moss v. Gallimore (Doug. 279), the rents of the premises which were specifically charged belonged to the trustees for the debenture holders, notwithstanding the affected assignment of the rents to W. and H.; and (3) that, following the decision of Chitty, J. in Ward v. Royal Exchange Shipping Company Limited (58 L. T. Rep. 174), in spite of the fact that the trustees for the debenture-holders had given notice to the Crown
authorities, while W. and H. had not done so, the "drawbacks" were payable to W. and H., as trustees for the bank.
[Re Ind, Coope, and Co. Limited; Fisher v. The Company; Knox v. Same; Arnold v. Same. Ch. Div.: Warrington, J. May 24Counsel: Cave, K.C. ard Whinney; F. Dodd, Pepys; Carson, K.C. and H. C. Holden. Solicitors: Davidson and Morriss; Nash, Field,. and Co.; Alfred Allistone.]
ompany-Memorandum cf Association - Reorganisation of Share Capital-Companies (Consolidation) Act 1908 (8 Edw. 7, c. 69), 8. 45.— A company limited by shares passed a special resolution which it was sought to have confirmed by an order of the court, modifying its memorandum so as to reorganise its stare capital. The question arose as to whether as a condition precedent to making the order the petition ought to be advertised and the petition had been ordered to stand over for a week. Held, that advertisement was not necessary.
[Re Ashanti Development Limited and Re the Companies (Consolida tion) Act 1908. Ch. Div.: Eve, J. May 30.-Counsel: A. F. Topham. Solicitors: Romer and skan.]
Contract-Trade Association-Trade Union-Agreement with foreign Exchange-By-law-Member-" Dishonourable or disreputable Conduct"Ultra vires-Non-fulfilment of Contract-Refusal to refer Dispute to Arbitration-Award of foreign Arbitrators- Enforcement Order" - Foreign Judgment-Procedure-Enforceability. The L. Cotton Association Limited was incorporated in 1882, its objects, as stated by clause 3 of its memorandum of association, being to adjust controversies between persons engaged in the cotton trade, to establish just and equitable principles in the trade and disseminate useful information throughout all markets, to communicate with chambers of commerce throughout the world, and promote measures for the protection of the cotton trade and traders. By its articles of association the directors were empowered to make by-laws in regard to suspension, liability of members to expulsion, and fines. In May 1909 the association adopted a by-law (7—1 (m) that every member should be liable to expulsion for any "dishonourable or disreputable conduct' in his dealings with any body with which the company had made an arrangement for mutual protection as defined by such arrangement. The association on the 5th Aug. 1909 entered into an agreement with the B. Cotton Exchange, of which the defendants, H. and Co., were members, whereby a member of either association found guilty of dishonourable conduct in his dealings with a member of the other association was to be dealt with by his 888ociation been committed if the offence had against a fellowmember. Among other offences, refusal to refer any question in dispute to arbitration was included. A rule of the B. Exchange. provided that all disputes should be settled by arbitration. On the 8th Oct. 1909 the plaintiffs contracted for sale by them to H. and Co. of American cotton on the terms of the rules of the B. Cotton Exchange," with arbitration in B." (which is in Germany), pay. ment to be made by drafts accepted on delivery of bills of lading. The bills of lading as to part of the cotton were forged, and H. and Co. became liable to banks who had accepted bills against such bills of lading for £15,000. H. and Co. demanded and proceeded to arbitration according to the rules of the B. Cotton Exchange, and on the 3rd Aug. 1910, notwithstanding the plaintiffs' refusal (on the ground that a question of law had arisen) to be bound, the arbitrators made an award against them. By sect. 1040 of the German Code of Civil Procedure, an arbitration award has inter partes the effect of a final judgment; but by sect. 1042 it can only be enforced by execution if an "enforcement order" is made by the court. The plaintiffs having declined to abide by the award, the association, on the complaint of the B. Cotton Exchange, threatened to proceed under by-law 7-1 (m) against the plaintiffe, whose action was for a declaration that they had not been guilty of dishonourable conduct within the meaning of the by-law, which, and the agreement between the association and the B. Exchange, they alleged to be ultra vires and the award invalid. The plaintiffs also alleged that in the circumstances the award was not, as a foreign judgment, enforceable in this country. H. and Co. and three banks, to whom on the 27th Aug. 1910 they had assigned their rights under the award, by way of counter claim sought a declaration that the award was binding on the plaintiffs, and for payment by them of the amount awarded. Held, that, according to English law, the agreement between the association and the exchange, falling entirely within the policy and powers indicated by the memorandum of the association, was intra vires. The by-law and the agreement read together led to the conclusion that the by law was not oppressive, but was also intra vires the power of the association, which was not a trade union within the Trades Union Amendment Act 1876 (39 & 40 Vict. c. 22), e. 16, or illegally registered under the Companies Acts. The award was valid between the parties, and dealt with matters properly before the arbitrators. Although the action must therefore be dismissed, the award, while falling within a different category from the Spanish judgment in Nouvion v. Freeman (62 L. T. Rep. 189; 15 A. C. 1), was yet not the existing judgment of a foreign tribunal which an English court could enforce, and the declaration asked in the counter-claim would not be made.
[Merryfield, Ziegler, and Co. v. Liverpool Cotton Association Limited. Ca. Div. (Liverpool District Registry): Eve, J. May 25. -Counsel: Astbury, K.C., Atkin, KC., and R. W. Baxter ; Lawrence, K.C., Leslie Scott, K.C., and R. B. Lawrence; Younger, K C. and Maugham. Solicitors: Pritchard, Englefield, and Co.,
OUR LITERARY COLUMN.
INDISCRETIONS OF A JUROR.
(By JOHN MACY, in Case and Comment.)
Mt. Macy is a former editor of the Youth's Companion. He married Miss Sullivan. the teacher of Helen Keller, and lives in Wrentham, Massachusetts. His article was originally published in the Boston Evening Transcript. It is worth while to take a look at the jury system as seen by this accomplished journalist.-Eo. Case and Comment.]
THE aged constable of the town of Fareham accosted me in the postoffice, and, holding a paper under my ncse, informed me that I had been drawn as juryman.
I was to report for the civil term of the superior court about to sit at Mortville in and for the county of Wessex-God-Save-the-Commonwealth-of-Massachusetts. From my neighbours I learned that there were various pretexts on which I might ask to be excused. But I was advised that being a literary man (in my town any sort of journalist literary man ") I would find the court experience good i a material, My fellow townsmen are always solicitous about material. When I fell off the roof and broke my leg, they congratu lated me because I could use the experience in a novel. I agreed that a session in the jury box would be good experience whether I ever wrote another word or not. Moreover, I had no excuse to offer the judge, because being a "literary man I have no honest occu. pation, no private business which I have a right to regard as important. Finally I consider it dishonest to try to escape public business and throw it on somebody else. I reported at the courthouse.
My fellow jurors were men of many occupations, of all ages, and of a good order of intelligence. It may be that in the cities respectable men shirk the duty, and undesirable job-seekers fill the jury boxes. I doubt if that is true, and I know that no such condition prevails in my county. . . . The panel numbered thirty odd, and that is a large enough handful of men to insure a good human average. Our jury was well mannered, did not quarrel, was conscientious and laborious in the consideration of cases. There were two or three blockheads (who, of course, disagreed with me-a blockhead is always a man who thinks as you do not), and there were one or two idlers who paid little attention to the cases. The great majority were sensible, honest, hard-thinking men.
In the several arts and sciences there can be specially trained experts. But there can be no trained expert in life. Human wisd.m, common sense, fairness of mind, are not found in any oce race, grade, class of men; they are virtues peculiar to this and that individual.
Only a few men are sufficiently self-conscious to know the dangers of their own judgments, to be able to turn upon their own intellect and say to it: "Now, old intellect, clogged with myths and emotions and sectarian persuasions, get free as you can from all the lumber that burdens you, and think as clearly as possible about this case which has been given you to decide.' Few of us can do that, few have the will to try it. And those few are just as likely to be found in one class of men, in one trade or nationality, as another.
Mary Anne sues grandfather's estate and tries to dispossess some prim old aunts, who think the little hussy is mighty ungrateful. The whole family row comes out in court. Who can settle it fairly? Nobody short of demigods. But a farmer and a blacksmith and a grocer and a motorman know just as much about the mess as forty Supreme Court judges. Moreover, they have no foolish theories of justice. They go at the problem just as they go at any neighbours' quarrel. Their opinions about the ordinary civil suit are as valid as those of any other men. Do juries give outrageous verdicts? They do. But can any decision of any twelve men compare unfavourably with some of the decisions of Federal judges? We know that one man's judgment cannot be exactly as good as another's. Bat in practice we cannot tell which is better, for that involves a third judgment-our own.
A good proof of the inadequacy of human judgment of human judges is the way lawyers blunder when they challenge jury men. After a few weeks we men in the box get to know each other a little; we think we have "sized up "the habits of mind of the other fellow. The lawyer often challenges the wrong man, just the man who, we think, would be on his side. Lawyers have had long experience in judging jury men, but they make a bad job of it..
Democracy of Jury.
The jury is the last element of democracy left in the courts. A movement to abolish it or control it may be expected any time. Such movement has already been begun in a subtle way by the politicians of Allegheny county, Pennsylvania. The ten thousand citizens whose names are on the jury lists are being investigated by the authorities. Each man is, or is to be, secretly spied upon by a detective armed with an inquisitorial blank:
Name ? Address? Occupation? Age? By whom employed? (a significant question). Industrious? Sober? Intelligent? Can he read and write? Is he fairminded? (an idiotically unanswerable question). Hearing? Physical defects? Reputation? &c.
Now, on the face of it, it may seem a good idea to subject jurymen to close examination. But exactly the same kind of scrutiny should be exercised in the case of judges and lawyers. How would
our judges past the test? Is he fairminded? employed?
Go out in the highways and byways and pick up a jury at random, and the jury system will be safe. When any attempt is made to curtail or modify the broadest system of selection, democracy had better take a look into the courts and see what is happening. Common men are the only kind of men that are in this world. You cannot find twelve uncommon men in our country.
There is one great advantage in the present method of making up the jury list, which people who suspect the intelligence of jury men do not perhaps consider. School teachers, clergy men, and militia men are exempt. This raises the standard.
Much of the foregoing profound philosophy is, of course, far from the experiences of our session of the superior court which sat at Mortvile in and for the county of Wessex-God-Save-&c. We had a pleasant little family party. Most of the cases were trifling matters -somebody trying to get 500 dollars from somebody else, and Lord knows whether he ought to have had it. The presiding judge was Mr. Justice Sheridan, a kind old grandfather, who sat, as it were, at the head of the table and carved the law for us children. Since he has committed the indiscretion of publishing his autobiography, he cannot object to what a juryman says in print. I can never be guilty of contempt of court when he presides, for he is humorous and lovable, and more respectful to jury men than to lawyers.
The court is a dual personality, or rather it is the union of a person and an abstraction. This union survives from the time when it was necessary to wrap judges, priests, and kings in a sort of superpersonal dignity, to dazzle the populace and keep it abjectly dependent upon a mysterious social mechanism. The court actually is a human forked radish like the rest of us, clad in a frock coat and addicted to the incorrigibly democratic habit of putting its feet upon the desk, so that the toes of its boots are visible above the railing which divides its dignity from the other parts of the court room. When he comes in, a sheriff in sepulchral tones calls "Co-o-oart!" Then everybody stands up until the court is seated. This is a proper courtesy, but the motive of it is not courtesy. The motive is traditional respect for authority. Rise! women, children, sheriff, litigants, witnesses, lawyers, jurymen, and Miss Stenographer; the majesty of the law is in its high place! plain fact is, Mr. Sheridan, an excellent man, is settin' down Usages adapted to one state of society, which linger into a later state, often create an effect precisely the opposite from that obscurely intended when the tradition first arose. Some of the shabby brocade of court etiquette has been cleared out of our courts, such as gowns and wigs. Some that still hangs in faded shreds is dusty, but inoffensive. But some surviving practices are seriously objectionable. For instance, the outrageous habit of locking jurymen up. Why? During the progress of a civil case which lasts three or four days, jurymen can go home nights. But when the case is given to the jury the jury must go into continuous session, under lock and key, until it reaches a verdict. There is no sufficient reason why we should not go home at the end of a day, and come back to our work next morning, just as we men do in any other business. The imprisonment of a jury tends to hasty decisions, the forced verdicts of weary minds incapacitated for thinking. Much better to drop a difficult case, go home, sleep, come fresh to the jury room in the morning, and resume deliberation. If jury men are in danger of being tampered with after a case is given to them, then they are in equivalent danger of being tampered with during the progress of the
The incarceration of the jury is, I hold, against the rights and liberties of citizens. . I am willing to give a portion of my time, without pay, to public business; but I resent the turning of the sheriff's key behind my back. I resent having to walk down to the street to supper (or breakfast!) in militery or criminal column-by-twos. The judge very o.ten has to spend several days in deciding a question of law. Why not lock him up until his mind works to a conclusion?
Law is supposed to be distilled and codified common sense. professors tell you 80. Two days in court will explode that lofty superstition.
The pompousness of legal theory in the face of a fact betrays its unreason. I was allowed 4 dollars a week for travelling expenses. One week there was a holiday and we served only four days. My allowance for travelling expenses was 5.76 dollars. I tried to explain to the county paymaster that I should not have more for four days' expenses than I got other weeks for five days. He looked at me with a slight, non-committal smile and said in grave tones, "It is a the-ory of the lawr." Eighty cents a day for five days is 4 dollars; 80 cents a day for four days is 5 dollars and 76 cents. I give it up. The law knows.
Law language is a travesty of style. If we journalists took so long to say things, our space book would be very fat the first week. The next week we should not have any era e book. The editor would have secured us a situation massaging the office windows or splitting wood instead of infinitives. What archaic echoes are in mine ears! Then comes the plaintiff in the above entitled action and says that the Noo York, Naven aud Nartford Railway Company is a corporation doing business in East Miliville." That is where the plaintiff lives, and it is necessary to make it clear that this is the Noo York,
Naven, Nartford Railway Company that goes to East Millville, because there is always some idiot who will think it is the Noo York, Naven, Nartford Railway that carries Chinamen from Pekin to Canton.
"And says that on said 5th of July he was in a car, passenger coach, oil tank, or other conveyance of said company. And that he was in the exercise of due care. And that a cinder, paving stone, shingle nail, or other obstruction did enter, penetrate, or otherwise move into his eye. And that, as a result of the said foreign obstacle entering his said eye and therein lodg ing as aforesaid, he became blind and otherwise unable to see great damage to his eyesight, earsight, and all other kinde of sight whatsoever distress of mind, sleeples?nees.
Of all the parasitic classes, lawyers seem to one humble juryman to be the most pretentious, and quaintly hypocritical. Other business men simply do business, get all the profit they can, and, except at banquets and on other oratorical occasions, never pretend to be anything but business men. Lawyers carry with them a little remnant of professional ostentation. They use words like "justice," "right," "a fair and impartial consideration of the truth." They parade the lofty vocabularies of ethics, philosophy, and religion, in their daily job of getting money out of somebody else. If they could only see themselves from a juryman's point of view ... I think it would pay any large firm of lawyers to watch the courts, pick out the most likely looking jury man, and send him to a law school and take him into the firm, in order to have somebɔdy in the office who had once got a glimmer of things from the unprofessional side of the rail.
One day we heard that a very prominent lawyer was coming to court. He had an enormous reputation. His opponent and even the judge treated him with marked respect. Maybe he was skilful, maybe he fetched forth the testimony he needed with an adroitness which a jury man cannot appreciate. But I thought him a quite ordinary bore. He had a cheap wit, a self-satisfied way of taking the jury into his confidence by a sidelong glance after a particularly irritating question to the witness. I could have killed him before that case was done. In his argument he indulged in school-of-expression eloquence. I was moved. I wept tears of vexation and weariness. He ought to be sent to Congress for life. If there is such a crime as contempt of counsel, I owe 2,000,000 dollars in fines.
The Wessex county courthouse is beautiful. It cost the taxpayers about four times what it is worth, but it is worth a great deal. All the panels, rails, chairs, tables, are carved in the same design from oak that is a joy to look at. In front of our jury box was a bar as thick as a steamer rail, 12ft. or 14ft. long. (On the witness stand I should not say it was 12ft.; I should say it was as long as from here to over there.) How the lawyers pounded that rail! They are going to wear out that fine piece of oak, and then the county will have to put in a new one and taxes will go up. Cannot lawyers learn that they must not thump that rail ?-that they are offensive when they protrude their faces into a juryran's face and simulate an earnestness which the facts of the case do not warrant ? . Carlyle says: "Law courts seem nothing; yet in fact they are, the worst of them, something; chimneys for the deviltry and contention of men to escape by." Well, maybe so, old sage; the trouble is there is no vent for the gas; it stays in the court room near the jury box.
When you consider that in almost every case the lawyer can decide whether or not it shall be brought to court, the selfishness of the Legal Profession is quite patent. What cases they bring in!
Did any juryman ever hear a case in which the lawyers tried to elucidate the truth? Does a lawyer ever think of anything but victory? Is not the whole profession of law, which makes a poker game of the quarrels of life, essentially damaging to the character of the lawyer? I cannot indict a whole profession, and so I am forced to conclude that the lawyer who remains an upright man must have great character (and probably good home influences) to have resisted the corruptions of his daily business.
The courthouse at Mortville is maintained chiefly for the purpose of determining how much money shall be paid to injured and uninjured individuals by the Elevated Railway Company, the Old Province Street Railway Company, and the New York, New Haven, and Hartford Railway Company (a corporation doing business in East Millville). The citizen should not complain of the almost exclusive use, by two or three corporations, of an expensive marble and oak. trimmed courthouse. My prejudice and my judgment after
the fact are against corporations. In any case between a workingman and a corporation I should be on the working-man's side and unfavourable to the company. For this reason-the law was made by and for the corporation.
Now, having put that as strongly as I can, I may say that in the majority of cases that I heard brought against the railroad companies the defendant seemed to me not clearly to blame. The publicBervice company pays the penalty for being known wealthy corruptor of legislation, which most jurymen are inclined to punish. Ambulance chasers, knowing this, bring the flimBiest case against the companies, hoping to get at least
enough to cover expenses. The result of this is that the company has to maintain a costly legal department and pay thousands of dollars to slightly damaged and undamaged passengers. The company gets the money back from the public, for the dividends go on just the same. Under the present system of private ownership of public carriers there seems no way out of this confusion of injustices. The individual who has a good case against the company suffers both for the notorious wholesale dishonesty of the corporations and for the petty dishonesty of claimants-the kind of people who walk with a crutch until the day after the verdict and then throw the crutch away. If the woman who is just a little shaken up in a railway car could be made to realise that by going into court she helps to make it harder for her sister who is really hurt, I wonder if we should have 80 many fair perjurers on the witness stand. A court room is a good place to see the solidarity of society, and the way we all pay each other's debts willy-nilly.
Since half the civil cases are actions in tort against public carriers, about every other case brings to the witness stand the moral brother of the lawyer, the medical expert. Suppose a locomotive runs over a lady and gives her severe contusions on the right thumb. S.x months later she has a baby, and the baby eats a chunk of coal and dies. A doctor will tell the jury (" in your own words, doctor") that in the absence of any other coal, it was the coal on the locomotive tender that killed the baby.
Cross-examination: But, doctor, whether or not in this case there was any other coal. C. P.: I object.
Judge: That is not competent. He has not qualified as a coalheaver.
Jury (inwardly): On a nice bright day we can see a barn door 6ft. away. It's a rotten case, but we'll give the lady some money any how.
The medical profession ought to come to its own rescue in the matter of court practice. I suggest that the American Medical Association pass a resolution that it is the duty of every physician to testify as expert whenever he is asked, and that the fee should be divided and half of it paid to a public hospital. The effect of this would be to remove a part of the commercial curse from legal medicine and raise the ethical standard of court physicians." It would also diminish insanity. Hundreds of jurore, after listening to expert testimony about anatomy, have tried to put themselves together again and gone mad; the asylums are full of them. Think of the sufferings of a juryman who goes home in an electric car after having heard nine doctors declare that the jolting of a car produces premature old age, ingrowing teeth, and cirrhosis of the liver. And it gives a man no compensating courage, no restored feeling of safety, to have heard ten other doctors declare that a car can run over both your legs, cut them off above the knee, without doing you any harm.
Truly the law court is an excellent place in which to learn not only your social relations to your fellow men, but the anatomical relations of the organs with which nature has endowed you. In a court of law you have opportunity to assimilate any kind of wisdom permitted by your private mental metabolism. The juryman is in better position to learn than any other character in the drama. The lawyers, the judges, and the litigants stand in fixed attitudes towards each human quarrel and so their receptivity is throttled. But the juryman is a dispassionate spectator of the comedy in which he plays. If you have been a juryman, you have learned that you are not fit to be a judge; that you would be ashamed to be a lawyer; that you will never come to court as litigant if you can help it; that if you are ever a witness you will answer the questions in as few words as possible, and not act so foolishly as some witnesses you have seen; and that you can never be a sheriff unless you weigh 200 pounds. All these things are valuable to know. The wise citizen will not wish to shirk jury duty, but will welcome the opportunity to see how very human human beings are when they are under oath.
The Law and Practice of the Probate Division. By H. CLIFFORD MORTIMER, Barrister-at-law. Sweet and Maxwell.
IN planning this treatise the author has followed the practical method of making each section complete in itself and thoroughly comprehensive. It is divided into four parts. The first deals with the law in thirteen chapters describing the origin and. jurisdiction of the Probate Court and going on to treat of testamentary capacity, making and revocation and republication of wills, incorporation of documents by reference, appointment of executors, probate, administration, presumptive proof of death, survivorship, and revocation. The second part deals with the practice in non-contentious business, the third with caveats, citations, &c, and the fourth with contentious business. The statements of the law are very full, and are given largely in judicial language. The author draws attention to the useful feature that he has not merely enumerated the cases on which